Sunshine Guardrail Service

Plain-English summary

Sunshine replaced guardrail posts beside four lanes of Florida Turnpike traffic after the general contractor failed to place the required advance construction signs. The crew used cones, safety vests, truck warning lights, and the guardrail area, but those measures did not warn motorists in advance. During the work, a vehicle involved in a three-car accident crossed the guardrail and killed two employees. The judge found no evidence that advance signs caused or would have prevented that accident, but held that Sunshine still violated the traffic-sign standard. The multi-employer defense failed because Sunshine retained control over whether to proceed, did not demand that the signs be installed, and did not delay the work to obtain signs. The item was affirmed as serious, and the proposed $1,000 penalty was reduced to $500 based on good faith and moderate gravity.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.200(g)(1)
• Outcome: The serious traffic-sign item was affirmed, and a $500 penalty was assessed.
• Key point: A subcontractor cannot rely solely on another contractor's duty to post traffic signs when it can delay the work, request compliance, or obtain the required advance warning.

Full text (OSHRC public release)

                                United States of America
          OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                           1120 20th Street, N.W., Ninth Floor
                              Washington, DC 20036-34 19



                                                                           Phone:(202)606-5400
                                                                            Fax:(202)606-5050

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 96-0631
SUNSHINE GUARDRAIL SERVICE
Respondent.

                    NOTICE OF DOCKETING
             OF ADMINISTRATIVE LAW JUDGE’S DECISION
 The Administrative Law Judge’s Report in the above referenced case was

docketed with the Commission on September 26, 1996. The decision of the Judge
will become a final order of the Commission on October 28, 1996 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST F’ILE A PETITION FOR DISCREIONARY REVIEW.
Any such petition should be received b the Executive Secretary on or before
October 16, 1996 in order to ermit sU.&l ‘cient time for its review. See
Commission Rule 91, 29 C.F. ii . 2200.91.
AII further pleadings or communications regarding this case shah be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
Petitioning parties shah also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOH,
Room S4004
200 Constitution Avenue, N.W.
Washington, DC. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
havmg questions about review nghts may contact the Commission’s Executive
Secretary or call (202). 606-5400.
FOR THE COmSSIOlj

Date: September 26, 1996
DOCKET NO. 96-0631
NOTICE IS GIVEN TO THE FOLLOWING:

Jaylynn Fortney
Re ‘onal Solicitor U S DOL
13# Peachtree St) N’.E., Room 339
Atlanta, GA 30367

Alan B. Whitaker, Jr., Esquire
Adomo & Zeder
Suite 500
888 Sotheast 3rd Avenue
Fort Lauderdale, FL 33316

Ken S. Welsch
Administrative Law Jud e
Occupational Safety an tf Health
Review Commission
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309 3119

00116508565 :04
 United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1365 Peachtree Street, N.E., Suite 240
Atlanta, Georgia 30309-3 119
,

Phone: (404) 347-4197 Fax: (404) 347-O113

SECRETARY OF LABOR,
Complainant,

                v.                                             ..       OSHRC Docket No. 96-63 1

SUNSHINE GUARDRAIL SERVICES, ..
(E-z)
Respondent. ..
.

APPEARANCES:

      Frances Schleicher, Esquire                                                  Alan B. Whitaker, Esquire
          Office of the Solicitor                                                     Adomo and Zeder
          U. S. Department of Labor                                                   Fort Lauderdale, Florida
          Atlanta, Georgia                                                                For Respondent
              For Complainant

Before: Administrative Law FudgeKen S. Welsch
L

                                          DECISION AND ORDER

      Sunshine Guardrail Service (Sunshine), a small corporation, is engaged in the installation of

guardrails, signs, fences, and handrails along highways and in municipalities since 1978 (Tr. 65,86).
On November 22,1995, the Occupational Safety and Health Administration (OSHA) conducted a
fatality investigation of Sunshine’s worksite on the Florida Turnpike near Miami, Florida. As a
result of the investigation, OSHA issued a serious citation to Sunshine on April 19,1996. OSHA
alleges that Sunshine ftiled to post traffic signs at the worksite in violation of $ 1926.2OO(g)(1). The
Secretary proposes a penalty of $1,000 for the alleged violation. Sunshine timely contested the
citation.
 On June 12,1996, the case was designated for E-Z trial pursuant to Commission Rule
200.211,29 C.F.R. @j2200.200-211~ E-Z trial is a program designed by the Review Commission
to provide simplified proceedings for resolving contests expeditiously. On July 5,1996, the E-Z trial
prehearing conference order was-entered which set forth the parties’ agreed facts and statement of
issues. On July 17,1996, Sunshine amended the list of issues to allege the multi-employer worksite
defense (Tr. 4).
The E-Z trial hearing was held on August 14,1996, in Fort Lauderdale, Florida. Sunshine
agrees that it is an employer engaged in a business tiecting commerce within the meaning of 5 3(5)
of the Occupational
* Safety and Health Act (Act) (Prehearing Conference Order).

                                           The Accident

       During November 1995, N.S. Marine contracted with the Florida Department of
Transportation (DOT) to update guardrail installations along a ten-mile section of the Florida
Turnpike south of Okeechobee Road near Miami, Florida (Tr. 66). Sunshine subcontracted to
provide the labor and equipment for the removal and installation of guardrails which meet current
standards (Tr. 65-66).    N. S. Marine, under the subcontract, was responsible for providing
maintenance of trafEic (MOT) signs and devices necessary for Sunshine to work along the turnpike
(Tr. 68).   The MOT included the posting of appropriate traffic signs warning motorists of

. construction worksites (Tr. 84).
Prior to November 22, 1995, Sunshine worked along the turnpike for approximately two
weeks without incident (Tr. 68). During this period, there was apparently no problem with N. S.
Marine providing the appropriate MOT signs and devices (Tr. 27,40,68,91).
OnNovember 21,1995, Sunshine met withN.S. Marine to discuss the next day’s work. The
DOT requested that the work avoid causing any more road congestion than necessary because of the
Thanksgiving holiday (Tr. 69). It was to be a short workday. All work was to be completed
by 12 noon and was not to block any traffic lanes (Tr. 69,79).
 The job for November 22, 1995, was to replace three guardrail support posts at a location
near the Okeechobee bridge (Tr. 70, 86). The posts were to be replaced because they had been
installed improperly’ (Tr. 70). The job was anticipated to take less than a hour (Tr. 56, 91). The
support posts were located in the median along the southbound side of the turnpike (Exh. C-l;
Tr. 85). There were four southbound lanes with a posted speed limit of 65 m.p.h. (Tr. 23,79, 85).
According to the compliance officer, the median was 47 feet wide, and the section of guardrail
measured 21 inches high by 366 feet long. It was located 9 feet from the nearest traffic lane (Exh.
C-l ; Tr. 19-20). It was adjacent to the area which motorists use for emergencies as designated by
the yellow line (Exh. C-l). The amount of traffic on the turnpike was described as a normal rush
hour (Tr. 80).
To replace the posts, a crew of five Sunshine employees under the supervision of Alfred
Green, foreman/field supervisor, arrived at a bridge near the worksite at 8:30 a.m (Tr. 96, 102,105).
Their equipment included a backhoe, a truck and trailer to transport the backhoe, a post pounding
machine, and a pickup truck (Tr. 66). After locating the DOT engineer, Green was informed that
N. S. Marine had returned to Orlando and had not installed any MOT signage and devices
(Tr. 91-92). Green testified that the DOT engineer told him to proceed in replacing the posts as
quickly as possible and to stay behind the guardrail (Tr. 92). Work on the posts started around
9:30 a.m. (Tr. 96, 103).
Before replacing the posts, the crew placed ten to twelve orange road cones in front of the
guardrail which they happened to have on their trucks. The cones were 3 feet high (Tr. 95). Also,
the employees wore safety vests, worked inside the guardrail area, and turned on the trucks’ yellow
flashing lights (Tr. 93; also see Prehearing Conference Order). There were no traffic signs posted
(Tr. 23,33, 100). With the DOT engineer present, the crew began replacing the three support posts.
The railings were unbolted, and the old support posts were removed (Tr. 79,97). While installing
the new posts, a three-car accident occurred some distance north of the worksite (Tr. 24,48,94).

     1

When originally pounded the tops of the posts became distressed (Tr. 70).

                                                3

It was around lo:30 a.m. A Lexus LS 400 lost control, crossed the guardrail and fatally struck two
employees (Tr. 87,103). The car was described as traveling 80 to 100 miles per hour (Tr. 24,48).
OSHA Compliance Officer Diaz arrived at the site at 1:55 p.m. and initiated an accident
investigation. The serious citation alleging a violation of 5 1926.2OO(g)(1) for failing to post legible
traffic signs was issued on April 19, 1996 (Tr. 10,25,32).

                                          Discussion

   To prove a violation of a safety standard such as 5 1926.2OO(g)(l), the Secretary of Labor

must prove by a preponderance of the evidence that (1) the cited standard applied; (2) there was
noncompliance with the terms of the standard; (3) there was employee exposure or access to the
hazard created by the noncompliance; and (4) the employer knew or with the exercise of reasonable
diligence could have known of the condition. Kasper Electroplating Corp., 16 BNA OSHC 15 17,
1521,1993 CCH OSHD l’j30,303 (No. 9002866,1993).

I Alleged Violation off 1926.200(@(l)

    Section 1926.2OO(g)(1) provides that “construction areas shal1 be posted with legible traffic

signs at points of hazard.” OSHA alleges that:
On or about November 22,1995, employer did not po st legible traffic
. ‘Il q * ** * .*

            signs while conducting work on tne side of the road exposing
                                                         l   ‘I   II   ..




            employees to the hazard of being struck by moving traffic.

    There is no dispute, and the record supports a finding, that the replacement of guardrail

support posts constitutes a “ construction area” within the meaning of the standard. As described
by Cheek, Sunshine’s president, the work involved updating the guardrail system to meet current
standards using specialized equipment such as a backhoe and a post pounding machine (Tr. 65-66).
The definition of “construction” includes work for “alteration and /or repair.” See definition at
5 1926.32(g). Also, the record establishes that working within 10 feet of four lanes of turnpike
traffic traveling 65 miles per hour is a “point of hazard” within 5 1926.2OO(g)(1). There were five
employees exposed (Tr. 171). The guardrail provided them little protection because the work
involved unbolting the railing and replacing the support posts.

                                                4

Further, Sun&he does not dispute that there were no traffic signs or that such signs should
have been posted. Cheek acknowledged that traEc signs should have been posted (Tr. 81). Green,
the field supervisor, agreed (Tr. 98-99). The purpose of such traffic signs was to warn motorists of
the construction work along the highway (Tr. 23). A “sign” is defined by the Secretary as “the
warnings of hazard, temporarily or permanently affixed or placed, at locations where hazards exist.”
See 8 1926.203(b). Cheek testified that, based on similar work done prior to the accident, he would
have expected four traffic signs posted on either side of the road announcing “Construction Ahead”
The signs would have been placed at 1,500 and l,OOO-footintervals from the worksite (Tr. 84).
Thus, noncompliance with $ 1926.200(g)(l) and employee exposure are established.
Also, as an element of his burden of proof, the Secretary must show that Sunshine knew or
should have known of violative condition which in this case was failure to post traffic signs. Bland
Constr. Co., 15 BNA OSHC 1031, 1032, 1991-93 CCH OSHD 7 29,325, p. 39,392 (No. 87-992,
1991). On the day of the accident, Green was Sunshine’s designated supervisor of the crew (Tr. 7 1,
82-83). He was responsible for their safety and health (Tr. 96,98). Upon arrival at the site, Green
testified he was informed that traffic signs were not posted. Also, he knew that traffic signs were
needed (Tr. 91-92,99). Green’s knowledge as a supervisor is imputed to Sunshine. A. P. O’Horo
Co., 14 BNA OSHC 2004, 2007,199l CCH OSHD 7 29,223 (No. 85.369,199l) (employee who
has been delegated authority over other employees is considered a supervisor whose actual or
constructive knowledge of violative conditions can be imputed to the employer). An employer is
chargeable with knowledge of conditions which are known to its supervisory personnel. AL.
Baumgartner Constr., Inc., 16 BNA OSHC 1995,1998,2000,1994 CCH OSHD 7 30,554 (No. 9%
1022,1994).
Therefore, having established employer knowledge, the Secretary has shown a violation of
§ 1926.200(g)(l). In fact, during closing statements, Sunshine conceded it may have technically
violated the standard (Tr. 115). However, Sunshine asserts the multi-employer worksite defense (Tr.
115).
 II. Multi-Employer Worksite Defense

        Sunshine asserts that under the precedent of the Anning-JohnsonlGrossman                rule,* it
established the multi-employer worksite defense. The defense requires an employer, who did not
create or control the violative condition, to establish that alternative protective measures were used
or were unavailable. The burden of establishing each element of the defense rests with Sunshine.
Specifically, to prove the multi-employer worksite defense, Sunshine must prove by a preponderance
of the evidence that (1) it did not create the hazardous condition; (2) it did not control the violative
condition such that it could have realistically abated the condition in the manner required by the
standard; and (3) it took reasonable alternative steps to protect its employees or, with the exercise
of reasonable diligence, was not aware that the violative condition was hazardous. Capform, Inc.,
16 BNA OSHC 2040,2041,1994          CCH OSHD 7 30,589, p. 42,355.56 (No 9101613,1994).


A. Create and Control qf the Hazard.

       N.S. Marine, as general contractor, was responsible for the placement of all MOT devices
and signs, including the traffic signs required by 5 1926.2OO(g)(1). By not placing the traffic signs
on November 22, N.S. Marine created the violative condition. Therefore, Sunshine did not create
the hazardous condition.
       Also, Sunshine asserts it did not control the worksite. The Florida DOT contract provides
that “all work shall be done to the satisfaction of the engineer” (Tr. 74). The contract further
required that “the contractor shall at all times have on the work site as his agent a competent

. superintendent . . . who shall receive the instructions from the engineer” (Tr. 75). According to
Cheek, the DOT engineer has the authority to direct the work, accept or reject work, and order
people off the worksite (Tr. 76). It was the engineer who told Green that the crew could work behind
the guardrail and that traffic signs were not needed (Tr. 92). Cheek testified he expected his
employees to follow the directions of the engineer and, if not, they could be fired (Tr. 78). Thus,
Sunshine argues that the DOT controlled the worksite condition.

         *Arming-Johnson CO., 4 BNA OSHC 1193,1975-76 CCH OSHD 7 20,690 (No. 3694, 1976); Grossman
Steel & Aluminum Corp., 4 BNA OSHC 1185, 1975-76 CCH OSHD 7 20,691 (No. 12775, 1976).

                                                   6

However, the record does not show that Sunshine lacked control. The DOT may have control
over the completed work and the operation of the turnpike. However, there is no evidence that the
DOT engineer assumed control over the safety of Sunshine’s employees or work conditions. Cheek
acknowledged that the contract provided that “any subcontractor shall not require any laborer
employed in the performance of this contract to work in surroundings or under working conditions
which are unsanitary, hazardous, or dangerous to his or her health or safety” (Tr. 82). It is well
settled that an employer may not contract away its statutory responsibilities under the Act which
include the safety of its own employees and compliance with the standard. Baker Tank Co./AZtech,
A Div. Of Justiss Oil Co., 17 BNA OSHC 1177, 1180 (No. 904786S, 1995). There is no
evidence that the engineer required the work to be done that day or prohibited the posting of traffic
signs. According to Green, the DOT engineer merely told him the following:
And, he told me that we’re working behind the guardrail; that we wouldn’t really need MOT.
Not that we didn’t need it, but he said he felt that we could get behind the guardrail and do
it. (Tr. 92)

The engineer’s statement does not show he was ordering the work without the signs. Neither the
DOT contract nor Sunshine’s subcontract was made part of the record. Also, the DOT engineer did
not testify. There was no showing that Sunshine could not have enforced the posting of traffic signs
as required by its subcontract. See Central of Georgia Railroad v. OSHRC, 576 F.2d 620,624 (5th
Cir. 1978).
Therefore, the record ftils to establish that Sunshine lacked control over the worksite. Both
Green and Cheek, Sunshine’s president, testified traffic signs were necessary at the site. However,
Sunshine continued the work without requiring the posting of the necessary signs.

B. Sunshine’s Alternative Measures

   As another element of the multi-employer worksite defense, Sunshine must also show that

it took reasonable alternative steps to protect employees. Reasonable measures may fall short of full
compliance with the standard because “what is realistic depends upon a balance of the hazard
involved with considerations of efficiency, economy, and equity.” Hayden Electric Servs., 4 BNA
OSHC 1494, 1495,1976-77 CCH OSHD 7 20,939, p. 25,149 (No. 4034, 1976). The efforts must

                                              7

be realistic, effective and reasonable. The focus is on what is reasonable, not what is possible. See
Electric Smith Inc. v. Secretary of Labor, 666 F.2d 1267, 12‘73-74 (9th Cir. 1982). The employer’s
conduct must be viewed in its totality and in terms of “whether a reasonable employer wm,dd have

done more” under the circumstances. Capform, Inc., 16 BNA OSHC at 2042. This must be decided
on a case-by-case basis.
Sunshine asserts that its reasonable measures to protect employees included having
employees working inside the guardrail, wearing safety vests, placing orange road cones in front of
the guardrails, and turning on the trucks' yellow flashing lights. Also, Sunshine notes that the work
was expected to take less than a hour to complete (Tr. 91).
However, these measures were at the immediate area of the worksite and not displayed to
give motorists advance warning of the work. As described by the compliance officer and Cheek,
the purpose of traffic signs in this case was to warn motorists in advance of the construction work
being performed. Cheek testified there should have been four signs warning motorists of
“Construction Ahead” placed at 1,500 foot and l,OOO-footintervals from the worksite (Tr. 84).
Green acknowledged the cones were not a substitute for traffic signs (Tr. 98). None of the measures
taken by Sunshine were shown to provide advance warning to motorists.
Also, the record ftils to show that Sunshine complained, objected, or attempted to delay the
work until traffic signs were posted. A complaint to the DOT engineer should have been Sunshine’s
initial reaction. Green knew the signs should have been posted but merely accepted the engineer’s
statement that they could work behind the guardrail without posting the signs (Tr. 92). There is no
evidence that Green objected or even questioned the engineer’s statement. The railing would not
protect employees because it was unbolted and the posts were being replaced. There is no showing
that the engineer ordered the work to be done at that time or threatened action if not completed. The
court concludes that a reasonable employer would have, at the minimum, complained and requested
that the contract with N.S. Marine be enforced. Contractors have an obligation at the very least to
request the employer that does have control to provide the protection. See Simpson, Gumpertz &
Heger Inc., 15 BNA OSHC 185 1, 1859, 1991-93 CCH OSHD fi 29,828, p. 40,672 (No. 89-1300,
1992); Lewis & Lambert Metal Contractors, Inc., 12 BNA OSHC 1026,1030,1884-85 CCH OSHD
127,073, p. 34,899 (No. 8005295S, 1984).
 Alternatively, Sunshine failed to show it could not have delayed the work until it obtained
the signs from its own offices. Sunshine has been in the guardrail construction business since 1978
and presumably has the necessary signs. In its closing statement, Sunshine noted it did not bring its
MOT because N.S. Marine should have placed it (Tr. 116). There is no evidence that Green
requested delaying the work until the signs were obtained.
Also, some measures such as safety vests and turning on the truck’s yellow flashing lights
may be the normal practice even if the traffic signs had been posted. If such measures were normally
taken, regardless of the lack of posted traffic signs, they would not be considered alternative
measures. Thus, it is concluded that Sunshine’s efforts did not constitute reasonable alternative
protective measures. Balancing the degree of hazard with the measures taken, Sunshine failed to
exercise reasonable care and diligence to protect its employees.
Accordingly, the multi-employer defense is not established.

III. Serious ClassiJication

   If a violation is found, Sunshine argues that the violation is not serious. In determining

whether a violation is serious under 5 17(k) of the Act, “the issue is not whether an accident is likely
to occur; it is rather, whether the result would likely be death or serious harm if an accident should
occur.” Whiting-Turner Contracting Co., 13 BNA OSHC 2155,2157, 1989 CCH OSHD 7 28,501,
p. 37,772 (No. 87-1238, 1989).
As noted, the purpose of posting traffic signs in this case was to warn motorists of
construction work being done along the turnpike. The failure to post the signs made an accident
possible. If an accident did occur, the most likely consequence would be deafh or serious physical
harm. However, in this case, there is no evidence that the automobile accident on November 22,
1995, would have been prevented by posting traffic signs or was caused by the failure to post them.
Regardless, the employer’s duty to comply with a standard is not dependent on whether a failure to
comply has or has not been the cause of injuries. The Act may be violated even though no injuries
have occurred, and even though a particular instance of noncompliance was not the cause of the
injuries. Concrete Construction Corp., 4 BNA OSHC 1133, 1135, 1975-76 CCH OSHD 7 20,610,
p. 24,664 (No. 2490, 1976).
 Accordingly, a serious violation of S,1926.2OO(g)(1) is established.

IE Penalty

    The Commission is the final arbiter of penalties in all contested cases. Under § 17(j) of the

Act, in determining an appropriate penalty, the Commission is required to consider the size of the
employer’s business, history of previous violations, the employer’s good faith, and the gravity of the
violation. The gravity of the violation is the principal factor to be considered.
OSHA proposed a $1,000 penalty on the basis of giving Sunshine maximum credit for size,
no credit for history and good faith, and a finding that the gravity of the violation was high. The.
court agrees that proper credit for size was given in that Sunshine is a small employer with
eleven employees (Tr. 28). Also, history was properly considered in that Sunshine received a
serious citation in 1994 (Tr. 29,33,49). However, the court finds no evidence to support the lack
of credit for good faith. Sunshine appeared fully cooperative during the inspection. The compliance
officer acknowledged that Sunshine’s safety training program was above average and that it had
other safety programs as well (Tr. 39). Further, Sunshine made an attempt to reduce the hazard to
employees. Therefore, a 20 percent credit for good faith is appropriate.
Also, the court finds the degree of gravity to be moderate. The job was to take less than an
hour to complete. The employees were working off the side of the highway and inside the guardrail
area. They were not exposed to direct traffic. The employees were wearing safety vests; orange
cones were placed outside the guardrail; and the trucks displayed yellow warning lights. The
accident in all likelihood would have occurred even if the signs had been posted.
Accordingly, the court finds a penalty of $500 reasonable.

                                FINDINGS OF FACT AND
                                 CONCLUSIONS OF LAW

    The foregoing decision constitutes the findings of fact and conclusions of law in accordance

with Rule 52(a), Federal Rule of Civil Procedure.

                                              10

ORDER

   Based upon the foregoing decision, it is hereby ORDERED:
   Item 1 of Citation No. 1, alleging ,a serious violation of 5 1926.2OO(g)(1), is affirmed and a

penalty of $500 is assessed.

Date: September 19, 1996

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