SECRETARY OF LABOR,

Complainant,

v.

A. AMORELLO & SONS, INC.,
Respondent.

OSHRC Docket No. 79-4703

DECISION

Before:  ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.

ROWLAND, Chairman:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act").  The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration.  It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions.  See section 10(c) of the Act, 29 U.S.C. 659(c).  An item of a citation issued by the Secretary alleges that A. Amorello, & Sons, Inc. violated a construction standard at 29 C.F.R. 1926.602 (a)(9)(ii). [[1]] This standard provides:

No employer shall permit earthmoving or compacting equipment which has an obstructed view to the rear to be used in reverse gear unless the equipment has in operation a reverse signal alarm distinguishable from the surrounding noise level or an employee signals that it is safe to do so.  For the reasons stated in our separate opinions, Commissioner Buckley and I vacate this item.

A compliance officer of the Occupational Safety and Health Administration and his supervisor arrived at Amorello's worksite in Worcester, Massachusetts, in response to a complaint about an unshored trench.  As they got out of their car, they observed a front- end loader operating in reverse.  Neither the compliance officer nor his supervisor heard a backup alarm.  During the latter part of the inspection, however, the compliance officer was shown that the loader was equipped with such an alarm.  In the compliance officer's view, a backup alarm was required to be in operation while the loader was in motion because the view to the rear of the loader was obstructed.  He stated that the rear view of the loader was obstructed because "[t]he engine sticks out over the back . . . and the operator cannot see a person immediately to the rear of it."  He also stated that an exhaust pipe "could" obstruct the view to the rear.  The compliance officer did not get into the loader to see if the view was obstructed nor did he measure the extent of the rearview obstruction.

The only other testimony on this point was by Herbie Violette, one of Amorello's heavy equipment operators.  He testified that the rear view of the loader was not obstructed.  Violette was not operating the loader on the day of the inspection but stated that he had operated it in the past.  When asked, "How close to the machine would a man of average height . . . have to be before your view of them would be obstructed?", he replied, "[a] couple of feet." Violette also testified that the exhaust pipe on the rear of the loader was three to four inches in diameter and was about three to four feet high but did not obstruct the operator's rear view.

Judge Worcester did not decide whether Amorello's loader had an "obstructed view to the rear."  He vacated this item because he found that the compliance officer admitted that he heard the backup alarm during his inspection.  Based on a credibility finding, the judge determined that the compliance officer's testimony was otherwise entitled to no weight.  On review, the Secretary argues that the judge's reasons for not crediting the testimony of the compliance officer were unsound.  The Secretary also contends that a violation was proven because the standard requires either a reverse alarm or a signalman if the view to the rear is obstructed "to any extent."  The Secretary contends that the operator's view to the rear was obstructed by the exhaust pipe and for a "few feet" by the location of the loader's engine.

I conclude that the item should be vacated, but I rely on different reasons from the judge.  Section 1926.602(a)(9)(ii) is applicable only if the cited equipment "has an obstructed view to the rear."  There are two alleged limitations on the rear view here.  First, with respect to the exhaust pipe, the evidence clearly shows that the exhaust pipe did not obstruct the rear view.  I base this finding upon the testimony of Amorello's operator, Violette, who sat in the loader, and upon my examination of the photographs.  This evidence establishes that the loader's operator had a clear view to the rear, unblocked by any part of the loader, except for two feet immediately behind it, where the view was limited only by the location of the loader's engine.  The question therefore reduces to whether the two-foot limitation created by the engine compartment amounts to an "obstructed view to the rear" within the meaning of the standard.  I think not.

I first emphasize that this case does not involve the usual sort of obstructed rear view presented by past cases.  The condition cited here is not a significant obstruction created by a special part of the vehicle, such as a bucket, that obstructs the operator's view during the entire course or a significant portion of rearward travel.  See Brown & Root, Inc., 79 OSAHRC 20/A2, 7 BNA OSHC 1215, 1979 CCH OSHD 23,435 (No. 13685, 1979), aff'd, 639 F.2d 1289 (5th Cir. 1981)(violation of 1926.602(a)(9)(ii) found where equipment with "paddles" attached to rear of machine obstructed rear view for a distance of 30-40 feet).   Here, by contrast, there existed a rather minor limitation on the operator's rearward vision, comparable in extent and nature to the limitation on rearward vision that drivers of many ordinary vehicles would experience when backing out of a driveway. [[2]] Furthermore, the limitation on rearward vision of Amorello's loader existed only during the first two feet of travel; after that, the operator's field of vision encompassed areas previously seen to be clear.  Finally, I note that the phrase "obstructed view to the rear" did not appear in the proposed version of this standard; instead, the proposed standard would have required backup alarms on all finally, I note that the phrase "obstructed view of the rear" did not appear in the proposed version of the standard; instead, the proposed standard would have required backup alarms on all earthmoving equipment.  36 Fed. Reg. 1802, 1846 (1971).  That the Secretary included the qualifying phrase "obstructed view to the rear" in the final standard, 37 Fed. Reg. 3512, 3517 (1972), leads me to conclude that section 1926.602(a)(9)(ii) was not intended to govern minor limitations that are common to nearly all earthmoving equipment. [[3]]

Accordingly, the portion of the judge's decision vacating item two of citation one is affirmed.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED:  JUN 21 1984


BUCKLEY, Commissioner, concurring:

I agree with Chairman Rowland's conclusion that the respondent did not violate the cited standard.  Whether "earth-moving or compacting equipment" has an "obstructed view to the rear" requiring a signalman or signal alarm within the meaning of the standard will depend upon the facts of each case.  To make that determination several factors must be taken into account, including the depth and breadth of the area to the rear of the equipment that would be blocked from the operator's view by the obstruction and the speed at which the machine is operated.

In this case, the Secretary alleged that the exhaust pipe and the engine housing of a loader obstructed the operator's view to the rear while the loader was in motion.  I agree with the Chairman that the evidence is clear that the 3- or 4-inch exhaust pipe did not obstruct the operator's view at all.

The view directly to the rear of the front-end loader was limited for a distance of only two feet from the backend of the loader by the engine housing.  Someone standing directly behind and within two feet of the backend of the loader might not be visible to the operator while the loader was standing still.  The view to the rear was limited, however, only for the two feet initially traversed by the loader at the start of its movement.  Thereafter, even at a speed of less than two miles per hour the loader would travel two feet in approximately one second.  Once in motion, the loader was covering ground the operator had seen to be clear and there was no obstruction of the operator's view.  Operating the machine in reverse gear with no alarm sounding when the loader was moving, as alleged in the citation and observed by the compliance officer, does not violate the standard because the operator's vision was not obstructed at that time.  For these reasons I agree that the citation should be vacated.

CLEARY, Commissioner, dissenting:

I respectfully dissent.  I cannot agree with the majority's conclusion that Amorello's loader did not have "an obstructed view to the rear" within the meaning of section 1926.602(a)(9)(ii).  In my opinion, section 1926.602(a)(9)(ii) applies whenever the operator of earthmoving equipment cannot see his entire path to the rear.  The evidence shows that the operator of this loader could not see the first two feet of his rearward path.  An employee behind the loader in the operator's blind spot would be crushed if the loader backed up without warning.  Accordingly, I would find that Amorello's loader had an obstructed view to the rear and that a reverse signal alarm or a signalman was required when this equipment was operated in reverse.

The purpose of section 1926.602(a)(9)(ii) is to ensure that employees are not in the path of earthmoving equipment.  Brown & Root, Inc., 79 OSAHRC 20/A2, 7 BNA OSHC 1215, 1218, 1979 CCH OSHD 23,435, p. 28,363 (No. 13685, 1979), aff'd, 639 F.2d 1289 (5th Cir. 1981).  The interpretations adopted in the majority opinions, unfortunately, defeat this purpose.  The standard is effectively rewritten to limit its applicability to "significant" obstructions.  As a result, obstructions "common to nearly all earthmoving equipment" will not be covered by this standard.  It is also concluded that the standard is inapplicable because the obstruction existed "only" during the first two feet of the loader's travel and lasted for "approximately one second."

To the extent that the majority opinions focus on the extent of the obstruction, I find their rationales indistinguishable.  Both rationales cloud the unambiguous terms of this standard and contravene the Act's objective of eliminating   hazards from the workplace.  I find nothing in the language of this standard or its meager regulatory history to support the view that this standard may be interpreted by resort to a tape measure or a stop watch.  Support of the opinion that the standard is inapplicable to "minor limitations" on an operator's rear view is inferred from an amendment to the proposed standard adding the phrase "obstructed view to the rear."  I doubt that this was the Secretary's intent.  This amendment could as well reflect the Secretary's intent to limit
the standard's applicability to equipment with an "obstructed" rear view and to exempt equipment with a completely unobstructed rear view from needless compliance with the standard's requirements.  It can hardly be said that by purposely adding this phrase that the Secretary further intended that it should not be applied according to its plain meaning and that the standard should apply only to "significant" obstructions.

The majority interpretations also introduce a mischievous element of subjectivity into a standard that objectively sets forth the circumstances under which compliance is required.  Heretofore, an employer could confine his inquiry to whether the view of the operator was obstructed within the plain meaning of the term.  An employer now must also determine whether the obstruction is "significant ".   But there is little guidance as to when a "significant" obstruction exists.  All that can be said is that equipment obstructed for a distance of two feet is not governed by the standard while equipment obstructed for a distance of 30-40 feet, as was the case in Brown & Root, is.  I am unclear as to when an obstruction ceases to be a "minor limitation" and becomes "significant" and I suspect employers who apply this standard in the future will share my confusion.  Under the rationale in the concurring opinion, instead of determining whether the entire path to the rear of equipment is in the operator's view, an employer must take "several factors" into account to decide whether the rear view of the equipment is obstructed.  Little guidance is provided as to how to apply these factors or when these factors combine to yield a conclusion that an obstructed rear view exists.

The majority opinions also ignore the manner in which earthmoving equipment is operated.  These machines are constantly moving back and forth on a construction site.  Often the machines are operated in close quarters with employees performing other jobs.  In the normal course, equipment often rests in an idling position while other work is performed.  If an employee entered the operator's blind spot while the equipment was idling, he would be crushed if the operator abruptly shifted the equipment into reverse and began to travel. [[4]]  The conclusion that the standard is inapplicable because the operator's view was obstructed for only two feet also disregards the fact that earthmoving equipment is not operated exclusively on level ground.  When a piece of equipment is positioned at the top of an incline, the obstructed rear view may be increased depending on the angle of the incline.  The same piece of equipment might be obstructed on one type of terrain and unobstructed on another.  It also apparently is assumed that employees only stand.  But construction machinery is operated in close proximity to employees, and employees may be sitting, kneeling, or bending over. [[5]]  Given the manner and the conditions under which this machinery is operated, as well as the proximity of employees, it is apparent that the hazard of an unseen employee being crushed would be greatest when this equipment begins travelling in reverse without warning. [[6]]  Under such circumstances, I am unimpressed by the fact that the rear view of Amorello's loader was obstructed "only" for a distance of two feet.

Nor do I agree that this standard can be interpreted by comparing earthmoving equipment with an ordinary vehicle such as a pickup truck.  This comparison assumes only the best of circumstances, as if earthmoving equipment were operated in reverse infrequently and not in close quarters.  Moreover, unlike an operator of a pickup truck, the operator of earthmoving equipment often must coordinate a complicated system of controls, while simultaneously paying heed to other distractions.

It is rationalized that "[o]perating the machine in reverse gear with no alarm sounding when the loader was moving, as alleged in the citation and observed by the compliance officer, does not violate the standard because the operator's vision was not obstructed at that time."  (Emphasis added.)   This view apparently construes the citation, in light of the testimony of the compliance officer, to allege that a violation occurred only while the machine was in motion.  It determines that the question to be decided is whether the rear view of Amorello's loader was obstructed while the machine was in motion and not when it started up from a stationary position.  Such a reading of the citation violates the well-settled principle that administrative pleadings are to be "very liberally construed."  National Realty & Construction Co. v. OSHRC, 489 F.2d 1257, 1264 (D.C. Cir. 1973).  I do not agree that this citation charges Amorello with violating the standard only when the compliance officer arrived at the site and observed the loader in motion.  The citation alleges that the loader had an obstructed view to the rear and was "operated" in reverse gear without a signal
alarm or signalman.  The operation of a vehicle necessarily includes the moment it begins to travel.

Based on the foregoing, I would find that Amorello's loader had "an obstructed view to the rear" within the meaning of section 1926.602(a)(9)(ii), and that Amorello failed to comply with the standard's requirement that a signal alarm be used.  The compliance officer testified that he did not hear an alarm when he observed the loader operating in reverse.  The judge rejected the compliance officer's testimony on credibility grounds, but the compliance officer's supervisor, whose credibility was not questioned, also testified that he did not hear a backup alarm when the loader was operating in reverse.[[7]]  It is not contended that a signalman was present.  Accordingly, I conclude that a violation of section 1926.602(a)(9)(ii) was proven.  This item of the citation should be affirmed.


The Administrative Law Judge decision in this matter is unavailable in this format.  To obtain a copy of this document, please request one from our Public Information Office by e-mail ( lwhitsett@oshrc.gov ), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).




FOOTNOTES:

[[1]] The citations issued to Amorello by the Secretary contained five items.  After a hearing, the judge vacated four of these items, including the item now on review.  As to the remaining item, the judge determined that a violation was established but characterized this violation as de minimis.  On petition by the Secretary, former Commissioner Cottine directed review of the judge's rulings on all five items.  While this case was pending before us, the Secretary stated that he objects only to the judge's disposition of the item concerning 1926.602 (a)(9)(ii).  Our review therefore is limited to this item of the citation.

[[2]] For example, 29 C.F.R. 1926.601(b)(4), which is applicable to motor vehicles used on "off-highway jobsite[s]", provides, in terms almost identical to the standard involved here, that a motor vehicle with an obstructed rear view shall not be operated in reverse unless it is equipped with a reverse signal alarm or a signalman is used.  In my review of photographic exhibit C-5, I noted the presence of an ordinary pickup truck on Amorello's worksite.  It would seem to follow from the Secretary's approach that this ordinary pickup truck and, indeed, almost all pickup trucks, would have an "obstructed view to the rear" within the meaning of 1926.601(b)(4).  This standard, however, was not intended to require such ordinary vehicles to have backup alarms or be operated in reverse only with a signalman.

[[3]] The result sought here by the Secretary could have been achieved if this standard had been drafted like the Mine Safety and Health Administration standard contained at 30 C.F.R. 77.410.  Under this standard, the Secretary required that front-end loaders and other equipment used in surface mining operations be equipped with reverse signal alarms regardless of whether the rear view is obstructed.  Section 77.410 provides:

Mobile equipment; automatic warning devices.
Mobile equipment, such as trucks, forklifts, front-end loaders, tractors and graders, shall be equipped with an adequate automatic warning device which shall give an audible alarm when such equipment is put in reverse. [Emphasis supplied.]

[[4]] This would not occur if a backup alarm sounded.  The Society of Automotive Engineers ("SAE") has established a "Recommended Practice" for backup alarms, SAE J994.  This "Recommended Practice" was substantially amended in May, 1974. The amended version may be found in the 1981 SAE Handbook at p. 35.33.  Section 6 of this "Recommended Practice," as amended, discusses the use of backup alarms on excavation equipment.  Section 6.2 states:

The backup alarm shall be activated immediately when the transmission control mechanism is shifted into a reverse position, and shall remain activated until the mechanism is shifted out of the reverse position. [Emphasis added.]

An alarm installed in accordance with the SAE criteria would sound when the reverse gear of equipment was engaged and before the equipment began to move, thus allowing an employee positioned immediately behind the equipment to get out of its path.  Prior to its amendment in 1974, SAE J994, as contained in the 1973 SAE Handbook at p. 1194, recommended that a backup alarm "must produce an audible warning within the initial 3 ft. (0.9m) of backward motion of the vehicle."  I consider it significant that the SAE's "Recommended Practice" was amended to provide that an alarm sound immediately when the reverse gear of earthmoving equipment is engaged.

[[5]] See H.C. Nutting Co. v. OSHRC, 8 BNA OSHC 1241, 1980 CCH OSHD 24,548 (6th Cir. 1980) (employee killed while crouching to take soil sample; run over by compacting machine operating in reverse); Edward J. Huegel, Inc., 74 OSAHRC 93/D8, 2 BNA OSHC 3255, 1974-75 CCH OSHD 19,095 (No. 893, 1974)(ALJ) (foreman run over and killed by backhoe while kneeling within 6 feet of rear of machine).

[[6]] I would attach no significance to the fact that the operator's view was obstructed  for "approximately one second" since the hazard of an unseen employee being crushed is perhaps greatest at the moment equipment begins travelling in reverse.  In any event, the Commission has held that the brevity of employee exposure to a hazard cannot negate the existence of a violation.  Stahr and Gregory Roofing Co., 79 OSAHRC 2/B12, 7 BNA OSHC 1010, 1012, 1979 CCH OSHD 23,261, p. 28,135 (No. 76-88, 1979); American Bechtel, Inc., 77 OSAHRC 214/A2, 6 BNA OSHC 1246, 1248, 1977-78 CCH OSHD 22,466 p. 27,079 (No. 11340, 1977).

[[7]] The record shows that the loader was equipped with an alarm, but that the operator could shut the alarm off with a switch. Although one of Amorello's employees testified that the alarm was operating before the compliance officer and his supervisor arrived at the worksite, the supervisor's testimony that he did not hear an alarm when he observed the loader operating in reverse is uncontradicted.