“Docket No. 79-4703 SECRETARY OF LABOR, Complainant, v. A. AMORELLO & SONS, INC., Respondent.OSHRC Docket No. 79-4703DECISION Before: BUCKLEY, Chairman; RADER and WALL, Commissioners. BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commission under 29U.S.C. ? 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29U.S.C. ?? 651- 678 (\”the Act\”). The Commission is an adjudicatory agency,independent of the Department of Labor and the Occupational Safety and HealthAdministration. It was established to resolve disputes arising out of enforcement actionsbrought by the Secretary 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 the First Circuit.Donovan v. A. Amorello, & Sons, Inc., 761 F.2d 61 (1st Cir. 1985). The Commissionpreviously had vacated an alleged violation of 1926.602 (a)(9)(ii) [[1]] on the basis thatthe Secretary failed to prove that the front-end loader of A. Amorello & Sons, Inc.had been operating with \”an obstructed view to the rear\” in violation of theterms of that standard. A. Amorello & Sons, ___ OSAHRC ____, 11 BNA OSHC 2044, 1984CCH OSHD ? 26,940 (No. 79-4703, 1984).[[2]] However, the First Circuit, giving deferenceto OSHA’s interpretation of the standard, rejected the Commission’s rationale for vacatingthe 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, and his supervisor,Joyce, observed Amorello’s front-end loader operating in reverse. Neither Huse nor Joyceheard a back-up alarm. One of Amorello’s heavy equipment operators, Violette, who was notthe operator of the front-end loader on that day, testified that he heard the back-upalarm in operation prior to the inspection. However, Violette did not recall whether thealarm was in operation after Huse arrived. Later during the inspection, Huse made arequest to Amorello’s foreman that the loader be operated in reverse to demonstratewhether the back-up alarm was functioning. The foreman got on the machine and backed itup, but the alarm 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 of the inspectionwhen Huse and Joyce observed the loader backing up, the reverse signal alarm was notoperating. Huse and Joyce were standing in a position where they could determine whetherthe loader, which was moving in reverse toward them, had an operating reverse signalalarm. While there was testimony suggesting that the engine noise of a nearby backhoemight have prevented Huse and Joyce from hearing the alarm, we do not find such anexplanation to be persuasive, since there also was testimony that the back-up alarm wasloud enough to be an irritant to employees working in the area.[[3]] Further, Huse’s andJoyce’s testimony that the alarm was not operating when they saw the loader back up iscorroborated by the undisputed fact that, when the foreman operated the loader in reverseto determine whether the alarm was working, the alarm did not sound.In order to establish a violation, the Secretary must prove that the cited employerknew or could have known with the exercise of reasonable diligence of the presence of thenoncomplying condition. Prestressed Systems, Inc., 81 OSAHRC 43\/D5, 9 BNA OSHC 1864, 1981CCH OSHD ?\u00a0 25,358 (No. 16147, 1981). In this case, the record is scanty at bestwith respect to employer knowledge. The evidence establishes that the loader was used inthe \”ongoing process\” of pushing dirt back into the excavation after the pipewas laid. Earlier in the day the back-up alarm had been operating. Work had begun at 7:00a.m. that day and it was about 11:00 a.m. when the inspection began. When the complianceofficer photographed the front-end loader moving in reverse without a back-up alarmsounding, the loader was bringing a load of gravel to drop at the edge of the excavationand was thereafter driven to the lower end of the block some distance away. When thephotograph was taken, Amorello’s superintendent was standing near the edge of theexcavation with his back to the loader. The evidence does not establish whether the loaderwas operated more than once in reverse without the alarm sounding and if so, whetherAmorello’s superintendent knew that the loader had been used in reverse with anon-operating alarm. The record also does not establish whether Amorello had any work rulethat applied to this condition. Although Amorello’s failure to comply with the citedstandard may have been due to circumstances beyond its control, on the basis of thisrecord we cannot draw such a conclusion. Since Amorello’s superintendent was in closeproximity to the loader, we conclude that with the exercise of reasonable diligenceAmorello could have known of the violation.The violation in this case was of very brief duration, since there was undisputedevidence that the reverse signal alarm had been operating earlier on the day of theinspection. Additionally, this case involved only a very minor limitation of the driver’srearward vision. Accordingly, we conclude that there is not a \”substantialprobability\” that death or serious physical harm could have resulted from thisviolation. We therefore affirm the citation as other than serious. See section 17(k) ofthe Act, 29 U.S.C. ? 666(j). Further, because the gravity of the violation is low, weassess no penalty.FOR THE COMMISSIONRay H. Darling, Jr.Executive Secretary Dated: January 28, 1986Buckley, Chairman, concurring specially:I concur. The primary question in this case is whether Amorello was required to sound thebackup alarm on its front-end loader after the loader had traversed the area in which theoperator’s view to the rear was initially obstructed and was traveling in reverse on alevel city street. At that time the operator had an unobstructed field of view because theloader 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 thecourt’s opinion does not explain why the standard required the backup alarm to be soundedduring the entire course of the approximately two-block trip, the mandate of the court ofappeals clearly requires that a violation be found if the alarm was not sounding duringany part of that trip. It is for this reason that I concur in the affirmance of thecitation. I also agree with my colleagues that, inasmuch as the condition could not haveinjured an employee, a penalty should not be assessed.The Administrative Law Judge decision in this matter is unavailable in thisformat.\u00a0\u00a0 To obtain a copy of this document, please request one from our PublicInformation Office By e-mail ( [email protected]),telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).\u00a0FOOTNOTES: [[1]] The standard provides:No employer shall permit earthmoving or compacting equipment which has an obstructed viewto the rear to be used in reverse gear unless the equipment has in operation a reversesignal alarm distinguishable from the surrounding noise level or an employee signals thatit is safe to do so.[[2]] The two Commission members in the majority gave different reasons as to why thecitation should be vacated. Former Chairman Rowland held that Amorello’s front-end loaderdid not have an \”obstructed view to the rear\” within the meaning of thestandard, since there existed only a rather minor limitation of rearward vision,comparable in extent and nature to the limitation on rearward vision that drivers of manyordinary vehicles would experience in backing-up. Chairman Buckley concurred on the basisthat operating the machine in reverse gear with no alarm sounding when the loader wasmoving, as alleged in the complaint and observed by the compliance officer, did notviolate the standard. 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’sview no longer was obstructed once the loader was covering ground that the operatorpreviously had seen to be clear.[[3]] We also note that the cited standard requires that the alarm must be distinguishablefrom the surrounding noise level. Therefore, even if the alarm were sounding but was notloud enough to be heard, the standard would have been violated.”