SECRETARY OF LABOR,
Complainant,

v.

A. AMORELLO & SONS, INC.,
Respondent.

OSHRC Docket No. 79-4703

DECISION

Before: BUCKLEY, Chairman; RADER and WALL, Commissioners.
BY THE COMMISSION:

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 motion 10(c) of the Act, 29 U.S.C. 659(c).

This case is on remand from the United States Court of Appeals for the First Circuit. Donovan v. A. Amorello, & Sons, Inc., 761 F.2d 61 (1st Cir. 1985). The Commission previously had vacated an alleged violation of 1926.602 (a)(9)(ii) [[1]] on the basis that the Secretary failed to prove that the front-end loader of A. Amorello & Sons, Inc. had been operating with "an obstructed view to the rear" in violation of the terms of that standard. A. Amorello & Sons, ___ OSAHRC ____, 11 BNA OSHC 2044, 1984 CCH OSHD 26,940 (No. 79-4703, 1984).[[2]] However, the First Circuit, giving deference to OSHA's interpretation of the standard, rejected the Commission's rationale for vacating the citation. The court remanded the case for the Commission to make factual findings concerning whether Amorello violated 1922.602(a)(9)(ii).

At the beginning of the inspection, the compliance officer, Huse, and his supervisor, Joyce, observed Amorello's front-end loader operating in reverse. Neither Huse nor Joyce heard a back-up alarm. One of Amorello's heavy equipment operators, Violette, who was not the operator of the front-end loader on that day, testified that he heard the back-up alarm in operation prior to the inspection. However, Violette did not recall whether the alarm was in operation after Huse arrived. Later during the inspection, Huse made a request to Amorello's foreman that the loader be operated in reverse to demonstrate whether the back-up alarm was functioning. The foreman got on the machine and backed it up, but the alarm did not sound. Violette then climbed on the loader, turned "on" the switch that is connected to the alarm, and put the loader in reverse gear. The alarm then sounded.

The evidence establishes that, for the brief period at the beginning of the inspection when Huse and Joyce observed the loader backing up, the reverse signal alarm was not operating. Huse and Joyce were standing in a position where they could determine whether the loader, which was moving in reverse toward them, had an operating reverse signal alarm. While there was testimony suggesting that the engine noise of a nearby backhoe might have prevented Huse and Joyce from hearing the alarm, we do not find such an explanation to be persuasive, since there also was testimony that the back-up alarm was loud enough to be an irritant to employees working in the area.[[3]] Further, Huse's and Joyce's testimony that the alarm was not operating when they saw the loader back up is corroborated by the undisputed fact that, when the foreman operated the loader in reverse to determine whether the alarm was working, the alarm did not sound.

In order to establish a violation, the Secretary must prove that the cited employer knew or could have known with the exercise of reasonable diligence of the presence of the noncomplying condition. Prestressed Systems, Inc., 81 OSAHRC 43/D5, 9 BNA OSHC 1864, 1981 CCH OSHD   25,358 (No. 16147, 1981). In this case, the record is scanty at best with respect to employer knowledge. The evidence establishes that the loader was used in the "ongoing process" of pushing dirt back into the excavation after the pipe was laid. Earlier in the day the back-up alarm had been operating. Work had begun at 7:00 a.m. that day and it was about 11:00 a.m. when the inspection began. When the compliance officer photographed the front-end loader moving in reverse without a back-up alarm sounding, the loader was bringing a load of gravel to drop at the edge of the excavation and was thereafter driven to the lower end of the block some distance away. When the photograph was taken, Amorello's superintendent was standing near the edge of the excavation with his back to the loader. The evidence does not establish whether the loader was operated more than once in reverse without the alarm sounding and if so, whether Amorello's superintendent knew that the loader had been used in reverse with a non-operating alarm. The record also does not establish whether Amorello had any work rule that applied to this condition. Although Amorello's failure to comply with the cited standard may have been due to circumstances beyond its control, on the basis of this record we cannot draw such a conclusion. Since Amorello's superintendent was in close proximity to the loader, we conclude that with the exercise of reasonable diligence Amorello could have known of the violation.

The violation in this case was of very brief duration, since there was undisputed evidence that the reverse signal alarm had been operating earlier on the day of the inspection. Additionally, this case involved only a very minor limitation of the driver's rearward vision. Accordingly, we conclude that there is not a "substantial probability" that death or serious physical harm could have resulted from this violation. We therefore affirm the citation as other than serious. See section 17(k) of the Act, 29 U.S.C. 666(j). Further, because the gravity of the violation is low, we assess no penalty.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

Dated: January 28, 1986

Buckley, Chairman, concurring specially:

I concur. The primary question in this case is whether Amorello was required to sound the backup alarm on its front-end loader after the loader had traversed the area in which the operator's view to the rear was initially obstructed and was traveling in reverse on a level city street. At that time the operator had an unobstructed field of view because the loader was traveling over ground already seen to be clear. The standard, 29 C.F.R. 1926.602(a)(9)(ii), applies only to "obstructed" rear views. Although the court's opinion does not explain why the standard required the backup alarm to be sounded during the entire course of the approximately two-block trip, the mandate of the court of appeals clearly requires that a violation be found if the alarm was not sounding during any part of that trip. It is for this reason that I concur in the affirmance of the citation. I also agree with my colleagues that, inasmuch as the condition could not have injured an employee, a penalty should not be assessed.


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FOOTNOTES:

[[1]] The 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.

[[2]] The two Commission members in the majority gave different reasons as to why the citation should be vacated. Former Chairman Rowland held that Amorello's front-end loader did not have an "obstructed view to the rear" within the meaning of the standard, since there existed only a rather minor limitation of rearward vision, comparable in extent and nature to the limitation on rearward vision that drivers of many ordinary vehicles would experience in backing-up. Chairman Buckley concurred on the basis that operating the machine in reverse gear with no alarm sounding when the loader was moving, as alleged in the complaint and observed by the compliance officer, did not violate the standard. Chairman Buckley reasoned that, since the view to the rear was limited for a distance of only two feet from the backend of the loader, the operator's view no longer was obstructed once the loader was covering ground that the operator previously had seen to be clear.

[[3]] We also note that the cited standard requires that the alarm must be distinguishable from the surrounding noise level. Therefore, even if the alarm were sounding but was not loud enough to be heard, the standard would have been violated.