CONCRETE CONSTRUCTION CORPORATION

OSHRC Docket No. 2490

Occupational Safety and Health Review Commission

April 8, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Francis V. LaRuffa, Regional Solicitor

Joseph K. Greaney, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

The October 9, 1974, decision of Administrative Law Judge James P. O'Connell is before the full Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. (hereinafter the "Act"). Judge O'Connell vacated the Secretary of Labor's citations with two attendant proposed penalties issued to respondent for serious violations of section 5(a)(2) of the Act for failure to comply with the safety standards codified as 29 CFR 1926.601(b)(10) and (11). Judge O'Connell raised sua sponte the question of whether the citations were issued with reasonable promptness, and resolved the question adversely to the Secretart. In addition, the Judge concluded that in any event the Secretary failed to prove respondent's non-compliance with safety standards 29 CFR 1926.601(b)(10) and (11).

In his petition for discretionary review the Secretary excepted to the findings of Judge O'Connell and virtually all of the Judge's rationale supporting those [*2] findings. The petition was granted. Having reviewed the entire record, we reverse.

Respondent, Concrete Construction Corporation, maintains its principal place of business at 29 Pink Street, Hackensack, New Jersey. On January 30, 1973, respondent's employees were engaged in construction work at a project known as the Lawrence Brook Bridge, at Exit 9 of the New Jersey Turnpike near New Brunswick, New Jersey. On that day, an employee of respondent was fatally injured when he was pinned between the dump body and the frame of respondent's dump truck. On January 31, 1973, a compliance officer of the United States Department of Labor's Occupational Safety and Health Administration conducted an investigation at the Lawrence Brook Bridge worksite. Following this investigation two citations for serious violation and notification of proposed penalty were issued to respondent on March 8, 1973.

Respondent filed a timely notice of contest to both citations. The Secretary filed his complaint with this Commission on April 4, 1973. Pursuant to an order directing respondent to file an answer on or before July 9, 1973, respondent filed its answer on July 9, 1973. The case was heard before [*3] Judge O'Connell on July 17, 1973, in Newark, New Jersey. Respondent was represented by counsel.

At the hearing the Secretary established, by the uncontroverted testimony of the compliance officer, that the dump body of the truck in this case was not equipped with a positive means of support (required to be permanently attached) that would prevent the accidental lowering of the dump body. In addition, it was shown that the operating levers controlling the dumping device did not have a latch or any other device to prevent accidental starting or tripping of the dumping mechanism. n1

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n1 Safety standards 29 CFR 1926.601(b)(10) and (11) read as follows:

1926.601 Motor Vehicles

* * *

(b) General Requirements

* * *

(10) Trucks with dump bodies shall be equipped with positive means of support, permanently attached, and capable of being locked in position to prevent accidental lowering of the body while maintenance or inspection work is being done.

* * *

(11) Operating levers controlling hoisting or dumping devices on haulage bodies shall be equipped with a latch or other device which will prevent accidental starting or tripping of the mechanism.

[*4]

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On review before us, the respondent relies completely on the reasoning contained in Judge O'Connell's report. The Judge noted, but did not pass upon, the "impossibility" defense raised by respondent. In light of his determination, it concluded that issue was "moot". It is accordingly uncertain whether respondent has preserved this issue for our review. In any event, the defense was not proved. With regard to 29 CFR 1926.601(b)(10), the existence of body props was established by testimony. With regard to 29 CFR 1926.601(b)(11), respondent's only witness, a former mechanic and parts manager who has had five years' experience as a salesman of trucks and truck bodies with the Dianem Company, testified that he had never seen or sold a dump operation lever locking device, and that he knew of no such devices. The witness did not testify that no such devices existed. His testimony was based upon his experience with the Dianem Company and upon knowledge gained in occasional meetings of the Truck Body and Equipment Trade Association, at which some of the new equipment coming out by other companies [*5] was discussed. There is no indication that he examined all available sales literature on the matter. This falls short of establishing persuasively the defense. n2

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n2 In addition, see K & T Steel Corp., No. 5769 (February 24, 1976), and Diebold, Inc., 3 BNA OSHC 1897, CCH 1975-76 OSHD para. 20,333 (Nos. 6767 etc., January 22, 1976) on the burden of establishing an "impossibility" defense. For my own part, I add that the employer may seek relief under Commission Rule 34 (29 CFR 2200.34) if it is unable to comply with the standard in spite of a good faith effort to do so.

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The decision of Judge O'Connell vacating the Secretary's citations issued to respondent for the Secretary's failure to comply with the "reasonable promptness" requirements of section 9(a) is reversed. By raising a non-jurisdictional, affirmative defense on his own motion, the Judge acted improperly. Consolidated Pine, Inc., 17 OSAHRC 591, 3 BNA OSHC 1178, CCH 1974-75 OSHD para. 19,597 (No. 5543, May 1, 1975). Moreover, respondent [*6] has failed to demonstrate that it was prejudiced by the delay (Coughlan Constr. Co., Inc., 3 BNA OSHC 1636, CCH 1975-76 OSHD para. 20,106 (Nos. 5303 & 5304, October 28, 1975) Southern Railway Co., 3 BNA OSHC 1657, CCH 1975-76 OSHD para. 20,091 (No. 5960, October 21, 1975)) and a careful review of the record reveals no evidence from which it could be concluded that the approximately 34-day delay in issuing the citation was unreasonable. Therefore, the Judge's dismissal cannot stand.

We must also disagree with that part of the Judge's report wherein he requires the Secretary to "show what caused a particular accident and that the cause was a violation of the standard cited." The employer's special duty to comply with section 5(a)(2) is not dependent on whether a failure to comply with a standard has or has not been the causative agent of injuries, nor is a finding of noncompliance predicated on the accuracy of a posthoc accident analysis. The Act may be violated even though no injuries have occurred, and even though a particular instance of noncompliance was not the cause of injuries. Instead, the inquiry here should have been directed to the question of whether or not the [*7] employer complied with the standard. n3 In this way, we best enforce the employer's duty to abate and thereby prevent injuries, the keystone of the Act. Brennan v. O.S.H.R.C. & Underhill Constr. Corp., 513 F.2d 1032, 1039 (2d Cir. 1975). We of course agree with the Judge that the employer should be notified of the particular hazard to be abated. Section 9(a) of the Act. The terms of the cited standards, however, make it clear that the condition to be corrected is the absence of the specified equipment.

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n3 On this point the cases cited by the Judge, American Roof Slab Co., 1 OSAHRC 481, 1 BNA OSHC 3119, CCH 1971-73 OSHD para. 15,106 (No. 219, July 5, 1972) (Administrative Law Judge) and Koppers Co., Inc., 1 OSAHRC 666, 1 BNA OSHC 3005, CCH 1971-73 OSHD para. 15,178 (No. 402, August 18, 1973) (Administrative Law Judge), are distinguishable. They concerned whether certain bracing was "adequate" and whether material piles were "stable and secure" within the meaning of cited standards. The cases were decided on the ground that the evidence adduced, including the evidence of particular accidents, was not sufficient to show the non-existence of these special conditions or properties. Both Judges correctly noted that the mere occurrence of an accident does not compel the conclusion that a standard had been breached. Here, it is clear that the standards were breached because the requisite equipment was not installed.

This is not to say, however, that the circumstances of a particular occurrence are not probative evidence of the existence of certain conditions put in issue by the terms of a particular standard. See Fed. R. Evid. 401 defining "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." (Though this Federal Rule of Evidence was not applicable to this proceeding, it does provide a persuasive guide. See e.g., Vockie v. General Motors Corporation, 66 F.R.D. 57, 60 n.2 (E.D. Pa. 1975)).

Thus, for example, whether a point-of-operation hazard exists may be determined by examining injury records. See e.g., Buckeye Industries, Inc., No. 8454 (December 22, 1975). Whether a pile falls is probative of its former stability. Cf. Texports Stevedores Co. v. Secretary of Labor, 484 F.2d 465, 467 (5th Cir. 1973). The movement of soil may be referred to in determining its stability. D. Federico Co., Inc., No. 4395 (February 10, 1976). Whether a liquid burns is probative of its flammability. Equity Supply Co., 2 OSAHRC 245, 247 n.1, 1 BNA OSHC 1082, CCH 1971-73 OSHD para. 15,402 (No. 180, January 16, 1973). The absence of these occurrences, however, does not rule out findings of a hazard or instability or conclusions of the propertles of processes or materials. D. Federico Co., Inc., supra (slip op. at 8 n.8). Cf. Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230, 232-233 (5th Cir. 1974) (low injury tate; hazardousness found).

[*8]

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With regard to the allegations of noncompliance with 29 CFR 1926.601(b)(11), the uncontroverted evidence established that respondent's dump truck lacked the safety latches required to prevent accidental starting or tripping of the dumping mechanism. Respondent's employees operating or working near the vehicle were inevitably exposed to this violative condition. The location of the deceased employee is evidence of this fact. Accordingly, the respondent is found to have violated section 5(a)(2) of the Act for its failure to comply with 29 CFR 1926.601(b)(11). Further, it is clear that respondent's violation was "serious" within the meaning of section 17(k) of the Act. Failure to lock out the dumping mechanism could allow the accidental lowering of the dumping body and an employee trapped under that body would undoubtedly be seriously injured. Respondent, with the exercise of reasonable diligence, could have discovered the absence of a latch or other device on its vehicle. Indeed, it would not be unreasonable to infer that it did, in fact, know of the absence of a device to prevent accidental [*9] tripping of the mechanism.

Respondent must also be found in breach of safety standard 29 CFR 1926.601(b)(10). Respondent's truck did not have a positive means of support described by the standard. We emphatically reject the Judge's conclusion that as a condition precedent to a finding of noncompliance with section 1926.601(b)(10), n3a there must be maintenance or inspection work being performed at the time a dump body is not supported or locked in position. The clause "while maintenance or inspection work is being done" plainly does not modify the verb "equipped". It modifies the word "lowering". If this were not so, the word "permanently" would not have its ordinary meaning, because the protection could be transitory rather than changeless.

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n3a See note 1, infra.

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The use of the body supports and the locked controls is plainly not dependent or conditioned upon the performance of maintenance or inspection work. Again, if it were so dependent the word "permanently" would be deprived of its oridinary [*10] meaning.

This is a so-called performance standard. The performance required is the permanent installation of the supports and locks. The purpose of the performance is to prevent the accidental lowering of the dump body and the consequent danger to employees, particularly those doing maintenance or inspection work.

In this case, there was actual exposure to the hazard resulting from the violation. An employee was pinned between the dump body and the frame. As a result, he was injured and died. The violative condition was also clearly accessible to respondent's employees during any maintenance or inspection work required by 29 CFR 1926.20(b) n4 and 1926.601(b)(14), n5 as well as any other maintenance that may be reasonably expected to be performed. Gilles & Cotting, Inc., No. 504 (February 20, 1976) (on remand). Any employees of another employer that might be engaged in this work would also be entitled to safety protection from the employer creating the hazard. Brennan v. O.S.H.R.C. and Underhill Construction Corp., 513 F.2d 1032 (2d Cir. 1975); Clarkson Construction Co. v. O.S.H.R.C. and Secretary of Labor, No. 75-1070 (10th Cir., January 21, 1976).

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n4 Safety standard 29 CFR 1926.20(b)(2) provides:

1926.20 General safety and health provisions.

* * *

(b) Accident prevention responsibilities.

* * *

(2) Such [accident prevention] programs shall provide for frequent and regular inspections of the job sites, materials, and equipment to be made by competent persons designated by the employers (emphasis added).

n5 Safety standard 29 CFR 1926.601(b)(14) reads as follows:

1926.601 Motor Vehicles.

* * *

(b) General requirements.

* * *

(14) All vehicles in use shall be checked at the beginning of each shift to assure that the following parts, equipment, and accessories are in safe operating condition and free of apparent damage that could cause failure while in use: service brakes, including trailer brake connections; parking system (hand brake); emergency stopping system (brake); tires; horn; steering mechanism; coupling devices, seat belts; operating controls; and safety devices. All defects shall be corrected before the vehicle is placed in service . . . .

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We therefore find respondent to have violated the Act by its failure to comply with 29 CFR 1926.601(b)(10). We find this violation to have benn "serious" for the same reasons its failure to comply with 29 CFR 1926.601(b)(11) was a "serious" violation.

We turn to the assessment of a proper penalty. Section 17(j) of the Act requires the Commission to assess all civil penalties giving due consideration to their appropriateness with respect to the size of the business of the employer, the gravity of the violation, the employer's good faith, and history of previous violations.

Respondent is a small employer employing at the time of the investigation approximately five (5) people. The record reveals no previous violations. Respondent had no safety program, but otherwise acted in good faith. The gravity of both violations was high. Death or serious physical harm would be the substantially probable consequence of an accident of the type designed to be protected against by either standard. After consideration of the elements of section 17(j), we assess a $400 penalty for each violation.

Accordingly, it is ORDERED that the Judge's decision vacating the citations [*13] for serious violations issued to respondent is reversed and a $400 penalty for each violation is assessed.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

Judge O'Connell's treatment of the "reasonable promptness" issue was entirely proper. n6 In vacating the citations because the complainant failed to comply with the mandatory requirements of 29 U.S.C. 658(a) that each citation shall be issued "with reasonable promptness," he did exactly what the atatute mandates.

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n6 Since I agree with his rationale, I incorporate it by reference and and attach his decision hereto as Appendix A.

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Section 658(a) provides that if, upon inspection, the Secretary believes that an employer has violated a requirement of the Act, "he shall, with reasonable promptness issue a citation to the employer." The issue in this case, therefore, is whether a 35-day delay between inspection and issuance of the citation constitutes "reasonable promptness."

Section 658(a) resulted from a compromise between differing views which prevailed in Congress on the [*14] citation and abatement of hazardous working conditions. In the final stages of the legislative processes leading to enactment of this statute, the bill adopted by the Senate contemplated that the Secretary's representative would himself determine whether there was a violation and would issue the citation at the conclusion of his inspection while still on the employer's premises. The bill which had passed the House of Representatives contemplated an inspector with lesser authority. He would simply conduct an inspection while some other official would decide whether the conditions observed by the inspector warranted the issuance of a citation. Under the Senate bill, therefore, there was to be no elapsed time between inspection and citation and under the House bill there obviously had to be some but how much was left unanswered.

These differing versions were resolved by a conference committee which drafted the language which is now Section 658(a). In so doing, that committee reported the following to the Congress:

"The Senate bill provided that if . . . the Secretary determines that an employer has violated mandatory requirements under the Act, he shall 'forthwith' issue a [*15] citation. The House amendment provided that if . . . the Secretary 'believes' that an employer has violated such requirements, he shall issue a citation to the employer. The conference report provides that if the Secretary 'believes' that an employer has violated such requirements, he shall issue the citation with reasonable promptness. In the absence of exceptional circumstances any delay is not expected to exceed 72 hours from the time the violation is detected by the inspector." Report No. 91-1765, 91st Cong. 2d Sess., December 16, 1970, at 38 (emphasis added).

It is clear then that Congress used the term "reasonable promptness" to mean a period no longer than "72 hours from the time the violation is detected by the inspector" unless there are "exceptional circumstances." The record of this case, however, does not disclose any exceptional circumstances which would require any delay at all, let alone a delay 11 times greater than the period contemplated by the lawmakers.

Early abatement of conditions which are not in compliance with occupational safety and health standards is one of the principal purposes of this Act. This purpose can never be achieved so long as this [*16] Commission overlooks unexplained delays between inspection and issuance of a citation. It is my opinion that in the absence of any justification in the record, a delay which in this case amounted to a period of five weeks cannot be condoned.

Apparently, Messrs. Barnako and Cleary believe that permitting a hazardous condition to continue unabated is wrong and contrary to the Act except where the same was occasioned by the Secretary of Labor's delay in processing papers.

The 72-hour rule for citation-issuance, however, does not include [*17] any exceptions for paper-processing exercises or provide that it may be waived if employer-prejudice is not established in the record. Furthermore, it includes no requirement that an employer must be the party who initially raises the issue. n7 It is a clearly-stated requirement of law: The Secretary "shall" issue the citation "with reasonable promptness."

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n7 As the Judge mentions in his decision, he raised the issue before the respondent had retained legal counsel. Thereafter, at the hearing, respondent was represented by a lawyer who moved for the dismissal of the citations on the ground that their issuance had been untimely.

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In the instant case, the inspector completed his inspection on February 1, 1973, and his report on the following day. Thereafter, the report was sent to the regional solicitor's office on February 6, and it was not returned until 22 days later. When asked what aspect of the case necessitated the advice of the regional solicitor, the inspector replied that it is the regular procedure in [*18] Region 2 to submit all citations involving serious violations to the regional solicitor. Although it was not shown that any substantive changes in the proposed charges were made by the regional solicitor's office, the citations were not issued until March 8.

The explanation for the delay does not justify it, nor does it constitute "exceptional circumstances" under the Act. Although there may well be cases where some review by the Secretary's legal staff might be necessary and might warrant a limited delay, it is not necessary or excusable to route a report to the solicitor's office simply because an allegedly serious violation is involved.

Since the record establishes a delay of 11 times longer than Congress allowed and fails to establish "exceptional circumstances," the citation should therefore be vacated because of complainant's failure to comply with the reasonable promptness requirement of section 658(a). My views on this matter are set forth in additional detail in my dissenting opinions in Secretary v. Southern Railway Co., 20 OSAHRC 691 (1975); Secretary v. Couglan Construction Company, 20 OSAHRC 641 (1975); Secretary v. Underhill Construction Corp., [*19] 20 OSAHRC 534 (1975); Secretary v. E.C. Ernst, Inc., 14 OSAHRC 579 (1975); Secretary v. Advance Air Conditioning, Inc., 7 OSAHRC 736 (1974), Secretary v. Silver Skillet Food Products Company, 2 OSAHRC 662 (1973).

Finally, I must also register my disagreement with the majority's interpretation of 29 C.F.R. 1926.601(b)(10). If the drafters of that standard had intended that it apply to other than maintenance or inspection work, "they very easily could have and should have said so." Diamond Roofing Co. v. OSAHRC, No. 73-3704 (5th Cir., March 15, 1976). As the Circuit Court so correctly stated in Diamond Roofing:

"The purpose of OSHA is to obtain safe and healthful working conditions through promulgation of occupational safety and health standards which tell employers what they must do to avoid hazardous conditions. To strain the plain and natural meaning of words for the purpose of alleviating a perceived safety hazard is to delay the day when the occupational safety and health regulations will be written in clear and concise language so that employers will be better able to understand and observe them."

Not only have Messrs. Barnako and Cleary ignored the [*20] above, they misstate the law totally when they assert in their opinion that

"The employer's special duty to comply with section 5(a)(2) is not dependent on whether a failure to comply with a standard has or has not been the causative agent of injuries . . . ."

The law - as ennunciated by the U.S. Courts of Appeal is to the contrary. As was said in Brennan V. OSAHRC and Hendrix, 511 F. 2d 1139, 1145 (9th Cir. 1975):

"Fundamental fairness would require that one charged with and penalized for violation be shown to have caused, or at least to have knowingly acquiesced in, that violation."

APPENDIX A

DECISION AND ORDER

Francis V. LaRuffa, Regional Solicitor and David Reines, for Secretary of Labor

Joseph K. Greaney, for respondent

STATEMENT OF THE CASE

James P. O'Connell, Judge.

This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter referred to as "the Act") contesting two citations for serious violations issued by complainant against respondent under the authority vested in the Secretary of Labor by Section 9(a) of the Act.

The citations allege that as a result of an inspection of a workplace [*21] under respondent's ownership, operation or control located at the Lawrence Brook bridge, New Brunswick, New Jersey, the respondet, on January 31, 1973, violated Section 5(a)(2) of the Act by failing to comply with two occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.

The citations, each containing a single item, and a notification of proposed penalty were issued on March 8, 1973. Respondent by letter dated March 14, 1973, contested both citation and the penalties proposed thereon totaling $1,200.00.

The standards, allegations, and the proposed penalties involved in the contest are as follows:

Citation

Standard Involved

Description of Violation

Penalty

1.

29 CFR 1926.601(b)(10)

Dump Truck-6 wheeled

$600.00

This truck was not provided

with a permanently attached

positive means of support,

capable of being locked in

position while maintenance

or inspection was being

performed.

2.

29 CFR 1926.601(b)(11)

Dump Truck-6 wheeled

600.00

The operating levers controlling

the hoisting or

dumping devices on the

haulage body of this truck

were not provided with a

latch or other device which

would prevent accidental

starting or tripping of the

mechanism.

[*22]

The standards which are alleged to have been violated, as promulgated by the Secretary, provide as follows: 29 C.F.R. 1926.601 Motor vehicles

(a) Coverage. Motor vehicles as covered by this part are those vehicles that operate within an off-highway jobsite, not open to public traffic. The requirements of this section do not apply to equipment for which rules are prescribed in Section 1926.602.

(b) General requirements.

(10) Trucks with dump bodies shall be equipped with positive means of support, permanently attached, and capable of being locked in position to prevent accidental lowering of the body while maintenance or inspection work is being done. (Citation No. 1).

(11) Operating levers controlling hoisting or dumping devices on haulage bodies shall be equipped with a latch or other device which will prevent accidental starting or tripping of the machanism. (Citation No. 2).

At the hearing held herein at Newark, New Jersey, on July 17, 1973, the complainant's case consisted of certain stipulations entered into by the parties and the testimony of Charles Meister, an OSHA Compliance Officer. Respondent's case consisted of the testimony of Joseph H. Tizzio, a former mechanic [*23] and presently a salesman for the Dianem Company, sales representative and distributor of heavy equipment for Gar Wood Industries in the New Jersey area. No affected employees or authorized employee representative appeared in this proceeding. The filing of post-hearing briefs was waived by the parties. (Tr. 153-154).

JURISDICTION

Jurisdiction of this action and of the respondent under the Act is conceded. (Pleadings; Stipulation: Tr. 8-9).

ISSUES

A review of the pleadings filed herein including the Directions issued by the presiding Judge, and the record of hearing itself, all of which comprise the record (Tr. 49), reflects that two issues were raised in this proceeding. Those issues are: (1) whether the citations herein were issued with reasonable promptness as required by Section 9(a) of the Act; and (II) whether respondent violated the two contested standards, and if so, what penalties are appropriate therefore.

FINDINGS OF FACT

1. Respondent is a corporation organized under the laws of the State of New Jersey, and maintains a principal place of business at 24 Pink Street, Hackensack, New Jersey (Stipulation).

2. Respondent is an employer engaged in a business [*24] which affects commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act (Stipulation; amended answer: Tr. 9).

3. Respondent, at all times pertinent herein, was engaged in the business of constructing concrete works for roads, curbs and highways in the northern New Jersey area. It is comparable in size to similar companies of that type within its geographical vicinity, doing a gross business of over one million dollars for the year immediately preceding the alleged violations. It employs an average of 25 persons daily (Stipulation).

4. On January 30, 1973, on a construction project known as the Lawrence Brook Bridge, located at exit 9 off the New Jersey Turnpike, near New Brunswick, New Jersey, one of respondent's employees had a fatal accident (Stipulation; Tr. 52-53, 56). A six-wheeled dump truck owned and controlled by respondent was involved in the accident (Stipulation; Tr. 10, 54). Respondent on the day of the accident, reported the occurrence by telephone to the OSHA area office at Newark, New Jersey (Tr. 53).

5. On January 31, 1973, Charles J. Meister, an OSHA Compliance Officer, conducted an inspection of the above workplace (Tr. 52). [*25] The next day, February 1, 1973, at respondent's business office, he continued his investigation and held a closing conference with two of respondent's management personnel. At that time the standards cited herein were discussed and respondent was advised that Meister "contemplated giving (respondent) a violation for, . . ; 1926.601(b)(10) and (b)(11)" (Tr. 59). On February 2, 1973, Meister completed and turned in his report to his area office (Tr. 102).

6. The citations and notification of proposed penalty were issued to respondent on March 8, 1973, by mail from the OSHA area office at Newark, New Jersey (Pleadings). From February 1, 1973, the date of the closing conference, to March 8, 1973, the date of the issuance of the citations, excluding both of such dates, was a time lapse of thirty-four (34) days.

7. On February 1, 1973, complainant, in the person of his compliance officer, had formed a belief that respondent should be cited for serious violations of the two standards contested herein. More than three working-days elapsed between that date and the issuing of the citations. No exceptional circumstances have been shown of record for delaying the issuance of the citations [*26] beyond the three day period (Tr. 101-106).

8. There is no evidence of record showing what work was being performed, or what caused or precipitated the fatal accident to one of respondent's employees on the above worksite; nor is there any evidence establishing any employee exposure on January 30, 1973, to the hazards set forth in the cited standards.

9. The Secretary has failed to sustain his burden of proof by the required preponderance of the credible evidence that, either on January 30, 1973, or on January 31, 1973, the respondent violated the standards set forth at 29 CFR 1926.601(b)(10) and 29 CFR 1926.601(b)(11) as alleged in the citations issued herein.

OPINION

I

I am of the firm opinion that the issue as to whether the citations herein were issued with reasonable promptness as required by Section 9(a) of the Act falls squarely within the purview of the Review Commission's lead decision on this question in Secretary v. Chicago Bridge & Iron Company, 6 OSAHRC 244 (January 23, 1974) and subsequent Commission cases pertinent thereto.

The issue of reasonable promptness of the issuance of the citations was first raised in this proceeding by an order of this Judge, [*27] dated June 26, 1973, directed to the Solicitor to present evidence on the question at the hearing. The file herein reflects that the case was assigned to this Judge under date of June 14, 1973, and was received on June 19, 1973. The hearing was already scheduled to commence on July 17, 1973.

When the pleadings were reviewed, it was patently evident that respondent was not represented by a professional counsel, and that there was a noticeable lapse of time between the inspection held on January 31, 1973, and the issuance of the citation on March 8, 1973. No answer had been interposed by respondent in response to the solicitor's complaint filed on April 4, 1973. The case still being in the issue formulation stage of the proceeding, this Judge, initiated certain procedures. First, a Notice of Instructions to Participants was mailed to the parties on June 25, 1973, directing the exchange no later than July 9, 1973, of certain information relevant to the conduct of the hearing. The parties complied with this request. Secondly, because of the obvious lapse of time between the inspection date and the date of issuance of the citations, and for such additional reasons as are contained [*28] in the record of this proceeding (Tr. 41-48), an order, dated June 26, 1973, was directed to the Solicitor to present evidence at the hearing on the above question. n1 Lastly, an order, dated June 29, 1973, was directed to respondent to file its answer on or before July 9, 1973, as required by Review Commission Rule 33(b). An answer was filed on July 9, 1973.

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n1 The solicitor complied with such direction and the hearing record reflects the testimony (Tr. 101-106).

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A review of the evidence shows that an investigation of the fatal accident to respondent's employee was made by the compliance officer on January 31st and February 1, 1973. On the latter date a closing conference was held with respondent's management officials. At that time, as is evident from the statements of Mr. Meister, complainant, through this compliance officer, had made a determination that these two violations had occurred. In furtherance of such decision to issue the specific citations involved herein, the compliance officer on the next day, [*29] February 2, 1973, completed his report of investigation. However, it was not until March 8, 1973, that the citation was issued to respondent by mail and subsequently received in the normal course of postal delivery. Assuming for the sake of argument that the dates of February 1, 1973 and March 8, 1973, are excluded, there is a period of time between those two dates of 34 days. Assuming that the date of February 2nd is used, and, again excluding that date and the date of March 8th, there was a minimum lapse of 33 days.

The Review Commission in Chicago Bridge & Iron Company, supra, ruled that an unexplained 32-day delay between the OSHA inspection and the issuance of a citation was fatal so as to require a vacating of the citation. It was held that barring exceptional circumstances the "reasonable promptness" requirement of the Act meant a time period of three working days from the moment that OSHA had formed a belief that a violation had occurred. In this proceeding there was a lapse of from 33 to 34 days from OSHA's moment of decision.

The testimony by the compliance officer seeking to excuse the failure to issue the citation prior to March 8, 1973 is two-fold. First, [*30] the "completed report" was sent to the Solicitor's office on February 6th and was not returned until February 28th. Second, between February 28th and March 8th the OSHA area office was being moved and consequently clerical problems existed (Tr. 102-103). I am not persuaded however that such explanation constitutes "exceptional circumstances" to warrant a deviation from the application of the rule of law established in the above guideline case. I know of no provision of the Act or of any regulation which requires a review by the Solicitor's office of a determination by an OSHA area office that serious violations have occurred before a citation can be issued.

This Judge believes it was his responsibility and it was within his discretionary authority, especially where a respondent is acting without professional counsel, to raise such an issue as this prior to a hearing to afford complainant the opportunity of setting forth on the record any extenuating circumstances for any delay in issuing a citation in excess of 72 hours. cf. I am aware that the Commission has now indicated [*31] that a claim of failure to issue a citation with reasonable promptness is an affirmative defense to be proved by respondent. Secretary v. Chicago Bridge & Iron Company, supra; Secretary v. George V. Hamilton, Inc., OSAHRC No. 2567 (September 3, 1974). However, it must be noted that a Commission decision on the issue of "reasonable promptness", such as is contained in the Chicago Bridge & Iron Company case, was anticipated and discussed during the hearing held herein. Further, at the time the issue was first raised, respondent had not filed its answer and professional counsel had not yet appeared in this action. Respondent's counsel subsequently appeared and during the hearing moved at the conclusion of the complainant's case for a dismissal of the citations on this same issue (Tr. 108-110). A decision on the motion was reserved. The George V. Hamilton, Inc. case is clearly distinguishable on the facts from the procedure following in this proceeding.

I conclude therefore the complainant has failed to comply with the provisions of Section 9(a) of the Act n2 in that he did not issue the citations herein to the respondent with reasonable promptness. Accordingly, [*32] respondent's motion is granted. The citations for serious violations and any penalty proposed therefore should be vacated.

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n2 29 USC 658(a)

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II

Having made the above determination on the issue of reasonable promptness the remaining issue would normally be moot. However, I believe it appropriate to pass on the merits of the proceeding especially since such decision on the merits is not in conflict with the ultimate conclusion stated in the preceding paragraph.

The Review Commission has consistently ruled that in order to find & violation of Section 5(a)(2) of the Act there must be both noncompliance with the requirement of the cited standard and employee exposure. Secretary v. City Wide Truckpointing Service Company, OSAHRC No. 247 (May 24, 1973). This principle was reaffirmed in Secretary v. Martin Iron Works, Inc., OSAHRC No. 606 (July 1, 1974), when it was stated "that a respondent cannot be held liable for violation of 29 U.S.C. 654(a)(2) when none of its own employees were exposed to the [*33] non-complaint condition".

The burden to prove that respondent exposed its employees to the violative condition is upon the complainant. Secretary v. Ellison Electric, 1 OSAHRC 547 (1972). The preponderance of the evidence rule is required to establish a job safety violation in these proceedings. Secretary v. Armor Elevator Company, Inc., 5 OSAHRC No. 260 (1973).

The record of this hearing has been reviewed in considerable depth and nowhere contained therein is there any evidence as to how the accident to respondent's employee occurred or what caused the accident. The fact that there was an accident is undisputed. There is also no question that one of respondent's employees was killed on the construction site on January 30, 1973. The only evidence presented on the violation of the standards is the testimony of the compliance officer. In direct examination, Meister was asked if on January 31, 1973, he had a conversation with respondent's construction superintendent as to how the accident occurred. The witness answered in the negative (Tr. 57). The same witness, in being questioned about the closing conference, was again asked if he had engaged in a conversation [*34] with respondent's employer representative as to how this accident occurred. The answer given was non-responsive to the question (Tr. 58). No documentary proof such as police or accident reports or photographs were offered or received in evidence. An employee, Antonio Beites, was subpoened by complainant but was excused without being called to testify (Tr. 106-107). Thus all the Secretary has shown is that a fatal accident occurred. This is insufficient to carry the burden of proof imposed upon him. A citation is issued to force correction of an unsafe working condition. If the cause of the accident has not been determined, then what is the employer to correct? Complainant must show what caused the accident and that the cause was a violation of the standard cited. n3 The mere happening of an accident is insufficient to establish a violation of the Act. Secretary v. American Roof Slab Company, Inc., 1 OSAHRC 481 (1972).

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n3 Secretary v. Koppers Company, Incorporated, 1 OSAHRC 676-677.

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The failure [*35] of complainant to show what caused the accident is germane to the issue herein on the question whether complainant has sustained its burden of proof to show employee exposure to the hazards of the standard cited. Since no employee exposure has been shown, complainant's case must fall.

I am also of the view that there has been a failure of proof not only on the above item of employee exposure but I also find that complainant has failed to show that one of the standards itself has been violated. I refer specifically to the standard cited at 29 CFR 1926.601(b)(10). It is noted that this standard requires that a positive means of support must be equipped on trucks with dump bodies "to prevent accidental lowering of the body while maintenance or inspection work is being done" (emphasis added). A review of the testimony herein fails to show any evidence that at the time of the fatal accident to respondent's employee that maintenance or inspection work was being performed. There is no evidence in the record as to what the employee was doing at the time of his accident, when he was injured, and, most important, his connection to the vehicle involved, be it as driver, helper [*36] or maintenance man. The only evidence presented was that the compliance officer saw what appeared to be blood on the frame of the dump truck body and on the ground beneath that point and he was told "that this was where the man -- had been pinned between the dump body and the frame" (Tr. 56).

In my opinion, a condition precedent to the establishment of a violation of this standard is evidence of record that either maintenance or inspection work was being done at the time respondent's vehicle with a dump body was not being supported or locked in position to prevent accidental lowering of the dump body. This condition precedent is an essential element of the standard and failure to show such condition is a failure to show a violation of the standard. This essential fact cannot be inferred, implied or assumed absent direct evidence. The record herein is devoid of any such evidence.

While the citations and complaint herein allege violations to have occurred on January 31, 1973, it is clear from the proof adduced at the hearing that if any violations did occur, they occurred on January 30, 1973, the date of the accident to respondent's employee. While complainant has made no motion [*37] to amend its pleadings to conform to the proof, such failure could be corrected by this Judge making such amendment sua sponte herein. Rule 15(b) F.R.C.P.: see also Secretary v. Gerstner Electric, Inc., OSAHRC No. 997 (August 1, 1974).

A final comment must be made necessitated by the fact that a man met his death presumably as a result of an industrial accident. The natural reaction is to seek to penalize the employer for this occurrence. This cannot be done herein. A view previously expressed n4 by Chairman Moran I deem appropriate:

"This Commission, --, is not a court of conscience. It must interpret and apply the law as enacted by the Congress to the facts of the case as they are developed at hearing.

The facts of this case do not establish that this employer has violated the provisions of the Act under which it was cited."

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n4 Secretary v. Hidden Valley Corporation of Virginia, 1 OSAHRC 67.

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Accordingly, upon the merits of this proceeding, complainant having failed to sustain his [*38] burden of proof concerning the two contested citations, they, and the penalties proposed therefore, should be vacated. n5

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n5 The defense of impossibility of compliance, especially concerning the standard involved in citation no. 2, was raised by respondent during the hearing and is evidenced in the testimony of respondent's expert witness, Joseph H. Tizzio (Tr. 129-148). The validity of such a defense need not be decided. The point has become moot by virtue of the above determinations made on the reasonable promptness issue and the failure of the complainant on the merits to sustain his burden of proof as to the violation by respondent of the cited standards.

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CONCLUSIONS OF LAW

1. Respondent, at all times pertinent to this proceeding, was an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Act.

2. Respondent was subject to the requirements of the Act, including Section 5(a)(2), and the occupational safety and health standards promulgated thereunder.

3. The Occupational [*39] Safety and Health Review Commission has jurisdiction of the parties and subject matter herein.

4. The two citations issued to respondent herein on March 8, 1973, were not issued with reasonable promptness as provided by Section 9(a) of the Act. Said citations and the penalties proposed therefore should be vacated.

5. Respondent, on January 30, 1973 and on January 31, 1973, was not in serious violation of the standard codified as 29 CFR 1926.601(b)(10) as alleged in citation no. 1 herein and such citation and the proposed penalty assessed therefore should be vacated.

6. Respondent, on January 30, 1973 and on January 31, 1973, was not in serious violation of the standard codified as 29 CFR 1926.601(b)(11) as alleged in citation no. 2 herein and such citation and the proposed penalty assessed therefore should be vacated.

ORDER

Based on the foregoing Findings of Fact and Conclusions of Law, and upon the entire record of this proceeding, it is ORDERED that:

1. Respondent's motion for a dismissal and vacating of the two citations for serious violations for complainant's failure to issue such citations with reasonable promptness as required by Section 9(a) of the Act is granted. [*40]

2. The citation herein charging a serious violation of 29 CFR 1926.601(b)(10) and the proposed penalty of $600.00 assessed therefore, is vacated.

3. The citation herein charging a serious violation of 29 CFR 1926.601(b)(11) and the proposed penalty of $600.00 assessed therefore, is vacated.

JAMES P. O'CONNELL, JUDGE, OSAHRC,

Dated: Oct. 9, 1974

New York, New York