BROWN & ROOT, INC.

OSHRC Docket No. 13685

Occupational Safety and Health Review Commission

April 4, 1979

[*1]

Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall H. Harris, Reg. Sol., USDOL

James A. Harper, Jr. for the employer

Joe M. Stevens, Jr., for the employer

OPINIONBY: COTTINE

OPINION:

DECISION

COTTINE, Commissioner: A decision of Administrative Law Judge Henry K. Osterman is before the Commission for review under 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. ["the Act"]. In his decision, the judge affirmed a citation issued to the Respondent, Brown & Root, Inc. ("Brown & Root"), alleging a willfulserious violation of the construction safety standard published at 29 C.F.R. 1926.602(a)(9)(ii) n1 and assessed a penalty of $8,100. He also affirmed a citation alleging a nonserious violation of 29 C.F.R. 1926.602(a)(9)(i) n2 and assessed a penalty of $90.

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n1 The standard reads as follows:

1926.602 Material handling equipment.

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(9) Audible alarms.

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(ii) 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.

n2 The standard reads as follows:

1926.602 Material handling equipment.

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(9) Audible alarms. (i) All bidirectional machines, such as rollers, compacters, front-end loaders, bulldozers, and similar equipment, shall be equipped with a horn, distinguishable from the surrounding noise level, which shall be operated as needed when the machine is moving in either direction. The horn shall be maintained in an operative condition.

[*2]

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I

Brown & Root was engaged in constructing a drydock at the North Yard of the Newport News Shipbuilding & Dry Dock Company in Newport News, Virginia during 1975. Brown & Root employed approximately 700 persons at the project. On May 14, 1975, a Caterpillar scraper operating in reverse gear ran over and killed Brown & Root's general foreman. In response to the fatality, Brown & Root was inspected by two occupational safety and health compliance officers. The inspection commenced on the day of the accident and continued through May 16, 1975.

On May 14, two of Brown & Root's Caterpillar scrapers were being used to move earth from a sand reclaiming pit to a different area of the project. A scraper consists of an operator's cab located at the front of the machine that is connected to a "pan". As the scraper is driven, a sharp blade on the bottom of the pan scrapes earth into paddles. The paddles consist of a series of 7-inch wide metal slats. The paddles are driven by two belts that rotate at high speed. As the paddles rotate toward the top of the machine, they paddle earth into the pan, where [*3] it is stored until dumped. The paddles operate in forward gear to lift earth and in reverse gear to dump earth. The machine has eight forward gears and one reverse gear. When operating in reverse, the paddles make very little noise. The scrapers were equipped with an operator-activated air horn at the front of the machine. None of the scrapers were equipped with automatic reverse signal alarms. In addition, there were no rearview mirrors on the scrapers.

Shortly after 8:00 a.m. on the morning of May 14, one of Brown & Root's scrapers became mired in soft soil in the reclaiming pit. The operator of the scraper, Monteith, dismounted the machine to discuss with his foreman, Earl Joyner, the means of removing the scraper from the soil. Joyner determined that if the operators backed their scrapers into the pit, the scrapers would not become stuck in the soft soil. Joyner signalled another scraper operator, Reynolds, to back into the pit. He then signalled Reynolds to stop. Reynolds loaded his scraper and proceeded to the dumping area. Reynolds repeated this operation, backing up 150 feet into the pit. Before backing up, Reynolds looked to the rear and saw Joyner standing 50 [*4] feet behind him, at a 45 degree angle to his left. Reynolds does not recall whether Joyner signalled for him to back up. During the second trip, the scraper operated by Reynolds ran over and killed Joyner.

Three of Brown & Root's operators, Lee Rust, Joel Monteith, and Joseph Reynolds, testified for the Secretary at the hearing. These witnesses agreed that when operating the scrapers their rear vision is totally obstructed by the earth that packs the paddles when the pan is loaded. They also stated that their rear vision is partially obstructed by the paddles, even when the pan is emply. The operators further testified that the paddles obstruct their view so that they cannot see objects that are within 30 to 40 feet of the rear of the scraper. In order to improve their vision, the operators developed a procedure of stopping the scraper, turning the cab to a 45 degree angle, and looking directly backward. The operators then return the cab to its original position and continue backing the scraper. However, even using this procedure, the operators' view of objects closer than 10 to 12 feet behind the scraper is blocked because of the width of the scraper. The only way to observe [*5] this "blind" area is to leave the cab and walk to the rear of the machine.

The three scraper operators testified as to Brown & Root's safety program. Rust testified that he was not given any training as to the operation of scrapers because it was assumed that he knew how to operate the scraper when he was hired. Monteith testified that the only training that he received consisted of three trial runs on the scraper with another operator. He stated that he received no formal training from Brown & Root and that he learned the hand signals from other operators while on the job. All three operators testified that at no time were they given specific instructions concerning the use of signalmen during the reverse operation of the scrapers. Rust stated on direct examination that the only express workrule that the operators were given concerning the safe operation of the scrapers was to "be careful." On cross-examination, Reynolds and Monteith also testified as to the absence of a specific workrule. Rust further stated that even at the weekly safety meetings no mention was made of the use of signalmen during the reverse operations of the scrapers. Rust claimed that he never heard the [*6] term "signalmen" until after the accident. The employees disagreed on the percentage of time that a signalman was available. Rust testified on cross-examination that a signalman was available 50 percent of the time, but that was due to the random presence of another employee, not the enforcement of a workrule. Monteith stated on cross-examination that another operator was available to act as a signalman almost 100 percent of the time, but explained upon questioning by the judge that it was left to his discretion whether to use a signalman before operating the scraper in reverse. Rust and Monteith agreed that there were no employees designated as signalmen. Reynolds testified on direct and cross-examinations that he would have backed up without a signal if he thought all employees were in a safe position. Furthermore, Rust stated that after the accident Brown & Root required that signalmen be used.

Brown & Root stipulated that its project manager, Basil Maxwell, was aware of the requirements of 1926.601 pertaining to motor vehicles. Maxwell's testimony supported this stipulation. Moreover, he knew that the scrapers did not have reverse signal alarms, but believed that Brown [*7] & Root was in compliance with the standard. Maxwell further testified that he was familiar with the training program given to the operators when they began to operate the scrapers. He did not know the scope of the safety instructions given to the operators or whether they were instructed not to back up unless given a signal. However, he testified that the operators were always instructed to be careful. Maxwell was not personally aware of the details of the safety program because he delegated most authority over safety matters to his subordinate, Franklin Parmely, the head of Brown & Root's safety department on the project. Parmely testified that he instituted weekly departmental safety meetings that were conducted by the foremen as part of the safety program. He claimed that in order to correct safety violations and hazardous situations, he spends 75 percent of his time in the field. Parmely testified that he knew the requirements of both 1926.601 and 1926.602. His testimony was further supported by a stipulation. Parmely also knew that the scrapers did not have reverse signal alarms. At a meeting of supervisors attended by Parmely it was decided to install reverse signal [*8] alarms on all motor vehicles except earthmoving equipment. In addition, it was decided not to install the alarms on the earthmoving equipment because of the circular traffic patterns followed by the equipment and the availability of employees to act as signalmen. Parmely believed that Brown & Root was in compliance with 1926.602(a)(9)(ii) because of adherence to the standard's alternative requirement of using a signalman. However, Parmely admitted that he never specifically reminded employees of the requirement that they not operate the vehicle in reverse without receiving a signal.

In his decision, Judge Osterman affirmed a violation of 1926.602(a)(9)(ii). Although he recognized that the testimony was "mixed" on whether a signal was given to the operator, the judge found that the standard had been violated on May 14. He based his ruling on Brown & Root's permitting an employee to operate a scraper in reverse gear without a reverse signal alarm or a signal from another employee. The judge found that "'usually' an employee was available to signal the operator" when he was going to move the scraper in reverse. However, he concluded that there was no workrule requiring an [*9] operator to await a signal before moving the scraper in reverse. The judge stated that "ordinarily this somewhat haphazard procedure avoided serious accidents, [but] on May 14, the procedure proved inadequate to prevent a fatality." He stated that, "Respondent's election not to equip its scrapers with reverse signal alarms carries with it the obligation to insure that a guide is present in every instance where a scraper must move in reverse." Applying the definition of a willful violation set forth in Intercounty Construction Co. v. OSHRC, 522 F.2d 777 (4th Cir. 1975), the judge found a willful violation because Brown & Root "deliberately and knowingly elected to rely upon a chancy procedure which did not meet the safety standards of 29 C.F.R. 1926.602(a)(9)(ii)" and because the Respondent knew of the requirements of the standard. He concluded that the violation was serious within the meaning of 17(j) of the Act.

On review, Brown & Root contends that 1926.602(a)(9)(ii) does not state a preference for the method used to comply with requirements of the standard. It argues that the standard does not require a designated signalman, but only an employee to signal to the scraper [*10] operator that it is safe to operate the equipment in reverse. Brown & Root further argues that it had a well-established procedure of using other scraper operators or supervisors to signal the operators. It contends that this procedure complied with the requirements of the standard. Moreover, it maintains that no violation was proven because the evidence failed to establish that a signal was not given to Reynolds prior to the accident. Finally, assuming Reynolds operated his scraper in reverse without a signal, Brown & Root argues that Reynolds did so "because of his failure to follow the well-established, clearly defined procedure."

II

The requirements of 1926.602(a)(9)(ii) apply when earthmoving equipment has an obstructed rear view and the operator must drive the vehicle in reverse. The standard requires that one of two alternatives be satisfied. Either the equipment must have an operable reverse signal alarm distinguishable from the surrounding sound level or an employee must signal to the operator that it is safe to operate in reverse. The purpose of the standard is to ensure that employees are not in the path of the earthmoving equipment. The standard [*11] states no preference for one of these alternatives -- either accomplishes the purpose of the standard and the Act. However, if an employer decides not to install reverse signal alarms on its earthmoving equipment, it must provide that an employee signals to the equipment operator that it is safe to move in reverse. An employer can comply with this alternative by employing a designated signalman or instituting effectively enforced workrules requiring that the equipment not be driven in reverse until an employee is available to signal the operator. In this case, it was stipulated that there were no reverse signal alarms on the scrapers. Also, it was undisputed that there were no designated signalmen. Accordingly, the issue before us is whether Brown & Root permitted its earthmoving equipment having an obstructed view to the rear to operate in reverse gear without an employee signalling that it is safe to move in reverse.

Both the citation and complaint focus on whether a signal was given to Reynolds before he made his second trip in reverse on the morning of the accident. The citation stated that it was issued as a result of an inspection on May 14, 1975, the date of the accident. [*12] The complaint incorporated the citation by reference without specifying anything more about the alleged violation. The only specific evidence concerning whether a signal was given to operator Reynolds prior to his second backup on the morning of May 14 was the testimony of Reynolds himself. He testified to not recalling whether a signal was received before operating the scraper in reverse. Reynolds testified, ". . . I wasn't for sure whether he had signaled me a second time. I am not sure right today. Most likely he did, but he could have and he couldn't have." This evidence is insufficient to prove a violation of the standard with respect to the circumstances surrounding the fatal accident. n3

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n3 Brown & Root contends that if Reynolds backed up without a signal, he did so because of his failure to follow a well-established, clearly defined procedure. We need not reach this defense of unpreventable employee conduct to the extent it relates exclusively to the fatal accident because we have concluded that a violation has not been established on the basis of the accident.

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When evidence of record establishes a violation other than that alleged by the complaint and that issue has been tried by the express or implied consent of the parties, it is incumbent upon the Commission to amend the pleadings to conform to the evidence under Fed. R. Civ. P. 15(b). n4 See Kaiser Aluminum & Chemical Corp., 76 OSAHRC 52/C10, 52/D5, 4 BNA OSHC 1162, 1165, 1975-76 CCH OSHD P20,675 at p. 24,768 (No. 3685, 1976), aff'd on reconsideration, 77 OSAHRC 39/E8, 5 BNA OSHC 1180, 1977-78 CCH OSHD P21,692 (1977).

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n4 Fed. R. Civ. P. 15(b) reads in pertinent part:

Rule 15. Amended and Supplemental Pleadings.

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(b) Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.

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In this case, the Respondent never objected to the Secretary's introduction of evidence [*14] concerning the Respondent's workrules, safety instructions, or training. Brown & Root cross-examined the Secretary's witnesses on these subjects. In fact, on cross-examination, Brown & Root adduced evidence from Rust, Reynolds, and Monteith on the failure of Brown & Root's operators to wait for a signal before backing up the scrapers. In addition, Brown & Root presented Parmely and Maxwell to testify concerning its safety program. We conclude that the issue of whether a violation of the cited standard occurred at times other than on the date of the fatality was tried by consent. n5 Neither the cited standard nor the factual basis of the alleged violation are changed by the amendment, which is merely a technical change to assure a decision on the facts presented by the parties. See R. Colwill Excavating Co., 77 OSAHRC 182/F5, 5 BNA OSHC 1984, 1977-78 CCH OSHD P22,243 (No. 13920, 1977); Duane Smelser Roofing Co., 76 OSAHRC 145/E3, 4 BNA OSHC 1948, 1976-77 CCH OSHD P21,387 (No. 4773, 1976). Furthermore, Brown & Root would not be prejudiced by an amendment under Fed. R. Civ. P. 15(b) because the same defenses apply to both the pleaded and amended charges. See McLean-Behm [*15] Steel Erectors, Inc., 78 OSAHRC    /   , 6 BNA OSHC 2081, 1978 CCH OSHD P23,139 (No. 15582, 1978). Accordingly, we amend the complaint to allege that a violation of 1926.602(a)(9)(ii) occurred on or before May 14, 1975 n6 in order to conform the pleadings to the evidence concerning whether Brown & Root's scraper operators ordinarily operated the scrapers in reverse without receiving a signal.

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n5 We note that the Respondent's unpleaded affirmative defense of unpreventable employee conduct was in essence a rebuttal to the Secretary's case of a violation of the cited standard on or before May 14. In order for Brown & Root to prove its defense or rebut the Secretary's case, it was necessary to adduce evidence on the existence of a uniformly and effectively enforced workrule. See B-G Maintenance Management, Inc., 76 OSAHRC 60/A2, 4 BNA OSHC 1282, 1976-77 CCH OSHD P20,744 (No. 4713, 1976). The Respondent clearly attempted to prove this defense. This indicates that Brown & Root consented to the trial of the issue of a violation of the standard on or before May 14.

n6 Section 9(c) of the Act, 29 U.S.C. 658(c), precludes issuing a citation more than six months after the occurrence of a violation. The amendment is therefore limited to allege a violation during the six month period preceding the citation.

[*16]

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The testimony of the scraper operators clearly establishes that on a regular basis the scrapers were operated in reverse without awaiting a signal that it was safe to do so. There was no procedure, implemented by workrules, safety instructions, or training, for ensuring that a signal be given to the scraper operators before operating the machines in reverse. Evidence establishes a continuing violation of the standard because of the absence of this procedure. Cf. Yelvington Welding Service, 78 OSAHRC    /   , 6 BNA OSHC 2013, 1978 CCH OSHD P23,092 (No. 15958, 1978) [failure to discover a violation within six month period due to employer's failure to report fatality]. Moreover, we note that it was not until after the date of the accident that Brown & Root required the use of signalmen. We find a violation of 1926.602(a)(9)(ii).

Brown & Root argues that if it violated the requirements of the cited standard, it did not commit a willful violation. n7 Brown & Root contends that because it believed that it was in compliance with the requirements of the standard and its supervisors knew of no [*17] specific instances of scraper operators backing up without a signal on this construction site, it could not have knowingly and intentionally violated the standard.

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n7 The Respondent does not take exception to the classification of the violation as serious. We note, however, that since the criteria in 17(j) of the Act are met, the judge correctly found the violation to be serious.

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The record establishes that Brown & Root had actual knowledge that the cited standard required either reverse signal alarms or an employee to signal the scraper operator that it was safe to move in reverse. Parmely admitted that a conscious decision was made not to equip the scrapers with reverse signal alarms, but instead to rely on signals from employees. Once a decision was made not to equip the scrapers with alarms, Brown & Root was required by the standard to provide a signal to the operator when a scraper was operated in reverse. Consequently, the Respondent knew that it was under an obligation to take some action to ensure compliance [*18] with the terms of the standard. Nevertheless, the unrebutted evidence shows that there were no workrules requiring signalling before moving in reverse, no safety instructions except the general warning to "be careful," and little training concerning the safe operation of the scrapers. In addition to Brown & Root's failure to implement any formal workrules to ensure compliance with the standard, it never observed the work to determine whether employees were in fact complying with the requirement of the standard in response to the general instruction to be careful. The record shows that Brown & Root relied on the discretion of its operators to determine whether to await a signal before operating the scrapers in reverse. Brown & Root's failure to take positive steps to assure compliance with the standard constitutes careless disregard of the standard's requirements and is properly denominated willful. n8 Cedar Construction Co. v. OSHRC, No. 77-1538 (D.C. Cir. Oct. 20, 1978); National Steel & Shipbuilding Co., 78 OSAHRC 48/A2, 6 BNA OSHC 1680, 1978 CCH OSHD P22,808 (Nos. 11011 & 11769, 1978); Constructora Maza, Inc., 78 OSAHRC 6/E2, 6 BNA OSHC 1309, 1977-78 CCH OSHD P22,487 [*19] (Nos. 13680 & 14509, 1978). An employer must do more than give generalized instructions to work safely. See Barker Brothers, Inc., 78 OSAHRC 5/E7, 6 BNA OSHC 1282, 1977-78 CCH OSHD P22,488 (No. 12964, 1978). Brown & Root's asserted belief that it was in compliance with the requirements of the standard could not have been held in good faith. National Steel & Shipbuilding Co., supra; accord, C.N. Flagg & Co., Inc., 75 OSAHRC 32/C6, 2 BNA OSHC 1539, 1974-75 CCH OSHD P19,251 (No. 1409, 1975). Accordingly, we find a willful-serious violation of 1926.602(a)(9)(ii). We conclude that the judge properly considered the penalty assessment factors of 17(j) of the Act and affirm the judge's penalty assessment of $8100.

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n8 Inasmuch as we find that Brown & Root's inaction constitutes careless disregard of the standard's requirements, we reject its contention that the lack of supervisory knowledge of specific instances of noncompliance with the standard precludes a finding of a willful violation.

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III

Brown & Root was also cited for an alleged nonserious violation of 1926.602(a)(9)(i). n9 After the initial investigation of the accident on May 14, one of the compliance officers returned on May 16 to continue the inspection. The compliance officer inspected the scraper involved in the accident and found that its air horn was broken. Rust was usually assigned to operate the scraper involved in the accident. However, he had not operated the scraper on May 14 or the two previous days because of his absence from work. Rust testified that the horn was not operating because it had become clogged with sand when he submerged the scraper in sand and water approximately six weeks before the accident. Rust testified that the horn had not worked for most of the six weeks prior to the accident. He stated that the horn was still broken on May 16 when he was reassigned to operate the scraper. In addition, Rust claimed that he had informed three different supervisory personnel that the horn was broken and that no repairs were made until the horn was replaced three days after the accident. William Fulton, Rust's immediate foreman, testified that the air horn was repaired shortly after [*21] Rust has reported that it was broken. According to Fulton, Rust complained that the repair "didn't last very long". Fulton stated that when the horn again broke it was sent back for repairs. Thomas Yarborough, the foreman in the mechanics shop, testified that the horn was repaired several times. William Stutts, the superintendent of mechanics, testified that the horn was repaired and eventually replaced. Moreover, Stutts and Yarborough claimed they did not remember any complaints from Rust about the horn.

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n9 See note 2, supra.

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Judge Osterman affirmed a nonserious violation of 1926.602(a)(9)(i), stating that there was "substantial evidence in the record to support a finding that the air horn was not maintained in an operative condition on May 14, 1975." He found that the horn was not repaired until after May 14, even though the defective condition had been reported to supervisory personnel. The judge rejected Brown & Root's contention that the cited standard does not apply to scrapers.

On review Brown [*22] & Root contends that the cited standard requires a horn only on bidirectional machines. The Respondent argues that a bidirectional machine is a vehicle having "an identical number of gears in 'forward' as in 'reverse' so as to have 'payload capability' in both directions." In support of this argument, Brown & Root asserts that the examples of equipment referred to in the standard all have the identical number of forward and reverse gears. It contends that because scrapers do not have the same number of forward and reverse gears, the standard is inapplicable to scrapers.

We reject Brown & Root's contentions regarding the inapplicability of the standard. The standard requires that bidirectional machines be equipped with a horn ". . . which shall be operated as needed when the machine is moving in either direction." Thus, a bidirectional machine is equipment that can move in either forward or reverse. Inasmuch as scrapers move in forward and reverse, they are bidirectional machines to which the standard applies. n10 Moreover, based on an analysis of the standard and its underlying purpose, we interpret "similar equipment" as referring to equipment similar to bidirectional machines. [*23] As the standard is written the term "similar equipment" does not modify the listed examples of bidirectional machines. Instead, the standard applies to equipment similar to bidirectional machines as well as bidirectional machines. Thus, even accepting the Respondent's contention that a bidirectional machine has the identical number of forward and reverse gears, equipment similar to bidirectional machines includes equipment that moves in both forward and reverse regardless of the number of gears in either direction. This interpretation of the standard is consistent with the standard's purpose of preventing employees from being run over by earthmoving equipment -- a hazard which exists regardless of the number of gears on a particular piece of equipment. Therefore, even accepting the Respondent's contention, we conclude that a scraper is equipment similar to bidirectional machines and consequently the standard is applicable to scrapers.

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N10 Brown & Root's assertion that the examples of equipment referred to in the standard have the same number of forward and reverse gears is without support in the record, and therefore lends no substantiation to its interpretation of the standard.

[*24]

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Brown & Root did not object to the testimony by Rust and the compliance officer that the air horn was inoperative on May 16. We find that there was consent to the trial of the issue of whether the air horn was operative on that day. Under these circumstances, the pleadings must be amended to assure a decision on the merits of the case. See Kast Metals Corp., 77 OSAHRC 173/B11, 5 BNA OSHC 1861, 1977-78 CCH OSHD P22,165 (No. 76-657, 1977). Accordingly, we amend the citation and complaint under Fed. R. Civ. P. 15(b) to allege a violation of 1926.602(a)(9)(i) during the inspection on May 16, 1975. There is uncontradicted testimony that the horn was inoperative on May 16. Indeed, Brown & Root admits this fact in its brief. Consequently, we find a nonserious violation of 1926.602(a)(9)(i) n11 and affirm the judge's assessment of a $90 penalty.

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n11 The judge found a violation of 1926.602(a)(9)(i) on May 14 by crediting the testimony of Rust over the testimony of Brown & Root's supervisory personnel. We cannot affirm the judge on this ground because he gave no reasons for his credibility determination. See Asplundh Tree Expert Co., 78 OSAHRC 77/E12, 6 BNA OSHC 1951, 1978 CCH OSHD P23,033 (No. 16162, 1978) and cases cited therein.

[*25]

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IV

In conclusion, we affirm a willful-serious violation of 1926.602(a)(9)(ii) and a nonserious violation of 1926.602(a)(9)(i), and assess penalties of $8100 and $90, respectively.

It is so ORDERED.

CONCURBY: BARNAKO (In Part)

DISSENTBY: BARNAKO (In Part)

DISSENT:

BARNAKO, Commissioner, concurring in part and dissenting in part:

I agree that Brown & Root violated 29 CFR 1926.602(a)(9)(i) and (a)(9)(ii), but for reasons that, in some respects, substantially differ from those advanced by my colleagues. I also conclude that the violation of 1926.602(a)(9)(ii) was not willful in nature.

I.

In order to prove that Brown & Root violated the standards, the Secretary had to show that the standards apply to the facts, that there was a failure to comply with the standards, and that Brown & Root's employees had access to the zones of danger created by the noncompliant conditions. Anning-Johnson Co., 76 OSAHRC 54/A2 At p.10, 4 BNA OSHC 1193, 1197, 1975-76 CCH OSHD P20,690 at p.24,783 (No. 3694, 1976).

The majority conclude that, on or before May 14, 1975, Brown & Root committed a continuing violation of 602(a)(9)(ii) by [*26] failing to establish a "procedure, implemented by workrules, safety instructions, or training, for ensuring that a signal be given to the scraper operators before operating the machines in reverse." They also state that an employer who does not equip its vehicles with reverse alarms can comply with the standard "by employing a designated signalman or instituting effectively enforced workules requiring that the equipment not be driven in reverse unless an employee is available to signal the operator." Thus, although the majority refer to evidence demonstrating that, on various occasions before the day of the fatal accident, paddle pans were backed up without a signal being given, it is not these occurrences that form their basis for concluding Brown & Root violated the standard, for they do not address the question whether Brown & Root's employees had access to the zones of danger during those instances; instead, they find a violation based solely on Brown & Root's failure to implement a procedure to prevent instances of violative conduct. Presumably, even if the record failed to show any instances of backing without a signal, the majority would still conclude that Brown & Root [*27] violated 602(a)(9)(ii) by failing to establish a procedure designed to prevent instances of noncomplying conduct. I do not agree with this departure from the Commission's precedents describing the Secretary's burden of proof. n1 Anning-Johnson Co., supra. I conclude, however, that Brown & Root violated 602(a)(9)(ii) for the reasons that follow.

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n1 I agree with the majority's reasons for concluding that a finding of violation of 602(a)(9)(ii) cannot be predicated on the circumstances of the accident. I note, however, that under their theory of the case they unnecessarily address that question, for the continuing violation that they find occurred on the day of the accident as well as on earlier days, so that the violation they find is encompassed within the pleadings regardless of the circumstances surrounding the accident.

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It is undisputed that 602(a)(9)(ii) applies to the facts. Additionally, the record establishes that paddle pans were backed up at various times prior to May 14, 1975, without being [*28] equipped with a reverse signal alarm and without a signalman signalling it was safe to do so. n2 Accordingly the record establishes Brown & Root's noncompliance with the standard as alleged in the amended pleadings. I would find that access to the violative conditions existed for the following reasons.

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n2 Although the pleadings alleged that Brown & Root violated the cited standard on May 14, 1975, the evidence establishing instances of noncompliance prior to May 14, 1975 was introduced without objection by Brown & Root, indicating that the company thought such evidence was relevant to the charge against it. Thus, Brown & Root understood that whether it violated the standard on other days was in issue, and consented to try whether it violated the standard on such dates. Barker Brothers, Inc., 78 OSAHRC 5/E7, 6 BNA OSHC 1282, 1977-78 CCH OSHD P22,488 (No. 12964, 1978); RPM Erectors, Inc. 74 OSAHRC 62/D14, 2 BNA OSHC 1187, 1974-75 CCH OSHD P18,568 (No. 1114, 1974). I would therefore amend the pleadings pursuant to Rule 15(b) of the Federal Rules of Civil Procedure to allege that Brown & Root violated 602(a)(9)(ii) at various times prior to May 14, 1975. Such an amendment must be limited to the six months prior to the issuance of the citation. See footnote 6 of the lead opinion. However, in view of the testimony establishing that instances of noncompliance occurred relatively frequently, I infer that some instances of noncompliant conduct occurred during that six-month period.

[*29]

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Section 602(a)(9)(ii) is intended to protect employees who may be in the path of backing earthmoving equipment. n3 The question of access is therefore whether it was reasonably predictable that an employee would have been in the zone of obstructed vision behind a paddle pan on any of the occasions they were backed up without an observer signaling it was safe to do so. See Gilles & Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 1975-76 CCH OSHD P20,448 (No. 504, 1976).

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n3 The use of a signalman also affords protection to the operator of the equipment by providing a check against an accident involving the vehicle. However, the reverse signal alarm does not afford this protection, so it cannot be said that protection of the vehicle operator is a purpose of the standard.

The lead opinion states that the purpose of the standard is to "ensure" that employees are not in the path of the earthmoving equipment. However, no standard can "ensure" that vehicle operations will be accidentfree. As the Secretary's district superintendent testified, fatalities involving backing vehicles are a "common experience" even when the vehicles are equipped with reverse alarms. Thus, it cannot be assumed, as the Judge apparently did, that the use of reverse alarms is a superior method of protection; neither alternative required by the standards can totally eliminate the risk of accidents involving backing vehicles.

[*30]

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The three paddle pan operators who testified at the hearing stated that, before they would back up, they would look behind them to see if there was a bulldozer operator or other employee available to signal it was safe to proceed. Most of the time, such a signalman would be available. If a check revealed that a signalman was not available, the operators might back up anyhow, perhaps checking part of the area behind them by cocking the machine.

Since employees were generally available to act as signalmen, then, when the pans were backed up, employees must have usually been in the general area behind the pans. If such an employee happended to be in the pan's blind spot when the operator looked back to see if a signalman was available, the pan operator might well have assumed that the area was clear and proceeded to back up without a signal. In other words, the very employees who normally gave signals had access to the zone of danger, for they might have been in the blind spot when the operator commenced backing. Indeed, in this case, the deceased employee had acted as a signalman on at least one [*31] occasion prior to the accident, demonstrating that a signalman himself has access to the danger against which the standard seeks to protect.

A violation of 1926.602(a)(9)(i) was also established by the Secretary. n4 The record indicates that on May 16, 1975, a paddle pan was driven with a horn that was not in operative condition. Since the paddle pans are bidirectional machines within the meaning of 602(a)(9)(i), the cited standard applies to the facts. n5 Access was established for the following reasons.

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n4 I agree with the majority that the citation for violation of 602(a)(9)(i) should be amended to allege a violation on May 16, 1975. See footnote 2, infra, for reasons which are equally applicable here.

n5 I agree with the majority that the paddle pans are bidirectional machines within the meaning of 602(a)(9)(i) because they have both forward and reverse gears. I express no opinion on the alternative ground relied on by my colleagues for finding that standard applicable.

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The horn required by 602(a)(9)(i) [*32] enables the operator to warn pedestrians or other vehicle operators of a situation posing a potential danger of either pedestrian accidents or vehicle collisions. At one of Brown & Root's weekly safety meetings, the discussion centered on the fact that other vehicles were not following an established rule giving the paddle pans the right of way. In such a situation, a properly operating horn could be used as a warning device to prevent a collision that might endanger the pan operator, as well as other employees. Thus, the operation of the equipment without a properly functioning horn is sufficient to establish that at least the operator had access to the zone of danger created by the violation.

II.

I do not agree with the majority's conclusion that Brown & Root's violation of 602(a)(9)(ii) was willful. A violation is willful if an employer knowingly violates a standard or acts in careless disregard of a known hazard. Georgia Electric Co., 7 OSAHRC 30/A2, 5 BNA OSHC 1112, 1977-78 CCH OSHD P21,613 (No. 9339, 1977), pet. for review filed, No. 77-1916 (5th Cir. May 3, 1977). Here, there is no evidence that any Brown & Root official had actual knowledge of any instance in [*33] which the standard was violated. Thus, the question is whether Brown & Root carelessly disregarded the hazard presented by equipment with an obstructed view to the rear being operated in reverse gear.

It is true, as the majority find, that Brown & Root did not establish a specific workrule prohibiting its paddle pan operators from backing up without a signal. But the company's overall safety program and instructions to its employees were not as ethereal as the majority suggest. According to Rust, the company placed considerable emphasis on safety; safety inspectors were all over the project, "always cautioning us to slow down . . . to be careful." (Tr. 108). Weekly safety meetings were held, at which specific problems that had been encountered during the course of the work were discussed and the operators were "always told to be very cautious with the machines." (Tr. 94). Similarly, Monteith testified that Joyner, the foreman who died in the accident, warned him to be extra careful when he backed up; "he pressed the point." (Tr. 184). Reynolds also testified that Joyner had told him to be especially careful when backing up (Tr. 190) and, "if you can't see -if you are in a tight [*34] spot where you can't see, to get off and look." (Tr. 163).

Parmely, Brown & Root's safety superintendent for the project, testified that the company employed four full-time safety personnel at the jobsite. He personally spent 75% of his time in the field, observing the work for safety hazards. Another employee spent virtually full-time doing the same, while a third employee spent about half his time in the field. n6 Parmely was responsible for recommending the purchase of safety equipment, and the company had never refused to purchase any such equipment that he recommended.

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n6 This third employee spent the remainder of his time in the dispensary, and the fourth employee worked full-time in the dispensary.

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Brown & Root maintained on the jobsite 27 motor vehicles subject to the backup alarm requirement of 1926.601(b)(4). n7 It decided to and did equip all of these vehicles with the alarms. It reached a different decision with respect to its earthmoving equipment. Parmely watched this equipment in operation, and [*35] observed that "a traffic pattern has been set up where there is no backing up. If there is backing up, there is an employee or a bulldozer or something in that area to act as a signalman in case the man does have to back up." (Tr. 297, 298). Because of the availability of signalmen when equipment was backed up, Parmely determined it was not necessary to equip its earthmoving equipment with reverse alarms, as he thought the company was in compliance with the alternative permitted by the standard. n8

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n7 This standard establishes the same requirement for motor vehicles as 602(a)(9)(ii) does for material handling equipment: it prohibits a vehicle with an obstructed view to the rear from being backed up unless the vehicle is either equipped with a reverse signal alarm or an observer signals it is safe to back up.

n8 The majority finds that this belief was held in bad faith, thereby discrediting Parmely's testimony. I do not agree. Parmely was not cross-examined on this (or any other) point, the Judge made no findings that would cast doubt on Parmely's credibility, and nothing in the record suggests Parmely acted in bad faith. I would therefore give Parmely's testimony its natural probative weight.

[*36]

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This evidence shows that, far from disregarding the hazard presented by backing vehicles, Brown & Root specifically considered the problem. It decided to equip 27 motor vehicles with reverse alarms, and decided that a different approach was appropriate for 4 pieces of earthmoving equipment n9 because of the particular traffic patterns followed by that equipment.

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n9 The parties stipulated that Brown & Root maintained 10 pieces of earthmoving equipment subject to 602, and that none of these were equipped with reverse alarms. However, only 4 pieces of equipment, 2 paddle pans and 2 backhoes, had an obstructed view of the rear. Thus, the remaining equipment was not subject to the requirement of 602(a)(9)(ii) that either a reverse alarm or a signalman be provided.

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The majority find two basic defects with Brown & Roct's decision to rely on the signalman alternative of 602(a)(9)(ii): the company never observed the work to determine [*37] whether employees were in fact complying with that alternative, and the company failed to establish and effectively enforce a formal workrule prohibiting backing up without the required signal. The majority conclude that, in light of these deficiencies, Brown & Root, as a matter of law, carelessly disregarded the hazard.

The record does not support the majority's finding that Brown & Root rever observed the work to determine whether compliance with the standard was being achieved. This finding is apparently based on Parmely's testimony that he never observed a paddle pan operated in reverse gear. n10 However, Parmely also testified that he did observe the operation of the paddle pans, and it was for the very reason that their traffic patterns required only infrequent operation in reverse that he decided not to equip them with reverse alarms. n11 Thus, Parmely's statement that he never observed a paddle pan operated in reverse cannot be taken as an indication he disregarded the hazard; instead, it is consistent with his stated reason for deciding that reverse alarms were unnecessary.

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n10 I say "apparently" because the majority does not state the evidence on which it bases this finding.

n11 Parmely's testimony is slightly ambiguous, for he first stated that the pans never had to operate in reverse because of their traffic pattern, but then said that he based his decision not to install reverse alarms in part on the fact that signalmen were available when the pans did back up. I do not, however, think this minor ambiguity, which the Secretary did not pursue on cross-examination, is sufficient to discredit Parmely's testimony. See n.8, supra. Fairly read, Parmely's testimony simply means that while Parmely did not personally observe a pan back up when he observed them in operation, he recognized that, during the course of the entire project, they would have occasion to do so.

[*38]

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Moreover, a finding that Brown & Root never observed the pans operating in reverse does not follow from the fact that Parmely did not make such an observation. Parmely had overall responsibility for the safety of 700 employees on a jobsite covering 70 acres. His task included achieving compliance with a large number of standards covering a variety of hazards, as well as the Act's general duty clause, 29 U.S.C. 654(a)(1). See Diamond Roofing Co. v. OSHRC, 528 F.2d 645, 649, n.9 (5th Cir. 1976). n12 Obviously, Parmely had to delegate some responsibility for compliance with the Act to the other safety inspectors in his department and to Brown & Root's other supervisory personnel. Indeed, the Commission has recognized that an effective safety program must involve all of an employer's supervisory personnel in its implementation. Alder Electric Co., 77 OSAHRC 49/C8, 5 BNA OSHC 1303, 1977-78 CCH OSHD P21,748 (No. 13573, 1977); Iowa Southern Utilities Co., 77 OSAHRC 32/C10, 5 BNA OSHC 1138, 1977-78 CCH OSHD P21,612 (No. 9295, 1977). Thus, a finding that Brown & Root "never observed [*39] the work" is only correct if the record establishes that no responsible company supervisor ever observed a paddle pan operating in reverse.

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n12 In addition to being required to comply with the Secretary's construction standards in 29 C.F.R., Part 1926, Brown & Root also had to comply with the general industry standards in Part 1910 that are addressed to hazards not covered by the construction standards. OSHA Program Directive #200-88, published at CCH Employ. S & H. Guide, P11,473 (Oct. 19, 1978).

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I think it is resonable to infer that safety personnel and other supervisors observed the pans in operation on a fairly regular basis. Foreman Joyner observed their operation on the day of the accident; the testimony of Monteith and Reynolds indicates that he also observed them at other times. Rust, who gave the testimony most damaging to Brown & Root, stated that safety inspectors were frequently in evidence all over the worksite. Since the pans were often backed up, I think it is also reasonable to infer that responsible [*40] supervisory and safety personnel of Brown & Root did observe the pans operate in reverse on at least some occasions. Moreover, since the record indicates that here was general, albeit not universal, compliance with the standard when the pans were backed up, it is more likely than not that, when supervisors did observe instances of backing, the standard was being complied with n13 and there was nothing to alert them to the existence of a potential problem.

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n13 On the one occasion shown by the record in which a supervisor observed a pan back up, the incident immediately preceeding the accident, there was compliance with the standard, for Joyner gave Reynolds the required signal.

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I also do not think that the absence of a specific workrule, without more, is sufficient to establish that Brown & Root disregarded the hazard, so as to constitute a willful violation of the Act. The Commission has recognized that specific and effectively enforced workrules are an important component of an effective safety program and [*41] that, without such rules, employers are responsible for violations committed by their employees. See, e.g., B-G Maintenance Management, Inc., 76 OSHARC 60/A2, 4 BNA OSHC 1282, 1976-77 CCH OSHD P20,744 (No. 4713, 1976). But it does not follow that an employer who does not implement such a workrule necessarily acts in careless disregard of a hazard; indeed, to so hold would equate the existence of a violation with the willfulness of that violation. Instead, I would consider the employer's entire course of conduct in determining whether the employer disregarded a hazard, and the existence or absence of a workrule is simply one relevant fact to be taken into consideration. Constructora Maza, Inc., 78 OSAHRC 6/E2, 6 BNA OSHC 1309, 1977-78 CCH OSHD P22,487 (No. 13680, 1978).

Brown & Root was not indifferent to the hazards its workers faced. It maintained a team of safety inspectors to inspect the worksite and to identify and correct hazards that they found. It held weekly safety meetings at which it alerted its employees to the particular hazards that it determined required the most immediate attention. It also attempted to generally instill a sense of safety consciousness [*42] in its employees. n14 This approach necessarily means that some potential hazards will not receive the same emphasis as others because the safety personnel do not perceive them as being worthy of special attention, and that is what happened here; although Brown & Root's safety personnel considered the hazard presented by backing vehicles and took some steps to eliminate that hazard, those steps were not sufficient to achieve full compliance with the applicable standards. Such conduct, however, cannot be equated with careless disregard of the hazard. Williams Enterprises, Inc.,    OSAHRC   , 4 BNA OSHC 1663, 1976-77 CCH OSHD P21,071 (No. 4533, 1976). I would find that the violation of 602(a)(9)(ii) was serious, but not willful.

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n14 The majority shrug off these efforts, saying that they amounted to no more than an innocuous warning to "be careful." I think, however, that such warnings have an important place in an effective safety program. Employees will often encounter situations on a worksite that neither they nor their employer will have anticipated, and will have to use their judgment in how to proceed. If the employer has stressed to its employees that it expects them to "be careful," employees in such unfamiliar situations will be more likely to pause and consider how to proceed safely. As important as workrules are, an employer who relies on them alone makes no provision for the unusual and unanticipated situation in which an employee must think and act on his own.

[*43]

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