WEST ALLIS LIME AND CEMENT COMPANY
OSHRC Docket No. 1324
Occupational Safety and Health Review Commission
December 23, 1974
[*1]
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: MORAN
OPINION:
MORAN, CHAIRMAN: A decision of Review Commission Judge Louis J. Rubin, dated May 8, 1973, is before this Commission for review pursuant to 29 U.S.C. § 661(i).
Having examined the record in its entirety, the Commission finds no prejudicial error therein. Accordingly, the Judge's order is hereby affirmed.
CONCURBY: VAN NAMEE
CONCUR:
VAN NAMEE, COMMISSIONER, concurring: I concur in the disposition but not because the Secretary failed to establish that Respondent's truck had an obstructed view to the rear. The facts of record show that the truck was an ordinary ready-mix concrete truck having the usual revolving drum on its rear. And the driver's view to the rear was obstructed by the drum.
I would vacate on the basis that the Secretary has failed to prove that any of Respondent's employees were exposed to the hazard the cited standard was intended to cover, i.e., the hazard of a backing vehicle. Martin Iron Works, Inc., Docket No 606, BNA 2 O.S.H.C. 1063, CCH E.S.H.G. para. 18, 164 (Rev. Com'n., 1974); Hawkins Construction Co., Docket No. 949, BNA 1 O.S.H.C. 1761, CCH E.S.H.G. para. (Rev. Com'n, 1974).
DISSENTBY: [*2]
CLEARY
DISSENT:
CLEARY, COMMISSIONER, dissenting: I respectfully dissent. The lead and concurring opinions in this case combine to graphically illustrate what unfortunate results can be reached when this Commission loses sight of the purpose of the Act.
On June 21, 1972, the Secretary's compliance officer, while inspecting a construction site, observed a standard ready-mix concrete truck with a revolving drum enter onto the site. The truck was owned by respondent and operated by one of its employees. The truck drove onto the construction site about 150 feet, then backed down a declining roadway approximately 500 feet to and underneath the building structure. It then continued to back under the structure for an additional 150 feet to a position at a material hoist. The truck was operated in reverse for a total of approximately 650 feet and had neither a reverse signal alarm nor an observer to signal the driver during the procedure. As many as 200 employees of various other subcontractors frequently use the roadway traversed by respondent's vehicle.
On August 3, 1972, respondent was issued a citation alleging a non-serious violation of the Act for failure to comply [*3] with the standard at 29 CFR § 1926.601(b)(4). n1 A penalty of $40 was proposed for this alleged non-serious violation. Respondent timely contested the citation.
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n1 The standard provides as follows:
§ 1906.601 Motor vehicles. -- (b) General requirements -- (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.
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The Judge vacated the citation on the grounds that the Secretary had failed to prove that respondent used a motor vehicle with an obstructed rear view. It is uncontroverted that respondent's truck is an ordinary ready-mix concrete truck with a revolving drum at its rear. The Secretary's technical advisor testified that trucks of the type used by respondent have a "restricted" view to the rear. It may reasonably be inferred, therefore, that the truck had an obstructed view to the rear [*4] I would, therefore, reverse the Judge and affirm the citation.
The concurring opinion, while tacitly finding respondent in noncompliance with the standard at issue, "would vacate on the basis that the Secretary has failed to prove that any of respondent's employees were exposed to the hazard. . ." (emphasis added). The position taken by my colleague with regard to exposure, erroneously fostered by this Commission on other occasions, n2 is contrary to all the Act seeks to accomplish and can lead only to disastrous results.
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n2 See Martin Iron Works, Inc., No. 606 (July 1, 1974); Hawkins Construction Co., No. 949 (May 29, 1974).
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Proof of exposure of respondent's employees to a hazard is not an element in the Secretary of Labor's prima facie case. I believe that the Secretary makes out his case by showing that a standard exists and that it was breached. Bechtel Corp., No. 1038 (October 31, 1974) (Cleary, Commissioner, dissenting), and Cam Industries, Inc., No. 258 (March 4, 1974) (Cleary, [*5] Commissioner, concurring and dissenting). The Secretary has the burden of proving the elements of his citation. The elements of a citation are set forth in section 9(a) of the Act and include no requirement on the matter of employee exposure. In my view, a lack of employee exposure is something to be shown as an affirmative defense by an employer. Of. J.E. Roupp & Co., Inc. & Denver Dry Wall Co., Nos. 146, & 147 (April 15, 1974) (dissenting opinion). Its availability as an affirmative defense is clear because removing employees from exposure to danger is a form of abatement which has long been recognized.
The term "exposure," as used in the Congressional debates, is exposure of any employee and was never discussed as the exposure of any particular employees. n3 The definitions of "employee" and "employer," as they appear in section 3 of the Act, give no clue to the relationship of the terms for the purposes of citation. See Brennan v. Gilles & Cotting, Inc. & O.S.H.R.C., No. 73-2471 (4th Cir., October 18, 1974) (slip op. at 13).
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n3 Staff of Senate Comm. on Labor & Public Welfare, 92d Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970 (hereinafter cited as Legislative History) at 144, 157 (Comm. Print 1971).
[*6]
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The Act, in section 5(a) does, however, carefully distinguish the employer's obligations. When dealing with the employer's general duty to provide a place of employment "free from recognized hazards," section 5(a)(1) requires that "Each employer shall furnish to each of his employees [such a place of employment] . . ." (emphasis added). Yet, when dealing with the employer's duty to comply with the promulgated standards, section 5(a)(2) commands that "Each employer shall comply [with such standards] . . ." (emphasis added). The term "his employees" is omitted. I consider this distinction significant, especially after considering the lengthy Congressional debates necessary to finalize the wording of the section. I would also deem significant the wording of the standard at issue which, in clear, simple language, declares "No employer shall use any motor vehicle equipment having an obstructed view to the rear . . . ." The standard is unmistakenly designed to protect not only the employees of the cited employer but all employees exposed to the danger of being injured or killed by a truck [*7] operated in non-compliance with the standard. Exposure, as something to be considered, was intended by the legislators for one purpose only, that is, an employer, in non-compliance with a standard, cannot be in violation of the Act if on one is exposed to the hazard created by the non-compliance.
In Gilles and Cotting, the Fourth Circuit did not reach the question of whether the Secretary of Labor had authority under section 5(a)(2) of the Act to require employers in multiple-employer industries to obey safety standards for the protection of other employers' workmen because the Court considered the Secretary to be bound by his rule published in 29 CFR § 1910.5(c) to the effect that: "[I]n the event a standard protects on its face a class of persons larger than employees, the standard shall be applicable . . . only to employees and their employment and places of employment." I submit that, although the Court's reading of the rule is reasonable, another is more reasonable and therefore more likely intended. Many of the Secretary's standards, particularly those dealing with fire protection, were drawn from private consensus standards that are drafted with public protection [*8] in mind. Employees may be included in the public, which is clearly a larger "class of persons." On the other hand, immediate employees and other workmen whose safety may be dependent upon actions of employers appear to be within the same class for purposes of the rule, because the statutory purpose encompasses their protection and the Secretary is able to require their protection in an appropriate citation or order under section 9 of the Act. I suggest that the Secretary's rule should be read in this manner rather than in derogation of the statutory purpose of protecting all employees.
Additionally, even if the Fourth Circuit were correct in construing the Secretary's rule in § 1910.5(c), I suggest that the rule would not in any event impede the operation of the construction standards in multiple-employer situations. In this regard, I rely upon the last sentence of section 4(b)(2) of the Act, indicating that standards issued under the Construction Safety Act (Public Law 91-94), among others, "shall be deemed to be occupational safety and health standards issued" under the Occupational Safety and Health Act.
In this case, 200 employees of other subcontractors were exposed to the [*9] hazard created by respondent. These employees were indeed fortunate -- no one was injured. Suppose, however, they had not been so fortunate and instead of no one being injured, one, two, or more had been killed or seriously injured by this cement truck operating in reverse in non-compliance with the standard. The concurrence, while dutifully noting the employer to be in non-compliance, would vacate the citation because respondent's employee, the driver, was not actually exposed. Such a result is absurd. I would find exposure, sufficient to find an employer in violation of the Act, in any case where the employees of any employer are placed in or have access to a zone of danger created and controlled by the cited employer.
Attorney General William B. Saxbe, then Senator from Ohio, while debating the passage of the Act in the Senate, expressed the meaning of this legislation in a statement which should serve to guide this Commission in its deliberations. He said:
We cannot be detracted by any other interest, of either the union or the employer, from our primary purpose of saving lives and preventing injury to employees (emphasis added) n4
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n4 Legislative History at 348.
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I hope it will not take a disaster where employees are needlessly sacrificed to spur my commeagues to reconsider the Commission's current stand on exposure.
[The Judge's decision referred to herein follows]
RUBIN, JUDGE: This is a proceeding pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970, 29 USC 651 et seq. (hereafter called the Act). Respondent contests a Citation dated August 3, 1972, and a Notification of Proposed Penalty dated August 3, 1972, issued by the Secretary of Labor pursuant to Section 9(a) of the Act.
The Citation alleges that an inspection on June 21, 1972, of a workplace under the ownership, operation or control of the Respondent, located at 777 East Wisconsin Avenue, Milwaukee, Wisconsin, disclosed that Respondent violated Section 5(a)(2) of the Act by failing to comply with an occupational safety and health standard promulgated by the Secretary of Labor pursuant to Section 6 thereof.
The standard allegedly violated, the abatement date and penalty proposed [*11] by the Secretary are as follows:
Standard -- Abatement Date -- Proposed Penalty.
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. [29 CFR 1926.601(b)(4)] -- August 28, 1972 -- $40.00
After Respondent contested this enforcement action, and Complaint and Answer were filed, the case came on for hearing In Milwaukee, Wisconsin, on November 2, 1972. No affected employee nor any representative of such employee has asserted party status.
RULINGS ON RESPONDENT'S MOTIONS
Respondent's motion for dismissal on constitutional grounds was denied. An administrative proceeding is not the proper forum to raise this issue. While administrative agencies have the power to determine the constitutional applicability of legislation to particular facts, they do not have the power to pass upon the constitutionality of legislation. See Davis, Administrative Law Treatise, § 20.04; Engineers Public Service Co. v. SEC, 138 F. 2d 936 (D.C. Cir. 1943); Central [*12] Nebraska Public Power and Irrigation District v. FPC, 160 F. 2d 782 (8 Cir. 1947), cert. denied 332 U.S. 765, 68 S.Ct. 72. Further, Respondent had not exhausted its administrative remedies before testing the constitutionality of the Act. Lance Roofing Company Inc. v. Hodgson, Civil Action No. 16012 (N.D.Ga., May 23, 1972), cert. denied U.S. , December 18, 1972.
Respondent's Motion to Suppress Evidence was also denied. Complainant failed to comply timely with the pre-hearing directive. The failure was due in part to a delay in mail delivery and inability to obtain a stipulated agreement with respect to the commerce issue. Respondent was not timely notified of two witnesses who testified on the commerce issue, was not furnished a curriculum vitae of Complainant's expert witness, and was not furnished copies of photographs (Exhibits S-5 and S-6) until the day of the hearing. To correct any possible prejudice, Respondent was given the opportunity to request more time (to prepare his case) or to submit additional evidence post-hearing. Respondent elected to proceed with the hearing and has not requested the opportunity to submit additional evidence. [*13] Under these circumstances, suppression of the evidence is not warranted.
Respondent has also moved to strike Complainant's reply brief. This motion is based on a misunderstanding of the directive at the close of the hearing. The parties were granted 20 days after receipt of the transcript to submit briefs, then five working days for reply briefs. The postmarked date was to be the determining mailing date. Complainant's reply brief was postmarked within five days of receipt of Respondent's brief. Respondent's brief was mailed December 14, 1972, and received December 18, 1972. Respondent's position, that December 14, 1972 is the controlling date, is contrary to the announced intent to use the postmarked date as a means of extending rather than limiting the time requirement. The motion is denied.
ISSUES
The issues for determination are: (1) whether standard 29 CFR 1926.601(b)(4) is enforceable against Respondent; if so, (2) whether Respondent was in violation of this standard and whether the proposed penalty and abatement date are proper and reasonable. This, in turn, will depend upon whether Respondent is an employer engaged in a business affecting commerce within the meaning [*14] of Section 3(5) of the Act; whether a violation occurred at a workplace under the ownership, operation or control of Respondent; whether Respondent was engaged in construction work within the meaning of 29 CFR 1910.12; whether Respondent's vehicles operated within an offhighway jobsite not open to public traffic; whether Complainant it estopped charging the violation against Respondent.
DISCUSSION
The following facts are established by the evidence. On June 21, 1972, Peter E. Wasko, a Compliance Officer and Safety Specialist, accompanied by Harold I. White, Construction Technical Advisor, both with the Occupational Safety and Health Administration, inspected the First Wisconsin Bank construction site at 777 East Wisconsin Avenue, Milwaukee, Wisconsin. The site, enclosed by a fence, is about 320 feet wide and 900 feet long. A ready-mix concrete truck with a revolving drum at the rear, owned by Respondent, drove onto the construction site about 150 feet, backed down a declining roadway approximately 500 feet down to and underneath the building structure, then continued to back under the building structure approximately 150 feet to a position at a material hoist. The [*15] driver got out, walked to the rear of the vehicle and adjusted a trough to rest above a material bucket. He then operated control levers at the rear of the truck, discharging the concrete into the bucket. When the bucket was filled, the driver stoppeed the flow of concrete, allowed the bucket to be raised by means of a hoist to various floors of the structure, and awaited its return. This operation was continued until the vehicle was empty. Thereafter, the vehicle backed up a short distance, the driver washed out the truck, assembled the trough, and drove forward approximately 150 feet leaving the construction site. The vehicle was on the site approximately 30 minutes. The vehicle did not have a reverse signal alarm nor was there an observer present to signal that it was safe for the vehicle to back up.
Several construction shacks are on the construction site. Approximately 200 employees of various contractors use the roadway traversed by Respondent's vehicle.
Marquette Cement Company located in Milwaukee is the major supplier of cement to Respondent. The basic ingredients of the cement are limestone, sand and shale, all purchased by the supplier and shipped from outside [*16] the state. Other components of the concrete mix are obtained locally by Respondent. In addition to ready-mix concrete, Respondent sells various materials including brick, refractory supplies, sewer pipe and plaster. These items are purchased from supplier in Missouri, Ohio, North Carolina, South Carolina, Georgia and Illinois. Respondent's annual dollar volume is about $2 million.
Respondent commenced delivery of ready-mixed concrete to the construction site beginning in the spring of 1971. After the Citation was issued, back-up alarms were installed on Respondent's ready-mix trucks at a cost of about $65 per truck. This installation was confined to vehicles delivering to the Huntzinger Construction Company since that company insisted alarms be installed or deliveries terminated.
COMMERCE
The incident giving rise to the allged violation involves material purchased by Respondent in Wisconsin and transported within that state. Respondent therefore contends that the activity in question was purely local and does not come within the jurisdiction of the Act.
Complainant contends that since the basic ingredients of the material are obtained by Respondent's supplier [*17] outside the state of Wisconsin, and since Respondent sells other goods purchased directly from sources outside the state of Wisconsin, Respondent is engaged in a business "affecting commerce" within the meaning of the Act.
In resolving this issue, it is recognized that "There is no single concept of interstate commerce which can be applied to every federal statute regulating commerce." McLeod v. Threlkeld, 319 U.S. 491, 495 (1943). Prime consideration must be given to the objective of Congress and the evil it sought to remedy.
Section 2 of the Act states that personal injuries and illnesses arising out of work situations impose a substantial burden upon and are a hindrance to interstate commerce. The purpose and policy in enacting the legislation was "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions," through the exercise of the Congressional power to regulate commerce among the states. It is thus apparent that Congress intended to exercise the full measure of its plenary power under the commerce clause.
Section 3(5) of the Act does not require that an employer be engaged in commerce but that he be [*18] engaged in a business affecting commerce. As such, it includes the power here exercised to regulate the intrastate sale of goods which have at any time crossed state lines, even where the seller to be regulated purchased the goods within the state of resale and received delivery of them there. In United States v. Wrightwood Dairy Co., 315 U.S. 110, 119 (1942), the Supreme Court held that the commerce power is not confined to the mere regulation of commerce among the states. "It extends to those activities intrastate which so affect interstate commerce, or the exertion of power of Congress over it, as to make regulation of them appropriate means to the attainment of a legitimate end, the effective execution of the granted power to regulate interstate commerce."
In view of the plenary nature of the legislative power over commerce and the manifest intention of Congress to exercise that power to its fullest extent, it is held that Respondent engaged in a business affecting commerce within the meaning of Section 3(5) of the Act. To the same effect, see decisions by Judge Burroughs in Hodgson v. Grand Electric Company, OSHRC No. 754; and by Judge Weil in Hodgson [*19] v. Butler Lime and Cement Company, OSHRC No. 855 (denying Respondent's motion to vacate the Citation).
WORKPLACE
The term "workplace" is used in several sections of the Act but is nowhere defined. However, Section 8 of the Act authorizes the Secretary:
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.
The common sense definition of "workplace is a place where work is being performed. That a broad construction of the term was intended is evident from the following statement by Senator Saxbe on the Senate debate of the Act (116 Congressional Record 36523, October 23, 1972):
I should like to explain some of the nomenclature that is used in this measure at the present time and in discussion today.
When I talk about "plant," when I talk about "factory," and when I talk about "mill," my remarks are also to apply to all the other businesses that are going to come under this measure. Many of them would be outside activities where there is limited amount of machinery but exposure to other safety hazards.
In talking about [*20] plant, factory, and so forth, the place of employment could be the cab of a truck, the place of employment could be a private automobile, or the place of employment could be that of one who moves around from one place to another, such as an installer in a home or in a factory. All these are covered under this measure.
Mr. President (Mr. Cook), when we talk about the factory, we are not just limiting ourselves to thinking about a man who stands there and works on a great press or another piece of machinery, or who works in a kiln or in a part-producing factory.
Respondent contends that it neither owned nor had any control of the roadway on which it operated its equipment and therefore had no workplace on the construction site. Such interpretation would render meaningless the standard allegedly violated. The standard is concerned with the operation of a motor vehicle. While engaged in the performance of Respondent's business, the vehicle is deemed to constitute a "workplace" of Respondent within the meaning of the Act.
APPLICABILITY OF STANDARD
Respondent contends it is not engaged in "construction work" and therefore not subject to 29 CFR 1926.601(b)(4). In support of its [*21] position, Respondent refers to the legislative history, correspondence from the Officer of the Secretary of Labor, and the unreasonable burden on suppliers which would result from inclusion within the construction standards.
29 CFR 1910.12 is a starting point in ascertaining whether the construction standards apply in the instant case. § 1910.12(a) provides for the adoption and extension of established safety and health standards for construction in that: "The standards prescribed in part 1926 of this chapter are adopted as occupational safety and health standards under section 6 of the Act and shall apply, according to the provisions thereof, to every employment and place of employment of every employee engaged in construction work. Each employer shall protect the employment and place of employment of each of his employees engaged in construction work by complying with the appropriate standards prescribed in this paragraph."
§ 1910.12(b) defines "construction work" as work for construction, alteration, and or repair, including painting and decorating. There is added: "See discussion of these terms in § 1926.13 of this title." Respondent contends that the scope of this [*22] definition can be properly determined by reference to the Davis-Bacon Act and Section 107 of the Contract Work Hours and Safety Standards Act discussed in § 1926.13 and that this prior legislation excluded materialmen from coverage.
§ 1910.12(c) distinguishes the Occupational Safety and Health Act from the Construction Safety Act. The standards published in subpart C and the following subparts of Part 1926 are to be applied. This paragraph further states that subparts (A) and (B) of Part 1926 are not incorporated and have pertinence only to the application of Section 107 of the Contract Work Hours and Safety Standards Act (the Construction Safety Act). In view thereof, it is held that § 1926.13, which falls within subpart B of Part 1926, has no pertinence herein. Any distinction between materialmen, contractors and subcontractors which may apply in the Davis-Bacon Act and Construction Safety Act has no application with respect to the construction standards in Part 1926.
The parties agree that mere delivery to a construction site is not construction work. The evidence shows that Respondent's vehicles operated within an off-highway jobsite, not open to public traffic, [*23] on a regular and recurring basis for some 20 months. The vehicle spent approximately 30 minutes on the site where the driver performed various functions in discharging his load. These functions were an integral part of and cannot be separated from construction activity.
Correspondence between the National Ready Mixed Concrete Association and the United States Department of Labor from February 24, to June 14, 1972, (Exhibits S-8 through S-11) distinguishes between mere delivery to a construction site and other on site activity. The type or types of other on site activity are not specified. Respondent contends that the traditional industry and union distinction between simple delivery tasks and such additional on site activity as placement is the distinction contemplated. A careful reading does not support an interpretation based on traditional industry and union distinctions. It is noted, that the historic distinction between construction contractor and material supplier was specifically held to be inapplicable to the Occupational Safety and Health Act (Exhibit S-9). While simple delivery to a construction site is excluded from the scope of Part 1926, the correspondence [*24] makes no reference to tasks which require as long as a 30-minute stay on the site. In fact, the correspondence states that the facts and circumstances in a particular case will be determinative and suggests that specific problems in interpretation be submitted to the local Occupational Safety and Health office. Apparently, such interpretation was not requested by Respondent prior to the Citation.
I am of the opinion that the activity engaged in is of sufficient magnitude to be considered construction work within the meaning of 29 CFR 1910.12(b). At a construction site, the men work in a noisy environment, attention directed to their work tasks, and often oblivious to vehicles on the site. The inherent danger arising from a vehicle backing a considerable distance without an alarm or signalmen is the very hazard the standard was intended to eliminate. Indeed, the danger would be magnified by excluding some vehicles from the standard requirement thereby lulling employees into a false sense of security.
Inclusion under § 1910.12(b) will create a burden on Respondent and other employers engaged in like activities. In the instant case, a signal alarm was installed [*25] at a cost of $65 per vehicle. Other costs may also be incurred by this inclusion. The burden which Respondent must assume is not unreasonable when weighed against the potential danger. The Congressional purpose was to reduce and hopefully eliminate personal injuries and illnesses arising out of work situations. The substantial burden on commerce caused by lost production, wage loss, medical expenses and disability compensation payments was deemed by Congress to be the paramount concern.
ESTOPPEL
Respondent relies on its interpretation of the correspondence between the Secretary of Labor and the National Ready Mixed Concrete Association in urging that the doctrine of estoppel be applied. As noted earlier, the Secretary's letters did not exclude Respondent's activities from the Part 1926 requirements. To the contrary. Respondent was cautioned that "Determinations in specific cases must be deferred by examination of the particular facts and circumstances involved;" and advised to consult the local Occupational Safety and Health Administration Regional office for interpretation of specific problems. Respondent assumed the risk of noncompliance, is choosing to rely on its own [*26] interpretation, and cannot now raise the question of estoppel.
Respondent also cites Section 6(b)(8) of the Act as a basis for estoppel on the theory that Complainant did not comply with the Act's own procedures in adopting a new and expansive definition of construction work.
Section 6(b)(8) has no application herein since it relates solely to changes in national consensus standards, whereas we are concerned here with federal standards adopted under Section 6(a) of the Act. Coverage under the Occupational Safety and Health Act was expanded to include all employers (within the meaning of Section 3(5) of the Act) engaged in construction work. The scope and purpose of the Act as set forth in Section 2(b) is "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions." The rule promulgated in 29 CFR 1910.12 restates this objective.
VIOLATION OF 29 CFR 1926.601(b)(4)
§ 1926.601 provides that coverage under this part applies to vehicles that operate within an off-highway jobsite, not open to public traffic. As to these vehicles:
(4) No employer shall use any motor vehicle equipment having an obstructed view to the rear unless: [*27]
(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.
As previously noted, Respondent's motor vehicles come within § 1926.601. There was no reverse signal alarm audible above the surrounding noise level nor an observer to signal that it was safe to back up.
Peter E. Wasko identified Respondent's truck no. 32-R at the construction site. The vehicle was described as a common type ready mix vehicle having a revolving drum at its rear. However, he did not state that this vehicle had an obstructed view to the rear.
Harold I. White, testified he saw ready mix trucks with a restricted view to the rear backing down the roadway. However, the trucks were not identified as those of Respondent nor does the record establish that Respondent was the only company delivering concrete to the construction site. The record contains no description of the dimensions of the vehicle and revolving drum, rearward view, or mirror and window assembly. In the absence of such evidence, the undersigned is constrained to find the record is insufficient to establish that Respondent [*28] used motor vehicle equipment having an obstructed view to the rear, an essential element of the violation cited.
FINDINGS OF FACT
1. Respondent, West Allis Lime and Cement Company, a Wisconsin corporation having an office and place of business at 633 South 84th Street, Milwaukee, Wisconsin, is engaged in the sale and delivery of building materials, including ready mixed concrete (Complaint and Answer, Tr. 34).
2. Marquette Cement Company is Respondent's major supplier of cement and the sole supplier of the cement delivered by Respondent at 777 East Wisconsin Avenue, Milwaukee, Wisconsin (Tr. 36, 42).
3. Marquette Cement Company obtains the basic ingredients for their cement, i.e. limestone, sand and shale, from Michigan and Illinois (Tr. 45).
4. Respondent obtains brick, and other building materials from suppliers located outside the state of Wisconsin (Tr. 43, Exhibit S-1, S-2, S-3).
5. For a period of about 20 months commencing approximately March 1971, Respondent delivered concrete on a regular and recurring basis to a construction site at 777 East Wisconsin Avenue, Milwaukee, Wisconsin, (Tr. 193, 194).
6. The construction site was an off-highway jobsite, not open [*29] to public traffic (Tr. 62, 63, 118).
7. Respondent's vehicles backed up approximately 500 feet on the construction site without the use of a reverse signal alarm or the assistance of an observer signalman (Tr. 58, 68, 69, 86, 87, 196, 197).
8. Approximately 200 employees of various contractors used the roadway traversed by Respondent's vehicles (Tr. 62, 65, 118, 119, 197, Exhibit S-5).
9. In conjunction with delivery, employees of Respondent stayed on the construction site approximately 30 minutes and performed the following tasks within the site: backed the vehicle approximately 500 feet, positioned the vehicle at a material hoist underneath the building structure, adjusted the trough at the rear of the vehicle, operated control levers at the rear of the vehicle to control the flow of cement into a material hoist bucket, allowed the bucket to be hoisted, awaited return of the bucket, continued this operation until the vehicle was empty, washed the back of the truck, put the trough back in place and then left the site (Tr. 62, 63, 66, 69-73, 87-89, 119, 193, 196).
10. None of Respondent's ready mix vehicles were equipped with reverse signal alarms as of the date of [*30] inspection (Tr. 73, 197, 198).
11. Respondent later installed reverse signal alarms, at a cost of $65 per vehicle, on their ready mix vehicles delivering to Huntzinger Construction Company (Tr. 197, 198, 201).
20. Complainant has not met the burden of proof to establish that Respondent's vehicle No. 32-R or Respondent's other vehicles which delivered to the site had an obstructed view to the rear.
13. Correspondence between the National Ready Mixed Concrete Association and the Secretary of Labor did not exclude Respondent's activities from Part 1926 requirements (Exhibit S-8 through S-11).
CONCLUSIONS OF LAW
1. The Respondent is, and at all times relevant herein was, an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970.
2. The Occupational Safety and Health Review Commission has jurisdiction of the parties and subject matter herein pursuant to Section 10(c) of the Act.
3. At all times involved in this action, Respondent furnished employment to its employees at a workplace located at 777 East Wisconsin Avenue, Milwaukee, Wisconsin, and the Act is applicable to such employment [*31] within the meaning of Section 4(a) of said Act.
4. Respondent's activities at a workplace located at 777 East Wisconsin Avenue, Milwaukee, Wisconsin, constituted "construction work" within the meaning of 29 CFR 1910.12.
5. Respondent is subject to the safety and health regulations for construction as set forth in 29 CFR 601(b)(4).
6. Respondent did not violate 29 CFR 1926.601(b)(4) as charged in item 1 of the Citation.
7. The theory of estoppel is not applicable.
ORDER
The Citation alleging a violation of 29 CFR 1926.601(b)(4) and the proposed penalty of $40 is hereby vacated.