CLARKSON CONSTRUCTION COMPANY

OSHRC Docket No. 1515

Occupational Safety and Health Review Commission

November 29, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: CLEARY

OPINION:

CLEARY, COMMISSIONER: This matter is before the Commission in accordance with Chairman Moran's order directing review of a decision of Judge Vernon Riehl pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act"). Judge Riehl found respondent in serious violation of section 5(a)(2) of the Act for its failure to comply with the standard published at 29 CFR 1926.601(b)(4) n1 He assessed a penalty of $500.

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n1 The standard provided as follows:

1926.601 MOTOR VEHICLES

(b) General requirements

(4) No employer shall use any motor equipment having an obstructed view to the rear unless:

(i) The vehicle has a reverse signal alarm audible above the surrounding noise level or;

(ii) The vehicle is backed up only when an observer signals that it is safe to do so (emphasis added).

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The disposition of this case is controlled by our decision in Southeast Contractors, [*2] Inc., No. 1445 (May 8, 1974), (petition for review filed No. 74-2698, 5th Cir., June 27, 1974). In Southeast Contractors, on facts strikingly similar to those before us, the Commission affirmed a citation for serious violation of the Act for respondent's failure to comply with the standard at 29 CFR 1926.601(b)(4). In that case, while discussing the relationship between the terms "use" and "employer" in the standard at issue, we stated:

The word 'use' is not synonymous with 'operation'. In the context of this standard [29 CFR 1926.601(b)(4)], we believe that it takes on the broader meaning of 'apply to one's service.'

In the case before us, an employee of respondent was fatally injured by a truck of respondent's subcontractor. The truck, which had an obstructed view to the rear, was in contravention of the standard at issue since it was not equipped with a reverse signal alarm nor was an observer used to signal the driver as he backed up. Respondent controlled the operation of the subcontractor's trucks and applied them to its service. We hold, therefore, that respondent was an employer within the meaning of the standard at 29 CFR 1926.601(b)(4).

Accordingly, [*3] the decision of Judge Vernon Riehl is affirmed.

DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: As I did in Secretary v. Southeast Contractors, Inc., 8 OSAHRC 285 (1974), I again disagree with the Commission's interpretation of 29 C.F.R. 1926.601(b)(4).

The accident on which the citation was grounded occurred in an area where the respondent was performing grading and filling operations in connection with widening the existing highway. The hauling portion of the respondent's project was being performed by a subcontractor (Advance Hauling Company) under a contract whereby the Advance Company agreed to:

Haul excavated material from project cuts to disposal in project embankment, State waste site, or Contractor waste site, as directed, at a unit price of $4.00 per tandem truckload.

Advance also agreed "to furnish any and all personnel, equipment, tools, material, supervision, . . . necessary to perform" this work. The truck involved in the accident was owned by its driver, Ervin Knight. He was hired by Advance who paid him on the basis of the number of loads that he transported. He had been employed exclusively by Advance (or the owner of Advance) during the year that [*4] preceded the accident. At the time of the accident, a sign was affixed to the door of his truck indicating that it was leased to Advance. When a signal alarm had been installed on the truck after the accident, the driver sought permission from the Advance Company's foreman before resuming work on the project.

Within the project area, the employees of the respondent directed the Advance Company's drivers as to where they were to pickup and discharge their loads. The respondent's policy was that no vehicle would be backed up within the worksite without an observer. As a matter of practice, the respondent provided its employees to act as observers. The respondent's grading superintendent frequently lectured all drivers within the worksite on safe driving. If he desired to have an Advance Company driver relieved from work for improper job performance, he requested that company's president to replace the driver.

The standard which the respondent allegedly violated provides that "[n]o employer shall use any motor vehicle equipment having an obstructed view to the rear unless" he complies with one of the two specified conditions. (Emphasis added.) In Southeast Contractors, [*5] I indicated that:

(1) There can be no violation of the Act by a respondent for failing to comply with a standard which charges some other employer with the duty of implementing the standard;

(2) The critical question in affixing employer liability under this standard is whether the driver of the noncompliant vehicle was an employee of the respondent or his subcontractor; and

(3) The ordinary meaning of the word "employee" must be used to determine if the driver was an employee of the respondent.

Those principles are applicable in the instant case, n2 and no useful purpose would be served in repeating the supporting rationale therefor.

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n2 I assume for the purpose of this opinion that the truck driver was not an independent contractor. If he was, it would not change the result advocated herein because of the long-standing general rule that a subcontractor is not considered to be an employee of a contractor in determining liability for acts of the subcontractor. 57 C.J.S. Master & Servant 584 (1948).

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The [*6] Commission errs in relying on the respondent's control over the operation of the subcontractor's trucks. In ascertaining an employment relationship, it is the right of control, not the exercise of control, that is governing. n3 Furthermore, the agreement between the parties should not be overlooked. Other important indicators of an employer-employee relationship that require consideration are the source of the worker's pay, the authority empowered to discharge the worker, the beliefs of the parties concerning the existing relationship, and the length of time for which a worker is employed. n4

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n3 See, e.g., annotation in 17 A.L.R. 2d 1388, 1394 (1951).

n4 57 C.J.S., supra note 2, 563, Restatement (Second) of Agency 220 (1957).

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In this case, the Advance Company had not only the right to control the dump truck driver but, under the terms of the company's contract with the respondent, it was the Advance Company's duty to do so. The driver had been exclusively employed by Advance for one year, [*7] and it was Advance who paid him. The driver's employment agreement was with Advance, not the respondent. Advance was the party who exercised the power of replacing the driver for improper job performance. The driver believed that he was employed by Advance and held this out for all to see by the sign affixed to the side of his truck. The fact that the respondent took it upon itself to exercise some safety measures over workers not in its employ is insignificant in resolving the relationship of the parties. Obviously, a party should not be held liable as an employer simply because he invoked certain safety precautions even though he was not required to do so by the express terms of the standard allegedly violated. A holding to the contrary defeats the purpose of the Act.

I believe that the following statements of Justice Holmes n5 are particularly apropos in this case:

. . . [T]he mere fact that a servant is sent to do work pointed out to him by a person who has made a bargain with his master does not make him that person's servant. More than that is necessary to take him out of the relation established by the only contract which he has made. . . .

. . . [I]n such cases the [*8] party who employs the contractor indicates the work to be done and in that sense controls the servant, as he would control the contractor if he were present. But the person who received such orders is not subject to the general orders of the party who gives them. He does his own business in his own way, and the orders which he receives simply point out to him the work which he or his master has undertaken to do. n6

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n5 Then Chief Justice of the Supreme Judicial Court of Massachusetts.

n6 Discoll v. Towle, 181 Mass. 416, 63 N.E. 922 (1902), which is favorably cited by the Supreme Court in Standard Oil Company v. Anderson, 212 U.S. 215, 226-227 (1909).

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Accordingly, I would vacate the citation because the respondent was not the responsible employer under the standard that it was alleged to have violated.

[The Judge's decision referred to herein follows]

RIEHL, JUDGE: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereinafter [*9] called the Act), contesting a Citation issued by the Complainant against the Respondent under the authority vested in Complainant of Section 9(2) of that Act. The Citation alleges that an inspection of a workplace under the operation and control of the Respondent revealed existence of workplace conditions that violate Section 5(a)(2) for the reason that these conditions failed to comply with certain Occupational Safety and Health Standards promulgated by the Secretary of labor pursuant to Section 6 thereof.

The Citation which was issued alleges that the violation results from a failure to comply with the standards promulgated by the Secretary by publication in the Federal Register. A description of the alleged violation contained in said Citation states:

AMENDED CITATION FOR SERIOUS VIOLATION

Standard or Regulation Allegedly Violated -- Description of Alleged Violation -- Date On Which Alleged Violation Must Be Corrected

29 CFR 1926.601(b)(4) formerly 1518.601(b)(4) as adopted by 29 CFR 1910.12 Page 7386, Col. 3 -- Ten (10) ton capacity dump truck having an obstructed view to the rear was permitted to be backed up on the construction site without either a reverse signal alarm [*10] audible above the surrounding noise levels, or an observer to singla it was safe to do so. (1964 IH Dump Truck -- Kansas License Plate -- JOT 3461) -- Immediately Upon Receipt of Citation

The above alleged violations cited from Federal Register 29 CFR 1518, dated April 17, 1971, Volume 36, Number 75.

NOTIFICATION OF PROPOSED PENALTY

Citation No.

Proposed Penalty

2

$500.00

Total for All Alleged Violations

$500.00

The alleged Serious Violations in this Citation were cited from the Federal Register 29 CFR 1518, dated April 17, 1971, Volume 36, Number 75. Pursuant to the enforcement procedures set forth in Section 10(a) of the Act, the Respondent was notified by the Occupational Safety and Health Administration that the United States Department of Labor proposed to assess a penalty for the violations alleged and set forth in the proceeding paragraph.

Pursuant to Section 10(c), Respondent timely filed with the Secretary a notification to contest the Citation. A motion of the Secretary for leave to amend his Complaint to reflect the true name of Respondent, Clarkson Construction Company, a corporation, was granted on December 11, 1972.

Jurisdiction is admitted [*11] (Answer, paragraph 3) as is the fact that Respondent is, in general terms, an employer within the meaning of the Act (T. 5).

The Amended Complaint alleges in paragraph IV, a violation of Section 5(a)(2) of the Act and the Occupational Safety and Health Standards (29 CFR 1926) as follows:

On August 22, 1972, at a construction work site located on Highway K-10, one-half mile east of Barker Road in Shawnee Kansas, respondent permitted a 10 ton capacity dump truck having an obstructed view to the rear and not equipped with a reverse signal alarm audible above the surrounding noise level to be backed up without an observer to signal that it was safe to do so, in violation of 29 CFR 1926.601(b)(4).

The Amended Complaint further alleged that one of Respondent's employees was fatally injured as a result of this violation (paragraph IV), that the alleged violation constituted a Serious Violation within the meaning of Section 17(k) of the Act (paragraph V), and that the proposed penalty of $500.00 is appropriate under Section 17(j) of the Act (paragraph VI).

At the close of the evidence the Respondent moved to dismiss and vacate the Citation. This motion was denied as are all other motions [*12] made by the Respondent and unruled on during the course of the hearing. It was Stipulated whether or not the violation occurred at the work site was an issue for trial.

Also at the beginning of the hearing the Respondent renewed and offered a series of Motions which were all overruled.

DISCUSSION

The weight of the credible, substantial probative evidence of record establishes a violation of safety standards as set forth in the Citation.

The standard violated was 29 CFR 1926.601(b)(4). It provides as follows:

(4) No employer shall use any motor vehicle equipment having an obstructed view to the rear unless:

(i) The vehicle has a reverse signal alarm audible above the surrounding noise level or:

(ii) The vehicle is backed up only when an observer signals that it is safe to do so.

Cook (the decreased flagman), an employee of Respondent, was working at the workplace or job site mentioned in the evidence of record.

The Act provides as follows:

DUTIES

Sec. 5(a) Each employer --

(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm [*13] to his employees;

(2) shall comply with occupational safety and health standards promulgated under this Act. (Emphasis added.)

In the instant case "furnishing a safe place to work" includes checking to see if the trucks are equipped with backup horns and other safety applicances as called for by the standards. It includes also the supervision by Respondent of trucks of subcontractors while backing up. There was a failure to warn the employee of danger which ultimately caused his death. There is a duty of the Respondent to comply with the Act with Section 29 CFR 1926.601(b)(4). This duty is essentially one of warning the employee of impending danger. The absence of the backup horns was probably the greatest of the failures to warn. The horns are loud enough to warn anyone in their rear when trucks are backing up and probably would have saved the employee's life.

The evidence establishes that the particular truck driver involved in the accident and other drivers did not have horns prior to the accident which creates considerable doubt as to the good faith of the Respondent in the operation of his safety program and efforts to comply with the Act.

Therefore, there [*14] was only one duty left Respondent, and that was to provide an observer to signal trucks backing up that it was safe to do so. In the instant case there was no such observer.

The Clarkson Construction Company, Respondent, has requested in its Proposed Finding of Fact (paragraph 7) the following:

Clarkson Construction Company had no control over the area north of the limit of its work site, and in particular had no control over existing Highway K-10 or the existing shoulders.

We do not agree with this proposed Finding of Fact, and in fact the total evidence establishes that the Clarkson Construction Company had exercised control of the area including the places the truck driver backed up and the point of impact in killing of the deceased flagman.

Section 8 deals with inspections, investigations and recordkeeping. This section gives the compliance officer authorization:

(1) to enter without delay and at reasonable times any factory, plant, establishment, construction site, or other area, workplace or environment where work is performed by an employee of an employer; and. . . (Emphasis added).

A workplace is anywhere an employee is required by his employer to perform work [*15] in the course of his employment.

It may be a publicly owned or privately owned facility; it may be enclosed as a factory, or, public property such as a manhole out on the city street; it may or may not be an area owned by the employer.

Ownership or sovereignty of an area are not controlling. In considering whether or not the standards apply to a specific workplace the dominant thing involved in whether or not the employee is working at a place where he is required to work by his employer in the course of his employment.

These questions are not always easy to decide. Where for instance is there a place of employment for inspection purposes of employees working for a delivery service. Is it the main office of the employer? Is it the cab of the delivery truck? Does it extend, for inspection purposes, to the unloading area? It might be all of these and conceivably additionally more places as long as employee is working for his employer and reasonably acting for his employer in the area involved.

It is to be noted that an inspector is authorized to enter "any factory, plant, establishment, construction site, or other area, workplace or environment where work is [*16] performed."

In the instant case the worker who was killed was in an area where he was required to be in performance of his duties. His employer requirement him to be there, and he was under instructions to do certain things in connection with directing the traffic in the area (T. 136, 137).

This place, it turned out, was unsafe (he was killed there). He was killed because his employer failed to furnish a workplace safe for him. Why was it unsafe? It was unsafe because there was a failure to warn him of the dangers to his life. The Respondent failed to provide effective, diligent supervision under the circumstances then and there prevailing. The employer failed to see that trucks on the job site had warning horns when backing up. The employee was placed in an unsafe position (and killed) because a driver was permitted to drive a ten ton capacity dump truck having an obstructed view of the rear, and, not equipped with a reverse signal alarm audible above the surrounding noise level. This truck was backed up without an observer to signal it was safe to do so, in violation of 29 CFR 1926.601(b)(4) (T. 24-30, 50, 49, 51).

The fact the employee may or may not have been injured [*17] within the exact bounds of any maps as are in evidence is not material. The total evidenmce of record establishes that the workplace extended to the place the employee was killed. The employee was going from one place to another as directed by his employer (T. 136). A truck was directed to another area but no one from Respondent's firm acted as observer at the time of the employee's death, or, on the occasions mentioned in the evidence.

The practice of not having backup horns or an observer was in effect permitted by Respondent. Only after the event were horns required (T. 50, 51). Only then were steps taken to tighten up safety.

The Respondent used the shoulder site, and, part of the time regulated traffic on the highway, thus making the scene of the death a workplace because the flagman was where he was directed to be. The trucks were directed from one part of the total work site to another. No one of Respondent's men took over the duty to assist the truck in backing up. It permitted this practice on this and other occasions (T. 49, 50, 51), and, therefore did not exercise that degree of diligence or care required to absolve them of blame for the negligent killing [*18] of an employee. The highway was used by the Respondent in carrying out its work on excavating. Having exercised the use of the highway for this purpose, Respondent then came under the standards which the Occupational Safety and Health Administration required for the protection of their employees.

Therefore, the employee was killed on Respondent's workplace or worksite.

The Respondent merely ordered the trucks to a new site and did not have anyone of a supervisory nature to stop the driver from backing up, or, to direct him as he backed up. Evidence of record shows that same driver had backed up previously before the eyes of the superintendent (T. 50, 51). This superintendent in his testimony stated that he had the complete control of the total operation, including telling the truck drivers where to load the material and where to haul it (T. 138, 139).

It is not enough to have safety rules or a safety program. The employer must diligently follow through on the safety program to see that it is a continuing thing. Respondent in its brief states that the Occupational Safety and Health Act applies only to Respondent's work site; i.e., "A workplace under (Respondent's) ownership, [*19] operation and control." As we have previously stated this is not entirely true, and the circumstances of the employment will vary as to what a work site consists of.

Respondent also argues that to extent the work site beyond the boundaries of the excavation set forth on the map, would extend the workplace or work site to any place employees happen to be. Respondent argues further that the boundaries of Clarkson's work site terminated some distance away from the spot where the incident in question occurred, and that beyond that point Clarkson had no control as it evidenced by the necessity of obtaining permission from the Kansas State Highway Commission to erect speed signs along existing K-10 Highway (T. 129, 130; Deposition 8). We point out that Section 8(a)(1) of the Act states:

Sec. 8(a) In order to carry out the purposes of this Act, the Secretary, upon presenting appropriate credentials to the owner, operator, or agent in charge, is authorized --

(1) to enter without delay and at reasonable times any factory, plant, establishment, construction site, or other area, workplace or environment where work is performed by an employee of an employer; (Emphasis [*20] added).

Respondent, as the picture exhibits show, had appropriate parts of the shoulder and highway for the parking and use of its trucks and also used as a highway to drive in and off with loads from point to point (Exhibit G-2, 3). The situs of the accident would certainly be considered part of the construction site appropriated by the Respondent in its work. It would certainly be considered "other area, workplace or environment where work is performed by an employee of an employer." It was in this instance so used by the Respondent's deceased employee, and by the driver and truck which backed into the employee and by various other people moving in and about the workplace.

The area involved was indeed a part of the total work site in use by Respondent and his employees.

The accident happened on the paved shoulder of the highway (T. 127). The evidence is contradictive as to whether or not the Respondent knew of previous incidents of backing up. Paul L. Schelstrate, Grading Superintendent of Respondent, testified that none of his subordinates advised him that anyone had been backing up in the project without an observer; that he has foremen and lead men under him to whom [*21] he delegates some duties, including the duty to see that trucks did not back up without an observer (T. 132, 133). Prior to the accident, Mr. Schelstrate had ordered the deceased employee, Cook, to move his car to a new site where the loading was going to take place, and Cook obeyed his order, being sent to this new site to resume his duties as a flagman.

One instance illustrating the control taken by Respondent over the shoulder of the highway, including the spot where the employee was killed, is the following testimony:

Mr. Schelstrate questioned by Mr. McCoy:

No, I mean with respect to the roadway itself as opposed to any position up and down the roadway. He (Cook) would have been standing on the shoulder and that's where he was run over, is that correct?

A. That's correct.

Another instance of the control assumed by Respondent was the following testimony:

Mr. Schelstrate questioned by Mr. McCoy:

Q. Well, let's assume you wanted someone replaced and talked to Mr. Barnhill and he refused to replace him?

A. He can't refuse.

Q. He cannot refuse?

A. No sir.

Questioned by Judge Riehl:

JUDGE RIEHL: And after they get on the work site are you in charge of [*22] the drivers of Mr. Barnhill?

THE WITNESS: I'm in charge of where they go or what they do. I'm in charge of telling them where to load the material and where to haul it.

JUDGE RIEHL: And direct them where to go and how to load it and so forth?

THE WITNESS: This is right, this is right.

Therefore, the Respondent has taken over the control insofar as the truckers hired by the Barhill Trucking Company is concerned.

Knight's testimony was that upon returning from his noon meal, he pulled up on the shoulder at approximately the place where loading operations had been taking place. One of the highload operators told Knight they were getting ready to move the operation and ". . . either told me or he directed me . . . he pointed down toward the other end where we were going to be working at." Knight checked his mirrors and proceeded to back down the shoulder towards the indicated site. He felt a bump, which he first thought might be one of the drinking water cans, which were set up on the shoulder. He stopped and found Cook under the truck (T. 23-24). Knight further testified that his truck was not equipped with a reverse alarm or signal and that no one was acting as an observer [*23] (T. 25).

The record therefore establishes that the Respondent authorized his employees to inform the various trucks where to go but Respondent did not also provide someone to see that they did not back up while doing so and hence lacked proper supervision.

Another instance of failure of follow up on the part of the Respondent insofar as proper safety is concerned is Knight's testimony that approximately two or three weeks prior to the fatality he was issued ". . . a paper that told all of the safety devices that had to be put on the truck," including backup horns (T. 25). To Knight's knowledge, his truck was not inspected by representatives of either Clarkson's or Barnhill's Company (T. 26). Also, Knight testified that between the time he was given the list of safety requirements, Knight and several other drivers would back down the shoulder to get to a loading project (T. 27). He had done so in the presence of Clarkson's Superintendent and Foreman ". . . on several occasions" (T. 29, 30). On these occasions he said he was not stopped and told not to back up (T. 49), even though doing so without an observer (T. 51), nor was he ever told not to back up without an observer [*24] (T. 50).

We have had an opportunity to observe all of the witnesses and hear all of the testimony in this case, and, the total evidence of record establishes to our satisfaction that this is the correct version of the situation prior to the accident in which Respondent's employee was killed.

There is no evidence in the record, nor was any offered to show that Knight was personally advised against his testified unsafe practices, and Knight stated emphatically that he was not. All this, of course, establishes that there was not sufficient continuing diligence in the application of Respondent's safety practices insofawr as this particular accident is concerned.

Another evidence of Respondent's becoming safety conscious only after the accident is the testimony of Compliance Officer Clarence R. Mathews who said that his office received notification of the fatality by telephone on August 21, and that he inspected the site the next day (T. 89). Prior to doing so, he made arrangements with Mr. David Neenan who indicated he would act as a representative of Clarkson Construction Company in investigation (T. 90). At the site the next day he presented his credentials to those present (including [*25] Neenan, Schelstrate, Barnhill and Reynolds) and explained that the purpose of his investigation was to ascertain whether there was any violation of the appropriate OSHA Standards (T. 90). No work was being conducted on the site on August 22 because as Neenan told Mathews, ". . . they had been instructed . . . to have the ncessary safety equipment, alarms, and so forth, installed on the trucks" (T. 91).

Mathews later visited the job site when trucks were operated and testified that the presence of backup alarms on three or four trucks was "very, very obvious" . . . the alarms were quite loud and could be heard for at least 150-200 feet (T. 105, 106).

In the instant case, the Respondent apparently had a policy forbidding employees from backing up trucks without an observer. It did not have any backup horns on the trucks which would have been perhaps more effective. The Respondent feels that because it had this policy that that was sufficient to satisfy its general duty obligation of the Act.

We do not feel the mere having of a policy is enough in the instant case. A safety policy standing by itself cannot completely satisfy the duty requirement imposed by the Act. [*26] This is so because a safety policy contains effectiveness only through implementation. Consequently, we must look to both the policy and the employer's implementation of same in order to determine whether the totality of the employer's conduct has, in the circumstances, satisfied the requirements of the Act. In our case it has not.

Neither communication of Respondent's policy to Mr. Knight, nor its enforcement by any positive means of the circumstances then and there prevailing, has been shown.

It is not material that Knight was employed by Barnhill's Company, Advance Hauling, a subcontractor to Respondent, since Respondent Clarkson Construction Company clearly had and exercised control over the job and the entire work site (T. 55). The loading operations themselves were directed by Clarkson's highload operators. The extent of Clarkson's control over Barnhill's drivers is clear from Mr. Schelstrate's testimony (T. 138).

In the case of Secretary of Labor v. Dore Wrecking Company, OSAHRC Docket Number 597, in which Respondent, the prime contractor at a demolition site, was held to be responsible for not providing the operator of a pneumatic drill with eye protection, [*27] although Respondent asserted that the operator was an employee of a subcontractor. It should be noted that in that case, compliance with the cited standard was necessary to afford personal protection to the employee of the subcontractor. In the instant case, the alleged violation clearly presented a hazard to Clarkson's employees, one of whom was killed, as well as the subcontractor's employees.

An employer's obligation to provide a safe workplace for his employees under the Act is not something that can be contracted away. ( Secretary of Labor v. Thorleif Larsen and Son, Inc.,

The highload operator who directed Knight to move his truck to the new location did not apparently, stop him from backing up or act as his observer. According to Christiansen the highload operators were aware of the "no backing" policy (D. 29), and were in charge of directing the truck drivers (D. 13), as Schelstrate (T. 139, 140) and Knight (T. 57, 58), both testified. Nor was the occurrance an isolated one, on Knight's testimony (T. 29-30, 49-51). Respondent in the instant case has certainly not exercised reasonable diligence, to know of the presence of the violation [*28] in which his employee was killed). The penalty of $500.00 was not inappropriate under the total circumstances of record.

Respondent further argues that Mr. Knight's dump truck was not a "motor vehicle" within the meaning of 1926.601(a), but an "off-highway truck" and thus subject to the requirements for "material handling equipment" set out in 1926.602. The term "off-highway trucks" as used in 1926.602 refers to trucks designed to be used exclusively or at least primarily, off the highway. Such vehicles generally are neither equipped or licensed to operate on public roads, or transferred from job site to job site by rail or truck, and frequently require special permits to move on or across public highways. Respondent's argument is not well taken and the truck involved is clearly a motor vehicle within the meaning of 29 CFR 1926.601(b)(4).

FINDINGS OF FACT

1. Respondent is a Missouri corporation engaged in construction contracting.

2. On August 21, 1972, Respondent was conducting and engaged in grading and filling operations along Kansas Highway K-10; on the date in question the highway consisted of two lanes and paved shoulder on either side. The Clarkson Construction [*29] Company was engaged in grading and filling operations south of existing pavement in preparation for two additional lanes and shoulders. On the date of the alleged fatality, the highway was open for traffic from both directions (T. 67, 68).

3. The construction project was 3.4 miles long (T. 124). Respondent's Foreman, Christiansen, testified by deposition that the north limit of Clarkson's project was a line (designated "medial" on Respondent's Exhibit 4) approximately 31 feet south of the south paved shoulder of the existing highway (Deposition, p. 24).

4. Evidence adduced from examination of photographs introduced show that the ground is disturbed immediately south of the paved shoulder in the same manner as it is further south. Trucks were driven and parked both on the shoulder and immediately south of it. The area between the shoulder and the official limit of Clarkson's project was used as a ". . . haul road for trucks to pull in and off" (D. 23-24). Respondent's work site included the area adjacent to the shoulder and the portion of the shoulder itself where the fatality occurred.

5. The Clarkson project subcontracted the hauling portion to Advance Hauling Company, [*30] said to be a joint venture between George Barnhill and Winifred Goosetree (D. 27). A copy of the contract is in record (Exhibit G-8). This contract sublets to Advance Hauling the following items of work said to be specified in the contract between Clarkson and the State of Kansas:

Haul excavate material from project cuts to disposal in project embankment, State waste site, or contractor waste site, as directed, at a unit price of $4.00 per tandem truckload.

The contract is signed for Advance Hauling by George Barnhill, President,

6. Ervin Knight was employed by George Barnhill and no other contractor since September 1971 (T. 19). He also has been employed by Barnhill Trucking, George Barnhill Trucking and Advance Hauling (T. 16, 34). Trucks involved in the excavation were furnished by Barnhill (T. 133-138). Barnhill's name was used interchangeably with Advance Hauling in much of the testimony.

7. On August 21, 1972, driver Knight was hauling dirt and rocks on the Clarkson site as were 15 or 20 other trucks. These trucks were loaded by two highloaders operated by employees of Clarkson Construction Company (T. 21-23).

8. Hobart Cook, the flagman who was killed, [*31] was a Clarkson employee. He was ordinarily stationed on the shoulder where he would stop traffic for a loaded truck or piece of heavy equipment to pull onto the highway (T. 23, 60, 63).

9. After returning from his noon meal, Knight pulled up on the shoulder at approximately the place where loading operations had been taking place. One of the highload operators told Knight they were getting ready to move the operation and ". . . he either told me or he directed me -- he pointed down toward the other end where we was going to be working at." Thereupon, Knight checked his mirrors and proceeded to back down the shoulder toward the indicated site. He felt a bump, which he at first thought might be one of the drinking water cans which were set on the shoulder. Knight then stopped and found Cook under the truck (T. 23-24). Knight's speed while backing up was one and one-half or two miles per hour and his truck was in reverse gear with the clutch engaged (T. 25).

10. Knight's truck was not equipped with a reverse alarm or signal and no one was acting as an observer (T. 25).

11. Upon arrival shortly after the occurrence, Patrolman Reynolds observed Knight's truck facing east on [*32] the south paved shoulder, directly underneath was the victim, Cook, lying face down and facing west (T. 68, also see photographs, Exhibits G-2 and G-3, and diagram, Exhibit G-4). The physical evidence establishes that at the time of impact Cook had been walking west with his back toward the truck (T. 79). A later examination of the truck revealed there was no audible warning device (T. 81). The rear view of the truck was obstructed.

12. About two or three weeks prior to the fatality, Knight was issued ". . . a paper that told all the safety devices that had to be put on the truck, "including backup horns (T. 25). Knight's truck was not thereafter inspected by representatives of either Clarkson or Barnhill's Company (T. 26). Between the time Knight was given the list of safety requirements, he and several other drivers backed down the shoulder to get to a loading project (T. 27). Knight had done so in the presence of Clarkson's Superintendent and Foreman ". . . on several occasions" (T. 29-30). On all of these occasions Knight was not stopped nor was he told not to back up (T. 49) even though doing so without an observer (T. 51) nor was he ever told not to back up [*33] without an observer (T. 50).

13. Respondent's supervisory employees testified that there was a company policy against backing up any vehicle without an observer (T. 131, D. 12). The highloader operators were designated to act as observers in the cut area where loading operations were taking place (D. 13). The policy against backing up without an observer was communicated to the drivers at a meeting held in early April 1972 (D. 20), and on other occasions (D. 21-22). Mr. Schelstrate testified that he had advised the foreman and lead men of the company policy (T. 132-133). Knight was not personally advised of the Respondent's policy against backing up.

14. The Compliance Officer inspected the site of Cook's death the next day (T. 89). David Neenan acted as representative of Clarkson Construction Company in the investigation.

15. There was no work being conducted on Respondent's work site on August 22 because ". . . they had been instructed. . . to have the necessary safety equipment, alarms and so forth, installed on the trucks (T. 91).

16. Following the visit by the Compliance Officer the Respondent had added backup alarms on three or four trucks which was "very, very [*34] obvious" -- the alarms were quite loud and could be heard from at least 150-200 feet (T. 105-106).

17. Mathews computed the Secretary's proposed penalty according to the prevailing administrative procedures then in existence: a $1,000 fine was reduced by 50 percent representing a 20 percent adjustment for the Respondent's good faith, 10 percent for size, and 20 percent for the absence of prior history of violation, all of these adjustments being the administrative maximums (T. 98-100, Exhibit G-6).

CONCLUSIONS OF LAW

1. Respondent was at all times material hereto an employer within the meaning of Section 3(3) and 5(a)(2) of the Act.

2. The Occupational Safety and Health Review Commission has jurisdiction of this proceeding under Section 10 of the Act.

30. On August 21, 1972, Respondent violated Section 5(a)(2) of the Act and 29 CFR 1926.601(b)(4) as alleged in the Complaint (the Complaint alleges August 22, 1973; Respondent did not object nor was he mislead thereby from the one day later erroneous listing of the date of accident and the Complaint was amended to conform to the evidence).

4. The violation as set forth in the preceding paragraph constitutes a Serious [*35] Violation within the meaning of Section 17(k) of the Act.

5. The proposed penalty of $500.00 is appropriate within the meaning of Section 17(k) of the Act.

6. The abatement period fixed in the Citation was not contested by Respondent, any employee or representative of employees as provided in Section 10(c) of the Act.

7. The site of Respondent's deceased employee Cook's death was a work site within the meaning of the Act.

DECISION

Based upon the Findings of Fact and Conclusions of Law, and the total credible, substantial, probative evidence of record, it is hereby ORDERED:

1. The Citation issued for Serious Violation be, and the same, is hereby affirmed.

2. The penalty for the foregoing Citation, mentioned in paragraph 1 of this decision is hereby affirmed.