The governor’s statement reaffirms the need for the public at large to drive responsibly, including at slower speeds in work zones. However, construction companies must also continue to take all necessary steps to protect their workers because work-zone safety is a mission-critical task.

The recent decision in Secretary of Labor v. Williams Bros. Constr. Co., arising from roadway operations in Texas, is illustrative of the operations that companies must undertake to ensure their workers are safe and protected on job sites. William Brothers Construction Co. Inc., (WB) is a large highway construction company staffed with some 2,000 employees; 95% of its contracts are with the Texas DOT.

On Oct. 29, 2021, WB was preparing to open new traffic lanes involving intersections of certain highways in Houston. WB needed to close-off approximately a two-to-three-mile stretch of Interstate I-69 so that its crews could remove temporary concrete barriers that had been previously placed to block off public traffic.

After the barriers were removed, a subcontractor removed existing road stripes and “re-striped” the lanes. WB had begun closing the portion of the highway at 9 p.m. and had largely completed the task by 10:30 p.m. Once that portion was closed, the concrete barriers were removed so that the re-striping could commence. On the same portion of the highway, near the gore point—that area of space between a travel lanes and an off-ramp, typically triangular in shape—of I-610 North and South, a WB employee was cleaning up debris when at some point after midnight (Oct. 30), a vehicle entered the enclosure and struck three workers, two workers employed by the sub-contractor and one employed by WB who sustained hip and rib fractures.

OSHA investigated a few days later, consisting of interviews as the work-site enclosure no longer existed. OSHA subsequently issued a Citation for violation of the general duty clause, which requires that employers furnish a workplace free from recognized hazards (here struck-by hazards) that may cause or are likely to cause death or serious harm.

OSHA’s citation provided that feasible methods of abatement existed including means in accordance with certain portions of Traffic Control Plans developed by the Texas DOT, including the following:

• Position two shadow vehicles with a Truck Mounted Attenuator (TMA) and high intensity rotating, flashing, oscillating, or strobing lights 30 feet to 100 feet in advance of crew exposure;
• When the work zone is moving, operating the shadow vehicle so that it is positioned 30 feet to 100 feet in advance of the crew’s work area.

Based on the submitted evidence, the Administrative Law Judge agreed with WB that this was not a “moving” work zone as activities were taking place within an enclosure, behind barrels so that this proposed abatement method was inapplicable.

Here, WB undertook multiple measures to address struck by hazards from active traffic at worksites. These measures included all workers wearing protective vests, flashing arrow boards, multiple types of warning signs, orange barrels for tapered lane closures, periodic placement of off-duty police officers, with flashing red/blue lights, including two officers in the vicinity of where this incident occurred. Moreover, WB used at least one TMA near the incident area. The TMA is a cushion-like equipment designed to absorb energy if struck by a vehicle. The TMA is attached to a “shadow vehicle” typically a flatbed truck with a flashing arrow mounted on its top, which combined is called a “crash truck.” The crash truck provides additional protection to workers from stray vehicles.

WB also required training for its employees on struck-by hazards. At least two of WB’s supervisors on the project as well as the supervisor’s helper were trained offsite on traffic control by a course provided by the “Texas A&M Engineering Extension Service” pertaining to the use of temporary traffic controls and the application of Texas DOT’s Standard Sheets (issued by DOT modifying/clarifying the use of traffic control devices as generally described in Texas’ Manual of Uniform Traffic Control Devices). WB’s supervisors also trained all employees on traffic control, including a “work-zone class and orientation,” viewing training videos from the DOT regarding work-zone training, and receiving copies of WB’s Safety Manual.

The ALJ found that the Secretary failed to meet its burden to show the methods that WB used were inadequate and thus, the Citation was dismissed. The ALJ found that the Secretary failed to establish why two shadow vehicles with TMAs would have been necessary instead of one under these circumstances, nor that the truck’s placement approximately 400 feet from the incident site was improper because it would have interfered with on-going re-striping operations.

Notwithstanding the dismissal, however, the ALJ commented that WB lacked adequate documentation regarding monitoring compliance of its work rules and disciplining its employees for violations.

About the author: Costas Cyprus, Esq., practices construction law and commercial litigation with Welby, Brady & Greenblatt, LLP, in White Plains, NY. He can be reached at 914-428-2100 or [email protected]. Articles in this series do not constitute legal advice and are intended for general guidance only.