By: Thomas H. Welby Thomas H. Welby Published: April 2009

Safety Policy: Are MUTCD Rules Part of OSHA?

In 1900, there were only about 8,000 registered motor vehicles, and 10 miles of paved roads, in the United States.  The first centerline to be painted on an American highway was in Michigan, in 1911, and the first STOP sign appeared in Detroit in 1915.

The early decades of the Automobile Age saw a chaotic lack of uniformity in road and highway signals and signage.  The first serious attempt to publish proposed uniform standards appears to have been a mimeographed manual, prepared under the joint auspices of the National Conference on Street & Highway Safety and the American Association of State Highway Officials, which appeared in 1935.

While that first “Manual on Uniform Traffic Control Devices” was a private effort, for some years now the traffic control “Bible” appearing under that name has been promulgated by the Federal Highway Administration, part of the U.S. Department of Transportation.  The power that goes with the ability to dispense — and to withhold — federal highway funds has been employed to oblige all of the States to adopt MUTCD as part of State law, although many states (including New York and Connecticut) have adopted the Federal MUTCD with state-specific supplements, and about a half-dozen states, while declining to adopt Federal MUTCD outright, have kept federal highway funds flowing to them by adopting State versions in “substantial compliance” with the Federal version.

MUTCD is thus to be found on the bookshelves of state and local highway agencies, planning, construction and engineering organizations, law enforcement agencies, insurance companies, and many others.

Familiarity with MUTCD is obligatory, not only in the obvious case of companies engaged in the construction and maintenance of highways and other thoroughfares, but also if your company does work in proximity to roadways, as may affect traffic.

But is MUTCD part of OSHA?

A recent decision of an administrative law judge of the OSH Review Commission gives this answer:  yes, as to those mandatory provisions of Part VI of MUTCD, “Temporary Traffic Control,” which are incorporated by reference in construction standard § 1926.200, “Accident prevention signs and tags.”

In Secretary v. CPM Constructors, the general contractor was performing road paving and related work in a high-traffic area, with a high volume of pedestrians, on-street parking, and retail businesses, in Freeport, Maine.

Following inspection, the employer, CPM, was cited for a “Serious” violation of 29 C.F.R. § 1926.200(a), which provides that “Signs and symbols required by this subpart shall be visible at all times when work is being performed, and shall be removed or covered promptly when the hazards no longer exist.”

Specifically, CPM was alleged to have failed to remove or cover promptly a sign announcing the presence of flaggers ,when a portion of its work was concluded on Main Street (a north-south road) and the flaggers followed CPM’s crew a distance of perhaps four tenths of a mile to a site on Mallet Drive, a roadway intersecting with, and perpendicular to, Main Street.

MUTCD § 6E.05 provides that “flagger stations should be preceded by proper advance warning signs.”  The Secretary and the employer agreed that, as the roadways in question were in an urban (low speed) setting, due to heavy traffic congestion and a high volume of pedestrians, under MUTCD the minimumdistance between the flagger and the nearest “Flagger Ahead” sign was 100 feet.

A “Flagger Ahead” sign located near the Fire Station on Main Street was left in place, the parties agreed, for approximately 45 minutes after the time that the work crew and flaggers had moved over to Mallet Place.  Following that move, the distance between the sign near the Fire Station, and the one flagger in use on Mallet Place, was about 4/10 of a mile.  Neither the cited OSHA standard, nor MUTCD itself, prescribes a maximum distance between the “Flagger Ahead” sign and the flagger.

Why the apparent oversight in removing (or covering) the “Flagger Ahead” sign by the Fire Station after the work crew had moved was alleged to constitute a “Serious” OSHA violation is suggested by MUTCD § 2C.02, which states in part:

The use of warning signs should be kept to a minimum as the unnecessary use of warning signs tends to breed disrespect for all signs.

The Secretary asserted that the employer ought to have promptly removed the “Flagger Ahead” sign near the Fire Station when work at that location was completed, and placed within a reasonable distance (between 100 and 300 feet) from the place on Mallet Drive where the work was proceeding.

The Secretary further argued that the 2000 foot distance between the sign near the Fire Station and the flagger on Mallet Drive was “patently unreasonable.”

The citation in CPM Constructors was submitted on stipulated facts to the Administrative Law Judge for his decision on the law.  Interestingly (and contrary to any notion that the employer can’t get a fair shake in a contested OSHA citation before an administrative law judge, paid by the Department of Labor) the citation was vacated.

First, to prove an OSHA violation, one necessary element which the Secretary must establish, by a preponderance of the evidence, is that the cited standard applies.  While the standard cited provides that a “required sign” must be removed, or promptly covered, when no hazard exists, nothing in 29 C.F.R. § 1926.200(a) actually requires a flagger sign when using a flagger.  Section 6F.2D of MUTCD, the ALJ observed, states that “flagger stations should be preceded by proper advance warning signs,” but “should” makes the prescription discretionary, not mandatory, and it is only mandatory elements of MUTCD Part VI that are mandatory under OSHA.

The only mandatory statement in MUTCD that specifically requires a flagger sign applies to lane closures on low-volume, two-land roads.  That section provides that “when flaggers are used, the Flagger symbol sign shall be used in place of the YIELD AHEAD sign.”

The ALJ found that standard did not apply to the facts of CPM Constructors,  because the road at issue was a high-traffic area, not a low-volume, two-land road.  Thus, on the facts in CPM Constructors, the “Flagger Ahead” sign was not a “required sign” that had to be removed or promptly covered, and the Secretary thus failed to carry her burden to show that the cited standard applied.

Moreover, the ALJ in CPM Constructors found, even assuming the applicability of the cited standard, the Secretary failed to show noncompliance with its terms.

Part 2 of MUTCD provides, as a standard, that “the use of warning signs shall be based on an engineering study or on engineering judgment.”  While the Secretary argued that the 2000-foot distance between the flagging activity on Mallet Drive and the flagger sign on Main Street was the equivalent of there being no flagging activity on Mallet Drive for purposes of the cited standard, the employer asserted that the placement of the flagger sign was reasonable in the circumstances, because any other placement would have resulted in its effect being lost in the flood of traffic, pedestrians, parked vehicles, and retain business advertisements and signs.

CPM’s proffer of reasons, tailed to the specific facts of the case, that supported the placement of the flagger sign, coupled with the Secretary’s failure to allege (much less demonstrate) a failure to use an engineering study or engineering judgment, was found by the ALJ to add up to a failure to prove noncompliance with the cited standard’s terms.

Note that while it is only the mandatory provisions of MUTCD Part VI that are technically mandatory under OSHA, the non-mandatory provisions re properly referred to when interpreting a doubtful term of a provision.

The obvious lesson from CPM Constructors is that compliance with MUTCD’S mandatory provisions related to accident prevention signs and tags is part of OSHA compliance.

A further lesson, I propose, is that CPM Constructors underscores that ALJ proceedings in the OSH Review Commission are not to be shunned as stacked against the employer.  The judges there are knowledgeable and meticulous, and (usually) “get it right” on the law.

© Welby, Brady & Greenblatt, LLP.
All Rights Reserved. By visiting this site, you agree to our Terms of Service. For more information please read our Privacy Policy Attorney Advertising