“SECRETARY OF LABOR,Complainant,v.A. AMORELLO & SONS, INC.,Respondent.OSHRC Docket No. 79-4703_DECISION_Before: BUCKLEY, Chairman; RADER and WALL, Commissioners.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651- 678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration. It was established toresolve disputes arising out of enforcement actions brought by theSecretary of Labor under the Act and has no regulatory functions. Seemotion 10(c) of the Act, 29 U.S.C.? 659(c).This case is on remand from the United States Court of Appeals for theFirst Circuit. Donovan v. A. Amorello, & Sons, Inc., 761 F.2d 61 (1stCir. 1985). The Commission previously had vacated an alleged violationof 1926.602 (a)(9)(ii) [[1]] on the basis that the Secretary failed toprove that the front-end loader of A. Amorello & Sons, Inc. had beenoperating with \”an obstructed view to the rear\” in violation of theterms of that standard. A. Amorello & Sons, ___ OSAHRC ____, 11 BNA OSHC2044, 1984 CCH OSHD ? 26,940 (No. 79-4703, 1984).[[2]] However, theFirst Circuit, giving deference to OSHA’s interpretation of thestandard, rejected the Commission’s rationale for vacating the citation.The court remanded the case for the Commission to make factual findingsconcerning whether Amorello violated ? 1922.602(a)(9)(ii).At the beginning of the inspection, the compliance officer, Huse, andhis supervisor, Joyce, observed Amorello’s front-end loader operating inreverse. Neither Huse nor Joyce heard a back-up alarm. One of Amorello’sheavy equipment operators, Violette, who was not the operator of thefront-end loader on that day, testified that he heard the back-up alarmin operation prior to the inspection. However, Violette did not recallwhether the alarm was in operation after Huse arrived. Later during theinspection, Huse made a request to Amorello’s foreman that the loader beoperated in reverse to demonstrate whether the back-up alarm wasfunctioning. The foreman got on the machine and backed it up, but thealarm did not sound. Violette then climbed on the loader, turned \”on\”the switch that is connected to the alarm, and put the loader in reversegear. The alarm then sounded.The evidence establishes that, for the brief period at the beginning ofthe inspection when Huse and Joyce observed the loader backing up, thereverse signal alarm was not operating. Huse and Joyce were standing ina position where they could determine whether the loader, which wasmoving in reverse toward them, had an operating reverse signal alarm.While there was testimony suggesting that the engine noise of a nearbybackhoe might have prevented Huse and Joyce from hearing the alarm, wedo not find such an explanation to be persuasive, since there also wastestimony that the back-up alarm was loud enough to be an irritant toemployees working in the area.[[3]] Further, Huse’s and Joyce’stestimony that the alarm was not operating when they saw the loader backup is corroborated by the undisputed fact that, when the foremanoperated the loader in reverse to determine whether the alarm wasworking, the alarm did not sound.In order to establish a violation, the Secretary must prove that thecited employer knew or could have known with the exercise of reasonablediligence of the presence of the noncomplying condition. PrestressedSystems, Inc., 81 OSAHRC 43\/D5, 9 BNA OSHC 1864, 1981 CCH OSHD ? 25,358(No. 16147, 1981). In this case, the record is scanty at best withrespect to employer knowledge. The evidence establishes that the loaderwas used in the \”ongoing process\” of pushing dirt back into theexcavation after the pipe was laid. Earlier in the day the back-up alarmhad been operating. Work had begun at 7:00 a.m. that day and it wasabout 11:00 a.m. when the inspection began. When the compliance officerphotographed the front-end loader moving in reverse without a back-upalarm sounding, the loader was bringing a load of gravel to drop at theedge of the excavation and was thereafter driven to the lower end of theblock some distance away. When the photograph was taken, Amorello’ssuperintendent was standing near the edge of the excavation with hisback to the loader. The evidence does not establish whether the loaderwas operated more than once in reverse without the alarm sounding and ifso, whether Amorello’s superintendent knew that the loader had been usedin reverse with a non-operating alarm. The record also does notestablish whether Amorello had any work rule that applied to thiscondition. Although Amorello’s failure to comply with the cited standardmay have been due to circumstances beyond its control, on the basis ofthis record we cannot draw such a conclusion. Since Amorello’ssuperintendent was in close proximity to the loader, we conclude thatwith the exercise of reasonable diligence Amorello could have known ofthe violation.The violation in this case was of very brief duration, since there wasundisputed evidence that the reverse signal alarm had been operatingearlier on the day of the inspection. Additionally, this case involvedonly a very minor limitation of the driver’s rearward vision.Accordingly, we conclude that there is not a \”substantial probability\”that death or serious physical harm could have resulted from thisviolation. We therefore affirm the citation as other than serious. Seesection 17(k) of the Act, 29 U.S.C. ? 666(j). Further, because thegravity of the violation is low, we assess no penalty.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDated: January 28, 1986Buckley, Chairman, concurring specially:I concur. The primary question in this case is whether Amorello wasrequired to sound the backup alarm on its front-end loader after theloader had traversed the area in which the operator’s view to the rearwas initially obstructed and was traveling in reverse on a level citystreet. At that time the operator had an unobstructed field of viewbecause the loader was traveling over ground already seen to be clear.The standard, 29 C.F.R. ? 1926.602(a)(9)(ii), applies only to\”obstructed\” rear views. Although the court’s opinion does not explainwhy the standard required the backup alarm to be sounded during theentire course of the approximately two-block trip, the mandate of thecourt of appeals clearly requires that a violation be found if the alarmwas not sounding during any part of that trip. It is for this reasonthat I concur in the affirmance of the citation. I also agree with mycolleagues that, inasmuch as the condition could not have injured anemployee, a penalty should not be assessed.————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request onefrom our Public Information Office By e-mail ([email protected]), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386). FOOTNOTES:[[1]] The standard provides:No employer shall permit earthmoving or compacting equipment which hasan obstructed view to the rear to be used in reverse gear unless theequipment has in operation a reverse signal alarm distinguishable fromthe surrounding noise level or an employee signals that it is safe to do so.[[2]] The two Commission members in the majority gave different reasonsas to why the citation should be vacated. Former Chairman Rowland heldthat Amorello’s front-end loader did not have an \”obstructed view to therear\” within the meaning of the standard, since there existed only arather minor limitation of rearward vision, comparable in extent andnature to the limitation on rearward vision that drivers of manyordinary vehicles would experience in backing-up. Chairman Buckleyconcurred on the basis that operating the machine in reverse gear withno alarm sounding when the loader was moving, as alleged in thecomplaint and observed by the compliance officer, did not violate thestandard. Chairman Buckley reasoned that, since the view to the rear waslimited for a distance of only two feet from the backend of the loader,the operator’s view no longer was obstructed once the loader wascovering ground that the operator previously had seen to be clear.[[3]] We also note that the cited standard requires that the alarm mustbe distinguishable from the surrounding noise level. Therefore, even ifthe alarm were sounding but was not loud enough to be heard, thestandard would have been violated.”