“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 7227 ATLANTIC SUGAR ASSOCIATION, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0June 24, 1976ORDEROF REMANDAnorder of Administrative Law Judge John J. Larkin is before this Commission pursuantto section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. ?651 et seq. hereinafter ?the Act?). Judge Larkin held, at the close of theSecretary?s case-in-chief, and before respondent introduced evidence, that therecord did not reflect a violation of section 5(a)(1) of the Act, and vacatedthe citation and proposed penalty.Uponconsideration of the record in the instant case and the submissions of theparties, it is found that the evidence presently of record is sufficient to provea violation of section 5(a)(1) of the Act. It is enough here to find that bymeans of correspondence, industry meetings and highly publicized accidents,there is sufficient evidence that the sugar cane industry and respondent hadknowledge that transporting field workers in a standing position in truckswithout adequate seating or substantial rear barriers was hazardous to theworkers. It is further found that Complainant?s Exhibits 1 and 2[1] are admissible, and shallwithout further motion be admitted into the record.[2] The exhibits are relevantto the issue of whether standing in a truck is a recognized hazard. SeeFed.R.Evid. 401.Accordingly,it is ORDERED that the decision of the Administrative Law Judge, grantingrespondent?s motion for an involuntary dismissal under Fed.R.Civ.P. 41(b), ishereby reversed and the case be remanded for further proceedings.?It is so ORDERED.?FOR THE COMMISSION:?WilliamS. McLaughlinExecutiveSecretaryBY:Gloria W. WhiteAssistantExecutive SecretaryDated:JUN 24, 1976?MORAN, Commissioner,Dissenting:JudgeLarkin correctly decided this case and his decision, which is attached heretoas Appendix A, should be affirmed for the reasons stated therein. Additionally,complainant?s amendments of the citation were improper.??????????? In order to establish a violation of 29 U.S.C. ?654(a)(1), complainant must prove that the alleged violative condition was arecognized hazard that was causing or was likely to cause death or seriousphysical harm. National Realty & Construction Company, Inc. v. OSAHRC,489 F.2d 1257, 1265 (D.C. Cir. 1973); 29 U.S.C. ? 654(a)(1). In my concurringopinion in Secretary v. Sugar Cane Growers Cooperative of Florida,OSAHRC Docket No. 7673, June 15, 1976, I stated that, without more, it is not arecognized hazard for a passenger to stand while riding in a moving vehicle.Every day millions of workers throughout the United States must stand aboardmoving vehicles while being transported to and from their places of work onvarious mass transit systems. The government, which subsidizes these operationsdoes not prohibit standing or overcrowded conditions. I concurred with theaffirmance of a violation in the Sugar Cane Growers case because melting iceand unsecured materials in the truck-bed created slipping and striking hazards.Such egregious conditions are not present in this case. In fact, the inspectingofficer never actually saw passengers on the trucks. He photographed an emptyvehicle parked at the cane fields.Themajority relies on correspondence, meetings, and two accidents to show that thealleged hazardous practice was ?recognized.? The Judge carefully consideredeach of these matters and properly ruled that they did not establish that thealleged hazards were ?recognized.? However, some of the Judge?s conclusionswarrant discussion in view of the summary manner in which my colleagues rejecthis findings.Thecorrespondence consisted of an interchange between the Secretary of Labor?sAssistant Regional Director for Manpower and the manager of the labor division,Florida Fruit and Vegetable Association, the substance of which was anagreement by the association to provide transportation for workers in vehicleswith fixed seating and protective covering. Judge Larkin, finding the lettersirrelevant, refused to admit them into evidence. Assuming arguendo that theletters were admissible, they do not prove industry recognition of a hazardouscondition. The letters do not explain why the agreement was reached. The objectof the new policy may very well have been to provide more comfortableconditions for employees. The letters make no mention of a potential danger toemployees. Furthermore, the letters reflect an agreement to provide seating forthe 1974?75 season?almost one year after the citation was issued.Thearea director admitted that his statements concerning safe transportation ofemployees at association meetings were extremely brief. More importantly hisopinions fall far short of establishing the existence of a hazard that wasrecognized by sugarcane producers.Theonly testimony regarding the nature of the publicity surrounding the twoaccidents reveals that trucks carrying sugarcane workers overturned causinginjuries to some of the passengers. There was no information suppliedconcerning whether the passengers were standing or seated or whether theinjuries were in anyway related to the conditions upon which complainant reliesin this case.Evenconstruing the evidence most favorably toward the complainant, I cannotconclude that the record supports a finding of the existence of a recognizedhazard. Furthermore, it will be wrong if the Judge on remand affirms thealleged violation on the basis of complainant?s amendments of the citation.Thecitation averred that respondent violated section 654(a)(1) because ?employeeswere being transported in a vehicle with no provisions for seating.? In obviousrecognition of the fact that this charge could not be proved,[3] the complaint attempts tocompletely change the description of the violation by asserting that respondent?. . . permittedan excess number of employees being transported in motor vehicles in a standingposition, at the aforesaid jobsite, failing to provide an adequate number ofseats in said vehicles, or to limit the employees transported without adequateprovisions for seating, in order to keep secure and stabilized the load ofpersonnel while being transported in the aforesaid vehicles.?\u00a0Moreover,at the pretrial conference the complainant sought to enlarge the charges ?toallege that respondent?s vehicles contained a rope instead of a more permanentrear barrier for employee protection.?Theabove-described amendments are improper and should not be countenanced by theCommission. Secretary v. Warnel Corporation, OSAHRC Docket No. 4537,March 31, 1976 (dissenting opinion).\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 7227 ATLANTIC SUGAR ASSOCIATION, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0FINAL ORDER DATE: March5, 1975ORDERGRANTING RESPONDENT?S MOTION FOR DIRECTED JUDGMENTLARKIN, Judge, OSAHRCThisis a proceeding under section 10(c) of the Occupational Safety and Health Actof 1970 29 U.S.C. 65 et seq. (referred to as the Act) to review an allegedserious citation and proposed penalty of $600 issued on March 8, 1974, by theSecretary of Labor (referred to as the Secretary) pursuant to sections 9(a) and10(a) of the Act.Thecitation was received by respondent on March 12, 1974, and its notice ofcontest was mailed on March 25, 1974. The Secretary filed a complaint on April15, 1974, and respondent filed its answer on May 1, 1974. At the conclusion ofthe Secretary?s evidence on August 14, 1974 in West Palm Beach, Florida,respondent moved for directed judgment on the grounds the Secretary had failedto establish a ?recognized hazard or hazards? as required by section 5(a)(1) ofthe Act.Respondentis a cooperative association of sugar cane producers located in Belle Glade,Florida. It grows, harvests and refines sugarcane for the production of sugar.It was cited for an alleged violation of section 5(a)(1) of the Act in that?Employer failed to provide employees a place of employment free fromrecognized hazards that were causing or likely to cause death or seriousphysical harm in that on or about February 27, 1974, employees were beingtransported in a vehicle with no provision for seating.?Inhis complaint, the Secretary abandoned the allegation in the citation that thealleged vehicle contained no provision for seating. Instead, he alleges thatrespondent ?. . . permitted an excess number of employees being transported inmotor vehicles in a standing position, at the aforesaid jobsite failing toprovide an adequate number of seats in said vehicles, or to limit the employeestransported without adequate provisions for seating, in order to keep secureand stabilized the load of personnel while being transported in the aforesaidvehicles.?Atthe pre-trial conference on July 16, 1974, the Secretary broadened his ?scattergun volley? under section 5(a)(1) by moving to amend his complaint to allegethat respondent?s vehicles contained a rope instead of a more permanent rearbarrier for employee protection.Theissue for decision is whether the Secretary?s evidence is sufficient toestablish ?a recognized hazard or hazards? as that term is used under section5(a)(1) of the Act. To be a ?recognized hazard? the employer must have actualknowledge of the hazardous condition or else constructive knowledge because thecondition is generally recognized as hazardous within respondent?s industry.See Brennan v. OSAHRC and Vy Lactos Laboratories, Inc., 494 F.2d 460(8th Cir. 1974). American Smelting and Refining Company v. Brennan, 501F.2d 504 (8th Cir. 1974). It is in the light of such criteria that theSecretary?s evidence must be analyzed.CORRESPONDENCEBETWEEN THE MANPOWER ADMINISTRATION OF THE SECRETARY AND AN ASSOCIATION OFWHICH RESPONDENT IS A MEMBERByletter dated August 9, 1973, the Secretary?s Manpower Administration wrote tothe Florida Fruit and Vegetable Association of which association respondent isa member as pertinent as follows:? ?D. Transportationof Workers to Fields?It was observedduring the course of the investigation that most workers were transported fromtheir barrack to the fields in trailer trucks without regard to individualseating. It is our understanding that the industry has agreed to the following:1. Fixed seats invehicles with protective covering will be available for each worker transportedduring the 1973?74 pre-harvest and harvest season; and?2. All workerswill be transported in busses beginning with the 1974 season.??OnAugust 31, 1973, the manager of the association replied as pertinent asfollows:?With respect totransportation to and from fields, the sugar industry in April 1973 agreed toprovide protective covering on all transport vehicles in the 1973?74 season and??by the 1974?75season, all workers will be transported in buses or fixed seat vehicles withprotective covering.?Thecorrespondence was identified without clarification by the manager of theassociation called as a witness by the Secretary. The respondent objected toits admissibility on the grounds of irrelevancy. This objection was sustained.The correspondence was excluded as the conditions apparently agreed to by theassociation applicable to fixed seated vehicles refers to the 1974?75 seasonwhich is almost a year subsequent to issuance of the citation. The Secretary?sattorneys were granted leave to lay better foundation. Instead, they profferedthe documents. Yet, the author of the reply was on the witness stand and noattempt was made to clarify the correspondence or lay foundation to show thatit was relevant to the litigation in issue. Moreover, the correspondence refersto providing fixed seated vehicles and the Secretary has abandoned his positionstated in the citation ?. . . that employees were being transported in vehicleswith no provisions for seating.?Evenassuming arguendo the letters are admissible, they set forth no explanation forthe requested changes. If the government considered that the changes were toeliminate a hazardous condition, it would seem that the Manpower Administrationwould have immediately corrected the discrepancy between the two letters. Itmust be concluded the condition did not create a safety hazard of much concernto the government or an immediate follow-up would have been made to so advisethe industry. Also, had the correspondence been understood to advise theindustry of a hazardous condition, such fact could have been clarified by thegovernment?s witness. Yet, the Secretary asked no questions to clarify theconfusion. The documents are excluded as insufficient foundation was laid toshow relevancy.KNOWLEDGEIMPUTED TO STATEMENTS OF AREA DIRECTOR TO ASSOCIATION MEETINGSTheSecretary urges that respondent and the industry had knowledge of a ?hazardouscondition? based upon comments of the Area Director of the Occupational Safetyand Health Administration (OSHA) at association meetings on three differentoccasions. As to specific mention of the problem in issue, this witnesstestified:Q: ?And what specificallywas discussed??A: ?Transportingof workers was one of the items discussed. When I say discussed, Your Honor, Idon?t mean it was a two-way conversation. In my presentation, I said thattransporting of workers is one of the problem areas, and it should be done in asafe manner, and busses were considered a safe manner.??Q: ?But, wouldyou conclude that your discussion was specific instructions to them that theyshould use buses in the transportation of cane cutters, or was this a rathergeneral type of discussion where that they could have concluded that this wasnot specific instruction??I want to know?Iwant to know specifically what was told these people.?A: ?All right.Specifically they were told that they could not allow workers to ride on loadsof cane, which I had personally observed. That is what prompted me to mentionthat.?Q: ?Right.?A: ?And they couldnot allow them to be transported in the four-wheel tractor-drawn cane wagons.And I believe someone?I couldn?t say who at this time?asked me what the safermethod would be, what would I consider, and I said busses.?Q: ?But, you didnot?did you ever say to them not to use trucks with seats??A: ?I don?t recallever saying that, no, sir.?Q: ?Do you everrecall ever saying to them do not use trucks with someone standing whilemoving??A: ?I could sayyes. I told them specifically that transporting of workers in a standingposition would be an unsafe manner.?Q: ?Were they toldin such a manner that they could conclude that they would be in violation ofwhat is expected of them by the Occupational Safety and Health Administration??A: ?I couldn?t saythat, no sir.?Q: ?I am nottrying to embarrass you. In other words, I have to draw a conclusion from thisrecord and this is one area of the law that, you know, I want to be fair toeveryone and I?If these people were on notice, I want to know about it, and ifthey weren?t on notice.??In other words,if they were only on notice in generalities, I don?t think that is fair to them.?A: ?I could bestanswer that by I know of one company that didn?t have any question about what Isaid. They understood that certain methods were unsafe. Now, as to everycompany understanding that or not, I couldn?t attest to it.?Q: ?The one companyyou have in mind, was it the company I have before me??A: ?No, sir.??Q: ?. . .. In1971, at the sugar industry in Clewiston, the meeting there, what was the topicof your discussion as to transportation??A: ?The topicwasn?t just transportation. It was about OSHA in general. This was inSeptember, and we had just began enforcing the law.?Q: ?How much wasyour?how much time did your total presentation involve??A: ?about 25minutes.?Q: ?All right. Howmuch of this time was related to transportation??A: ?One or twosentences, at the most.?Q: ?What werethose sentences? Can you recall??*4 A: ?Not wordfor word, but basically transporting workers in cane carriers, canetransporting-type vehicles would not be permitted under the regulations.Transporting of workers riding on loads would not be permitted and standing intrucks would be an unsafe method. Other than that, I couldn?t say any specificwording.?Q: ?How much timewould you say it took you to devote to transportation, to say these one or twosentences??A: ?Thirtyseconds. I would say within two minutes.?Q: ?Let?s go rightdown to your presentation itself, the topic concerning transportation.?A: ?I was on theprogram for about 25 minutes, and I discussed, among other things, about thelaw and how we enforce it, one of which was safe transporting of workers in anyindustry.?Q: ?Were theremore than the sugar industry present at this??A: ?Yes, citrus.??Perhapsthe answer to the Secretary?s argument can best be made in the form of aquestion. Was the notice provided by the Ares Director at the meetings the typeof notice anticipated by Congress as sufficient for an employer or an industryto have notice of a ?recognized hazard? as that term is used in section5(a)(1)? When the Secretary?s evidence is subjected to this test, the answerbecomes obviously ?no.? The Secretary has failed to prove that the statementsprovided actual knowledge to respondent or knowledge of a ?recognized hazard?to the industry.OCCURRENCEOF TWO ACCIDENTS WITHIN THE INDUSTRYTheArea Director issuing the citation testified that in December 1973 and January1974 two vehicles overturned resulting in ?. . . quite a bit of mediaattention, the first two occurrences. St. Petersburg Times, your local newspapershere, the television networks in Miami, and so on.? (Tr. 334). This witness?spersonal knowledge of the facts were:Q: ?Are youfamiliar with the investigative facts as to those two accidents??A: ?Well, when wego to trial with them, the compliance officers who made the inspection will behere, sir, and they will bring it out in full detail what the findings were.???The only detailsof the accidents and those details based obviously upon hearsay were:Q: ?What type ofaccident was it??A: ?The first onewas a stake-back truck carrying about 39 people standing up which went off theroad and flipped on its side, and in this case, we had, I believe, 37 or 38hospitalized.??The second onethat occurred in January was a semi-trailer transporting approximately 80people. It likewise flipped over on its side. The box skidded, I think, 114feet and there was one person killed inside of the trailer and I believe therewas 70 some odd hospitalized.???TheSecretary relies upon the foregoing record as proof that respondent hadknowledge that a ?recognized hazard? existed. (Tr. 371).Inessence, the Secretary?s argument is that two accidents within an industrywithout details, such as similarity of equipment or operating conditions, humanerror factors, the cause or causes generating the accidents and pertinentdetails, would be notice to respondent of a recognized hazard. In addition, theSecretary assumes without supporting facts that the media described wasdisseminated to respondent. There were no witnesses called from respondent toshow that respondent received the first idiom of notification concerning theaccidents through the news media or otherwise. The injuries and fatality couldhave been solely unrelated to whether the employees were standing or that theproviding of a seat without further safety protection such as a safety beltwould have prevented injuries. The injuries and fatality may have resulted froma type of vehicle construction completely dissimilar to the vehicles used byrespondent. As stated by respondent?s counsel in support of his motion, ?Wedon?t know whether if the people had been belted down with steel helmets on . ..? injuries or a fatality would still have resulted from the accidents. To holdthat respondent had notice under the limited foregoing facts would have to bebased upon an unfounded assumption.Again,notice as to ?recognized hazard? under section 5(a)(1) of the Act cannot bebased upon speculation or conjecture as there must be proof of actual noticereceived by an employer or notice imputed because of common knowledge withinthe industry.FEDERALREGULATIONS AND FLORIDA CODE AS NOTICE OF ?RECOGNIZED HAZARD? UNDER SECTION5(a)(1)TheSecretary cites section 316.289 of the Florida Code; 29 CFR 1926.601(b)(8); 20CFR 602.10(g) and 49 CFR 398.4(g)(1) and (5) as creating notice to respondentand its industry of a ?recognized hazard? under section 5(a)(1).Section316.289 of the Florida Code pertains to transportation of migrant farm workers.29 CFR 1926.601(b)(8) is a part of what is commonly referred to as?construction standards? or regulations governing the construction industry.The specific section refers to vehicles that operate within off-highwayjobsites not open to public traffic. 20 CFR 602.10(g) are regulations of theManpower Administration, U. S. Department of Labor, as to migrant farm workers,which incorporate common carrier requirements of the Federal HighwayAdministration cited as 49 CFR 398.Ineffect, the Secretary?s argument is that he may be dilatory in advising anindustry by specific safety and health standards and then hold that industry ofbeing cognizant of every state or federal regulation or statute even remotelyrelated to the industry as notice of a ?recognized hazard? under section5(a)(1). The Secretary cannot point to any authority to support such an extremeposition. In fact, a reading of congressional reports indicates that section5(a)(1) was intended to be discriminately used. It was not intended to be usedwhere specific safety standards were or should have been promulgated coveringan industry pursuant to section 6(a) of the Act. Such is emphasized inRepresentative Steiger?s comment as to section 5(a)(1) that ?It is expectedthat the general duty requirement will be relied upon infrequently and thatprimary reliance will be placed on specific standards which will be promulgatedunder the Act.? 116 Cong. Rec. 11899 (daily ed. Dec. 17, 1970).Becauseof such intended restricted use, the criteria of whether there is notice of?recognized hazards? was in like manner restricted to actual or imputed commonknowledge within the industry. To attempt to extend the notice to imputedknowledge from all statutes or regulations irrespective of their application,violates reason and the concepts of notice as anticipated under due process.OVERALLRECORD SUPPORTS NO INDUSTRY KNOWLEDGE OF ?RECOGNIZED HAZARD?Thereare no probative facts of record to show that any employers in the industryused a different method of transportation than the method used by respondent.The Secretary?s only evidence that a different type of transportation was usedwas the hearsay statement of the former Area Director that one industryemployer was using busses. The record contains no further details or facts.Even if the hearsay statement is given weight, a practice of one employer isnot sufficient proof to show industry practice. On the contrary, the citing ofrespondent and numerous other employers within the industry as reflected fromother docketed cases leads to the inference that respondent?s practicesrepresented common practices within the industry.RECORDLACKING IN SPECIFIC FACTS TO PROVE CHARGES RELIED UPON BY COMPLAINANT AND TOSUPPORT CONCLUSIONARY OPINIONS OF EXPERT WITNESSESTosupport the charges alleged in the complaint and motion to amend at thepre-trial conference, the Secretary relied upon the testimony of a formeremployee of respondent and photographs taken by a local newspaper reported. Theformer employee?s testimony was conclusionary and lacking in specific facts tosupport the Secretary?s charges. For instance, his testimony was that thetrucks were ?packed? or ?crowded? or similar conclusions. There are no facts inthe record as to the lengths of vehicles in use or specific seating capacitiesof those vehicles. The witness conceded that he did not count the number ofemployees transported. Such facts were not offered through any other witness.This witness?s credibility was attached by opposing counsel and the recordreflects he left respondent?s employment under other than favorablecircumstances.Therecord lacks in detail supporting the conclusions of the expert witness thatthe conditions were likely to cause death or serious physical harm. TheSecretary?s proof of speed of the vehicles is based upon this witness?sestimate and the estimate of a witness riding a bicycle near darkness. Therewas no testimony as to the strength or durability of the rope in issue orexposure of employees through use of the rope at hazardous speeds. The driversof the vehicles who were in best position to offer details as to specifics ofseating, passenger capacities, vehicle speeds and company practices, were notcalled to furnish details. The lack of detail in the record to support theconclusions of the expert witnesses was called to counsel?s attention onnumerous occasions during the trial. In view of the inadequacy of the record,it is concluded also that the Secretary has failed to sustain his overallburden of proof.RELIANCEUPON THE CASE OF SUGAR CANE GROWERS COOPERATIVEOSAHRCDocket No. 7673Theintervenor filed brief relying upon the case of Sugar Cane Growers Cooperative.The intervenor cites that portion of the opinion where the Judge concludes:?There is noquestion in my mind that the general public is well aware of the ?recognizedhazard? in riding a moving vehicle in an unsecured upright position. Further,this view of the ?hazard involved in much riding was clearly enunciated tomembers of respondent?s trade association on two occasions and on each occasionrespondent had someone in attendance. While respondent makes much of thebrevity of the particular comment respecting the transportation here in issue,such brevity is more than off-set by the fact that in one instance theinformation was in response to a specific question which makes a much morelasting impression and this is especially so when the response is to a questionfrom respondent?s president. Thus, even if it were argued that this hazard wasnot generally recognized in the industry the record is clear that respondenthad actual knowledge. See Brennan v. OSAHRC and Vy Lactos Laboratories, Inc.,494 F2 [sic] 460.???In all due humble respect, a differentconclusion must be drawn in the instant case. Specifically, it is theconclusion in the instant case that ?public knowledge? was never intended byCongress to be used as a measuring device of knowledge of a ?recognized hazard?under section 5(a)(1). The intent of Congress was to limit the criteria toactual knowledge or knowledge within the applicable industry. The foregoingcriteria establishes definite standards or conditions for determiningknowledge. To extend the criteria to an indefinite standard such as ?publicknowledge? only creates vagueness and confusion. For instance, now can an employerdetermine what is ?public knowledge? and especially when applied to the uniquecharacteristics of an individual business or industry? It is concluded that?public knowledge? cannot be used as a criterion for measuring knowledge of a?recognized hazard? as that term is used under section 5(a)(1).Moreover,assuming arguendo, public knowledge could be used as a criterion, the facts inthe instant case do not support a conclusion that standing on movingtransportation is hazardous. For instance, public transportation may beobserved daily of passengers standing on school busses, public busses andsubways in large cities during crowded work hours.Respondentoffered the testimony of two experts in the field of transportation. The firstwitness?s conclusion as to the hazard in standing as opposed to sitting in aseat without safety belts came only after technical and extended formaleducation and studying tests conducted by various groups, including the U. S.Department of Transportation. (Tr. 154, 160). The second witness?s conclusioncame as a result of studies conducted by the U. S. Army over a period of atleast ten years. (Tr. 223). Certainly, such extended study does not support aconclusion that such knowledge is a matter of ?general public knowledge.?Withreference to the statements to members of the trade association, the witness?stestimony in the Sugar Cane Growers Cooperative record may have differedsubstantially from those of the same witness in the instant case. If not, indue respect to Judge Chaplin, a different weight is afforded to the testimonyof remarks to the industry in the instant case.Withreference to the conclusion drawn from the statement attributed to thepresident of respondent in the Sugar Cane Growers Cooperative case, the same witnessin the instant case testified:Q: ?. . .. Now, atthis ?72 meeting, in a previous case, you said your supposed notice came in adiscussion with George Wedgeworth. What kind of a discussion was that??A: ?No, I misledyou on that. My conversation with George Wedgeworth was primarily about burningof cane fields and pollution of the air, which I said was not our business.??Our concern ofburning of the cane fields?and I remember this conversation?was of a danger tothe health of employees only would be our concern. The other was EPA?sbusiness, and that was our conversation.? (Tr. 298).?Itappears that Judge Chaplin was misled in his conclusion that the president ofSugar Cane Growers Cooperative was personally advised of a hazard existing and?. . . that respondent in that case had actual knowledge.? (Tr. 294?300).Thearguments of the intervenor have been carefully considered and are rejected forthe above stated reasons.CONCLUSIONSOF LAW AND DECISION1.Respondent is an employer affecting interstate commerce within the meaning ofthe Occupational Safety and Health Act.2.The notice of contest was timely filed and the Commission has jurisdiction ofthe proceeding.3.The complainant has failed to prove that respondent was in violation of section5(a)(1) of the Act.Wherefore,it is ORDERED:Therespondent?s motion is granted. The citation issued on March 8, 1974, isvacated and no penalty is assessed.?DatedFebruary 3, 1975.JohnJ. LarkinJudge,OSAHRC[1]Thepertinent parts of these exhibits are reproduced in Sugar Cane GrowersCooperative of Florida, No. 7673 (June 15, 1976). The parties are directedto our decision there for an indication of the evidence that the Commissionconsiders relevant to proof of the elements of a section 5(a)(1) violation,especially the ?recognition? element.\u00a0[2] The Judge had excluded the exhibitsas irrelevant because they referred to future conditions and to a total lack offixed seating. We find them relevant to the ?recognition? factor, whether ornot they referred to a future season; they also placed respondent on notice ofthe hazards resulting from a partial lack of fixed seats. The Judge?sobjections should properly have been directed to the weight to be accorded tothe exhibits. See Fed.R.Evid. 401.[3]Complainantfailed to comply with Commission Rule 33(a)(3), 29 C.F.R. ? 2200.33(a)(3),which requires him to set forth reasons for an amendment of a citation.”