After excavation and the installation of pipes, Brubacher covered the trench and began paving. These operations ran a total of four days beginning on May 31, 2017 and completed on June 5, 2017. The work took place within the northbound lane and shoulder of Pottstown Pike, a multi-lane roadway. A traffic control plan had been approved by the Pennsylvania DOT to shift traffic from the northbound lane into the middle lane, which was typically a turning lane. The speed limit was not altered for vehicles traveling north and southbound, and remained 45 miles per-hour. Cones were placed as barriers for northbound and southbound vehicles, while one flagger worked on the north end of the jobsite and another worked on the south end to alert drivers of the changed traffic pattern.

Brubacher retained Flagger Force for implementation of the traffic control plan as it provides traffic control services and had a long-standing relationship with Brubacher. On May 31, a Brubacher supervisor, David Duda, met with Flagger Force employees to advise of his crew’s activities and the location of their work. As work began that day, Mr. Duda travelled the entire area of the site to ensure that the three sets of advance warning signs were properly in place as set up by Flagger Force’s employees. Specifically, the warning signs were set-up at three locations: the northbound side of Pottstown Pike; the southbound side of Pottstown Pike; and along the Route 322 exit ramp, which connected another roadway to a portion of Pottstown Pike that was near the worksite at approximately 250 feet.

Mr. Duda completed a Safety Observation Compliance Form as he typically does on the first day of any of his projects to ensure nothing was overlooked. Slight changes were made by Mr. Duda in consultation with the Flagger Force employees in the first three days of the project to improve traffic flow. During these three days, the same employees from Flagger Force were present, consisting of a crew leader and a crew member. On the last day of the project, June 5, two different employees were sent. Despite consultations with Mr. Duda, these employees only set-up warning signs on the northbound side of Pottstown Pike, the area closed to the paving work but not on the southbound side nor on the exit ramp as had been done on the three prior days. After about two hours of work, a car traveling in the northbound lane failed to adhere to the traffic control pattern and struck one of the Flagger Force employees, seriously injuring him.

OSHA was notified of the incident and after conducting an investigation involving the interview of various Brubacher and Flagger Force representatives as well as receipt of investigative materials from the local police investigation, issued citations against Flagger Force under the relevant safety standard § 1926.200(g)(1) which currently provides that:

“At points of hazard, construction areas shall be posted with legible traffic control signs and protected by traffic control devices.” OSHA cited a violation of the safety standard in the failure to provide at least one advance warning sign for motorists approaching the worksite from two directions, the exit ramp linking Pottstown Pike to Route 322 and the southbound lane. To satisfy the standard, companies must convey that work is taking place, provide information about the roadway conditions, and information about how traffic can move through the temporarily revised traffic pattern.

As to the southbound lane, although the traffic control plan did not require a full lane shift for southbound traffic, the lane was partially obstructed. Mr. Duda testified the traffic pattern required a two-foot diversion for southbound traffic, and if motorists were not aware of the diversion they could cross into the northbound lane. Moreover, the traffic control plan required the placement of cones along the middle turn lane so if a vehicle were to strike one of these cones it could act as a projectile, causing injury.

Mr. Duda testified that due to all these reasons, a “flagman ahead” sign should have been present both on the north and southbound sides and, as further confirmed by Flagger Force’s own policies, mandating the need of advance warning signs. These signs were in fact present on the first three days of work. Similarly, the Route 322 exit ramp, had two signs indicating “work area ahead” and “flagmen ahead” for the first three days. Under these circumstances, the Administrative Law Judge confirmed that the Secretary (of Labor) met its burden as against Flagger Force showing the cited standard applied, the standard was violated, the employer knew or should have known the violative condition and employees were exposed to the condition.

However, Flagger Force was also able to establish the defense of unpreventable employee misconduct by showing that it had established work rules designed to prevent the violative condition from occurring, adequately communicated those rules to employees, took steps to discover violations of those rules, and effectively enforced those rules when violations were discovered. Flagger Force had a specific written work rule and in fact its first “fundamental principle” of flagging was to have advance warning signs in place.

Flagger Force had general safety rules in place and its employee handbook, received at the commencement of their employment, set forth that employees are to follow the procedures learned in training and any violation of the safety rule was “prohibited and could lead to termination.”

Flagger Force incorporated its work rules in a comprehensive training program consisting of a four-hour training course and passing a written exam, in addition to a six-hour orientation program. Employees had to re-take the four-hour course every four years.

Under all the circumstances considered, the ALJ found that Flagger Force could not have anticipated a “potential departure” from its training program and established work rules, and it vacated the citation. 

About the author: Costas Cyprus is an attorney practicing construction law and commercial litigation with Welby, Brady & Greenblatt, LLP, in White Plains, NY. He can be reached at 914-428-2100 and at ccyprus@ wbgllp.com. The articles in this series do not constitute legal advice and are intended for general guidance only.