The ALJ decision in Secretary v. Master Construction Co., Inc. underscores the necessity of detailed, site-specific plans, training, and coordination among the GC and subcontractors, to protect workers on foot from struck-by mishaps involving vehicles and equipment.
In Master Construction, the respondent was the general contractor on a roadway expansion and resurfacing project in North Dakota. A concrete worker working on foot for the respondent had both legs broken, when he was struck by a cement truck driven by an employee of a subcontractor. Following inspection, OSHA cited the respondent for a “Serious” violation of the OSH Act’s General Duty Clause.
The citations and proposed penalties were contested, and the matter tried before an Administrative Law Judge. The General Duty Clause citation item was upheld, based on the respondent’s failure to sufficiently protect its employees from the hazard of being struck by heavy equipment while in the construction zone.
The work in the construction zone was synchronized and fast-paced. First, a placer. collected the concrete delivered by the trucks into a hopper. Next, a conveyor moved the concrete from the hopper to a movable chute, that spread the concrete over the roadbed. A paver traveled behind the placer, and smoothed and formed the concrete. Bringing up the rear was the cure cart, which applied a compound to ensure that the concrete would dry with the specified strength and durability.
From a safety standpoint, the main problem was that although, with the exception of the chute man, most of the concrete workers worked behind the placer and paver (which were a barrier between them and oncoming vehicular traffic) the project was staged so that the concrete workers, without the benefit of marked-off pedestrian lanes, had to cross areas where equipment was being operated in order to reach their cars, and to access tools, lunches, and supplies.
Also, while respondent did annual seminars and toolbox talks on how to avoid being struck by a moving vehicle on the jobsite, its warnings and directives were general. It had neither a site-specific safety plan, nor specific, documented rules governing pedestrian and truck traffic within the construction zone. One driver testified he did not recall receiving any notice respondent’s employees would be walking in the area of truck traffic, and stated it was “not likely at all” for workers or contractor employees to be traveling in that area on any worksite.
On the day in question, A.A., a concrete worker, had been directed to retrieve a supply of curing compound, which required him to traverse the traffic zone. A concrete truck, driven by Nelson, having just dropped its load of concrete into the hopper, pulled forward to the right side of the roadbed to avoid a second truck, driven by Savageau, which was backing up to the hopper. After pulling forward an undetermined distance, Nelson stopped to pin up his chute, whereupon he discovered that he had struck A.A., one of the respondent’s employees.
OSHA’s compliance officer found a violation of the General Duty Clause, namely that respondent had failed to properly address the hazard presented by employees traveling on foot through an area where concrete trucks were in motion. Section 654(a)(1) of the OSH Act imposes a general duty on employers to furnish employees a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” In order to prove such a violation, the Secretary must show that a condition or activity in the workplace presented a hazard; that the employer or its industry recognized the hazard; that the hazard was likely to cause death or serious physical harm; and that a feasible and effective means existed to eliminate or materially reduce the hazard. As always, the employer’s actual or constructive knowledge of the hazard is a further requirement.
Most of the elements of the violation were either conceded and/or too painfully evident for serious dispute. Struck-by hazards are part of every roadway job, and the disproportion between a concrete truck, and a man on foot, leaves no doubt that the latter, if struck squarely by the former, will probably be seriously injured.
That the hazard was recognized in the industry was shown, among other things, by expert testimony, and the existence of ANSI standards. That the respondent recognized the hazard was apparent in that it had rules, and performed training on the subject.
In discussing the element of the existence of a feasible and effective means of abatement, the ALJ allowed that respondent should not be held to some standard fashioned, ad hoc, by the Secretary. The standard proposed must be premised on hazards either respondent or its industry squarely recognizes, and abatement measures must have been recognized by industry experts as effective in eliminating or reducing those hazards.
Respondent’s supervisor admitted that he had directed A.A. to travel through the area where trucks were being driven, and that he knew employees sometimes walked through the area to gather additional tools and collect food and water from their personal vehicles. Respondent’s actual knowledge of the hazard, by reason of the knowledge of its supervisory employee, was thus established.
In determining whether an employer has adequately protected its employees from a hazard, the Commission considers “whether [the employer] has established work rules designed to prevent exposure, has properly communicated those rules to its employees, has taken steps to discover noncompliance with the rules, and has effectively enforced its rules in the event of noncompliance.”
In Master Construction the ALJ, after extensive examination of the analysis of the evidence, found that the respondent needed to have a detailed, site-specific plan for combined vehicular and foot traffic inside of the construction zone.
I commend to you the following measures for the multi-employer website, which were recommended by the complainant’s expert, and approved by the ALJ: a task hazard analysis; communicating the identified hazards to both employees and contractors; developing work plans separating people on foot from vehicle and heavy equipment traffic; and performing inspections to ensure compliance. In the specific arena of highway construction, the following additional methods to abate the ever-present struck-by hazard are indicated: (1) close supervision of high-risk work, (2) a written internal traffic control plan, and (3) truck-specific safety rules.