UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 76-4105
GERARD LEONE & SONS, INC.,
Respondent.

April 27 1981

DECISION

Before BARNAKO, Acting Chairman; CLEARY, and COTINE, Commissioners.

BY THE COMMISSON:

This case[1] arises out of a citation charging Gerard Leone & Sons, Inc. (“Gerard Leone” or “the company”) with violating the standards at 29 C.F.R. §§ 1926.601(b)(10) and (11)[2] by operating a dump truck not equipped with permanently attached means of support for the dump body with safety latches or other devices capable of preventing accidental release of the dump body. The question for decision is whether the cited standards apply to vehicles operated on a highway open to public traffic.

Gerard Leone does not dispute that the dump truck in question was not equipped with the safety devices required by sections 1926.601(b) (10) and (11). The company argues, however, that the truck was not subject to the cited standards because it was being operated on a highway open to public traffic.[3] Gerard Leone contends that the coverage provision at section 1926.601(a)[4] limits the applicability of the cited standards to vehicles being operated on off-highway jobsites.

Administrative Law Judge Abraham Gold ruled that the standards at section 1926.601 are not limited to vehicles being operated within an off-highway site closed to public traffic. He concluded that the emphasis of the coverage provision is on type of vehicle rather than on location of operation and that section 1926.601 applies to vehicles which “generally” operate at sites not open to public traffic. By affirming the citation, Judge Gold implicitly ruled that Gerard Leone’s dump truck is one generally operated on off-highway job sites. [5]

On review Gerard Leone argues that “serious constitutional problems would be presented if it were to be determined that this standard should apply to such a highway job when the very clear and express terms of the standard led Respondent to believe that highway jobs open to public traffic were excluded.” The company suggests that the standard is limited to off-highway jobsites because both the Department of Transportation and the various state agencies have issued extensive safety regulations covering the operation of motor vehicles on highways. The company also contends that even under the judge’s reading of the coverage provision the dump truck was excluded from the requirements of sections 1926.601(b)(10) and (11), because Judge Gold specifically found that at the relevant times it was operated on the public street and there is no evidence in the record that it was used on off-highway jobsites on any other occasion. [6] The Secretary of Labor (“the Secretary”) relies on the judge’s decision.

We agree with Judge Gold that the coverage provision at section 1926.601(a) limits the standard’s applicability by vehicle and not by location, and that section 1926.601 does apply to this particular dump truck. We do not, however, agree with the judge’s determination that the standard applies to “vehicles which generally operate at sites not open to public traffic.” Rather, we conclude that the standard applies to trucks that operate off highway even if they do not operate exclusively off highway, regardless of where they are generally operated or where they are operated at a particular time.

The first sentence of subsection 601(a) expressly applies to “those vehicles that operate off highway,” while the second sentence specifically excludes “equipment for which rules are prescribed in section 1926.602.” Section 1926.602, entitled “Material Handling Equipment” applies to, among other things, trucks that operate exclusively off-highway[7]. This indicates that trucks that operate exclusively off-highway are not covered by section 601. It follows, therefore, that section 1926.601 applies to trucks that operate both on and off highway. Moreover, the standards at section 1926.601 contain several provisions that clearly contemplate use of the regulated vehicles on the highway: subsection 601(b)(6) applies to haulage vehicles, and subsection 601(b)(8) applies to vehicles used to transport employees. In Durant Elevator, a Division of Scoular-Bishop Grain Elevator, 80 OSAHRC __ ,8 BNA OSHC 2187, 1980 CCH OSHD ¶24,873 (No. 77-1518, 1980), the Commission vacated a citation based on the cited standard’s exemption for farm vehicles. The Commission ruled that the definition of farm vehicle equipped applied to the cited vehicle and precluded coverage despite is operation on public highways. Just as use of the vehicle in Durant on the highway does not change its character as a “farm vehicle”, the standard inapplicable to a vehicle that meets the standard’s coverage requirement, i.e., use off highway.

From this it is evident that the standards at section 1926.601 are intended to protect employees on construction sites from the hazards of unsafe motor vehicles regardless of the on- or off-highway character of the site. It is axiomatic that standards should be interpreted to effectuate rather than frustrate their underlying intent. Marshall v. Southwestern Industrial Contractors & Riggers, Inc., 576 F2d 42 (5th Cir., 1978); GAF Corp., 73 OSAHRC 3/A2, 3 BNA OSHC 1686, 1975-76 CCH OSHD ¶ 20,163 (No. 3202, 1975) aff’d, 561 F.2d 913 (D.C. Cir. 1977). Accordingly, we hold that section 1926.601 applies to motor vehicles (as opposed to material handling equipment) used on construction sites regardless of whether they are being used on or off highway at any particular time.

In view of our holding that section 1926.601 applies to trucks that can operate both on and off highway regardless of their actual or general use or the location where they are operated at any particular time, Gerard Leone’s argument that the record contains no evidence that the cited truck was ever used –off-highway becomes inapposite. [8]

Accordingly, we affirm the judge’s decision. SO ORDERED.

/s/ Ray H. Darling, Jr.

EXECUTIVE SECRETARY

BARNAKO, Acting Chairman, dissenting:

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 76-4105
GERARD LEONE & SONS, INC.,
Respondent.

September 21, 1977

APPEARANCES:

Robert J. Murphy, Esq., For Complainant

John D. O’Reilly, III, Esq., For Respondent

DECISION AND ORDER

This case was heard at Boston, Massachusetts, on March 29 31, and April 1, 1977, pursuant to Section 10(c) of the Occupational Safety and Health Act, 29 U.S.C. §659(c).

On August 23, 1977, Respondent was issued a 2-item serious citation (#1), a single-item willful citation (#2), and a nonserious citation (#3) consisting of two items. Penalties proposed by the Secretary of Labor totaled $11,490. Respondent contested all charges.

Respondent is a corporation with an office and place of business at Weston, Massachusetts (Ans. II), engaged in construction as a general contractor, basically in utility, and heavy construction (Ans. II, Tr. IV/86 87); Respondent’s employees receive, handle, and work with goods and materials that have moved across state lines in interstate commerce, and Respondent thereby engages in a business affecting commerce within the meaning of § 3(5) of the Act (Ans. II). Based on the foregoing it is found that the Commission has jurisdiction over the parties and the subject matter.

29 U.S.C. § 654(a)(2) requires that each employer comply with occupational safety and health standards promulgated under the Act.

Under 29 U.S.C. § 666(a) an employer who willfully or repeatedly violates the Act may be assessed a civil penalty of up to $10,000 for each such violation.

Pursuant to 29 U.S.C. § 666(b), an employer shall be assessed a civil penalty of up to $1,000 for each serious violation.

Section 666(c) provides that an employer may be assessed a civil penalty of up to $1,000 for each nonserious violation.

29 U.S.C. § 666(j) declares that

‘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 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.’

Civil penalties shall be imposed only after considering the size of the business of the employer, the gravity of the violation, the good faith of the employer, and the history of previous violations. 29 U.S.C. § 666(i).

All of the citations center on a 10-wheel dump truck, driven by Dias, an employee of Respondent (Tr. I/9, 18, IV/24).

A compliance officer of the Department of Labor conducted an investigation on August 16, 1976, at a jobsite at Bedford, Massachusetts (Tr. II/6), where six or seven employees of Respondent were engaged in a sewer project (Tr. I/6 7). Earlier that morning at the site one employee (Braga) was killed and another (Dias) injured when the raised body of the dump truck suddenly dropped on them (Tr. I/18 22).

At the time of the mishap Respondent was excavating and laying sewer pipe (Tr. IV/98, 157) in a residential area that was not closed to public traffic (Tr. III/25 28). On that day excavated material was loaded on the truck in one area of the street, then driven by Dias some 50 feet and dumped out on the street next to a trench located in the middle of the street (Tr. I/63 64).

Citation #1 alleges that Respondent committed a serious violation of these standards:

Subpart O—Motor Vehicles, Mechanized Equipment, and Marine Operations

§ 1926.601 Motor vehicles.

Item 1

(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.

Item 2

(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.

As to serious Item 1, there is undisputed evidence that the dump truck was not equipped with a permanently attached support device capable of being locked in position to prevent accidental lowering of the body (Tr. II/11, II/17 21, III/125, III/166), and it is so found. It was the claim of Respondent that it was its practice to place hardwood timber or channel iron under the raised body to support it (Tr. II/24 25, III/50 52); this does not meet the standard’s requirement that the means of support be ‘permanently attached’ to the truck.

With respect to serious Item 2, it is clear that the operating levers that controlled hoisting or dumping were not equipped with a latch or other device to prevent accidental starting or tripping of the mechanism (Tr. II/11, 54 IV/79, Exh. C 4), and I so find.

However, it is Respondent’s position that §§ 1926.601(10) and (11) do not apply because the dump truck, being operated on a public street open to public traffic at all times, was excluded from coverage by § 1926.601(a), which reads:

(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 § 1926.602.

The Secretary has cited Clarkson Construction Co. v. OSHRC and Secretary of Labor, 531 F.2d 451 (10 Cir. 1976) on this point. From my reading of Clarkson, I do not see that the Court specifically offered any interpretation of 1926.601(a)(1).

It is beyond dispute that the residential streets in Bedford, Massachusetts, where Respondent was excavating and laying sewer pipe were never legally closed to public traffic (Tr. III/28). The contract for the project (Exh. R 3) requires that all excavating material shall be placed so that vehicular and pedestrian traffic may be maintained at all times unless permission to close the street is received in writing from the proper authority. Respondent’s treasurer testified that on three occasions he applied to the Board of Selectmen for permission to close these streets to traffic, and the requests were denied (Tr. IV/93 95). On August 16, 1976, Dias was driving the dump truck only on Norma Road (Tr. III/32, 36, 37, I/63 64), a dead-end street (Tr. III/33) containing only two houses (Tr. III/35); the street was open to public traffic (Tr. III/33 36).

I do not agree with Respondent’s claim that § 1926.601(a)(1) excludes the dump truck from coverage under 1926.601. In my opinion, the emphasis in that regulation is on types of vehicles rather than the location in which they are operating at a particular time. To hold otherwise would exclude dump trucks from the protection of both 1926.601 and 1926.602, which does not make sense.[13] Dump trucks are not mentioned in 602, but are referred to in 601(10), (11), and (12). Obviously, dump trucks can operate at sites either open or closed to public traffic. In order to give meaning to 601(a)(1) and 602(a)(2), the only reasonable interpretation of 601(a)(1) is that it intends the rules in 601 to apply to vehicles which generally operate at sites not open to public traffic. The language of 601(a)(1) does not explicitly limit coverage to vehicles while operating within an off-highway site closed to public traffic; if that had been intended, the regulation could have said so. It is found that the standards cited in the serious citation apply to the facts in this case. Respondent’s motion at trial (Tr. II/204) for dismissal of the serious charges on the basis of 1926.601(a)(1) is denied.

Respondent did not comply with the requirements of 1926.601(10) and (11), and I so find. I further find that there was a substantial probability that death or serious physical harm could have resulted from either of these violations,—in fact, a death did result—and that Respondent, through its job superintendent (Philbrick) at the site, knew or with the exercise of reasonable diligence could have known of the presence of the violative conditions. It is therefore found that these violations were of a serious nature.

Citation #2 charges a willful violation of 29 CFR 1926.601(b)(1), which requires all vehicles to have a service brake system, an emergency brake system, and a parking brake system ‘in operable condition.’

Respondent’s motion for dismissal (Tr. II/204), denied supra, also encompassed this willful citation, and it is again denied for the same reasons.

The citation alleges that on August 13 and 16, 1976, the service (foot) brake system of the dump truck was not in an operable condition.

Respondent’s employee Dias, who operated the truck, testified that on Friday, August 13, 1976, he heard a hissing sound because of an air leak; that he was having trouble with the braking system; that when he would jam on the brakes and try to shake the load of dirt out of the raised dump body, the dirt did not fall out because he ‘had no brakes to shake the body with’ (Tr. I/14 15); that he reported to Philbrick that ‘something was leaking on the truck, and I had no brakes, very little’ (Tr. I/13); that he thought that this took place ‘around noon’ (Tr. I/14); and that Philbrick told him to drive the truck ‘a few more times and then we’ll park the truck and go home early’ (Tr. I/14). He added that the crew did go home early that day, leaving at about 3:30 p. m. (Tr. I/15).

In other testimony, Dias claimed that when he reported for work on Monday morning, August 16, Philbrick told him to start the truck; that again he heard the air leak; that he reported this to Philbrick and asked if that affected the truck; that Philbrick replied, ‘Apparently not,’ and told him to drive to the trench and start to work (Tr. I/19 20). The wet dirt was sticking to the dump body, and Dias had difficulty dumping the material, so he drove up to the backhoe, which scratched the material out (Tr. I/83 84).

After making two or three trips with the truck, Dias observed that there was a problem with the backhoe, and that the backhoe operator was going to his pickup truck to get some wrenches (Tr. I/85 86); at this point he raised the body 5 6 feet and got out of the dump truck to check on the air leak; before he got out, he had seen though the rear view mirror that Braga, who had been standing by the trench doing laboring work, was already under the dump body on the passenger side; he had shut off the motor, placed the truck in gear, and applied the hand brake (Tr. I/20 21, 85 88); before Dias got out of the truck he asked Braga if he had found the leak and was told, ‘No’ (Tr. I/89); he joined Braga under the body, Dias standing on the driver’s side (Tr. I/24); he and Braga stood there for a couple of minutes when the truck body came down and pinned them (Tr. I/21, 91).

After considerable questioning at trial, Dias finally testified that he saw Braga touch a lever on the truck, and that just as soon as he did so, the truck body came down on them (Tr. I/25, 90 98). According to Dias, Braga had been under the truck body for about three minutes and he (Dias) for about 2 3 minutes when this happened (Tr. I/144).

Philbrick testified that he knew that Dias had trouble emptying the dirt out of the truck on August 13 and 16, but denied that he was aware of any problem with the brake system, asserting that Dias had not informed him on either day of any leak in the air brake system (Tr. III/53 54). Philbrick denied hearing any hissing sound (Tr. III/54 55, 58) or observing Dias having any difficulty with the brakes on either day (Tr. III/36, 43, 56).

Gentry, resident engineer on the project, and Philbrick saw Dias and Braga standing between the raised body and the frame of the truck; Philbrick and Gentry testified that both had shouted to the men to get out of there (Tr. I/203, III/60 63), but the men did not leave. Dias claimed that he did not recall that anyone had told him to get away from under the raised body while he and Braga were there (Tr. I/102 103).

It was the testimony of Philbrick that if he had been told about a leak in the air brake system he would have instructed the master mechanic at the site, Merrill, to fix the truck (Tr. III/45 47, 52 53). Merrill declared that he had repaired leaks in air brakes hundreds of times, and that as a rule a leak can be repaired in anywhere from five minutes to an hour, and that many times it takes only a few minutes (Tr. III/133 134).

I do not place any reliance upon Dias’ claim that he complained about the brake system to Philbrick on August 13 and again on August 16. No other employee at the site witnessed his having any difficulty with the brakes (Tr. III/56, 149, IV/175). The declarations of Dias abound in inconsistencies. In a statement made to the compliance officer of the Labor Department on August 17, 1976 (Exh. R 1), he said that he had told Philbrick about a leak in the air brake system at about 2:30 p.m., on August 13, but at trial he claimed that this happened at about noon (Tr. I/60, 119). On August 17, he told the compliance officer that he did not drive the truck again on Friday afternoon after informing Philbrick of the leak (Exh. R 1), but at trial he testified that Philbrick told him to drive the truck a few more times so that a pipe could be laid, and that he made about three or four additional trips with the truck (Tr. I/71 72). In his testimony at trial Dias claimed that he again complained about the brakes to Philbrick on Monday, August 16 (Tr. I/19), but in his statement to the compliance officer on August 17 he makes no such claim (Exh. R 1). When he was questioned at trial as to whether Braga touched any part of the truck just before the body came down, Dias displayed insensitivity to the oath under which he was testifying; he was obviously evasive and untruthful before finally admitting that he saw Braga touch something on the truck just before the raised body fell on them (Tr. I/97, 98), after initially testifying that he did not see Braga touch anything (Tr. I/25, 91, 92), then declaring that Braga did touch something (Tr. I/92), later saying that he thought he saw Braga do so (Tr. I/92), again saying that he saw him do it (Tr. I/92), still later changing his story by saying that he was ‘not quite sure, really’ (Tr. I/95). He had told the compliance officer on August 17 that he saw Braga turn a rod, and all of a sudden the truck body came down (Exh. R 1).

The claim of Dias that the crew went home early when it left at 3:30 p.m., on August 13 is contradicted by Philbrick, who testified that the regular quitting time on Fridays was 3:30 p.m. (Tr. III/118); that on that job it was customary to work four 10-hour days, ending the week on Thursday night, but the men did work on maybe three or four Fridays (Tr. III/125 126). I find Philbrick’s testimony more reliable than that of Dias on this point.

The charge that the alleged violation was willful is based on the statements of Dias that he had put Philbrick on notice that the brake system was not operable. Dias has a strong interest in whether a willful violation is established. He has filed a workmen’s compensation claim because of the accident, and if there was willful misconduct by Respondent he would be entitled to extra compensation on that claim. (Tr. I/109).

In any event, I find that on this record the Secretary falls short of proving by a preponderance of the evidence that the brake system was not in operable condition. Dias claims that he was having trouble with the brakes, but no other employee at the site noticed any problem. The strongest evidence offered by the Secretary was that of Wallace, an investigator with the Massachusetts Registry of Motor Vehicles, who related that on August 16 (Tr. I/159) he got into the truck with Merrill, who started the motor, and after it ran for approximately five minutes there was only 40 pounds of air pressure, whereas normal air pressure is about 90 pounds (Tr. I/162); that Merrill stepped on the foot brake and ‘there was an immediate, complete loss of air pressure,’ accompanied by a loud, hissing sound (Tr. I/162). According to Wallace, he tested the hand brake, which showed ‘little or no resistance at all’ when he pulled it (Tr. I/164).[14] The truck was then towed to the town yard (Tr. I/163).

Merrill asserted that after he ran the motor for several minutes, the pressure gauge registered 40 to 45 pounds; that he asked the registry investigator ‘if it was alright, and he nodded and motioned okay, and I shut the truck off and got back out of it. That was it, the only, more or less, conversation that there was’ (Tr. III/150). He also testified that after 15 20 minutes later the wrecker arrived, and he drove the dump truck to the wrecker; that in so doing the made three or four swings, going forward and back, to turn the truck around; that the brakes seemed to function perfectly when he applied them about 8 9 times; that the air pressure got up to around 65 pounds in about 2 1/2 minutes; that at that pressure the brakes are operative; that he drove the truck for a total distance of approximately 700 800 feet, to the turnaround area and then to the wrecker; that when he stopped, the pressure had reached approximately 95 pounds (Tr. III/151 154).

This witness pointed out that all air brake systems have a pressure relief valve, and that when the air tank is at maximum pressure, it makes a hissing sound when it blows off the valve (Tr. III/154).

In other testimony, Merrill said that during the afternoon of August 16, in the Bedford town garage, he started the truck motor and ran it for about 4 5 minutes, and he believed that the pressure was up to 95 or maybe 100 pounds (Tr. III/155 158); that the Leone brothers (President and Treasurer of Respondent), the registry investigator, and the compliance officer were there, checking under the frame of the truck (Tr. III/156 157); that later that week he learned from Joseph Leone that there was to be a citation for faulty brakes (Tr. III/158 159); that he went to the Weston garage where the truck was then located, and the only thing wrong he and another employee of Respondent (Spencer) could find was a little hissing coming from an air brake stop-light switch that had a pinhole in its diaphragm (Tr. III/159 160, Exh. R 6), which he replaced. He opined that this defect would not have any effect on the braking operation (Tr. III/161 162).

Gerard Leone, Respondent’s President, declared that the registry investigator had notified him at the site that he had removed the plates from the truck because of six bald tires and a broken floor board, but had not indicated that there was any problem with the brakes (Tr. IV/34 35); that he first heard of a brake citation on August 18, when his brother told him that the compliance officer called and read the proposed list of citations which included one for the brakes (Tr. IV/35 36).

The compliance officer admitted that he never tested the brakes (Tr. II/76 78). He could not recall any discussion with the Leones at the site on August 16 concerning the braking system (Tr. II/25 26). He said that his recommendation that a citation be issued for the brakes was based on his ‘investigation and several consultations with representatives of the Department of Labor, including the solicitors and a registry inspector from the Registry of Motor Vehicles’ (Tr. II/79).

Incidentally, one of the Secretary’s witnesses, Miller, a brother-in-law of Dias, testified that on the day following the accident, while he was visiting Dias at the hospital, he heard Philbrick tell Dias that the air leak had been found, and that it was near the master cylinder (Tr. II/169). Philbrick denied any such conversation, and testified that the dump truck has no master cylinder (Tr. III/72 74). In my view, Miller’s statement does not merit credence.

The registry investigator claimed considerable experience in repairing and inspecting hydraulic brake systems (Tr. I/165), but not air brake systems. He relied on one brief running of the motor on August 16 to decide that the air pressure was too low. The compliance officer made no effort to test the brakes. I cannot venture to rely on Dias’ statements that the brakes were not functioning. The burden of proof rests with the Secretary, and on this record I find that Complainant has not established that the service brake system was not in operable condition. The willful citation will be ordered vacated.

The nonserious citation consists of two items:

Subpart C—General Safety and Health Provisions

§ 1926.20 General safety and health provisions.

(b) Accident prevention responsibilities.

Item 1

(3) The use of any machinery, tool, material, or equipment which is not in compliance with any applicable requirement of this part is prohibited. Such machine, tool, material, or equipment shall either be identified as unsafe by tagging or locking the controls to render them inoperable or shall be physically removed from its place of operation.

Item 2

(4) The employer shall permit only those employees qualified by training or experience to operate equipment and machinery.

Nonserious Item 1 will be vacated because there has been no showing that the truck’s service brake system was not in operable condition. Hence, there was no need to tag, lock, or remove it from its place of operation.

Turning to nonserious Item 2, the truck was a Mack 10-wheeler, with a registered gross weight of 66,000 pounds (Tr. I/163). In Massachusetts, a Class 1 or 2 operator’s license is needed to operate such vehicle (Tr. I/163 164), whereas Dias had only a Class 3 license (Tr. I/8). A Class 3 license is not valid for the operation of a motor vehicle having a registered gross weight in excess of 18,000 pounds (Tr. I/155). However, the standard under consideration is not violated merely by proof of lack of an appropriate license to operate the equipment; the standard is breached only if it is shown that the employer permitted operation of the equipment by an employee who was not qualified by training or experience to do so. There are various types of vehicles in use at construction sites, some more complicated than others. A licensed employee may well be unqualified by training or experience to operate a certain vehicle; on the other hand, an unlicensed employee might be highly qualified, by training or experience, to operate that particular equipment.

When interviewed by the compliance officer on August 17 (Exh. R 1), Dias said that he had driven the truck for only about one week prior to the accident. He stated at trial that he drove this dump truck at the site, off and on, for about two months (Tr. I/52); and that in 1975 he had driven a 10-wheeler dump truck at a construction project at Natick, Massachusetts (Tr. I/46 48). Philbrick testified that he had observed Dias operating a dump truck at a site at Wareham, Massachusetts about four years ago (Tr. III/12 13). Gerard Leone testified that Dias had told him that he had driven a dump truck and other equipment for a previous employer (Tr. IV/12); that in May or June 1976, Dias came into Leone’s office after completing his day’s work, and he took Dias out into the yard to give him a lesson on driving the dump truck; that Dias demonstrated to him that he was already familiar with the operation, and drove the truck with more than a basic degree of skill (Tr. IV/14 16). Leone added that Dias did grind a couple of gears, but that he (Leone) had been driving for 20 years and still grinds them (Tr. IV/16); and that his ‘overall impression was that he was very familiar with the vehicle’ (Tr. IV/16).

Gerard Leone further testified that he observed Dias driving the dump truck at the Bedford site once or twice a week, and never saw Dias having any difficulty (Tr. IV/24).

Joseph Leone claimed that on one occasion, on July 12, 1976, he saw Dias back up in zig-zag fashion for a distance of 550 700 feet in a superb manner, and complimented for the feat (Tr. IV/100 102).

It is clear that Dias told the compliance officer less than the truth when he mentioned only the one week of driving the vehicle. The compliance officer conceded that he would not have recommended a citation if he had known of all of Dias’ previous experience (Tr. II/79 80). After careful consideration of the record as a whole, I find that Complainant has failed to show that Dias, the operator of the truck, was not qualified by training or experience to operate this equipment. Item 2 of the nonserious citation has not been established, and it is so found.

Thus, only the two serious items will be affirmed. The Secretary has proposed a penalty of $950 for each item. Respondent employs as many as 50 60 during the peak construction period (Tr. IV/58). There were previous safety violations in 1976 which became a final order of the Commission (Exh. R 4, Tr. II/66). Respondent has a rather full safety program (Tr. II/122, IV/50 55, Exh. R 9), but the violations are of a serious nature, and of a high level of gravity; in fact, a death stemmed from these violations. Taking into account the four factors set forth in 29 U.S.C. § 666(i), I find that a penalty of $950 for each serious item is appropriate.

Accordingly, it is ordered that serious Items 1 and 2 be affirmed, and a penalty of $950 be assessed for each item; and that the willful citation and the two nonserious items be vacated.

ABRAHAM GOLD

Judge, OSHRC

Dated: September 21, 1977

Boston, Massachusetts

[1] The decision of the administrative law judge comes before the Commission pursuant to section 12(j), 29 U.S.C. § 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-768 (“the Act”).

[2] § 1926. 601 Motor Vehicles.

• • •

(b) General Requirements.

• • •

(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.

[3] The administrative law judge found that Gerard Leone’s worksite was on a highway open to public traffic, and that finding is not challenged on review.

[4] This section provides:

§ 1926.601 Motor Vehicles.

[5] The judge also ruled that Clarkson Constr. Co. v. OSHRC, 531 F.2d 341 (10th Cir. 1975) on which the Secretary relied has no bearing on the instant case. He concluded, correctly, that Clarkson dealt with the question of whether standards at 1926.601 apply to vehicles operated off the worksite, whereas the question here is whether they apply to vehicles being operated on a worksite that is open to public traffic.

[6] Gerard Leone also relies on S.J. Groves & Sons Co., 77 OSARHC 129/C13, 5 BNA OSHC 1946, 1976-77 CCH OSHD ¶ 20, 962 (No. 15573, 1977) (ALJ). This, however, is an unreviewed judge’s opinion and as such is not binding on the Commission. Leone Constr. Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD ¶ 20,387 (No. 4090, 1976).

[7] § 1926.602 Material handling equipment.

(a) Earthmoving equipment; General (1) These rules apply to the following types of earth moving equipment: scarpers, loaders, crawler or wheel tractors, bulldozers, off-highway trucks, graders, agricultural and industrial tractors and similar equipment. The promulgation of specific rules for compactors and rubber-tired “skidsteer” equipment is reserved pending consideration of standards currently being developed.

[8] In granting the company’s petition for review, Acting Chairman Barnako directed the parties to consider the significance, if any, of the provisions of 29 C.F.R. § 1926.600, particularly subsection (a)(3)(i), which provides:

(3)(i) Heavy machinery, equipment or parts thereof, which are suspended or held aloft by the use of slings, hoists or jacks shall be substantially blocked or cribbed to prevent falling or shifting before employees are permitted to work under or between them. Bulldozer and scraper blades, end-loader buckets, dump bodies, and similar equipment, shall be wither fully lowered or blocked when being repaired or when not in use. All controls shall be in a neutral position, with the motors stopped and brakes set, unless work is being performed requires otherwise.

However, our holding makes it unnecessary to decide the significance of § 1926.600 and its subsection 600(a) (3) (1).

[9] My colleagues’ holding is unclear, however, for they also state that section 601 does not apply to trucks which operate exclusively off –highway. See note 2, infra.

[10] My colleagues state the section 602 applies, and section 602 does not apply, among other things, to trucks operated “exclusively off highway” (emphasis added). However, trucks operated exclusively off highway are capable of being operated on a highway jobsite as well. Therefore, may colleagues’ characterization of their holding “that section 601 applies to trucks that can operate both on and off highway regardless of their actual or general use ….” (emphasis added) is inconsistent for it includes all off-highway trucks within the ambit of section 601.

[11] Durant Elevator involved the meaning of the term “farm vehicle” as used in the standard regulating hydrous ammonia, 29 C.F.R. § 1910.111.

[12] A provision of the general standard at section 600 appears applicable to the conditions at issue in this case. Specifically, subsection 600(a)(3)(i) provides in pertinent part that “[h]eavy machinery, equipment, or parts thereof, which are suspended or held aloft by the use of slings, hoists, or jacks shall be substantially blocked or cribbed to prevent falling or shifting before employees are permitted to work under or between them …[D]ump bodies …shall be either fully lowered or blocked when being repaired or when not in use.” I would not, however, ament he citation to allege a violation of this standard. Such an amendment would only be appropriate if the parties tried the issue of a violation of subsection 600(a)(3)(i) by express or implied consent. See Mississippi Power & Light Co., 79 OSAHRC 109/D12, 7 BNA OSHC 2036, 1980 CCH OSHD ¶ 24,146 (No. 76-2044, 1979); McLean-Behm Steel Erectors, Inc., 78 OSAHRC 93/A9, 6 BNA OSHC 2081, 1978 CCH OSHC ¶ 23,139 (No. 15582, 1978) (dissenting opinion), rev’d, 608 F.2d 580 (5th Cir. 1979). There was no such consent hear as the possibility of Repsondent’s noncompliance with subsection 600(a)(3)(i) was never raised at or prior to the hearing, and the parties plainly did not believe that they were trying a violation of that standard. Moreover, the requirements of the subsection 600(a)(3)(i) differ substantially from the requirements of the standards that were cited. The cited standards require that dump trucks be equipped with certain devices, while subsection 600(a)(3)(i) required that certain work practices be followed. Thus, Respondent did not have the opportunity fully to litigate all issues relevant to a possible violation of subsection 600(a) (3) (i). I also note that the Secretary has not moved for an amendment to subsection 600(a)(3)(i) even after my direction for review called attention to the possible applicability of that standard.

[13] 1926.602(a)(1) states that the rules which follow apply to certain listed types of earthmoving equipment, and 1926.601(a)(1) declares that the requirements of 1926.601 do not apply to equipment for which rules are prescribed in 1926.602.

[14] The citation and complaint do not allege that the hand brake was not operable. The allegations refer only to the service (foot) brake system.