1594 United States of America 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

1924 Building - Room 2R90, 100 Alabama Street, S.W. 

Atlanta, Georgia 30303-3104 

Secretary of Labor, 

Complainant 

v. OSHRC Docket No.: 22-0503 

Williams Brothers Construction Co., Inc., 

Respondent. 

Appearances: 

Remy B. Smith, Esq. (At Trial & On Brief), Feliz Marquez, Esq. (At Trial), Lindsay A. 

Wofford, Esq. (Post-Trial) 

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

For Complainant 

Emily Linn, Esq. & Steven R. McCown, Esq. 

Littler Mendelson, P.C., Austin & Dallas, TX 

For Respondent 

Before: Administrative Law Judge Sharon D. Calhoun 

DECISION AND ORDER 

On the evening of October 29, 2021, Respondent, Williams Brothers Construction Co., Inc. 

(“Williams Brothers”) was preparing to open new traffic lanes as part of a massive, multi-year 

construction project involving the intersection of Interstate 69 (“I-69”)1 and Interstate 610 (“I610”) in southwest Houston. (Exhs. C-2, at DOL000026 to 27; C-14; Tr. 39, 49-50, 307, 359-60, 

391). To accomplish this, Williams Brothers needed to close off an approximately two-to-threemile stretch of I-69 for its crews to remove several temporary concrete barriers, which had been 

placed to block off public traffic during construction. (Exh. C-2, at DOL 000026 & 27; C-12, C1 The stretch of I-69 implicated by the events in this case is apparently coextensive with U.S. Highway 59, and so 

attorneys and witnesses sometimes referred to it as “59” at the hearing. (E.g., Tr. 80, 212, 248, 358; see also Exh. R17 (map of jobsite with highways labeled as “69” and “59”)). For the sake of clarity, the Court will refer to this stretch 

of highway only as “I-69” throughout the remainder of this decision. 
 

 

 

 

 

 

 

 

 

 

 

21; Tr. 86, 126-27, 247, 268, 359-60). After the concrete barriers were removed, a subcontractor, 

Professional Traffic Control (“PTC”), needed to remove existing road stripes and reflector buttons 

and “re-stripe” the lanes with painted road signals to guide traffic when the lanes were eventually 

opened to the public. (Exh. C-2, at DOL000028; Tr. 49-50, 214-15, 247, 307, 358, 361, 385, 390). 

Williams Brothers began closing off a portion of the highway in the early evening, 

approximately 9 p.m., and had largely completed this task by around 10:30 p.m. (Exh. C-2, at 

DOL000026 & 27; Tr. 422). Once the stretch of highway was closed off, the concrete barriers were 

removed, and PTC began re-striping a portion of the highway. (Exh. C-2, at DOL000028; Tr. 49-

50, 214-15, 307, 358, 361, 385, 390). On that same stretch of highway, near the “gore” point of I610 North and South, a Williams Brothers employee was cleaning up garbage and debris, which 

had been left behind when the concrete barriers were removed. (Exhs. C-2, at DOL000028; C-8, 

at 1, 4, 5, 6; C-8A, R-21, at 05:37; Tr. 44-46, 248-52, 358-59, 366, 387-88; see also Tr. 322 

(explaining a “gore” point is the triangle-shaped portion of a highway where it splits into 

connectors, exit ramps, etc.)). At some point after midnight on October 30, 2021, a vehicle entered 

the enclosure and struck three employees, two PTC employees and the Williams Brothers 

employee who had been cleaning up debris. (Exhs. C-2, at DOL000029; C-7; R-21, at 05:19; Tr. 

56-57, 366-67, 386-88). The Williams Brothers employee suffered hip and rib fractures, among 

other injuries. (Exhs. C-1, at 1; C-2, at DOL000026 & 29; C-7, at 2; Tr. 57, 148-49, 286). 

The incident was reported to the United States Occupational Safety and Health 

Administration (“OSHA”), which, on the following Tuesday, sent a Compliance Safety and Health 

Officer (“CSHO”) to investigate. (Exh. C-2, at DOL000025; Tr. 134-36). Because the lane closure 

had ended Sunday evening, the “worksite” created by the enclosure no longer existed. So, in lieu 

of a physical inspection of the worksite, the CSHO met with supervisors and safety personnel at 

Williams Brothers’ home office. (Exh. C-2, at DOL000033; Tr. 137-38). 

Following his interviews of Williams Brothers employees, supervisors, and safety 

personnel, as well as a review of Williams Brothers’ safety programs and materials, the CSHO 

concluded Williams Brothers had violated Section 5(a)(1) of the Occupational Safety and Health 

Act of 1970, 29 U.S.C. § 651, et seq. (“the Act”), commonly referred to as the “General Duty 

Clause,” by failing to protect its employees from struck-by hazards while engaged in highway 

construction work. (Tr. 138-39). 

On the CSHO’s recommendation, OSHA issued a one-item serious Citation to Williams 

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Brothers, alleging a violation of the General Duty Clause and proposing a penalty of $14,502. 

Williams Brothers filed a timely Notice of Contest thereby bringing this matter before the 

Occupational Safety and Health Review Commission (“Commission”) and this Court. The Court 

held a two-day hearing on this matter on May 31 to June 1, 2023, in Houston, Texas. The parties 

have filed post-hearing briefs. 

For the reasons laid out in detail below, Citation 1, Item 1 is VACATED. 

JURISDICTION AND COVERAGE 

The parties agree Williams Brothers timely contested the Citation. (Jt. Prehr’g Statement 

¶ D(4)). The parties further agree the Commission has jurisdiction over this action and Williams 

Brothers is a covered employer under the Act. (Id. at ¶¶ D(1) & (3)). Based on these stipulations 

and the record evidence, the Court finds the Commission has jurisdiction over this proceeding 

under § 10(c) of the Act, and Williams Brothers is a covered employer under § 3(5) of the Act. 

BACKGROUND 

Williams Brothers Construction & the I-610 Project 

Williams Brothers is a large employer in the highway construction industry, employing 

approximately 2,000 people. (Tr. 139). “At least 95%” of Williams Brothers’ construction work 

consists of contracts with the Texas State Department of Transportation (“TxDOT”) to construct 

and maintain highways in the State. (Tr. 337). 

At some point prior to the events in this case, Williams Brothers contracted with TxDOT 

to be the general contractor on a massive, multi-year construction project involving the “I-610 W. 

Loop/I-69 SW Freeway Interchange” (the “I-610 Project”) in southwest Houston. (Exh. C-14; Tr. 

39). The approximately $259 million project focused on “improv[ing] safety and mobility while 

reducing congestion by widening the connector ramps to two lanes, increasing sight distances and 

vertical clearances, and providing remedies to eliminate weaving.” (Exh. C-14). “The project also 

call[ed] for adding shoulders on the I-610 West Loop mainlane bridge over I-69 and adding 

detention ponds.” (Id.). The five-year project was to be “phased” and required “night and weekend 

road closures.” (Id.). 

Williams Brothers’ Traffic Control Plans, Policies, & Training 

Traffic Control Plans 

As a standard part of its standard contract with TxDOT, Williams Brothers agrees to follow 

certain policies and procedures regarding traffic control. (Exh. R-19, at 3 & 4; Tr. 38, 337, 371, 

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470-71). Foremost among these is the “Texas Manual on Uniform Traffic Control Devices” 

(“TxMUTCD” or “Texas Manual”), an over-900 page document developed and published by 

TxDOT which sets forth the “Texas standard for all traffic control devices installed on any street, 

highway, bikeway, or private road open to public travel,” with “traffic control devices” defined as 

“all signs, signals, markings, and other devices used to regulate, warn, or guide traffic, placed on, 

over, or adjacent to a street, highway, pedestrian facility, bikeway, or private road open to public 

travel ....” Tex. Manual on Uniform Traffic Control Devices at I-1, TEX. DEP’T OF TRANSP. (rev. 

2, eff. Oct. 2014) (available at https://ftp.txdot.gov/pub/txdot-info/trf/tmutcd/2011-rev-2/revision2.pdf); see also (Tr. 446-48, 455-57; Exhs. R-12, at 2; R-19, at 3 & 4). Williams Brothers also 

agrees to follow Traffic Control Plan Standard Sheets, which are issued by TxDOT’s Traffic Safety 

Division to modify and clarify the use of traffic control devices in various scenarios more generally 

described in the TxMUTCD. (Exhs. C-5, C-6, R-15, R-16; Tr. 274, 329-30, 337, 371, 446-48, 470-

71). 

The Court examines the legal nature of both the TxMUTCD and the TxDOT Standard 

Sheets more fully below in addressing Williams Brothers’ preemption argument. As a practical 

matter, Chapter 6 of the TxMUTCD is devoted to “Temporary Traffic Control Zones,” which 

include “an area of a highway where road user conditions are changed because of a work zone” 

and “an area of a highway with construction ... activities.” TxMUTCD § 6C.02 ¶¶ (1) & (2). 

Chapter 6 contains a multitude of “Standards,” “Support,” “Options,” and “Guidance” on the use 

of various traffic control devices in temporary work zones, including, for example, flaggers, 

barricades, signage, and lighting. See, e.g., TxMUTCD §§ 6E.01 (flaggers), GF.02 (other “traffic 

control devices” defined to include “all signs, signals, markings, and other devices used to regulate, 

warn, or guide road users ...”); see also id. at §§ 1A.13 ¶¶ (A) to (D) (defining “standard,” 

“guidance,” “option,” and “support”). The TxMUTCD also contains multiple “figures,” essentially 

diagrams, which offer general guidance on what traffic control devices should be utilized to create 

a temporary work zone on a roadway. See, e.g., id. at p. 679 (“Lane Closure on a Two-Lane Road 

Using Flaggers”). Meanwhile, TxDOT issues its “Standard Sheets” to make “minor changes” to 

the general guidance provided by the TxMUTCD and make it “more specific.” (Tr. 448, 461-62). 

As can be seen in the two Standard Sheets submitted at the hearing, the Standard Sheets are tailored 

to specific scenarios, including, as is relevant here, “Freeway Lane Closures” and “Work Area[s] 

Near [a] Ramp.” (Exhs. C-5, C-6, R-15, R-16; see also Exh. R-19, at 3 & 4; Tr. 448, 461-62). 

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There is a hierarchy as to which traffic-control plan a highway construction contractor, like 

Williams Brothers, should follow in a given situation. If there is a site-specific traffic-control plan 

for the project, i.e., one designed specifically for the project in question and certified by an 

engineer, it takes precedence over the guidelines set forth in both the Standard Sheets and the 

TxMUTCD. (Exh. R-19, at 3-4; Tr. 329, 461, 470). If there is no site-specific traffic-control plan, 

the Standard Sheets, which are more specific than the TxMUTCD, should be followed to the extent 

they differ from the TxMUTCD. (Exh. R-19, at 3-4; Tr. 329-30, 461, 470-71). If there is no 

Standard Sheet for a scenario presented by a given construction project, only then should the 

TxMUTCD alone govern traffic control for the project. (Exh. R-19, at 4; Tr. 461-62). However, 

the TxMUTCD and Standard Sheets are meant to be “read together” to determine what traffic 

control devices to utilize for a given construction project. (Tr. 233-34, 452-53). 

Traffic Control Devices 

Williams Brothers utilized several types of traffic controls devices for the I-610 Project 

generally and for the specific temporary work zone involved in this case. Of foremost focus to the 

parties was Williams Brothers’ use of “Truck Mounted Attenuators” (“TMAs”). A TMA is a type 

of “cushion” designed to absorb energy when struck by a vehicle and thereby prevent serious injury 

or death to the driver as well as prevent serious damage to the striking vehicle. (Exh. R-21, at 

04:45; Tr. 41, 54, 97, 383). A TMA is attached to a “shadow vehicle,” typically a flat-bed truck 

with a flashing arrow board mounted on top of it. (Exh. R-21, at 04:45; Tr. 42-43, 54). Together, 

the combination of the TMA and the shadow vehicle creates what the parties have referred to as a 

“crash truck.”2 (E.g., Tr. 54-55, 97, 144, 215, 254). When a crash truck is parked in a highway 

construction zone, it provides additional protection to workers in the “work space” or “work zone” 

immediately to the right of the truck by shielding them from the impact of any stray vehicles that 

might enter the enclosure. (Exhs. C-5 (“work space” indicated by asterisk to the right of crash 

trucks); C-6 (same); Tr. 41-43, 54-55, 68, 155-56, 305-06, 333-34, 396-97). 

Both Standard Sheets submitted at the hearing contained similar language on the use of 

crash trucks, language which has drawn a great deal of attention from both parties. First, under 

2 The nomenclature used at the hearing for these elements and their combination varied, with the terms “TMA,” 

“shadow vehicle,” and “crash truck” sometimes being used interchangeably. As the Court understands it, a TMA must 

be attached to a shadow vehicle to be fully functional. In other words, it offers no protection on its own accord. The 

Court will therefore use the term “crash truck” to refer to the combination of a TMA mounted on a shadow vehicle, 

mindful that sometimes attorneys and witnesses used the term “TMA” or “shadow vehicle” alone to refer to this same 

combination. 

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“General Notes,” the Standard Sheets state: “All traffic control devices illustrated are REQUIRED. 

Devices denoted with the triangle symbol may be omitted when stated elsewhere in the plans.” 

(Exhs. C-5, C-6, R-15, R-16). The Court notes the figures of the crash trucks depicted in the 

Standard Sheets do not have a triangle symbol on or near them. The Standard Sheets also both 

have a box on the right side of the sheet with the following language: “*A shadow vehicle equipped 

with a Truck Mounted Attenuator is typically required. A shadow vehicle equipped with a TMA 

shall be used if it can be positioned 30’ to 100’ in advance of the area of crew exposure without 

adversely affecting the work performance.” (Exhs. C-5, C-6, R-15, R-16). 

Williams Brothers utilized crash trucks as a means of traffic control for the I-610 Project, 

including, as the Court details later, at least one crash truck on the night the accident. The crash 

trucks could be moved by any Williams Brothers employee with a valid driver’s license. (Tr. 215-

16). However, the leader of the traffic control team would decide where to place the crash trucks, 

guided by the requirements of the traffic control plan in place for the worksite. (Tr. 206-07, 217, 

317-18, 387, 400). And generally, once a crash truck was placed in a work zone, an employee 

would need permission to move the truck if it became necessary to do so. (Tr. 308). The keys were 

left in the crash trucks in case such a need arose. (Tr. 217, 275, 308-09). 

Williams Brothers utilized several other types of traffic-control devices for the I-610 

Project, including signs, signals, barrels, temporary concrete barriers, “flashing arrow boards” with 

“oscillating strobing lights,” and reflective vests for its employees. (Exhs. R-1; R-18, at 

DOL000057, 60 & 61; R-21; Tr. 98, 206, 338-39, 369-90, 405). Williams Brothers also contracted 

with another company, “T-Mack Motorcycle and Escort Services,” to provide off-duty police 

officers during lane closures. (Exh. R-21, at 01:57, 02:57, 04:00, 04:45, 05:25; Tr. 80-82, 95-97, 

117-18, 127, 377-78, 380-82, 384, 387). These police officers would sit in their personal police 

vehicles with red and blue flashing lights to draw the traveling public’s attention to the lane 

closures. (Exh. R-21, at 01:57, 02:57, 04:00, 04:45, 05:25; Tr. 95-97, 377-78, 380-82, 384, 387). 

Traffic Control Training 

Orientation & Other Training 

Williams Brothers’ Safety Coordinator, Jairo Cortes, is responsible for training new and 

returning employees. (Tr. 350-51). His training responsibilities include training traffic control 

employees on traffic control rules and procedures. (Tr. 351). This training includes a “work zone 

class and orientation” and an eight-and-a-half-minute long video called “Work Zone Fundamental 

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Training,” which is created by TxDOT. (Tr. 335-36, 351). Williams Brothers has a “Safety Program 

Manual,” the 2019 version of which was in effect at the time of the accident. (Tr. 353). It is not 

clear whether employees are trained directly on the contents of the Manual; however, Cortes 

testified the “Life Giving Commitments” set forth in the Manual were “a big focus on safety that 

we have ... during the orientation” and proceeded to discuss the first commitment regarding the 

hazards associated with the “Traveling Public” at some length with Williams Brothers’ attorney at 

the hearing. (Exh. R-23, at WBC-Hwy-59-000420; Tr. 353-55). As evidenced by the two “Safety 

Orientation Training” checklists submitted at the hearing, a copy of this Manual is given to each 

employee during orientation training.3 (Exhs. R-6 & R-8). 

Williams Brothers also provides certain traffic control employees flagger training and other 

employees OSHA-10 training to become competent persons. (Exh. R-3; Tr. 295-96, 351). In 

addition to the training provided directly by Williams Brothers, traffic control employees are 

encouraged to take a 16-hour “Work Zone Traffic Control” course provided by the “Texas A&M 

Engineering Extension Service” (“TEEX”). (Tr. 230, 352). Among other subjects, this course 

covers the use of temporary traffic controls for temporary highway construction sites and the 

application of the TxDOT Standard Sheets. (Tr. 230-31, 298-99; Exh. R-13). 

Francisco Cisneros, a “Dirt Supervisor” at Williams Brothers who was overseeing all 

operations occurring at the worksite on the night of the accident, had received OSHA-10 training 

as well as attended the TEEX course at least twice, once on November 12 and 13, 2019, and again 

on October 15 and 16, 2020. (Exhs. R-4 & R-5; Tr. 296-98). Jonathan Gomez, a “Head Traffic 

Controller” at Williams Brothers who was responsible for placing the traffic control devices to 

close off the necessary portion of I-69 North the night of the accident, had received orientation 

training in July of 2019 and attended the TEEX course in November 17 and 18, 2020. (Exhs. R-6 

& R-7; Tr. 229-30). Finally, Gomez’s “helper” the night of the accident had received orientation 

training in July of 2019 and attended the TEEX Course on October 6 and 7, 2021. (Exhs. R-8 & 

R-9; Tr. 207-08, 213). 

3 Williams Brothers submitted into evidence what may represent an additional aspect of its traffic control training, a 

PowerPoint presentation entitled “Roadway Work Zones: ‘The Danger Zone.’” (Exhs. R-12). However, this exhibit 

was never discussed at the hearing, and no other evidence was adduced describing how, if at all, this PowerPoint 

presentation related to the training conducted by Cortes. But see Tr. 432 (Cortes generally describing the use of 

PowerPoint presentations when he conducts training). Without any testimony or other evidence to connect this 

presentation to its use in Williams Brothers’ training, the Court places no evidentiary weight on it or its contents. 

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Other Safety Policies 

Williams Brothers’ supervisors hold daily safety meetings prior to working in a temporary 

work zone, during which traffic control and hazards posed by the traveling public may be 

discussed. (Exhs. C-16 & R-10; Tr. 231-32, 280-82, 299-300, 352). Supervisors and “leadmen” 

are stationed at the work zone to oversee employees. (Tr. 288-89, 356-57). Williams Brothers 

submitted into evidence a copy of its discipline policy, which reads in relevant part as follows: “As 

a condition of employment, compliance with all company safety rules is expected. Failure to 

comply with certain rules will result in disciplinary action at the discretion of the supervisor. The 

discipline may range from a counseling statement, time off without pay, or termination.” (Exh. R11). No witness at the hearing discussed this policy directly, although Cisneros and Cortes testified 

generally to the discipline of employees who failed to follow Williams Brothers’ work rules. (Tr. 

288-89, 358, 432-33). And, as the Court details below, two employees, Cisneros and Gomez, were 

eventually disciplined in connection with the accident giving rise to the Citation. (Exhs. C-9, R2). 

Creating the Worksite on the Evening of October 29, 2021 

On October 29, 2021, Williams Brothers was preparing to open a portion of the finished I610 Project to the public. (Exh. C-2, at DOL000026; Tr. 49-50, 307, 360). This portion included 

two connector lanes, “Connector C” and “Connector F,” which, once opened, would connect I-69 

North to I-610 North and I-610 South, respectively. (Exhs. C-2, at DOL000026; C-8, at 1-6; R-17; 

Tr. 44-46, 51, 63-68, 247-49, 251-52, 303-04, 363). To open these lanes to the public, Williams 

Brothers needed to remove several temporary concrete barriers, which had been placed to block 

off the connector lanes during construction. (Exhs. C-2, at DOL000027 & 28; R-1; Tr. 247, 270, 

358-60). To remove the concrete barriers, Williams Brothers first needed to close several lanes of 

traffic on an approximately two-to-three mile stretch of I-69 in both directions. (Exhs. C-2, at 

DOL000026 & 27; R-17; Tr. 86, 126-27, 268, 317). On I-69 North, Williams Brothers planned to 

start the lane closure around the exit ramp to Chimney Rock Road and proceed eastward, past 

South Rice Avenue to the gore point of I-69 North and the connector lanes of I-610 North and 

South. (Exhs. C-2, at DOL000027 & 28; R-17, R-21, at 01:18 to 05:25; Tr. 212, 254, 376-90). 

Starting just past this gore point, there is a permanent concrete wall running between I-69 North 

and the I-610 connector lanes. (Exhs. C-8, at 8; R-21, at 05:20 to 05:40; Tr. 387). Thus, just past 

the closure planned for I-69 North on the night of the accident, traffic traveling on I-69 North was 

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physically separated from the soon-to-be-open connector lanes leading to I-610 North and South. 

(Exhs. C-8, at 8; R-21, at 05:20 to 05:40; Tr. 387). 

On the evening of October 29, Cisneros held a safety meeting offsite during which he 

discussed the lane closures occurring later that night. (Exhs. C-16, at 1; R-10, at 1; Tr. 280-83). 

After this safety meeting, at approximately 7:30 p.m., Williams Brothers’ “traffic control team” 

met separately at a site adjacent to the soon-to-be closed portion of I-69 called the “Old Katy Yard” 

to discuss their plan for closing off the necessary portions of the highway. (Tr. 207-10). One crew 

was responsible for the I-69 South side of the highway, the closing off of which is not otherwise 

implicated by the events in this case except to note Cisneros, who was overseeing all operations 

occurring on the I-610 Project the night of October 29 (including those for traffic control), was 

physically on the I-69 South side of the highway the entire time leading up to the accident. (Tr. 

207-10, 241-42, 255-56). The crew responsible for closing off the lanes on the I-69 North side of 

the highway was led by Gomez, who oversaw the work of a single “helper.” (Tr. 84, 206-07, 255, 

269, 271). These two employees arrived at the soon-to-be worksite around approximately 9 p.m. 

and began to place the necessary signs, barrels, and barriers to close off the aforementioned stretch 

of I-69 North from Chimney Rock Road to the gore point of I-69 North and I-610. (Exh. C-2, at 

DOL000026; Tr. 212). 

Ultimately, three lanes of I-69 North needed to be closed off for Williams Brothers and its 

subcontractors to perform their work in opening the I-610 connector lanes. (Exhs. C-2, at 

DOL000026; R-21, at 01:18, 02:36, 03:45; Tr. 255, 376, 380, 382). As documented by Cortes in a 

video taken the day following the accident, signage for the closure started as far west as Hillcroft 

Avenue, with intermittent signage (familiar signs such as “Road Work Ahead,” “Right Lane Closed 

Ahead,” and flashing arrow boards with arrows pointing left) warning of the closure as traffic 

approached Chimney Rock Road. (Exh. R-21, at 00:00 to 01:18; Tr. 369-75). At the gore point of 

I-69 and the exit ramp for Chimney Rock Road, Gomez placed the first set of orange barrels to 

start to close off the far-right lane of traffic. (Exh. R-21, at 01:18; Tr. 376). Gomez and his helper 

used “tapered” lane closures, wherein a flashing arrow board is proceeded by a string of orange 

barrels at regular intervals to allow drivers “time to be able to merge safely into the other lane 

that’s still open.” (E.g., Exh. R-21, at 01:18 to 01:40; Tr. 377). This tapering continued until three 

lanes of I-69 North were closed off and ended at the point where I-69 North became physically 

separated from the I-610 connector lanes by a permanent concrete wall. (Exhs. C-8, at 8; R-21, at 

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05:22 to 05:40; Tr. 254, 387). In addition to the barrels and signage used in the tapered lane closure, 

a number off-duty police officers in vehicles with flashing blue and red lights were interspersed 

throughout the closure to warn the traveling public.4 (Exhs. C-2, at DOL000026; R-21, at 01:57, 

02:57, 04:00, 04:45; Tr. 85-86, 96-99, 208, 214-15, 377-78, 380-82, 384-85). 

Around 9:30 p.m., two crash trucks arrived onsite near a “grassy area” of the entrance ramp 

to I-69 North from Chimney Rock Road. (Tr. 57-58, 273-74 317). Placing the crash trucks is the 

last part of the process of lane closure. (Tr. 318). According to Gomez, the TMA on one of the two 

crash trucks “wouldn’t crank,” i.e., would not turn on.

5 (Tr. 320). Gomez notified Cisneros who 

told him “somebody else was probably going to move it since we were done with our shift.” (Tr. 

321). From the time Gomez left it there until the time of the accident, no one moved this nonfunctioning crash truck from the entrance ramp of Chimney Rock Road. (Tr. 273, 320-22). As to 

the other crash truck, Gomez placed it “a little bit in front of” the gore point of I-69 and the 

connector lanes to I-610 North and South, i.e., in front of the start of the permanent concrete wall 

which separated I-69 and the I-610 connector lanes. (Exhs. C-2, at DOL000028; C-8, at 8; R-17, 

R-21, at 05:20 to 05:22; Tr. 217-18, 254, 319-20, 387). 

Gomez and his helper finished closing off the necessary lanes of I-69 North at 

approximately 10:30 p.m., at which time their shifts ended and another traffic control team took 

over. (Exh. C-2, at DOL000027; Tr. 321). Williams Brothers and several of its subcontractors then 

commenced multiple jobs at multiple locations throughout the enclosed worksite. (Exh. C-2, at 

DOL000027 & 28; Tr. 49-50, 247, 358-62). Of particular relevance to the events occurring later 

that night, one crew of PTC workers was re-striping near the gore point of I-69 North and the I4 According to Thomas Mack, the owner of the subcontractor who supplied these officers, “a total of 13 officers” were 

at the worksite the night of the accident. (Tr. 86). It is not clear whether these thirteen officers were all stationed on 

the I-69 North side of the highway, or if they were split between I-69 North and South. Gomez could account for the 

exact whereabouts of six officers along various points in the enclosure on I-69 North and stated “the remaining officers 

were at the end of the closure.” (Tr. 214-15). Mr. Mack marked two of the Secretary’s photos to indicate where two 

additional officers were stationed near the gore point of I-610 North and South. (Exh. C-8A; Tr. 92-94). 

5 As detailed earlier, a TMA merely acts as a cushion and needs to be mounted to a shadow vehicle to provide any sort 

of protection to workers. (Exh. R-21, at 04:45; Tr. 41-43, 54, 97, 383). The Court is unsure from the evidence presented 

if a TMA also needs to be activated in some other way to be effectively utilized. It is thus not clear if Gomez was 

referring to the actual TMA when he testified “[i]t wouldn’t crank” or if he was referring to other elements of the crash 

truck, such as the flashing arrow board or the shadow vehicle. (Tr. 320; see also Exh. R-21, at 04:45). As the Court 

has previously noted, at the hearing the term “TMA” was sometimes used interchangeably to describe the entire crash 

truck combination of a TMA mounted on a shadow vehicle with a flashing arrow board attached. See note 2. Gomez 

later testified he tried giving the TMA a “jumper cable jump,” which suggests it was the shadow vehicle part of the 

crash truck malfunctioning. (Tr. 322). Whatever the specific element of the crash truck Gomez was referencing, it 

suffices to say he found one of the two crash trucks inoperable in some way and thus did not utilize that crash truck 

the night of the accident. 

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610 connector lanes, while another crew was re-striping further east on the connector lane for I610 South. (Exhs. C-2, at DOL000027 & 28; C-7, at 3; C-8, at 8; R-21, at 05:19 to 05:25; Tr. 254-

55, 358). Meanwhile, the temporary concrete barriers near the gore point of the I-610 North and 

South connector lanes were removed, leaving behind trash, “dust,” and other debris. (Exh. C-2, at 

DOL000027; Tr. 247, 358-60, 366). A Williams Brothers employee was assigned to clear up the 

trash and debris at this location. (Exh. C-2, at DOL000027; Tr. 359, 366, 387-89). 

The location Gomez left the crash truck, in front of the permanent concrete wall separating 

I-69 North and the I-610 connector lanes, was in the immediate vicinity of the first crew of PTC 

workers re-striping that stretch of the highway and approximately 700 feet from the Williams 

Brothers employee who was cleaning up the trash and debris at the gore point of the I-610 

connector lanes.6 (Exhs. C-2, at DOL000028; R-17; Tr. 218-19). At some point prior to the 

accident, this crash truck was moved westward because it was impeding the first PTC crew’s restriping work. (Tr. 385, 400-03). The new location of the crash truck, on the “hill” of the overpass 

of I-69 and South Rice Avenue, was approximately 400 feet from the first PTC crew and 

approximately 1,300 feet from the Williams Brothers employee. (Exhs. C-2, at DOL000028; R17; Tr. 145, 254, 274, 277, 400). Nothing in the record affirmatively established who moved the 

crash truck to this location; however, Cortes believed it was someone from PTC rather than a 

Williams Brothers employee. (Tr. 400-01). 

Two Vehicles Enter the Work Zone 

Sometime after midnight on October 30, two unauthorized, private vehicles entered the 

enclosure on I-69 North.

7 The first vehicle entered and passed through seemingly without incident. 

6 Several witnesses estimated the distance between the various employees working on I-69 North and the sole 

functional crash truck as its location changed throughout the night. (Exh. C-2, at DOL000028 & 31; Tr. 145, 217-19, 

277-78, 279-80). In the CSHO’s Safety Narrative, he included a diagram created from Google Maps approximating 

the relative locations of the crash truck, the PTC crews, and the William Brothers employee, along with a distance 

measuring tool spanning, in 50-foot intervals, from South Rice Avenue to the gore point of I-610 North and South 

where the Williams Brothers employee was cleaning up trash and debris. (Exh. C-2, at DOL000028; Tr. 145). Neither 

party has questioned the accuracy of the measurement in this diagram; indeed, Williams Brothers submitted the same 

diagram as part of its stipulated exhibits. (Exh. R-17). The Court finds this diagram reasonably reliable in calculating 

the approximate distances between various points of the work zone and has used it in conjunction with witness 

testimony in setting forth its findings of fact on this issue. Cf., e.g., Pahls v. Thomas, 718 F.3d 1210, 1216 n.1 (10th 

Cir. 2013) (taking judicial notice of a Google Map to show the general location of events relevant to the 

litigation); Global Control Sys., Inc. v. Luebbert, No. 4:14–CV–657–DGK, 2015 WL 753124, *1 n.1 (W.D. Mo. Feb. 

23, 2015) (taking judicial notice of a Google Maps search to establish the approximate distance between two 

locations); Petrongolo Contractors, Inc., No. 20-0786, 2021 WL 5230473, at *5 n.2 (O.S.H.R.C.A.L.J., Sept. 28, 

2021) (using Google Maps to estimate the distance between two points). 

7 The reason for these multiple entries was the subject of some speculation at the hearing. By all accounts, traffic was 

abnormally heavy the night of October 29, 2021, in part due to it being the weekend of Halloween and also in part to 

11 
 

 

 

 

 

 

 

 

 

 

 

(Exh. C-2, at DOL000029; Tr. 145, 283-84, 305). The second vehicle, however, entered the 

enclosure at approximately 12:50 a.m. and struck a PTC employee near the I-69/I-610 gore point 

where the first crew was re-striping. The driver then proceeded along the connector lane for I-610, 

struck the Williams Brothers employee who was cleaning near the gore point of the I-610 

connector lanes, proceeded further along I-610 South, and struck another PTC employee from the 

second crew. (Exhs. C-2, at DOL000029; C-7, at 3 & 4; R-21, at 05:19; Tr. 56-57, 366-67, 386-

88). The driver of this second vehicle did not stop after striking the three workers, and, although 

Mr. Mack, one of the off-duty police officers onsite, followed the vehicle for a brief while, the 

driver was never apprehended. (Exh. C-7, at 2; Tr. 103-06). The PTC employees who were struck 

suffered only minor injuries, while the Williams Brothers employee suffered head injuries and a 

hip fracture, resulting in surgery and a brief hospitalization. (Exh. C-2, at DOL000029; Tr. 57, 148-

49, 286). 

After medical and other emergency personnel had tended to the scene of the accident, 

Cisneros moved the crash truck from its location over South Rice Avenue closer to its original 

location at the gore point of I-69 and the I-610 connector lanes “[b]ecause everybody was nervous 

and ... [he] want[ed] to make them feel better.” (Tr. 305-306; see also Tr. 385, 401). However, 

after the PTC crew resumed working near the gore point, the crash truck needed to be moved back 

to South Rice Avenue to accommodate PTC’s re-striping work. (Tr. 306-07, 403). 

Post-Accident Discipline 

Nearly five months after the accident, on March 21, 2022, Cisneros, at the direction of his 

supervisor, disciplined Gomez in the form of an “Environmental & Safety Counseling Notice.” 

(Exhs. C-9, R-2, at 1; Tr. 225-26, 289-92). Cisneros issued this Notice because “[t]raffic control 

device(s) on the [I-610] project were not set up properly per TxDOT standard sheets.” (Exhs. C-9, 

R-1, at 1). Particularly, Gomez was alleged to have missed a “Right Lane Closed Ahead” sign 

when closing off the portion of I-69 North. (Tr. 225-26, 291). Gomez received a “written & verbal 

warning.” (Exh. C-9, R-2, at 1). On the same date, Cisneros, again at the direction of his supervisor, 

also did a “self-write up” by issuing an “Environmental & Safety Counseling Notice” to discipline 

himself in connection with the accident. (Exh. R-2, at 2; Tr. 293-94). Like Gomez, Cisneros 

it being the night of the Houston Astros’ final game in the World Series, losing to the Atlanta Braves. (Tr. 148, 302-

03). This same combination of factors led the CSHO to surmise more drivers were intoxicated that night. (Tr. 148). 

Although some witnesses hinted one or both of the drivers who entered the worksite was intoxicated, there was no 

affirmative evidence this was the case for either driver. 

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received a “written & verbal warning” because “[t]raffic control device(s) on the [I-610] project 

were not set up properly per TxDOT standard sheets,” particularly the same missing “Right Lane 

Closed Ahead” sign. (Exh. R-2, at 2; Tr. 293). 

OSHA’s Investigation & Citation 

Williams Brothers reported its employee’s injuries to OSHA the Sunday following the 

accident, November 1, 2021. (Exh. C-2, at DOL000025; Tr. 135). The following day, CSHO Peter 

Vo was assigned to investigate the accident. (Exh. C-2, at DOL000025; Tr. 134-35). Because the 

lane closures had already been taken down and the new traffic lanes opened to the traveling public, 

the CSHO had no physical worksite to inspect. (Tr. 137). So, on Tuesday, November 3, he held an 

opening conference at Williams Brothers’ home office with Williams Brothers’ Safety Director, 

John Fleck, and Safety Coordinator Cortes. (Exh. C-2, at DOL000033; Tr. 136-37). 

After conducting interviews, reviewing documentation, and speaking with employees at 

TxDOT, the CSHO concluded Williams Brothers had violated the General Duty Clause by failing 

to protect its employee from the recognized struck-by hazards posed when working in a highway 

construction zone. (Tr. 137-39). Having received conflicting information on whether crash trucks 

were ever onsite, he further concluded a feasible means of abatement of the struck-by hazard was 

to place a crash truck 30’ to 100’ feet from the active work crews, per TxDOT’s TCP (6-1)-12 and 

(6-2)-12 Standard Sheets. (Exhs. C-5, C-6, R-15, R-16; Tr. 144-45, 153-55, 187-88). 

Based on the CSHO’s investigation, OSHA issued the one-item serious Citation to 

Williams Brothers. 

PREEMPTION 

As an initial matter, Williams Brothers argues the General Duty Clause violation alleged 

in the Citation is preempted by 29 U.S.C. § 653(b)(1). Resp’t’s Br. 12-15. The Supreme Court has 

referred to 29 U.S.C. § 653(b)(1) as implicating “OSHA’s jurisdiction,” and so the Court addresses 

this argument before addressing the elements of the Secretary’s case. See Chao v. Mallard Bay 

Drilling, Inc., 534 U.S. 235, 241 (2002); cf. Cook v. Reno, 74 F.3d 97, 99 (5th Cir. 1996) (“Before 

ruling on the merits of the case, it is imperative that the court first determine whether it has 

jurisdiction to hear the suit; if jurisdiction is lacking, then the court has no authority to consider 

the merits.”). 

Williams Brothers relies on the TxMUTCD and the Traffic Control Plan Standard Sheets 

issued by TxDOT as the bases for its preemption argument. Resp’t’s Br. 14. Before addressing the 

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substance of Williams Brothers’ argument, these materials, as well as the federal “Manual on 

Uniform Traffic Control Devices” (“MUTCD” or “Federal Manual”), must be put in their proper 

legal context. The Court therefore will first examine the background and legal significance of the 

Federal Manual, before addressing the same issues regarding the Texas Manual. The Court will 

then examine the legal significance, if any, of the Standard Sheets submitted at the hearing. (Exhs. 

C-5, C-6, R-15, R-16). 

The FHWA & the Federal Manual 

The Federal Highway Administration (“FHWA”) is an agency housed within the United 

States Department of Transportation. See 49 C.F.R. § 1.84; 5 West’s Fed. Admin. Prac. § 5325. 

The FHWA’s main function is to administer the Federal-Aid Highway Program, which assists state 

highway departments by providing federal funding for the “planning, design and construction” of 

highways. Lathan v. Brinegar, 506 F.2d 677, 682 (9th Cir. 1974); see also 23 U.S.C. § 101 et seq. 

(Federal-Aid Highway Act); 23 C.F.R. § 1.1 (“The purpose of the regulations in this part 

[governing the FHWA] is to implement and carry out the provisions of Federal law relating to the 

administration of Federal aid for highways.”); 5 West’s Fed. Admin. Prac. § 5326. To this end, the 

FHWA “ascertains that the state highway departments have adhered to federal law and regulations 

before authorizing reimbursement to the states for a portion of the federal-aid highways’ cost.” 

Lathan, 506 F.2d at 682. “This adherence to federal standards is assured by requiring the state 

highway departments to obtain federal approval at various stages during the conception and 

building of a highway project.” Id. 

One of the FHWA’s goals in approving federally funded highway projects is “to obtain 

basic uniformity of traffic control devices on all streets and highways ....” 23 C.F.R. § 655.601. In 

furtherance of that goal, the FHWA is tasked with periodically revising and publishing the 

MUTCD. See 23 C.F.R. §§ 655.601(a), 655.603(a); see also Oliver v. Ralph’s Grocery Co., 654 

F.3d 903, 909 (9th Cir. 2011). The MUTCD itself echoes its goal of “obtain[ing] basic uniformity 

of traffic control devices,” defined as “all signs, signals, markings, and other devices used to 

regulate, warn, or guide traffic, placed on, over, or adjacent to a street, highway, pedestrian facility, 

bikeway, or private road open to public travel ....” Manual on Uniform Traffic Control Devices 

for Streets & Highways at I-1, FED. HIGHWAY ADMIN. (2009 ed., eff. June 2012) (available at 

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https://mutcd.fhwa.dot.gov/pdfs/2009r1r2/mutcd2009r1r2edition.pdf).8 The MUTCD is 

expansive, nearly one thousand pages long, and covers a variety of topics including, as is most 

relevant for purposes of this case, temporary traffic control in work zones. See MUTCD, Ch. 6G. 

Although it is often couched in mandatory language, the Federal Manual, by its own terms, 

only “describes the application of traffic control devices, but shall not be a legal requirement for 

their installation,” and accounts for changes “made on the basis of either engineering study or the 

application of engineering judgment.” MUTCD, at § 1A.09, ¶¶ 2 & 3; but see id. at § 1A.13, ¶ 1(A) 

(defining a “standard” as “a statement of required, mandatory, or specifically prohibitive practice 

regarding a traffic control device.”); see also, e.g., id. at § 6G.02, ¶ 4 (stating “retroreflective and/or 

illuminated devices shall be used in long-term stationary [temporary traffic control] zones.” 

(emphasis added)). Federal courts have rejected many kinds of claims premised on the MUTCD 

being binding or mandatory, rather than precatory. See, e.g., Cope v. Scott, 45 F.3d 445, 451 (D.C. 

Cir. 1995) (finding the MUTCD “is more of a guidebook” than a “specific prescription”); 

Wasserman v. City of New York, 802 F. Supp. 849, 855 (E.D.N.Y.1992) (finding no liability for 

city for placement of signs allegedly in violation of MUTCD because its suggested posting 

distances were “guides”), aff’d, 60 F.3d 811 (2d Cir.1995) (table); Peruta v. City of Hartford, No. 

3:09-CV-1946 VLB, 2012 WL 3656366, at *14 (D. Conn. Aug. 24, 2012) (“[The] MUTCD should 

therefore be viewed more as an aspirational guide, like uniform building codes. Since [the] 

MUTCD is not controlling or binding, it cannot support a plausible Supremacy Clause claim.”); 

Holland v. Gay, No. CIV.A. 7:05CV85 HL, 2006 WL 2374788, at *4-5 (M.D. Ga. Aug. 16, 2006) 

(“Because § 655.603(b) [regarding the adoption of the MUTCD] is couched in precatory, rather 

than mandatory terms, it is insufficient to impose a binding obligation on the State. Therefore, it 

is insufficient to create an individual right.”); Buchwald v. Metro. Transp. Comm’n, No. 04-01833 

8 The accident giving rise to the Citation in this case occurred on October 30, 2021. The effective MUTCD on that 

date was the 2009 Edition, which had two revisions effective as of June 13, 2012. See Previous Editions of the 

MUTCD, FED. HIGHWAY ADMIN., https://mutcd.fhwa.dot.gov/previous_editions.htm (last visited Feb. 21, 2024). 

Subsequent to the date of the accident, a third revision was added to the 2009 edition of the MUTCD, with an effective 

date of September 6, 2022. Id. Subsequent to the third revision of the 2009 Manual, the FHWA published an entirely 

new edition, described as the “11th Edition,” with an effective date of January 18, 2024. See “National Standards for 

Traffic Control Devices; the Manual on Uniform Traffic Control Devices for Streets and Highways; Revision,” 88 

Fed. Reg. 87,672-696 (Dec. 19, 2023). Details of these changes are set forth at Revision 3 Pages to the 2009 MUTCD, 

FED. HIGHWAY ADMIN., https://mutcd.fhwa.dot.gov/pdfs/2009r1r2r3/mutcd2009r2r3pages.pdf (last visited Feb. 21, 

2024) and at 88 Fed. Reg. 87,672-696. Neither revision substantially changed the scope or purpose of the MUTCD, 

which is set by regulation. See 23 C.F.R. § 655.601; compare, 2009 MUTCD, at I-1, with 11th Ed. MUTCD, at 

§ 1A.01. The Court’s citations to the MUTCD in this decision are to the version effective on the date of the accident, 

i.e., the 2009 Edition with its first two revisions. 

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SC, 2005 WL 2000931, at *4 (N.D. Cal. Aug. 16, 2005) (“This Court is persuaded that the 

MUTCD does not provide the kind of mandatory regulations contemplated by the” Federal Tort 

Claims Act); see also CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 669 (1993) (finding it 

“implausibl[e] ... state negligence law has been implicitly displaced by means of an elliptical 

reference in [the MUTCD, which is] otherwise devoted to describing for the benefit of state 

employees the proper size, color, and shape of traffic signs and signals” and noting the Federal 

Manual’s own disclaimer it is “not a legal requirement for installation.”). 

The Texas Manual 

States wanting to receive federal funds to aid in highway construction have three options 

regarding the prescriptions set forth in the MUTCD. The state must either: 1) “adopt the federal 

MUTCD as a state regulation,” 2) “adopt a state MUTCD that is approved by the Secretary of 

Transportation as being in ‘substantial conformance’ with the federal MUTCD,” or 3) “adopt the 

federal MUTCD in conjunction with a state supplement.” Oliver v. Ralphs Grocery Co., 654 F.3d 

903, 909-10 (9th Cir. 2011), citing 23 U.S.C. §§ 109(d), 402(c); 23 C.F.R. § 655.603(b)(3). Texas 

opted for the second option, i.e., “adopt[ing] a state MUTCD that is approved by the Secretary of 

Transportation as being in ‘substantial conformance’ with the federal MUTCD....” Id. 

The “Texas Manual on Uniform Traffic Control Devices” (“TxMUTCD” or “Texas 

Manual”) is published by the Texas Transportation Commission, a division of TxDOT. See Tex. 

Transp. Code Ann. § 544.001 (West 2024); see also id. at §§ 201.001(a)(1); 201.051; Tex. Manual 

on Uniform Traffic Control Devices, TEX. DEP’T OF TRANSP. (rev. 2, eff. Oct. 2014) (available at 

https://ftp.txdot.gov/pub/txdot-info/trf/tmutcd/2011-rev-2/revision-2.pdf). The FHWA has, by all 

accounts, approved the TxMUTCD as being in “substantial conformance” with the Federal 

Manual.9 See Texas Dep’t of Transportation v. Galloway-Powe, No. 10-19-00130-CV, 2021 WL 

3413137, at *5 (Tex. App. Aug. 4, 2021) (“Further, the FHWA determined that the 2011 Texas 

Manual is in substantial conformance with the National Manual.”); see also TxMUTCD, at i, iv, 

v, I-1. As such, the TxMUTCD “appl[ies] to all traffic control devices installed on or after the 

adoption of this manual upon the highway, roads, and streets” in Texas, and, like the Federal 

Manual, defines “traffic control devices” as “all signs, signals, markings, and other devices used 

9 According to California’s state highway agency, FHWA sends a “letter of substantial conformance” when it approves 

a state MUTCD. See CA Manual on Uniform Traffic Control Devices, CALTRANS, https://dot.ca.gov/programs/safetyprograms/camutcd (last visited Feb. 21, 2024). The Court was not able to find a copy of the letter approving the 

TxMUTCD and thus the form and substance of the FHWA’s approval of the TxMUTCD is unknown. 

16 
 

 

 

 

 

 

 

 

 

to regulate, warn, or guide traffic, placed on, over, or adjacent to a street, highway, pedestrian 

facility, bikeway, or private road open to public travel....” TxMUTCD, at v, I-1. 

As with its Federal counterpart, the TxMUTCD “does not establish a mandatory legal duty 

to install particular traffic control devices,” but “is a standard for design and application of traffic 

control devices,” and “is not a substitute for engineering judgment.” TxMUTCD, at I-2; see also 

id. (“The provisions of [the TxMUTCD] do not create mandatory duties, as opposed to 

discretionary duties, in the legal sense under the Texas Tort Claims Act and elsewhere.”). 

As construed by Texas courts, the Texas Manual has been held to be entirely discretionary, 

bestowing no legal rights and creating no legal obligations. See State Dep’t of Highways & Pub. 

Transp. v. King, 808 S.W.2d 465, 466 (Tex. 1991); Tex. Dep’t of Transp. v. Perches, 339 S.W.3d 

241, 252 (Tex. App. 2011) (“We first note that compliance with the MUTCD’s provisions is 

generally not mandatory.”), aff’d in part, rev’d in part, 388 S.W.3d 652 (Tex. 2012); Brazoria 

Cnty. v. Van Gelder, 304 S.W.3d 447, 454 (Tex. App. 2009) (“We note, parenthetically, that 

compliance with the Manual’s provisions is not mandatory.”); Tex. Dep’t of Transp. v. Andrews, 

155 S.W.3d 351, 359 (Tex. App. 2004) (“TxDOT’s duty to comply with the Texas Manual is 

discretionary....”); see also Bellnoa v. City of Austin, 894 S.W.2d 821, 824 (Tex. App. 1995); 

Dunn v. City of Tyler, 848 S.W.2d 305, 307-08 (Tex. App. 1993); Villarreal v. State, 810 S.W.2d 

419, 420-21 (Tex. App. 1991). 

TxDOT Standard Sheets 

In addition to the TxMUTCD, TxDOT, through its Traffic Safety Division, also issues 

traffic control-related “Standard Sheets.”10 Traffic Standards, TEX. DEP’T OF TRANSP., 

https://www.dot.state.tx.us/insdtdot/orgchart/cmd/cserve/standard/toc.htm (last visited Feb. 21, 

2024). Some of these Standard Sheets touch upon traffic control in work zones, and the Citation 

pointed to two of these in particular: TCP (6-1)-12, a “Traffic Control Plan [for] Freeway Lane 

Closures,” and TCP (6-2)-12, a “Traffic Control Plan [for a] Work Area Near [a] Ramp.” (Exhs. 

C-5, C-6, R-15, R-16). The Texas Administrative Code contemplates the existence of the Standard 

Sheets as part of a “design manual” referenced in various parts of the Code, see, e.g., Tex. Transp. 

10 The Court was unable to ascertain the exact process by which the Standard Sheets are developed or issued and could 

find no evidence the Standard Sheets go through any sort of process similar to notice-and-comment rulemaking. As 

best as the Court can tell, the Standard Sheets are issued from the Director of the TxDOT Traffic Safety Division by 

way of a simple memorandum to TxDOT’s “District Engineers.” See, e.g., Memorandum, Re: “Revisions to TCP(2-

3)-23, TCP(2-7)-23, & TCP(2-8)-23 Standard Sheets,” (April 11, 2023) (available at 

https://ftp.dot.state.tx.us/pub/txdot-info/cmd/cserve/standard/traffic/memo4-11-23.pdf). 

17 
 

 

Code Ann. §§ 6.2(5)(J); 27.31(4)(E); 27.51(4)(J), but does not make clear how they otherwise 

relate to legal requirements for contractors like Williams Brothers performing highway 

construction work in Texas. 

Thus, the exact legal status of the Standard Sheets is not clear to the Court, and the parties 

have not briefed the issue other than to discuss the meaning and requirements of the two sheets 

introduced into evidence in this case. However, at the hearing, an Area Engineer for TxDOT, 

Hamoon Bahrami, explained TxDOT issues the Standard Sheets as “minor changes” to the 

TxMUTCD or to make its provisions “more specific” to particular scenarios. (Tr. 448, 461-62). 

Bahrami further explained the TxMUTCD and Standard Sheets both apply to highway 

construction worksites, like the one at issue here, and have to be “look[ed] at both together” to 

understand their respective requirements. (Tr. 452-53; see also Tr. 233-34). Where the TxMUTCD 

and a given Standard Sheet conflict on a matter, the Standard Sheet should be followed. (Tr. 461). 

Bahrami’s assistant laid out this hierarchy of traffic control plans in detail to the CSHO in 

an email exchange between the two: 

The TxDOT TCP standard plan sheets (such as TCP (6-1)-12) are based on the 

MUTCD but in some cases may add additional requirements that may either be 

optional on the MUTCD or not required at all on the MUTCD. If the contractor is 

performing a temporary closure that does not have a site-specific TCP plan that was 

specifically created for that closure then the contractor must use the appropriate 

TCP standard plan sheet included in the plans that applies to the situation. In this 

case where the TCP plan conflicts with the MUTCD, the contractor is supposed to 

go by the TCP plan. I believe the only case where the contractor should go strictly 

off the MUTCD is when there is no site-specific TCP plan in the contract and there 

is no TCP standard plan in the contract that can be applied to the situation. 

In short, when it comes to any discrepancy or conflicts between the site-specific 

TCP plans that are sealed by an engineer, TCP standard plans, and the MUTCD: 

site-specific TCP plan that are sealed by engineer take precedence over TCP 

standard plans and TCP standard plans take precedence over the MUTCD on a 

contract. 

That all being said, if there is ever any confusion in the field when it comes to 

setting up traffic control or what TCP applies, the bottom line is at the very least 

they need to follow the MUTCD requirements. 

(Exh. R-19, at 3-4; Tr. 460-62; see also Tr. 329-30 (Williams Brothers’ Safety Director describing 

a similar hierarchy in traffic-control plans)). 

The Court concludes, based on the available evidence, the TxDOT Standard Sheets, which 

are issued as modifications and clarifications of the TxMUTCD, simply provide guidance for the 

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placement of traffic control devices in various scenarios. Despite containing some mandatory 

language, the Court finds the Standard Sheets do not create legal rights or obligations, just like the 

TxMUTCD which itself contains a great deal of mandatory language but has been held to be 

discretionary in nature. See note 13, infra (citing cases); see also, e.g., Tex. Transp. Code Ann. 

§ 27.74(d) (requiring compliance with both the TxMUTCD and various “design manuals,” of 

which the standard sheets are a part). 

Merits of Williams Brothers’ Preemption Argument 

Analytical Framework 

Having contextualized the relevant legal landscape, the Court turns to the merits of 

Williams Brothers’ preemption argument. Its argument relies on 29 U.S.C. § 453(b)(1), which 

states: “Nothing in [the Act] shall apply to working conditions of employees with respect to which 

other Federal agencies, and State agencies acting under section 2021 of Title 42, exercise statutory 

authority to prescribe or enforce standards or regulations affecting occupational safety or health.” 

In Chao v. Mallard Bay Drilling, Inc., 534 U.S. 235 (2002), the Supreme Court interpreted 

29 U.S.C. § 653(b)(1) and held “Congress’ use of the word ‘exercise’ makes clear that ... mere 

possession by another federal agency of unexercised authority to regulate certain working 

conditions is insufficient to displace OSHA’s jurisdiction.” Id. at 241. The Court further held 

“another federal agency’s minimal exercise of some authority over certain conditions ... does not 

result in complete pre-emption of OSHA jurisdiction, because the statute also makes clear that 

OSHA is only pre-empted if the working conditions at issue are the particular ones ‘with respect 

to which’ another federal agency has regulated, and if such regulations ‘affec[t] occupational safety 

or health.’” Id. Thus, to determine whether another federal agency has “displaced[d] OSHA’s 

jurisdiction, this Court must “examine the contours of the [agency’s] exercise of its statutory 

authority, not merely the existence of such authority.” Id. at 242. 

Federal Agency Action 

In this instance, the Court finds Williams’ Brothers argument fails to meet an antecedent 

threshold to qualify for preemption under 29 U.S.C. § 653(b)(1). Specifically, a standard or 

regulation can displace OSHA’s jurisdiction only when “[an]other Federal agenc[y]” has 

exercised its authority over occupational safety and health.11 29 U.S.C. § 653(b)(1) (emphasis 

11 The Court recognizes 29 U.S.C. § 653(b)(1) contemplates some limited state agency regulation is also capable of 

displacing OSHA’s jurisdiction. The provision referenced in the middle clause of the preemption provision, “section 

2021 of Title 42,” relates to the Atomic Energy Commission’s “[c]ooperation with States” regarding the regulation 

19 
 

 

 

 

 

 

 

 

 

 

 

 

added); see also Mallard Bay Drilling, 534 U.S. at 240-41 (emphasizing the involvement of other 

federal agencies under the preemption provision). Here, Williams Brothers’ preemption argument 

is premised on the TxMUTCD and the TxDOT Standard Sheets, guidance documents published 

by a state transportation agency, TxDOT, and incorporated into Texas’s Transportation Code. Tex. 

Transp. Code Ann. §§ 6.2(5)(J); 27.31(4)(E); 27.51(4)(J); 544.001. The Court can find no instance, 

and Williams Brothers has cited none,12 of a court finding a state standard or regulation has 

displaced OSHA’s authority under 29 U.S.C. § 653(b)(1). 

Nor does the Court find the FHWA’s “approval” of the TxMUTCD as being in “substantial 

conformance” with the Federal Manual somehow converts the TxMUTCD (or the Standard Sheets 

issued as supplements thereto) into federal agency action. Cf. PBR, Inc. v. Sec’y of Labor, 643 

F.2d 890, 896-97 (1st Cir. 1981) (safety rules issued by a contractor of the Department of 

Transportation were “similar to internal safety regulations and c[ould] not be viewed as official 

agency rules which must be promulgated according to APA procedures” and thus could not 

displace OSHA’s authority under 29 U.S.C. § 653(b)(1)); cf. also Ringsred v. City of Duluth, 828 

F.2d 1305, 1308 (8th Cir.1987) (Secretary of Interior’s approval of contract between an Indian 

Tribe and a municipality concerning construction of parking ramp not “major federal action” under 

National Environmental Policy Act because it was not required and only “incidental” to the 

and disposal of nuclear waste. See generally 42 U.S.C. § 2021. This subject matter is not implicated by the events in 

this case. 

12 Williams Brothers does cite one case, Pa. Elec. Co. v. Fed. Mine Safety & Health Review Comm’n, 969 F.2d 1501 

(3d Cir. 1992), in which the Third Circuit set forth a “two-step inquiry” for determining whether a standard or 

regulation has preempted OSHA’s authority under 29 U.S.C. § 653(b)(1). Pa. Elec. Co., 969 F.2d at 1504. There, the 

court appears to have held state agency regulation is capable of preempting OSHA’s authority under 29 U.S.C. 

§ 653(b)(1), formulating its two-step inquiry as follows: “whether: (1) a regulation was promulgated by a state or 

federal agency other than OSHA; and (2) whether the regulation promulgated covers the specific “working conditions” 

at issue.” Id. (emphasis added). 

The Court rejects the Third Circuit’s two-step inquiry to the extent it includes state agency regulations. The case 

the Third Circuit cited in Pa. Elec. Co. in formulating its two-step inquiry, Columbia Gas of Pa., Inc. v. Marshall, 636 

F.2d 913 (3d Cir.1980), only discussed whether a “coordinate federal agency” has exercised its authority so as to 

displace OSHA’s. Columbia Gas, 636 F.2d at 915. The Columbia Gas case makes no mention of state agency 

regulations. Indeed, the Pa. Elec. Co. court itself was dealing with federal regulations from the Mine Safety and Health 

Administration, and thus its inclusion of state agency regulation was not necessary to the resolution of the case before 

it. It is possible the Pa. Elec. Co. court included state agencies in its two-step inquiry based on the very limited type 

of state agency regulations actually contemplated by 29 U.S.C. § 653(b)(1). See note 11, supra. In any event, even if 

the Third Circuit intended to include all state agency regulations in its two-step inquiry, this Third Circuit caselaw is 

not binding for purposes of this Fifth Circuit case. See 29 U.S.C. §§ 660(a) & (b) (describing where Commission final 

orders may be appealed including the Circuit where the violation occurred or where the employer has its principal 

place of business); Kerns Bros. Tree Serv., No. 96-1719, 2000 WL 294514, at *4 (O.S.H.R.C., March 16, 2000) 

(“Where it is highly probable a case will be appealed to a particular circuit, the Commission has generally applied the 

precedent of that circuit in deciding the case, even though it may differ from the Commission’s precedent.”). 

20 
 

 

 

 

project); Save the Bay, Inc. v. U.S. Corps of Eng’rs., 610 F.2d 322, 327 (5th Cir.1980) (Corps of 

Engineers’ issuance of a pipeline permit did not turn construction of private manufacturing plant 

into a “major federal action” for purposes of the National Environmental Policy Act because it was 

only “incidental federal involvement.”). 

Standard or Regulation 

Even if the TxMUTCD or the Standard Sheets could be considered federal action by way 

of the FHWA’s approval of the TxMUTCD, the Court still does not find they qualify for 

preemption under 29 U.S.C. § 653(b)(1). The provision requires an agency to have “authority to 

prescribe or enforce standards or regulations affecting occupational safety or health....” 29 U.S.C. 

§ 653(b)(1) (emphasis added). And, as interpreted by the Supreme Court in Mallard Bay Drilling, 

the agency must actually exercise its authority in the form of a “standard or regulation.” Mallard 

Bay Drilling, 534 U.S. at 241-42. 

Here, there is no question TxDOT has acted to develop and publish the Texas Manual and 

its Traffic Division’s Standard Sheets. However, the Court does not find these documents meet the 

definition of a “standard or regulation” sufficient to displace OSHA’s authority under 29 U.S.C. 

§ 653(b)(1). The Act defines “occupational safety and health standard” as “a standard which 

requires conditions, or the adoption or use of one or more practices, means, methods, operations, 

or processes, reasonably necessary or appropriate to provide safe or healthful employment and 

places of employment.” 29 U.S.C. § 652(8) (emphasis added). Although the Act does not similarly 

define “regulation,” courts, including the Fifth Circuit, have recognized the mandatory nature of a 

“regulation” in deciding where to draw the line between a “standard” and a “regulation” under the 

Act. See, e.g., Workplace Health & Safety Council v. Reich, 56 F.3d 1465, 1468-69 (D.C. Cir. 

1995); Louisiana Chem. Ass’n v. Bingham, 657 F.2d 777, 783 (5th Cir. 1981); see also 29 U.S.C. 

§ 657(c)(1)-(3) (various provisions referring to “regulations” as “requiring” employers to perform 

certain acts or maintain certain records (emphasis added)). Black’s Law Dictionary similarly 

defines a regulation in terms of its mandatory nature, defining “regulation” as “[c]ontrol over 

something by rule or restriction,” and more pointedly, defining “agency regulation” as “[a]n 

official rule or order, having legal force, usu. issued by an administrative agency.” Regulation, 

Black’s Law Dictionary (11th ed. 2019) (definitions (1) and (3) (emphasis added)). In step with 

these definitions, the Commission has held “[t]o make out an exemption under ... 29 U.S.C. 

§ 653(b)(1), an employer must establish that another federal agency has the statutory authority to 

21 
 

 

 

 

 

 

 

 

regulate the cited working conditions and that it has exercised that authority by issuing regulations 

that have the force and effect of law.” Am. Airlines, Inc., 17 BNA OSHC 1552, 1553-54 (No. 93-

181, 1996) (emphasis added). 

As laid out in detail above, neither the TxMUTCD nor the Standard Sheets are mandatory 

in nature,13 especially in the sense of “requiring” compliance with their terms or “having legal 

force” as would be required of a “standard or regulation” under the Act. See 29 U.S.C. § 652(8); 

Regulation, Black’s Law Dictionary (definition (3)); see also Workplace Health & Safety Council, 

56 F.3d at 1468-69; Louisiana Chem. Ass’n, 657 F.2d at 783. Accordingly, even if the FHWA’s 

approval of the Texas Manual somehow imbues it with federal agency action (the Court 

emphasizes its conclusion that the FHWA’s approval does not), the Texas Manual and the Standard 

Sheets cannot displace OSHA’s authority under the Act because they do not have the “force and 

effect of law” as required of “standard or regulations” under 29 U.S.C. § 653(b)(1). Am. Airlines, 

Inc., 17 BNA OSHC at 1554; cf. PBR, Inc., 643 F.2d at 896-97 (safety rules issued by a contractor 

of the Department of Transportation were “similar to internal safety regulations and c[ould] not be 

viewed as official agency rules which must be promulgated according to APA procedures” and 

thus could not displace OSHA’s authority under 29 U.S.C. § 653(b)(1)); cf. also United Energy 

Servs., Inc. v. Mine Safety & Health Admin., 35 F.3d 971, 977 (4th Cir. 1994) (“Because MSHA 

has prescribed regulations addressing the area on mine property in which United Energy’s 

employees work, MSHA has preempted OSHA’s jurisdiction.” (emphasis added)). 

Summary 

In sum, the Court finds as follows with regard to Williams Brothers’ preemption argument: 

1. Only the action of another federal agency can displace OSHA’s authority under 29 U.S.C. 

§ 653(b)(1). Williams Brothers relies on the TxMUTCD and TxDOT Standard Sheets as the basis 

for its preemption argument here. Because both of these are the result of state agency action, they 

are incapable of displacing OSHA’s authority under the Act. 

2. If the TxMUTCD and Standard Sheets could somehow be viewed as federal agency action 

because of the FHWA’s approval of the TxMUTCD as being in substantial conformance with the 

13 The TxMUTCD by its own terms is not mandatory, and Texas courts have repeatedly held as much. See TxMUTCD, 

at I-2; King, 808 S.W.2d at 466; Perches, 339 S.W.3d at 252; Van Gelder, 304 S.W.3d at 454; Andrews, 155 S.W.3d 

at 359; Bellnoa, 894 S.W.2d at 824; Dunn, 848 S.W.2d at 307-08; Villarreal, 810 S.W.2d at 420-21. As the Court found 

above, the Standard Sheets, which are issued by TxDOT as supplements to the TxMUTCD, are likewise not 

mandatory. 

22 
 

 

 

 

 

 

 

Federal Manual, Williams Brothers’ preemption argument nonetheless would fail. OSHA’s 

authority is displaced under 29 U.S.C. § 653(b)(1) only when another federal agency has 

prescribed a “standard or regulation” on the subject of occupational safety and health. Texas courts 

have repeatedly held the TxMUTCD is discretionary and creates no legal rights or obligations. The 

Court finds the Standard Sheets, which are issued as supplements to the Texas Manual, are 

similarly discretionary. The Texas Manual and Standard Sheets therefore fail to meet either the 

definition of “standard” or “regulation,” both of which are mandatory in nature. Accordingly, 

neither can displace OSHA’s authority under the Act. 

THE CITATION 

The Secretary’s Burden of Proof 

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. The Secretary must also show that the 

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

the hazardous condition. 

Roadsafe Traffic Sys., Inc., No. 18-0758, 2021 WL 5994023, at *2 (O.S.H.R.C., Dec. 10, 2021) 

(internal citations omitted). 

Applicable Law 

The employer or the Secretary may appeal a final decision and order to the federal court of 

appeals for the circuit in which the violation allegedly occurred or where the employer has its 

principal office, and the employer may also appeal to the D.C. Circuit. See 29 U.S.C. §§ 660(a) & 

(b). Here, the violation occurred in Houston, Texas in the Fifth Circuit, where Williams Brothers’ 

principal place of business is also located. “Where it is highly probable a case will be appealed to 

a particular circuit, the Commission has generally applied the precedent of that circuit in deciding 

the case, even though it may differ from the Commission’s precedent.” Kerns Bros. Tree Serv., No. 

96-1719, 2000 WL 294514, at *4 (O.S.H.R.C., March 16, 2000). The parties have not identified, 

and the Court has not found, any other Fifth Circuit precedent differing from the Commission’s on 

any material issue raised in this case. 

Citation 1, Item 1: Alleged Serious Violation of the General Duty Clause 

The Alleged Violation Description 

Citation 1, Item 1 alleges the following: 

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OSH Act of 1970 Section (5)(a)(1): 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 struck by hazards: 

a) On or about October 30, 2021, employees were exposed to struck-by hazards 

from traffic when performing work activities on the northbound main lanes of 

Interstate 69 at Loop Interstate 610 Ramp. 

As feasible means of abatement of the struck-by hazards alleged, the Citation sets 

forth the following: 

Among other methods, feasible and acceptable means of abatement include the 

following in accordance with the Traffic Control Plan – Freeway Lane Closures 

[TCP (6-1)-12] and the Traffic Control Plan – Work Area near Ramp [TCP (6-2)-

12] developed by Texas Department of Transportation: 

a. 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 the area of crew exposure. 

b. Develop a system to ensure a shadow vehicle cannot be moved out of the work 

zone area. 

c. When the work zone is moving, operate the shadow vehicle so that the shadow 

vehicle is positioned 30 feet to 100 feet in advance of the area in which the crew is 

working. 

General Duty Clause 

The General Duty Clause provides: “Each 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). 

(1) Existence of a Hazard 

When the Secretary proceeds under the General Duty Clause she must define the hazard 

“in a way that apprises the employer of its obligations and identifies conditions or practices over 

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

OSHC 2001, 2007 (No. 93-0628, 2004). “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.” Roadsafe Traffic Sys., Inc., 2021 WL 5994023, at *2. “The existence of 

a hazard is established if the hazardous incident can occur under other than a freakish or utterly 

implausible concurrence of circumstances.” Id. 

Here, the Citation frames the alleged hazard as “struck-by hazards from traffic when 

24 
 

 

 

 

 

 

performing work activities on the northbound main lanes of Interstate 69 at Loop Interstate 610 

Ramp.” Citation 6. The Court finds the Secretary has proven the existence of this hazard, not only 

from a commonsense understanding of how traffic could be hazardous to employees working on 

an active highway, but also by the fact two vehicles did in fact enter the highway closure on I-69 

North, with one ultimately striking and injuring a Williams Brothers employee. (Exhs. C-2, at 

DOL000029; C-7, at 3 & 4; Tr. 56-57, 145, 274, 277, 305, 366-67, 386-88); see also W. G. Fairfield 

Co., 19 BNA OSHC 1233, 1236 (No. 99-0344, 2000) (“Simply put, unless such a highway has 

been completely closed to active traffic, employees engaged in highway construction work are in 

danger of being hit by a moving vehicle whether they are working adjacent to the highway, 

flagging motorists on the highway, or crossing the highway.”), aff’d 285 F.3d 499 (6th Cir. 2002); 

Litton Systems, Inc., Ingalls Shipbuilding Div., 10 BNA OSHC 1179, 1182 (No. 76-900, 1981) 

(“The hazard in this case is a large vehicle moving with obstructed vision through areas commonly 

used by employees. The danger presented by this type of machinery is a matter of common 

knowledge. ... Recognition of the hazard can be inferred from the obvious nature of the hazard.”). 

Thus, the struck-by hazard alleged in the Citation demonstrably “can occur under other than a 

freakish or utterly implausible concurrence of circumstances.” Roadsafe Traffic Sys., Inc., 2021 

WL 5994023, at *2. 

Williams Brothers resists this conclusion and argues it is only required to address hazards 

over which it can “reasonably be expected to exercise control.” Resp’t’s Br. 17, citing MorrisonKnudsen Co./Yonkers Contracting Co., A Joint Venture, 16 BNA OSHC 1121-22 (No. 88-572, 

1993). It goes on to argue it “had multiple traffic control devices in place at the time of the incident, 

including advanced warning signs, barrels, arrows boards, and a [Crash Cushion Attenuator], plus, 

TMAs and off-duty police cars with red and blue flashing lights.” Resp’t’s Br. 17. Williams 

Brothers goes on to argue it “cannot reasonably be expected to have the ability to exercise control 

over an erratic driver whose identity is unknown, and who ignored numerous traffic control devices 

and entered into the work zone, possibly constituting criminal conduct.” Id. at 18. 

The specificity with which Williams Brothers has framed the hazard is not the hazard as it 

is alleged in the Citation, i.e., “struck-by hazards from traffic when performing work activities,” 

and relies on the underlying facts which led to the accident in this case. The Commission has held 

this is not the proper way to analyze whether a hazard exists for purposes of a General Duty Clause 

violation. See Henkels & McCoy, Inc., No. 18-1864, 2022 WL 3012701, at *2 (O.S.H.R.C., July 

25 
 

 

 

 

 

 

 

 

21, 2022) (“[W]e analyze each element of the alleged violation with respect to the conditions set 

forth in the citation, not in terms of the incident or the design defect.”); Litton Systems, Inc., Ingalls 

Shipbuilding Div., 10 BNA OSHC at 1182 (“[I]t is the hazard, not a specific incident that resulted 

in injury, which is relevant in determining the existence of the recognized hazard.”); cf. S. Hens, 

Inc. v. Occupational Safety & Health Review Comm’n, 930 F.3d 667, 679 (5th Cir. 2019) (finding 

it is “[t]he departure from OSHA standards, not the worker’s injury, is the violation.”). The Court 

finds the remainder of Williams’ Brothers argument “conflates the hazard element of the alleged 

general duty clause violation with the abatement element.” Roadsafe Traffic Sys., Inc., 2021 WL 

5994023, at *2. “The steps ... 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 ... hazard, [Williams Brothers] is in effect acknowledging its existence.” Id. 

The Secretary has proven the existence of the hazard alleged in the Citation. 

(2) Hazard Recognition 

The Secretary can establish hazard recognition either “by proof that a hazard is recognized 

as such by the employer or by general understanding in the employer’s industry.” Integra Health 

Mgmt., Inc., No. 13-1124, 2019 WL 1142920, at *7 (O.S.H.R.C., March 4, 2019). The Secretary 

argues she has established both types of recognition here. Sec’y’s Br. 16-17. The Court addresses 

each in turn. 

Williams Brothers’ Recognition 

With regard to an employer’s recognition of a hazard, work rules and safety precautions 

taken by the employer are evidence the employer recognized the hazard. See Integra Health Mgmt., 

Inc., 2019 WL 1142920, at *8 (“Work rules addressing a hazard have been found to establish 

recognition of that hazard.”); Waldon Health Care Ctr., 16 BNA OSHC 1052, 1061 (No. 89-2804, 

1993) (“Commission precedent establishes that precautions taken by an employer can be used to 

establish recognition in conjunction with other evidence.”). “While an employer’s safety 

precautions alone do not establish that the employer believed that those precautions were necessary 

for compliance with the Act ... precautions taken by an employer can be used to establish hazard 

recognition in conjunction with other evidence.” Beverly Enters, Inc., 19 BNA OSHC 1161, 1186 

(No. 91-3144, 2000) (consolidated). 

26 
 

 

 

 

 

Williams Brothers took multiple precautions in recognition of the struck-by hazards posed 

to workers when working in a temporary highway construction zone. This included the placement 

of crash trucks, signs, barrels, barricades and off-duty police officers, as well as reflective vests 

for its employees. (Exhs. R-1; R-18, at DOL000057, 60 & 61; R-21; Tr. 80-82, 95-98, 117-18, 127, 

206, 215-17, 338-39, 369-90, 405). Williams Brothers also trained its employees in recognizing 

and addressing these struck-by hazards, providing its own training during orientation and 

encouraging its traffic control crews to receive outside training from the TEEX on the use of traffic 

control devices in temporary work zones. (Exhs. R-5, R-6, R-13, at iii to v; Tr. 230, 295-96, 335-

36, 351-52). Indeed, Williams Brothers’ own Safety Manual recognizes “[t]he most common 

hazard to Williams Brothers’ employees is the danger presented from working in the proximity of 

the traveling public” including in “[w]ork areas adjacent to the roadway” and “[w]ork areas behind 

temporary closures.” (Exh. R-23, at WBC-HWy-59-000420). Likewise, Williams Brothers’ 

supervisors and safety personnel who testified at the hearing recognized the struck-by hazards 

posed when working in a highway construction zone and discussed the precautions Williams 

Brothers had taken to address them. (Tr. 204-06, 243-45, 334-36, 345-46, 350-55). Finally, the 

Court notes Williams Brothers has not contested or even addressed this element of the Secretary’s 

case in its brief. 

The Court finds the Secretary has established Williams Brothers’ recognition of the hazard. 

Industry Recognition 

The Secretary has also established industry recognition of the hazard. Chapter 6 of the 

TxMUTCD on temporary traffic control, which is developed and published by the state 

transportation agency TxDOT, states: 

Of equal importance to the public traveling through the [temporary traffic control] 

zone is the safety of workers performing the many varied tasks within the work 

space. [Temporary traffic control] zones present constantly changing conditions 

that are unexpected by the road user. This creates an even higher degree of 

vulnerability for the workers and incident management responders on or near the 

roadway. 

TxMUTCD, at § 6A.01(06); see also id. at § 6D.03 (section entitled “Worker Safety 

Considerations”; Tr. 484-85 (brief description of how the TxMUTCD is developed)). The Federal 

Manual, which is developed and published by the FHWA, echoes the Texas Manual on the hazards 

posed to workers in temporary highway work zones. See MUTCD, at §§ 6A.01(06) & 6D.03 

(containing similar language to the corresponding provisions of the TxMUTCD). Additionally, 

27 
 

 

 

 

 

 

 

TxDOT also issues its Standard Sheets, which according to TxDOT Area Engineer Hamoon 

Bahrami, are meant to enhance the safety measures set forth in the TxMUTCD because of the 

hazards posed to employees working in temporary highway work zones. (Exhs. C-5, C-6, R-15, 

R-16; Tr. 447-48, 469-70). The Participant Manual from the TEEX, an institution which provides 

training on traffic control, presents further evidence of industry recognition of the hazard, noting 

the number of deaths to highway workers from traffic-related accidents and the need for “a work 

zone that addresses safety for both workers and road users.” (Exh. R-13, at 0-3; Tr. 230-31, 298-

99, 352). Finally, the Court again notes Williams Brothers has made no contrary arguments on this 

element of the Secretary’s case. 

Taken together, the Court finds the evidence presented supports a finding of industry 

recognition of the hazard. See Kelly Springfield Tire Co., Inc. v. Sec’y of Labor, 729 F.2d 317, 321-

22 (5th Cir. 1984) (“[W]here a practice is plainly recognized as hazardous in one industry, the 

Commission may infer recognition in the industry in question.”). 

(3) Likelihood of Causing Death or Serious Physical Harm 

To determine whether a hazard is “causing or likely to cause death or serious physical 

harm” the Commission does not look to the likelihood of an accident or injury occurring, but 

whether, if an accident occurs, the results are likely to cause death or serious harm. Beverly Enters., 

Inc., 19 BNA OSHC at 1188; Waldon Health Care Ctr., 16 BNA OSHC at 1060; R.L. Sanders 

Roofing Co., 7 BNA OSHC 1566, 1569 (No. 76–2690, 1979), rev’d on other grounds, 620 F.2d 97 

(5th Cir. 1980). 

The possibility of death or serious physical harm resulting from an employee being struck 

by a motor vehicle is “supplied by [a] common sense understanding of physical law.” Ill. Power 

Co. v. Occupational Safety & Health Review Comm’n, 632 F.2d 25, 28 (7th Cir. 1980); see also 

Litton Sys., Inc., Ingalls Shipbuilding Div., 10 BNA OSHC at 1182 (“Given the massive size of the 

vehicle, the likely result of such an incident would be death or serious injury to the person struck 

by the carrier.”). Additional evidence in this record supports this commonsense conclusion. In the 

instant case, the accident from the second vehicle striking the Williams Brothers employee resulted 

in serious physical harm to the employee in the form of a broken hip and head injuries. (Exh. C-2, 

at DOL000029; Tr. 57, 148-49, 286); see also Waldon Health Care Ctr., 16 BNA OSHC at 1060 

n.6 (broken bones constitute serious physical harm even if a worker recovers with no permanent 

side effects). While not dispositive, the existence of actual injuries to employees from the cited 

28 
 

 

 

 

hazard is evidence the hazard presented a risk of death or serious physical harm. See, e.g., Beverly 

Enters., Inc., 19 BNA OSHC at 1188-90 (citing actual back injuries suffered by the employer’s 

workers as evidence the hazard posed a risk of serious harm). 

Williams Brothers has not contested this element of the Secretary’s case. The Court finds 

the Secretary has established the hazard is likely to cause death or serious physical harm. 

(4) Feasible Mean of Abatement 

To establish a General Duty Clause violation, the Secretary must set forth feasible means 

of abatement for the hazard alleged. Roadsafe Traffic Sys., Inc., 2021 WL 5994023, at *2. Here, 

the Citation proposed three alternative means of abatement: 

Among other methods, feasible and acceptable means of abatement include the 

following in accordance with the Traffic Control Plan – Freeway Lane Closures 

[TCP (6-1)-12] and the Traffic Control Plan – Work Area near Ramp [TCP (6-2)-

12] developed by Texas Department of Transportation: 

a. 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 the area of crew exposure. 

b. Develop a system to ensure a shadow vehicle cannot be moved out of the work 

zone area. 

c. When the work zone is moving, operate the shadow vehicle so that the shadow 

vehicle is positioned 30 feet to 100 feet in advance of the area in which the crew is 

working. 

In her brief, the Secretary focuses on the use of crash trucks (referred to as “shadow 

vehicles” in the Citation, see note 2, supra) at the worksite but has not devoted any of her argument 

to abatement method (b) concerning a “system” regarding the movement of these trucks out of the 

work area. Sec’y’s Br. 18-20. The Court finds any reliance on this method of abatement has been 

abandoned. See Peacock Eng’g Inc., 26 BNA OSHC 1588, 1593 (No. 11-2780, 2017) (failing to 

consider abatement measures which were set forth in the citation but not addressed at the hearing); 

cf. Ala. Power Co., 13 BNA OSHC 1240, 1246 (No. 84-357, 1987) (excluding abatement measure 

because it “would be unfair for us to find [a] violation for failing to institute [a] . . . method that 

was not raised [or] litigated below.”). 

As to the remaining two abatement methods proposed in the Citation, Williams Brothers 

challenges whether the work zone was a “moving” work zone to which abatement method (c) 

would even apply. Resp’t’s Br. 21. The Secretary relies on testimony from the CSHO to support 

her contention it was a moving work zone. (Tr. 187). Williams Brothers, meanwhile, relies on 

29 
 

 

 

 

 

 

testimony from Cortes. (Tr. 407-09). On the limited amount of evidence available, the Court agrees 

with Williams Brothers and finds the work zone was not a “moving” work zone to which abatement 

method (c) would apply. The CSHO’s testimony on which the Secretary relies was made in the 

context of discussing abatement method (a), which does not relate to moving work zones at all. 

(Tr. 187). As Cortes more cogently explained: “Everything behind the barrels. Everything inside 

of the lane closures, where the signs were, everything is considered a work zone.” (Tr. 408). Thus, 

while various crews were moving within the “work zone” on I-69 North and the connecting lanes 

to I-610, the work zone remained the area within the enclosure for the entirety of the night. (Tr. 

408-09). The Court thus focuses on abatement method (a).14 

To demonstrate a “feasible” means of abatement, the Secretary “must specify the proposed 

abatement measures and demonstrate both that the measures are capable of being put into effect 

and that they would be effective in materially reducing the incidence of the hazard.” Beverly 

Enters., Inc., 19 BNA OSHC at 1191. The Secretary must also show the proposed abatement 

measures are economically feasible. Waldon Health Care Ctr., 16 BNA OSHC at 1063. “Where 

an employer has undertaken measures to address a hazard alleged under the general duty clause, 

the Secretary must show that such measures were inadequate.” A.H. Sturgill Roofing, Inc., No. 13-

0224, 2019 WL 1099857, at *8 (O.S.H.R.C., Feb. 28, 2019). “In addition, the Secretary must show 

that knowledgeable persons familiar with the industry would regard additional measures as 

necessary and appropriate in the particular circumstances existing at the employer’s worksite.” 

Inland Steel Co., 12 BNA OSHC 1968, 1970-71 (No. 79-3286, 1986). 

Here, Williams Brothers undertook multiple measures to address the struck-by hazards 

posed by active traffic at the worksite. These measures included: multiple types of warning signs 

(E.g., Exh. R-21, at 00:11, 00:22, 00:33, 00:37, 00:53; Tr. 370-75); flashing arrow boards (E.g., 

14 The Court further notes neither of the Standard Sheets referenced in the Citation specifically relates to “[w]hen [a] 

work zone is moving,” and in the “Typical Usage” box on each Sheet, the box labeled “Mobile” is not checked. (Exhs. 

C-5, C-6, R-15, R-16). Nothing in the hearing testimony other than the portions cited by the parties even addresses 

the subject of a “moving” work zone, and so it is unclear to the Court how this abatement method was ever meant to 

relate to the worksite on I-69 North. The Court notes, however, the commonality between abatement methods (a) and 

(c) is the placement of crash trucks within 30 to 100 feet of the location of a working crew. The only material 

differences are the number of suggested crash trucks and whether the work zone is “moving.” Because abatement 

method (a) is the only one actually covered by the Standard Sheets referenced in the Citation, and because the Court 

does not find the work zone was a “moving” work zone in the sense suggested by the Citation, the Court will cabin 

its analysis to abatement method (a). However, the Court’s analysis would not differ in any significant regard if it 

reached the specific feasibility of abatement method (c), given the similarities between them and the deficiencies the 

Court has recognized in the Secretary’s evidence on this element of her case. 

30 
 

 

 

 

 

 

Exh. R-21, at 00:57; Tr. 375); barricades (Tr. 98; see also Exh. C-17); orange barrels used for 

tapered lane closures (E.g., Exh. R-21, at 01:18 to 01:30; Tr. 376); reflective vests (E.g., Exhs. R18, at DOL000057, 60 & 61; R-21, at 04:59; Tr. 390); the periodic positioning of off-duty cops in 

vehicles with flashing red and blue lights, including two police officers in the vicinity of the gore 

point of I-610 North and South where the injured Williams Brothers employee was working (Exhs. 

C-2, at DOL000026; C-8A, R-21, at 01:57, 02:57, 04:00, 04:45; Tr. 85-86, 96-99, 208, 214-15, 

377-78, 380-82, 384-85); and the use of at least one crash truck. (Exh. C-2, at DOL000028; C-8, 

at 8; R-17, R-21, at 05:20 to 05:22; Tr. 217-18, 254, 319-20, 387). In addition, Williams Brothers 

required at least some training for all its employees in recognizing the struck-by hazards associated 

with construction work on an active roadway. (Exhs. R-6, R-8, R-23, at WBC-Hwy-59-000410; 

Tr. 335-36, 351-53). At least two of its supervisors, Cisneros and Gomez, as well as Gomez’s 

traffic control “helper” were trained offsite in traffic control at the TEEX course. (Exhs. R-4, R-5, 

R-7, R-9; Tr. 229-30, 295-98). In her post-trial brief, the Secretary has not pointed to any 

inadequacy, either perceived or established by the record, in the methods Williams Brothers did 

employ to protect its employees from struck-by hazards, as is her burden in establishing the 

abatement element of a General Duty Clause violation. A.H. Sturgill Roofing, Inc., 2019 WL 

1099857, at *8. 

Moreover, the Secretary has failed to demonstrate her proposed abatement method would 

be “regard[ed] ... as necessary and appropriate” by “knowledgeable persons familiar with the 

industry.” Inland Steel Co., 12 BNA OSHC 1970-71. As Williams Brothers points out, the 

Secretary offered no expert witness in this case to substantiate her proposed abatement method as 

necessary and appropriate. Resp’t’s Br. 21. While this omission by itself is perhaps not fatal to her 

case, very little evidence in the record otherwise supports the positioning of two crash trucks at 

the gore point of I-610 where the Williams Brothers employee was injured, as proposed by 

abatement method (a). 

The most prominent evidence the Secretary did offer of abatement method (a) being 

considered a necessary and appropriate additional safety measure was the TxDOT Standard Sheets. 

(Exhs. C-5, C-6, R-15, R-16). However, as the Court concluded earlier in addressing Williams 

Brothers’ preemption argument, despite containing some mandatory language, these Sheets do not 

represent mandatory requirements, merely guidance, and so the Court does not regard them as 

requiring any particular method of traffic control. Moreover, it is not clear how these Standard 

31 
 

 

 

 

 

 

 

 

 

Sheets are even developed. See note 10, supra. The Standard Sheets’ weight in establishing 

additional “necessary” traffic control methods by “knowledgeable persons familiar with the 

industry” is therefore questionable. Cf. Quick Transp. Of Ark., LLC, No. No. 14-0844, 2019 WL 

1466256, at *4 (O.S.H.R.C., Mar. 27, 2019) (guidance document from employer’s industry 

insufficient to establish explosion hazard alleged in the Citation); Am. Bridge/Lashcon, J.V., 16 

BNA OSHC 1867, 1870 (No. 91-633, 1994) (noting where industry standards’ definition of a term 

“has not been made part of the OSHA standards ... through the exercise of rulemaking”), aff’d, 70 

F.3d 131 (D.C. Cir. 1995); Dun-Par Engineered Form Co., 12 BNA OSHC 1949, 1954 (No. 79-

2553) (noting many industry standards are not “intended to be used as mandatory, inflexible legal 

requirements” and describing the committee process by which these standards are often 

developed), rev’d on other grounds, 843 F.2d 1135 (8th Cir. 1988). 

The Secretary nonetheless argues “the correct positioning of shadow vehicles with TMAs 

would have materially reduced the hazard” if they had been placed behind the injured Williams 

Brothers employee at the gore point of I-610 North and South. Sec’y’s Br. 20. The Court does not 

read the relevant Standard Sheet, TCP (6-1)-12,15 to even prescribe what the Secretary is 

proposing. In both figures on this Standard Sheet, following the tapered closing of a lane of traffic, 

one or two crash trucks are placed in between the active lanes of traffic to the left (separated by 

“channelizing devices,” likely meaning cones or barrels) and a “work zone” to the right. (Exh. C5, R-15). This scenario is significantly different from the work zone in which the injured Williams 

Brothers employee was working the night of the accident. At the point where I-69 North and I-610 

split from each other, three lanes of traffic had been closed off, channeling all public traffic onto 

I-69 North. (Exh. R-21, at 05:00 to 05:20). Starting at the gore point of I-69 North and the I-610 

connector lanes, there is a permanent concrete barrier separating the two roadways. (Exhs. C-8, at 

8; R-21, at 05:22 to 05:40; Tr. 387). The combination of these two circumstances means, on the 

night of the accident, the stretch of the I-610 connector lanes leading up to the gore point of I-610 

15 The other Standard Sheet submitted at the hearing, TCP (6-2)-12 relates to temporary traffic controls near ramps. 

(Exhs. C-6, R-16). Although I-69 North was closed starting near the exit ramp of Chimney Rock Road, no employees 

were struck on or near this ramp. (Exh. R-21, at 01:18; Tr. 376). The Secretary’s brief focuses mainly on the gore point 

of I-610 North and South, where the Williams Brothers employee was struck, and only briefly mentions the gore point 

of I-69 North and the I-610 connector lanes where the first PTC crew was re-striping. Sec’y’s Br. 20-21. The Secretary 

makes no argument suggesting the proper placement of a crash truck near the Chimney Rock Road ramp, 

approximately two miles from the employees who were eventually struck by the vehicle, would have somehow abated 

the hazard to which those employees were exposed. The Court therefore focuses on the Standard Sheet which best 

matches the location where the Secretary has ultimately directed the Court’s attention. 

32 
 

 

 

 

 

 

 

 

 

 

 

16 

North and South had no active lanes of traffic. (Exh. R-21 05:22 to 05:40). The Court does not 

read Standard Sheet TCP (6-1)-12 to require, or even “typically” require, the placement of crash 

trucks in such a scenario, where a permanent physical barrier already separates the “work zone” 

from all active lanes of traffic. 

To the extent the remainder of the closure on I-69 North is implicated in the Secretary’s 

proposed means of abatement, the record establishes Williams Brothers’ substantial compliance 

with the terms of Standard Sheet TCP (6-1)-12. As noted above, the Secretary has advanced no 

argument to suggest Williams Brothers’ other means of traffic control, including the signs or 

“channelizing devices” present on the Standard Sheet, were somehow inadequate or deficient. 

Although the crash truck was moved approximately 400 feet away from the PTC crew re-striping 

near the gore point of I-69 North and I-610, further than the 30 to 100 feet prescribed by the Sheet, 

this was done because the truck was impeding the crew’s re-striping of the road. (Tr. 385, 400-

03). The Standard Sheet specifically allows for crash trucks to be moved if they are “adversely 

affecting work performance.” (Exhs. C-5, R-15). The Court also notes the new location for the 

crash truck was on the “hill” above South Rice Avenue, and Cisneros opined it was actually more 

visible to a vehicle traveling on the highway. (Tr. 145, 254, 274, 276-77, 400). 

The Court does not find the Secretary has established the element of a feasible means of 

abatement because she has failed to demonstrate the methods employed by Williams Brothers were 

inadequate. The Secretary has further failed to demonstrate knowledgeable persons familiar with 

Williams Brothers’ industry would regard the additional measure of positioning two crash trucks 

within 30 or 100 feet of its employee working on an inactive roadway to be necessary or 

appropriate.16 

Williams Brothers has advanced an affirmative defense of “greater hazard” as to placing additional crash 

trucks within 30 to 100 feet of working crews. Resp’t’s Br. 29-30. Where an employer asserts this defense in response 

to a proposed abatement method for a violation of the General Duty Clause, the Commission has held “it is not the 

employer’s burden to establish an affirmative defense of greater hazard.” Kokosing Constr. Co., Inc., 17 BNA OSHC 

1869, 1875 n.19 (No. 92-2596, 1996). Rather, “[t]he Secretary has the initial burden of proving “that an abatement 

method exists that would provide protection against the cited hazard. The burden then shifts to the employer to produce 

evidence showing or tending to show that use of the method or methods established by the Secretary will cause 

consequences so adverse as to render their use infeasible.” CSA Equip. Co., 2019 WL 1375918, at *9. On this issue, 

Williams Brothers argues, in relevant part, “[i]f, as the Secretary proposed, the TMAs needed to always be within 30’ 

to 100’ from crew exposure, this would require a driver having to move the TMAs throughout the night to follow the 

crews working within the closure, making sure not to hit any of the workers on foot.” Resp’t’s Br. 29. Williams 

Brothers argues this exposes workers to “an even greater risk of a struck-by hazard.” Id. 29. 

Because the Court has found the Secretary failed to establish the abatement element of the violation for 

reasons other than feasibility, the Court need not address the issue of whether the moving of crash trucks creates a 

greater hazard in great detail. However, the Court notes only one of Williams Brothers’ witnesses, Cortes, even offered 

33 
 

 

 

 

 

 

 

 

 

 

 

(5) Employer Knowledge 

To prove the knowledge element of a violation, the Secretary must demonstrate the 

employer’s actual or constructive knowledge of the violative condition. Jacobs Field Servs., N.A., 

25 BNA OSHC 1216, 1218 (No. 10-2659, 2015). A supervisor’s knowledge of a violative 

condition is imputable to a corporate employer. TNT Crane & Rigging, Inc. v. Occupational Safety 

& Health Review Comm’n, 74 F.4th 347, 359 (5th Cir. 2023); Angel Bros. Enters., Ltd. v. Walsh, 

18 F.4th 827, 832 (5th Cir. 2021); see also Dover Elevator Co., 16 BNA OSHC 1281, 1286 (No. 

91-862, 1993). 

In the context of a General Duty Clause violation, the relevant inquiry is whether the 

employer had knowledge of the hazard as alleged in the Citation, not whether it had knowledge of 

the specific facts underlying the alleged violation. For example, in Peacock Eng’g, Inc., 26 BNA 

OSHC 1588 (No. 11-2780, 2017), the employer was “using an excavator to hoist and transport a 

[burial] crypt, suspended by wire rope slings, from a staging area to its plot, when an employee’s 

left thumb was amputated by a sling as he guided the crypt, by hand, into place.” Id. at 1589. The 

Citation alleged “exposure of Peacock employees to amputation, struck by and crushed by hazards, 

while guiding a suspended load by hand.” Id. The ALJ found there was no knowledge, attributing 

the cause of the employee’s injury to a “latent defect in the crypt that could not have been 

foreseen.” Id. at 1592. The Commission reversed, finding the ALJ’s “narrow focus on amputation 

from a crypt defect was error. The citation is clearly broader than that, as it also alleges struck-by 

and crushed-by hazards resulting from guiding a suspended load by hand.” Id. Thus, the 

Commission found the knowledge element hinged on “whether Peacock was aware of the cited 

testimony on this subject, and his testimony was self-interested and failed to offer specific reasons as to why moving 

the crash trucks would pose a greater hazard to employees than the struck-by hazard posed from active, public traffic. 

See State Sheet Metal Co., 16 BNA OSHC 1155, 1159 (No. 90-1620) (consol.) (In support of its greater hazard defense, 

“State has presented only the unsubstantiated opinion of its owner, who is hardly a disinterested witness. We are 

unwilling to accept such conclusory statements without being given any factual basis for them, and State has offered 

no facts on which this conclusion is based.”); Trinity Industries, Inc., 15 BNA OSHC 1985, 1986 (No. 89-2316, 1992) 

(consol.) (employer failed to establish greater hazard defense where the only testimony on hazard of compliance being 

greater was the opinion of a supervisor who failed to explain “how the materials would be brought up or why he 

believed such an arrangement would be more dangerous than the status quo.”). Moreover, Cortes’ assertions are 

undermined by the record, which establishes the lone crash truck on I-69 North was moved multiple times during the 

events in this case without incident. (Exhs. C-2, at DOL000028; R-17; Tr. 217-18, 254, 319-20, 305-06, 385, 387, 

400-03). Indeed, Cisneros moved the crash truck closer to the first PTC crew after the accident specifically because 

he “want[ed] to make them feel better. (Tr. 305-06; see also Tr. 385, 401). The Court also notes Williams Brothers had 

a policy of leaving the keys in the crash trucks, anticipating them to be moved around the worksite if necessary. (Tr. 

217, 275, 308-09). The Court does not find Williams Brothers has established the movement of crash trucks by 

employees posed a greater hazard to workers than the hazards posed by active traffic. 

34 
 

 

 

 

conditions its employees faced when guiding a suspended crypt.” Id. 

Similarly, in Cranesville Block Co., Inc./Clark Div., 23 BNA OSHC 1977 (No. 08-0316, 

2012), the employer’s business involved mixing concrete. Id. at 1978. After the employer’s truck 

drivers had delivered a load of concrete, the drivers would park their trucks near a pond where the 

trucks could be rinsed. Id. at 1984. The employer would place “three-foot by five-foot concrete 

blocks, known as ‘stop blocks’ on the ground near the edge of the pond,” and, as a matter of 

practice, the drivers relied on these stop blocks “to determine whether they had reached the edge 

of the pond.” Id. at 1985. During the CSHO’s inspection, he found several defective or missing 

stop blocks. Id. On this basis, OSHA issued a Citation under the General Duty Clause for the 

employer’s “failure to provide adequate stop blocks in two of the bays to prevent trucks from 

rolling into the pond, exposing employees to the hazard of drowning.” Id. In addressing the 

knowledge element of the violation, the Commission focused on the hazard as alleged in the 

Citation, i.e., the missing stop blocks which exposed employees to a drowning hazard. Id. at 1986. 

The Commission ultimately found the Secretary had failed to show the missing stop blocks were 

in “plain view” for purposes of establishing the employer’s knowledge. Id. 

Here, the Court finds Gomez, a “Head Traffic Controller” who oversaw the work of at least 

one helper the night of the accident, and Cisneros, the “Dirt Supervisor” who oversaw all of the 

work being done on the I-610 Project the night of the accident, were supervisors for the purpose 

imputing knowledge to Williams Brothers. (Exh. R-18, at DOL000059; Tr. 206-07, 209-10, 221, 

241-42, 246-47, 269-71); see also Tampa Shipyards, Inc., 15 BNA OSHC 1533, 1537 (No. 86-

630, 1992) (“An employee who has been delegated authority over other employees, even if only 

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

employer.”). Williams Brothers has not disputed the supervisory status of either employee. 

The Court also finds both supervisors had actual knowledge of the hazardous condition 

alleged in the Citation, i.e., the “expos[ure] to struck-by hazards from traffic when performing 

work activities on the northbound main lanes of Interstate 69 at Loop Interstate 610 Ramp.” See 

Citation. In his interviews with Gomez and Cisneros, both employees acknowledged the existence 

of this hazard. (Exh. C-2, at DOL000031 & 32; Tr. 193). At the hearing, both employees 

demonstrated actual knowledge of this hazard and the need for traffic control measures to protect 

employees from it. (Exhs. C-16, R-10; Tr. 205-06, 209-10, 224, 245, 280-82, 287-88, 305-06). 

The Court finds the actual knowledge of Gomez and Cisneros is imputable to Williams Brothers. 

35 
 

 

 

 

 

 

TNT Crane & Rigging, Inc., 74 F.4th at 359; Angel Bros. Enters., Ltd., 18 F.4th at 832 (5th Cir. 

2021); see also Dover Elevator Co., 16 BNA OSHC at 1286.17 

Characterization of the Violation 

The Secretary characterized the alleged General Duty Clause violation as serious. A 

violation is properly characterized as serious under the Act if “there is substantial probability that 

death or serious physical harm could result.” 29 U.S.C. § 666(k). The Secretary need not show 

there was a substantial probability an accident would occur, only that if an accident did occur, 

death or serious physical harm could result. Mosser Constr., Inc., 23 BNA OSHC 1044, 1046 (No. 

08-0631, 2010). 

The Commission’s test for determining whether a violation is likely to cause death or 

serious harm for purposes of a violation of the General Duty Clause is nearly identical to its test 

for determining whether a violation is serious for purposes of section 17(k) of the Act. Compare 

Waldon Health Care Ctr., 16 BNA OSHC at 1060, with Mosser Constr., Inc., 23 BNA OSHC at 

1046. Thus, finding a violation is “likely to cause death or serious harm [under the general duty 

clause] is equivalent to a finding under section 17(k) that the violation gives rise to a substantial 

probability of death or serious harm.” Gearhart-Owen Indus., Inc., 10 BNA OSHC 2193, 2199 

(No. 4263, 1982). Accordingly, for the reasons stated above in finding a violation is likely to cause 

death or serious harm, the Court finds the Secretary properly characterized the violation as serious. 

Id.; cf. also Acme Energy Servs., 23 BNA OSHC 2121, 2129 (No. 08-0088, 2012) (finding a 

general duty clause violation was serious based on the same factors considered in finding the 

general duty clause violation). 

Respondent’s Affirmative Defenses 

Williams Brothers has raised multiple affirmative defenses, as follows: 1) unpreventable 

employee misconduct; 2) “vagueness” of the Citation; 3) infeasibility; and 4) greater hazard.18 

17 The majority of Williams Brothers’ argument on the knowledge element of the violation is devoted to whether or 

not it was “reasonably diligent” for purposes of its constructive knowledge. Resp’t’s Br. 24-26. Because the Court 

finds the Secretary has established the actual knowledge of two of Williams Brothers’ supervisors, and because the 

Secretary need only demonstrate actual or constructive knowledge, the Court need not address Williams Brothers’ 

arguments in this regard. 

18 As the Court noted above, in the context of a General Duty Clause violation, any evidence or arguments in support 

of a greater hazard defense should be considered as “rebuttal evidence” in deciding whether the Secretary has 

established a feasible means of abatement. See CSA Equip. Co., LLC, 2019 WL 1375918, at *9 n.15. Accordingly, the 

Court has considered Williams Brothers’ argument in the context of the abatement element of the violation and finds 

no reason to retread those arguments here. See note 16, supra. 

36 
 

 

 

 

 

 

 

 

Resp’t’s Br. 26-30. Williams Brothers bears the burden of establishing each of its affirmative 

defenses by a preponderance of the evidence. See Excel Modular Scaffold & Leasing Co. v. 

Occupational Safety & Health Review Comm’n, 943 F.3d 748, 756 (5th Cir. 2019) (employers 

bear the burden of proof for affirmative defenses); Marson Corp., 10 BNA OSHC 1660, 1662 (No. 

78-3491, 1982). 

Unpreventable Employee Misconduct 

Williams Brothers first argues any violation was the result of unpreventable employee 

misconduct. Resp’t’s Br. 26-27. To establish this affirmative defense, Williams Brothers “must 

show that it 1) has established work rules designed to prevent the violation, 2) has adequately 

communicated these rules to its employees, 3) has taken steps to discover violations, and 4) has 

effectively enforced the rules when violations have been discovered.” S. Hens, Inc. v. 

Occupational Safety & Health Review Comm’n, 930 F.3d 667, 678 (5th Cir. 2019); see also 

George Campbell Painting Corp., 18 BNA OSHC 1929, 1933 n.15 (No. 94-3121, 1999). 

Work Rules & Communication 

The Court is persuaded on the first two elements of Williams Brothers’ defense. Regarding 

work rules, the evidence recounted above for the abatement element of the violation establishes 

Williams Brothers’ use of numerous traffic control devices on its highway construction sites. The 

Court finds these requirements constitute a work rule designed to protect employees from the 

struck-by hazards alleged in the Citation. Cf. TNT Crane & Rigging, Inc., No. 16-1587, 2022 WL 

2102910, at *5 (O.S.H.R.C., June 2, 2022) (work rules must be designed to prevent the violation 

at issue); Regina Constr. Co., 15 BNA OSHC 1044, 1050 (No. 87-1309, 1991) (where employer 

asserts work rules as a means of abatement for a General Duty Clause violation, the employer 

“must first show that the rule was adequate to prevent the violation ....”). 

Williams Brothers has also established its employees were trained on these policies and 

practices, including several of the employees involved in the events of this case. Cortes trains all 

new and rehired employees in traffic control, including a “work zone class and orientation” and 

training video created by TxDOT entitled “Work Zone Fundamental Training.” (Tr. 335-36, 350-

51). All employees receive a copy of Williams Brothers’ “Safety Program Manual,” with an 

emphasis on the Manual’s discussion of hazards associated with the “Traveling Public” while 

working in highway construction zones. (Exhs. R-6, R-8, R-23, at WBC-Hwy-59-000420; Tr. 353-

55). Additionally, Williams Brothers encourages off-site training from the TEEX, which covers 

37 
 

 

 

 

 

 

 

 

 

 

the subject of traffic control for highway construction sites. (Exh. R-13; Tr. 230-31, 298-99, 352). 

Gomez and his helper both received orientation training and the TEEX training. (Exhs. R-6 to R9; Tr. 207-08, 213, 229-30). Cisneros received the TEEX training twice. (Exhs. R-4 & R-5; Tr. 

296-98). Cisneros and Gomez both testified at the hearing, including on the subject of traffic 

control and the use of traffic control devices, and the Court found both witnesses to be 

knowledgeable on these subjects. 

The Court therefore finds Williams Brothers has established the existence of work rules 

and adequate communication of those rules to its employees through employee training. 

Monitoring & Discipline 

However, Williams has failed to produce sufficient evidence to establish the other two 

elements of its unpreventable employee misconduct defense. 

On the subject of monitoring and discovery of violations, Williams Brothers has introduced 

only vague and conclusory testimony from its supervisors regarding their monitoring efforts to 

detect violations of its rules on the use of traffic control devices. (Tr. 356-57, 426-27). No 

testimony or other evidence was introduced to show what methods these supervisors utilized to 

ensure their employees complied with Williams Brothers’ traffic control rules. See TNT Crane & 

Rigging, Inc., 2022 WL 2102910, at *7 (finding insufficient monitoring “absent sufficient evidence 

to evaluate the frequency of the company’s audits”); Sw. Bell Tel. Co., 19 BNA OSHC 1097 (No. 

98-1748, 2000) (worksite visits were inadequate monitoring where there was no evidence either 

the program or the worksite visits pertained to enforcing the cited provision), aff’d, 277 F. 3d 1374 

(5th Cir. 2001). Moreover, as the Secretary points out, Gomez’s supervisor, Cisneros, did not 

monitor or inspect Gomez’s work at all on the night of the accident to ensure he properly 

implemented the traffic control plan for the north side of the highway. (Tr. 301-02). Instead, 

Cisneros spent the entirety of the evening leading up to the accident on the I-69 South side of the 

highway. (Tr. 255-56). The Court finds Williams Brothers’ evidence fails to establish “a diligent 

effort to discover and discourage violations of safety rules by employees.” Propellex Corp., 18 

BNA OSHC 1677, 1682 (No. 96-0265, 1999). 

Regarding discipline for employees who violate Williams Brothers’ traffic control policies, 

Williams Brothers did introduce a copy of its written discipline policy. (Exh. R-11). However, this 

policy was never discussed directly at the hearing. As evidence of Williams Brothers’ actual 

compliance with this policy, two supervisors, Cisneros and Cortes, offered nonspecific and 

38 
 

 

 

conclusory testimony on the discipline of employees who fail to follow work rules. (Tr. 288-89 

(Cisneros testifying employees are disciplined “when they do something wrong.”)); Tr. 358 

(Cortes stating “[t]here’s disciplinary actions that get taken” when asked “What happens when a 

crew member doesn’t follow your traffic controls [sic] rules?”)); Tr. 432 (Cortes stating only “Yes” 

in response to a question about employee discipline with no further elucidation)). Williams 

Brothers also introduced the two disciplinary notices issued by Cisneros to himself and Gomez 

five months after the accident,19 notices which both witnesses represented were issued for a single 

missing “Right Lane Closed Ahead” sign. (Exhs. C-9, R-2; Tr. 225-26, 289-94, 310-12). 

The Court is not persuaded by Williams Brothers’ evidence of discipline, finding the lack 

of documentary evidence to be particularly noticeable here. Williams Brothers has over 2,000 

employees and its primary work involves highway construction, presumably requiring numerous 

road closures with traffic control devices. (Tr. 139, 337). Assuming Williams Brothers disciplines 

its employees for even a single missing traffic sign, as the two disciplinary notices it did introduce 

seem to suggest, it strains credulity to believe these two notices are the only documentary evidence 

it could introduce “[t]o prove that its disciplinary system is more than a ‘paper program’ ...” 

Propellex Corp., 18 BNA OSHC at 1683; see id. (to demonstrate the disciplinary element of the 

unpreventable employee misconduct defense, “an employer must present evidence of having 

actually administered the discipline outlined in its policy and procedures.”); TNT Crane & Rigging, 

Inc., 2022 WL 2102910, at *8 (“As a large crane-industry employer with more than 250 employees 

and numerous offices, we find it highly unlikely that no TNT employee had ever previously 

violated these rules”), citing Angel Bros. Enters, Ltd. v. Walsh, 18 F.4th 827, 833 (5th Cir. 2021) 

(“the Commission did not have to accept the statistically implausible claim that although OSHA 

found violations during 80% of its five inspections, the company committed no safety violations 

the other 6,000 or so times it performed excavations”). Presumably, if Williams Brothers in fact 

regularly administers discipline to its employees for missing traffic control devices, it could have 

produced more than the two written notices it did. Cf. Capeway Roofing Sys., Inc., 20 BNA OSHC 

1331, 1342-43 (No. 00-1968, 2003) (an adverse inference is proper where “one party has it 

peculiarly within its power to produce witnesses whose testimony would elucidate the situation 

19 The Court notes, as the Secretary does, the oddity of Cisneros, at the direction of his supervisor, disciplining Gomez 

nearly five months after the accident and then issuing himself a “self-write up.” (Exh. R-2, at 2; Tr. 293); Sec’y’s Br. 

24. However, the Secretary has not cited any authority suggesting the unusual circumstances under which Cisneros 

issued the disciplinary notices bears on the strength of Williams Brothers’ enforcement of its disciplinary policy. 

39 
 

 

 

 

and fails to do so.”), aff’d, 391 F.3d 56 (1st Cir. 2004). 

The Court finds Williams Brothers has failed to establish two elements of its affirmative 

defense of unpreventable employee misconduct. 

Vagueness of the Citation 

Williams Brothers also asserts the Citation is “unenforceable” because it does not provide 

“fair and reasonable warning of the proscribed conduct.” Resp’t’s Br. 27 (emphasis in 

original). Williams Brothers focuses on the feasible means of abatement proposed in the Citation 

and argues abatement methods (b) and (c) were not applicable to the worksite at issue here. Id. at 

28. Regarding abatement method (a), it points to what it perceives to be several discrepancies 

between the TxDOT Standard Sheets referenced in the abatement portion of the Citation and the 

actual requirements of those Standard Sheets. Id. at 28. It goes on to argue these perceived 

discrepancies mean it “is left to wonder which standard applies – the plain language of the 

[Standard Sheets] finding the use of TMAs to not always be required, or OSHA’s ‘transformed’ 

rule that requires TMAs to be used at all times.” Id. 

The only legal support Williams Brothers has cited in its briefing of this affirmative defense 

is Krause Milling Co., A Corp., No. 78-2307, 1979 WL 28982 (O.S.H.R.A.L.J., Feb. 6. 1979), an 

unreviewed ALJ decision of no precedential value. See Hartwell Excavating Co., 4 BNA OSHC 

1263, 1264 (No. 3841, 1976). On this basis alone, the Court finds Williams Brothers has waived 

any reliance on this affirmative defense. See, e.g., NLRB v. McClain of Ga., Inc., 138 F.3d 1418, 

1422 (11th Cir. 1998) (“Issues raised in a perfunctory manner, without supporting arguments and 

citation to authorities, are generally deemed to be waived.”). 

Were the Court to reach the merits of this defense, it would not be under the lens of the 

“void for vagueness” doctrine invoked by Williams Brothers here. That doctrine relates to whether 

standards promulgated by OSHA sufficiently apprise employers of their requirements under the 

Act. See, e.g., Corbesco Inc. v. Dole, 926 F.2d 422, 425-29 (5th Cir. 1991) (discussing whether a 

particular standard gave sufficient notice of its requirements); J.A. Jones Constr. Co., 15 BNA 

OSHC 2201, 2205 (No. 87-2059, 1993) (“Absolute precision of language, however, is not 

required, and a standard is not impermissibly vague simply because it is broad in nature.” 

(emphasis added)). Indeed, the sole case Williams Brothers has cited in support of its “vagueness” 

defense involved whether a particular standard was impermissibly vague. See Krause Milling Co., 

1979 WL 28982, at *1-2. 

40 
 

 

 

 

Rather, the contents of a Citation are governed by 29 U.S.C. § 658(a), which states: “Each 

citation shall be in writing and shall describe with particularity the nature of the violation, including 

a reference to the provision of the chapter, standard, rule, regulation, or order alleged to have been 

violated.” For the sufficiency of the allegations in a Citation, the Commission looks to: whether 

an employer had “fair notice” of the allegations being lodged against it (or in this case, the 

proposed methods to abate the alleged hazard); whether it availed itself of procedural tools, 

including discovery, to clear up any ambiguities in the Citation; and whether, even after trial, the 

employer has pointed to any prejudice in the preparation or presentation of its defense. See KS 

Energy Servs., Inc., 22 BNA OSHC 1261, 1265 (No. 06-1416, 2008); Conagra Flour Milling Co., 

15 BNA OSHC 1817, 1822-23 (No. 88-2572, 1992); La.-Pac. Corp., 5 BNA OSHC 1994, 1998-

99 (No. 10639, 1977). 

Williams Brothers has pointed to no such prejudice here. Although it may quibble with the 

applicability and precise meaning of the language in the Standard Sheets, it was not prejudiced by 

the Secretary including multiple abatement methods or only including some language from the 

Standard Sheets in the Citation. Williams Brothers’ conduct at trial, including direct and crossexamination of the CSHO and other witnesses about the applicability and meaning of the Standard 

Sheets, demonstrated it was sufficiently on notice of the abatement methods being proposed by 

the Secretary. (Tr. 164-68, 171-82, 245, 309-10, 328-30, 330-33, 339-41, 393-95, 396-400, 411-

12, 446-49, 452-62, 468-70). Williams Brothers was free to introduce contrary evidence or argue 

against the feasibility of the Secretary’s proposed abatement, a subject to which it has devoted 

nearly six full pages of its post-trial brief. Resp’t’s Br. 18-23; see also La.-Pac. Corp., 5 BNA 

OSHC at 1999 (rejecting a challenge to the sufficiency of the Citation where the employer 

“attempted to refute complainant’s evidence concerning the feasibility of recommended 

engineering controls” and where it was “clear that respondent was not prejudiced in preparing a 

response to the citation.”). The Court also notes Williams Brothers’ Safety Coordinator, Cortes, 

testified he understood the meaning of the abatement methods set forth in the Citation. (Tr. 411). 

Thus, even if Williams Brothers had properly briefed its affirmative defense of “vagueness” 

of the Citation, the Court would reject the defense because it has failed to demonstrate prejudice 

from any of the perceived deficiencies to which it has pointed. 

Infeasibility 

Finally, Williams Brothers raises the affirmative defense of infeasibility. Resp’t’s Br. 28-

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29. “To prove infeasibility, [an employer] must show by a preponderance of the evidence that (1) 

literal compliance with the terms of the cited standard was infeasible under the existing 

circumstances and (2) an alternative protective measure was used or there was no feasible 

alternative measures.” Otis Elevator Co., BNA OSHC 1081, 1087 (No. 09-1278, 2013) (emphasis 

omitted), aff’d 762 F. 3d 116 (D.C. Cir. 2014). 

Here, Williams Brothers argues compliance was infeasible because “OSHA’s proposed 

abatement conflicts with TxDOT rules.” Resp’t’s Br. 29. Because Williams Brothers “is 

contractually required to comply with TxDOT rules” and could have its contract terminated for 

noncompliance, “compliance with the Citation is infeasible, as it would require [Williams 

Brothers] to violate its contractual obligations to TxDOT.” Id. 

Even assuming Williams Brothers is correct in asserting the Citation’s proposed abatement 

conflicts with TxDOT rules, its contractual obligations to TxDOT do not relieve it of its obligations 

under the Act nor render it infeasible to protect its employees from traffic hazards. Cf. Brock v. 

City Oil Well Serv. Co., 795 F.2d 507, 512 (5th Cir. 1986) (“[A]n employer may not contract out 

of its statutory responsibilities under [the Act].”), quoting Cent. Of Ga. R.R. Co. v. Occupational 

Safety & Health Review Comm’n, (5th Cir. 1978); Tri-State Steel Constr. Inc., 15 BNA OSHC 

1903, 1916 n.23 (N0. 89-2611, 1992) (“The fact that others had the contractual responsibility for 

developing and implementing the traffic control plan did not mean that National and Tri–State 

were powerless to protect their own employees or that they were absolved of all responsibility 

under the Act to provide those employees with safe and healthful workplaces and working 

conditions.”), aff’d, 26 F.3d 173 (D.C. Cir. 1994). 

Nonetheless, Williams Brothers need not adopt the exact abatement measures proposed in 

the Citation to satisfy its obligations under the General Duty Clause so long as its abatement 

measures provide the same level of protection as the ones the Secretary has proposed. See A.H. 

Sturgill Roofing, Inc., No. 13-0224, 2019 WL 1099857, at *8 (O.S.H.R.C., Feb. 28, 2019) (“Where 

an employer has undertaken measures to address a hazard alleged under the general duty clause, 

the Secretary must show that such measures were inadequate.”); see also (Tr. 186). Thus, any 

perceived conflict between the Act’s requirements and Williams Brothers’ contractual duties to 

TxDOT does not render compliance infeasible. See, e.g., A. J. McNulty & Co., Inc., 19 BNA OSHC 

1121, 1130-31 (No. 94-1758, 2000) (rejecting infeasibility defense where alternative method of 

abatement was available). 

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The Court finds Williams Brothers has failed to establish the defense of infeasibility. 

PENALTY 

Because the Secretary has failed to establish all elements of a General Duty Clause 

violation, the Court vacates the Citation and does not assess a penalty. However, the Court notes 

Williams Brothers has advanced no argument in favor of reducing the Citation’s proposed penalty 

of $14,502, nor has it challenged any part of the CSHO’s methodology in calculating this penalty. 

(Tr. 156-62). 

FINDINGS OF FACT AND CONCLUSIONS OF LAW 

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

accordance with Federal Rule of Civil Procedure 52(a) and Commission Rule 90(a), 29 C.F.R. 

§ 2200.90(a). 

ORDER 

Based on the foregoing decision, it is hereby ORDERED, Citation 1, Item 1, alleging a 

serious violation of the General Duty Clause, OSH Act Section 5(a)(1), is VACATED, and no 

penalty is assessed. 

SO ORDERED. 

/s/___________________________ 

Sharon D. Calhoun 

Administrative Law Judge, OSHRC 

Dated: March 13, 2024 

Atlanta, GA 

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