GARCIA CONCRETE, INC.

OSHRC Docket No. 2591

Occupational Safety and Health Review Commission

May 27, 1975

[*1]

Before MORAN, Chairman; and CLEARY, Commissioner

OPINION:

BY THE COMMISSION: A decision of Review Commission Judge John A. Carlson, dated December 4, 1973, has been before the Commission for review pursuant to 29 U.S.C. 661(i) for more than one year. Rather than further delaying the disposition of this case until a third member is appointed to the Commission, the Commission as presently constituted agrees to dispose of the case at this time.

The members of the Commission are equally divided on the Judge's disposition of the charge in this case. Accordingly, the Judge's decision is affirmed by an equally divided Commission. This decision, therefore, has no precedential weight. Neil v. Biggers, 409 U.S. 188 (1972).

Commissioner Cleary agrees with the findings and reasoning of the Judge. Chairman Moran would reverse the Judge because the evidence fails to establish that the respondent possessed actual or constructive knowledge of the alleged violation which occurred as a result of an employee's willful misconduct in disobeying the direct orders of the respondent's president. See Brennan v. OSAHRC and Raymond Hendrix, d/b/a Alsea Lumber Company, 511 F.2d 1139 (1975). [*2]

[The Judge's decision referred to herein follows]

CARLSON, JUDGE: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651, et seq., hereafter called the Act), contesting a citation issued by the Complainant against the Respondent under authority vested in Complainant by Section 9(a) of the Act. The citation alleges that as the result of an inspection of a workplace under the ownership, operation or control of the Respondent, located at Pueblo, Colorado, Respondent was determined to have violated Section 5(a)(2) of the Act by failing to comply with an occupational safety and health standard promulgated by the Secretary of Labor pursuant to Section 6 of the Act.

The citation which was issued on March 30, 1973, alleges that the violation was serious in character and resulted from a failure to comply with certain standards promulgated by the Secretary in 29 CFR 1926.

Pursuant to the enforcement procedures set forth in Section 10(a) of the Act, Respondent was notified on March 30, 1973, by the area director of the Denvor, Colorado office of the Occupational Safety and Health Administration of a proposal to assess a penalty [*3] of $700 for the alleged violation. A notice of contest was duly filed on behalf of Respondent. A complaint and answer were thereafter filed by the respective counsel for Complainant and Respondent.

The citation alleged violation of 29 CFR 1926.20(b)(4) and described the alleged violtion as follows:

The employer did assign and permit an employee who was not qualified by training or experience to operate a Michigan Payloader from a job site at 13th and Santa Fe Streets, Pueblo, Colorado, on or about March 19, 1973.

The citation called for immediate abatement.

The specific standard cited provides:

1926.20 General safety and health provisions. (b) Accident prevention responsibilities. (4) The employer shall permit only those employees qualified by training or experience to operate equipment and machinery.

The case came on for hearing at Pueblo, Colorado, on July 17, 1973. There were no appearances by any employees or their representatives.

It was agreed by the parties that at various points the pleadings refer to the date of alleged violation as having been March 19, 1973, whereas in fact, the proper date was in all cases March 15, 1973. All pleadings were hence [*4] deemed amended to reflect March 15, 1973.

The parties made opening and closing arguments but waived briefs.

STATEMENT OF THE ISSUES

The broad issues in this case may be stated thusly:

(1) Whether Respondent violated 29 CFR 1926.20(b)(4);

(2) Whether, if violation occurred, it was "serious" within the meaning of Section 17(k) of the Act; and

(3) In the event of violation, and depending upon its character as disclosed by the facts, what penalty, if any is appropriate.

FINDINGS OF FACT

The entire record herein supports the following findings of fact:

(1) Respondent, Garcia Concrete, Inc., is a corporation engaged in general concrete work with its principal place of business at Pueblo, Colorado (Complaint, Answer).

(2) Respondent at all times material hereto owned a front-end loader (specifically a Michigan Payloader), a piece of heavy construction equipment which was, at the commencement of the March 15, 1973, work day, located at a job site at "13th and I-25" in Pueblo, Colorado.

(3) The Payloader was needed on March 15, 1973, by Respondent on another of its job sites located at "19th and By-Pass 50" in Pueblo, a place approximately two miles distant from the I-25 site. [*5]

(4) A crew of three of Respondent's employees, Cirilo Lira, Pete Sena, and Frank Garcia, were to work at the By-Pass 50 site on March 15, 1973.

(5) On the morning of March 15, 1973, at times between approximately 7:00 a.m. and 7:30 a.m., the three above-mentioned employees, along with six or seven other crews, reported to Respondent's office or yard to receive their work assignments for the day. This was a customary procedure.

(6) Among the three men assigned to the By-Pass 50 job, Cirilo Lira, a cement finisher, was the "lead man" who was thus in charge of the crew with authority to direct the other members in their work. He had a duty to report failures by his men to perform their tasks or follow instructions. He was not considered at that the a "foreman" by Respondent's president, Clarence Garcia.

(7) Both Mr. Sena and Mr. Lira, who had worked for Respondent company for seven years and three and one-half years respectively, knew how to operate the Michigan Payloader.

(8) Frank Garcia, who was 17 years of age, had worked for Respondent as a laborer since August, 1972. He had driven the Michigan Payloader within the confines of Respondent's equipment yard or shop [*6] area under the direct supervision of Clarence Garcia, Respondent's president. Frank Garcia [not related according to any evidence of record to Clarence Garcia] was being trained to operate the front-end loader pursuant to equal employment opportunity provisions of a contract with the Colorado State Department of Highways which required on-the-job training programs. Trainees were not permitted to operate heavy equipment by Respondent without direct supervision of an experienced operator (Resp. Ex. 1, pp. 17-18).

(9) At an unspecified time before Frank Garcia's training proceeded past the limited point of merely driving the loader around the yard area and parking it in the garage, Clarence Garcia learned that Frank Garcia did not possess a Colorado driver's license and suspended the instruction. Frank Garcia had not as of that time operated a front-end loader on a job site or on a highway or learned to operate the bucket of the machine and had in fact been instructed by Clarence Garcia not to operate the Payloader. Clarence Garcia determines when a trainee is competent to operate heavy equipment.

(10) Clarence Garcia did not on March 15, 1973, consider Frank Garcia to be a competent [*7] operator of the Michigan Payloader.

(11) It is customary for Respondent to use laborers and cement masons whom it trains or who are already trained as heavy equipment operators. The company hires no equipment operators as such.

(12) On the morning of March 15, 1973, Mr. Lira arrived at Respondent's office or yard sometime between 7:00 a.m. and 7:15 a.m., where he was instructed by Clarence Garcia "to go to 13th and I-25 and pick up the front-end loader."

(13) Mr. Lira departed for such job site in his personal automobile, alone, leaving before Frank Garcia arrived at the office.

(14) Frank Garcia arrived at the I-25 job site in a pick-up truck driven by Mr. Sena.

(15) Mr. Lira directed Frank Garcia to drive the Michigan Payloader to the By-Pass 50 job site.

(16) Mr. Lira had not previously worked with Frank Garcia but had seen him "around." He had seen Frank Garcia drive the Payloader in question in Respondent's yard area but never at a job site. He was unaware that Frank Garcia did not possess a valid operator's license.

(17) The Michigan Payloader is a heavy piece of construction equipment which moves on four large wheels mounted with pneumatic tires. It is equipped [*8] with a large bucket or scoop (Photo, Compl. Ex. 3). The Payloader is steered by a steering wheel which turns the back wheels. The accepted way of driving such a front-end loader on a roadway is "backwards" with the bucket to the rear of the machine, thus placing the wheels turned by the steering wheel to the front. When being driven from place to place, the machine is difficult to steer and does not steer or operate as would a truck or automobile and tends to handle even less predictably when driven with the bucket to the front because of a weight distribution problem.

(18) At a time between 7:30 a.m. and 8:00 a.m. on the morning in question, Mr. Paul C. Wright, a motorist who was driving a pick-up truck in a westerly direction in the right or outside lane over the four-lane Eighth Street Bridge in Pueblo, saw what he recognized to be a front-end loader approaching from the opposite direction as it crossed over the center line dividing the two east-bound from the two west-bound lanes, in a direction which, if continued, would have caused it to collide with his truck. The loader then abruptly changed direction, crossed back into and over the east-bound lanes, and was [*9] observed by Mr. Wright in his side mirror to crash through the south guardrail and disappear from sight. The bucket was at the front of the loader as it approached the pick-up truck. Other vehicles were on the bridge at the time. Mr. Wright immediately proceeded to a service station at the west end of the bridge and telephoned the police. Mr. Wright had frequently crossed the bridge which was in "three sections," an up-ramp, a down-ramp, and a level section, each separated by expansion joints which cause a vehicle to "bounce" as it passes over.

(19) A police officer arrived at the scene of the accident shortly after its occurrence. The investigating officer was convinced by the results of his investigation that the driver of the loader had lost control when he struck an expansion joint on the bridge. The day was clear and the sun was shining. Other than the expansion joint, no obstructions were noted on the bridge. No other vehicles were discovered to have been involved. Measurements and personal observations of fresh skid and scuff marks, the break in the bridge rail, and the position of the loader below the bridge were given prominent consideration by the officer in his [*10] investigation. The officer had arrived at the scene within two or three minutes from 8:09 a.m., the time at which the accident report was transmitted to him. The morning traffic on the bridge at that time was "moderate." The posted speed limit on the bridge was 30 miles per hour, and the officer estimated that the loader's speed at the time of the loss of control was approximately 15 miles per hour.

(20) Respondent's president, Clarence Garcia, first learned that Frank Garcia was driving the Michigan Payloader after Mr. Lira had reported back to the office and told him that Frank Garcia had been instructed to drive the vehicle. This conversation took place shortly before either Mr. Lira or Clarence Garcia was informed of the accident.

OPINION

As counsel acknowledged during closing argument, there was no extensive disagreement as to the facts. The decision herein primarily involves an application of those facts to the cited standard. Respondent's counsel did contend that a significant question exists as to whether the decedent, Frank Garcia, was qualified to drive a front-end loader. The evidence, however, and particularly the admissions of the Respondent's president, [*11] answers this question in a decisive fashion. Frank Garcia did not possess the requisite skill and experience, when his limited training in the equipment yard was terminated, to operate the machine. This was the belief of the very man who supervised his training. No one quarrels with the proposition that the Payloader was a tricky machine to drive on a public highway. Why the loader went out of control when and where it did is not known with certainty. Perhaps, as Respondent suggests, whatever caused Frank Garcia to lose control and fall from the bridge would have caused an experienced operator to do so. As regards violation of the cited standard, however, such a consideration is of dubious materiality. The standard prohibits the operation of equipment by employees not "qualified by training or experience." The evidence shows the decedent to have been unqualified.

The violation which Complainant charged in this case was characterized as serious under Section 17(k) of the Act, which provides as follows:

For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm [*12] could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

This judge is convinced that the employer in this case possessed the knowledge requisite to satisfy the knowledge element of a serious violation. This is so despite the fact that Respondent's president, the individual shown by the facts to have exercised the ultimate authority to determine who was or was not qualified to operate heavy equipment, did not intend that Frank Garcia was to operate the equipment and had warned him not to do so. On the other hand, the man who was in effective control of the work crew, Mr. Lira, had never before worked with Frank Garcia, though he had seen him drive in the yard, and was instructed to "pick up the front-end loader." This was in a company where it was customary for laborers and masons to operate heavy equipment on the job. Under these circumstances, and in view of the decedent's youth, it is reasonable to conclude, as this [*13] judge does, that a substantial failure existed in the exercise of corporate responsibility down through the various levels of its management apparatus. As the lead man of the crew, Mr. Lira should have been made aware who was qualified to operate the Payloader. He was never told. Neither is there evidence that Respondent corporation, which customarily had several crews working at different locations, had any reliable or systematic way of informing lead men or foremen as to which masons or laborers were adequately trained equipment operators. In the case at bar, Mr. Lira, irrespective of his title, was the effective supervisor on the job. The knowledge of the higher level of management was imputable to Mr. Lira as the highest representative of Respondent at the work place. See Secretary of Labor v. Driscoll Construction Co., Inc., Thus, the corporate employer in the instant case, with the exercise of reasonable diligence, should have known of the presence of the violation.

A further requirement of Section 17(k) is proof of "substantial probability that death or serious physical harm" could result from the violation in order that it be considered "serious" [*14] within the meaning of that section. The Commission's construction of this requirement is set forth in the following language in Secretary of Labor v. Crescent Wharf and Warehouse Company,

It is our conlusion that the section requires proof of a substantial probability that the consequences of an accident resulting from a violative condition will be death or serious physical harm.

This decision and others make it clear that it is not incumbent upon the Secretary to prove existence of a substantial probability that an accident will occur but to prove that if one should occur, its probable consequence would be serious or fatal bodily harm.

Upon the record in the instant case, it is concluded that the Complainant has successfully carried his burden of proof on this issue. The mere fact of a fatal accident does not, of itself, establish the probability of such result in the event of accident. This stark result in the present case, however, coupled with what is deemed substantial evidence that the young and inadequately trained driver was operating without immediate supervision a large, heavy vehicle with deceptive or eccentric handling characteristics [*15] over a four-lane traffic route, part of which was a bridge, during a time of day when considerable traffic could be anticipated, is sufficient to show the violation serious in terms of the likelihood of death or serious injury.

Relative to penalties, Section 17(j) of the Act mandates that the Commission consider the gravity of the violation, the employer's size, good faith, and history of previous violations. The Commission has held that the most significant of these factors is the gravity of the violation. Secretary of Labor v. Nacirema Operating Company, Inc., In Secretary of Labor v. National Realty and Construction,

In arriving at the adjusted and unadjusted penalties proposed in the present case, Complainant's compliance officer appears, in essence, to have relied heavily upon the fact that a fatality occurred, merely stating that: "Serious violations normally start at $1,000 per item. This is as directed [*16] by law." Later, he acknowledged that internal guidelines of his agency, not "the law" so direct. A serious violation does not necessarily demand a heavy penalty. Secretary of Labor v. Standard Glass and Supply Co., The Commission and its judges have in several cases observed that the somewhat mechanistic formula employed by Complainant's agents in penalty assessment for serious violations can work injustice in individual cases. It is undisputed in the present case that Respondent has a good safety history, state and federal. Respondent was granted no credit for "good faith," based on what the compliance officer took to be a failure of the Respondent's president to give sufficient heed to factors leading to the specific violation alleged. No other factors were considered or explored. Most significantly, the record reflects that insufficient heed was paid, in this judge's view, to the fact that the evidence of record discloses but a single instance of violation, involving brief though tragic exposure to but one employee. There is no evidence that the decedent would have undertaken to operate the loader after arriving at the work site, thus [*17] possibly exposing fellow employees. Affirmative evidence discloses that Mr. Lira, the lead man, was made aware by Respondent's president even before the accident was reported -- but too late to prevent it -- that the decedent was not to be operating the machine. For these reasons, the $700 proposed penalty is deemed excessive; and under all the circumstances herein, a penalty of $400 is found reasonable.

CONCLUSIONS OF LAW

(1) That Respondent is an employer engaged in a business affecting commerce within the meaning of the Act and was, at all times material hereto, subject to the jurisdiction of this Commission (Complaint and Answer).

(2) That on March 15, 1973, Respondent violated 29 CFR 1926.20(b)(4) by assigning and permittimg an employee who was not qualified by experience or training to operate a front-end loader.

(3) That such violation was "serious" within the meaning of Section 17(k) of the Act in that Respondent corporation should have, with the exercise of reasonable diligence, known of such violation; and further in that the nature of the violation was such as to expose the employee involved to probable death or serious physical harm in the event of accident. [*18]

(4) That for the specific reasons discussed in the opinion portion of this decision, an appropriate penalty for the violation herein is determined to be $400, rather than $700 as proposed by Complainant.

ORDER

In accordance with the foregoing findings and conclusions, and upon the record in its entirety, it is hereby ORDERED:

(1) That the citation herein (as amended in regard to date of violation) is in all respects affirmed.

(2) That a civil penalty in the sum of $400 is assessed against Respondent in connection therewith.