Shelly and Sands, Inc.

Plain-English summary

Shelly and Sands was repaving a county road near Senecaville, Ohio, when a finish roller went over a berm and landed on its operator, who died from her injuries. OSHA alleged that the company lacked an adequate site-specific accident-prevention program for roller operations. The ALJ found that the cited standard required an adequate safety program for known construction hazards but did not require every possible operating instruction to appear in a written document. The operator had completed a 6,000-hour apprenticeship, received specific training on finish rollers and berm conditions, and safely encountered similar conditions many times. The foreman had also reviewed the site, and OSHA identified no hazard for which the crew lacked warning or training. The judge vacated the litigated item; under the parties' settlement, the Secretary vacated another serious item and the employer accepted an other-than-serious item with a $500 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.20(b)(1)
• Outcome: The accident-prevention-program item was vacated; one additional item was vacated by settlement and another was affirmed as other-than-serious with a $500 penalty.
• Key point: An employer may rely on relevant apprenticeship and on-the-job training when the worksite hazards are familiar and OSHA does not prove that the overall safety program was inadequate.

Full text (OSHRC public release)

UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. — 9th Floor
Washington, DC 20036-3419

FAX:
COM (202) 606-5050
FTS (202) 606-5050

SECRETARY OF LABOR

Complainant, OSHRC DOCKET
v. NO. 92-1699
SHELLY AND SANDS, INC.,
Respondent.
NOTICE OF DOCKETING

OF ADMINISTRATIVE LAW JUDGE’S DECISION

The Administrative Law Judge’s Report in the above referenced case was
docketed with the Commission on July 19, 1993. The decision of the Judge
will become a final order of the Commission on August 18, 1993 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such petition should be received by the Executive Secretary on or before
August 9, 1993 in order to permit sufficient time for its review. See
Commission Rule 91, 29 C.F.R. 2200.91.

All further pleadings or communications regarding this case shall be
addressed to:

Executive Secretary
Occupational Safety and Health
Review Commission

1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419

Petitioning parties shall also mail a copy to:

Daniel J. Mick, Esq.

Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004

200 Constitution Avenue, N.W.
Washington, D.C. 20210

If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
having questions about review rights may contact the Commission’s Executive
Secretary or call (202) 606-5400.

FOR THE COMMISSION ,

Date: July 19, 1993 Ray H. Darling, Jr.
Executive Secretary

DOCKET NO. 92-1699
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.

Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004

200 Constitution Ave., N.W.
Washington, D.C. 20210

William S. Kloepfer

Assoc. Regional Solicitor

Office of the Solicitor, U.S. DOL
Federal Office Building, Room 881
1240 East Ninth Street

Cleveland, OH 44199

Roger L. Sabo, Esq.
Schottenstein, Zox & Dunn
Huntington Center

41 South High Street
Columbus, OH 43215

Michael H. Schoenfeld

Administrative Law Judge

Occupational Safety and Health
Review Commission

One Lafayette Centre

1120 20th St. N.W., Suite 990

Washington, DC 20036 3419

00103040200:05

UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. — 9th Floor
Washington, DC 20036-3419

PHONE:
COM (202) 606-5100
FTS (202) 606-5100

FAX:
COM (202) 606-5050
FTS (202) 606-5050

SECRETARY OF LABOR,
Complainant,
v. : Docket No. 92-1699
SHELLY AND SANDS, INC.,

Respondent.
Appearances:
Sandra B. Kramer, Esquire Roger L. Sabo, Esquire
Office of the Solicitor Schottenstein, Zox & Dunn
U.S. Department of Labor Columbus, Ohio

For Complainant For Respondent

Before: Administrative Law Judge Michael H. Schoenfeld

DECISION AND ORDER

Background and Procedural History

This case arises under the Occupational Safety and Health Act of 1970, 29 U.S.C. § §
651 - 678 (1970) ("the Act").

In January of 1992 a compliance officer of the Occupational Safety and Health
Administration conducted an investigation regarding a fatality which had occurred on a
worksite of Shelly and Sands, Inc., ("Respondent") in October of 1991. As a result of this
investigation, two citations, one (Citation No. 1) alleging two serious violations (Items 1 and

2) and one (Citation No. 2) alleging one other than serious violation were issued to

Respondent. Penalties of $5,000 for each of the three alleged violations were proposed by
the Secretary. Respondent timely contested the citations.

Following the filing of a complaint and answer and pursuant to a notice of hearing,
the case came on to be heard on March 16, 1992, in Columbus, Ohio. No affected

employees sought to assert party status. Both parties have filed post-hearing briefs.

Jurisdiction

Complainant alleges and Respondent does not deny that it is an employer engaged
in general contracting specializing in asphalt paving and repaving (Complaint ¶ II, Answer
¶ 3). It is undisputed that at the time of the alleged violations Respondent was engaged
in repaving a section of a county road near Senecaville, Ohio. Respondent does not deny
that it uses tools, equipment and supplies which have moved in interstate commerce. I find
that Respondent is engaged in a business affecting interstate commerce.

Based on the above finding, I conclude that Respondent in an employer within the

meaning of § 3(5) of the Act.’ Accordingly, the Commission has jurisdiction over the

subject matter and the parties.

Discussion
At the hearing the parties entered into a settlement effectively resolving Citation No.
1, Item 2 and Citation No. 2, Item 1.2 The sole remaining item in contest is Citation No.
1, Item 1, alleging a failure to comply with the Construction Safety Standard at 29 C.F.R.
§ 1926.20(b)(1) which provides;
§ 1926.20 General safety and health provisions.

1 Title 29 U.S.C. § 652(5).

2 The Secretary vacated Citation No. 1, Item 2. Respondent withdrew its notice of contest

as to Citation No. 2, Item 1 upon the Secretary’s reduction of the penalty proposed to $500
(Tr. 5).

(b) Accident prevention responsibility. (1) It shall be the
responsibility of the employer to initiate and maintain such
programs as may be necessary to comply with this part.

The basic facts are undisputed. On the day of the fatal accident Respondent was
repaving a county road. While operating a finish roller, Ms. Erhlenbach, contrary to
accepted safe practices, drove her roller into a deep area of asphalt which had not yet
sufficiently cooled even though the area had been identified as a deep area by other
members of the crew. As the roller slid over the edge of the berm, Ms. Erhlenbach either
jumped or was thrown into an adjacent ditch. She died from injuries received due to the
roller landing on her. .

The Secretary’s only witness, the compliance officer, testified that he issued the
citation based upon the belief that Respondent should have had a "site specific" safety
program. He explained that Respondent

..needed a site specific accident prevention program where it
would address the hazards that they would encounter at that
particular job site.

Q. And what specifically should, in your view, Respondent have
done in relation to this job site ?

3 The citation described the alleged violation as follows;

a. Shelly and Sands, Inc., during asphalt paving on County
Road 74, North of Senecaville, Ohio. Prior to assigning roller
duties to employee roller compactor operators, the employer
did not establish an adequate site specific accident prevention
plan that covered safe job operating procedures, hazard
identification, or appropriate compactor equipment for operat-
ing personnel when working on sloped roads without berms that
are immediately adjacent to roadside ditches or holes. Because
of the lack of this site specific accident prevention plan covering
safe job operating procedures, hazard identification before
assigning employees roller duties, employee operators were
subjected to critical hazards of sliding, tipping, and rolling over
at slopped roads that was without berm and immediately
adjacent to roadside ditches.

A. Well, first of all, there should have been an inspection of
the area before the employees were allowed to conduct the
work that they were to do to make a determination as to what
hazards existed at that job site.

(Tr. 19). He identified the "specific hazards" at this job site as

..the fact that the edge of the road or the berm was adjacent
to a ditch. And there was possibilities of the equipment going
over the edge of the ditch causing an accident, which it did.

(Tr. 20).

Several witnesses provided background as to the nature of Ms. Erhlenbach’s training
and experience. A full time employee of Respondent since 1989, she completed her union
apprenticeship in 1985. Her apprenticeship program ran over a period of four years (six
thousand hours of training.) Various safety training, including roller operations was included.
When she was first assigned to one of Respondent’s crews she received finish roller
operating training under an operator with over 25 years of experience. She was specifically
trained in the conditions of working alongside berms (Tr. 87-90). She was familiar with the
procedures to be used when rolling such "deep spots," having encountered them numerous
times previously (Tr. 131). There is some indication in the record that at times she operated
the roller in a standing position which other operators felt was less safe than operating from
a seated position. Respondent had no policy or rule regarding operating the roller from a
standing position. The compliance officer identified Complainant’s exhibits 1 and 2 as
written safety materials given to him by Respondent during the investigation.

The Secretary argues (Brief, p. 5) that Respondent violated the standard in that
"[r]ules were not developed or enforced for the safe operation of the tandem rollers."
Noting that the deceased failed to wait for the first run of asphalt to cool completely before
Starting her run, the Secretary notes that "[nJo specific rules were established -on this
procedure." The Secretary also argues that Respondent failed "to have in place methods
of discovering whether violations occur and enforcement of the rules if violations are
discovered." The Secretary summarized that "because Respondent’s employees were

experienced and highly trained by the Operating Engineers, they were left on their own to

safely operate their equipment, with no specific rules or enforcement.’

Respondent argues that its only obligation under the cited standard is to "demonstrate
how it will comply with Part 1926." Respondent reasons that since Part 1926 does not deal
with roller operations and no violation of any other specific standard in Part 1926 has been
alleged or even suggested, it cannot be found in violation of 1926.20(b)(1). Respondent
further argues that its safety program was not inadequate. Respondent claims that an
adequate safety program need not cover every potential hazard in writing. It is sufficient,
it argues, that the employees had been trained how to deal with the very condition which
arose in this case. The deceased had received specific training in those conditions and had
successfully encountered them numerous times before. It accurately points out that the
compliance officer was totally mistaken in his belief as to the extent of the training and job
experience the deceased had. He also incorrectly assumed that the work site had not been
inspected by a supervisor before work began. Respondent also notes that included in its
regular safety activities are weekly tool box meetings, annual safety meetings for foremen
and the presentation of safety awards to employees and foremen.>

The Commission has held that the cited standard is not impermissibly vague and that
it requires employers to have a safety program "incorporating all duties of which the
Company was aware and covering all of the Company’s employees." R. & R. Builders, Inc.,
15 BNA OSHC 1383, 1388 (No. 88-282, 1991) (citations omitted) ("R. & R."). See also, J.A.
Jones Construction Co., 15 BNA OSHC 2201, 2206 (No.87-2059, 1993). For the standard to
survive a vagueness attack, the Commission held that the standard required that an employer
have in place an adequate safety program for protecting employees from 1) hazards covered
by other standards in Part 1926 and 2) from hazards, the existence of which and the means

of abating, were both known to the employer. In R. & R, in determining whether there was

4 Complainant apparently abandoned the compliance officer’s theory that no adequate
inspection of the work area to determine possible hazards existing at the job site was made

before work commenced. This allegation, contained in Citation No. 1, Item 2, was
withdrawn. See, footnote 2, supra.

5 Respondent correctly acknowledged that it would be unsuccessful in maintaining that the
cited standard is unenforceably vague (Resp. Brief, n. 3. at p. 6).

5

a violation, the Commission reviewed the evidence as to whether the respondent taught its
employees what situations were hazardous and what to do about them, whether disciplinary
action was available against employees who failed to comply with safety rules and whether
regular safety meetings were held.

In the context of whether there was a demonstrated failure to comply with this
standard it should be noted that it is the Secretary’s burden of proof to show by a
preponderance of the evidence that the safety program was inadequate.6 The Secretary
points to no requirement that a safety program’s adequacy is to be tested solely by what
written materials it has. Yet, the compliance officer would seem to require that every single
possible operating instruction be contained in a written document.

The evidence shows that the hazards encountered at this particular work site (such
as paving on inclines, and operating rollers on roads with narrow berms, near ditches and
in areas of possible deeper asphalt) were virtually the same as on numerous other county
roads which Respondent (and in particular this crew and the deceased herself) had
previously worked. There is also unrefuted evidence that the deceased had received training
in these particular hazards. It is reasonable for an employer to rely on the training an
employee received as part of an extensive apprenticeship program and the training an
employee received on the job under the supervision of highly experienced personnel. Given
the fact that the hazards encountered were not unique to the particular work site, that the
foreman had reviewed the site to check for possible hazards prior to the work commencing
and the fact that the deceased had received training both from her union and from her
employer in the recognition of those hazards and their avoidance, I cannot find that

Respondent violated the cited standard.

6 In general, to prove a violation of a standard, the Secretary must demonstrate by a

preponderance of the evidence (1) that the cited standard applies, (2) non-compliance with
the terms of the standard, (3) employee exposure or access to the hazard created by the
non-compliance, and (4) the employer knew or, with the exercise of reasonable diligence,
could have known of the condition. Astra Pharmaceutical Products, Inc., 9 BNA OSHC 2126,
2129 (No. 78-6247, 1981); Dun-Par Engineered Form Co., 12 BNA OSHC 1949 (No. 79-
2553), rev'd & remanded on other grounds, 843 F.2d 1135 (8th Cir. 1988), decision on remand
13 BNA OSHC 2147 (1989).

Complainant’s perceived inadequacies in Respondent’s safety program do not
withstand scrutiny. The use of written materials prepared by someone other than the
particular employer, in this case the safety committee of the Ohio Contractor’s Association
(Exhibit C-1), does not, by itself, mean that the materials are inadequate. Respondent had
a short booklet (Exhibit C-2) containing basic safety rules which is required to be read and
signed not only by new employees as they begin employment, but also had to be signed
annually by all employees. Despite the compliance officer’s repeated claim that Respondent
had no "site specific" accident prevention program he could point to no hazards at the site
as to which employees had received no warning or training. Under these circumstances, the

citation is vacated.

FINDINGS OF FACT

All findings of fact necessary for a determination of all relevant issues have been
made above. Fed. R. Civ. P. 52(a). All proposed findings of fact and conclusions of law

inconsistent with this decision are hereby denied.
CONCLUSIONS OF LAW

1. Respondent was, at all times pertinent hereto, an employer within the meaning
   of § 3(5) of the Occupational Safety and Health Act of 1970, 29 U. S.C. § § 651 - 678
   (1970).

2. The Occupational Safety and Health Review Commission has jurisdiction over the
   parties and the subject matter.

3. Respondent was not in violation of the standard at 29 C.F.R. § 1926.20(b)(1) as
   alleged in Citation No. 1, Item 1.

ORDER

Item 1 of Citation No. 1 issued to Respondent on April 28, 1992, is VACATED.

MICHAEL H. SCHOENFELD
Judge, OSHRC
Dated: JUL 16 1993

Washington, D.C.