Sentinel Systems, LLC
Utility-vehicle training citation vacated
Apply this to your situation
This order from 2022 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.
Plain-English summary
A Sentinel Systems employee died when the utility vehicle he was driving struck an empty flatbed trailer at the American Dream Mall construction project in New Jersey. OSHA cited Sentinel for allegedly failing to instruct operators about driving the vehicle on pavement with tires designed for off-road use. The judge found that Sentinel limited operation to experienced management employees, instructed them to review the manufacturer manual and keep speeds at 10 to 15 miles per hour, and evaluated their competence during test drives over the site's varied surfaces. OSHA did not prove that the training was inadequate or that a reasonably prudent employer would have provided additional instruction under the same circumstances. The serious training citation was vacated.
Decision snapshot
- Cited standard(s): 29 C.F.R. § 1926.21(b)(2)
- Outcome: The serious utility-vehicle training citation was vacated.
- Key point: When an employer presents credible evidence of hazard-specific instruction and practical evaluation, OSHA must prove what additional training a reasonably prudent employer would have provided.
Full text (OSHRC public release)
Document
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 N o.
20-0855
SENTINEL SYSTEMS, LLC,
Respondent .
DECISION
AND
ORDER
APPEARANCES:
For the Complainant:
Terrence Duncan, Senior Trial Attorney
U.S. Department of Labor
New York
City , New York
For the Respondent:
Douglas J. Kinz, Esq uire
Hawthorne, New Jersey
BEFORE:
William S. Coleman
U. S. Administrative Law Judge
INTRODUCTION
In 2019,
Sentinel Systems, LLC (Sentinel)
was
one of
many contractors
involved in
the
construct i on of the
American Dream Mall
complex
in East Rutherford, New Jersey .
O n
October 9 ,
a Sentinel employee
su stained
fatal injuries when
t he
utility vehicle
(UTV)
he was driving crashed
into
the front end of a n empty
flatbed
semi trail er
that
had been
left
on the lower level of a parking structure . (Stip.
¶ 7, T. 14).
Sentinel report ed the
work-related fatality
to the
Occupational Safety and Health Administration (OSHA) , and OSHA
then
a ssigned a compliance
safety and health
officer
(CO)
to
lead
an
i nspection
and investigation . (Ex. C-2; T. 37-38). The investigation concluded in March 2020
w hen
OSHA
issu ed
to Sentinel
a
C itation
and Notification of Penalty (Citation)
pursuant to section 9(a) of the
Occupational Safety and Health Act of 1970,
29 U.S.C. §§ 651 – 678 (Act) .
Sentinel
timely contested the
C itation and
the
proposed penalty
pursuant to section 10(a) of the Act ,
thereby
bringing the matter before the independent Occupational Safety and Health Review Commission (Commission) under section 10(c) . 1
(Stip. ¶¶ 1 & 13; T. 13 & 15).
The matter was assigned to the undersigned Commission Judge in October 2020, and in June 2021 a t hree-day
evidentiary
hearing was
conducted remotely
utilizing videoconference technology . Post-hearing briefing was completed on September 17, 2021 .
The Citation
alleged a single violation of
a construction industry standard
codified at
29 C.F.R. § 1926.21 , which is
titled “Safety training and education . ”
T he
Citation allege s
that Sentinel
violated
subparagraph
(b) (2)
of that standard ,
which
provides in its entirety as follows:
“ The employer shall
instruct
each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury.”
The
Citation
a lleges
that
Sentinel
violated
§ 1926.21(b)(2)
because it
“did not
provide
the
Bobcat
operators instructions on operating a Bobcat utility vehicle 2
on pavement with tires that are designed for off-road use only.”
Immediately following th at
description
of the alleged violation , the
Citation
refers
to and
quotes
two provisions
from
the manufacturer’s Operation and Maintenance manual
for the
Bobcat
UTV
( M anual) .
Th ose two provisions ,
as quoted by the Citation,
provide
as follows :
AVOID INJURY OR DEATH . Read this Operation and Maintenance Manual .
Understand all safety signs (decals), precautions and operating procedures before operating this vehicle .
(Ex. C-8 at 11 [page 38 of the Manual in
its
“ P re-starting
P rocedure” section ] ).
This
vehicle ’ s tires are designed for off-road use only, not for use on pavement.
Operating this vehicle on paved surfaces (including sidewalks, paths, parking lots and driveways) can alter the vehicle handling and may cause loss of control .
Avoid operating the vehicle
on pavement.
If it is unavoidable, travel slowly and avoid sudden turns or stops .
(Ex. C-8 at 14 [page 49 of the Manual
in
its
“ O perating
P rocedure” section] ).
These same two Manual provisions
were
quoted in
identical fashion in
the “Recommended Abatement Action”
section of a
“Violation Worksheet”
that
the CO
had prepared before the Citation was issued .
(Ex. C-1 at 1;
T. 130, 159).
Th e
Violation Worksheet thereby
indicates that
the CO
had concluded
that
Sentinel
could have averted violating the standard
if Sentinel had
provided
its UTV
operators
with instructions
and training
that conformed to the
two quoted Manual provisions.
Accordingly, t he
inclusion of these
two
Manual
provisions
in the Citation’s description of the alleged violation
is
regarded
as
constituting a particularized description
of
how
Sentinel
allegedly
fail ed
to instruct employees on
the
recogni tion and avoidance of
unsafe
conditions
associated with driving the UTV on pave ment
with tires that are designed for
off-road
use
only .
See
section 9(a) of the Act (requiring that a citation “describe with particularity the nature of the violation”) ;
Commission Rule 34(a)(2)( ii) [29 C.F.R. § 2200.34(a)(2)(ii)] (requiring
that
the Secretary’s
subsequent
complaint state “with particularity” the “circumstances of each … alleged violation”).
The
Secretary’s complaint therefore
fairly alleg e s
that Sentinel’s instructions
on operating the
Bobcat
UTVs on pavement with tires that
we re designed for
off-road
use only
did not meet the requirements of
§ 1926.21(b)(2)
because Sentinel
(1 )
failed to instruct the operators
to read
the Manual
and understand
all safety signs
(decals) , precautions and operating procedures
before operating the UTV ,
and
( 2 )
failed to instruct the operators
to travel slowly and
a void sudden turns and stops
when driving on paved surfaces
in order
to avoid the
hazard
of losing control of the
UTV .
The
two
princip al
issues presented, and the decisions thereon, are
as
follows:
· W hat
instructions and training , if any,
did Sentinel provide
on
d riving the
Bobcat
UTV s
on paved surfaces
with tires that were designed for
off-road
use only ?
Decision.
A preponderance of the evidence established that
Sentinel authorized
only
nine
managerial
employees
to operate the Bobcat UTV s
and
that each
authorized operator
had
prior experience operating similar vehicles . The evidence established further
that
Sentinel
(1) instructed
each
to review the
manufacturer’s
M anual, (2) instructed each to drive
no
faster than
15 m.p.h. at the American Dream Mall construction site, and (3) assessed the knowledge and competence
of each
in
individual
test
drives at the construction site.
· Did the Secretary prove by a preponderance of the evidence
that a
“reasonably prudent employer”
in
the same circumstances
would
have
done
more
to
instruct the
nine
authorized operators
on driving the Bobcat UTVs on paved surfaces with tires that were designed for
off-road
use only ?
Decision. No.
The sole alleged violation is vacated because the
Secretary
has not proven that
Sentinel
failed to
provide instructions
that a reasonably prudent employer would have provided
on driving the Bobcat UTV s
on paved surface s
with tires that were designed for
off-road
use only .
FINDINGS OF FACT
Except where the following numbered paragraphs expressly state that evidence respecting a matter of fact was not presented or was not preponderant, the
following facts were established by at least a preponderance of the evidence :
- Sentinel is
a company
organized under the laws of the state of New Jersey with its principal office and place of business in Hewitt, New Jersey. (Stip.
¶ 2; T.
13). Sentinel is engaged in construction activities,
including
providing specialty coating work such as waterproofing.
(Stip.
¶¶ 2 & 3; T. 13).
-
The American Dream Mall complex in East Rutherford, New Jersey was under construction in 2019. The
completed complex was
to include such indoor features as an amusement park, a waterpark, and a ski slope. The
footprint of the
construction site was many acres. (Tr. 292-93, 297-98). -
The general contractor
for the construction
project was
PCL Construction Services, Inc. (PCL). (Stip. ¶ 5;
T. 13, 262, 292).
Throughout 2019, there were as many as approximately
one hundred
subcontractors operating at the
construction
site. (T. 298). Sentinel was one of those subcontractors and
began work there in early
2019. (T. 296-97). Sentinel was
involved
mainly
in
applying specialty waterproof coating at the indoor waterpark,
installing resinous flooring
at the
indoor
amusement park, and installing epoxy flooring
in a parking garage. (T.
13-14,
296-97; Stip.
¶ 5; Ex. C-9 at 2). Sentinel
deployed about
one hundred
employees
to the project.
(T. 297).
Delivery of
Bobcat
UTV
to Sentinel
in August 2019
-
The composition of
the
surfaces for vehicular travel at the sprawling construction site was in constant flux and included earthen, gravel, and paved surfaces. (Tr. 307, 363-364). -
In August 2019, Sentinel
purchased
three
allterrain
Bobcat Company
utility vehicles (UTVs), model 3400 XLS,
to facilitate movement of employees, equipment,
and materials
around the
American Dream Mall
construction site. (Ex. C-3 at 2; T.
246-47,
299-300, 364). Many other contractors were using similar vehicles at
the site. (T. 299). -
Sentinel purchased the three UTVs from a
dealer
called
Bobcat of North Jersey. (Ex. C-8 at 2).
The
record
evidence
does not indicate the
nature of the
corporate
relationship
that this
dealer had with
Bobcat Company
(e.g.,
licensee, subsidiary, etc.). (T. 30506). On August 29, 2019, a representative
of
the
Bobcat
dealer
delivered
the first of
the
three Bobcat UTVs
to
Sentinel at
the American Dream Mall construction site. Sentinel’s owner and president, Mr. Matthew Kiburz, and Sentinel’s Director of Field Operations, Mr. Roscoe Woodard,
were present to accept
delivery. Kiburz
was
present because he wanted to
hear
the
dealer representative’s instructions. Kiburz
had instructed
Woodard to be present
because
Woodard
would be responsible for
training
Sentinel’s
UTV operators. (T. 306,
309,
36566).
-
In conjunction with the delivery
of the UTV, the dealer representative
trained
both Kiburz and Woodard
on
the UTV’s
use
and operation. (T. 305-06, 320, 364-65;
Sec’y Br. 5, n.1). The dealer representative
tailored
that
training
to
the
conditions
that were present
at the American Dream Mall construction site. (T.
320 , 350-51, 364-365 ) . -
The
Bobcat
dealer representative advised
Kiburz and Woodard
that
even though the UTVs were capable of much higher speeds,
the conditions at the
American Dream Mall
construction site
were such that the UTVs
ought to be driven
at speeds
of
no
more than
10
to
15 m.p.h., particularly
on paved surfaces. (T. 306, 365, 379, 387). -
The
Bobcat
dealer representative showed
Kiburz and Woodard
the manufacturer’s
144-page Manual. 3
The
Bobcat
dealer representative told Kiburz and Woodard that operators who were not familiar with the vehicle should read the Manual. (Ex. C-1 at 4; Ex. C-5; T. 148-49, 196-97,
306,
396).
-
A n explanatory list of symbols in
the Manual’s
“Safety Instructions” section
explains that
provisions in the Manual that are
preceded
by
the
“ s afety
a lert
s ymbol”
of
an exclamation point inside an equilateral triangle
[ ⚠ ]
denotes a safety warnin g
that should be read carefully . (Ex. C 8 at 8 ) . The
explanatory list also explains that
provisions in the Manual
that
are
marked by
“ ⚠ WARNING” in large-sized
typeface
denotes
the following: “ The signal word WARNING on
the utility vehicle and in the manuals indicates a potentially hazardous situation which, if not avoided, could result in death or serious injury .” (Ex. C-8 at 8). -
On page 38 of the Manual ,
in its
“Pre - starting Procedure”
section, an
item
that
is preceded by
“ ⚠ WARNING”
in large - sized typeface, provid es
as follows
in regular - sized
bold
typeface :
AVOID INJURY OR DEATH
The Bobcat Utility Vehicle is not a toy and can be hazardous to operate. This vehicle handles differently than other vehicles, such as motorcycles or cars. A collision or rollover can occur quickly, even during routine maneuvers like turning, or driving on hills or over obstacles, if you fail to take proper precautions.
· Read this Operation and Maintenance Manual. Understand all safety signs (decals), precautions and operating procedures before operating this vehicle.
(Ex. C-8 at 11).
- On page 49 of the Manual ,
in its “Operating Procedure” section ,
the Manual
states
the following
in
regular sized
typeface
( not
pre ceded
by
“ ⚠ WARNING”
or
other conspicuous designation ):
Operating on Pavement
This vehicle ’ s tires are designed for off-road use only, not for use on pavement.
Operating this vehicle on paved surfaces (including sidewalks, paths, parking lots and driveways) can alter the vehicle handling and may cause loss of control.
Avoid operating the vehicle on pavement.
If it is unavoidable, travel slowly and avoid sudden turns or stops .
( Ex. C-8 at 14 ).
Instructions and Training on UTV Operation
- Sentinel
decided that
only management
level
employees
would be authorized
to operate the
three
Bobcat
UTVs, and
Sentinel
authorized
nine
of them to do so.
(Stip. ¶ 9 & 10; T. 14, 307-09, 366). Matthew
Kiburz and
Roscoe
Woodard,
both of
whom the Bobcat dealer
representative trained
when the first UTV was delivered, were among those nine management employees. (Stip.
¶ 9; T.
14). At the time of the fatal crash on October 9, 2019,
only
seven of the
nine
authorized
operators
had
driven
the
UTVs. (Stip.
¶ 10;
T. 15). The two
authorized operators
who had not
driven the UTVs were
Al Strumolo,
who is
Sentinel’s Safety
Manager,
and
Brad Kiburz. (Stip. ¶¶ 10 & 11). (The
record
does not reflect
what
familial relation , if any,
existed
between Brad Kiburz and
Sentinel’s president ,
Matthew Kiburz .)
-
Sentinel recognized that operators of the Bobcat UTVs may encounter the hazard of losing control of the UTV when operating it on paved surfaces because the UTV’s tires
we re designed for off road use
only . (T. 306-07, 365, 372-73). -
Woodard provided
to each authorized UTV operator
(other than himself and Matthew
Kiburz)
a
one-to-one
orientation and
instruction on operation of the Bobcat UTV. In the
course of
doing so,
each
of those seven
employees
informed
Woodard
that
he
had
experience operating similar
type
vehicles. (T.
366-367, 397-98). The
decedent’s prior experience was reputed to have included driving
similar vehicles recreationally and in organized
race
events. (T. 347, 349-350, 369). -
Woodard’s orientation and instruction to each authorized operator
included information about
everything the
Bobcat
dealer representative had
covered with Kiburz and
Woodard. (T. 365-66, 371-72). Woodard
instructed
the
operators
(a) not to drive faster than 10 to 15 m.p.h.
at the construction site, and (b)
to drive in
two-wheel
drive
mode when driving on paved surfaces for better handling on
those surfaces. (T.
205,
334,
370-73; Ex. C-5 at 4). Woodard also rode with each authorized operator on a
test
drive
around the construction site
to assess their
understanding and competence in operating the UTV. (T.
334,
365, 373-375). -
After providing individual instruction and
after riding with each operator in a
test
drive,
each operator
expressed confidence to Woodard
that he would be able to
operate the UTV safely. (T.
373-74). Woodard instructed each
operator to
review the Manual,
which was in the UTV’s glove box.
(T. 371, 397-98).
-
There
is no evidence
that any of the
authorized
UTV
operators failed to comply with
Woodard’s
instruction to review the Manual. (T. 371-73). -
There is no evidence that any of Sentinel’s authorized UTV operators failed to understand all safety signs
(decals) on the UTV or failed to understand all precautions and operating procedures described in the Manual. -
There is no evidence that
any of Sentinel’s authorized UTV operators
failed to understand
that operating the UTVs
on paved surfaces
with tires that were designed for off-road use
could alter
the vehicle’s
handling and
could cause a
loss of control. -
There is no evidence that any of Sentinel’s authorized UTV operators
failed to understand
that
to avoid losing control of the UTV
when driving on paved surfaces
they should avoid making sudden stops and turns. -
There is no evidence that any of Sentinel’s authorized UTV operators failed to understand not to drive faster than 15 m.p.h. anywhere on the construction site.
-
There is no evidence that driving at speeds
of up to 15 m.p.h.
does
not
constitute traveling “slowly” within the meaning of the Manual’s instructions to “travel slowly” on paved surfaces. -
There is no evidence that making sudden turns or stops when travelling on paved surfaces at speeds of up to 15 m.p.h. could result in losing control of the UTV.
-
There is no evidence of any instance of a Sentinel employee driving the
Bobcat
UTVs
faster than 15 m.p.h. at the construction site. (T. 376). -
There is no evidence
of any instance of a
Sentinel
employee
making
sudden stops or turns
in the Bobcat UTVs
on any type of surface
at the construction site. -
Up to the time of the fatal crash,
no authorized operator
was known to have
operated
a UTV in an unsafe manner. (T. 372).
Fatal Crash on October 9, 2019
- The fatal crash occurred on October 9, 2019, at about 2:15 p.m. on the
concrete
ground
floor of a
parking
structure
located
near
the mall complex’s
“Building E.”
(Ex. R-1 at 1 & 3; Ex. C-1 at 3). The general contractor
(PCL)
managed this area and
had directed
subcontractors to use this
part of the
parking
structure as a
staging area for construction materials. (T. 263, 32829;
Ex. R-1 at 3).
-
The flatbed
semitrailer
involved in the fatal crash
is fairly depicted in the photographs in Exhibit C-11. At about noon on
the day
of the fatal crash,
a semitruck
brought
the
loaded
flatbed
semitrailer
to
the staging area
and dropped
it
off
for
offloading. (Ex. C-7). Because the
semitrailer
had been
uncoupled from the semitruck ,
the semitrailer’s
front
end was exposed and
was
supported by
the front
landing gear . ( See
photo, Ex. C-11 at 7; Ex. C-7 ).
The
precise location where the
semitrailer was
dropped off
was in the right lane
of
a passageway
that had floor markings
indicating
two-way traffic. Even though the parking structure’s concrete
floor
was marked for vehicular traffic, at the time of the crash
this area
of
the parking structure was
part of
an active
construction
zone
and was not a public thoroughfare. (T. 267-68; Ex. R-1 at 3). -
The
semitrailer
was dark
colored,
but its two long sides and
its
back end were marked with
reflective
tape/decals
in alternating colors of red and white. The trailer’s
front end
(into which the decedent crashed)
had no reflective
tape/decals
or other reflective material. (Ex. C11). -
By about 1:30 p.m.
on the day of the fatal crash,
the
construction material on the flatbed had been completely
offloaded, and so
when the
crash
occurred
about
45 minutes later
the flatbed
was empty. (Exs. C-7 & C-11). The
semitrailer’s
location
was not
demarcated
by
traffic cones or
the like. (Ex. C-11; T.
286).
According to local police who arrived at the scene shortly after the crash, some
overhead
lights
in the vicinity of the semitrailer were
unlit
and some other
overhead
lights
illuminated
on and
off
sporadically.
(Ex. R-1 at 3; Ex. C-11; T. 263, 271, 349). Even though
some of the
overhead lights
at the time of the crash
were
likely not fully
functional,
the ambient
natural light that
came
in from the
open sides of the
parking structure
provided sufficient light
such that the front end of the
semitrailer
probably
would have been
discernable
to
a
reasonably attentive
approaching driver.
( See
photos at
Ex. C-11).
-
A
superintendent for the
project’s
general contractor, PCL,
had a face-to-face conversation
with the decedent moments before
the crash, at a location in the parking
structure that was about 200 feet from the parked semitrailer. The
superintendent
told police that the decedent drove
away from that
location
at a speed of about 10 m.p.h.
and that moments later he heard the collision. (Ex. R-1 at 3; Ex. C-3 at
1-2). There were no passengers in the UTV. -
An employee of another subcontractor told
the CO
that
he
observed
the UTV
traveling
past
his location
in the parking structure
and
that
moments later
he
heard the collision
and immediately went to the decedent’s aid. (Ex. C-3 at 2; T. 95). Emergency
medical
personnel transported
the decedent to a hospital,
where he
died
later that evening. (Stip.
¶ 7; Ex. R-1 at 8; Ex. C-11 at 8-9; T. 231-32, 313). -
The
left side of the UTV’s
hood
rode
underneath the
front end of the semitrailer’s flatbed. The UTV’s left front
roof pillar
impacted the left front
side
of the flatbed,
smashing the windshield and
collapsing the
roof pillar. (T. 262, 266; Ex. C-11). -
There is no
indication
that the decedent braked
or swerved
the UTV
in an attempt
to
avoid crashing into the
semitrailer. (T. 271, 378-79). It is reasonably inferable from the
surrounding
circumstances
that the decedent did not discern
the presence of the parked
semitrailer before crashing
into it.
DISCUSSION
The parties have stipulated to facts that establish Sentinel to be an “employer” as defined in section 3(5) of the Act and thus subject to the compliance provisions of section 5(a). (Joint Preh’g Stmt.
at
5 ; Finding s
of Fact ¶ 1 ). 29 U.S.C. §§
652(5), 654(a).
To prove a violation of an OSHA standard, the Secretary must establish that (1) the cited standard applies, (2) there was a failure to comply with the cited standard, (3) employees had access to the violative condition, and (4)
the
employer knew or with the exercise of reasonable diligence could have known of
the
violative
condition.
See
Astra Pharma. Prods. , 9 BNA OSHC 2126, 2129 (No. 7 8-6247, 1981),
aff’d in relevant part , 681 F.2d 691 (D.C. Cir. 1980).
The parties
made the prehearing s tipulat ion that
only the second element
(noncompliance) is in dispute . (Joint Preh’g Stmt., Stip. ¶ 15). The parties also stipulated that the Secretary was “not litigating the cause of the accident that precipitated OSHA’s investigation.” (Joint Preh’g Stmt., Stip. ¶ 14; T. 15). Cf.
Boeing Co. , 5 BNA OSHC 2014, 2016 (No. 12879, 1977) (observing that “whether a violation occurred did not depend on the cause of the particular accident” that precipitated the inspection and investigation).
The cited standard, § 1926.21(b)(2) ,
has two parts . T he first
of those two
part s
requires
that
construction employers
" instruct each employee in the recognition and avoidance of unsafe
conditions” that the
employee
may encounter on the job. 4
See El Paso Crane & Rigging Co.
( El Paso Crane ) , 16 BNA OSHC 1419, 1424 (No. 90-1106, 1993) (describing
the “first part” of
§ 1926.21(b)(2) being
the requirement
t o
“instruct each employee in the recognition and avoidance of unsafe con ditions”) ;
Mod. Cont'l Constr. Co. v. OSHRC , 305 F.3d 43, 50 (1st Cir. 2002) (“The purview of [§ 1926.21(b)(2)] is not limited to training for hazards expressly identified by OSHA regulation”).
In this case, the
Secretary’s theory of the alleged violation
is grounded in
the
“ first part ”
of § 1926.21(b)(2) . 5
The
Citation’s
precise
description of the
alleg ed violation is :
a. Storage Area Building E/Parking Garage: The employer did not provide the Bobcat operators instructions
on operating a Bobcat utility vehicle on pavement with tires that are designed for off-road use only,
on or about 10/9/2019.
1.
AVOID INJURY OR DEATH: Read this Operation and Maintenance Manual. Understand all safety signs (decals), precautions and operating procedures before operating this vehicle (page 38).
2.
This
vehicles
[sic ]
tires are designed for off-road use only, not for use on pavement.
Operating this vehicle on pa v ed surfaces (including sidewalks, paths, parking lots and driveways) can alter the vehicle handling and may cause loss of control.
Avoid operating the vehicle on pavement.
If it
is unavoidable, travel slowly and avoid sudden turns or stops (page 49) .
As described at the outset,
the Secretary’s complaint (which incorporated by reference the allegations of the Citation) fairly alleges that Sentinel’s instructions
on operating the UTVs on “pavement with tires that are designed for off-road use only”
did not meet the requirements of § 1926.21(b)(2)
because Sentinel
(1) failed
to instruct employees
to read
the Manual
and understand
all safety signs
(decals) , precautions and operating procedures
before operating the UTV ,
and
( 2 ) failed
to instruct employees
to travel slowly and
a void sudden turns and stops
when driving on paved surfaces
in order
to avoid the
hazard
of losing control of the
UTV .
The Hazard that Triggered an Obligation to Instruct Employees
“ Because section 1926.21(b)(2) does not specify exactly what instruction the employees must be given, the Commission and the courts have held that an employer must instruct its employees in the recognition and avoidance of those hazards of which a reasonably prudent employer would have been aware .”
Pressure Concrete Constr. Co. ,
15 BNA OSHC 2011 (No. 90-2668, 1992) . “An
employer’s obligation to
instruct and
train
is dependent upon the specific conditions, whether those conditions create a hazard, and whether the employer or its industry has recognized the hazard . ”
W.G. Fairfield Co. , 19 BNA OSHC 1233, 123 6
(No. 99 0344, 2000) ( applying the first part of § 1926.21(b)(2)),
aff’d , 285 F.3d 499 (6th Cir. 2002) .
Sentinel recognized that
because the UTV’s tires are designed for off road use only,
operating
them
on paved surfaces presented th e
hazard
of losing control of the vehicle. (Findings of Fact ¶¶ 8, 12 & 14) .
Sentinel does not contend otherwise. The presence of that hazard triggered Sentinel’s obligation under § 1926.21(b)(2)
to instruct its employees in the recognition and avoidance of th at hazard. A.H.
Sturgill Roofing, Inc. ,
No. 13-0224, 2019 WL 1099857 , at *11 n.19
(OSHRC Feb. 28, 2019)
( in a matter involving the first part of § 1926.21(b)(2), stating that the
presence of an identified hazard is a
“threshold requirement
of showing ”
that the employer “was obligated to provide" training that addressed that hazard ) ;
cf. Bardav, Inc. , 24 BNA OSHC
at
2110
(in a matter involving the second part of
§ 1926.21(b)(2),
ruling an employer must “ provide excavation safety instructions under § 1926.21(b)(2) to employees engaged in excavation work, regardless of whether the potential hazards posed by excavations are actually present ”).
Evidence Insufficient to Prove Sentinel
Provided Inadequate
Instruct ions or Training
The
Commission has
not ed that
th e
command of
§ 1926.21(b)(2)
“ is so general and potentially subjective that the Commission and courts have seen fit to read into it a reasonableness standard .”
El Paso Crane ,
16
BNA OSHC
at 1424 . And so ,
“ to establish noncompliance, the Secretary must establish that the cited employer failed to provide the instructions that a reasonably prudent employer would have given in the same circumstances. ” Id. “ A reasonably prudent employer is a reasonable person familiar with the situation, including any facts unique to the particular industry. ”
Associated Underwater Servs. , 24 BNA OSHC 1248 ,
1250
(No. 07-1851, 2012). “[I] ndustry practice is relevant to [ the
‘ reasonably prudent employer ’ ] analysis, but it is not dispositive. ” Id. , citing
W.G. Fairfield , 19 BNA OSHC at 1235-36 .
Sentinel
Provided
Instructions
Section 1926.21(b)(2)
“requires that employers take
‘ some positive action ’
to train employees with respect to the specific cond itions they may encounter at the particular worksite.” Compass Envtl., Inc. , 23 BNA OSHC 1132, 113 6
(No. 06-1036, 2010) ,
quoti ng
Ford Dev. Corp. , 15 BNA OSHC 2003, 2009 (No. 90-1505, 1992) ,
aff'd , 663 F.3d 1164, 1168 (10th Cir. 2011) .
The Secretary
first argu es
that
a preponderance of the evidence established that Sentinel provided no instructions or training
whatsoever
to the UTV operators.
(Sec’y Br. 14-16) .
Th e evidence
on which
the Secretary relies to
support this argument involves
(1)
what
the investigating
CO
understood
Sentinel’s
S afety
Manager
(Al Strumolo)
to have
said
to him
i n
an
email
dated Nov ember
26, 2019
and
in
several
telephone conversations (on Oct .
10
&
Dec .
2, 2019, and Jan .
22, 2020 [T. 124-29]),
and (2)
what
the
CO understood Sentinel’s owner and president ( Matthew
Kiburz)
to have
said to him
in
one
telephone conversation
on January 29, 2020 .
The CO understood
that
both Strumolo
and
Kiburz
to ld him
that Sentinel
had
provided
absolutely
no
instruct ions
or train ing to
the UTV operators.
( E.g., T. 39, 52) .
This argument is rejected. As discussed below, t he
evidence
relied on by the Secretary in support of this argument
is insufficiently weighty to establish by a preponderance of the evidence that either
Strumolo
or
Kiburz
told the CO that
Sentinel gave no instructions
or training
to the
UTV
operators.
According to the CO,
Strumolo ’s email to
the CO
on November 26,
2019
was Strumolo’s response to the CO’s
telephonic request that Strumolo provide
certain
written
policies
to OSHA . (T. 114 17). Strumolo
attached
to
the
email documentation of
some written
Sentinel
policies, and
in the body of the email
he wrote
that
Sentinel does not “have a policy in place for the use of
[the UTV]
as we looked at it as motor vehicle.” (Ex. C-6 ) .
Strumolo testified that
by writing this
he was intending to
inform the CO that , unlike the documentation of the
written
Sentinel policies that he
had attached to the email , that
he was not attaching
documentation of any
written
policy on UTV use
because Sentinel had no
written
policy . (T. 238 41) .
Then,
in a telephone conversation with Strumolo on December 2, 2019, the CO recalled asking Strumolo what policies Sentinel had in place for the UTV. (T. 51; Ex. C-3 at 2) . Strumolo plausibly testified that he understood the CO
again
to be asking about any
written
policies, and so
Strumolo
responded to the CO’s oral inquiry in the negative. (T. 245).
And t hen, in a later telephone conversation with Strumolo on January 22, 2020, the CO asked Strumolo what training had been provided to the UTV operators. (T. 52) . Strumolo testified that he understood the CO to be asking what training Strumolo
himself had
provided to the operators, and so he told the CO that “I did not conduct the training on the Bobcat,” explaining in his testimony that this training function was not within the scope of his duties as Sentinel’s Safety Manager. (T. 250-51) . Strumolo testified that he believed that the CO had been previously informed that Woodard was the individual at Sentinel who was responsible for training the UTV operators ,
and he further recalled having personally
informed
the CO that Woodard was responsible
for that training . (T. 252 , 284-85 ) . In contrast, the CO interpreted Strumolo’s response to his question to
have been
that the
company
had not provided training on the UTV. (Ex. C-4 at 2; T. 52) .
The CO’s only substantive communication with Sentinel’s president (Matthew Kiburz), was a telephone conversation on January 29, 2020. The CO testified that Kiburz told him that “they didn’t provide any training or instructions” to the UTV operators and that the only qualification for any operator was to be age 16 and have a driver’s license. (T. 39; Ex. C-4 at 3) . The CO’s contemporaneous handwritten notes of this conversation indicate that Kiburz
said to
the CO :
“I did not train my [employees] on Bobcat use.” (Ex. C-4 at 3; T. 45). Mr. Kiburz testified that he told the CO that he did not personally train the UTV operators ,
but that he also informed the CO that Woodard had trained the operators and
he testified
further
that he
(Kiburz)
provided the CO with Woodard’s cell phone number. (T. 320-21, 330-31) . The CO’s contemporaneous handwritten notes do not reflect Kiburz having mentioned Woodard to the CO, but Kiburz testified that their
telephone
conversation addressed multiple matters that are not reflected in the CO’s
contemporaneous
handwritten notes . (T. 320-21) .
T he CO confirmed that his notes
of the
telephone conversation
were not comprehensive , and he allowed that
Kiburz m ight
have informed him of
Woodard’s contact information
during that telephone conversation . (T. 118 20 ).
Three business days later, on February 3, 2020, the CO
spoke with
Woodard by telephone, and in the ensuing conversation Woodard described the training and instructions he provided to the UTV operators. The CO described Woodard’s account of the training
that
he provided as being “completely different from what” he understood Strumolo and Kiburz had said to him in earlier communications (i.e., that Sentinel had provided no training
at all
to the UTV operators). (T. 59 60; Ex. C-5 at 1) .
Despite Woodard’s account having been “completely different” from what the CO understood Strumolo and Kiburz to have said to him
previously , the CO apparently did not thereafter contact either
Strumolo or Kiburz
to inquire about the
perceived
contra ry information
Woodard
provided . Nor
did the CO interview any of the employees that Woodard
said he had
trained to inquire what, if any,
i nstructions
or training
Woodard had given them .
(T. 12 1 -24) . T he CO sp oke
with Strumolo multiple times,
but
there is no evidence that the CO ever asked
Strumolo
whether Woodard had trained him on the UTV operation. And while Strumolo testified at the hearing, he was never asked whether Woodard had trained him on the UTV operation.
The CO
testified that he did
not interview any of th e
other
five
living
individuals
whom
Woodard said he had instructed
because
the CO believed
that
both Strumolo and Kiburz had
told him
that Sentinel had not trained the UTV operators at all. (T. 122, 184-85).
The CO apparently wholly disbelieved Woodard’s description
provided
over the phone on February 3,
2020
of the training and instructions that Woodard
said
he had provided to the operators , and
the CO
instead
apparently fully credit ed
his understanding that both Strumolo and Kiburz had told him that Sentinel had provided no training or instructions
whatsoever . (T. 12 1 -24) .
Woodard’s hearing testimony about the training and instructions he provided to the authorized UTV operators was n either
contradicted
nor corroborated
by any of six living individuals whom Woodard testified that he had trained. It is therefore unknown to the
undersigned
trier of fact h ow any of those six
manager s would have responded under oath and subject to cross
examination to questions about what, if any, training they
had
received from Woodard . And it is similarly unknown to the undersigned trier of fact
whether
any such testimony on that subject would have been
regarded to be
reliable and credible .
There was no
persuasive
evidence
to
contradict Woodard’s
detailed
t estimony
of the instructions and
test
drives
that he provided
to the authorized operator s .
Woodard’s testimony and the corroborative testimony of Strumolo
and Kiburz
establish ed
that the authorized operators of the
Bobcat
UTVs
were all trusted and experienced
management employees ,
and
that each authorized operator
had prior experience in driving similar types of vehicles . The evidence established further
that
Woodard
(1)
instructed them to review the
Manual , (2) instructed them not to exceed speeds of 10 to 15 m.p.h.
at the construction site , and (3) evaluated their knowledge and competence in
operating the UTV
in demonstration drives
o ver
the
construction site’s
varied terrain
and
vehicular
surfaces . 6
(See Findings of Fact
¶ ¶ 15–18 ) .
Sentinel’s
Instructions
Not Proven Ina dequate
The Secretary argues alternatively that
if Woodard
provided the instructions and training to which he testified ,
such
instructions and
training
would not
meet the requirements of § 1926.21(b)(2). (Sec’y Br.
18-23; Sec’y Reply Br.
4-5) . 7
Where
an employer rebuts the allegation of a violation § 1926.21(b)(2) “ by showing that it has provided the type of training at issue, the burden shifts to the Secretary to show some deficiency in the training provided.”
A.H.
Sturgill Roofing, Inc. ,
2019 WL 1099857 , at
*11 .
“An employer's instructions are adequate under section 1926.21(b)(2)
if they are specific enough to advise employees of the hazards associated with their work and the ways to avoid them.” Superior Custom Cabinet Co., Inc. , 18
BNA OSHC
1019, 1021
(No. 94-200, 1997), quoting
El Paso Crane , 16 BNA OSHC at 1425 nn. 6 & 7.
“[S]ection 1926.21(b)(2) does not limit the employer in the method by which it may impart the necessary training.”
Concrete Constr.
Co. , 15 BNA OSHC
1614, 1620
(No. 89-2019, 1992);
see also GEM Indus . , Inc. , 17 BNA
OSHC
1861, 1863 n.5 (No. 93-1122, 1996)
(noting that the “Commission has not required safety rules to be written as long as the safety rule is clearly and effectively communicated to employees ”) ,
aff'd ,
149 F.3d 1183 (6th Cir. 1998) .
“A reasonably prudent employer would attempt to give instructions that can be understood and remembered by its
employees, and
would make at least some effort to
assure that the employees did, in fact, understand the instructions.”
Pressure Concrete Constr. Co. ,
15
BNA OSHC
at
2015 .
“The employer's safety program as a whole
is relevant to determining whether there was compliance with” § 1926.21(b)(2). El Paso Crane , 16 BNA OSHC at 1425 n.9.
“Employers cannot count on employees' common
sense and experience to preclude the need for instructions”
under
§ 1926.21(b)(2).
Danis-Shook Joint Venture XXV v. Sec'y of Labor , 319 F.3d 805, 811 (6th Cir. 2003).
Nevertheless,
“ [m] ore generalized instructions may be permissible in light of an employee's specialized training and experience, just as they may be inadequate in light of an employee's lack of experience, poor safety history, or lack of supervision. ”
S. J. Louis Constr. of Tex . , 25
BNA OSHC
1892 , 1896
( No. 12-1045 , 2016)
(assessing adequacy of instructions
to employees
for
the
purpose of
determining whether the employer
should be charged with
constructive knowledge of a violative condition
by reason of operating an inadequate
safety program ).
T he evidence is insufficient to establish that
a reasonably prudent employer fa ced with the circumstances and conditions confronting Sentinel
would have
done more in
instructi ng employees on
the recognition and avoidance of hazards associated with
driving
the UTV on paved surfaces
with tires designed for
off-road
use
only . The
circumstances
and conditions facing such a
“ reasonably prudent employer ”
include the following: (1)
only
trusted
managerial
employee s were authorized to operate the UTVs , (2) each operator
had
prior experience operating similar vehicles,
(3)
the
UTV
dealer representative had advised
the employer
that operators who were not familiar with
the UTV
should review the Manual,
( 4 ) each operator was instructed to read the Manual ,
( 5 ) each operator was instructed not to exceed speeds of 15 m.p.h. at the construction site, and ( 6 ) each operator’s competence and confidence
in operating the UTV s
safely at the construction site
was evaluated in a test drive at the construction site.
The Secretary has not
presented substantial evidence of
any deficiency in the
instructions and training
Sentinel provided to the UTV operators
about operating the Bobcat UTVs on paved surfaces with tires that were designed for
off-road
use only . The CO testif ied
that he believed the instructions Woodard said he provided
were deficient because they
did not include instructions to avoid sudden turns and stops when driving on paved surfaces as
the
Manual warns .
(T.
157-59, 190 ;
see also
Sec’y Reply Br. 4 ) .
B ut Woodard ’s testimony that
he instructed the operators not to drive faster than 10 to 15 m.p.h. as a means for avoiding sudden turns and stops
was uncontroverted . (T.
152-15 3, 156, 159 ,
305-07,
365,
371-73) .
There is simply no evidence that a reasonably prudent employer would have done more to instruct the experienced and trusted
authorized UTV operators
about
operating the UTVs on paved surfaces with tires that were designed for
off-road
use
only . See H.C. Nutting Co. v. OSHRC , 615 F.2d 1360 [8 BNA OSHC 1241, 1241-42] (6th Cir. 1980) (unpublished)
( ruling that the
alleged
violation of § 1926.21(b)(2)
“ against a backdrop of reasonable industry practice ” was
not established where
there
wa s
“ no evidence
…
as to industry practices ,” the CO
“ was not presented as an expert witness in the area, ”
“ no specific OSHA standards require that the steps suggested by the
CO
be taken , ”
and the
Secretary
did not
contend that the Act’s general duty clause required such steps ).
To the contrary, the
uncontroverted evidence was that the
UTV operators
drove the UTVs in
conformance with the provisions of the Manual on which the Secretary relies .
(T. 370 71 ).
Th at evidence is
probative
on the issue of whether
the instructions and training Sentinel provided
met the requirements of the cited standard . See Archer-Western Contractors Ltd. , 15 BNA OSHC 1013, 1019-20 (No. 87-1067, 1991) ( determin ing that violation of § 1926.21(b)(2) for alleged failure to adequately train employees on
“ rigging and signaling ” in crane operations
was not proven where crane operators
testified
that the employees did good jobs in rigging and signaling ,
leading the
Commission
to
conclud e
that
“the performance of those employees establishes that they were trained in rigging and signaling”) ,
aff'd , 978 F.2d 744 (D.C.
Cir.
1991) ( unpublished ) .
Accordingly, as described above, the evidence is insufficient to establish that Sentinel failed to provide
instructions and
training that a reasonably prudent employer
under the same circumstances
would
have
provide d
with respect to operating the
Bobcat
UTVs on paved surfaces
with tires designed for
off-road
use only . The evidence is thus insufficient to establish that Sentinel failed to comply with the cited standard in the manner alleged.
ORDER
The foregoing decision constitutes the findings of fact and conclusions of law in accordance with Commission Rule 90(a)(1). 29 C.F.R. § 2200.90(a)(1).
Based upon the foregoing findings of fact and conclusions of law, it is
ordered
that
Citation 1, Item 1, alleging a serious violation of 29 C.F.R. § 1926. 21(b)(2) , having not been proven, is VACATED.
/s/ William S. Coleman
WILLIAM S. COLEMAN
Administrative Law Judge
Dated:
August 2, 2022
"
1
T he Commission’s rules of procedure
do not
require that the parties present positive evidence
showing that the
employer
has contested
a citation or proposed penalty
within the fifteen working day
contest
period
that
section 10(a) of the Act
specifies . But the undersigned notes that documentation in the Commission’s
electronic
case file
(which is
accessible
to the parties )
does not affirmatively establish that Sentinel ’s
contest
was timely . Compare
docket
e vent
no. 3
( May 29, 2020 )
with
Complaint ¶ VIII
( Aug. 3, 2020 ) ;
see also
29 C.F.R. § 1903.17(a) ( indicating
that a n employer’s
notice of contest
would be timely if
“postmarked within 15 working days of the receipt by the employer of the notice of proposed penalty”). However, the parties’ prehearing stipulations implicitly include
the stipulation of
fact that Sentinel contested the Citation
before
the
statutory
contest period
expired . (Joint Preh’g Stmt., Stips.
¶¶ 1 & 13; T. 13 & 15). Cf. Armstrong Utils., Inc. , No. 18 0034, 2021 WL 4592200, at *2 n.2 (OSHRC Sept. 24, 2021) (deciding that Commission Judge committed “plain error” by
not
accept ing
a stipulation of fact that neither party had thereafter
disputed or questioned ).
If the Secretary were now to conclude that he stipulated to this fact
in error , he would not be precluded from filing a motion to dismiss the notice of contest for
having
be en
untimely, even at this late stage of the proceedings. See Stone Container Corp. , 9 BNA OSHC 1832, 1833 (No. 15116, 1981) (“As a jurisdictional question, the issue of the timeliness of a notice of contest can be raised by a party or by the Commission,
sua sponte , at any time during the proceedings”) ,
citing
Fed. R. Civ. P. 12(h)(3) ( the current version of Rule 12(h)(3)
provid es : “ Lack of Subject-Matter Jurisdiction.
If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”);
Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee , 456 U.S. 694, 702 (1982)
(observing that
"no action of the parties can confer subject matter jurisdiction,” that “the consent of the parties is irrelevant,” that “principles of estoppel do not apply,” and that
"a party does not waive the requirement by failing to challenge jurisdiction early in the proceedings” ).
If the Secretary determines to file such a motion to dismiss,
he should consider doing so
prior to
the date the decision and report is to be filed with the Commission’s Executive Secretary for docketing pursuant to Commission Rule 90(b)(2). [That date is identified in the cover letter under which this decision is being served on the parties pursuant to Commission Rule 90(a)(2). 29 C.F.R. § 2200.90.] If
the
Secretary were to file such a motion before the decision is docketed, then the undersigned would not transmit the report
at that time
to the Executive Secretary for docketing under Rule 90(b)(2) ,
but rather would likely schedule further proceedings relating to the timeliness of
Sentinel’s notice of intent to
contest
the citation and penalty .
2
Bobcat Company manufactured the UTV involved. (Ex. C-8; T. 299).
3
Only sixteen pages of the 144-page Manual were offered and received in evidence at Exhibit C-8 .
4
The
“ second part ” of § 1926.21(b)(2)
requires
construction
employers to instruct each employee
“ in the regulations applic able to his work environment to control or eliminate any hazards or other exposure to illness or injury.” See Bardav, Inc. , 24 BNA OSHC 2105, 2111 (No. 10 1055, 2014) (stating that the excavations standard [29 C.F.R. 1926, subpt. P] triggered the employer’s duty under § 1926.21(b)(2) to instruct employees who worked in excavations on the requirements of th e excavations
standard ).
5
The Secretary does
not
contend that Sentinel violated the second part of § 1926.21(b)(2). In other words , the Secretary does not c ontend that Sentinel failed to instruct employees about any OSHA standard that applies to the operation of a
“utility vehicle on pavement with tires that are designed for off - road use only”
as the Citation describes.
See
Bardav, Inc. ,
described in footnote 4, supra.
6
The Secretary argues further that Sentinel’s responses to the Secretary’s interrogatories, which Woodard
ver ified on March 29, 2021, constitute an admission that Sentinel did not provide training or instruction to two of the
managers
who were
authorized UTV operators––Strumolo and Brad Kiburz. (Ex. C-9 at 3; Stip. ¶ 10)
(Sec’y Br. 16-17; Sec’y Reply Br. 3) . In
Sentinel’s verified
response to the Secretary’s interrogatory
that
request ed
Sentinel
to
identify employees that Sentinel had instructed, Sentinel did not list either Strumolo or Brad Kiburz. Woodard plausibly testified that he did not include these two
manager s in the
verified
interrogatory response because even though both were authorized operators, neither had driven the UTV (a fact to which the parties have also stipulated in Stip. ¶ 11). (T. 410-11). In view of
Woodard’s plausible explanation for purposefully not including Strumolo and Brad Kiburz in the list of employees that Sentinel had
trained ,
and
in
further
view of
the absence of any evidence
to corroborate a finding that
Woodard had
not
trained either
of those authorized operators ,
the
verified
interrogatory response is insufficient evidence to establish by a preponderance that Sentinel
did not
instruct either Strumolo or Brad Kiburz on use of the UTV in the manner that Woodard described in his testimony.
7
Certain arguments in the
Secretary’s post-hearing brief
asserting that
Sentinel’s instructions w ere
deficient
because they did not address provisions in the Manual other than the two provisions quoted in the Citation
are n ot
adjudicated herein . ( See
Sec ’ y Br. 20-23 ).
Those
asserted defic iencies are outside the scope of the pleadings ,
and
none were
tried with the
parties’
expressed or implied consent . ( See
T . 340-343 ,
402- 06) .
McWilliams Forge Co. , 11 BNA OSHC 2128, 2129-30 (No. 80-5868, 1984)
(observing that an unpleaded issue may be adjudicated only where the parties
actually
tried
the unpleaded issue and they expressly or impliedly
consented
to do so) .
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