Background
Hall Trucking Inc. moves oil rigs. During one rig move, a truck fatally struck an employee. OSHA cited the company under the Occupational Safety and Health Act’s general duty clause, 29 U.S.C. § 654(a)(1), identifying an internal traffic control plan as a feasible means of reducing struck-by hazards. Such a plan could include measures to minimize interactions between workers and trucks, require high-visibility gear, and train employees.
An administrative law judge affirmed the citation. The ALJ found Hall Trucking’s existing measures inadequate, excluded testimony from its proposed expert, David DiTommaso, and admitted testimony from the Secretary of Labor’s traffic-control expert, Kenneth J. Shorter, while excluding Shorter’s legal conclusion that the company violated the general duty clause. After discretionary review was denied, Hall Trucking petitioned the Eighth Circuit for review.
The Court’s Holding
The Eighth Circuit denied the petition and affirmed the citation. Substantial evidence supported the ALJ’s findings that Hall Trucking’s existing precautions were inadequate and that an internal traffic control plan supplied sufficiently specific, feasible, and effective abatement measures. Although the company’s procedures addressed backup alarms, backup cameras, employee training, high-visibility gear, and discipline for safety violations, the record showed that the camera had glare during the incident, employees generally ignored backup alarms, workers were not wearing high-visibility gear, and the company had not provided written policies addressing struck-by hazards. The spotter present during the incident also had his back turned.
The court held that OSHA could propose a flexible process under which an employer selects among alternative abatement measures. Expert testimony that oil-rig moves resemble highway work, where internal traffic control plans are used, supported the finding that such a plan could materially reduce the risk. The court rejected Hall Trucking’s arguments that the plans were too rigid or had to be an industry standard. It also held that Hall Trucking waived its argument that 29 C.F.R. § 1926.601(b)(4) displaced the general duty clause because the company did not raise that contention in its petition for discretionary review.
Finally, the court upheld the ALJ’s expert-evidence rulings. DiTommaso’s general experience as an OSHA compliance officer did not establish specialized traffic-control knowledge, and his proposed opinions were based on his evaluation of the evidence rather than scientific or technical analysis. Shorter, by contrast, had specific traffic-control and internal-traffic-plan experience, supporting the ALJ’s qualification and reliability determinations.
Key Takeaways
- Existing written safety measures may be inadequate under the general duty clause when employees do not follow them, the employer does not enforce or effectively communicate them, or conditions undermine their operation.
- OSHA may identify a flexible abatement process offering a menu of measures, rather than prescribing a single fixed step, if the process provides specific and feasible ways to materially reduce the hazard.
- An employer seeking appellate review of an OSHRC matter must clearly develop each objection in its petition for discretionary review or risk waiver.
Why It Matters
The decision confirms that employers cannot rely solely on safety measures appearing in policies or equipment lists. Courts may examine whether those measures were communicated, followed, enforced, and effective under actual workplace conditions.
For employers managing vehicle-and-worker interactions at changing worksites, the ruling also supports OSHA’s use of site-specific internal traffic control planning even when that planning is not customary throughout the employer’s industry.