Brubacher Excavating, Inc. and Traffic Control Services LLC, d/b/a Flagger Force

Plain-English summary

Brubacher Excavating performed road construction while Flagger Force supplied traffic-control services. OSHA cited both employers under 29 C.F.R. § 1926.200(g)(1) after warning signs were omitted from the southbound approach and a nearby exit ramp, and a vehicle struck and seriously injured a Flagger Force employee. The judge found that the missing signs violated the standard and exposed employees to traffic hazards. Flagger Force nevertheless proved unpreventable employee misconduct because it had specific traffic-control rules, communicated them through training, monitored compliance, and enforced violations. OSHA also failed to prove that Brubacher had constructive knowledge because its supervisor instructed the qualified subcontractor, conducted inspections, and received confirmation that the signs were in place. Both remaining citation items were vacated, and no penalties were assessed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.200(g)(1)
• Outcome: The remaining serious citation item against each employer was vacated, with no penalty assessed.
• Key point: A subcontractor's supervisory misconduct was unpreventable, and the general contractor exercised reasonable diligence without constructive knowledge of the missing signs.

Full text (OSHRC public release)


BRUBACHER EXCAVATING, INC., and its successors, TRAFFIC CONTROL SERVICES LLC, d/b/a FLAGGER FORCE, and its successors,

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor

Washington, DC 20036-3457

SECRETARY OF LABOR,

Complainant,

v.

OSHRC DOCKET NO. 1 8-0033

BRUBACHER EXCAVATING, INC., and its successors,

Respondent.

SECRETARY OF LABOR,

Complainant,

v.

OSHRC DOCKET NO. 1 8-00 19

TRAFFIC CONTROL SERVICES LLC,
d/b/a FLAGGER FORCE , and its successors,

Respondent.

Appearances:

Kate
O’Scannilain, Solicitor
of
Labor

Oscar L. Hampton , III , Regional
Solicitor

Brittany M. Williams , Attorney

U.S. Department
of
Labor, Office
of
the
Regional
Solicitor,
Philadelphia, PA

For
the
Complainant

Kenneth D. Kleinman

Brad M. Kushner

Stevens & Lee ,
Philadelphia, PA

For
Brubacher Excavating, Inc.

Brandon J. Brigham

Morgan, Lewis & Bockius, LLP , Philadelphia, PA

For
Traffic Control Services LLC, d/b/a Flagger Force

Before:
Covette Rooney ,
Chief
Administrative
Law
Judge

DECISION
AND
ORDER

Following a worker injury, the Occupational Safety and Health Administration (OSHA), commenced investigations
of two employers who had been working at
a
construction site
located along Pottstown Pike
in
West Chester, Pennsylvania. The investigation led to
citations being issued to Brubacher Excavating, Inc.
(Brubacher) and Traffic Control Services, LLC, which does business as Flagger Force (Flagger Force). 1 (Stip. 6.)

Brubacher and Flagger Force both
filed timely challenges to
the citations
with the
Occupational Safety and Health Review
Commission
(Commission). Brubacher’s challenge was
assigned docket
No. 18-0033
and
Flagger Force’s challenge was docketed as No.
18-0019. Because of the similarity of the underlying facts, Brubacher and Flagger Force’s cases were consolidated for review.

Prior to the hearing, the Secretary vacated certain citation items
for each party. From
the citation issued to Brubacher,
the Secretary
vacated Items
1b and 2
of Citation 1. Likewise, Citation 1, Items 1b and 2 were vacated from the citation issued to Flagger Force. For both parties, there is only one remaining
citation item at issue,
an alleged violation of 29 C.F.R.
§  1926.200(g)(1). 2 A hearing
on the consolidated matters was held on February 26-28, 2019,
in Philadelphia, Pennsylvania.

For the reasons that follow, the citation issued to Brubacher as a result of OSHA Inspection No. 1280576 is VACATED, and no penalty is assessed; and the citation issued to Flagger Force as a result of OSHA Inspection No. 1263466 is VACATED, and no penalty is assessed.

I. Jurisdiction

The
Commission
has jurisdiction over this contest, pursuant to
section 10(c) of the
Occupational Safety and Health Act of 1970,
29 U.S.C. §§ 651-678 (OSH Act) .

(Stip. 7.) Brubacher is an employer within the meaning of
s ection 3(5) of the OSH Act, as it is
engaged
in a business affecting commerce. 3 (Stip s . 8 , 10 .) It had nine employees at a construction worksite in West Chester, PA
from May 31, 2017 through June 5, 2017 . 4 (Stips.
1, 2 , 12 .) Flagger Force is
also an employer within the meaning of
s ection 3(5) of the OSH Act, as it is engaged in a business affecting commerce. 5 (Stips. 9, 11.) It also had
employees at the
same
construction
worksite on the same days. (Stips. 1,
3-5 , 12.)

Based upon the record, including the parties’ admission to jurisdiction, the undersigned concludes the Commission has jurisdiction over the parties and the subject matter of this case.

I. Background

Brubacher was retained by the Islamic Society of Chester County
(Islamic Society)
and Aqua Pennsylvania
(Aqua)
to
perform construction
work associated with the
installation of
a water line along Pottstown Pike to service the Islamic Society’s property. 6 (Tr.
225, 307-8; Stip. 1, 12;
Gov.
Exs. 22, 25, 26.) The
construction
worksite
abutted
the northbound side
of Pottstown Pike from Taylors Mill Road
through Cross Pointe Drive. (Tr.
225-26, 261-62;
Stip. 12.) Brubacher
first
excavated
land
to allow
Aqua
to lay the water pipes in the ground. (Stip. 1, 12.) After
Aqua laid
the pipe, Brubacher employees
covered
the trench and
worked
on paving
over
the surface. (Tr.
592.) The paving work began on Wednesday, May 31, 2017. (Stip. 1.) The
project took four days
and was completed on Monday, June 5, 2017.

(Stip. 1; Tr. 592.)

The work
took place within the northbound lane and shoulder of Pottstown Pike, a multi-lane road in West Chester, PA. (Stip. 1;
Gov. Exs.
16,
17,
22.) The
paving
work required an adjustment to the road’s
regular traffic pattern. (Gov. Ex. 22.) A traffic control plan for this
adjustment
was
approved by the Pennsylvania Department of Transportation (Penn DOT). (Gov. Exs.
8,
21.) The approved traffic pattern shifted traffic from the northbound lane into what is ordinarily a middle lane for turning. (Gov. Ex. 21.)
The speed limit for traffic moving both north and southbound remained the same as it was before the work began, 45 miles per hour. (Tr. 628; Gov. Ex. 16.) Cones were placed to divert traffic and provide a barrier between the vehicles traveling north and those traveling south. (Gov.
Exs. 16, 21.) In addition, one flagger worked
at the north
end
of the
worksite,
and another
worked
at the south
end.

(Tr.
623; Gov. Ex. 21, 22.)

The
flaggers were
to assist with
making drivers aware
of the
changed traffic pattern. (Gov. Ex. 21.)

To
implement
the traffic control plan, Brubacher retained Flagger Force. 7 (Stip. 3; Tr. 593;
Gov. Ex. 30.) Flagger First’s business is to provide its clients with traffic control services such
as
flagging operations, lane closures, and shifting traffic patterns. (Gov. Ex. 34 at 3.) Brubacher and
Flagger Force have a long-standing relationship, whereby Flagger Force provides
most
of
the
traffic control services
needed at
Brubacher
worksites and assists with training Brubacher employees
about flagging. (Tr. 228, 571;
Gov.
Exs.
8,
24.)

David
Duda was Brubacher’s supervisor for the
Pottstown Pike
worksite. (Tr.
345,
589; Stip. 2.) He met with the Flagger Force employees
to
explained what work his crew would be doing and where they would be working. (Tr.
615-17; Gov. Ex. 21.) After work began on May 31, 2017,
which was
Flagger Force’s first day
at the worksite, Mr. Duda completed a Safety Observation Compliance Form. (Tr. 601;
Gov.
Ex. 32.) Mr. Duda explained that he
typically completes this type of form
on the first day of
a
project to make sure he does not “overlook anything.” (Tr.
601-2.) Before completing the form, Mr. Duda traveled the entirety of the worksite to see that
three sets
of advance warning signs were
properly
in place. (Tr. 604.) Specifically,
he checked to make sure
Flagger Force set up advance warning signs in three places: (1) on the northbound side of Pottstown Pike; (2) on the southbound side of Pottstown Pike; and (3) along the Route 322 exit ramp, which connects
another road
to
a section of
Pottstown Pike
near the worksite. (Tr. 604; Gov. Ex. 32.)

After the work began, it became apparent that
the traffic control pattern
was not
functioning as expected. Mr. Duda, in consultation with the Flagger Force
employees working at the site,
adjusted
how much
time motorists had to enter the
new traffic pattern and improved the visibility of the signs for motorists
entering Pottstown Pike from the Route 322 exit ramp. (Tr.
597-600.) These changes were maintained through the first three days of the project. (Tr.
606, 652.)

During these
first three days, the same employees from Flagger Force arrived each day. (Gov. Ex. 21.) On the last day of the project, June 5, 2017,
two different Flagger Force employees
were sent to the worksite. 8 (Tr. 181,
Gov. Exs.
21,
31; Stip. 4.) Unlike the prior days, these
employees
only set up warning signs on the
northbound side of the Pottstown Pike, which
was side closest to
where
the
paving and excavation work was being done. No advance warning signs were placed on the southbound side or along the Route 322 exit ramp as had been
done
on the
first three
days. (Gov.
Ex. 16.)

About two and
a
half
hours after
Brubacher started
work, around
11:30 a.m., a car traveling northbound on Pottstown Pike failed to adhere to the traffic control pattern and ran into
a
Flagger Force employee. (Tr. 89;
Gov.
Exs.
19,
22.) The employee was seriously injured. (Tr. 183.) A Brubacher employee,
Joey Sipes,
called 911 and emergency responders arrived at the worksite. (Tr.
230;
Gov.
Ex. 22.)

The emergency response team included
two
West Goshen Township Police
Officers,
Officer
Virgilio and Officer
Grandizio. (Tr.
37,
110.) Officer Grandizio
interviewed
three
Brubacher employees, including Mr. Duda and Mr. Sipes, shortly after arriving at the scene. (Tr. 110-11.) These
interviews were recorded. (Tr.
286.) Officer Virgilio
was the lead
investigator of
the accident at Brubacher’s worksite. (Tr. 41, 110, 158.) As part of his investigation, Officer
Virgilio
reviewed video footage of the worksite that was taken
earlier in the day of
the accident
when another officer
drove by worksite
as well as other evidence. (Tr.
46-47, 112.)

OSHA
commenced
its
investigation the day
after the accident, on June 6, 2017. (Stip. 6.) By that time all worked had stopped at the worksite.

(Stip. 1.) Compliance
Officer Allen Wilcox
(CO)
visited the worksite
and spoke with
representatives
of Brubacher and Flagger Force. (Tr. 261, 263, 265; Gov. Exs. 3, 4.) He also collected information from the West Goshen Township
Police, including video footage of the worksite
and the
recorded
interviews with the Brubacher employees. (Tr.
48-49,
286,
289.)

I. Discussion

To establish a violation of a specific standard, the Secretary must show
by a preponderance of the evidence that: (1) the cited standard applies; (2) its terms were violated; (3) the employer knew, or with the exercise of reasonable diligence could have known, of the violative condition; and (4) one or more employees had access to the cited condition.   Astra Pharm. Prods ., 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981),  aff’d in relevant part,  681 F.2d 69 (1st Cir. 1982). The cited standard, 29 C.F.R.
§
1926.200(g)(1),
states that: “construction areas shall be posted with legible traffic signs at points of hazard.” 9 There is no dispute that the Pottstown Pike worksite, which included Brubacher’s paving and excavating operations, constitutes a “construction area” within the meaning of the standard. (Stips. 1, 12.) The parties contest the other elements of the Secretary’s burden.

A. Flagger Force

1. Applicability,
   Violation, and Exposure

The Secretary alleges that Flagger Force violated 29 C.F.R.
§
1926.200(g)(1)
by failing to provide at least one
advance warning sign for motorists approaching the worksite from
two directions: (1)
the southbound lane of Pottstown Pike, or (2)
the exit ramp connecting Pottstown Pike to Route 322. The parties agree that
there were no signs at those locations. (Gov.
Exs.
16,
20,
51.) Instead, they argue that
those locations were not points of hazard within the meaning of the cited standard.

The purpose of posting the traffic signs the cited standard
requires
is to warn motorists of construction work being done along the roadway. See Sunshine Guardrail Servs.,
No. 96-631,
1996 WL 650480 (O.S.H.R.C.A.L.J.,
Oct. 28, 1996). To satisfy the adequate advance warning requirement,
employers
must
convey: (1) that work is taking place, (2) information about highway conditions, and (3) information about how traffic can move through the temporarily revised traffic pattern. See
KS Energy Servs., Inc. ,
22 BNA OSHC 1261,
1262
(No. 06-1416, 2008) (affirming a violation of
29 C.F.R.
§
1926.200(g)(2),
which
also
addresses
“Signs, Signals, and Barricades”).

a) Southbound Lane

Unlike
motorists
approaching the worksite from the northbound lane,
those
traveling southbound on Pottstown Pike
were not warned
they were about to
approach the worksite. While the traffic control pattern did not require a
full
lane shift for
southbound
motorists,
the lane was partially obstructed. (Gov.
Exs. 16, 17, 21.) Mr.
Duda
indicated
that
the
traffic
pattern required an approximately
two-foot
diversion for vehicles traveling in the southbound lane. (Gov.
Ex. 21.) If motorists were not aware of the diversion, they could cross into the
northbound lane. (Tr. 343.) This could result in crashes
impacting
the worksite. Id. In addition,
the traffic control plan required
the placement of
a number of
cones along what was typically the middle turning lane. (Tr. 293;
Gov. Ex. 16.) If a vehicle
were to
strike
one of
the
cones
it could become airborne and hit
the flaggers or other workers. (Tr.
343; Gov. Ex.
22.) The cones
were “like a projectile” and could “come flying through the air”
if
struck
by a vehicle. (Tr.
227, 627-28.) Indeed,
early on the morning of June 5, 2017, a
pickup truck with a trailer
on it
knocked over a row
of cones after they were set up. (Tr. 223-24, Gov. Ex. 22.) Besides
the
risk posed by
the cones,
Mr.
Duda
also thought
that
the work might
require
periodic disruption to the southbound traffic flow. (Tr. 651.) Because of that possibility, Mr. Duda
testified that there should
have
been
a “flagman ahead” sign on
both the north and southbound sides of the road. (Tr.
605, 651.)

Flagger Force’s own policies also recognized the need for advance warning signs on each side of a worksite. (Tr. 192,
741-42, 744, 755-56;
Gov.
Ex.
33, FF
Exs.
10, 12.)

Consistent with this policy, the Master Services Agreement,
which governed the relationship between Flagger Force and Brubacher, specifically required
at least two warning signs to be placed at
appropriate distances
from either end of the work zone. (Tr. 285-86.) Finally, there is no dispute that there were
signs on both sides of the
road
for the first three days of the project.

Thus, the Secretary adequately showed that the southbound lane of Pottstown Pike was a “point of hazard”
where advance warning signs were required,
and Flagger Force failed to have any warning signs at that location.

b) Exit Ramp

Motorists on the Route 322 exit ramp had to merge into traffic along the northbound lane of Pottstown Pike, the same lane along which Brubacher
and the Flagger Force employees were
working. As discussed, the northbound lane was diverted as a result of Brubacher’s work. The end of the exit
ramp was a short distance from the beginning of the worksite—approximately 250
feet. (Tr. 93, 101-2; Gov Ex. 7 at 5.)

For
the first three days of the project, Flagger Force installed at least two signs indicating “work area ahead” and “flagman ahead” along the Route 322 exit ramp. (Tr.
485,
605-6.) Shortly after work began the signs were re-positioned to improve their visibility. (Tr.
597.) In addition to the signs placed
by Flagger Force, the end of the ramp also had a stop sign. (Tr. 102.)

Flagger Force
argues that this
stop sign
satisfied
the cited standard. (Flagger Force Br. at 18-19.) However, as this stop sign was always in place, its presence
did not alert drivers that they would
be
quickly entering a worksite with
a different traffic pattern
and that there may be flaggers in the road. 10 (Tr. 102.) Not only did the initial traffic plan recognize that the stop sign alone would be insufficient,
but the
conditions at the worksite
also
made that apparent. Mr. Duda discussed
motorists failing to come to a complete stop at this
particular stop
sign. (Tr. 607-8.) Many motorists treated the sign as requiring a yield, rather than a full stop. Id. They tended to “jet out at 45 miles per hour” rather than fully stopping before attempting to
merge. 11
Id. The CO explained that the focus of motorists on the ramp would be
to “pay attention to any oncoming traffic” and
they
would not necessarily realize the nearby worksite and changed traffic pattern. (Tr. 344.)

This is
sufficient
to show that
the exit ramp was also a point of hazard
and as such should have had at least one
advance warning sign. See
29 C.F.R.
§
1926.200(g)(1).

1. Exposure

There is no dispute that two Flagger Force employees were working
in and around
Pottstown Pike when
two points of hazard lacked appropriate signage. (Tr. 390; Gov. Exs.
4,
7, 16-18.) Flagger Force argues that its employees did not have reason to be on the Route 322 exit ramp
and so were not exposed to that hazard. (Flagger Force Reply Br. at 7.) However, the need for signage
on the exit ramp
and
along both directions of the
Pottstown Pike arose because
Flagger
Force
employees were
working along that road, including at a point
a short distance from the end of the
ramp. (Gov.
Exs.
16,
17A, 18.) As such, they were exposed to the hazardous condition
that is the focus of the cited standard. See RGM
Constr. Co.,
17 BNA OSHC 1229, 1234
(No. 91-2107, 1995)
(finding
that
the zone of danger for purposes of assessing
employee
exposure to be the “area surrounding the violative condition that presents the danger to employees which the standard is intended to prevent”).

1. Knowledge

On June 5, 2017, two Flagger Force employees arrived at the worksite—one crew leader and one crew member. 12

(Stips. 4, 5; Tr. 667.) The crew leader arrived
at the worksite
first. (Tr. 615-16.) He
met with Mr. Duda, who walked the length of the worksite
with him
and explained the traffic control pattern that had been in place
over the
first
few days of the job. (Tr. 617-20.) The crew leader set up the traffic cones
and the warning signs on the northbound side of the road. (Tr.
227,
621.) The crew member
showed up
later
and
then
both him and the crew leader
took up positions
as flaggers
near the start and end of the cones lining the worksite. (Tr.
623.) The
flaggers
kept
a lookout for
distracted motorists and those who were unsure of
how to follow the adjustment to the usual traffic pattern. (Gov. Ex. 21.)

The crew leader knew where he set up the signs
and had actual knowledge of the hazardous condition. (Tr. 518.) The
parties dispute whether his knowledge can be imputed to Flagger Force. In general,
a supervisor’s knowledge of a hazardous condition is imputable to his or her employer. Jersey Steel Erectors , 16 BNA OSHC 1162, 1164
(No. 90-1307, 1993),
aff'd , 19 F.3d 643 (3d Cir. 1994)
(unpublished). The issue here is whether the crew leader
was a supervisor.

Flagger Force argues that it did not consider
the
crew leader to be
a
supervisor. (Tr. 450-51; Gov. Ex. 51.) He was an hourly employee who did not have the authority to hire or fire people. (Tr. 166, 451.) Nor could he discipline any other employee. Id. In Flagger Force’s view, no supervisor ever visited the worksite. 13

The Secretary
responds
that despite how Flagger Force labeled its employees, the crew leader had sufficient authority over the crew member such that he can be considered a supervisor for purposes of imputing knowledge. 14
See Diamond Installations, Inc.,
21 BNA OSHC 1688, 1690 (No. 02-2080, 2006) (supervisory status turns on the delegation of authority, not the title of the employee). An employee who has been delegated authority over other employees, even if temporarily,
is considered to be
a supervisor for the purposes of imputing
his
knowledge to an employer. See Kerns Bros. Tree Serv. , 18 BNA OSHC 2064,
2068-69
(No.
96-1719,
2000)
(determining that
a
crew leader
was a supervisor whose knowledge could be imputed
even though he had no authority
to discipline other employees);
Tampa Shipyards Inc ., 15 BNA OSHC 1533, 1537
(No.
86-630, 1992)
(finding temporary delegation of authority sufficient for purposes of imputing knowledge).

The
employee’s formal title is not controlling—what matters is
the substance of the
employee’s duties. 18 BNA OSHC at
2068. The employee’s authority
need
not be widespread. It is
sufficient
if they
are “in charge” of one or two
other employees. See
Access
Equip .
Sys., Inc. ,
18 BNA OSHC
1718,
1726
(No. 95-1449, 1999)
(employee who was “in charge of” or “the lead person for” one or two employees who erected scaffolds “can be considered a supervisor”);
P a.
Power & Light Co. v. OSHRC ,
737 F.2d
350,
352, 355
(3d Cir.
1984)
(hereafter,
PP&L )
(finding that
the crew leader of a three-person electrical utility crew at a remote worksite
was a
supervisor for purposes of determining the employer's knowledge of violative conditions).

Crew leaders and crew members both
have a role in identifying unsafe conditions. Any crew leader
or
crew member could stop work
for safety issues. (Tr. 748.) But crew leaders have more training than crew members and Flagger Force required there to be at least one crew leader at each job site. (Tr. 169, 173, 746, 769.) The
crew leader
was
“in charge”
at the worksites.

(Tr. 166,
168,
391,
623,
746.) They were tasked
with ensuring that
each worksite
is set up in
accordance with
Flagger Force’s policies and the designated traffic pattern for the job. 15 (Tr. 166,
203,
391,
685,
745-46, 758; Gov. Ex. 8
at 3.) The crew leader was responsible for assessing whether the
Manual on Uniform Traffic Control Devices (MUTCD)
or Pennsylvania’s Temporary Traffic Control Guidelines apply, and then to comply with
the
requirements
of the applicable regulations. (FF Ex. 12; Gov. Ex. 8.) The
crew leader was
issued a truck,
signs, cones,
and other safety equipment. 16 (Tr. 167, 731-32.) Crew leaders are the employees responsible
for obtaining
the proper safety equipment needed to complete the work Flagger Force was hired for,
mainly the protection of
workers
on or near roads. (Tr. 176-77, 194; Gov. Ex. 24.) If the crew leader determined additional equipment was needed, he or she would contact the regional office to get the equipment. (Tr.
732.) While the branch managers were the employees who determined who
got promotions and handled formal discipline, there is no evidence they ever
supervised
work in the field directly. 17 (Tr. 763.)

As crew leader,
MD was tasked with responsibility for the safety of
the
Flagger Force
employees
at the worksite and implementing the correct traffic cone pattern. (Tr. 203, 208-9.) He met with Brubacher to discuss the traffic pattern, led the set-up work,
and determined where he and the other flagger would be working. (Tr. 451, 623.) After discussing
the planned
construction
work with
Brubacher, consistent with Flagger Force’s policy, he
led the
pre-job brief to explain
the tasks to be done with the crew member. (Tr. 194-95, 201.) During any such pre-job brief, the crew leader
had the obligation
to inform the crew members of “the hazards to the crew,” explain job responsibilities, and discuss how to do the job safely and securely. (Tr. 195, 745-46; Flagger Force
Br. at 8.) MD
was in charge of
setting up and making sure the traffic pattern, including the sign placement,
was correct. (Tr.
166,
391, 394, 518.) He
considered himself qualified to be responsible for the other Flagger Force employee he was supervising at the worksite. (Tr. 201.) His work at job sites was not directly overseen by anyone else. 18 (Tr. 179.) On this record,
the crew leader
had been delegated sufficient authority to be considered a supervisor and his actual
knowledge of the violative conditions can be imputed to his employer. 19
Kerns,
18 BNA OSHC at
2069;
PP&L , 737 F.2d
at
352, 355.

Ordinarily, after the Secretary
establishes
the
applicability of the cited standard, its violation, employee exposure,
and employer knowledge of
the violative condition,
the burden shifts to the employer
to
show
that the violation should be excused
based on some affirmative defense. See e.g.,
Astra Pharm. , 9 BNA OSHC
at
2129 . However, i n
Kerns , the Commission concluded that under
Third Circuit precedent,
when the
employer’s
knowledge of a hazardous condition
can only be inferred through
“proof of
a supervisor’s misconduct,”
the Secretary
cannot
shift the burden of
persuasion of the issue of misconduct to the employer. 18 BNA OSHC at 2069
(discussing
PP&L ,
737 F.2d
at 352, 355). In such situations, the violation will be “excused” if the
supervisor’s misconduct was contrary to a consistently enforced company
policy,
supervisors were adequately
trained,
and reasonable steps were taken to discover safety violations. 737 F.2d at 358. In contrast,
“[i]n cases where the Secretary proves that a company supervisor had knowledge of, or participated in, conduct violating the
[OSH
Act], we do not quarrel with the logic of requiring the company to come forward with some evidence that it has undertaken reasonable safety precautions.” Id.
at 357.

The present matter aligns
with such a situation. The Secretary
relies
on the supervisor’s actual knowledge of the violative condition—his
own
failure to place
the
advance warning signs at points of hazard
as required by the cited standard. In any event,
apart from
the burden of proof,
the test applied in
PP&L
largely
tracks the Commission’s
test for establishing unpreventable employee misconduct. 20
Compare
737 F.2d at 358
with
Nooter Constr. , Inc.,
16 BNA OSHC 1572, 1578 (No.
91-0237, 1994). So,
for the reasons discussed below,
regardless of whether the Third Circuit would
extend
PP&L
to apply to the
fact pattern
at issue here,
the
undersigned finds that the violation should be vacated
because the record
shows it was the result of unpreventable employee misconduct.

1. Unpreventable Employee Misconduct

To establish the defense of unpreventable employee misconduct, the employer must
show
it:
(1) established specific work rules designed to prevent the violative conditions from occurring; (2) adequately communicated those rules to its employees; (3) took steps to discover violations of those rules; and (4) effectively enforced the rules when violations were discovered. Nooter,
16 BNA OSHC at
1578.

The Secretary
admits
that Flagger Force had a specific
written
work rule
intended to prevent
missing advance warning signs. (Sec’y Br. at 43.) Indeed,
Flagger Force’s first “fundamental principle” of flagging was to have
advance warning signs in place. (FF
Ex.
10.)

Flagger Force anticipated the hazards
contemplated by the cited standard and formulated a specific rule
to facilitate compliance.

Besides its specific written work rule requiring advance warning signs, Flagger Force also
had general safety rules. It
required
compliance with “federal, state, and local laws” and the company’s “best practices.” (Gov. Ex. 36 at 12.)

All employees must adhere to the company’s
safety program. (Gov.
Exs. 35, 36; Tr. 726-27.) Flagger Force’s
Field Employee Handbook (Handbook)
specifies that employees are to follow the procedures learned in training. (Gov. Ex. 36 at 12; Tr. 756.) Any violation of a safety rule is “absolutely prohibited and could lead to termination.” (Gov. Ex. 36 at 14.)

All employees receive a copy of the
Handbook
at the start of their employment. (Tr. 682.)

As for the second prong of the defense,
communication of the work rule,
the Secretary admits that
“Flagger Force training for both crew members and
crew leaders emphasizes the need for advance warning signs.” (Sec’y Br. at 9.) Flagger Force
incorporated its
specific
work
rule into a comprehensive training program. (FF Exs. 10, 12.)

Crew members receive a
four-hour
training course and pass a written exam. (FF
Ex.
10; Tr.
678.) This training course is separate from a longer
six-hour
orientation program. (Tr.
679-80.) Employees must re-take the
four-hour
training course every
three
years. (Tr. 749.)

Flagger Force’s training directly addressed the specific work rule at issue here. It
required
all
crew members
and crew leaders
to know the “ABCs of Flagging,” which were the “fundamental principles” of flagging. (Tr. 741-42;
FF
Ex.
10
at 19.) The “A” in
its “ABCs of Flagging” was a
clear
shorthand
way to remind employees of the need for
“advance warning signs.” (Tr. 741-42; FF
Ex.
10
at 19.) The
written
training
materials
explicitly
direct employees to never begin a flagging operation
“without signs on the road.” (FF
Ex.
10; Tr. 744.) The training also addresses sign placement, including with diagrams showing signs on both sides of the road and
along
intersecting roads. (FF Ex. 10 at 63, 77-78,
121.)

Crew leaders completed
the
same course as crew members
and then
completed an
additional
three-day
training. (Tr.
169, 173,
753,
769;
FF
Ex.
12.) Like the crew member training, the crew leader
training also
explained the requirement to have
advance warning signs and
specifically
instructed crew leaders to
“[i]nstall
necessary signage.”

(FF
Ex.
12
at 63.) It
reviews
the information from the crew member training about the placement of
advance warning signs and provides additional
instructions
about sign placement
specific to different traffic patterns and road conditions,
such as
the presence of other roads near worksites. 21 (Tr. 753, 755-56; FF Ex. 12 at 54-58, 72, 82-91, 123-30.) Crew leaders
are also required to attend additional
one-day
re-fresher
trainings
three times a year. 22 (Tr.
669-70, 748.) Thus,
Flagger Force specifically trained workers about
its
rule related to the cited
standard and the hazards anticipated by that
standard.

Both MD and the other flagger
(JL)
were tested on their knowledge of flagging, and both passed before beginning to work on
the
Pottstown Pike
project. 23 (Tr.
683-85,
750; Gov. Exs. 37,
38.) MD
could not recall
all of
the training he received, but
he “absolutely”
knew he needed to set up advance warning signs. (Tr. 192.) In addition, there’s no dispute that all required advance warning signs were in place every other day that Flagger Force employees were at the Pottstown Pike worksite.

As for uncovering violations of work rules,
Flagger Force’s
quality specialists
conduct
random checks of worksites to ensure compliance. (Tr.
687-89,
764-66.) Flagger Force’s inspection process requires an examination of 41 separate issues, including
assessing
whether
signage is correct, whether
employees are abiding by the MUTCD,
and
whether they are
acting safely. (Tr. 764.) In general, Flagger Force observes
the work zone of crew leaders
at least
twice
per month
and
has an auditing system to
randomly visit
at least 20% of the company’s worksites per month. (Gov. Exs.
8,
13; Tr. 764-66.) If inspectors find issues on a repeated basis, they will inspect the relevant employees more frequently. (Tr. 765.) In the
six months
prior to the accident,
about
3,000
random inspections were conducted
by the regional office
which staffed the Pottstown Pike project.

Id.

While
a Flagger Force inspector had not visited
the Pottstown Pike project,
MD’s
worksites were
inspected four times in the two months preceding his being assigned crew leader
on June 5, 2017. 24 (Gov.
Exs. 41-44, 45A.) When
MD
served as crew leader, the inspections of his
worksites
neither
uncovered any issues
related
to
advance warning signs
nor gave any indication that he did not understand the fundamental principles of his training. 25 (Tr. 752-53; Gov.
Exs. 41-44, 45A.) This is entirely consistent with MD’s testimony at the hearing
when he
expressed no hesitation when asked whether he understood the requirement to have advance warning signs. (Tr. 192; Gov. Ex. 41-45A.) The Secretary tries to spin MD’s
good
safety record and his understanding of the advance warning sign rule as showing Flagger Force’s program was deficient because this well-regarded employee ended up violating
a safety
rule on June 5, 2017. (Sec’y Br. at 46.) However,
this record
actually reflects
an idiosyncratic violation of an enforced work rule by an employee
who understood the rule and
whose past behavior gave no indication
he would violate it. 26

With no evidence of
a lack of understanding or
prior
violations of work rules by the Flagger Force employees
assigned to
the Pottstown Pike worksite, the Secretary points to infractions by other employees. (Sec’y Br. at
24-27.) Flagger Force’s inspection records show that
the company periodically uncovered
violations of its work
rule
about signage
and then
took action
in response. (Gov.
Exs. 45B-E.) At
a
minimum, Flagger Force verbally coached employees and corrected any issues with the traffic pattern identified
during
an
inspection. Id. The
inspection
records support
the
testimony of Flagger Force’s safety manager,
Joshua Foltz, who
explained that
when inspectors identified
a work rule
violation, the issue was immediately corrected and then
the inspector would coach the employees
about issues identified. 27 (Tr. 703,
763, 768.)

Consistent with Flagger Force’s progressive system of discipline, on occasion, additional disciplinary steps beyond verbal coaching were taken
to address violations of the advance warning sign work
rule. (Tr. 697, 703, 763-65, 772-74; Gov.
Exs. 8, 36 at 12, 15.) In January 2015, Flagger Force
demoted
an employee for, among other reasons, having improper advance warning signs. (Gov. Ex.
47 at 11-14.) A few months later, Flagger Force terminated a different employee
for, among other reasons,
his failure
to have any advanced warning signs set up
before
a curve in the road. Id.
at 18-21. The Secretary argues that there was no evidence beyond
verbal coaching for violations of the advance warning sign
rule in 2016. (Sec’y Br.
at 27-29.) However, there is also
no evidence
of worksites
lacking all
advance warning signs
or otherwise
violating
29 C.F.R.
§  1910.200(g)(1)
during that time. (Gov. Ex. 45A-E.) Although
the
inspection
records identify
concerns
with signage
at worksites, none indicate
a failure to have
at least one advance warning sign
as required by
the standard the work rule addresses. 28
Id. Flagger Force showed a history of issuing written warnings and taking other disciplinary actions taken when employees failed to follow the rule to ensure proper advance warning signs. 29 (Gov. Ex. 47.)

Flagger Force
had a clear
written
safety rule directly addressing the cited hazard. The requirement for advance warning signs was a “fundamental principle” and
the rule was
emphasized in
several
ways. (FF
Ex.
10.) Its crew leader attended the training covering the rule, was tested on it, and
“absolutely” understood signage was required. (Tr.
54.) MD had no history of violating
the relevant rule, or other
safety rules, despite being regularly inspected. (Gov.
Exs. 41-44, 45A.) There is no evidence that he departed from his training
on June 5, 2017
because he believed it was appropriate or would not result in adverse consequences. 30 On
the
contrary, failing to
set up advance warning signs had led to a variety of punitive measures against other employees. (Gov. Exs.
45A-E, 47.) There is no reason why Flagger Force should have anticipated a potential
departure from
its
training
program
and the established written work rule by this crew leader. Flagger Force showed that the crew leader’s failure to set up
appropriate warning signs on the morning of June
5, 2016 was the result of unpreventable employee misconduct.

Accordingly,
Citation 1, Item 1a from the citation issued as a result of
OSHA Inspection No. 1263466
is vacated
and no penalty is assessed.

A. Brubacher

1. Applicability
   and
   Violation

For the same reasons discussed above in connection with the citation issued to Flagger Force, the cited standard applied
to Brubacher’s worksite
and was violated. Brubacher was engaged in construction work. (Stip. 12.) The work took place on the shoulder of
Pottstown Pike
and required an adjustment to the
road’s
typical traffic pattern. The cited standard requires at least one advance warning sign for each point of hazard. 29 C.F.R.
§  1926.200(g)(1)
(requiring
“traffic
signs at points of hazard”). Brubacher’s worksite had
no advance warning signs at two points of hazard, along
the
southbound side of Pottstown Pike and the
Route 322
exit ramp. (Gov. Exs.
16, 20,
51.)

2. Exposure

Brubacher had
nine
employees working
on June 5, 2016
when there was inadequate signage. (Tr. 342; Gov. Exs. 6, 12;
Stip. 2.) Brubacher alleges
that
the Secretary failed to show exposure
because
its employees were not working alongside
the southbound side
of the road
or on the exit ramp where there was
no signage. (Brubacher Br. at
23-24.) This argument is rejected.

On the morning of June
5, 2017,
after work at the site had begun but before the accident,
a West Goshen
police officer drove along the Route 322 ramp
to Pottstown Pike
and
then
past the worksite. (Gov.
Ex. 16,
Tr. 79, 84-85.) Video taken by
a
dashboard mounted camera
in the
officer’s vehicle
shows cars
on both sides of the road
passing the worksite within a few feet of
Brubacher’s employees. (Gov. Exs.
16-18.) Only a row of cones separated the north and southbound sides of the road. Id. Mr. Duda explained how his view of the southbound side of the road and the exit ramp was obscured. (Tr. 619, 625-26,
651-52.) As he could not see these approaches to the worksite despite being in a fixed location, motorists traveling in the area would similarly not be able to see the worksite until they were very close to it.

Turning to the lack of signage on the exit ramp, Brubacher notes that the worksite could be visible from the very end of the ramp. (Tr. 446.) The end of the ramp was approximately 250 feet apart from the start of the worksite. (Tr. 93, 98-99, 101-2.) However, as discussed above, motorists tended
to
not
fully
stop at the end of the exit ramp. Even those who did
obey the stop sign,
would tend to be focused on oncoming traffic rather than looking for a temporary worksite
about which they had no warning. (Tr. 344; Gov. Ex. 16.)

Besides
the proximity
of
the workers and the
vehicle
traffic,
a
Brubacher employee explained how
the cones themselves can injure
workers. Once hit
by a moving vehicle
the cones
can become projectiles
and strike workers. (Tr. 227.)

This same employee also adjusted the cones in the roadway after they were knocked down by a passing trailer. 31 (Tr.
223,
226-27; Gov. Ex. 22.) Particularly
considering
the
45 miles
per hour speed limit on the road
and the fact that Brubacher employees were
right at the edge of the northbound lane, the Secretary established that
Brubacher’s own employees
were exposed to the cited hazard. 32

3. Knowledge

The Secretary does not allege that a Brubacher supervisor had actual knowledge of the lack of signage on the southbound side of the road and
on
the exit ramp. (Tr. 487.) Nor would the record support such a finding. The two approaches were not in
plain
view
from where
the Brubacher employees
were working. Curves
in the topography
obstructed the
locations where the signs needed to be placed. (Tr. 499-500, 508, 625-26, 651-52.) See Thomas Indus. Coatings, Inc.,
23 BNA OSHC 2082, 2085
(No.
06-1542, 2012)
(declining to find actual knowledge when foreman’s view of the condition was restricted). Further,
Flagger Force’s crew leader told
Mr.
Duda, the Brubacher supervisor at the worksite, that the signs were in place. (Tr. 622, 626, 656-57.) Rather than rely on actual knowledge, the Secretary argues that
Brubacher
should be found to have constructive knowledge of the violation because it
failed to engage in reasonable diligence. (Tr. 488, 589; Gov. Ex. 21; Stip. 2.)

Reasonable diligence involves consideration of
several factors,
including
“an employer’s obligation to inspect the work area, to anticipate hazards to which employees may be exposed, and to
take measures to prevent the occurrence.” Pride Oil Well Serv.,
15 BNA OSHC 1809, 1814 (No. 87-692, 1992). As noted above, Brubacher retained
Flagger Force
to
implement the
worksite’s
traffic control plan. At all times, a
Flagger Force crew leader was present at the worksite to oversee the flagging and traffic control work. (Tr. 166, 746, 769.) Although Brubacher trains its employees
about
traffic control, Flagger Force has more experience and expertise
in
traffic control. (Tr. 477-78,
573,
634,
644.) Flagger Force
“are the specialists in their field” and
they
routinely
provided
traffic control
services for Brubacher worksites. (Tr. 251,
477,
506, 576; Gov. Ex. 24.) The relationship was governed by a Master Subcontract Agreement, under which
Flagger Force was responsible for supplying labor, supervision,
and equipment needed for traffic control. (Gov. Ex. 24.) Flagger Force agreed to comply with all applicable laws. (Gov. Ex. 24
at
2, Tr. 479). The
agreement
also required Flagger Force to
abide by a detailed Subcontractor and Vendor Safety Program
(Safety Program). (Gov. Ex. 24.) The Safety Program required subcontractors and their employees to comply with
Brubacher’s Safety Program
and
all
applicable
OSHA
standards.

Id.
at
7-8. The
Safety
Program
specifically
addresses
the cited standard. It requires
“[a]t least
two warning sides” to be placed at appropriate distances from the work zone. Id.
at 8.

Besides these
contractual obligations, Mr.
Duda
also explained the need for advance warning signs
directly to
its subcontractor. At the start of the project,
he
met with the Flagger Force crew and discussed the project. (Tr. 615.) Mr.
Duda
completed a Safety
Observation Compliance Form, documenting his first formal inspection of the worksite
on May
31, 2017. (Tr. 601; Gov Ex. 32.) He explained
how “first and foremost” he wanted to make sure the work was being
done “safely” as he did not
“want to see anybody get hurt.” (Tr. 645-46.) For this initial inspection
on the project’s first day, he traveled the entirety of the worksite to make sure that
all three sets of advance warning signs were in place, i.e.,
along the north and southbound sides of Pottstown Pike and
on
the exit ramp. (Tr. 604.) His notes from the inspection indicate that
he checked the traffic control and for road hazards. 33 (Gov. Ex. 32.) He specifically noted that “signs are okay.” (Tr.
604; Gov. Ex. 32.) After work started,
collectively
with Flagger Force, he decided
that
the signs on the exit ramp were not sufficiently visible to motorists
and should be re-positioned. (Tr. 598-99.) This correction was promptly made. (Tr. 598-600.) As the project progressed, other minor adjustments were made to the traffic control pattern
based on how
motorists were responding
to
the setup. (Tr. 223;
Gov. Ex. 21.) Mr.
Duda
conducted another
inspection on the third day of the project
during which
he again confirmed
the presence of the warning signs
at three locations. (Tr. 606, 652.)

On
the last day of the project,
Mr. Duda discussed
the signage and traffic control
plan
with Flagger Force
before any work began. (Tr.
616-621,
624-25;
Gov. Ex. 21.) He
spoke directly with the crew leader, MD, and walked the
worksite with him. (Tr.
617-20; Gov. Exs. 21, 31.) He explained where the signs had been placed on the prior days. (Gov. Ex. 21.) This
discussion included
addressing where to place the advance warning signs on the exit ramp and
the southbound side of Pottstown Pike. 34 (Tr.
617-620; Gov. Ex.
6.)

Mr. Duda
emphasized
that he wanted the cones and signage to comply with
the appropriate safety standards. (Gov. Ex. 31.)

Mr. Duda was trained in traffic control
and flagging. (Tr. 477-78, 634.) He did not have the same level of training or experience as Flagger Force employees, but he had enough training to identify issues. (Tr. 644, 660.) For example,
during the
project,
he saw another
construction
crew possibly
planning to
engage
in road work nearby. (Tr.
653-54.) He was concerned that this work might make it more difficult
for
motorists, as they’d be navigating around two worksites. (Tr.
613-14, 653-54.) He also knew that the relevant state regulator (PennDOT) typically would not issue permits for two projects in such proximity. (Tr.
507, 653-54;
Gov. Ex. 21.) He contacted
a
PennDOT
inspector
to have him review
the work being done in
the area. (Tr.
613-14, 653-54.) The inspector
visited the area
and
shut down the other
project. (Tr. 653-54.) The PennDOT inspector
did
not cite any issues with the warning signs in place for Brubacher’s worksite. 35

Mr. Duda also met with
the crew member
present on
June 5, 2017. Although he had some initial hesitation when he learned the crew member
was new to Flagger Force,
the crew leader
(MD)
gave him confidence that the plan would be implemented
correctly. (Tr.
656.) He had no reason to believe MD would depart from
where the signs had been placed each previous day of the project. The crew leader told Mr. Duda he would set up the signs. (Tr. 620-21.) Mr. Duda asked if he needed any assistance and
the crew leader
declined the offer,
explaining that he had his vehicle and that the set up would not take long. (Tr.
621.) Before beginning work on the site, the crew leader assured Mr. Duda that everything was “good to go.” (Tr.
490-91,
622,
626,
656-57.) Mr. Duda had no reason to believe that the crew leader would disregard his instructions as well as Flagger Force’s training
and misrepresent that the signs were in place. 36 (Tr. 488, 508.)

Mr. Duda explained
that he would not have permitted work to begin if he
knew that warning sides
were
missing. He would have ceased work until
they were in place. (Tr. 611.)

Mr.
Duda
did not just assume Flagger Force would
put up the advance warning signs. He met with the team, instructed them about the issue,
and then
checked
their work. Mr.
Duda
could see the advance warning signs on the northbound side
and
assessed the
placement of the cones
before work began. (Tr. 658.) After
seeing
that the cones were laid down, the tapers
to
move drivers into the correct position
were set up,
and
the
three signs
on the northbound side
were up, Mr.
Duda
did not
consider it necessary
to
visually
confirm that
the
Flagger Force
crew leader
was truthful
when
he
indicated
the setup of the warning signs was complete. Id. The Brubacher
crew began work at approximately 9:00 a.m., and no Brubacher employee learned of the missing signs until after the accident a few hours later.

(Tr. 626, 651-52;
Gov.
Exs.
21,
22.)

Brubacher took reasonable steps under the circumstances to ensure that the traffic control plan, including the advance warning signs,
would appropriately be placed at points of hazard
as required. Mr. Duda performed
regular safety inspections and confirmed that the signs were in place as part of those inspections. (Tr. 514, 601-602, 652-53; Gov. Ex. 32.) Brubacher
trained its own employees about flagging and then
retained an expert in traffic control to
ensure
compliance with
the
traffic control plan, including the presence of
warning signs. It
had
frequent
experience with Flagger Force and
had
not
experienced safety issues with them in the past. The CO acknowledged that Flagger Force had not previously been cited
for OSHA violations
after other
inspections. Nor is there any dispute
that Flagger Force has a reputation of being qualified to perform
traffic control services. (Tr.
506.) Certainly, Brubacher’s retention of a qualified expert alone did not relieve it
of all responsibility
to comply with
the cited standard. But,
this fact
is
relevant to
assessing
what
to level of
supervision
was appropriate. See
S.J. Louis Constr. of Tex . , 25 BNA OSHC 1892, 1896 (No. 12-1045, 2016) (more generalized instructions acceptable given the level of experience and
the
continued presence of a crew leader). Mr. Duda provided instructions, conducted periodic inspections,
and obtained
verbal confirmation that
the signage at issue was in place before
work commenced at the site. See LJC Dismantling Corp ., 24 BNA OSHC 1478, 1481-82
(No. 08-1318, 2014) (finding employer’s efforts
adequate
to preclude a finding of constructive knowledge
in light of
the employee’s extensive training, experience, and good safety history). The Secretary failed to establish that Brubacher should be charged with
constructive knowledge of the violative condition. Thus, Citation 1, Item 1a of the citation issued to Brubacher as a result of OSHA Inspection No. 1280576 is vacated and no penalty is assessed.

ORDER

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.  Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that:

1.
From Docket Number
18-0033 ,
Citation 1, Item 1a, a lleging a serious violation of
29 C.F.R.
§  1926.200(g)(1) by Brubacher Excavating, Inc. is
VACATED,
and no penalty is assessed.

2.
From Docket Number
18-0019 ,
Citation 1, Item 1a, alleging a serious violation of
29 C.F.R.
§  1926.200(g)(1) by Traffic Control Services
LLC
is VACATED,
and no penalty is assessed.

SO
ORDERED.

__ /s/ ____

Covette Rooney

Chief Administrative Law Judge, OSHRC

Dated:
February 24, 2020

Washington, D.C.

"

1
Stipulation 6 provides: “OSHA conducted an inspection at the worksite on June 6, 2017, and subsequently issued a Citation and Notification of Penalty to both Brubacher and Traffic Control.”

2
For each party, the
only
citation item remaining was designated Citation 1, Item 1a.

3
Stipulation 8 provides: “Brubacher is an “employer” within the meaning of Section 3(5)
of
the [OSH Act].” And stipulation
10
states: “Brubacher is an employer engaged in a business
affecting commerce within
the meaning of sections 3(3) and 3(5) of the
[OSH
Act].”

4
Stipulation 1 is: “Brubacher was conducting paving and excavating operations at, or in the vicinity of, Pottstown Pike and Taylors Mill Rd. in West Chester, PA 19380
(hereafter
“worksite”)
from approximately May 31, 2017 through June 5, 2017
(hereafter
the “relevant period”).”

Stipulation 2 provides: “Brubacher
had nine employees at the worksite on June 5, 2017, including but not limited to paving supervisor, David Duda and hourly employees Brent Horst and Joey Sipes.” Stipulation 12 states: “Brubacher’s worksite qualified as a “construction area,” as used in 29 C.F.R.
§ 1926.200(g)(1).

5
Stipulation 9 specifies: “[Flagger Force] is an “employer” within the meaning of Section 3(5) of the
[OSH
Act].” Stipulation 11 states: “[Flagger Force] is an employer engaged in a business affecting commerce within the meaning
of
sections 3(3) and (3) of the [OSH Act].”

6
The parties stipulated that: “Brubacher was conducting paving and excavating operations at, or in the vicinity of, Pottstown Pike and Taylors Mill Rd. in West Chester, PA (hereafter “worksite”) from approximately May 31, 2017 through June 5, 2017 (hereafter the “relevant period”).” (Stip. 1.)

7
Stipulation 3 provides: “Brubacher contracted with [Flagger Force] to conduct, manage, and otherwise provide flagging and/or provide traffic control services at the worksite during the relevant period, in accordance with the terms of the Master Subcontract Agreement between Brubacher and [Flagger Force], dated April 19, 2016.”

8
Stipulation 4 is: “On June 5, 2017 [MD] and [JL] were the employees providing traffic control services at the worksite on behalf of [Flagger Force].”

9
After the citation’s issuance, the
cited standard was modified to
provide: “At points of hazard, construction areas shall be posted
with
legible traffic control signs
and protected by traffic control devices.” Signs, Signals, and Barricades, 84 Fed. Reg.
21416, 21433, 21577
(May 14, 2019)
(to be codified at 29 C.F.R. Parts 1910,
1915
& 1926).

10
Flagger Force
argues that
G r oves-Brown & Lambrecht-Dent on Joint Venture ,
No. 79-5070, 1981 WL 18957 (O.S.H.R.C.A.L.J., June 5,
1981),
supports finding that the permanent stop sign was
sufficient. (Flagger Force Br. at 18-19.) In addition to not being binding,
Groves-Brown
is also factually distinct. That matter
involved
a worker
using a temporary
handheld
stop sign
to alert motorists
as opposed to Flagger Force’s attempt to rely on a stop sign that was always in place and did not alert motorists to the upcoming worksite. 1981 WL 18957 at *
3-4.

11
Mr.
Duda
also described the exit ramp as an area “where everybody likes to cut everybody off.” (Tr. 599.) This created a situation where “usually the signs don’t get seen.” Id.

12
Stipulation 5 is: “June 5, 2017
was the first day [MD] or [JL] worked at the worksite during the relevant period.”

13
Notably, when discussing its
efforts at reasonable diligence and its
employee misconduct defense, Flagger Force touts the crew leader’s role in supervision and ensuring safety rules are enforced. (Flagger Force
Br. at 21, 24.)

14
When asked whether there was a Flagger Force supervisor present at the worksite, the CO explained that the crew leader was present and
he
was in charge of
setting up and implementing the traffic pattern, including the correct placement of signs. (Tr.
391, 449.) The CO
explained
that
his
investigation did not determine that Flagger Force considered the crew leader to be a supervisor. (Tr.
450.) However, whether a person has
sufficient
supervisory authority for purposes of imputing knowledge is a legal conclusion, and thus neither the Secretary nor the undersigned is bound by the CO’s assessment. See e.g., Jim Boyd Constr., Inc. , 26 BNA OSHC 1109, 1113
n. 6
(No. 11-2559, 2016)
(whether efforts constitute “good faith” is legal
determination
so the CO conclusions are not binding);
Kaspar Wire Works, Inc. v. Sec’y of Labor ,
268 F.3d 1123, 1128 (D.C. Cir. 2001)
(“the Commission is not bound by the representations or interpretations of Compliance Officers”).

15
Flagger Force’s
training program specifies that the “crew leader sets the pattern.” (FF Ex. 12 at 76.)

16
Crew leaders kept their
trucks
at their homes and then drove to each worksite. (Tr. 176.)

17
Separate quality inspectors
checked
on approximately 20% of
all
job sites per month and reported
their findings
to the branch managers. (Tr. 763, 766.)

18
Neither crew leaders
nor crew members are required to
report to a Flagger Force office
regularly. (Tr. 699.) Work assignments are sent out through a phone application. (Tr.
181.) Crew leaders
are only required to report
three times a year
for
safety
training,
but they
did
come into the office to
pick up equipment at other times. (Tr. 670, 732.)

19
The Secretary also argues that Flagger Force had constructive knowledge of the violative conditions. (Sec’y Br. at 43.) To establish constructive knowledge, the Secretary must prove that the employer, with the exercise of reasonable diligence, should have known of the hazardous condition. See e.g., Jacobs Field
Servs. N. Am. ,
25 BNA OSHC
1216, 1219
(No. 10-2659, 2015) . For the same reasons addressed in connection with
the
unpreventable employee misconduct defense, the record does not contain
enough
support for a finding of constructive knowledge. Burford's Tree
Inc ., 22 BNA OSHC
1948,
1951-52
(No. 07-1899, 2010)
(factors for evaluating constructive knowledge are the same for evaluating unpreventable employee misconduct defense),
aff’d , 413 F.
App’x
222 (11th Cir. 2011)
(unpublished).

20
The undersigned notes that in its opening brief Flagger Force discusses
PP&L
only in the context of its unpreventable employee misconduct defense. (Flagger Force Br. at 23.) In its Reply Brief, Flagger Force discusses the overlap between the Commission’s test
for unpreventable employee misconduct
and the
one
the
Third Circuit
sets out in
PP&L . (Flagger Force Reply Br. at 8.)

21
Both the initial crew member training and
the additional crew leader training
included “hands-on” demonstrations. (Tr. 171, 173, 190;
FF
Exs. 10, 12.) However,
the additional hands-on training
section of the crew leader training
did not
include
on-site demonstrations of setting up traffic control patterns. (Tr. 173.)

22
Flagger Force also had
employees in the role of advance crew leader. (Tr.
169.) These employees received further training beyond what the crew leaders received and could operate additional types of traffic control equipment, such as arrow panels. (Tr. 175-76, 769.) There was no advance crew leader at the Pottstown Pike worksite on June 5, 2017. (Tr. 770.)

23
The test for crew members includes questions about signage. (Tr. 751.) MD was tested after he completed the crew member training and again after completing the crew leader training. (Tr.
189,
684-85;
Gov.
Ex. 37.) His most recent training was completed on April 18, 2017, less than two months before
the site inspection. Id.

24
This is consistent with the company’s
goal
of
inspecting the worksites of each crew leader twice per month. (Tr.
688,
766; Gov. Ex. 13.)

25
Prior to MD’s promotion to crew leader, an inspection
of a site
where
he was working
as a crew member
found that
“one
of the shift right signs”
was
missing. (Gov. Ex. 45A.) The rest of the signage was compliant
and there is no evidence that
the setup
violated any
OSHA standard. Id. Another inspection on the same day of a different worksite where MD was also working
as a crew member
revealed that “every sign was spaced
properly,
and the side streets covered properly.” Id. The remaining two inspections
were of
sites where MD served as crew leader. Id. Neither
of these inspections
uncovered
any issues related to signage or
a traffic pattern. Id. Notably,
one of these inspections related to a similar traffic pattern set up as was required for the Pottstown Pike project. (Gov. Ex. 41, Tr.
766-67.)

26
In
Am. Eng ’ g & Dev .
Corp. , 23 BNA OSHC 2093 (No. 10-0359, 2012), the supervisor had a good safety record and was supervising two new employees. 23 BNA OSHC
at 2098. The Commission found that under the circumstances the one occasion when the conduct did not comply with the company’s safety rule was not
sufficient
to undermine the evidence showing that the employer consistently enforced its safety program. Id.

27
Mr. Foltz also discussed how the
Handbook’s
more general
rules requiring adherence
to applicable laws and
to
act safely
were enforced. (Tr. 726-27.) The company believed safety was its first objective. (Tr. 726.) To achieve this objective,
it
trained employees and then made
sure employees
adhered to
their training in the field. Id.

28
The Secretary notes that some of the disciplinary records in evidence are dated after June 5, 2017. (Sec’y Br. at 27.) One such record, dated June 28, 2017, explains that it is following two written warnings that occurred earlier in the year
(before the OSHA investigation). (Gov. Ex. 47 at 1.) Another record appears to relate to an employee who
previously
received verbal coaching before being written up. Id.
at 3-4.

29
The Secretary
contends
that because
Flagger Force uncovered violations of its work rule
through its enforcement,
the rule was ineffective or
poorly communicated. (Sec’y Br. at
45-46.) The Secretary is correct that some
of the inspection
reports indicate a failure to
comply with Flagger Force’s
signage requirements. (Gov. Ex. 45B-E.) For example, some entries note that
worksites were “safe” but missing some sign or traffic control device. (Gov. Ex. 45D.) But, none of the reports describe worksites without
any advance warning signs
or
establish past violations of 29 C.F.R.
§
1926.200(g)(1). (Gov. Ex. 45B-E.) Rather than reflecting a poor understanding of the work rule, the
uncovered violations
show that
employees understood the requirement to have at least one warning sign. Id. The
records also support
Flagger Force’s argument that it
took steps to ensure
adherence
to its rules, including those
rules
that went beyond
what OSHA requires. (Tr. 687; Gov. Ex. 45B-E.)

30
Because of his traumatic brain injury,
the crew leader had
no recollection
of specific events
on the day he failed to set up the advance warning signs. (Tr. 182-83.) He also indicated that his injury impacted his recollection of other things, such as the details of his training. (Tr. 200.)

31
Mr.
Duda
also indicated
in his interview with Officer
Grandizio
that he moved
two cones to the southbound lane
after the accident. (Gov. Ex. 21
at 10-11.)

Thus, there were times
when
Brubacher
employees were out of their vehicles and in the roadway.

32
Brubacher argues it should be treated only as a controlling employer. (Brubacher Br. at 17.) However, the cited standard relates to a hazard to which Brubacher’s own employees were exposed. Thus, it was both a controlling and exposing employer at the worksite. See S. Pan Servs. Co.,
25 BNA OSHC 1081, 1085-86
(No.
08-0866, 2014).

33
The Safety Observation Compliance Form has various
headings
listing the topics
the safety observer is to examine
depending on the nature of the worksite. (Gov. Ex. 32.) Under the topic “Traffic Control/Road,” the form notes various things to check, including
whether traffic control signs are in place. Id. Mr. Duda completed this section
by writing
“signs are okay” and the number “4,” which he explained meant there were two flaggers and that all signs and cones called for by the plan were present. (Tr. 604.)

34
A Brubacher employee explained that at this worksite
he had not seen any need to correct Flagger Force’s work. (Tr. 228.) However,
Brubacher did check on the traffic control work and sometimes
had to address
safety issues. (Tr. 229.)

35
Mr. Duda was personally familiar with this PennDOT inspector and believed he would
promptly shut down any worksite not
complying
with
an
approved traffic control plan. (Tr.
653.) He described him as “the most opinionated and the hardest inspector,” so he believed that
he would have brought any safety issues
at
Brubacher’s
worksite
to his attention right away. (Tr. 654.)

36
Flagger Force also trained Brubacher employees in traffic control and flagging. (Tr.
573, 634.)