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. 18-0758 

ROADSAFE TRAFFIC SYSTEMS, INC., 

Respondent. 

ON BRIEFS:

Ronald J. Gottlieb, Attorney; Heather R. Phillips, Counsel for Appellate Litigation; Edmund C. 

Baird, Associate Solicitor for Occupational Safety and Health; Kate S. O’Scannlain, Solicitor of 

Labor; U.S. Department of Labor, Washington, DC 

For the Complainant

Merritt B. Chastain, III, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Houston, TX 

 For the Respondent 

DECISION

Before: ATTWOOD, Chairman; and LAIHOW, Commissioner. 

BY THE COMMISSION:

RoadSafe Traffic Systems, Inc., is a road construction company that provides traffic 

control, pavement marking, and pavement striping services. On November 14, 2017, a RoadSafe 

employee was struck and killed by a company vehicle while installing raised reflectors on a 

highway near Devers, Texas. Following the incident, the Occupational Safety and Health 

Administration conducted an inspection and issued RoadSafe a citation alleging a serious violation 
2 

of the Occupational Safety and Health Act’s general duty clause, 29 U.S.C. § 654(a)(1),1 for 

exposing employees working from the back of a moving vehicle to fall hazards.2

Following a hearing, Administrative Law Judge Sharon D. Calhoun affirmed the violation

and assessed the proposed $12,675 penalty. For the following reasons, we affirm.

BACKGROUND

On November 14, 2017, a crew of four RoadSafe employees was replacing damaged or 

defective raised reflectors along a seven-mile stretch of a four-lane highway.3

 To install the 

replacement reflectors, the crew implemented a “rolling lane closure” that consisted of a threevehicle convoy designed to create a buffer between the convoy’s lead truck, from which the 

installation work was performed, and passing motorists. All three convoy vehicles traveled in the 

highway’s right lane adjacent to live traffic in the left lane. 

Foreman Alex Garcia drove the lead truck, the bed of which contained boxes of new 

reflectors and a machine that heated the quick-drying tar used to adhere the reflectors to the road. 

Leonard Mulero followed behind Garcia in another truck with a trailer, and behind him was a third 

truck driven by Oscar Bautista that was equipped with a rear-mounted attenuator designed to 

absorb the potential impact of a vehicle from behind. The fourth crew member, J.H., rode in the 

bed of the lead truck and was tasked with installing new reflectors as the convoy proceeded down 

the road. He sat on the edge of the truck’s bed with his feet on the truck’s lift gate, which was 

lowered so it was about eighteen inches from the ground. Whenever Garcia found a spot where a 

reflector had been removed, he would stop the lead truck slightly past the missing reflector and 

J.H. would exit from the rear of the truck bed, place hot adhesive on the road, and install a new 

reflector. After installing each reflector, J.H. sat back down on the edge of the truck’s bed and the 

convoy continued to the next missing reflector. 

1 The general duty clause provides that “[e]ach employer . . . shall furnish to each of his employees 

employment and a place of employment which are free from recognized hazards that are causing 

or are likely to cause death or serious physical harm to his employees.” 29 U.S.C. § 654(a)(1).

2 The Secretary initially issued RoadSafe a two-item citation alleging serious violations of 29 

C.F.R. § 1926.601(b)(2)(ii) and 29 C.F.R. § 1926.601(b)(8). The Secretary subsequently amended 

the citation to allege in the alternative two separate violations of the general duty clause. Before 

the hearing, the Secretary withdrew Item 1 in its entirety and pursued Item 2 only with respect to 

the general duty clause violation. 

3

 That morning, the crew had walked the stretch of highway and removed the reflectors they were 

replacing at the time of the incident. 
3 

All three vehicles drove at a speed of around five to twelve miles per hour between reflector 

stops and all three drivers were instructed to maintain a distance of around 200 feet between each 

truck to prevent passing motorists from entering the right lane. At some point, however, the second 

driver, Mulero, fell behind the lead truck and accelerated to catch up. Mulero was unable to stop 

his truck in time to avoid a collision with the lead truck even though he swerved into the left lane. 

He hit the lead truck and struck J.H., killing him. 

DISCUSSION

To prove a violation of the general duty clause, the Secretary must establish that: (1) a 

condition or activity in the workplace presented a hazard; (2) the employer or its industry 

recognized the hazard; (3) the hazard was causing or likely to cause death or serious physical harm; 

and (4) a feasible and effective means existed to eliminate or materially reduce the hazard. 

Arcadian Corp., 20 BNA OSHC 2001, 2007 (No. 93-0628, 2004). The Secretary must also show 

that the employer knew or, with the exercise of reasonable diligence, could have known of the 

hazardous condition. Tampa Shipyards, Inc., 15 BNA OSHC 1533, 1537 (No. 86-0469, 1992). 

Here, the judge found that the Secretary established each element of the alleged violation and that 

RoadSafe had actual knowledge of the hazardous condition. On review, RoadSafe challenges the 

judge’s findings with respect to hazard, recognition, and abatement.4

 

I. Hazard 

“To prove that a condition presents a hazard under the general duty clause, the Secretary is 

required to show that . . . employees [were exposed] to a ‘significant risk’ of harm.” A.H. Sturgill 

Roofing, Inc., 27 BNA OSHC 1809, 1810-11 (No. 13-0224, 2019) (quoting Beverly Enters., Inc., 

19 BNA OSHC 1161, 1170-72 (No. 91-3144, 2000) (consolidated)). The existence of a hazard is 

established “if the hazardous incident can occur under other than a freakish or utterly implausible 

concurrence of circumstances.” Waldon Health Care Ctr., 16 BNA OSHC 1052, 1060 (No. 89-

2804, 1993) (citing Nat’l Realty & Constr. Co. v. OSHRC, 489 F.2d 1257, 1265 n.33 (D.C. Cir. 

1973)). 

4 RoadSafe does not dispute the judge’s findings that falling from a moving vehicle was likely to 

cause death or serious physical harm, or that RoadSafe had actual knowledge of the hazardous 

condition. 
4 

 The Secretary alleges that RoadSafe’s employees were exposed to fall hazards while 

working from the back of a moving vehicle.

5

 The judge found that the Secretary established the 

existence of the alleged hazard because a RoadSafe employee used the lowered lift gate “as a 

staging area or platform” as he rode in the bed of the moving truck. On review, RoadSafe 

principally argues that the Secretary failed to prove a hazard existed because the company took 

adequate steps to ensure its employee was protected from falling while engaged in this work. 

According to RoadSafe, those steps included requiring: (1) the lead truck to move slowly in the 

work zone; (2) the employee to be seated in the truck bed with both feet firmly on the lift gate; and 

(3) the employee to hold onto the lift gate’s chain, which was covered with cloth. In addition, the 

company asserts that there is a material difference between “riding on the back of a vehicle for 

transportation purposes”—which the company does not dispute poses a fall hazard—and “working

from the back of a vehicle” with the above precautions—which the company claims does not. 

As an initial matter, we note that the basis for the alleged violation is not the fatal incident 

itself, but RoadSafe’s practice of allowing J.H. to work from the bed of a moving truck without 

fall protection. Indeed, the Commission has made clear that “[e]ven though an accident may occur 

because of unforeseeable events, a violation of the general duty clause may exist if the employer 

failed to take precautionary steps to protect its employees from the occurrence of the general 

hazard . . . .” Gen. Dynamics Corp. v. OSHRC, 599 F.2d 453, 459 (1st Cir. 1979); see also Bomac 

Drilling, 9 BNA OSHC 1682, 1691-92 (No. 76-450, 1981) (consolidated) (“Under section 5(a)(1) 

case law, the ‘hazard’ that must be ‘recognized’ is not a particular set of circumstances at a specific 

location and specific point in time but rather the broader, more generic or general hazard.”) 

(overruled on other grounds by U.S. Steel Corp., 10 BNA OSHC 1752, 1757 (No. 77-1796, 1982)). 

Moreover, as to RoadSafe’s initial argument that it took adequate steps to ensure J.H. was 

protected from falling, we find that this contention conflates the hazard element of the alleged 

5 Although not raised by RoadSafe on review, we note that the Secretary adequately defined the 

alleged hazard “in a way that apprises the employer of its obligations, and identifies conditions 

and practices over which the employer can reasonably be expected to exercise control.” Arcadian 

Corp., 20 BNA OSHC at 2007 (citing Pelron Corp., 12 BNA OSHC 1833, 1835 (No. 82-388, 

1986)). Indeed, although the citation focuses on the use of the lift gate as a work platform, the

parties litigated the alleged hazard as RoadSafe’s general practice of allowing employees to work 

from the back of a moving vehicle. Mid South Waffles, Inc. d/b/a Waffle House #1283, 27 BNA 

OSHC 1783, 1785 & n.5 (No. 13-1022, 2019) (noting that the parties agreed on the hazard being 

litigated). 
5 

general duty clause violation with the abatement element. See, e.g., Peacock Eng’g, Inc., 26 BNA 

OSHC 1588, 1590 (No. 11-2780, 2017) (“The efficacy of [the employer’s] work methods in 

avoiding injury . . . is a separate inquiry from whether an alleged hazard was present.”). The steps 

RoadSafe alleges it took to address the cited hazard are relevant to whether the Secretary 

established a feasible means of abatement, but they do not bear on whether the cited conditions 

constituted a hazard. Id. Indeed, by pointing to the steps it allegedly took to mitigate the fall 

hazard, RoadSafe is in effect acknowledging its existence. 

As for RoadSafe’s other claims, we find that they lack merit. First, several RoadSafe job 

safety analyses (JSAs) identify and seek to address fall hazards when working from moving 

vehicles. Two JSAs for the Installation of Recessed Pavement Markers, which RoadSafe also 

applied to the installation of raised reflectors, list “Fall hazard” as a “Potential Health and Injury 

Hazard.” And the company’s JSA for applying pavement markings likewise identifies “Falls” as 

a hazard, while the JSA for Short Duration Work additionally directs that “[t]here shall be NO 

riding on back of tail or lift gates at any time.” 

Second, RoadSafe Chief Operating Officer Glenn Thompson corroborated that fall hazards 

are present when working from or riding in the back of a moving vehicle. Thompson explained 

that RoadSafe prohibited riding in the back of a truck because it “subjects an employee to risks 

from either . . . falling out of a vehicle, or if the vehicle’s involved in a motor vehicle accident, 

people would be ejected from the back of a vehicle.” When asked about the dangers of working 

on a highway adjacent to live traffic, Thompson stated, “[i]t’s considered to be dangerous and 

risky, because you never know what the motorist is going to do.” We therefore reject RoadSafe’s 

attempt to distinguish between riding and working in the back of a moving vehicle because 

Thompson’s testimony, taken together with Roadsafe’s JSAs, establishes that fall hazards are 

present in both situations. 

Finally, we note that RoadSafe’s safety manual, which cites to a standard from the 

American National Standard Institute (ANSI), identifies falling from a moving vehicle as a hazard 

that should be addressed when performing specific tasks from the back or side of the vehicle: 

Co-workers shall only ride on the back of vehicles if [they] compl[y] with ANSI 

standard A10 47-2015 4.5.4: 

Employees placing traffic cones, barrels, and other channeling devices onto the 

roadway from the back or side of a moving vehicle shall be protected by perimeter 
6 

protection or a fall restraint system. The personal fall restraint system shall be set 

up so that an employee cannot fall off the vehicle or strike the pavement. 

At no time shall any co-worker be outside of the perimeter protection of a moving 

vehicle. . . . 

Although the ANSI standard itself does not address the specific work at issue here, we find that 

the company’s safety manual is nonetheless consistent with Thompson’s testimony about the 

existence of a fall hazard whenever an employee is working in the back of a moving vehicle. 

For all these reasons, we find the Secretary established that a fall hazard existed and that 

RoadSafe’s employees were exposed to a significant risk of harm. 

II. Recognition 

Hazard recognition may be shown by proof that “a hazard . . . is recognized as such by the 

employer” or by “general understanding in the [employer’s] industry.” Otis Elevator Co., 21 BNA 

OSHC 2204, 2207 (No. 03-1344, 2007) (quoting Kokosing Constr. Co., 17 BNA OSHC 1869, 

1873 (No. 92-2596, 1996)). An employer’s work rules may establish recognition of a hazard under 

the general duty clause. Id.; Ted Wilkerson, Inc., 9 BNA OSHC 2012, 2016 (No. 13390, 1981). 

The Commission is reluctant, however, to rely solely on an employer’s safety precautions to find 

recognition absent other “independent evidence.” See Mid South Waffles, Inc. d/b/a Waffle House 

#1283, 27 BNA OSHC 1783, 1789 (No. 13-1022, 2019) (citing Pepperidge Farm, Inc., 17 BNA 

OSHC 1993, 2007 (No. 89-0265, 1997)); Cotter & Co. v. OSHRC, 598 F.2d 911, 914-15 (5th Cir.

1979). Thus, the Commission has found recognition where, in addition to the employer’s safety 

precautions, a supervisor also recognized the hazard. See Mid South Waffles, 27 BNA OSHC at 

1789 (imputing executive’s knowledge of fire hazard to establish employer’s hazard recognition); 

Mo. Basin Well Serv., Inc., 26 BNA OSHC 2314, 2318 (No. 13-1817, 2018) (imputing supervisor’s 

recognition of hazard to employer); Peter Cooper Corps., 10 BNA OSHC 1203, 1210 (No. 76-

596, 1981) (imputing general manager’s knowledge of hazard to establish employer’s hazard 

recognition). 

The judge found that RoadSafe recognized the cited fall hazard based on the company’s 

various safety policies, as well as Chief Operating Officer Thompson’s testimony about the 
7 

hazards associated with riding in the bed of a moving truck amid traffic.6 On review, RoadSafe 

reiterates essentially the same arguments it made with respect to the hazard element—that the 

company did not recognize the fall hazard because of the precautions it took to mitigate the hazard. 

As explained above, this argument conflates the recognition element with that of abatement. See 

Peacock Eng’g, Inc., 26 BNA OSHC at 1590. 

We agree with the judge that RoadSafe’s safety manual and JSAs, together with 

Thompson’s testimony, establish the company’s recognition of a fall hazard. As noted, 

RoadSafe’s safety manual and JSAs identify fall hazards and purport to address them. The JSAs 

also limit the work that employees can perform from the back of a moving vehicle, and when work 

is allowed, they require the vehicle to be equipped with safety measures like perimeter protection 

or grab bars. As mentioned above, Thompson, who previously served as the company’s vice 

president in charge of safety compliance, confirmed that working on a highway adjacent to live 

traffic is “considered to be dangerous and risky, because you never know what the motorist is 

going to do.” He further explained that in the event of a motor-vehicle accident, “people would 

be ejected from the back of a vehicle.” As RoadSafe’s Chief Operating Officer, Thompson’s

recognition of the hazard is imputed to RoadSafe. See Mid South Waffles, 27 BNA OSHC at 1788; 

Caterpillar, Inc., 17 BNA OSHC 1731, 1732 (No. 93- 373, 1996) (applying agency law’s longstanding principle that corporation is charged with knowledge of its agents), aff’d, 122 F.3d 437 

(7th Cir. 1997). 

Accordingly, we find the Secretary established RoadSafe’s recognition of the cited fall 

hazard. 

III. Abatement

To establish the abatement element, the Secretary must “demonstrate both that the 

measure[] [is] capable of being put into effect and that [it] would be effective in materially reducing 

the incidence of the hazard.” Arcadian Corp., 20 BNA OSHC at 2011 (citing Beverly Enters. Inc., 

19 BNA OSHC at 1190). Where an employer has taken measures to address a hazard alleged 

under the general duty clause, the Secretary must first show that those measures were inadequate. 

6

 Although argued below to the judge, the Secretary does not raise industry recognition on review. 

Accordingly, that argument is abandoned. See Ragnar Benson, Inc., 18 BNA OSHC 1937, 1938 

(No. 97-1676, 1999) (“The Commission need not review an issue abandoned by a party.”); 

Pressure Concrete Constr. Co., 15 BNA OSHC 2011, 2015 n.4 (No. 90-2668, 1992) (declining to 

reach issues not raised on review). 
8 

U.S. Postal Serv., 21 BNA OSHC 1767, 1773-74 (No. 04-0316, 2006). Finally, “[i]f the proposed 

abatement ‘creates additional hazards rather than reducing or eliminating the alleged hazard, the 

citation must be vacated for failure to prove feasibility . . . .’ ” Acme Energy Servs., 23 BNA OSHC 

2121, 2127 (No. 08-0088, 2012) (citing Kokosing, 17 BNA OSHC at 1875 n.19), aff’d, 542 

F. App’x 356 (5th Cir. 2013) (unpublished). 

In the citation, the Secretary asserts that RoadSafe could have abated the fall hazard by 

“using a trailer or vehicle specifically designed for installing reflector buttons on the freeway.”7 

The judge agreed that this proposed abatement method was both feasible and effective because 

RoadSafe owned a specialized trailer that could have been used to install replacement reflectors. 

On review, RoadSafe challenges the judge’s finding and argues (1) that the Secretary failed to 

establish its existing safety measures were inadequate and (2) that using the specialized trailer 

would expose employees to a greater hazard of being struck by passing traffic, and the Secretary 

failed to demonstrate otherwise. 

Adequacy of Safety Procedures 

Where “an employer has existing safety procedures, the burden is on the Secretary to show 

that those procedures are inadequate.” SeaWorld of Fla. v. Perez, 748 F.3d 1202, 1215 (D.C. Cir. 

2014). The Secretary may do so by demonstrating that “there was a more effective feasible means 

by which [the employer] could have freed its workplace of the hazard.” Ala. Power Co., 13 BNA 

OSHC 1240, 1243-1244 (No. 84-357, 1987) (citing Cerro Metal Prods. Div., Marmon Grp., Inc., 

12 BNA OSHC 1821, 1822 (No. 78-5159, 1986)). Alternatively, the Secretary may demonstrate 

that an employer’s existing safety procedures were inadequate by showing that the employer failed 

to properly communicate those procedures to its employees, failed to take steps to discover 

noncompliance with those procedures, or failed to effectively enforce those procedures in the event 

of noncompliance. See Ala. Power Co., 13 BNA OSHC at 1244 (citing Inland Steel Co., 12 BNA 

OSHC 1968, 1976 (No. 79-3286, 1986)). 

7

 The Secretary proposed three other alternative methods of abatement before the judge, all of 

which she rejected. On review, the Secretary does not pursue these methods or otherwise dispute 

the judge’s conclusion. Accordingly, we do not address them. See Ragnar Benson, Inc., 18 BNA 

OSHC at 1938 (“[t]he Commission need not review an issue abandoned by a party”); see also 

Pressure Concrete Constr. Co., 15 BNA OSHC at 2015 n.4 (declining to reach issues not raised 

on review). 
9 

The judge did not directly address the adequacy of RoadSafe’s existing safety measures, 

but essentially found that holding onto the lift gate’s chain for fall protection was inadequate since 

it was not supported by the company’s own safety rules and that, in fact, J.H. was not holding onto 

the chain on the day of the incident. On review, Roadsafe argues this was error because the 

Secretary failed to establish its safety procedures—traveling slowly in a convoy and having 

employees sit on the truck bed with both feet on the lift gate while holding the lift gate chain—

were inadequate to protect against the alleged fall hazard. In response, the Secretary asserts that 

the “primary failure” of RoadSafe’s procedures is that, unlike the specialized trailer, none of them

require the use of a seatbelt or straps to restrain the employee.

We find that RoadSafe’s safety procedures were inadequate when compared to the 

protection offered by the specialized trailer the company used to install new reflectors. The record 

shows that the specialized trailer has a large container in the middle that holds hot adhesive and 

there are seats at each side of the container where employees can buckle in with straps. Thus, 

employees can remain secured in the seat as they reach out to place the hot adhesive and a reflector 

onto the road, effectively eliminating the existence of a fall hazard. In short, using the specialized 

trailer for reflector replacement work is a more effective means of protecting employees from the 

fall hazard than RoadSafe’s alleged procedures. 

Roadsafe’s claims to the contrary are undermined by relevant industry documents as well 

its own JSAs. The American Traffic Safety Services Association (ATSSA) recommends in its 

Work Zone Worker Safety Field Guide that raised pavement markers be installed “from [a] special 

approved vehicle only” or “[o]n foot.” Likewise, the ANSI standard referenced in RoadSafe’s 

safety manual specifies that employees placing traffic control devices from a moving vehicle 

should have “perimeter protection or a fall restraint system.” Both documents therefore support 

the Secretary’s assertion that employees working from moving vehicles should be buckled or 

strapped in. 

In addition, even if RoadSafe had a policy of requiring its employees to hold onto the lift

gate’s chain, such a policy would conflict with its own JSAs, which direct that the company’s 

trucks be equipped with grab bars. Indeed, the 2013 JSAs for installing recessed reflectors and 

applying pavement markings allow riding on a truck’s bumper platform only “if there is a grab bar 

for the rider to hang on to.” Similarly, the 2017 version of the JSA for installing recessed pavement 

markings states that a grab bar must be “provided and fully maintained.” Finally, the 2013 JSA 
10 

for pavement marking questions the viability of using a lift gate chain, and in fact, reveals that at 

least one RoadSafe regional office rejected such a use: “Lift gates with chains . . . how many have 

chains vs other support mechanisms? Denver says no circumstance is it appropriate.” Although 

it is clear from these JSAs that RoadSafe had a policy requiring the use of a grab bar while riding 

in a work vehicle, the safety documents in no way endorse the use of a lift gate chain as a means 

of fall protection. 

Even if we were to consider holding onto a lift gate chain equivalent to holding onto a grab 

bar, the record establishes that use of the chain was not required by a company work rule nor was 

the practice adequately communicated to RoadSafe employees. When foreman Garcia was asked 

if RoadSafe advised using the chain as a handhold, he simply replied, “[n]o.” Furthermore, as the 

judge found, the record lacks credible evidence that J.H. consistently held onto the chain on the 

day of the incident.8

 Accordingly, we find that RoadSafe’s alleged policy of having employees 

hold the lift gate chain did not adequately protect them against fall hazards. See Ala. Power Co., 

13 BNA OSHC at 1244; Inland Steel Co., 12 BNA OSHC at 1976. 

For all these reasons, we conclude that the Secretary demonstrated that RoadSafe’s existing 

safety procedures were inadequate. 

Feasibility & Efficacy of Abatement

The judge found that using RoadSafe’s specialized trailer was feasible and would 

materially reduce the cited fall hazard. In reaching this conclusion, the judge rejected RoadSafe’s 

argument that using the trailer would place employees closer to the center line of the highway, 

exposing them to a greater hazard of being struck by passing traffic than riding in the back of the 

truck. On review, RoadSafe renews this argument and essentially asserts that the judge improperly 

8

 Although RoadSafe’s foreman, Garcia, testified that J.H. regularly held the lift gate chain when 

seated in the truck bed, the judge found his testimony lacked credibility based on his demeanor. 

The Commission ordinarily accepts a judge’s demeanor-based credibility determination, and we 

see no reason to disturb the judge’s finding here. Wiley Organics, Inc., 17 BNA OSHC 1586, 1595 

(No. 91-3275, 1996) (citing Waste Mgmt. of Palm Beach, 17 BNA OSHC 1308, 1309-10 (No. 93-

128, 1995)); United States Steel Corp., 9 BNA OSHC at 1644; cf. Aerospace Testing Alliance, No. 

16-1167, 2020 WL 5815499, at *5 (OSHRC Sept. 21, 2020) (“Because the injured employee’s 

testimony is internally inconsistent and contrary to the testimony of all three other operators, we 

set aside the judge’s credibility determination.”). Accordingly, we reject RoadSafe’s assertion that 

the judge erred in discrediting this testimony. 
11 

flipped the burden of proof by requiring RoadSafe to show that using the trailer posed a greater 

hazard instead of requiring the Secretary to show its use was feasible. In response, the Secretary 

argues that RoadSafe’s position is logically inconsistent, as the company already uses the 

specialized trailer on large reflector placement jobs, and contrary to industry guidance. 

We agree with the Secretary on both points. In support of its argument, RoadSafe points 

to testimony from Thompson that the company only used its specialized trailer on “long line jobs,” 

which involve “laying out two, three, or four miles of brand[-]new pavement marking reflectors” 

in a continuous sequence. Thompson averred that the trailer was not used for the safety of 

employees, but “because it allows faster production, and it allows us to get off the highway quicker, 

to make it safer for the general public, and get the roadway reopened.” Those same concerns, 

however, also support using the specialized trailer on jobs like the one at issue here, where 

RoadSafe’s crew was working on an even longer, seven-mile stretch of road. Additionally, there 

is no support in the record for Thompson’s assertion that using the trailer for intermittent work, 

like that being done on the day of the incident, would not be as fast as having an employee ride in 

the back of the truck and replace reflectors manually. In fact, his claim that the specialized trailer 

is more dangerous than riding in the back of a truck without perimeter protection directly conflicts

with ATSSA’s recommendation that a “special approved vehicle” be used to install raised 

pavement markers. 

Moreover, the evidence shows that the trailer can be pulled away from the road’s center 

line in between stops to replace missing reflectors. Indeed, when asked on cross-examination how 

close employees riding in the trailer would be to the center line, Mulero explained, “[i]t depends 

how close the driver – the lead truck is driving close to that line.” And when pressed about whether 

using the trailer forces employees to remain closer to live traffic than working from the back of 

the truck, Mulero demurred. Thus, the weight of the evidence shows that the trailer could be pulled 

closer to the center line to replace missing reflectors, then drawn away again as the convoy 

proceeds down the road, therefore limiting employee exposure to passing motorists. Accordingly, 

we find that the Secretary has satisfied his burden of rebutting RoadSafe’s assertion that using the 

specialized trailer was infeasible because it created a greater hazard to employees.9

 Cf. Kokosing, 

9 For these same reasons, we reject RoadSafe’s argument that the judge improperly shifted the 

burden to the company to demonstrate a greater hazard. 
12 

17 BNA OSHC at 1875 & n.19 (finding feasibility not established where Secretary failed to rebut 

testimony that abatement method could cause additional hazards). 

Finally, we find that this proposed abatement method was also feasible because RoadSafe 

does not otherwise dispute the trailer could have been used for this project. And because the trailer 

has straps that, as discussed above, would essentially eliminate the hazard of an employee falling, 

we also find that this proposed abatement method would be effective. Thus, we conclude that the 

Secretary has established the abatement element of the violation.10 

ORDER

For all these reasons, we affirm Serious Citation 1, Item 2, and assess the $12,675 penalty.11 

SO ORDERED.

 

/s/ 

Cynthia L. Attwood 

Chairman 

/s/ 

Amanda Wood Laihow 

Dated: December 10, 2021 Commissioner

10 Commissioner Laihow notes that, while she fully agrees the Secretary has established that using 

the specialized trailer is a feasible and effective means of abatement, it is not necessarily the only 

method RoadSafe could use to materially reduce the cited fall hazard. See, e.g., Cyrus Mines 

Corp., 11 BNA OSHC 1063, 1067 (No. 76–616, 1983) (‘‘[The employer] is not required to adopt 

the abatement method suggested by the Secretary, even one found feasible by the Commission; it 

may satisfy its duty to comply with the standard by using any feasible method that is appropriate 

to abate the violation.’’) (citations omitted); Brown & Root, Inc., 8 BNA OSHC 2140, 2144 (No. 

76–1296, 1980) (‘‘[T]he employer may defend against a section 5(a)(1) citation by asserting that 

it was using a method of abatement other than the one suggested by the Secretary.’’). Thus, 

RoadSafe may choose to implement another feasible and effective means of protecting employees 

from the cited fall hazard without having to resort to the specialized trailer. 

11 RoadSafe does not contest the serious characterization of the violation or the proposed penalty 

amount on review. See KS Energy Servs., Inc., 22 BNA OSHC 1261, 1268 n.11 (No. 06-1416, 

2008) (assessing proposed penalty where not in dispute). 
United States of America

 OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., 9th Floor

Washington, DC 20036-3457

Secretary of Labor,

 Complainant

 v. OSHRC Docket No.: 18-0758 

RoadSafe Traffic Systems, Inc.,

 Respondent.

Appearances:

 Carlton C. Jackson, Esq. 

 Office of the Solicitor, U.S. Department of Labor, Dallas, Texas 

 For Complainant 

Merritt B. Chastain, III, Esq. 

Ogletree Deakins Nash Smoak & Stewart PC, Dallas, Texas

 For Respondent 

BEFORE: Administrative Law Judge Sharon D. Calhoun 

 DECISION AND ORDER

On November 14, 2017, a pavement marking technician installing raised pavement 

markers1

 on US Highway 90 near Devers, Texas, was fatally injured when the protection truck

immediately behind him in his work convoy crashed into his work truck, causing him to fall 

underneath the protection truck. RoadSafe Traffic Systems, Inc. (RoadSafe), employer of the 

employee, notified the Occupational Safety and Health Administration (OSHA) of the accident. 

The next day, November 15, 2017, OSHA Compliance Safety and Health Officer (CSHO) James 

Jacob initiated an inspection of RoadSafe’s worksite. As a result of OSHA’s inspection, the 

Secretary issued a Citation and Notification of Penalty (Citation) to RoadSafe on April 17, 2018,

alleging two serious violations2 of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 

1 During the hearing, raised pavement markers were referred to as markers, reflectors or buttons (Tr. 76).

2 The Citation originally issued alleged violations of the standards found at §§ 1926.601(b)(2)(ii) and 1926.601(b)(8), 

proposing penalties in the amount of $12,675 for each alleged violation. 
2 

651-678 (Act). After the Complaint was filed, the Secretary filed an Unopposed Motion to Amend 

the Complaint and Citation to allege in the alternative two violations of Section 5(a)(1), the general 

duty clause, of the Act. Prior to trial, the Secretary voluntarily withdrew Citation 1, Item 1 (Exh. 

J-1, ¶5)3. Therefore, only Citation 1, Item 2 as amended remains at issue. At trial, the Secretary 

clarified the general duty clause in Citation 1, Item 2 was being alleged in lieu of the previously 

cited standard and not in the alternative (Tr. 7, 17, 18; J-1)4

. 

Item 2 as amended alleges a serious violation of the general duty clause, asserting RoadSafe

did not furnish employment and a place of employment which were free from recognized hazards 

that were causing or likely to cause death or serious physical harm to employees in that employees 

were exposed to fall hazards while using the liftgate of a moving vehicle as a work platform at the 

work site on US Highway 90 (Tr. 8-9; Exh. J-1, ¶5). The Secretary proposes a penalty of $12,675

for this Item (Tr. 9). 

For the reasons set forth herein, the Court AFFIRMS Item 2 of the Citation as amended 

and assesses a penalty of $12,675. 

 JURISDICTION AND COVERAGE

RoadSafe timely contested the Citation on May 8, 2018. The Court held a hearing on 

March 27, 2019, in Conroe, Texas. Both parties filed post-hearing briefs on May 28, 2019. The 

parties stipulated jurisdiction of this action is conferred upon the Commission pursuant to §10(c) 

of the Act and RoadSafe admits at all times relevant to this action it was an employer engaged in 

a business affecting interstate commerce within the meaning of § 3(5) of the Act, 29 U.S.C. § 

652(5) (Tr. 18; Exh. J-1, ¶¶ 1 and 2). Based on the stipulations, admissions and the record 

evidence, the Court finds the Commission has jurisdiction over this proceeding under § 10(c) of 

the Act and RoadSafe is a covered employer under § 3(5) of the Act. 

 STIPULATIONS

The parties submitted the following stipulations as a joint exhibit:

3 Commission Rule 102, 29 C.F.R § 2200.102, provides the Secretary may withdraw a citation "at any stage of a 

proceeding." “[T]he Secretary's decision to withdraw a citation against an employer under the Act is not reviewable 

by the Commission.” Cuyahoga Valley Railway Co. v. United Transportation Union 474 U.S. 3, 7 (1985). The Court 

acknowledges the Secretary's withdrawal disposes of Item 1.

4 At the hearing, Exhibit J-1 was modified to exclude language that Item 2 was being amended to allege §5(a)(1) in 

the alternative.
3 

1. Jurisdiction of this proceeding is conferred upon the Occupational Safety and 

Health Review Commission by Section 10 (c) of the Occupational Safety and 

Health Act of 1970(hereinafter “the Act”), 29 U.S.C. § 659 (c).

2. Respondent, RoadSafe Traffic Systems, Inc. is an employer engaged in a 

business affecting commerce within the meaning of Section 3(5) of the Act, 29 

U.S.C. § 652(5).

3. As a result of an inspection at Respondent’s workplace at the subject jobsite, 

Respondent was timely issued citations for serious violations pursuant to 

Section 9(a) of the Act, as set forth in Exhibit A to the Complaint in this 

proceeding, and the Secretary’s Unopposed Motion to Amend Complaint and 

Citations.

4. Complainant timely received a notice of intent to contest the aforesaid citation 

and notification of proposed penalty on May, 9, 2018. (sic)

5. Complainant has voluntarily withdrawn Citation 1, Item 1, and will only 

proceed to trial with Citation 1, Item 2. Citation 1, Item 2 was initially cited as 

a violation of 29 CFR 1926.601(b)(8), but Complainant amended the Complaint 

and Citation to plead a violation of the general duty clause. 

6. [Employee # 2] was an employee of RoadSafe Traffic Systems on or about 

November 14, 2017. 

7. [Employee # 1] was an employee of RoadSafe Traffic Systems on or about 

November 14, 2017. 

8. On November 14, 2017, RoadSafe Traffic Systems employees were replacing 

damaged raised pavement markers on US Highway 90 near Devers, Texas. The 

employees were applying a thermoplastic chemical on the highway and 

replacing the damaged raised pavement markers with new raised pavement 

markers. 

9. During the installation of the raised pavement markers, Respondent utilized a 

three truck convoy. Workers from the lead truck applied the thermoplastic 

chemical on which they placed the raised pavement marker. The middle truck 

was positioned between the lead truck and the rear truck. The rear truck was 

equipped with a Truck Mounted Attenuator (“TMA”). 

10. On November 14, 2017, [Employee # 1], a pavement marking technician, was 

the employee responsible for applying the thermoplastic chemical to the road

and placing the raised pavement markers on the thermoplastic chemical. 
4 

11. [Employee # 1] performed this task while riding in the bed of a Terrastar 

International work truck equipped with a Waltco lift gate. During this process, 

the lift gate was in a lowered position.

12. [Employee # 1] was struck by the first trailing vehicle, a Ford F-450 towing a 

trailer.

(Exh. J-1) 

At trial, Respondent abandoned its employee misconduct or supervisory misconduct defense 

(Tr. 43). 

BACKGROUND

RoadSafe Traffic Systems, Inc. (RoadSafe) is a road construction company which provides 

traffic control, pavement marking and pavement striping for the Department of Transportation 

(DOT), states, municipalities, utilities and railroads. In addition to the services it provides for 

governments, RoadSafe provides pavement marking services for private airports, military bases 

and parking lots. Pavement marking involves painting or putting thermoplastic chemical5 on 

highway center lines and installing reflective marking devices (Tr. 194, 247-248; Jt. Exh.1 ¶¶ 8, 9, 

10). 

On November 14, 2017, a RoadSafe crew was assigned to re-install road reflectors to the 

center line of Highway US-90 near Devers, Texas, a four-lane highway (two lanes in each 

direction) with a speed limit of 65 miles per hour. The crew worked in the far right lane of the 

highway (Tr. 134). The work spanned approximately seven miles of the highway where reflectors 

on the center line had previously popped off or had been removed because they were damaged (Tr. 

132). The entire seven-mile distance was considered by RoadSafe to be the work zone (Tr. 314). 

The work in that work zone was part of a punch list of items to complete an ongoing project (Tr. 

105, 106). The crew working this portion of the punch list included the Foreman,

6

 the pavement 

marking technician (Employee #1), the protection truck driver (Employee #2), and the driver of a 

truck equipped with a Truck Mounted Attenuator (TMA) (Employee #3) (Tr. 128). 

5 Thermoplastic chemical was referred to at the hearing as bituminous tar adhesive, bituminous material or adhesive. 

It has to be heated to 300 to 340 degrees Fahrenheit to achieve flowable status to install the reflectors (Tr. 315). A 

melting machine is transported on the vehicles to keep the bituminous tar adhesive at the correct temperature (Tr. 50). 

6 At the time of the hearing, the Foreman had been employed by Roadsafe for ten years, nine of which as Foreman. 

He has twenty years of experience in road construction (Tr. 103, 104, 153).
5 

The far right lane where the crew worked was not completely closed for the seven-mile 

work area. Instead, the crew utilized a three-vehicle convoy in a rolling lane closure to install the 

road reflectors (Tr. 108, 129-130).7 A rolling lane closure is where the lane of the work area is

closed only within the parameters of the convoy so traffic will not enter in the work area. The area 

of the lane closure moved with the convoy as it proceeded along the highway in the direction of 

traffic. Traffic moved freely in front, behind and in the left lane adjacent to the work area in the 

rolling lane closure (Tr. 134). 

The first truck in the convoy (work truck), a Terrastar International work truck equipped 

with a Waltco liftgate, was driven by the Foreman. The pavement marking technician (Employee 

#1)8 rode in the bed of the Foreman’s truck. Following was a Ford F-450 pulling a trailer

(protection truck), driven by Employee #29 to protect Employee #1 from passing motorists. The 

TMA (crash truck) was the last truck in the convoy and was driven by Employee #310 (Tr. 49, 110-

111). It was designed to take the impact of any vehicle approaching from behind (Tr. 231). While 

they worked, the crew wore bright yellow safety vests with reflective tape and hard hats (Tr. 150). 

The speed of the convoy was set by the Foreman who testified he drove his truck at a speed 

of 5 to 10 miles per hour (sometimes up to 12 miles per hour) (Tr. 114, 138, 159, 160).11 He 

testified he never accelerated or braked quickly because it was a slow operation (Tr. 138). 

Employee #2 testified the Foreman sometimes drove 25 to 30 miles per hour in long stretches 

where reflectors did not need to be installed (Tr. 64). The Foreman provided instructions to the 

drivers of the protection truck and the TMA to follow at a distance of five or six skips which was 

7 This same crew minus the Foreman, earlier in the day, removed the defective road reflectors using two trucks with 

Employee #2 walking on the highway between the trucks to remove defective road reflectors (Tr. 106-107). 

8

 Employee #1 is the employee who died as a result of the accident on November 14, 2017.

9 Employee #2 had been employed by RoadSafe for one and one-half months at the time of the accident. He was 

terminated on November 21, 2017 (Tr. 33, 71). He testified his work at RoadSafe included driving the combination (a 

truck with a trailer or attachment) and since he was fairly new, he did a lot of “ground stuff” such as removing or 

applying buttons. Earlier on the day of the accident he and Employee #1 worked together, with employee #1 driving 

the truck and him walking behind chiseling the buttons and throwing them on the truck (Tr. 34, 37, 38, 46, 47, 48).

10 Employee #3 had been employed with RoadSafe for five years, has a commercial driver’s license and drives big 

trucks for the company. He has been in the construction business for ten years (Tr. 231).

 

11 The Foreman testified in a deposition unrelated to this OSHRC proceeding that he traveled between 10 and 12 miles 

per hour during this type of process. In the instant case, he did not recall that prior testimony (Tr. 115, 117). 
6 

200 to 240 feet (Tr. 130-132, 240). Employee #2 testified the Foreman instructed them to keep a 

good distance (Tr. 73). 

To install the reflectors, the Foreman would drive the work truck until he saw a location 

with a missing road reflector, at which time he positioned the work truck so the back of it was 

across from where the reflector needed to be installed (Tr. 141). He then stopped so Employee #1 

could exit the bed of the work truck to apply the bituminous tar adhesive and install the road 

reflector. Once the road reflector was installed, Employee #1 got back in the bed of the work truck 

and the Foreman drove to the next location (Tr. 112-113). The process was repeated throughout 

the seven-mile work zone on Highway US-90. The reflectors were 80 feet apart, however the 

stretches along the highway between where reflectors needed to be installed varied (Tr. 111-113). 

The pavement marking process is a start and stop operation (Tr. 319). 

While riding in the bed of the work truck, Employee #1 sat behind the driver’s side, in front 

of the melting machine containing the bituminous tar adhesive which was tied to the gates on the 

side of the work truck (Tr. 50, 119, 120; Exhs. C-12A, R-16, p. 2). The liftgate of the work truck 

was in the down position as the convoy traveled so Employee #1 could enter and exit the bed of

the work truck, using the liftgate as a step and as a footrest while seated in the bed of the work 

truck (Tr. 51, 74, 121, 137, 139, 233, 234; Exhs. C-12, C-12A, R-16, p. 2). When down, the liftgate 

was 18 inches from the ground. A chain covered in black fabric was attached to the liftgate and 

the back of the work truck on the driver’s side (Tr. 80, 137, 142, 161, 2; Exh. R-16, p. 2). The 

reflectors to be installed were on the liftgate in a bucket and a box (Tr. 167, 169-170). 

By using the large left side view mirror and open driver’s side window the Foreman could 

observe the location of Employee #1. He could see when Employee #1 completed installing the 

road reflector and resumed his place in the bed of the work truck (Tr. 123, 126, 152, 232). The 

Foreman testified Employee #1 only stood up when in the work truck when it was stopped; and 

testified “no” at the hearing when asked whether he ever saw Employee #1 sitting on the tailgate 

of the truck (Tr. 119, 120-121). 

RoadSafe has a bituminous application trailer, a specially configured vehicle to allow 

Employees to ride with fall protection when working from it to install road reflectors (Tr. 125, 

315). When in that trailer, employees are seated and are secured by fall protection as they work. 

The trailer is 6 inches from the pavement and is between 6 and 12 inches from the center line. The 
7 

bituminous application trailer is used only when working on a “long line job” where reflectors are 

being installed for the very first time for a series of miles (Tr. 135, 315-316). If only a few 

reflectors need to be installed in a short distance, Roadsafe allows its employees instead to use a 

work truck and convoy (Tr. 135). Because the bituminous application trailer was not available and 

since the work covered a short distance with frequent stops, the Foreman’s supervisor (identified 

only as Chris) made the decision for the crew to use a three-truck convoy to complete the work

(Tr. 126, 127). 

The crew had made approximately 30 stops installing as many reflectors without incident 

when at approximately 3:00 p.m. the second truck in the convoy, driven by Employee #2, 

unexpectedly increased its speed and rear-ended the work truck carrying Employee #1 (Tr. 142, 

146). The Foreman saw the second truck rapidly approaching at approximately 30 miles per hour. 

He yelled at Employee #1 to watch out. The work truck had stopped so Employee #1 could replace 

a reflector. It had been stopped for 5 to 10 seconds when the Foreman saw the protection truck 

approaching fast, and he screamed Employee #1’s name telling him to be careful. According to 

the Foreman, Employee #1 tried to get back to the bed of the truck when the protection truck hit 

the work truck (Tr. 146, 147, 148, 159). In his interview statement to OSHA, Employee #3 stated 

he saw Employee #1 jump from the back of the truck to avoid being hit in the collision (Exh. C-2, 

p. 00054). Employee #2 testified Employee #1 jumped from the bed of the work truck (Tr. 54-

55). 

Employee #2 had veered his truck to the left, apparently trying to avoid a collision, but 

putting it in the direct line of where Employee #1 was located in the bed of the truck. Employee 

#1 either tried to jump out of the way of the approaching truck or was ejected from the truck as a 

result of the impact. He was pinned under the axel of the protection truck (Exh. C-2, p. 00055). 

After the impact, the Foreman exited the work truck and discovered the location and condition of 

Employee #1. He testified Employee #2 approached him then and said “I’m sorry, I’m sorry; I 

don’t know what happened.” (Tr. 149) The Foreman said to him “Man, you killed [Employee #1].” 

(Tr. 149) According to the Foreman, Employee #2 responded “Man, you know, I got a lot of 

problems, you know. I don’t know what happened.” (Tr. 149-150) During his interview with 

CSHO Jacob, Employee #2 said as he was adjusting mirrors, he knew he was too close and was 

going to hit the work truck (Exh. C-2, p. 00054). 
8 

After the accident Employee #3 approached and the Foreman told him to call 911 (Tr. 240). 

In response to the 911 call, State of Texas Department of Public Safety investigator Nathaniel 

Godfrey arrived at the scene of the accident seven minutes after it occurred. Once onsite, he

conducted his investigation and prepared a Texas Peace Officer’s Crash Report regarding the 

accident. His report provides in relevant part the following narrative opinion of what happened: 

Unit #3 was traveling E/B on US-90. Unit #1 towing unit #2 was following behind 

unit #3. The passenger of unit #3 was sitting outside the rear of the vehicle on the 

left back quarter side laying down center stripe road markers, when unit #1 towing 

unit #2 struck the left back quarter of unit #3, ejecting the passenger causing him 

to roll under unit #2 where he came to rest. 

(Exh. C-11, p. 2) The following diagram of the accident was included in the report: 

 

(Exh. C-11, p. 2) 

RoadSafe notified OSHA of the fatality accident. On November 15, 2017, CSHO Jacob 

initiated OSHA’s inspection at RoadSafe’s Houston office and truck yard (Tr. 178). During the 
9 

inspection, CSHO Jacob12 conducted an opening conference, did a walk around of the truck yard 

to observe the trucks involved in the accident, took photographs and conducted interviews. He

scheduled another visit to go to the incident site, made a return visit to interview Employee #2, 

and a final visit in April 2018 to conduct additional interviews (Tr. 179, 180). As a result of his 

inspection, CSHO Jacob determined Employee #2 misjudged the convoy speed and sped up to 

keep close to the work truck (Exh. C-2, p. 00054). 

The Secretary obtained a copy of RoadSafe’s policy prohibiting employees from riding in 

the back of vehicles in certain circumstances. It provides: 

It is permissible to WORK in or on the back of our vehicles as the job requires. 

However, RIDING in the back of vehicles, without the benefit of seat belts, is NOT 

permitted when not working. Examples of ‘not working’ include when the vehicle 

is moving to or from the yard to the work location, or between work locations when 

actual pavement marking is not occurring or traffic control devices are not being 

deployed. 

(Exh. R-1, pp. 41, 43) (emphasis in original). 

Based on CSHO Jacob’s inspection, he recommended the issuance of the citations initially 

issued in this case alleging violations of two motor vehicle standards of Subpart O- Motor Vehicles, 

Mechanized Equipment, and Marine Operations. Those citations were subsequently amended to 

allege two violations of the general duty clause, one of which remains at issue in the in this case.

Credibility

The Court recognizes how difficult it was for the crew members who observed the tragic

accident resulting in the death of their co-worker. The Court also realizes the shock each crew member 

may have experienced as a result. In such situations recall of the events may be affected. In assessing 

the credibility of the witnesses in this case, the Court is cognizant of this and therefore attributes more 

weight to the recollections made closer in time to the occurrence of the accident. The Court’s 

credibility determinations are not a reflection on the truthfulness or character of the witnesses. Instead 

they are based on what the Court determines are the most reliable recollections of the circumstances 

surrounding the accident. 

12 CSHO Jacob has been employed with OSHA for four years and his job duties include conducting construction and 

general industry inspections and incident investigations (Tr. 176). Prior to his employment with OSHA, CSHO Jacobs 

was a civilian safety specialist with the United States Marine Corps for ten years. His job duties included conducting 

ship inspections for safety and health and he formulated several safety and health programs (Tr. 177).
10

The Court credits the testimony of Employee #2 that Employee #1 was in the bed of the work 

truck at the time of the accident. His testimony is consistent with the Public Safety investigator’s report 

of the accident and with Employee #3’s interview statement to CSHO Jacob. As Employee #2’s 

testimony is consistent with the Public Safety investigator’s report, and there is no evidence in the 

record Employee #2 provided any information to the Public Safety investigator for his report, the 

Court is not persuaded Employee #2’s recollection of the events should be discredited because of any 

alleged personal injury action against him regarding the accident, as Respondent contends. During his 

testimony, Employee #2 appeared remorseful and did not appear to try to distort his recollection of the 

events. 

The Foreman’s testimony that Employee #1 was on the pavement and attempting to get back 

into the work truck is discredited as being inconsistent with the Public Safety investigator’s report, the 

testimony of Employee #2, and Employee #3’s interview statement to OSHA during the inspection. 

Further, in his interview with CSHO Jacob during the inspection, he stated that when he saw the 

protection truck coming up behind them fast he “tried to push the gas” on the work truck to increase 

the distance (Exh. C-2, p. 00054). He testified at the hearing he had stopped the work truck so that 

Employee #1 could install the road reflector (Tr. 146, 147, 148, 159). During his testimony the 

Foreman seemed nervous and his testimony was confusing and defensive. He was clearly upset by the 

accident. When the Foreman testified, he appeared to be making an effort to say the right thing, as if 

he were trying to please his employer. 

The Court credits Employee #3’s statement to CSHO Jacob during the inspection that 

Employee # 1 was working on the rear lift gate (Exh. C-2, p. 00054). The Court further credits his 

testimony Employee #1 sat on the back of the truck with his feet on the tailgate when the work truck 

would start to move looking for the next button (Tr. 236). During his testimony Employee #3 appeared 

confident and forthcoming. 

The Citation

The Citation as amended alleges a serious violation of Section 5(a)(1) of the Occupational 

Safety and Health Act of 1970 as follows: 

The employer did not furnish employment and a place of employment which were 

free from recognized hazards that were causing or likely to cause death or serious 

physical harm to employees in that employees were exposed to fall hazards: 

(a) On or about November 14, 2017, at the work site on US Highway 90, 

employees were exposed to fall hazards while using the lift gate of a moving 
11

vehicle as a work platform. 

As a feasible means of abatement, the Citation alleges:

Feasible means to abate this hazard include but is not limited to prohibiting the use 

of a lift gate of a moving vehicle as a work platform and/or only using a trailer or 

vehicle specifically designed for installing reflector buttons on the freeway. 

(Tr. 8-9; Exh. J-1, ¶5) 

ANALYSIS

Elements of a § 5(a)(1) Violation 

Section 5(a)(1) of the Act mandates that each employer “furnish to each of his 

employee’s employment and a place of employment which are free from recognized 

hazards that are causing or are likely to cause death or serious physical harm to his 

employees.” 29 U.S.C. § 654(a)(1). To establish a violation of the general duty 

clause, the Secretary must show that: (1) a condition or activity in the workplace 

presented a hazard; (2) the employer or its industry recognized the hazard; (3) the 

hazard was likely to cause death or serious physical harm; and (4) a feasible means 

existed to eliminate or materially reduce the hazard. Pegasus Tower, 21 BNA 

OSHC 1190, 1191, 2005 CCH OSHD ¶ 32,861, p. 53,077 (No. 01-0547, 2005). 

Erickson Air-Crane, Inc., No. 07-0645, 2012 WL 762001, at *2 (March 2, 2012). 

In addition to the above-quoted elements of a § 5(a)(1) violation, the Secretary must also 

establish the employer had either actual or constructive knowledge of the hazardous condition. 

Deep South Crane & Rigging Co., 23 BNA OSHC 2099 (No. 09-0240, 2012), aff’d Deep South 

Crane & Rigging Co. v. Seth D. Harris, 24 BNA OSHD 1089 (5th Cir. 2013). 

Whether an Activity or Condition at the Site Constituted a Hazard

The amended Citation provides employees “were exposed to fall hazards while using the 

liftgate of a moving vehicle as a work platform.” 

In a recent decision the Commission reiterated

In a general duty clause case, “[the] hazard must be defined in a way that apprises 

the employer of its obligations, and identified conditions and practices over which 

the employer can reasonably be expected to exercise control” Arcadian Corp, 20 

BNA OSHC [2001, 2007 (No. 93-0628, 2004)]; Peron Corp., 12 BNA OSHC 

[1833, 1835 (No. 82-388, 1986)]. The Secretary must show, among other things, 

that the hazard was present. Wheeling-Pittsburgh Steel Corp., 16 BNA OSH 1218, 

1221 (No. 89-3389, 1993). 

Mid South Waffles, Inc. d/b/a Waffle House #1283, 27 BNA OSHC 1783, 1785 (No. 13-1022, 
12

2019). 

The Secretary defined the hazard in this case as a fall hazard while using the liftgate of a 

moving vehicle as a work platform. He asserts the employees were not protected from falling from 

the moving vehicle. The evidence adduced at trial shows Employee #1 rode on the liftgate when 

the convoy was moving in the work area: Employee # 2 testified:

Q. Did [Employee #1] ever sit on the rear of the lift gate and apply the- - 

A. He – yes. He did at one point. Yes. He did when - - like I said, because we, 

me and him, we covered the point where we had not to remove all these buttons. 

About - - I would say about 50 or 60. So he sat on the back to cover that distance. 

After we covered that distance, then he repeated the same process.

Q. Okay. So when you were coming up intermittently on the buttons that you had 

removed, he would - - 

A. Yes.

Q.-- go up and down from the bed to the tailgate to the ground, to put on the liquid 

and to remove the buttons. 

A. Yes, sir. 

Q. But when you had to travel a distance, he would sit on the tailgate. 

A. Yes. He only did it once, but if I - - just to cover that distance that we were 

going forward, he just sat on it once, from what I remember. 

(Tr. 55-56). Although the evidence does not show Employee #1 sat on the liftgate for shorter 

stretches to install the road reflectors, it shows he sat in the bed of the work truck with his feet on 

the liftgate while the work truck was moving during those stretches (Tr. 112-113). Regarding what 

appears to be activity immediately prior to the accident, Employee #2 testified: 

Q. Yes. You said that he would get the liquid from the bed of the pickup truck – 

A. Yes.

Q. --jump down to the lift gate and then on to the ground and put the liquid down 

and then put the marker down. Correct? 

A. Yes, sir. 

Q. Okay. So as he was in the back of the pickup, in the bed of the pickup, was the 
13

truck stationary or was it moving? 

A. It was slightly moving, coming to a very stop, and I wasn’t sure-- at this point, 

this is where, you know--once he was doing that and applying-- repeating the 

process, I gave him a good distance. And while I was coming to a complete stop 

with them, at the very end, he was on the tailgate. . . 

(Tr. 53-55). The Foreman’s testimony also confirms, regarding the way they performed the work, 

Employee #1 was in the bed of the work truck while it was moving (Tr. 118-119). 

RoadSafe’s regular practice for employees installing road reflectors when using a convoy 

to accomplish this task was to allow them to ride in the bed of the work truck. It considered riding 

for this purpose to be “work activity.” Glen Thompson,13 RoadSafe’s Chief Operating Officer 

testified an employee is considered “working” in the back of the truck because he is in a “work 

zone, moving at a slow speed in a published state-designated work zone” (Tr. 291). Therefore, the 

Court finds employees riding in the bed of the work truck is not disputed. 

RoadSafe disputes however, the Secretary’s position the employees were not protected 

from falling from the work truck while it was moving. It argues Employee #1 was more than 

adequately protected from falling because he had four points of contact while riding in the work 

truck while seated with feet placed on the liftgate and when holding with one hand onto the fabric 

wrapped chain connected to the liftgate (Tr. 279). Thompson testified this is more protection than 

even OSHA requires (Tr. 279). No credible evidence was adduced at trial that when Employee #1 

was riding on the tailgate or immediately prior to the accident, he was holding onto the chain on 

the liftgate while the work truck was moving. RoadSafe produced no work rules or policies 

requiring employees to hold onto the chain for fall protection. Moreover, the Foreman testified 

holding onto the chain was not sanctioned by RoadSafe, that it was just something Employee #1 

would do (Tr. 162-163). 

The Secretary further described the fall hazard as occurring when the employee used the 

liftgate of a moving vehicle as a work platform. RoadSafe does not dispute the liftgate was used 

as a work platform. The uncontroverted evidence shows the liftgate was used as a staging area or 

13 In November 2017, Mr. Thompson was Vice President of Operations for RoadSafe, and was in charge of the safety 

compliance department handling investigations. He ran the fleet department and maintained the safety standards with 

the DOT. He also was responsible for the operational excellence campaigns to improve quality of service and safety 

(Tr. 248-249). 
14

platform for the reflectors which were in a bucket and box on the liftgate for Employee #1 to install 

once the work truck arrived at the designated area (Tr. 167, 169-170). The evidence does not show 

the reflectors were removed from the liftgate before the work truck moved along stretches of 

highway. The liftgate remained in a down position throughout the convoy’s movement along the 

highway. 

 The Court finds the Secretary has adequately defined the hazard and Employee #1 was 

unprotected from falling while riding on the back of the work truck. Therefore, Employee #1 was 

exposed to a fall hazard while riding on the back of the moving work truck while using the liftgate 

as a work platform. 

Whether the Employer or its Industry Recognized the Hazard 

The Secretary asserts RoadSafe recognized riding in the back of a truck created a fall 

hazard, and provides as support, RoadSafe’s Employee Handbook, ANSI standard A10 47-1015 

4.5.4, a Job Safety Analysis and OSHA 300 logs reflecting instances when RoadSafe employees 

had fallen from trucks (Secretary’s brief, pp. 10-13). RoadSafe disagrees, arguing none address 

the hazard of falling from a moving vehicle as cited by OSHA in this case. 

RoadSafe points out the Co-Worker Safety Handbook prohibits riding on vehicles only 

when transiting between work locations unless actively setting up or taking down temporary traffic 

control devices. It argues the ANSI standard relied upon by the Secretary addresses putting down 

and taking up traffic control devices, a different work activity than what the employees in this case 

were engaged in. Regarding the JSA alleged in support by the Secretary, RoadSafe argues it too 

only prohibits riding on the back of a vehicle when transiting between work locations (RoadSafe 

brief, pp.19-20). And RoadSafe argues the circumstances regarding the incidents set forth in the 

OSHA 300 logs do not address the cited hazard. 

The evidence adduced at trial shows RoadSafe recognized the cited hazard. RoadSafe’s 

Safety Manual provides: 

It is permissible to WORK in or on the back of our vehicles as the job requires. 

However, RIDING in the back of vehicles, without the benefit of seat belts, is NOT 

permitted when not working. Examples of ‘not working’ include when the vehicle 

is moving to or from the yard to the work location, or between work locations when 

actual pavement marking is not occurring or traffic control devices are not being 

deployed. 
15

(Exh. R-1, pp. 41, 43) (emphasis in original) RoadSafe’s Job Safety Analysis for Short Duration 

Work to protect against fall hazards provides “[t]there shall be NO riding on back of tail or lift 

gates at any time.” (Exh. C-7, p. 3)(emphasis in original) Further, Chief Operating Officer 

Thompson testified employees are not permitted to ride in the back of a vehicle for transportation 

because it “subjects an employee to risks from either (a) falling out of a vehicle, or if the vehicle’s 

involved in a motor vehicle accident, people would be ejected from the back of a vehicle.” (Tr. 

254) 

The distinction RoadSafe makes between riding in the back of a vehicle when working as 

opposed to transiting is illogical. The hazard of falling when riding unprotected on a vehicle is the 

same whether a worker is working or transiting. Thompson’s testimony alone establishes 

RoadSafe’s recognition of the cited fall hazard. The Secretary has established employer 

recognition of the hazard. 

Whether the Hazard was Likely to Cause Death or Serious Physical Harm

To establish this element, the Secretary presented evidence of prior OSHA inspections 

citing violations for falls from the bed or back of moving vehicles (Exh. C-22). Exhibit C-22 

shows situations where employees suffered injuries such as skull fractures, facial injuries and other 

injuries requiring hospitalization. It also includes situations where employees died as a result of 

their falls from moving vehicles. 

It cannot reasonably be disputed that falls from moving vehicles are likely to cause death 

or serious physical harm. Therefore, RoadSafe argues the conditions set forth in the examples of 

prior instances set forth in Exhibit C-22 are different from the conditions here and involve falls 

from the bed of the truck or lift gate directly to the pavement. RoadSafe relies on CSHO Jacob’s 

alleged testimony that a fall in this case would be first to the lift gate and then to the pavement 

(RoadSafe’s brief, p. 23). RoadSafe mischaracterizes CSHO Jacob’s testimony. He testified in 

response to RoadSafe’s questioning, that a fall first to the liftgate was only one possibility (Tr. 

210). The Court finds no merit in RoadSafe’s argument. As CSHO Jacob testified, the employee 

would still be exposed to a fall (Tr. 210). 

RoadSafe also disputes CSHO Jacob’s characterization of the violation as being of high 

severity because Employee #1 died. RoadSafe argues Employee #1’s death was not because he 

fell from the work truck but because he was hit by the protection truck while on the road trying to 
16

get back into the bed of the work truck (RoadSafe’s brief, p. 24). The Court discredits this version 

of the accident. The credible evidence shows Employee #1 was on the work truck at the time of 

impact. Public Safety investigator Nathaniel Godfrey’s Crash Report provides he was ejected from 

the vehicle (Exh. C-11, p. 2). The Court finds the Public Safety Accident Report to be reliable. The 

report was made on the same day of the accident. Its content was not disputed by either party at 

the hearing. Therefore, the Court credits the Public Safety Crash Report over testimony to the 

contrary, including testimony that Employee #1 jumped from the work truck. 

 Employee #1 suffered fatal injuries as a result of his fall from the work truck. The Secretary 

has established the hazard of falling from a moving vehicle is likely to cause death or serious 

physical harm. 

Whether a Feasible Means Existed to Eliminate or Materially Reduce the Hazard

As a feasible means of abatement, the Secretary set forth in the Citation prohibiting the use 

of a liftgate as a work platform and/or using a trailer or vehicle specifically designed for installing 

reflector buttons on the freeway. In addition, the Secretary set forth in his post-trial brief that 

employees could install the road reflectors on foot and employees could ride in the cab of the work 

truck on the passenger side and exit to install each road marker (Secretary’s brief, p. 17). 

The Secretary has the burden of “demonstrat[ing] both that the [proposed 

abatement] measures are capable of being put into effect and that they would be 

effective in materially reducing the incidence of the hazard.” Beverly Enters., 19 

BNA OSHC at 1190, 2000 CCH OSHD at p. 48,981. “Feasible means of abatement 

are those regarded by conscientious experts in the industry as ones they would take 

into account in ‘prescribing a safety program.”’ Id. at 1191 (quoting Nat'l Realty & 

Constr. Co. v. OSHRC, 489 F.2d 1257, 1266 (D.C. Cir. 1973)). If the proposed 

abatement “creates additional hazards rather than reducing or eliminating the 

alleged hazard, the citation must be vacated for failure to prove feasibility 

....” Kokosing, 17 BNA OSHC at 1875 n.19, 1995-1997 CCH OSHD at p. 43,727 

n.19. But the Secretary is not required to show that the proposed abatement would 

completely eliminate the hazard. Morrison-Knudsen Co./Yonkers Contracting Co., 

16 BNA OSHC 1105, 1122, 1993-1995 CCH OSHD ¶ 30,048, p. 41,279 (No. 88-

572, 1993).

Acme Energy Servs., No. 08-0088, 2012 WL 4358852, at *6 (OSHRC Sept. 19, 2012), aff’d Acme 

Energy Servs. v. OSHRC, 542 F. Appx. 356 (5th Cir. 2013). 

In his brief for the first time, the Secretary proposed as a feasible means of abatement 

having the employees install the road reflectors by foot. The Secretary posits this would be feasible 
17

as demonstrated by the employees having removed the defective reflectors by foot on the morning 

of November 14, 2017, with an employee walking between a two-truck convoy. Since the posthearing briefs were filed simultaneously, RoadSafe did not address this proposed feasible 

abatement method. The evidence shows the road reflector installation process is different from 

the removal process, as it requires the use of a melting machine with bituminous tar heated to at 

least 300 degrees, and at a minimum a two-step installation process. The Secretary did not address 

how installing the road markers by foot is feasible in light of the differences between the 

installation and removal processes. Nor did he address how this proposed abatement method 

impacts RoadSafe’s policy of limiting the time employees are on the road in order to reduce their 

exposure to hazards from traffic. Therefore, the Court finds the Secretary has failed to establish 

installing the road reflectors by foot is a feasible means of abatement. 

The Secretary’s proposed feasible abatement of having employees ride in the passenger 

side of cab of the work truck and exit to install each road marker also fails. The Court is persuaded 

by RoadSafe’s argument the employees would be exposed to a greater hazard of traffic from the 

right side of the work truck. The Secretary did not address in his brief prohibiting the use of the 

liftgate as a work platform as a feasible means of abatement, as alleged in the amended Citation. 

Nor was evidence adduced at the trial regarding this. The Court therefore rejects this proposed 

abatement method. 

The Court now turns to the Secretary’s proposed feasible abatement measure regarding the 

use of a specially configured vehicle. RoadSafe already uses a specially configured vehicle called 

a bituminous application trailer for installing road markers when long distances are involved. The 

bituminous application trailer allows employees to ride with fall protection when working from it 

to install road reflectors (Tr. 125, 189, 315). RoadSafe does not use the bituminous application 

trailer however for work involving short distances with frequent stops, such as in this case. 

Although it uses the bituminous application trailer for work involving long distances, RoadSafe 

asserts it is not used for the safety of employees, but rather to allow faster production (RoadSafe’s 

brief, p. 15). It argues the employees on short distances would be exposed to a greater hazard 

because of prolonged exposure to the center line of the highway in proximity to live traffic 

(RoadSafe’s brief, p. 15). 

RoadSafe’s argument regarding the infeasibility of using the bituminous application trailer 
18

for short distances is perplexing. Employees using it for long distances are exposed to the same 

hazards as those on short distances, potentially for longer periods of time. RoadSafe’s argument 

suggests it values expediency over Employee safety. RoadSafe has not argued that the frequent 

stops made on short distances impacts production significantly, if at all. Nor has it shown the 

hazards to which employees are exposed on short distances are any different than those on long 

distances. The Court is not persuaded use of the bituminous application trailer on short distances 

exposes employees to a greater hazard. The Court finds use of the bituminous application trailer 

would materially reduce exposure to fall hazards when installing road reflectors on short distances 

and is a feasible means of abating the fall hazard, as demonstrated by use of the bituminous 

application trailer by RoadSafe for long distances. 

The Secretary has established a feasible means of abating the fall hazard. 

Whether RoadSafe had either Actual or Constructive Knowledge of the Hazard

The Secretary must prove that the employer had either actual or constructive knowledge of 

the violative conditions. To prove knowledge, the Secretary can show that a supervisor had either 

actual or constructive knowledge of the violation and such knowledge is generally imputed to the 

employer. An employee who has been delegated authority over another employee, even if only 

temporarily, is considered to be a supervisor for purposes of imputing knowledge to an employer. 

American Engineering & Development Corp., 23 BNA OSHC 2093, 2012 (No. 10-0359, 2012); 

Diamond Installations, Inc., 21 BNA OSHC 1688 (Nos. 02-2080 & 02-2081, 2006); Tampa 

Shipyards, Inc., 15 BNA OSHC 1533 (Nos. 86-360 and 86-469, 1992). Where the Secretary shows 

that a supervisor had either actual or constructive knowledge of the violation, such knowledge is 

generally imputed to the employer.” ComTran Crp., Inc. v. U. S. Dep’t of Labor, 722 F.3d 1304, 

1307-08 (11th Cir. 2013). A supervisor’s knowledge of a subordinate employee’s violative conduct 

may be imputed to the employer even when the supervisor himself is simultaneously involved in 

the same violative conduct. Quinlan v. U. S. Dept. of Labor, 812 F.3d 832 (11th Cir. 2016). 

 Here, the Foreman drove the work truck with Employee #1 riding in the bed of the truck 

using the liftgate as a work platform to install road reflectors. He was aware there was no fall 

protection available on the work truck. Although the liftgate has a chain connecting it to the bed 

of the work truck, the Foreman testified the company did not advise using the chain as a handhold 

(Tr. 162-163). The Court discredits the Foreman’s testimony that Employee #1 used the chain on 
19

the liftgate for fall protection. This testimony was not corroborated by any other witness. The 

Foreman had actual knowledge Employee #1 worked without the use of fall protection while riding 

in the bed of the work truck while it was moving. In addition, because it was RoadSafe’s practice 

to use work truck convoys for short distances when installing road reflectors, management 

including higher level officials, such as Glenn Thompson, were aware employees worked without 

fall protection. Knowledge is established. 

The Secretary has established a violation of §5(a)(1) of the Act. 

CHARACTERIZATION OF THE VIOLATION

The Secretary characterized the violation of § 5(a)(1) as serious. A serious violation is 

established when there is “a substantial probability that death or serious physical harm could result 

[from a violative condition] . . . unless the employer did not, and could not with the exercise of 

reasonable diligence, know of the presence of the violation.” 29 U.S.C. § 666(k). 

As a result of his review of OSHA citations relating to prior inspections for falls from 

trucks and his review of OSHA 300 logs for Roadsafe, CSHO Jacob determined falling from the 

back of a truck posed a serious hazard which could result in serious injuries or death (Tr. 181, 187-

188; Exh. C-22). Employee #1’s injuries were fatal. The violation is properly characterized as 

serious. 

PENALTY DETERMINATION

“In assessing penalties, section 17(j) of the Act requires the Commission to give due 

consideration to the gravity of the violation and the employer's size, history of violation, and good 

faith. 29 U.S.C. § 666(j). Gravity is a principal factor in the penalty determination and is based on 

the number of employees exposed, duration of exposure, likelihood of injury, and precautions 

taken against injury.” Siemens Energy & Automation, Inc., No. 00-1052, 2005 WL 696568, at *3 

(OSHRC February 25, 2005) (citation omitted). "Gravity, unlike good faith, compliance history 

and size, is relevant only to the violation being considered in a case and therefore is usually of 

greater significance. The other factors are concerned with the employer generally and are 

considered as modifying factors.'' Natkin & Co. Mech. Contractors, No. 401, 1973 WL 4007, at 

*9, n. 3 (OSHRC April 27, 1973). 

CSHO Jacob considered in calculating the gravity of the violation that only one employee 

was exposed and determined the gravity based penalty for the violation in Item 2, Citation 1 as 
20

amended was of high severity and greater probability because an employee was killed and because 

that employee and other employees perform worked on a regular basis from the rear liftgate of 

trucks and were not protected from falling (Tr. 191). 

No reduction in the gravity-based penalty was given. Roadsafe employs 1700 employees 

so no penalty reduction for size was given (Tr. 192). No penalty reduction for history was given 

because Roadsafe had been previously cited for a high gravity safety violation under an OSHA 

State Plan. And no penalty reduction for good faith was given because the cited violation in this 

matter was determined to be of high-greater gravity. 

Upon consideration of the gravity of the violation, RoadSafe’s size, history and good faith, 

OSHA’s proposed penalty is appropriate, and the Court assesses a penalty in the amount of $12,675 

for Item 2 of the Citation as amended. 

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) of the Federal Rules of Civil Procedure. 

ORDER

Based upon the foregoing decision, it is ORDERED that: 

1. Item 2 of the Citation, alleging a serious violation of § 5(a)(1) of the Act, is 

AFFIRMED and a penalty in the amount of $12,675 is assessed.

SO ORDERED. 

/s/ 

 Sharon D. Calhoun 

Dated: September 30, 2019 Administrative Law Judge

 Washington, DC