Key Points

  • The Eighth Circuit denied Hall Trucking's petition for review and upheld an OSHA general duty clause citation issued after a truck fatally struck an employee during an oil-rig move.
  • Substantial evidence supported the finding that the company's listed safety measures were inadequate because they were not followed in practice.
  • The Secretary of Labor can identify specific abatement steps by proposing a process, such as an internal traffic control plan, in which the employer chooses among alternative measures.
  • Hall Trucking waived its argument that 29 C.F.R. § 1926.601(b)(4) displaces the general duty clause by not raising it in its petition for discretionary review.
  • The ALJ did not act arbitrarily in excluding the company's expert, a former OSHA compliance officer without traffic-control experience, while admitting the Secretary's traffic-control expert.

A federal appeals court on Oct. 28 upheld a workplace-safety citation against Hall Trucking Inc., a company that moves oil rigs, after a truck fatally struck an employee during a rig move. The court held that safety rules the company had written down did not protect workers in practice.

A three-judge panel of the U.S. Court of Appeals for the Eighth Circuit denied Hall Trucking's petition for review of an order of the Occupational Safety and Health Review Commission. Judge Benton wrote for the panel, which also included Judges Loken and Erickson. The ruling leaves in place an administrative law judge's decision that the company violated the general duty clause of federal workplace-safety law.

The decision holds that the Secretary of Labor can meet the burden of identifying a fix for a hazard by proposing a process in which the employer chooses among alternative safety measures, rather than a single prescribed step. It also holds that safety measures listed in company procedures do not defeat a citation when the record shows they were not followed.

The general duty clause, 29 U.S.C. § 654(a)(1), requires employers to provide workplaces "free from recognized hazards that are causing or are likely to cause death or serious physical harm." OSHA's citation said a feasible way to reduce the hazard was an internal traffic control plan. According to the opinion, such a plan could include steps to minimize interactions between employees and trucks, requirements that employees wear high-visibility gear, and employee training.

An administrative law judge affirmed the citation, and the commission denied Hall Trucking's petition for discretionary review. The company then petitioned the Eighth Circuit, which reviews the judge's factual findings for substantial evidence, a standard the court described as "not necessarily a preponderance of the evidence, but it is more than a scintilla."

The appeal turned on the last of four elements the Secretary of Labor must prove for a general duty violation: that a feasible means existed to eliminate or materially reduce the hazard. Under a 1981 Eighth Circuit precedent the panel quoted, the Secretary must "specify the particular steps a cited employer should have taken to avoid citation" and show that those measures are feasible and likely to work.

Hall Trucking argued that its existing safety measures were adequate. Its procedures listed back-up alarms, back-up cameras, employee training, high-visibility gear, and firing employees who did not follow safety rules. During the fatal incident, the back-up camera had glare, the spotter had his back turned, and employees were not wearing high-visibility gear, Judge Benton wrote. Employees generally ignored back-up alarms, and the company did not give them written policies for struck-by hazards.

The panel relied on a 2020 D.C. Circuit decision holding that an employer "does not satisfy its obligation under the General Duty Clause" merely by putting safety measures in a manual; the measures must actually be followed and enforced. The Secretary may also prove inadequacy by showing that an employer failed to communicate its procedures to workers, the court said. Judge Benton concluded: "Substantial evidence supports the ALJ's finding that Hall Trucking's safety measures were inadequate."

The company also argued that a traffic control plan does not give an employer specific steps to take. The panel disagreed, holding that the Secretary can show specific steps by proposing a process in which an employer chooses between alternative means of abatement. It also pointed generally to a 2024 decision in a commission proceeding, which the panel quoted as stating, "Where a hazard cannot be abated with a single measure, it is permissible for OSHA to require the employer to engage in a process approach to abatement."

On feasibility, Hall Trucking argued that traffic control plans are not an industry standard and are too rigid, because site conditions would require them to change 50 to 100 times a day. The Secretary's expert testified that moving an oil rig is like working on a highway, where such plans are used, and that a plan would reduce the risk of a vehicle hitting an employee. The panel held that feasibility turns on "whether a precaution is recognized by safety experts as feasible, not whether the precaution's use has become customary." The record showed the plans are flexible and do not need continuous revision, the court said.

The panel declined to consider Hall Trucking's argument that a federal regulation, 29 C.F.R. § 1926.601(b)(4), displaces the general duty clause in this setting. The company had not raised that argument in its petition for discretionary review, as federal law requires to preserve an objection. It contended that it preserved the issue by arguing that spotters and back-up alarms were adequate. "Arguing that existing measures were adequate is not the same as arguing that 29 C.F.R. § 1926.601 (b)(4) replaces the general duty clause," Judge Benton wrote, holding the argument waived.

The final dispute concerned expert witnesses. The administrative law judge excluded the testimony of Hall Trucking's expert, David DiTommaso, ruling that his knowledge was not specific enough and that his opinions were legal conclusions. The company argued that his experience as an OSHA compliance officer made him an expert on hazardous conditions and workplace accident investigations. The panel held that the judge reasonably found that experience was not sufficient specialized knowledge about traffic control.

"Since he did not analyze the evidence using scientific or technical knowledge, excluding his opinions as legal conclusions was not arbitrary and capricious," Judge Benton wrote. Hall Trucking had also objected that the judge allowed similar opinions from the Secretary's expert, Kenneth J. Shorter. The panel noted that Shorter had specific experience in traffic control and based his opinions on technical experience with such plans; the administrative law judge had excluded, as a legal conclusion, only his opinion that the company violated the general duty clause.

The panel also upheld the judge's findings on which expert was reliable. Fact finders "have substantial latitude to determine whether specific expert testimony is reliable," the court wrote, quoting its own precedent. Because Shorter had personal experience with traffic control plans and DiTommaso had none, the panel held that the judge properly credited one and found the other's testimony unreliable.

The petition for review was denied, leaving the commission's final order and the citation in place. The case is Hall Trucking Inc. v. Secretary of Labor, No. 25-2769, in the U.S. Court of Appeals for the Eighth Circuit.