ROYAL LOGGING COMPANY

OSHRC Docket No. 15169

Occupational Safety and Health Review Commission

September 28, 1979

[*1]

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Henry C. Mahlman, Associate Regional Solicitor, U.S. Department of Labor

George J. Tichy, Timber Products Company, for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Commissioner:

The issue in this case is whether Respondent violated the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"), by not requiring its employees doing logging work to wear seat belts while operating motorized equipment.

Administrative Law Judge J. Morris concluded that some but not all of Respondent's employees should wear belts, and to that extent he found Respondent in violation of 29 U.S.C. 654(a)(1). n1 He assessed a penalty of $200. For the reasons that follow we modify the judge's decision and affirm it as modified.

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n1 This section, the so-called "general duty clause," requires that each employer "shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees."

[*2]

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Respondent is engaged in logging operations in Montana, where it cuts and delivers logs to a sawmill. It uses various types of logging equipment, including crawler (tracked) cranes and crawler tractors in addition to truck-mounted cranes, hydraulic loaders, and front-end loaders. The crawler tractors, known as "cats," perform several functions. When equipped with a front earthmoving-type blade (a bulldozer), they will create initial trails, or sawstrips, which mark the area within which trees are to be cut by a sawyer. These cats, which are referred to variously as "pioneer," "swamp," or "pimp" cats, will thereafter clear debris, smaller trees, and felled timber from the saw strips to form an open path, a "skid trail," through which the cut logs are dragged to access roads or other loading areas by cats not equipped with a blade and known as "skid" or "skinning" cats. Cranes and hydraulic loaders are used to load logs onto trucks at the loading areas, although occasionally both cranes and swamp cats will be used for skidding as well. The access roads on which the trucks operate are constructed [*3] by bulldozers known as road cats, and when it is necessary to construct a bridge along these roads, front-end loaders will supply the necessary fill dirt and may also be used to clear logs and debris. Lastly, "brush" cats push the residue from logging operations into piles for burning. Once the logging operation in a particular area is completed, the sawstrips and skid trails are abandoned. Similarly, logging roads in some instances are removed after use and the ground restored, although such roads may remain as permanent roads if needed for some other purpose such as recreation.

All of Respondent's cats are equipped with rollover protective structures (ROPS), and some, particularly newer cats, are furnished with seat belts. The other kinds of equipment have seat belts but none have rollover protection with the exception of the front-end loader which is equipped with rollover protection but not seat belts. n2

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n2 Judge Morris stated that the front-end loader was equipped with both ROPS and seat belts, citing the testimony of the loader operator, who stated that the canopy of the loader was sufficiently strong to withstand a rollover but did not know whether or not it had a seat belt. Respondent's vice-president and logging superintendent, however, testified that the loader did not have seat belts and that its canopy was not an "approved" ROPS. Since the testimony of the two witnesses does not actually conflict on the question of rollover protection, we agree with the judge's finding to that extent, but based on the superintendent's testimony we find that seat belts were not provided on the loader.

[*4]

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The inspection resulting in these proceedings occurred on September 5, 1975 following a fatal accident on August 25 when a cat operator, Jones, was pinned beneath the ROPS of his cat. The cat had overturned while Jones was cutting sawstrips on what Respondent's foreman characterized as a "35 to 40 percent" grade. n3 According to Respondent's expert, president of another logging company, a "20 percent" grade is sufficient to cause a cat to roll over, and he knew of five instances since 1959 when cats had rolled over, resulting in one death and one injury, broken legs. Another expert of Respondent had investigated three rollovers by employees of companies for whom he had worked, one of which resulted in injury, and he had heard of another 25 to 30 rollovers in his 26-year experience. He testified that fatalities often result from rollovers. Respondent's employees and supervisors collectively knew of more than 30 partial or complete rollovers since 1951 during the course of their employment with Respondent. These rollovers had resulted in four injuries and five deaths other than that of Jones. The [*5] most recent death prior to Jones' occurred in 1971 or 1972, whereas injuries had occurred as recently as 1975.

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n3 Respondent's vice-president and logging superintendent testified that Respondent's equipment frequently operates on slopes as much as 45 percent of a 90-degree angle, that is, 40.5 degrees, particularly when cutting trails and skidding logs.

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On the basis of his experience with the construction industry, Complainant's inspector testified that there is a body of opinion among safety experts that seat belts should be provided and worn on equipment having ROPS, in order to prevent the operator from being thrown out and crushed by the ROPS or the machine itself. However, Respondent's employees generally will not use belts even when the equipment they are operating has rollover protection. Although supervisors occasionally instruct employees to use belts, they know that their instructions are frequently disregarded, and they take no disciplinary or other actions to enforce the wearing of belts. Rather, the [*6] decision whether or not to use belts is left entirely to the employees' discretion.

The employees are primarily concerned that when wearing seat belts they would be unable to avoid objects which enter the cab unexpectedly and with sufficient force to tear the seats. This condition normally occurs when a moving cat bends down or catches part of a small tree. n4 As the cat continues to move, the tree or part that is caught under tension will be broken or eventually released by the passage of the cat. If the wood breaks, the release of tension flings the broken piece toward the cat, creating what is in effect a spear with a sharp broken end, known as a jillpoke. A jillpoke can enter the cab either from the direction in which the cat has been traveling or at an angle to the sides. If the cat releases the caught tree or branch, it may sweep along and into the side of the cab, forming what is known as a sweeper. In addition, pieces of a sweeper may be broken off and enter the cab, and a sweeper or the tracks of a cat may also catch and fling rocks and dirt toward the operator. Moreover, logs which are overhead may slide into a cat if they are dislodged by vibration or material being [*7] moved. Logs may also unexpectedly enter the cabs of hydraulic loaders, and front-end loaders are subject to sweepers but not jillpokes.

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n4 A cat operator described such a tree as about 20 feet long and a couple of inches in diameter.

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The entry of foreign objects into the cabs of equipment in the above described manner is a daily occurrence. Furthermore, cat operators generally encounter jillpokes and sweepers about a dozen times a day, and slightly more often during swamping (clearing) operations. Operators employed by both Respondent and its competitors have on numerous occasions had to jump out of their seats to avoid various kinds of material, including jillpokes, which tore open the seats. At least one of Respondent's employees has been injured by material flung into his cab, including jillpokes and sweepers. The record does not indicate whether the employee was wearing a seat belt. However, with the exception of a brief reference to a death caused by a jillpoke in Montana in the mid-1940's, there is no [*8] evidence that anyone has ever been killed or seriously injured by a jillpoke, sweeper, or other objects. Nevertheless, Respondent's experts testified that the use of seat belts during skidding or swamping would increase the rate of death or serious injury in the logging industry, and that the consensus of opinion in the industry is that seat belts should not be worn by cat operators.

Complainant's inspector opined that screens or guarding of some type could be utilized to protect against jillpokes and sweepers. He stated that the guarding should be placed in the front of the operator and on the sides to the extent that it would not preclude access to and entry from the vehicle. However, according to Respondent's expert, screens have been tried unsuccessfully. In order to retain visibility, it was necessary to use screening with openings no smaller than 1 1/2 inches, which was not sufficient to prevent the entry of a jillpoke. In addition, operators felt that their vision was impaired even with openings of such size. They further felt that screens impeded their egress from the cab. Respondent's expert was questioned about only one other type of guarding -- plexiglass -- which [*9] he had never seen in use. Although he could not be certain whether it would be effective, he did not believe that sufficiently strong plexiglass was available and felt that in any event plexiglass would adversely affect visibility.

Complainant issued a citation on September 10, 1975 alleging that Respondent on August 25 violated the standard at 29 C.F.R. 1926.28(a) by failing to require employees to wear appropriate personal protective equipment in an operation where they are exposed to hazardous conditions and where the use of such equipment is required by 1926.602(a)(2)(i). n5 His subsequent complaint essentially repeated this allegation, except that it alleged the violation occurred on September 5 and at times prior thereto. The complaint also alleged that one employee was affected by the violation. More than 4 months after the inspection and approximately 3 months after Respondent filed its answer denying that either the cited standard or 1926.602(a)(2)(i) applies or is intended to apply to logging operations, Complainant moved to file an amended complaint. He sought to allege that on September 5 and at times prior thereto Respondent violated the general duty clause, [*10] 29 U.S.C. 654(a)(1), or, in the alternative, 1926.28(a) in that it failed to require employees operating motorized vehicles equipped with rollover protection devices to wear appropriate personal protective equipment such as seat belts under conditions where the hazard of a vehicle overturning existed. The Complainant also moved to allege that "at least" ome employee was affected. About 1 month later, on March 1, 1976, and about 5 months prior to the hearing, Judge Morris granted Complainant's motion over Respondent's objections.

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n5 29 C.F.R. 1926.28(a) provides: "The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees." 1926.602, entitled "[m]aterial handling equipment," applies to earthmoving equipment of the following types: "scrapers, loaders, crawler or wheel tractors, bulldozers, off-highway trucks, graders, agricultural and industrial tractors, and similar equipment." Subparagraph (a)(2)(i) requires all such equipment to be provided with seat belts except that subparagraph (a)(2)(iii) states that seat belts "need not be provided for equipment which does not have rollover protective structure (ROPS) or adequate canopy protection."

1926.602(a)(6) in turn refers to standards prescribing requirements for rollover protection. See note 10 infra.

[*11]

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Respondent thereafter filed an answer to the amended complaint, renewing its contentions that the construction standards do not apply to logging operations or to the preparation of trails which are temporary in nature. In addition, Respondent argued before the judge that because both the citation and amended complaint allege that specific standards do apply to the circumstances on which the citation is based, the allegation of a violation of the general duty clause is improper, and that in any event a violation of that clause and of specific standards cannot be pleaded in the alternative. And at the outset of the hearing, Respondent stated that it was not consenting to try any issues other than those in the original citation. Lastly, Respondent contended before the judge that neither a violation of the cited standard nor of 29 U.S.C. 654(a)(1) was proven since nothing in the standards indicates that seat belts should be used on crawler tractors engaged in logging operations and because wearing seat belts would expose employees to another hazard greater and more frequent than that of rollovers. [*12]

Judge Morris concluded at the outset that the standards in Part 1926 do not apply to Respondent because the logging industry is not engaged in construction as that term is defined at 29 C.F.R. 1910.12. n6 He noted that employers not directly engaged in construction have been held subject to the construction standards if their operations are an integral part of or intimately involved with the performance of construction work. n7 He reasoned, though, that logging operations could not be so characterized. He did, however, find that Respondent's equipment was of the type described in the construction standard at 29 C.F.R. 1926.602(a) regardless of the use of which it was put.

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n6 Construction work is defined as "work for construction, alteration, and/or repair, including painting and decorating."

n7 Specifically, he cited A.A. Will Sand & Gravel Corp., 76 OSAHRC 81/G2, 4 BNA OSHC 1442, 1976-77 CCH OSHD para. 20,864 (No. 5139, 1976) (delivery of material to a construction site constitutes construction work where the employee of the cited delivery employer assisted a construction employee in bringing the material to the specific work area) and Heede International, Inc., 75 OSAHRC 26/C11 (ALJ, 1973), aff'd, 75 OSAHRC 26/C9, 2 BNA OSHC 1466, 1974-75 CCH OSHD para. 19,182 (No. 1889, 1975) (dismantling a crane which had been used in building construction is construction work). He contrasted these cases with Penrod Drilling Co., 76 OSAHRC 116/B8, 4 BNA OSHC 1654, 1976-77 CCH OSHD para. 21,072 (No. 5991, 1976), where we held that dismantling an oil derrick does not constitute construction work within the meaning of 1910.12. See also West Allis Lime and Cement Co., 74 OSAHRC 90/E12 (ALJ, 1973), aff'd, 74 OSAHRC 90/E7, 2 BNA OSHC 1453, 1974-75 CCH OSHD para. 19,155 (No. 1324, 1974) (although simple delivery is not construction work, the construction standards apply to the supplier of concrete whose driver positions his truck several hundred feet into the job site at a material hoist into which he pours the concrete); Skidmore, Owings & Merrill, 78 OSAHRC 1/A2, 5 BNA OSHC 1762, 1977-78 CCH OSHD para. 22,101 (No. 2165, 1978) (construction standards apply only to employers who perform actual construction work or exercise substantial supervision over actual construction or who perform work "directly and vitally related" to construction work).

[*13]

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The judge then ruled that the complaint was properly amended in the circumstances because it did not change the underlying factual predicate of the case but only the legal theory and was not prejudicial to Respondent. And while he found that the circumstantial evidence regarding Jones' death was insufficient to establish that Jones was not wearing a seat belt at the time of his death, based on the testimony of Respondent's employees and supervisors he found that seat belts were not worn during the six months prior to issuance of the citation and that Respondent did not require them to be worn. He thus concluded that the citation and amended complaint had been issued in conformity with the requirements of 29 U.S.C. 658(c), n8 and he rejected Respondent's other arguments regarding the amendment. n9

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n8 This section provides that a citation cannot be issued "after the expiration of six months following the occurrence of any violation."

n9 These other arguments may be summarized as follows: (1) the amended complaint is improper because (a) there is no statutory basis nor necessity for issuance of a complaint in addition to the initial citation and (b) in this case no effort was made to amend the original citation; (2) the motion to amend was not filed with reasonable promptness nor does it describe the alleged violation with particularity as required by 29 U.S.C. 658(a); and (3) considering the violation to have occurred on August 25, 1975 (the date of Jones' death) as alleged in the original citation, the motion to amend was not granted until after the expiration of the 6-month statute of limitations prescribed by 29 U.S.C. 658(c). See note 8 supra. As to this issue, Judge Morris ruled that in accordance with Federal Rule of Civil Procedure 15(c), the the amendment would relate back to the original citation and complaint, which complied with 658(c).

These arguments are renewed on review. We agree with the judge's disposition of these issues for the reasons he states.

[*14]

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Having found that seat belts were not worn nor required to be worn, Judge Morris further ruled that failure to wear seat belts in earthmoving equipment provided with rollover protection is a hazard recognized in the logging industry. While he noted Respondent's expert testimony that belts should not be worn considering the particular circumstances existing in that industry, he regarded the body of expert opinion to which the inspector testified as sufficient to show that failure to wear belts is recognized as a hazard wherever earthmoving equipment having ROPS is used. Moreover, he stated that the hazard of rollovers is greater in the logging than in the construction industry in view of the terrain encountered in logging operations.

But while concluding that safety experts generally consider failure to wear a belt in equipment having ROPS as hazardous, he further determined that Respondent itself was not aware of a need to use belts in such circumstances. He based this conclusion on findings that while rollovers have occurred resulting in fatalities the record fails to show the dates of such events. [*15] Accordingly, he reasoned that Respondent was not shown to have actual notice of the hazard in view of Complainant's own standards that ROPS are not required on equipment manufactured prior to July 1, 1969. n10 However, he expressly found a recognized hazard within the meaning of 29 U.S.C. 654(a)(1) in accordance with the rule that an activity may be a "recognized hazard" even if the employer is unaware of the existence of the activity or its potential for injury; the standard is the common knowledge of safety experts familiar with the circumstances of the industry or activity in issue. He cited National Realty and Construction Co. v. OSHRC, 489 F.2d 1257, 1265 n.32 (D.C. Cir. 1973).

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n10 With some exceptions, 29 C.F.R. 1926.1000 applies to the same types of material handling equipment as does 1926.602. It generally provides that such equipment manufactured on or after September 1, 1972 shall be provided with ROPS meeting certain specified performance standards. Equipment manufactured or placed in service before that date shall be fitted with ROPS according to a graduated schedule except that a date for equipment manufactured prior to July 1, 1969 is currently reserved pending further study. 1926.1000(b) and (c).

As previously stated, 1926.602(a)(2)(iii) indicates that seat belts need not be provided for equipment which does not have ROPS or adequate canopy protection. See note 5 supra.

[*16]

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Nevertheless, Judge Morris did not wholly reject Respondent's evidence. He noted that the Commission has allowed employers to defend against alleged violations of 29 U.S.C. 654(a)(2) by showing that compliance with the requirements of a standard will be more hazardous than noncompliance, that alternative means of protecting employees are unavailable, and that a variance (waiver) application under 29 U.S.C. 655(d) would be inappropriate. n11 While he properly observed that we have not as yet considered this "greater hazards" defense in the case of an alleged violation of the general duty clause, the judge reasoned that the issue presented by such a defense is interrelated with that of hazard recognition in the first instance. As he characterized it, the question is whether compliance with the requirements of 654(a)(1) in the given situation results in another "coextensive" recognized hazard. He concluded that Respondent's evidence as to the incidence of other dangers, which he found unrebutted, was sufficient to show such a coextensive hazard.

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n11 E.g., Russ Kaller, Inc., 76 OSAHRC 130/F10, 4 BNA OSHC 1758, 1976-77 CCH OSHD para. 21,152 (No. 11171, 1976), and cases cited therein.

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Specifically, he concluded that in view of the frequency with which a cat operator normally encounters jillpokes and sweepers the hazard of injury from such causes is equivalent in magnitude to the hazard of injury from a rollover. He expressly found that there is no safety value to be gained by eliminating one hazard at the expense of tolerating the other; he accorded both equal weight. Based on the testimony of Respondent's experts, he further found that wire mesh screens as protection were unworkable. He also found no substantial evidence to show that the installation of plexiglass would be feasible. On these findings, and without discussing whether Respondent should have applied for a variance, he ruled that swamp, skid, and pioneer cat operators n12 are not required to wear seat belts when exposed to the hazard of jillpokes and sweepers but that a violation of the Act existed with respect to all other equipment operators. [*18] To that extent he affirmed the citation as amended by the complaint.

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n12 Although the judge's holding specifies swamp and pioneer cats, it is clear from his factual statement that he includes skid cats within this category.

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Complainant contends that the judge acted properly for the reasons he gave in allowing the amendment but erred in vacating the citation, as thus amended, with respect to some employees. n13 According to Complainant evidence concerning the hazards occurring from utilization of seat belts should be viewed in the context of the Commission's greater hazards defense. Complainant concedes that the Commission requirement that an employer must show that a variance application is inappropriate in order to establish a greater hazards defense is inapplicable here since Respondent is charged with a violation of 654(a)(1). n14 He contends, however, that the other elements of the greater hazards defense are applicable and have not been established.

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n13 Complainant expressly does not take exception to the judge's decision as it pertains to operators of equipment other than cats.

n14 29 U.S.C. 655(d) provides for a variance only from the requirements of a standard and not from 654(a)(1).

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According to Complainant, the record does not show it to be more hazardous for cat operators to wear belts than not wear them. In Complainant's view, rollovers, while not occurring as frequently as encounters with jillpokes, are not uncommon and usually result in death or serious injury whereas no witness had any personal knowledge of fatalities resulting from jillpokes. Therefore, rollovers present a more severe hazard to cat operators. In addition, Respondent has failed to show the remaining element of the greater hazards defense -- that alternative means of protection are unavailable -- although Complainant does not suggest what alternative means might be appropriate. In any event, Complainant argues, the greater hazards defense was not sustained in this case because the record shows that even unbelted operators have been [*20] struck and injured by jillpokes, and therefore, the failure to wear belts does not negate the hazard of being struck by jillpokes. In Complainant's view, Respondent's asserted greater hazard, rather than being a new hazard created by compliance with the seat belt requirement, is an existing hazard incident to logging operations in general; to allow the greater hazards defense in these circumstances would permit Respondent to rely on a coexisting hazard as a means of avoiding the abatement of another and more severe hazard. Complainant further opints out that his burden under National Realty, supra, is to show only that the feasible abatement method will materially reduce the likelihood of an injury resulting from a rollover and not to show that it will provide employees with a totally safe working environment. n15

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n15 The court stated, "The record must additionally indicate that demonstrably feasible measures would have materially reduced the likelihood that [the hazard] would have occurred." 489 F.2d at 1267.

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Respondent argues on review that, for a variety of statutory and procedural reasons, n16 the judge erred in allowing Complainant's motion to amend. Furthermore, Respondent contends that it did not consent to try the issues raised by the amended pleadings and that the judge therefore irred in not limiting Complainant's case to the specific event alleged in the initial citation; that is, the circumstances of Jones' death. Similarly, Respondent contends a violation of 29 U.S.C. 654(a)(1) cannot be found because it did not consent to try that issue and because the judge found specific standards applicable to its operations. In Respondent's view, the judge's decision is inconsistent in that while correctly determining that Respondent is not engaged in construction work, he nevertheless applied standards in Part 1926 to Respondent's equipment. Having thus found construction standards applicable, he should, Respondent asserts, have vacated that portion of the amended complaint alleging the 654(a)(1) violation in accordance with our rule that such an allegation is inappropriate where a specific standard applies. n17

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n16 See note 9 supra and accompanying text.

n17 e.g., Kaiser Aluminum and Chemical Corp., 76 OSAHRC 52/C10, p.7 and n.6, 4 BNA OSHC 1162, 1164 and n.6, 1975-76 CCH OSHD para. 20,675 at 24,767 and n.6 (No. 3685, 1976), motion to show cause denied and prior order aff'd, 77 OSAHRC 39/E8, 5 BNA OSHC 1180, 1977-78 CCH OSHD para. 21,692 (1977), petition for review dismissed, No. 77-2280 (9th Cir. June 12, 1978).

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Respondent, however, does not concede that construction standards as alleged in the original citation do apply; in its view the logging industry is not a part of the construction industry. Respondent also argues that the judge disregarded the fact that its equipment is neither designed nor used for earthmoving. According to Respondent, equipment is within the purview of Part 1926 only when it is utilized in earthmoving activities. And even assuming the judge acted properly in applying these standards, Respondent asserts he erred in interpreting them to require all operators to wear seat belts; the standards [*23] only impose that requirement for equipment having ROPS, a distinction the judge failed to make.

As to the merits of the 654(a)(1) charge, Respondent says that the judge erred in concluding based on the inspector's testimony that failure to wear seat belts is a recognized hazard in the logging industry. According to Respondent, the inspector had no experience with the logging industry, and his testimony as to the opinion of safety experts is hearsay. On the other hand, Respondent argues that the testimony of those familiar with the industry shows that seat belts are not viewed as feasible or appropriate in view of the need for agility and flexibility to avoid greater hazards. Therefore, Respondent contends, the allegation of violation of 654(a)(1) must be vacated regardless of whether the Commission applies the criteria for proof by Complainant of hazard recognition in the first instance or the criteria for proof by the employer of greater hazards as a defense.

At the outset, we do not consider the logging operation in issue to constitute construction work as that term is defined. As we have said, n18 our decisions apply the construction standards only to actual construction [*24] work or to related activities that are an integral and necessary part of construction work. Similarly, we think that activities that otherwise could be regarded as construction work should not be so considered when they are performed solely as part of a nonconstruction operation. Plainly the logging operation itself -- the cutting and delivery of timber to a sawmill -- is neither actual construction nor directly related to the performance of construction work. On the other hand, Respondent also builds trails, roads, and bridges, which might normally be considered construction work. However, in this case such roadbuilding activities, rather than being the purpose of Respondent's work, are ancillary to and in aid of its primary nonconstruction function to cut and deliver logs. The record shows that Respondent provides trails, roads, and bridges only to the extent necessary to the performance of its logging operations, and it is incidental and indeed irrelevant to the logging operation that any road or trail may remain for some other use once the logging operation in that area is completed. Therefore, we agree with the judge that in the circumstances of this case the construction [*25] standards do not apply. n19

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n18 See note 7 supra and accompanying text.

n19 Respondent erroneously argues that the judge found specific standards applicable to its work. As indicated at footnote 21, infra, the judge considered the construction standards in determining whether Respondent had notice of the hazard. Plainly by his decision the judge determined that Respondent could not be found in violation of the standard in Part 1926 because it was not engaged in construction. Whether Respondent had notice of the hazard is a different question.

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We also agree for the reasons given by Judge Morris that he properly allowed Complainant's motion to amend. In this regard, we reject Respondent's arguments predicated on its express refusal to consent to try the issues raised in the amended complaint. As the judge observed, the amendment was made well prior to the hearing and does not alter the underlying factual basis for the charge, namely, the failure of employees to wear seat belts on logging equipment having [*26] rollover protection. In these circumstances, Respondent cannot claim that it was not on notice to litigate the issue raised by the amendment. Schiavone Construction Co., 77 OSAHRC 78/A2, 5 BNA OSHC 1385, 1977-78 CCH OSHD para. 21,815 (No. 12767, 1977); P.A.F. Equipment Co., 79 OSAHRC 18/A2, 7 BNA OSHC 1209, 1979 CCH OSHD para. 23,421 (No. 14315, 1979), appeal filed, No. 79-1398 (10th Cir. May 7, 1979). And even if we assume that the initial pleadings were not addressed to any circumstances other than those of the particular fatality which prompted the inspection, we would not accept Respondent's argument because its general program with respect to the safety training and instruction of its employees is implicit in Complainant's case. General Dynamics Corp., 78 OSAHRC 53/A2, 6 BNA OSHC 1753, 1978 CCH OSHD para. 22,873 (No. 12212, 1978), aff'd, 599 F.2d 453 (1st Cir. May 23, 1979), and cases cited therein.

With respect to the merits, we note that in order to establish a violation of 29 U.S.C. 654(a)(1), Complainant must establish that (1) the employer failed to render its workplace "free" of a hazard which was (2) recognized and (3) causing or likely to [*27] cause death or serious physical harm to its employees. Complainant must also establish that feasible measures exist which would have materially reduced the likelihood that such misconduct would have occurred. National Realty & Construction Co. v. OSHRC, supra, at 1265-1267.

Complainant clearly established that rollover is a recognized hazard. To constitute a recognized hazard, the dangerous potential of a condition or activity must be known either to the particular employer or generally in the industry. Brennan v. OSHRC and Vy Lactos Laboratories, 494 F.2d 460, 463-464 (8th Cir. 1974); National Realty and Construction Co. v. OSHRC, supra, at 1265 n.32. In the instant case Complainant established that both the logging industry in general and Respondent in particular recognized the hazard. Not only did the compliance officer testify that rollovers exist where earthmoving equipment is used, including the logging industry, but Respondent's witnesses, including its own employees and those engaged in logging operations with other companies, knew of rollovers. n20 Additionally, the evidence showed that Respondent provided much of its equipment with seat belts and encouraged [*28] their use, which is evidence that Respondent recognized the existence of a hazard. n21 E.g., Owens Corning Fiberglas, Corp., 79 OSAHRC    , 7 BNA OSHC 1291, 1979 CCH OSHD para. 23,509 (No. 76-4990, 1979), appeal filed, No. 79-2516 (5th Cir. June 26, 1979); Wilson Freight Co., 77 OSAHRC 150/C10, 5 BNA OSHC 1692, 1977-78 CCH OSHD para. 22,041 (No. 13030, 1977).

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n20 Although Respondent argues that the inspector's testimony is hearsay we note that, even assuming so, it is corroborated by Respondent's own testimony.

n21 We do not agree with the judge's conclusion that Respondent did not have actual notice of the hazard. As noted previously, although the judge concluded that 29 C.F.R. 1926.602 and 1926.1000 are construction standards to which Respondent is not subject, he nevertheless found them to be descriptive of Respondent's equipment regardless of the use to which that equipment is put and considered them in determining that Respondent lacked notice of the hazard.

Whether the construction standards give notice of a need for the use of seat belts in the circumstances of Respondent's operations need not be answered. As we have said, Respondent's own witnesses and its practice of providing belts indicates that Respondent recognized the hazards created by rollovers.

[*29]

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The record also establishes that rollovers are a hazard likely to cause death or serious physical harm. The record is replete with testimony concerning the deaths of employees who were involved in rollovers, and the citation itself resulted from the death of an employee involved in a rollover.

The main issue in this case is whether Complainant established a feasible means of abatement to eliminate or materially reduce the hazard. Although the evidence establishes that seat belts could be utilized to reduce the number of deaths and serious physical harm caused by rollovers of equipment having ROPS, the record also indicates that seat belts would create certain hazards by preventing Respondent's employees from jumping out of the way of jillpokes and sweepers. Complainant asserts that this evidence should be viewed in the context of a greater hazards defense and that this defense was not established. We disagree that the evidence should be viewed in the context of a greater hazards defense and conclude that the citation should be vacated in part since the evidence introduced by Respondent establishes [*30] that at certain times the use of seat belts is not feasible.

As we have stated, Complainant's burden under 29 U.S.C. 654(a)(1), in addition to showing the existence of a recognized hazard, is to demonstrate that there are feasible methods which would reduce or eliminate the incidence of the hazard. National Realty and Construction Co., supra. As the judge noted, this case involves a question of first impression in that we are asked to determine the relevance of evidence concerning hazards created by a proposed abatement method in a case arising under 654(a)(1). We conclude that this evidence is relevant in determining feasibility but is properly part of Respondent's case in rebuttal. That is, Complainant need only prove that an abatement method exists that would provide protection against the cited hazard. The burden then shifts to the employer to produce evidence showing or tending to show that use of the method or methods established by Complainant will cause consequence so adverse as to render their use infeasible.

Furthermore, because feasibility is an issue, the greater hazards defense cannot apply in a case, such as this, arising under 654(a)(1). If the employer [*31] demonstrates that the means of abatement specified by Complainant create other hazards such that they are considered infeasible, the citation must be vacated for failure of proof by Complainant; there is no need for the employer further to demonstrate the unavailability of other means of abatement or the inappropriateness of a variance application. n22 See note 11 supra and accompanying text.

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n22 This analysis is consistent with my separate opinion in S & H Riggers and Erectors, Inc., 79 OSAHRC    , 7 BNA OSHC 1260, 1979 CCH OSHD P23,480 (No. 15855, 1979), appeal filed, No. 79-2358 (5th Cir. June 7, 1979). In that case, which involved the interpretation of 29 C.F.R. 1926.28(a), I concluded that the Secretary must prove the feasibility of his suggested means of abatement. I also held that the greater hazards defense does not apply in a case involving 29 C.F.R. 1926.28(a) and that any evidence concerning greater hazards is relevant to the question of feasibility as part of the Respondent's case in rebuttal. Since the rationale for my conclusion in S & H Riggers concerning the greater hazards defense was based upon the meaning of feasibility, that conclusion is equally applicable in a 5(a)(1) case where feasibility is also in issue.

[*32]

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In the instant case the record establishes that the wearing of seat belts can subject employees to injury from jillpokes, sweepers and other materials. In the opinion of Respondent's witnesses death can occur from being struck by a jillpoke or sweeper and therefore the hazard of jillpokes and sweepers entering the cab is equivalent in severity to the hazard of rollover. Complainant argues that this evidence is irrelevant since employees who do not use belts may still be injured by jillpokes and other material. While it is true that employees who do not wear belts may be injured by jillpokes and other material, nevertheless the record shows, and the judge found, that wearing a seat belt increases the likelihood of an injury by making it more difficult for an employee to avoid a jillpoke, sweeper or other debris. Moreover, since employees frequently encounter these materials, with jillpokes entering the cabs 12 to 25 times in an 8-hour day, the likelihood of injury is not remote. Finally experts familiar with the logging industry as well as Respondent's employees and supervisory personnel consider [*33] safety belts to be inappropriate and refuse to wear them when exposed to jillpokes, sweepers, and other material.

In view of this evidence, we agree with the judge that there is no "safety trade off between a cat operator impaled on a jillpoke and an operator injured in a rollover." The creation of an additional hazard commensurate with the hazard the abatement method is intended to prevent is sufficient to establish the infeasibility of the abatement method. We find therefore that safety belts are not feasible where employees are exposed to the entry of foreign material into the cabs of their equipment. n23

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n23 The inspector did not dispute that jillpokes, sweepers and other material can be hazardous to an employee wearing a seat belt but stated that measures could be taken to eliminate that hazard. The record shows, however, that it is not feasible to use screening in order to remove the hazard created by seat belts in these situations. The inspector did not specify any other types of guarding against jillpokes and sweepers, and expert opinion testimony is that plexiglass would not be feasible.

[*34]

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Accordingly, we agree with the judge insofar as his decision would not require seat belts to be worn by employees exposed to the hazards of jillpokes, sweepers, and other materials, although we agree for a reason different than that given by the judge. We note, however, that his holding is expressly limited only to operators of swamper or pioneer cats, whereas the record indicates that in addition operators of other equipment, including front-end loaders which are equipped with ROPS, are also exposed to the same hazards. We therefore modify the judge's decision; we hold that operators of any equipment having ROPS or other rollover protection n24 are required to wear seat belts under all circumstances except where they are exposed to the hazards of jillpokes, sweepers, and other materials entering their equipment.

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n24 Respondent asserts that the judge erred in that he failed to distinguish equipment having ROPS from that without. We do not agree. The amended complaint as well as the inspector's own testimony is limited to equipment having ROPS, and no issue was tried regarding a violation with respect to equipment not having ROPS. Since the judge affirmed the citation except as to those employees whom he found did not have to wear belts, it cannot be said that he expanded the scope of the citation.

[*35]

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Judge Morris assessed a penalty of $200 for the violation considering the severity of the hazard presented by the failure to wear belts and Respondent's failure to adequately enforce its rules requiring belts to be worn. We find the judge's assessment appropriate for the reasons he states.

As modified, the judge's decision is affirmed. n25

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n25 Respondent raised, and the judge disposed of, a number of peripheral arguments largely irrelevant to the issues in this case. We agree with the judge's disposition for the reasons he assigns. We also note that some of Respondent's arguments challenge the constitutionality of the Act; the judge properly held that the Commission has no authority to consider such issues. Buckeye Industries, Inc. v. Secretary of Labor, 587 F.2d 231 (5th Cir. 1979).

The Supreme Court has, however, addressed one of Respondent's constitutional arguments. In Marshall v. Barlow's, Inc., 436 U.S. 307 (1978), the Court held that the Act violates the fourth amendment to the Constitution insofar as it purports to authorize inspections without a search warrant or its equivalent. The inspection in this case, however, occurred before Barlow's was decided. The Commission has held that any remedy which might otherwise be appropriate if an inspection violates the fourth amendment will not be applied retroactively to inspections that occurred before the decision in Barlow's was announced. Accordingly, even if the inspection failed to conform to the fourth amendment tests set forth in Barlow's, Respondent would not be entitled to exclusion of the evidence.

Moreover, the record in this case indicates that the inspector made no attempt to visit or observe any logging operation or field location including the area where the fatality occurred. His inspection and investigation was conducted at Respondent's offices where he discussed the accident with Respondent's safety director and attorney and also at Respondent's yard where, in the presence of the safety director and attorney he observed and photographed the cat involved in the accident. Respondent introduced no evidence of coercion or misrepresentation on the part of the inspector nor does it contend that it was misled in any way. Thus, Respondent voluntarily consented to the inspection, and its fourth amendment rights were not violated. Stephenson Enterprises, Inc. v. OSHRC, 578 F.2d 1021 (5th Cir. 1978).

[*36]

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SO ORDERED.

CONCURBY: CLEARY (In Part)

DISSENTBY: CLEARY (In Part)

DISSENT:

CLEARY, Chairman, Concurring and Dissenting:

I concur with the majority that logging is not part of the construction industry, and that therefore the citation alleging a violation of 29 CFR 1926.28(a) must be vacated. I also agree that the administrative law judge properly granted the Secretary's motion to amend the complaint to allege a violation of 5(a)(1) of the Act, the general duty clause, for the reasons discussed in the majority opinion. I further agree with the discussion and conclusion by the majority that the greater hazards defense is not available as a defense when a violation of 5(a)(1) of the Act is alleged, but rather that respondent may attempt to prove as part of its case in rebuttal that the means of abatement suggested by the Secretary is not feasible. n26

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n26 The "greater hazards" defense is a term of art in OSHA jurisprudence for reasons explained in the majority opinion. To take away this defense in 5(a)(1) cases, however, does not render a respondent less able to defend, and, in fact, enhances his ability to defend.

[*37]

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I depart from the majority opinion, however, in its conclusion that respondent rebutted the Secretary's showing that the use of seat belts in all equipment having rollover protection is a feasible means of abatement. It is my opinion that all operators of machinery in this industry equipped with rollover protection should be protected at all times by seat belts. I do not believe that the record establishes that exposure to jillpokes, sweepers, and other debris is sufficient reason to permit employees to be unprotected from the hazard of being crushed if the equipment turns over. The minimal restraint on upper body movement caused by a seat belt does not prevent an operator from ducking or dodging jillpokes, sweepers, or other material.

The majority correctly finds that the Secretary established that the rollover of the equipment is a recognized hazard. The majority also states that the "record is replete with testimony concerning the deaths of employees who were involved in rollovers . . . ." Thus, that part of the prima facie 5(a)(1) case requiring proof that rollovers are a recognized hazard [*38] likely to cause serious harm or death has been firmly established. As the majority points out, the main issue in this case, and the focus of my disagreement with the majority, is whether the Secretary established a feasible means of abatement to eliminate or materially reduce the cited hazard.

The hazard for which respondent was issued a citation is the hazard of being crushed by the equipment if it rolls over. Although the majority acknowledges that the use of seat belts by the operators would reduce the number of deaths and serious injuries caused by rollovers, the majority states that "the record also indicates that seat belts would create certain hazards by preventing employees from jumping out of the way of jillpokes and sweepers" (emphasis added). The use of seat belts does not create the hazard posed by jillpokes and sweepers. The possibility of being injured by jillpokes and sweepers that are propelled through the cab exists independently of the use of seat belts. Although conceding that employees who do not wear seat belts may be injured by jillpokes, sweepers, and other material, the majority maintains that the record shows that wearing a seat belt increases the [*39] likelihood of an injury. I am unpersuaded by the arguments to this effect. There is no record of injuries by persons wearing seat belts vis-a-vis those not wearing them. If the jillpokes have sufficient force to impale an employee, I don't see how they could be avoided under any circumstances. Moreover, with a seat belt, an employee can still move his upper torso. To do more would require him to abandon the controls of the cat and cause it to go out of control. Can the respondent realistically claim that this occurs 12 to 25 times a day? Reliance on the operators' perceptions and reflexes to avoid the jillpokes and sweepers is misguided. The Commission has rejected this approach to employee protection in machine guarding cases n27 and should do so here.

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n27 E.g., Akron Brick and Block Company, 76 OSAHRC 2/E2, 3 BNA OSHC 1876, 1975-76 CCH OSHD P20,302 (No. 4859, 1976).

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I also do not agree with the majority's conclusion that the two hazards are equal in severity. The record establishes that although there [*40] have been numerous deaths and serious injuries caused by rollovers, the only evidence of serious injury or death caused by jillpokes or sweepers was a fatality reported to have occurred some time in the 1940's somewhere in Montana. Yet, it is implicitly assumed by the majority that if employees operating equipment with rollover protection are required to wear seat belts, an increased incidence of death or serious injury caused by jillpokes and sweepers will result. There is no evidence other than the mere assertion of this opinion by respondent's witnesses to support this conclusion. There is no evidence of record that indicates at what speed the jillpokes and sweepers are propelled through the cab. If they were being propelled at significant rates of speed, it would seem reasonable that since the 1940's there would have been some serious injuries or deaths.

The complainant's inspector in this case offered the opinion that screens or guarding of some type could be utilized to protect against jillpokes and sweepers. The respondent's expert replied, in part, that he had never seen plexiglass in use. I find the defense in this case patently implausible; that where a hazard exists [*41] which is equatible to being crushed to death when a machine overturns, there is no protection available whatsoever. This hazard ostensibly occurs as frequently as 12 to 25 times a day, yet an obvious and suggested measure of protection (plexiglass) has never been tried. Surely, the respondent and this industry can be more sophisticated and inventive than this.