SECRETARY OF LABOR,
THE GREAT LAKES CONSTRUCTION CO.,
OSHRC Docket No. 85-547
The Commission approves the Parties' Stipulation and Settlement Agreement. The Judge's decision is set aside and the citation and penalty are vacated pursuant to the terms of the settlement agreement.
FOR THE COMMISSION
Ray H. Darling, Jr.
DATED: Feb. 10, 1987
WILLIAM E. BROCK, SECRETARY OF LABOR,
THE GREAT LAKES CONSTRUCTION Co.
OSHRC Docket No. 85-597
STIPULATION AND SETTLEMENT AGREEMENT
The parties have reached agreement on a full and
complete settlement the instant matter which is currently pending before the Commission.
The parties stipulate as follows:
(a) The Occupational Safety and Health Review Commission (hereinafter "the Commission") has jurisdiction of this matter pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590; 29 U.S.C. §651 et seq. (hereinafter "the Act").
(b) Respondent, the Great Lakes Construction Co., a corporation with its place of business in Cleveland, Ohio. It is engaged in the business of highway and heavy construction and during the course of its business its employees perform various tasks in the nature of construction work. During the course of its business, respondent uses materials and equipment which it receives from places located outside Cleveland, Ohio. Respondent, as a result of the aforesaid activities, is an employee engaged in a business affecting commerce as defined by sections 3(3) and 3(5) of the Act, and has employees as defined by section 3(6) of the Act, and is subject to the requirements of the Act.
(c) As a result of an inspection conducted on March 2, 1985, at respondent's workplace at the Interstate 675 project, in the Dayton, Ohio area, a citation alleging one serious violation of the standard at 29 CFR 1926.602(a)(4), with a Proposed Penalty of $490.00, was issued to respondent on April 17, 1985 pursuant to section 9(a) of the Act.
(d) Respondent submitted a notice of contest dated May 23, 1985, informing Complainant of its intention to contest the alleged violation and Proposed Penalty. The notice of contest was received by the Cincinnati, Ohio Area Director, Occupational Safety and Health Administration, on May 28, 1985. Thereafter, the parties duly filed a complainant and an answer.
(e) On December 4, 1985, a hearing was held before Commission Administrative Law Judge Joe D. Sparks on respondent's notice of contest. On March 26, 1986, Judge Sparks issued his decision and Order in which affirmed the serious citation alleging a violation of 29 CFR 1926.602(a)(4) and assessed penalty of $500.00. Thereafter, respondent timely filed a Petition for Discretionary Review to the Commission and on May 21, 1986, Commissioner Rader granted review of the issues raised in respondent's petition. The Commission issued a Briefing Notice on October 10, 1986. Respondent submitted its brief to the Commission on November 19, 1986.
Now, the Secretary of Labor and the Great Lakes Construction Co., in order to conclude this matter without the necessity of further litigation, stipulate and agree as follows:
Respondent hereby states that the alleged violation of 1926.602(a)(4) has been abated and the worksite at issue is no longer in existence.
The Secretary hereby withdraws its Citation for alleged violation of 1962.602(a)(4), with prejudice, issued to respondent on April 17, 1985. The Secretary believes that the judge's decision was correctly decided. However, particularly in view of the fact that the worksite which was the subject of the citation is no longer active, the Secretary has determined that further. litigation of the case is not merited. Accordingly, the Secretary requests. the Commission set aside the judge's decision.
Respondent and Complainant agree that each party shall bear its own costs.
Respondent agrees to post this Stipulation and Settlement Agreement in accordance with Commission Rules 2200.7 and 2200.100.
WHEREFORE, the parties request that this Stipulation and Settlement Agreement be approved by the Commission.
Attorney for the
Secretary of Labor
KEITH A. ASHMUS, Esq.
Thompson, Hine and Flory
SECRETARY OF LABOR,
THE GREAT LAKES CONSTRUCTION CO.,
OSHRC Docket No. 85-597
F. Benjamin Riek, III, Esquire, Office of the
U.S. Department of Labor, Cleveland, Ohio, on behalf or
Keith A. Ashmus, Esquire, Thompson, Hine and
Cleveland, Ohio, on behalf of respondent.
DECISION AND ORDER
SPARKS, JUDGE: A loaded dump truck on a highway construction job could not be stopped as it was driven down a steep grade resulting in it being run into a ditch. A citation, as amended at the hearing, charged respondent with a violation of 29 C.F.R. § 1926.602(a)(4)[[*/]] for failing to have adequate service brakes.
On March 20, 1985, Great Lakes Construction Company was engaged in highway construction work on the I-675 project north of Centerville, Ohio. Truck driver, A. D. Armstrong, was assigned an International Harvester dump truck designated as ED-5. The foreman instructed him to be careful as the brakes on the truck were bad (Tr. 15). He had no problems stopping the truck at slow speeds on level terrain. Later in the day, he was driving the loaded truck as it began gathering speed down an incline. He tried the brakes once without any effect, swerved to miss a bulldozer working in the area and came to a halt in a dictum that was being filled in. Armstrong was not injured and the truck was not damaged, but the truck was parked until the brakes were examined. The mechanics discovered that the two front brakes were intact, but the two rear brakes were totally inoperative. The bleeder valve assembly was defective on one and the other had a "blown" air bladder (Tr. 130-132). The Secretary contends the service brakes were clearly defective and were in violation of the standard. Respondent contends that the Secretary's evidence was not credible, that the two front brakes were sufficient to meet the requirements of the standard and that the accident occurred because of Armstrong's inexperience with the truck.
The Review Commission has stated in Astra Pharmaceutical Products, Inc., 82 OSAHRC 55/E9, 9 BNA OSHC 2126, 1981 CCH OSHD ¶ 25,578 (No. 78-6247, 1979), the elements of violation as follows:
In order to prove a violation of section 5(a)(2) of the Act, 29 U.S.C. § 654(a)(2), the Secretary must show by a preponderance of the evidence that (1) the cited standard applies, (2) there was a failure to comply with the cited standard, (3) employees had access to the violative condition and (4) the cited employer either knew or could have known of the condition with the exercise of reasonable diligence. Daniel International Corp., Wansley Project, OSHRC Docket No. 76-181 (June 30, 1981).
The Commission also explained the burden of proof as follows, ibid:
In cases before the Commission arising out of notices of contest, the Secretary bears the burden of proving the alleged violation. He must do so by a preponderance of the evidence. Applying the preponderance of the evidence test, the resolution of this case is thus reduced to the question whether, based upon all the evidence, the fact asserted by the Secretary. . .is more probably true than false. (Footnotes omitted.)
It is not disputed that dump truck ED-5 was an "off-highway truck" which was manufactured after January 1, 1971, purchased by respondent in 1972, and had been used approximately 100,00 to 150,000 hours (Tr. 76, 186).
Armstrong testified that a brief conference was held before the beginning of his shift at which time he was told by foreman Ben Akers ". . .that ED-5 didn't have any brakes on it and to be careful with it" (Tr. 14). Foreman Akers testified that Armstrong seemed a little shaky and stated ". . .I heard that the brakes might be a little bad--not bad but to just make sure he took it easy" (Tr. 104). Foreman Akers explained that he did not test the brakes but that he had been told by Robert Zellman, who usually drove the ED-5, that ". . .he didn't say that there wasn't any. He just said they weren't probably as good as they ought to be" (Tr. 104). He further indicated that other drivers had said "something" about the brakes but denied they had stated "there were no brakes at all" (Tr. 105). Akers again acknowledged that he had been told the brakes were a "little bad" and "weren't up to par" (Tr. 109-110, 112).
Armstrong stated that he did not try the brakes before his trip down the hill because he had been told it didn't have any.
Armstrong explained his accident as the result of driving the loaded truck down a haul road which had a grade of approximately 25 to 30 degrees (Tr. 17-18, 67). As he descended the slope, the truck gained speed. He tried to apply the brakes, but the truck had no brakes. There were no brakes and no stopping action (Tr. 18, 22-23, 37). Armstrong applied the brakes only once and verified he did not have any (Tr. 38-39). He then swerved barely missing a bulldozer and "buried up" in the ditch (Tr. 18, 22).
Respondent contends the accident was the result of Armstrong's inexperience with dump truck ED-5. Armstrong was sent to the job from the union hiring hall and had not driven ED-5 previously although he had driven trucks of the same type (Tr. 16, 27). Respondent contends Armstrong should have used the retarded to slow and control the truck before stopping with the brakes (Tr. 124-125). Armstrong asserted that he used the retarder which slowed the truck a little but not much (Tr. 20, 23, 28, 31, 34). The testimony of Armstrong is creditable and establishes that the service brakes failed to stop ED-5 when loaded.
Compliance Officer Robert Beisel testified he did not understand the braking system of the dump truck and based his conclusions upon the statements of supervisors and employees (Tr. 98). He testified he tried the service brake while the truck was parked but found it inoperative (Tr. 54). The braces operate by air pressure only when the engine is running so his testimony on that point adds nothing to the Secretary's case (Tr. 128). Beisel further testified that he was investigating a complaint that trucks ED- 5, ED-6, and ED-8 had defective brakes, but it was verified only as to ED-5 (Tr. 47, 87, 98-99). Compliance Officer Beisel testified that Cindy Baker, also a truck driver at the site reported that the brakes on ED-5 didn't work (Tr. 57-58). He testified that Baker further stated that she heard foreman Ben Akers tell A. D. Armstrong that the truck ED-5 did not have brakes and to be careful (Tr. 58-592, 98). Beisel also testified that he was told the truck brakes had been in "this condition" for some time (Tr. 66, 73-73). Respondent contends that testimony of Beisel reporting what he was told by employees is unreliable hearsay. The Federal Rules of Evidence, Rule 801(d)(2)(D) provides that the following is not hearsay:
. . .a statement by [an] agent or servant [of a party] concerning a matter within the scope of his agency or employment, made during the existence of the relationship. . .
The statements of Baker and Akers reported by Beisel are within the rule quoted above and are not hearsay. As the Review Commission has held that hearsay evidence is admissible in proceeding, the statements would be received even if they were hearsay. StanBest, Inc., 83 OSAHRC 10/D6, 11 BNA OSHC 1222, 1983-84 CCH OSHD ¶ 26,455 (No. 76-4355, 1983). The Commission held that:
[Such] statements are an clearly admissions by a party opponent through his agent and servant and thus are not hearsay. Fed. R. Evid. 801(d)(2); see Prestressed Systems, Inc., 81 OSAHRC 43/D5, 9 BNA OSHC 1864, 1870, 1981 CCH OSHD ¶25,358, p. 31,501 (No. 16147, 1981). In any event, hearsay is generally admissible in administrative proceedings and may be used as probative evidence. See Power Systems Division, United Technologies Corp., 81 OSHRC 49/C13, 9 BNA OSHC 1813, 1981 OSHD ¶ 25,350 (No. 79-1552, 1981), and cases cited therein.
Respondent contends the position of the Review Commission is in conflict with the decision of the United States Court of Appeals for the Sixth Circuit in NRLB v. Sherwood Trucking Co.,775 F.2d 744 (6th Cir. 1985). In this case, the statements merely corroborate the testimony of Armstrong and no finding of fact is bottomed on such statements.
Evidence offered by the respondent establishes that ED-5 was lacking service brakes on the two rear wheels. Richard L. Hanni, master mechanic, testified the brakes at the two front wheels were intact, but the rear wheels did not have any brakes (Tr. 130-132, 136). He estimated that the braking capacity of the truck was cut in half. He tested the brakes before they were repaired and determined they could stop the truck on level terrain (Tr. 142-143). That test has little probative value in determining whether the brakes could stop the loaded truck descending a steep grade. Likewise that test performed after the brakes were repaired to determine compliance with the standards of SAE J166-1971 are of little value especially after the citation was amended to allege a violation of the first sentence of 29 C.F.R. § 1926.602(a)(4).
In summary the facts of record establish that the rear brakes on ED-5 were inoperative and the service brake system was incapable of stopping the loaded truck as it descended the haul road on March 20, 1985. The evidence is convincing that the foreman, Ben Akers, was aware the brakes were bad as he had been told by the regular driver and he subsequently told Armstrong. Such knowledge is imputed to respondent. The Secretary of Labor has met his burden of proving a violation as alleged.
Fortunately, no one was injured in the accident on March 20, 1985. The truck driver and the operator of the bulldozer were exposed to the risk of death or serious injury which are the probable consequences of the hazard (Tr. 78). The gravity of operating a loaded truck with defective brakes is high. Because the truck was removed from service and repaired, respondent demonstrated a measure of good faith. Considering these factors, a penalty of $500 is reasonable and appropriate.
FINDINGS OF FACT
1. Respondent, a highway contractor, employed
employees on a construction project at I-675.
2. On March 20, 1985, A. D. Armstrong was assigned to drive a dump truck designated ED-5, manufactured after January 1, 1971.
3. At a conference at the beginning of the shift, respondent's foreman, Ben Akers, informed driver Armstrong that ED-5 did not have brakes and instructed Armstrong to be careful.
4. While driving ED-5 loaded with rock down the haul road, Armstrong applied the brakes without effect and had to swerve to avoid striking a bulldozer before running into a ditch.
5. The brakes were incapable of stopping ED-5 while loaded.
6. Truck ED-5 did not have operative brakes on its rear wheels.
7. Foreman Ben Akers knew that the brakes on ED-5 were bad.
8. The probable result of an accident was death of serious injury.
9. A penalty of $500 is reasonable.
CONCLUSIONS OF LAW
1. Respondent is an employer subject to the
Occupational Safety and Health Act of 1970 and this proceeding.
2. Respondent violated 29 C.F.R. § 1926.602(a)(4) under conditions constituting a serious violation.
3. A penalty of $500 is reasonable.
It is ORDERED:
1. The citation is affirmed.
2. A penalty of $500 is assessed.
Dated this 15th day of April, 1986.
JOE D. SPARKS
[[*/]] Section 1926.602(a)(4) of 29 C.F.R. states as follows:
All earthmoving equipment mentioned in this § 1926.602(a) shall have a service braking system capable of stopping and holding the equipment fully loaded, . . .
Section 1926.602(a) provides as follows:
These rules apply to the following types of earthmoving equipment: . . . off-highway trucks . . . "