SWEETMAN CONSTRUCTION COMPANY

OSHRC Docket No. 3750

Occupational Safety and Health Review Commission

March 2, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Henry Mahlman, Assoc. Regional Solicitor

James R. Becker, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

On October 8, 1974, Judge John J. Morris rendered his decision affirming in part a citation for a serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. (hereinafter "the Act"). On November 4, 1974, Commissioner Moran directed review of the Judge's decision. Submissions were invited on the following issues:

(1) Did the Judge rule correctly on the defense that the occupational safety and health standard codified at 29 C.F.R. 1926.28(a) was unenforceable?

(2) Was the said standard properly promulgated particularly in view of the wording changes made therein in December 1972?

Having considered the entire record, we affirm the Judge's order. n1

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n1 My own opinion is that the Commission lacks authority to decide the Constitutional question of vagueness inherent in the first issue, and to review the validity of rulemaking actions of the Secretary of Labor. My views on these matters are expressed fully in Carpenter Rigging & Contracting Corp., 2 BNA OSHC 1544, 1546-47, CCH 1974-75 OSHD para. 19,252 at 23,030 (No. 1399, February 4, 1975) (lead opinion); Divesco Roofing & Insulation Co., 1 BNA OSHC 1279, CCH 1973-74 OSHD para. 16,443 (No. 345, August 13, 1973) (concurring opinion); United States Steel Corp., 2 BNA OSHC 1343, 1345, CCH 1974-75 OSHD para. 19,047 at 22,773 (Nos. 2975 & 4349, November 14, 1975) (concurring opinion), and Santa Fe Trail Transport Co., 1 BNA OSHC 1457, 1460, CCH 1973-74 OSHD para. 17,029 at 21,707 (No. 331, December 18, 1973) (dissenting opinion), rev'd 505 F.2d 869 (10th Cir. 1974). In the absence of dispositive judicial guidance on these matters, however, I join in fully considering the directed issues.

[*2]

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Background of the Case

The hearing held in November 1973 concerned a citation issued during July 1973. Respondent was charged with a serious violation of section 5(a)(2) of the Act for failure to comply with 29 CFR 1926.28(a). This standard provides that:

1926.28 Personal Protective Equipment

(a) 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 (emphasis added).

The complaint alleged a failure by respondent to insure that two employees wore appropriate equipment (seat belts) where there was exposure to the hazard of falling from the open cabs of two scrapers. Both employees were operators of the scrapers. One was thrown from a scraper and killed in an accident on June 14, 1973. This fatality prompted an inspection of respondent's jobsite, at which time the OSHA compliance officer observed and spoke with another employee operating a scraper without wearing a seat [*3] belt.

Judge Morris ruled that no violation was established with respect to the fatality. The events immediately before the accident were clear, but no evidence indicated whether the deceased had been wearing a seat belt before the bulldozer began to go out of control. As the scraper deviated from its proper course, the deceased may have unhooked his seat belt in a attempt to jump from the vehicle.

As to the compliance officer's observance of an employer driving a scraper without wearing a seat belt, Judge Morris held that a violation had been established. The earth-moving vehicle had no enclosure around the cab, and the compliance officer could easily see that the seat belt located in the cab was not worn by the operator. Respondent's superintendent was present, but gave no instructions to the employee to fasten the seat belt. Respondent has a standing rule that seat belts are to be worn where provided, but this rule is not vigorously enforced. Judge Morris concluded that the violation was a serious one, but reduced the Secretary's proposed penalty of $550 to $100 due to the low probability of an accident occurring and respondent's demonstrated good faith.

Vagueness of [*4] 29 CFR 1926.28(a)

Respondent argues that the standard at issue is so vague and indefinite as to violate Constitutional due process protections against vagueness. The standard assertedly fails to give fair notice to employers of what conduct is required. In particular, the respordent argues that the term "personal protective equipment" used in the standard is narrowly defined by paragraph (b) of 29 CFR 1926.28. n2 Paragraph (b) notes that regulations pertaining to personal protective equipment are described in Subpart E of Part 1926. Since seat belts for earth-moving equipment are not explicitly mentioned in Subpart E, the respondent argues that the standard is unconstitutionally vague when applied to equipment to which the standard does not apply.

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n2 Section 1926.28 Personal Protective Equipment

(a) The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditons or where this part indicates the need for using such equipment to reduce the hazards to the employees.

(b) Regulations governing the use, selection, and maintenance of personal protective and lifesaving equipment are described under Subpart E of this part.

[*5]

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Respondent's argument lacks merit. On its face, personal protective equipment must be used where "there is an exposure to hazardous conditions or where this part [Part 1926] indicates the need for such equipment . . . (emphasis added)" 29 CFR 1926.28(a). Respondent's scrapers are earth-moving equipment that is plainly subject to 29 CFR 1926.602(a). The installation of seat belts on the scrapers is required by 29 CFR 1926.602(a)(2)(i). n3 This standard clearly "indicate[s] the need for such equipment" within the terms of section 1926.28(a). Paragraph (b) is useful in that it draws attention to several typical forms of personal protective equipment, but it does not confine the scope of subsection (a).

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n3 Section 1926.602 Material Handling Equipment.

(a) Earthmoving equipment; General (1) These rules apply to the following types of earthmoving equipment: scrapers, loaders, crawler or wheel tractors, bulldozers, . . .

(2) Seat belts. (i) Seat belts shall be provided on all equipment covered by this section and shall meet the requirements of the Society of Automotive Engineers, J386 -- 1969, Seat Belts for Construction Equipment . . .

[*6]

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The Commission has twice recently affirmed the validity of 29 CFR 1926.28(a). Isseks Bros., Inc., CCH Employ. Saf. & H. OSHD Para.    , 3 BNA OSHC     (No. 6415, January 29, 1976) and Otis Elevator Co., CCH Employ. Saf. & H. OSHD para. 20,159, 3 BNA OSHC    , (No. 1184, November 17, 1975) are dispositive as to the issue of the standard's validity. n4 Within the meaning of the standard, a condition is "hazardous" if it has a direct and immediate adverse effect on safety and health which is not so remote as to be nearly negligible. Isseks Bros., Inc., supra. Respondent's standing rule that seat belts be worn where provided evinces a clear recognition that the use of earth-moving equipment over uneven terrain posed the "hazardous condition" that an operator might fall or be thrown from the equipment. The use of seat belts as an "appropriate" means of eliminating the "hazardous condition" is equally apparent. Consequently, respondent cannot argue persuasively that the standard failed to apprise it of what steps were required under the circumstances present at its workplace.

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n4 See Coughlan Constr. Co., CCH Employ. Saf. & H. OSHD para.    , 3 BNA OSHC 1636, (Nos. 5303 & 5304, October 28, 1975) (Cleary, Commissioner, concurring); Eichleay Corp., 1973-1974 CCH OSHD para. 16,811, 2 BNA OSHC 1639, (No. 2610, October 16, 1973).

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Validity of 29 CFR 1926.28(a)'s Adoption

An argument disputing the validity of the standard's adoption was first raised by the direction for review. Although the issue was briefed by respondent on review, we question the appropriateness of considering the issue at such a late date. n5 See Puterbaugh Enterprises, Inc., 9 OSAHRC 718, 1973-1974 CCH OSHD para. 18,158, 2 BNA OSHC 1030, (No. 1097, July 1, 1974). The issue, however, can be quickly disposed of because it was considered and resolved by Eichleay Corp., CCH 1974-75 OSHD para. 19,324, 2 BNA OSHC 1635 (No. 2610, 1975). The Commission held that the minor word change made in the standard in December 1972 was not substantive in nature. As a result, the amended standard was lawfully adopted. [*8]

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n5 My own view is that we have no jurisdiction to consider the issue under any circumstances. U.S. Steel, supra (concurring opinion).

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Conclusion

On the merits of the case, we agree with Judge Morris that respondent failed to require the use of appropriate personal protective equipment. We further agree with his reasoning that the violation was a serious one, and that respondent's good faith and the gravity of the violation merit a reduction in the proposed penalty.

Accordingly, it is ORDERED that the decision of the Judge be affirmed.

CONCURBY: BARNAKO

CONCUR:

BARNAKO, Chairman, Concurring:

I concur but do not join in Commissioner Cleary's discussion of the vagueness and validity issues. As Judge Morris noted, respondent had actual notice that the cited standard read in conjunction with 29 C.F.R. 1926.602(a)(2) requires the use of seat belts. That is sufficient to dispose of the vagueness issue.

As to the validity issue, I agree that the decision in Eichleay Corporation, 15 OSAHRC 635, 2 OSHC 1635, OSHD para. [*9] 19,324 (1975) is controlling. As was said there "the word 'or' should receive the same reading as the initial word 'and'." Id at n. 1. Alternatively, it can be argued that the change in terminology was substantive and ineffective because it was not made in accordance with 29 U.S.C. 655(b). The original standard remains intact under the alternative argument, and the initial clause of the cited standard must be read in conjunction with the terminal clause. The effect of both arguments is the same.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

In this case the employer is held to be in violation of an invalid occupational safety and health standard. The standard is invalid because the Secretary of Labor had no statutory authority to make the change in the wording of 29 C.F.R. 1926.28(a) without observing the procedural and public scrutiny requirements of 29 U.S.C. 655(b). Since those requirements admittedly have not been satisfied, the present version of the standard, in which the word "or" is substituted for the word "and," is invalid. I have made this point on numerous occasions. [*10] Secretary v. Island Steel and Welding, Ltd., 17 OSAHRC 143, 144 (1975); and Secretary v. Carpenter Rigging and Contracting corporation, 15 OSAHRC 400, 409 (1975).

Both Mr. Cleary and Mr. Barnako attempt to sustain this standard despite the procedural irregularities in its promulgation by taking the rather preposterous position that the word "or" should receive the same reading as the word "and." In their contorted logic, Patrick Henry's well known declaration "Give me liberty or give me death" means the same as "Give me liberty and give me death." Its been obvious to me for some time now that my colleagues will strain mightily to uphold whatever position the Secretary of Labor advances before this Commission. The position taken here however convinces me that whenever the Secretary argues that up is down or black is white, he will have two members of this Commission who will agree.

It is clear that the word "or" was never validly substituted for the word "and" in the standard at issue in this case. It is also true that where the modified version of a standard is invalid, it does not repeal the original standard. See 1A Sutherland Statutory Construction 23.24 [*11] (4th ed. C. Sands rev. 1972). Consequently, the original version of 29 C.F.R. 1926.28(a) n6 remains in force and effect. n7

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n6 36 Fed. Reg. 7347 (1971) as adopted by 29 C.F.R. 1910.12, 36 Fed. Reg. 10469 (1971). The standard originally designated as 29 C.F.R. 1518.28(a), was redesignated as 29 C.F.R. 1926.28(a) on December 30, 1971. 36 Fed. Reg. 25232 (1971).

n7 Chairman Barnako contends that the effect of this position is the same as that which is reached by reading the word "and" to mean "or." However, since he affirms the violation in this case, he can only reach that conclusion by agreeing with the strained reasoning in Secretary v. Carpenter Rigging and Contracting Corporation, supra, that because "and" can mean "as well as" it also means "or." For the reasons recently enumerated in Secretary v. Isseks Brothers, Incorporated, supra, I cannot agree with such ridiculous reasoning, nor would any other reasonable person.

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To establish a violation under the original and only valid version [*12] of the standard, proof of the following two things is required:

(1) exposure to a hazardous condition warranting the use of personal protective equipment, and

(2) failure to use this equipment when its use is required elsewhere in Part 1926 of the regulation.

Secretary v. Island Steel and Welding, Ltd., supra. Therefore, to establish a violation of the standard in this case it must be shown that another standard within Part 1926 required respondent's employees to use seat belts.

The complainant urges and my colleagues agree that 29 C.F.R. 1926.602(a)(2)(i) is apposite. n8 However, this standard requires only that "[s]eat belts shall be provided on all" earthmoving equipment. (Emphasis added.) There is nothing therein which requires the use of seat belts. In effect, the matter of when to use a seat belt is left to the good judgment and discretion of the individual operator.

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n8 The lead and concurring opinion rely on 1926.601(a)(2)(i) to support the conclusion that 1926.28(a) is not vague. That position is not well-taken. Section 1926.28(a) states that wearing of personal protective equipment is required "where this part indicates the need for using such equipment." (Emphasis added.) Since 1926.602(a)(2)(i) only requires that seat belts be provided, in what sense does it clarify 1926.28(a)? I submit that, rather than clarifying 1926.28(a) as interpreted by my colleagues, it contributes to the vagueness of 1926.28(a) by misleading employers. If the Secretary of Labor intended to require the use of seat belts, it would have been an easy matter for him to have so stated in clear language, and it is my opinion that he would have done so, rather than misleading employers into believing that it is only necessary for them to provide seat belts.

[*13]

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There is no evidence that any of the respondent's earthmoving equipment was not equipped with seat belts. To the contrary, the evidence shows that the equipment involved in the alleged violation was equipped with seat belts. Since neither 1926.602(a)(2) nor any other standard in Part 1926 requires that seat belts be used, the citation should be vacated.

In order that the full text of Judge Morris' opinion may be known, I attach the same hereto as Appendix A.

William J. Kilberg, Solicitor of Labor, T. A. Housh, Jr., Regional Solicitor, Henry C. Mahlman, Associate Regional Solicitor and John B. Renick, for the Secretary of Labor

James R. Becker, for the Respondent

APPENDIX A

DECISION AND ORDER

STATEMENT OF THE CASE

John J. Morris, Judge, OSAHRC

This is a proceeding pursuant to 29 USC 659(c) for an adjudication under the Occupational Safety and Health Act of 1970, (29 USC 651, et seq, hereafter called the Act). Respondent is contesting a citation issued by Complainant under the authority vested in Complainant by 29 USC 658.

The citation alleges that on June 25, 1973 Complainant inspected [*14] a workplace described as involving the construction of Interstate 90 and located 90 miles south of Chamberlain, South Dakota.

It is further alleged that on the basis of the inspection at the avove workplace Respondent violated 29 USC 654(a)(2) of the Act by failing to comply with an occupational safety and health standard promulgated by Complainant, pursuant to 29 USC 655. Abatement immediately upon receipt of the citation was proposed.

The contested citation was issued on July 3, 1973 and it is alleged that the standard violated was published in the Code of Federal Regulations as hereinafter noted.

The description of the serious violation alleged in citation number one states as follows:

Prior to June 25, 1973, the employer failed to require the wearing of appropriate personal protective equipment (seat belts) by employees operating two caterpillar scrapers where there was an exposure to hazardous conditions.

The citation alleges that the standard violated is codified at 29 CFR 1926.28(a).

The foregoing standard as promulgated by the Secretary provides as follows:

1926.28 Personal protective equipment.

(a) The employer is responsible for requiring the wearing of appropriate [*15] 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.

Pursuant to the enforcement procedure as set forth in 29 USC 659(a) of the Act, the Respondent was notified by letter dated July 3, 1973 from Vernon Strahm, the Area Director for the Occupational Safety and Health Administration, U.S. Department of Labor; the Area Director proposed to assess a penalty for the violation alleged in this paragraph in the amount of $550.

After Respondent contested this enforcement action, and a complaint and an answer having been filed by the parties, the case came on for hearing in Sioux Falls, South Dakota on November 2, 1973. The transcript of the proceedings fails to indicate that the notice of hearing was posted (Tr. 5); however, a post trial was entered appraising all affected employees of the status of the case and advising said employees of an opportunity to participate or offer evidence. The order above described was duly posted and no affected employees elected to participate or intervene in the proceedings.

STATEMENT OF JURISDICTION [*16]

Respondent, a South Dakota corporation, admits it is an employer within the terms of the coverage of the Act engaging in construction projects within and without the state of South Dakota (Tr. 5-6). Accordingly, the Review Commission has jurisdiction of the subject matter of this litigation.

COMPLAINANT'S EVIDENCE

On June 14, 1973 a federal compliance officer learned of a fatality at a construction site of respondent; on June 25, 1973 the worksite was inspected (Tr. 13-16). Complainant's citation alleges a violation of the standard requiring the wearing of appropriate personal protective equipment by employees on two separate occasions (citation; Tr. 37).

Respondent was engaged in the construction of a portion of interstate highway 90 when employee Nelson was operating a GM terex scraper (Tr. 17-18). On the date of the fatality Nelson was operating this equipment downslope when he observed employee Boen's 637 caterpillar scraper out of control (Tr. 17-18). Nelson took evasive action but was struck broadside and slightly from the rear (Tr. 17-18). The parties stipulated that Boen's body was found on the ground outside of the cab of his earth moving equipment (Tr. 6). Complainant's [*17] exhibit 1 is a drawing by the compliance officer showing the relative movement of the caterpillar and the GM terex and the star on the exhibit indicates the position of the deceased; the diagram further indicates the skid marks by both vehicles. The death certificate indicated that Boen died as a result of a skull fracture (Compl's. Ex. 2).

On the date of the inspection the compliance officer talked to employee Nelson, (operator of the GM terex). During the conversation with Nelson the compliance officer observed that Nelson was not wearing his seat belt nor had he been wearing it when he drove up in the equipment (Tr. 21-22, 31-32). At that time he was operating a caterpillar similar to the one that Boen had been operating (Tr. 21-22). Nelson drove away with the seat belt unfastened (Tr. 23). There was no enclosure around Nelson's seat and the compliance officer could see the entire seating area from his position standing on the ground (Tr. 32-33). During this conversation with Nelson, Respondent's superintendent, who had accompanied the compliance officer, did not direct Nelson to fasten his seat belt and there was no reprimand (Tr. 22, 23). Nelson advised the compliance [*18] officer that it was uncomfortable and it made the upper half of his body sore to use the seat belt (Tr. 33, 44) as the earth moving equipment has a good deal of shaking motion (Tr. 34). Apparetly the company policy is that seat belts are required to be worn, but this rule is not strictly enforced (Tr. 34). In the opinion of the compliance officer it would be possible to wear a seat belt on this equipment sufficiently loose to maintain protection from being injured if there was a roll over (Tr. 42).

Nelson indicated there are times when the seat belts are not worn and this has occurred in view of the company job superintendent (Tr. 44-45). They had never been told to put on a seat belt and never reprimanded, nor to Nelson's knowledge had anyone else ever been reprimanded (Tr. 45). Nelson stated that to be reasonably comfortable the seat belt must be 4 to 5 inches loose because when operating the machine you are turning backwards 90% of the time as the bucket is to the rear (Tr. 47). The compliance officer claimed there were two instances of violation namely, the fatality, and his observations of employee Nelson (Tr. 24). He defined serious violation in accordance with his OSHA [*19] procedure, that is, as any violation in which an accident is likely to cause death or serious physical harm, which Respondent with reasonable diligence should have known Tr. 25). The compliance manual establishes a serious penalty at $1,000 (Tr. 26) and the proposed penalty was $550 after allowing respondent 20% for good faith, and history and 5% for size (Tr. 26-27).

RESPONDENT'S EVIDENCE

Respondent offered its safety manual and the receipt thereof signed by employees (Tr. 54; Resp's. Ex. A, B) together with documents relating to safety matters (Resp's. Ex's. C thru P).

A safety engineer was a consultant to respondent on OSHA matters and respondent had set up safety policies and makes periodic job inspections (Tr. 56, 57, 58). The safety manual states that employees must wear safety belts when they are provided and this regulation had been made known to respondent's employees (Tr. 59). The supervisors of other projects had been advised that safety belts were not being worn (Tr. 60; Compl's. Ex. C & D); and in March of 1972 correspondence to the job superintendent at another jobsite had reminded him of the necessity of wearing seat belts (Tr. 62; resp. ex. H). Respondent's [*20] safety engineer prepared safety talks. Respondent's written safety talks were evidenced by exhibits J through P and these talks had been culled out from others as they make some reference to the wearing of seat belts (Tr. 63-64) He futher indicated he was familiar with the OSHA standards (Tr. 64). On several occasions there had been directives that the truck drivers should be reminded about wearing seat belts (Resp's. Ex. C, F, M, N; Tr. 64-65, 66). From the combination of the present protective equipment standard and from 29 CFR 1926.602(a) respondent's safety engineer, an independent consultant, made a determination that seat belts are required (Tr. 69).

Respondent's president (Tr. 77) indicated that if a foreman receives a letter addressed to a particular problem he is to correct the situation as he sees fit (Tr. 79). No written reprimand had ever been issued nor had anyone ever been fired or sent home as a result of failure to wear seat belts (Tr. 80).

ISSUES PRESENTED

1. Respondent argues that the regulation contained in 29 CFR 1926.28(a) under which respondent was cited relates to personal protective equipment and sub-paragraph (b) thereof refers to regulations governing [*21] and use, selection and maintenance of personal protective and lifesaving equipment which are described under sub-part E of part 1926; seat belts are not defined or referred to either in section 1926.28 or under sub-part E; the only reference to seat belts in the regulations appears in sub-part 0 of part 1926 and specifically in section 1926.602(a)(2); and the application of section 1926.602 to section 1926.28 would violate due process requirements of the United States Constitution in that such application would constitute regulation which is so vague, indefinite and uncertain as to be unconstitutionally void as applied to the facts of this case. Complainant argues a contrary view.

2. Respondent argues that the Secretary has failed to sustain his burden of proof, in that he has failed to prove, by substantial evidence, that respondent has violated the standard set forth in section 1926.28(a); further, respondent argues that the proposed penalty is unreasonable. Complainant argues that the proposed penalty is reasonable and proper and that it should be affirmed.

3. Complainant contends that the violation should be denominated as one of a serious nature under the terms of the Act. [*22]

DISCUSSION

It should be noted from the outset that respondent's safety engineer (Tr. 56), a safety consultant on OSHA (Tr. 57) wrote a safet, manual stating that employees must wear seat belts when they were provided (Tr. 59). The safety expert's inspections and directives to supervisory personnel noted that the drivers were not wearing seat belts at all times (Tr. 60, 62; resp. ex. J through P). The safety engineer indicated that he was familiar with 29 CFR 1926.28(a) as well as 29 CFR 1926.602(a)(2) (Tr. 64-65); he made a determination as respondent's safety director that seat belts are required (Tr. 69). In this case it must be concluded that respondent had no problem with vagueness. On the issue of personal protective equipment the U.S. Court of Appeals for the 5th Circuit in July, 1974 ruled the regulation was not unduly vague in the case of Ryder Truck Lines, Inc., v. Brennan, 497 F2d. 230. To like effect is a decision of the U.S. Court of Appeals for the 4th Circuit decided September 4, 1974    F2d    in the case of McLean Trucking Company v. Occupational Safety and Health Review Commission, et al, Docket No. 73-2392. Respondent's contention that the standard [*23] is unconstitutionally vague is denied.

The second contention that the secretary has failed to prove a violation of the standard is denied. On June 25, 1973 the compliance officer talked to employee Nelson who was not wearing the seat belt. Respondent's superintendent was present, but did not direct Nelson to fasten his seat belt (Tr. 22) and he drove away with the belt unfastened (Tr. 23). There was no enclosure around Nelson's seat and it could be seen by the compliance officer (Tr. 32). Nelson himself indicated that there are times when the seat belt is not worn and this occurred in the view of the job superintendent (Tr. 44-45); he had never been directed to put it on nor was he ever reprimanded, nor had anyone else ever been reprimanded (Tr. 45). The evidence is clear that a violation occurred on the date of the inspection. As to the alleged violation involving Boen on June 14, 1973 the evidence pertaining thereto fails to sustain a violation. The evidence shows that Boen was found on the ground outside the cab of his earth moving equipment (Tr. 6; compl's. ex. 1). Eyewitness Nelson advised the compliance officer that his equipment was struck broadside and slightly from [*24] the rear by Boen's caterpillar (Tr. 17-18). Caterpillar 637 operated by Boen was apparently out of control and deviating from its normal path of travel when observed by Nelson (Tr. 18).

It is this Judge's view that the foregoing evidence fails to establish a violation by Boen of the regulation pertaining to seat belts. Boen's caterpillar for one reason or another may have gone out of control and in the exercise of reasonable care for his own safety Boen may have unhooked his seat belt to jump from the caterpillar. To find a violation of the seat belt regulation by Boen would require finding based on speculation, conjecture and guess work.

An additional issue raised by respondent is that complainant has failed to sustain his burden of proof in that he failed to prove by substantial evidence that the proposed penalty is reasonable under the circumstances. Complainant contends that the proposed penalty is reasonable and that the facts constitute a serious violation under the terms of the Act.

We will first consider whether this is a serious violation as asserted by complainant. In a number of cases the Review Commission in construing 17(k) of the Act [29 USC 666(j)] has ruled [*25] that a serious violation is established if there is a possibility of an accident which, if it occurs, creates a substantial probability that death or serious injury would result. Accordingly, Respondent's violation of this standard is ruled to be a serious violation under the terms of the Act.

The issue of the probability of an accident occurring has been ruled by the Review Commission to be relevant to the gravity of the violation in the process of assessing an appropriate civil penalty. In a different factual situation (uneven terrain for example) complainant might well establish greater probability of an accident occurring, but it is not established on this record. In the case of Secretary v. Nacirema Operating Company, Inc., 1 OSAHRC 33, the Review Commission set forth the directives to be considered in assessing a penalty in conjunction [*26] with the statutory mandate, as set forth in 29 USC 666(i). In evaluating the evidence independently from the evidence of the complainant it is apparent here that respondent has evidenced a high degree of good faith in connection with its safety program. It is this Judge's view that a civil penalty in the amount of $100 is appropriate under the circumstances of this case.

FINDINGS OF FACT

1. Respondent admits that it is an employer under the terms of the Occupational Safety and Health Act of 1970 engaged in the construction business both within and without the state of South Dakota having approximately 200 employees (Tr. 5-6).

2. On June 25, 1973 respondent's employee was not wearing a seat belt in the operation of caterpillar earth moving equipment (Tr. 16, 21-22).

3. On the above occasion superintendent did not direct the employee to fasten his seat belt and he drove away with the belt unfastened. (Tr. 22-23, 32-33)

4. The record fails to establish the probability of an accident occurring and in view of respondent's high degree of good faith and prior history the proposed civil penalty of $550 is deemed excessive. (Totality of Record)

CONCLUSIONS OF LAW

1. [*27] Respondent is and was at all times relevant to the issues herein, engaged in a business affecting commerce within the meaning of section 3 of the Occupational Safety and Health Act of 1970 [29 USC 652] (Facts 1).

2. Respondent is, and was at all times herein mentioned, an employer within the meaning of 29 USC 652(5) subject to the provisions of 29 USC 652, 29 USC 653 and 29 USC 654 and the standards promulgated under 29 USC 655 (Facts 1).

3. Respondent violated 29 CFR 1926.28(a) and citation 1, item 1 should be affirmed (Facts 2, 3).

4. A proposed penalty of $550 for the violation established in the preceding paragraph is excessive and it should be reduced to $100 (Facts 4).

ORDER

Based on the foregoing findings of fact and conclusions of law hereby ADJUDGED AND ORDERED that:

1. Citation number 1 for the alleged serious violation of 29 CFR 1926.28(a) is affirmed.

2. The proposed civil penalty of $550 for the violation established in the preceding paragraph [*28] is vacated and a civil penalty in the amount of $100 is assessed in lieu thereof.

So ORDERED in the city and county of Denver, Colorado.

John J. Morris, Judge, OSAHRC

Dated: OCT 8 1974