John R. Jurgensen Company

Plain-English summary

Jurgensen performed nighttime highway paving in Ohio while subcontractor dump trucks backed through a designated work route. A dump truck struck and killed a Jurgensen laborer who had left the crew's immediate work area. OSHA alleged that the contractor lacked an adequate safety program and had not trained employees to work safely near backing construction vehicles. The record showed that Jurgensen had trained the entire crew to know equipment paths and assigned areas, avoid blind spots, communicate with operators, and stay clear of vehicles. OSHA also could not prove its theory that the employee had been assigned to mark pavement in the truck route, while phone records supported the company's theory that he left the area to make a prohibited call. The two contested items were vacated, a third item was withdrawn, and no penalties were assessed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.20(b)(1); 29 C.F.R. § 1926.21(b)(2); 29 C.F.R. § 1926.56(a)
• Outcome: Two serious safety-program and training items vacated; lighting item withdrawn; no penalties assessed.
• Key point: OSHA must prove the employer lacked required procedures or training and cannot rely on an unproven theory about what the employee was doing at the time of the incident.

Full text (OSHRC public release)

                                          United States of America
               OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                           1924 Building - Room 2R90, 100 Alabama Street, SW
                                       Atlanta, Georgia 30303-3104

Secretary of Labor,
Complainant,
v. OSHRC Docket No. 10-2646
John R. Jurgenson Company,
Respondent.

Appearances:
Patrick DePace, Esquire, U. S. Department of Labor, Office of the Solicitor, Cleveland, Ohio
For Complainant

      Corey V. Crognale, Esquire, Ice Miller, LLP, Columbus, Ohio
      For Respondent

Before: Administrative Law Judge Stephen J. Simko, Jr.

                                          DECISION AND ORDER

      John R. Jurgensen Company (Jurgensen) is a general highway contractor. On September

24, 2010, Jurgensen was working on a project to widen State Route 4 Bypass, in Butler County,
Ohio. Sometime between 9:45 p.m. and 10:00 p.m., a dump truck driven by a subcontractor’s
employee backed over a Jurgensen employee. The employee died as a result of his injuries.
Occupational Safety and Health Administration (OSHA) compliance safety and health
officer (CSHO) James Denton inspected Jurgensen’s worksite. As a result of his inspection, on
December 8, 2010, the Secretary issued a citation to Jurgensen alleging three serious violations of
the construction standards of the Occupational Safety and Health Act of 1970 (Act).
Item 1 of the Citation alleges a serious violation of 29 C. F. R. §1926.20(b)(1), for failure to
initiate and maintain an adequate safety program. Item 2 of the Citation alleges a serious
violation of 29 C. F. R. § 1926.21(b)(2), for failure to instruct each employee in the recognition
and avoidance of unsafe conditions in the workplace. The Secretary withdrew Item 3 prior to the
hearing. The Secretary proposed penalties of $4,500.00 each for Items 1 and 2.
 Jurgensen timely contested the citation. The court held a hearing in this matter on January
11, 2012, in Cincinnati, Ohio. Jurgensen stipulates the Commission has jurisdiction over the
proceeding under § 10(c) of the Occupational Safety and Health Act of 1970 (Act), and that it is a
covered business under § 3(5) of the Act.
The parties have filed post-hearing briefs. Jurgensen argues it did not violate the cited
standards. It also asserts the affirmative defense of unpreventable employee misconduct.
For the reasons set out in this decision, the court vacates Items 1 and 2 of the Citation, and
assesses no penalty.
Background

    Jurgensen is a general highway contractor specializing in asphalt paving, storm, sewer, and

road construction work. In April 2010, the Ohio Department of Transportation (ODOT) awarded
Jurgensen the contract for the widening of State Route 4 Bypass (SR4B) in Butler County. The
SR4B project required Jurgensen to widen the bypass of State Route 4 from south of Hamilton
Mason Road to the eastbound ramp of State Route 129. The project was designed to
accommodate through traffic during construction activities. The Director of the ODOT
designated the project site as a limited access highway.
The SR4B project required Jurgensen to remove 19 inches of pavement and shoulder
beginning at State Route 129 and continuing south along State Route 4 before tapering up to grade
with Hamilton Mason Road. Due to this configuration, Jurgensen could establish an entry and
exit point for construction vehicles only off of Hamilton Mason Road. Jurgensen arranged for
Hamilton Mason Road to be closed to public traffic, and then established an opening for
construction vehicles to enter and exit the work zone.
ODOT specifications require travel within the work zone to be in the same direction as that
traveled by the adjacent public traffic, to prevent the drivers’ vision from being impaired by the
oncoming headlights of the construction vehicles. Jurgensen had subcontracted with Ritter
Trucking, who provided approximately fifteen dump trucks and drivers to deliver asphalt to the
worksite. To comply with ODOT specifications, the drivers backed the dump trucks onto a
designated truck route and proceeded, in reverse, north towards State Route 129 to the unloading
site.

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On September 24, 2010, Jurgensen’s crew began its nighttime paving operation. One
employee operated a paver that laid down the crushed asphalt, while another employee operated a
screed. Two laborers raked, shoveled, and leveled the asphalt as they followed behind the paver.
They were followed by employees operating two rollers. Jurgensen’s foreman arranged for the
trucks to enter Hamilton Mason Road and back up along a designated route to a staging area where
they lined up to unload.
Jurgensen’s crew began paving a 12 foot lane at the north end of the project off State Route
129 and proceeded south toward Hamilton Mason Road. The crew completed the lane at the edge
of Hamilton Mason Road. The paver then pulled off the joint and began turning around to head
north back to State Route 129 where it would begin another pass. The laborers shoveled and
raked the asphalt in order to backfill the joint between the paved lane and the edge of Hamilton
Mason Road. As Jurgensen’s crew was backfilling the joint, Ritter dump trucks were entering the
work zone off of Hamilton Mason Road and backing up along the designated route to the point
where they would stage for unloading the asphalt.
At some point, one of the laborers left the area where Jurgensen’s crew was working and
moved to a spot along the route designated for dump trucks. The dump trucks were equipped with
balloon lights, which provided limited illumination. One of the dump trucks struck the laborer
and ran over him. The driver initially believed that he had run over a slab of asphalt that had
fallen off this truck. It was only when a Jurgensen employee jumped on the side of the truck and
said, “You just ran over one of our guys,” that the driver realized he had hit a person (Tr. 73).
Jurgensen’s crew alerted emergency personnel at 9:59 p.m. Fairfield Township police
officer Brandon McCroskey arrived at the site at 10:33 p.m. The Fairfield Township Police
Department impounded the Ritter dump truck that had struck the decedent. When the police later
tested the dump truck, they determined the backup alarm was working properly.

                                       The Citation

   The Secretary has the burden of establishing the employer violated the cited standard.

   To prove a violation of an OSHA standard, the Secretary must show by a
   preponderance of the evidence that (1) the cited standard applies; (2) the employer
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failed to comply with the terms of the cited standard; (3) employees had access to
the violative condition; and (4) the cited employer either knew or could have
known with the exercise of reasonable diligence of the violative condition.

JPC Group Inc., 22 BNA OSHC 1859, 1861 (No. 05-1907, 2009).

    The cited standards apply to employers engaged in construction work. Jurgensen’s crew

was engaged in highway construction at the time of its employee’s death. The cited standards
apply to Jurgensen’s worksite.

       Item 1: Alleged Serious Violation of 29 C. F. R. § 1910.1926.20(b)(1)

   Item 1 of the Citation alleges:

   29 CFR 1926.20(b)(1): The employer did not initiate and maintain such programs
   as may be necessary to comply with the standards set forth in this part (i.e., 29 CFR
   1926):

   (a) On or about September 24, 2020, and prior to that time the employer did not
       implement and maintain workplace procedures or work rules to ensure that
       workers were protected while on foot from trucks traveling in reverse through
       the work zone area(s).

   The standard at 29 C. F. R. § 1926.20(b)(1) provides:

   It shall be the responsibility of the employer to initiate and maintain such
   programs as may be necessary to comply with this part.

   The Commission in Northwood Stone & Asphalt Inc., 16 BNA OSHC 2097, 2099 (No.

91-3409, 1994), held that, under 29 C. F. R. § 1926.20(b)(1), “an employer may reasonably be
expected to conform its safety program to any known duties and that a safety program must
include those measures for detecting and correcting hazards which a reasonably prudent employer
similarly situated would adopt.”

   Jurgensen concedes that highway construction, especially at night, requires specialized

safety training. The company argues it provides specialized training to its employees. Travis
Davis is Jurgensen’s safety manager. He has worked for the company for 13 years. He is
responsible for implementing and enforcing Jurgensen’s safety policy and for providing safety
training to its employees. Davis testified that Jurgensen works with two different safety

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consultants to train its employees: Alexander Safety Solutions and Schiff-Kreidler-Shell.

   On February 10, 2010, seven months before the employee fatality that gave rise to this

proceeding, Alexander Safety Solutions presented safety training at the Sharonville Training
Center in Ohio. All members of the Jurgensen crew working on the SR4B project the night of the
accident attended the training, including the decedent. The sign-in sheet lists the topics covered
by the training as “Orientation, Hazcom/Hazard Awareness, Night Work, D.F.W.P., Fleet
Program, P. P. E.” (Exh. R-10).

   A portion of the training is taught using a PowerPoint presentation, which is divided by

topics into modules. Davis discussed Module Five of the PowerPoint:

   Module Five, Night Work, basically goes over all what’s out there in regards to
   potential hazards you may see at night. That goes from impaired drivers to
   visibility is really down at night, working in work zones, watching—as you can see,
   if you have the module printed out, you can see that they have—we have an
   equipment module in there for –you know, looking out when equipment backs up,
   making sure backup alarms are working, making sure you stay with your crew,
   everybody knows where you’re at when you work at night. Basically we try to
   preach brother’s keeper out there at night shift.

(Tr. 232).

   Exhibit R-13 is a printout of Module Five. It states, in pertinent part:
           Objectives

           --Identify the types of hazards that exist during night work

           --Recognize the key characteristics of these hazards

           --Identify prevention, control, or abatement methods associated
           with reduced visibility, impaired motorists, higher traffic speeds,
           bright lights and shadows

           --Recognize additional hazards and solutions to night work
           problems

           ***

           How Can We Protect Ourselves at Night?
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...

           Know your surroundings

          Vehicle and equipment paths
          Assigned work areas
          Safe paths to/from work locations
          On foot, watch out for equipment
          On equipment, watch out for workers

           ***
           What About Construction Equipment?

           Treat equipment and vehicles with caution.

           Around equipment, vehicles

          Stay out of “blind spots”
          Communicate with operators by radio and/or eye contact
          Don’t approach until you communicate with operator and he/she
           acknowledges you
          Stay outside a “safety circle” around equipment
          Stay clear of vehicles, know traffic control plan
          Use spotters when you must work with your back to equipment or
           traffic

(Exh. R-13).

   The Secretary contends Jurgensen violated 29 C. F . R. § 1926.20(b)(1) “by failing to

implement and maintain workplace procedures or rules to ensure that the workers on foot were
protected from trucks traveling in reverse through the work zone area(s)” (Secretary’s brief, p. 13).
The above-quoted portions from Jurgensen’s PowerPoint training belie the Secretary’s contention.
The record establishes Jurgensen had implemented and communicated work rules designed to
prevent employees from being struck by vehicles traveling in reverse through the work zone.
Specifically, Jurgensen trained its employees to stay in their assigned work areas, to know the
traffic control plan, and to stay clear of vehicle and equipment paths. All of Jurgensen’s crew
members working on SR4B project, including the decedent, attended the training.

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The Secretary has failed to establish Jurgensen was not in compliance with 29 C. F. R. §
1926.20(b)(1). Item 1 is vacated.

          Item 2: Alleged Serious Violation of 29 C. F. R. § 1926.21(b)(2)

   Item 2 of the Citation alleges:

   29 CFR 1926.21(b)(2): The employer did not instruct each employee in the
   recognition and avoidance of unsafe condition(s) and the regulation(s) applicable to
   his work environment to control or eliminate any hazard(s) or other exposure to
   illness or injury:

   (a) Employees had not been trained on how to work near construction vehicles in
   order to reduce their vulnerability from being struck by or being caught between
   construction vehicles. Specifically, there had been no training of employees
   required to mark pavement for the areas in which trucks were backing up.
   The standard at 29 C. F. R. § 1926.21(b)(2) provides:

   The employer shall instruct each employee in the recognition and avoidance of
   unsafe conditions and the regulations applicable to his work environment to control
   or eliminate any hazards or other exposure to illness or injury.

   The Secretary cited the employer in W. G. Fairfield Company, 285 F.3d 499, 504 (6th Cir.

2002), for violations of the same two standards at issue in this case. The Court of Appeals for the
Sixth Circuit summed up the different requirements for each of the cited standards: “Stated
simply, one citation was for not making the proper policies, and the other was for not instructing
employees on those policies.” The standard at 29 C. F. R. § 1926.21(b)(2) requires the employer
to instruct the employees in the work rules that apply specifically to their working conditions.

   The Secretary contends Jurgensen failed to train its employees in safely marking pavement

in the area where trucks were backing up. It is the Secretary’s theory that Jurgensen foreman
Todd Koenig assigned the decedent the task of marking the gravel with a line for the paver to
follow, and that the decedent was performing this assigned activity when he was struck by the
dump truck. Jurgensen disputes this theory, speculating instead that the decedent left his assigned
work area to use his cell phone to call his wife, with whom he was fighting. Jurgensen had
implemented a strict policy forbidding the use of cell phones during work.

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Jurgensen’s construction superintendent Jonathan Little stated the only place the decedent
should have been located was in the area where the other laborers were backfilling the joint: “He
should have been with these other guys shoveling. If they were all behind this paver, he should
have been behind the paver” (Tr. 135). He further explained that, even if the decedent had been
assigned to mark the gravel, he should not have been in the area where he was struck by the dump
truck:
[T]here’s no sense marking it on this end if you’re going to drive dump trucks right
across it. You would go to the other end and mark it back in the way you’re going
to be paving. . . . Because if he marks it on this end and as he’s moving the trucks
drive over it, they’re going to take the marks right back up. . . . If he’s going to
mark lines, he would have gone immediately to this end and marked in this
direction. As the paver moved, he would have marked along with the paver. If he
starts here marking lines, coming this way, and you’ve got to back forty dump
trucks back through here, there won’t be any line.

(Tr. 149-150).

     Jurgensen introduced the decedent’s cell phone records, which indicate that he placed a

call at 9:36 p.m. the night of his death, and the call terminated approximately 8 minutes later (Exh.
R-1). The Fairfield Township Police Department received the 911 call reporting the decedent’s
accident at 9:59 p.m. It is Jurgensen’s theory that the decedent was struck by the dump truck at
approximately 9:45, which is the cause of the termination of the cell phone call. While it is
unknown whether the decedent was struck while he was using his cell phone or a few minutes after
he ended the call, the record supports Jurgensen’s theory that the decedent had left his assigned
work area in order to place a prohibited call without being seen.

     “An employer’s obligation to instruct and train is dependent upon the specific conditions,

whether those conditions create a hazard, and whether the employer or its industry has recognized
the hazard.” W. G. Fairfield Company, 285 F.3d at 506-507. In order to establish a violation of
29 C. F. R. § 1926.21(b)(2) for this item, the Secretary must prove “there had been no training of
employees required to mark pavement for the areas in which trucks were backing up.”

     The Secretary has failed to meet this burden. She has not shown that it is more likely than

not that the decedent was engaged in the activity of marking the pavement in an area where trucks
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were backing up. The Secretary concedes as much in her brief, stating, “It cannot be established
definitively what [the decedent] was doing at the time he was hit by the truck” (Secretary’s brief, p.
8). None of the hourly employees testified. There is no evidence that they did not receive the
training the Secretary cites Jurgensen for failing to provide. Foreman Koenig stated he reviewed
the working conditions with his crew before each work shift. There is no evidence Koenig failed
to provide his crew with instructions regarding specific conditions of the worksite.

   The Secretary has failed to establish Jurgensen was in noncompliance with 29 C. F. R. §

1926.21(b)(2). Item 2 is vacated.

                        Findings of Fact and Conclusions of Law

   The foregoing decision constitutes the findings of fact and conclusions of law in

accordance with Rule 52(a) of the Federal Rules of Civil Procedure.

                                          ORDER

   Based upon the foregoing decision, it is ORDERED that:

   1. Item 1 of the Citation, alleging a serious violation of § 1926.20(b)(1), is vacated, and
      no penalty is assessed;

   2. Item 2 of the Citation, alleging a serious violation of § 1926.21(b)(2), is vacated, and
      no penalty is assessed; and


   3. Item 3 of the Citation, alleging a serious violation of § 1926.56(a), is withdrawn by the
      Secretary. No penalty is assessed.




                                           /s/

Date: July 23, 2012 STEPHEN J. SIMKO, JR.
Atlanta, Georgia Judge

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