“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 76-4105 GERARD LEONE & SONS, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 April 271981DECISION\u00a0Before BARNAKO, Acting Chairman; CLEARY, andCOTINE, Commissioners.BY THE COMMISSON:This case[1]arises out of a citation charging Gerard Leone & Sons, Inc. (?Gerard Leone?or ?the company?) withviolating the standards at 29 C.F.R. ?? 1926.601(b)(10) and (11)[2] byoperating a dump truck not equipped with permanently attached means of supportfor the dump body with safety latches or other devices capable of preventingaccidental release of the dump body.? Thequestion for decision is whether the cited standards apply to vehicles operatedon a highway open to public traffic. Gerard Leone does not dispute that the dump truck in question was notequipped with the safety devices required by sections 1926.601(b) (10) and(11).? The company argues, however, thatthe truck was not subject to the cited standards because it was being operatedon a highway open to public traffic.[3]? Gerard Leone contends that the coverageprovision at section 1926.601(a)[4] limitsthe applicability of the cited standards to vehicles being operated onoff-highway jobsites.Administrative Law Judge Abraham Gold ruled that the standards at section1926.601 are not limited to vehicles being operated within an off-highway siteclosed to public traffic.? He concludedthat the emphasis of the coverage provision is on type of vehicle rather thanon 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 Goldimplicitly ruled that Gerard Leone?s dump truck is one generally operated onoff-highway job sites. [5]On review Gerard Leone argues that ?serious constitutional problemswould be presented if it were to be determined that this standard should applyto such a highway job when the very clear and express terms of the standard ledRespondent to believe that highway jobs open to public traffic wereexcluded.?? The company suggests that thestandard is limited to off-highway jobsites because both the Department ofTransportation and the various state agencies have issued extensive safetyregulations covering the operation of motor vehicles on highways.? The company also contends that even under thejudge?s reading of the coverage provision the dump truck was excluded from therequirements of sections 1926.601(b)(10) and (11), because Judge Goldspecifically found that at the relevant times it was operated on the publicstreet and there is no evidence in the record that it was used on off-highwayjobsites on any other occasion. [6] TheSecretary 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 thatsection 1926.601 does apply to this particular dump truck.? We do not, however, agree with the judge?sdetermination that the standard applies to ?vehicles which generally operate atsites not open to public traffic.??Rather, we conclude that the standard applies to trucks that operate offhighway even if they do not operate exclusively off highway, regardless ofwhere they are generally operated or where they are operated at a particulartime.The first sentence of subsection 601(a) expressly applies to ?thosevehicles that operate off highway,? while the second sentence specificallyexcludes ?equipment for which rules are prescribed in section 1926.602.?Section 1926.602, entitled ?Material Handling Equipment? applies to, amongother things, trucks that operate exclusively off-highway[7].? This indicates that trucks that operateexclusively off-highway are not covered by section 601.? It follows, therefore, that section 1926.601applies to trucks that operate both on and off highway.? Moreover, the standards at section 1926.601contain several provisions that clearly contemplate use of the regulatedvehicles on the highway:? subsection601(b)(6) applies to haulage vehicles, and subsection 601(b)(8) applies tovehicles used to transport employees.? InDurant Elevator, a Division of Scoular-Bishop Grain Elevator, 80 OSAHRC __,8 BNA OSHC 2187, 1980 CCH OSHD ?24,873 (No. 77-1518, 1980), the Commissionvacated a citation based on the cited standard?s exemption for farmvehicles.? The Commission ruled that thedefinition of farm vehicle equipped applied to the cited vehicle and precludedcoverage despite is operation on public highways.? Just as use of the vehicle in Duranton the highway does not change its character as a ?farm vehicle?, the standardinapplicable 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 areintended to protect employees on construction sites from the hazards of unsafe motorvehicles regardless of the on- or off-highway character of the site.? It is axiomatic that standards should beinterpreted to effectuate rather than frustrate their underlying intent.? Marshall v. Southwestern IndustrialContractors & 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 1926.601applies to motor vehicles (as opposed to material handling equipment) used onconstruction sites regardless of whether they are being used on or off highwayat any particular time.? ??????????? In view of our holding that section1926.601 applies to trucks that can operate both on and off highway regardlessof their actual or general use or the location where they are operated at anyparticular time, Gerard Leone?s argument that the record contains no evidence thatthe cited truck was ever used ?off-highway becomes inapposite. [8]??????????? Accordingly, we affirm the judge?sdecision.? SO ORDERED.\u00a0\/s\/ RayH. Darling, Jr.EXECUTIVESECRETARY\u00a0BARNAKO,Acting Chairman, dissenting:??????????? The majority?s interpretation ofsubsection 601(a) is neither consistent with the plain and natural meaning ofits terms nor necessary to effectuate the purpose of the motor vehiclestandards as a whole.? The standards atsection 601 do not apply to the cited conditions and therefore I dissent fromthe decision to affirm the citation alleging that Respondent violated 29 C.F.R.? 1926.601(b)(10) and (11).??????????? Questions of regulatoryinterpretation must begin with the premise that employers have a right to fairwarning of what conduct a standard prohibits or requires.? In consequence, if the terms of a regulationhave a natural or customary meaning which is consistent with the overallregulatory scheme, we must not strain and bend that language to imposerequirements which employers could not reasonably have anticipated.? See Gil Haugan d\/b\/a Haugan Constr. Co79 OSAHRC 107\/A2, 7 BNA OSHC 2004, 1979 CCH OSHD ? 24,105 (No. 76-1512, 1979)(concurring and dissenting opinion).?This approach not only serves due process of law, it ultimately bestserves the Act itself, for ?[t]o strain the plain and natural meaning of wordsfor? the purpose of alleviating aperceived safety hazard is to delay the day with the occupational safety andhealth regulations will be written in clear and concise language so thatemployers will be better able to understand and observe them.? DiamondRoofing Co. v. OSHRC, 528 F.2d 645, 650 (5th Cir. 1976).??????????? The standards at issue in this caseare expressly limited in application by subsection 601(a) to motor vehicles?that operate within an off-highway jobsite, not open to public traffic.?? Therefore, the cited standards apply only ifit can be established that that the vehicle is being operated in an off-highwayjobsite.? ??????????? My colleagues conclude that section 601applies to the vehicles which can operate in off-highway jobsites,regardless of whether they operate at such a site at any particular time.[9] Not onlyis such an interpretation contrary to the clear wording of subsection 601(a)but by focusing on the type of vehicle in question rather than the location ofthe vehicle is actually used, my colleagues ignore the fact that materialhandling equipment governed by section 602, to which the cited standards do notapply, is expressly defined in terms of vehicle type.? Furthermore, the term ?that operate? insubsection 601(a) implies a test based on location of the vehicle; this termdoes not appear in subsection 602(a).? Inmy opinion, my colleagues err in reading into section 601? a test based on vehicle type since theexpress language referring to vehicle type, which appears elsewhere in thestandards, is not an element of subsection 601(a) and since a limitation basedon location does not appear in subsection 602(a) which is directed at vehicletype.? Because subsection 601(a) and602(a) clearly distinguish coverage based on location from coverage based ontype, the reasonable employer would not interpret subsection 601(a) as imposingany requirements based solely on vehicle type.???????????? Furthermore, it is a basic tenet ofregulatory construction that standards are to be read together so as to form aharmonious whole; meaning should, if possible, be given to ever word and phrasef a standard.? United States v.Menasche, 348 U.S. 528, 538-39 (1955).?In my view, the provisions of section 601, which is entitled ?Motorvehicles? apply to any motor vehicle during the time that it is operatingwithin an off-highway site unless the vehicle is one of the specific types towhich section 602, entitled ?Material handling equipment,? applies.? The latter standard applies to equipment ofthe type specified regardless of where it operates.? Any gaps in coverage between these two sectionswould be filled by the provisions at section 600, which is entitled ?Equipment?generally.[10]Finally, I note that contrary to my colleagues? opinion, our decision inDurant Elevator, A Division of Scoular-Bishop Grain Elevator, 80OSAHRC????? , 8 BNA OSHC 2187, 1980 CCHOSHD ? 24,873 (No. 77-1518, 1980), does not support their conclusion.? In Durant Elevator, we did notdisregard the literal meaning of the definition in issue.[11]? Rather, we determined that the vehicle citedin that case ?fit within the literal definition of ?farm vehicle? ? and thus wevacated the citation.? We did not, as my colleaguesdo in this case, adopt a strained reading of the plain meaning of the relevantdefinition.? In any event, DurantElevator is plainly distinguishable from this case since it involved thedefinition of a certain vehicle type in terms which did not include the actualor present use of the vehicle.? The issuein this case, however, concerns a scope provision which is based on thelocation of use and not the vehicle type.???????????? Because the evidence does notestablish that the cited truck operated off-highway, I would vacate thecitation.[12]\u00a0\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 76-4105 GERARD LEONE & SONS, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 September21, 1977APPEARANCES:Robert J. Murphy, Esq., For Complainant\u00a0John D. O?Reilly, III, Esq., For Respondent\u00a0DECISION AND ORDER??????????? This case was heard at Boston,Massachusetts, on March 29 31, and April 1, 1977, pursuant to Section 10(c) ofthe Occupational Safety and Health Act, 29 U.S.C. ?659(c).??????????? On August 23, 1977, Respondent wasissued a 2-item serious citation (#1), a single-item willful citation (#2), anda nonserious citation (#3) consisting of two items. Penalties proposed by theSecretary of Labor totaled $11,490. Respondent contested all charges.??????????? Respondent is a corporation with anoffice and place of business at Weston, Massachusetts (Ans. II), engaged inconstruction as a general contractor, basically in utility, and heavyconstruction (Ans. II, Tr. IV\/86 87); Respondent?s employees receive, handle,and work with goods and materials that have moved across state lines ininterstate commerce, and Respondent thereby engages in a business affectingcommerce within the meaning of ? 3(5) of the Act (Ans. II). Based on theforegoing it is found that the Commission has jurisdiction over the parties andthe subject matter.??????????? 29 U.S.C. ? 654(a)(2) requires thateach employer comply with occupational safety and health standards promulgatedunder the Act.??????????? Under 29 U.S.C. ? 666(a) an employerwho willfully or repeatedly violates the Act may be assessed a civil penalty ofup to $10,000 for each such violation.??????????? Pursuant to 29 U.S.C. ? 666(b), anemployer shall be assessed a civil penalty of up to $1,000 for each seriousviolation.??????????? Section 666(c) provides that anemployer may be assessed a civil penalty of up to $1,000 for each nonseriousviolation.??????????? 29 U.S.C. ? 666(j) declares that ?a serious violation shall be deemed to existin a place of employment if there is a substantial probability that death orserious physical harm could result from a condition which exists, or from oneor more practices, means, methods, operations, or processes which have beenadopted 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 presenceof the violation.??Civilpenalties shall be imposed only after considering the size of the business ofthe employer, the gravity of the violation, the good faith of the employer, andthe history of previous violations. 29 U.S.C. ? 666(i).??????????? All of the citations center on a10-wheel dump truck, driven by Dias, an employee of Respondent (Tr. I\/9, 18,IV\/24).??????????? A compliance officer of theDepartment of Labor conducted an investigation on August 16, 1976, at a jobsiteat Bedford, Massachusetts (Tr. II\/6), where six or seven employees ofRespondent were engaged in a sewer project (Tr. I\/6 7). Earlier that morning atthe site one employee (Braga) was killed and another (Dias) injured when theraised body of the dump truck suddenly dropped on them (Tr. I\/18 22).??????????? At the time of the mishap Respondentwas excavating and laying sewer pipe (Tr. IV\/98, 157) in a residential areathat was not closed to public traffic (Tr. III\/25 28). On that day excavatedmaterial was loaded on the truck in one area of the street, then driven by Diassome 50 feet and dumped out on the street next to a trench located in themiddle of the street (Tr. I\/63 64).??????????? Citation #1 alleges that Respondentcommitted a serious violation of these standards:? Subpart O?Motor Vehicles, MechanizedEquipment, and Marine Operations? ? 1926.601 Motor vehicles.? Item 1(10) Trucks with dump bodies shall beequipped with positive means of support, permanently attached, and capable ofbeing locked in position to prevent accidental lowering of the body whilemaintenance or inspection work is being done.\u00a0Item 2(11) Operating Levers controlling hoisting ordumping devices on haulage bodies shall be equipped with a latch or otherdevice which will prevent accidental starting or tripping of the mechanism.???????????? As to serious Item 1, there isundisputed evidence that the dump truck was not equipped with a permanentlyattached support device capable of being locked in position to preventaccidental lowering of the body (Tr. II\/11, II\/17 21, III\/125, III\/166), and itis so found. It was the claim of Respondent that it was its practice to placehardwood timber or channel iron under the raised body to support it (Tr. II\/2425, III\/50 52); this does not meet the standard?s requirement that the means ofsupport be ?permanently attached? to the truck.??????????? With respect to serious Item 2, itis clear that the operating levers that controlled hoisting or dumping were notequipped with a latch or other device to prevent accidental starting ortripping of the mechanism (Tr. II\/11, 54 IV\/79, Exh. C 4), and I so find.??????????? However, it is Respondent?s positionthat ?? 1926.601(10) and (11) do not apply because the dump truck, beingoperated on a public street open to public traffic at all times, was excludedfrom coverage by ? 1926.601(a), which reads:(a) Coverage. Motor vehicles as covered bythis part are those vehicles that operate within an off-highway jobsite, notopen to public traffic. The requirements of this section do not apply toequipment for which rules are prescribed in ? 1926.602.???????????? The Secretary has cited Clarkson Construction Co. v. OSHRC andSecretary of Labor, 531 F.2d 451 (10 Cir. 1976) on this point. From myreading of Clarkson, I do not seethat the Court specifically offered any interpretation of 1926.601(a)(1).??????????? It is beyond dispute that theresidential streets in Bedford, Massachusetts, where Respondent was excavatingand 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 materialshall be placed so that vehicular and pedestrian traffic may be maintained atall times unless permission to close the street is received in writing from theproper authority. Respondent?s treasurer testified that on three occasions heapplied to the Board of Selectmen for permission to close these streets totraffic, and the requests were denied (Tr. IV\/93 95). On August 16, 1976, Diaswas driving the dump truck only on Norma Road (Tr. III\/32, 36, 37, I\/63 64), adead-end street (Tr. III\/33) containing only two houses (Tr. III\/35); thestreet was open to public traffic (Tr. III\/33 36).??????????? I do not agree with Respondent?sclaim 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 ratherthan the location in which they are operating at a particular time. To holdotherwise would exclude dump trucks from the protection of both 1926.601 and1926.602, which does not make sense.[13] Dumptrucks 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 topublic traffic. In order to give meaning to 601(a)(1) and 602(a)(2), the onlyreasonable interpretation of 601(a)(1) is that it intends the rules in 601 toapply 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 whileoperating within an off-highway site closed to public traffic; if that had beenintended, the regulation could have said so. It is found that the standardscited in the serious citation apply to the facts in this case. Respondent?smotion at trial (Tr. II\/204) for dismissal of the serious charges on the basisof 1926.601(a)(1) is denied.??????????? Respondent did not comply with therequirements of 1926.601(10) and (11), and I so find. I further find that therewas a substantial probability that death or serious physical harm could haveresulted from either of these violations,?in fact, a death did result?and thatRespondent, through its job superintendent (Philbrick) at the site, knew orwith the exercise of reasonable diligence could have known of the presence ofthe violative conditions. It is therefore found that these violations were of aserious nature.??????????? Citation #2 charges a willfulviolation of 29 CFR 1926.601(b)(1), which requires all vehicles to have aservice brake system, an emergency brake system, and a parking brake system ?inoperable condition.???????????? Respondent?smotion for dismissal (Tr. II\/204), denied supra,also encompassed this willful citation, and it is again denied for the samereasons.??????????? The citation alleges that on August13 and 16, 1976, the service (foot) brake system of the dump truck was not inan operable condition.??????????? Respondent?s employee Dias, whooperated the truck, testified that on Friday, August 13, 1976, he heard ahissing sound because of an air leak; that he was having trouble with thebraking system; that when he would jam on the brakes and try to shake the loadof dirt out of the raised dump body, the dirt did not fall out because he ?hadno brakes to shake the body with? (Tr. I\/14 15); that he reported to Philbrickthat ?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); andthat Philbrick told him to drive the truck ?a few more times and then we?llpark the truck and go home early? (Tr. I\/14). He added that the crew did gohome early that day, leaving at about 3:30 p. m. (Tr. I\/15).??????????? In other testimony, Dias claimedthat when he reported for work on Monday morning, August 16, Philbrick told himto start the truck; that again he heard the air leak; that he reported this toPhilbrick 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 difficultydumping the material, so he drove up to the backhoe, which scratched thematerial out (Tr. I\/83 84).??????????? After making two or three trips withthe truck, Dias observed that there was a problem with the backhoe, and thatthe 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 dumptruck to check on the air leak; before he got out, he had seen though the rearview mirror that Braga, who had been standing by the trench doing laboringwork, was already under the dump body on the passenger side; he had shut offthe 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 theleak and was told, ?No? (Tr. I\/89); he joined Braga under the body, Diasstanding on the driver?s side (Tr. I\/24); he and Braga stood there for a coupleof minutes when the truck body came down and pinned them (Tr. I\/21, 91).??????????? After considerable questioning attrial, Dias finally testified that he saw Braga touch a lever on the truck, andthat just as soon as he did so, the truck body came down on them (Tr. I\/25, 9098). According to Dias, Braga had been under the truck body for about threeminutes and he (Dias) for about 2 3 minutes when this happened (Tr. I\/144).??????????? Philbrick testified that he knewthat 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, assertingthat Dias had not informed him on either day of any leak in the air brakesystem (Tr. III\/53 54). Philbrick denied hearing any hissing sound (Tr. III\/5455, 58) or observing Dias having any difficulty with the brakes on either day(Tr. III\/36, 43, 56).??????????? Gentry, resident engineer on theproject, and Philbrick saw Dias and Braga standing between the raised body andthe frame of the truck; Philbrick and Gentry testified that both had shouted tothe 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 fromunder the raised body while he and Braga were there (Tr. I\/102 103).??????????? It was the testimony of Philbrickthat if he had been told about a leak in the air brake system he would haveinstructed 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 brakeshundreds of times, and that as a rule a leak can be repaired in anywhere fromfive minutes to an hour, and that many times it takes only a few minutes (Tr.III\/133 134).??????????? I do not place any reliance uponDias? claim that he complained about the brake system to Philbrick on August 13and again on August 16. No other employee at the site witnessed his having anydifficulty with the brakes (Tr. III\/56, 149, IV\/175). The declarations of Diasabound in inconsistencies. In a statement made to the compliance officer of theLabor Department on August 17, 1976 (Exh. R 1), he said that he had toldPhilbrick about a leak in the air brake system at about 2:30 p.m., on August13, 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 truckagain on Friday afternoon after informing Philbrick of the leak (Exh. R 1), butat trial he testified that Philbrick told him to drive the truck a few moretimes so that a pipe could be laid, and that he made about three or fouradditional trips with the truck (Tr. I\/71 72). In his testimony at trial Diasclaimed 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 August17 he makes no such claim (Exh. R 1). When he was questioned at trial as towhether 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 wasobviously evasive and untruthful before finally admitting that he saw Bragatouch 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), latersaying that he thought he saw Braga do so (Tr. I\/92), again saying that he sawhim do it (Tr. I\/92), still later changing his story by saying that he was ?notquite sure, really? (Tr. I\/95). He had told the compliance officer on August 17that 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 wenthome early when it left at 3:30 p.m., on August 13 is contradicted byPhilbrick, who testified that the regular quitting time on Fridays was 3:30p.m. (Tr. III\/118); that on that job it was customary to work four 10-hourdays, ending the week on Thursday night, but the men did work on maybe three orfour Fridays (Tr. III\/125 126). I find Philbrick?s testimony more reliable thanthat of Dias on this point.??????????? The charge that the allegedviolation was willful is based on the statements of Dias that he had putPhilbrick on notice that the brake system was not operable. Dias has a stronginterest in whether a willful violation is established. He has filed aworkmen?s compensation claim because of the accident, and if there was willfulmisconduct by Respondent he would be entitled to extra compensation on thatclaim. (Tr. I\/109).??????????? In any event, I find that on thisrecord the Secretary falls short of proving by a preponderance of the evidencethat the brake system was not in operable condition. Dias claims that he washaving trouble with the brakes, but no other employee at the site noticed anyproblem. The strongest evidence offered by the Secretary was that of Wallace,an investigator with the Massachusetts Registry of Motor Vehicles, who relatedthat on August 16 (Tr. I\/159) he got into the truck with Merrill, who startedthe motor, and after it ran for approximately five minutes there was only 40pounds 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 orno resistance at all? when he pulled it (Tr. I\/164).[14] Thetruck was then towed to the town yard (Tr. I\/163).??????????? Merrill asserted that after he ranthe 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 andmotioned 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 alsotestified that after 15 20 minutes later the wrecker arrived, and he drove thedump 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 tofunction perfectly when he applied them about 8 9 times; that the air pressuregot up to around 65 pounds in about 2 1\/2 minutes; that at that pressure thebrakes are operative; that he drove the truck for a total distance ofapproximately 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 allair brake systems have a pressure relief valve, and that when the air tank isat maximum pressure, it makes a hissing sound when it blows off the valve (Tr.III\/154).??????????? In other testimony, Merrill saidthat during the afternoon of August 16, in the Bedford town garage, he startedthe truck motor and ran it for about 4 5 minutes, and he believed that thepressure was up to 95 or maybe 100 pounds (Tr. III\/155 158); that the Leonebrothers (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 therewas to be a citation for faulty brakes (Tr. III\/158 159); that he went to theWeston garage where the truck was then located, and the only thing wrong he andanother employee of Respondent (Spencer) could find was a little hissing comingfrom 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 nothave any effect on the braking operation (Tr. III\/161 162).??????????? Gerard Leone, Respondent?sPresident, declared that the registry investigator had notified him at the sitethat he had removed the plates from the truck because of six bald tires and abroken floor board, but had not indicated that there was any problem with thebrakes (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 theproposed list of citations which included one for the brakes (Tr. IV\/35 36).??????????? The compliance officer admitted thathe never tested the brakes (Tr. II\/76 78). He could not recall any discussionwith 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 thebrakes was based on his ?investigation and several consultations withrepresentatives of the Department of Labor, including the solicitors and aregistry inspector from the Registry of Motor Vehicles? (Tr. II\/79).??????????? Incidentally, one of the Secretary?switnesses, Miller, a brother-in-law of Dias, testified that on the dayfollowing the accident, while he was visiting Dias at the hospital, he heardPhilbrick tell Dias that the air leak had been found, and that it was near themaster cylinder (Tr. II\/169). Philbrick denied any such conversation, andtestified that the dump truck has no master cylinder (Tr. III\/72 74). In myview, Miller?s statement does not merit credence.??????????? The registry investigator claimedconsiderable experience in repairing and inspecting hydraulic brake systems(Tr. I\/165), but not air brake systems. He relied on one brief running of themotor on August 16 to decide that the air pressure was too low. The complianceofficer 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 withthe Secretary, and on this record I find that Complainant has not establishedthat the service brake system was not in operable condition. The willfulcitation will be ordered vacated.??????????? The nonserious citation consists oftwo items:Subpart C?General Safety and HealthProvisions? ? 1926.20 General safety and healthprovisions.?(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 thispart is prohibited. Such machine, tool, material, or equipment shall either beidentified as unsafe by tagging or locking the controls to render theminoperable or shall be physically removed from its place of operation.\u00a0Item 2(4) The employer shall permit only thoseemployees qualified by training or experience to operate equipment andmachinery.???????????? Nonserious Item 1 will be vacated becausethere has been no showing that the truck?s service brake system was not inoperable condition. Hence, there was no need to tag, lock, or remove it fromits place of operation.??????????? Turning to nonserious Item 2, thetruck 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 tooperate 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 vehiclehaving a registered gross weight in excess of 18,000 pounds (Tr. I\/155).However, the standard under consideration is not violated merely by proof oflack of an appropriate license to operate the equipment; the standard isbreached only if it is shown that the employer permitted operation of theequipment by an employee who was not qualified by training or experience to doso. There are various types of vehicles in use at construction sites, some morecomplicated than others. A licensed employee may well be unqualified bytraining or experience to operate a certain vehicle; on the other hand, anunlicensed employee might be highly qualified, by training or experience, tooperate that particular equipment.??????????? When interviewed by the complianceofficer on August 17 (Exh. R 1), Dias said that he had driven the truck foronly about one week prior to the accident. He stated at trial that he drovethis dump truck at the site, off and on, for about two months (Tr. I\/52); andthat in 1975 he had driven a 10-wheeler dump truck at a construction project atNatick, Massachusetts (Tr. I\/46 48). Philbrick testified that he had observedDias operating a dump truck at a site at Wareham, Massachusetts about fouryears ago (Tr. III\/12 13). Gerard Leone testified that Dias had told him thathe 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 aftercompleting his day?s work, and he took Dias out into the yard to give him a lessonon driving the dump truck; that Dias demonstrated to him that he was alreadyfamiliar with the operation, and drove the truck with more than a basic degreeof skill (Tr. IV\/14 16). Leone added that Dias did grind a couple of gears, butthat 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 thevehicle? (Tr. IV\/16).??????????? Gerard Leone further testified thathe observed Dias driving the dump truck at the Bedford site once or twice aweek, and never saw Dias having any difficulty (Tr. IV\/24).??????????? Joseph Leone claimed that on oneoccasion, on July 12, 1976, he saw Dias back up in zig-zag fashion for adistance of 550 700 feet in a superb manner, and complimented for the feat (Tr.IV\/100 102).??????????? It is clear that Dias told thecompliance officer less than the truth when he mentioned only the one week ofdriving the vehicle. The compliance officer conceded that he would not haverecommended 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 thatComplainant has failed to show that Dias, the operator of the truck, was notqualified by training or experience to operate this equipment. Item 2 of thenonserious citation has not been established, and it is so found.??????????? Thus, only the two serious itemswill 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 finalorder of the Commission (Exh. R 4, Tr. II\/66). Respondent has a rather fullsafety program (Tr. II\/122, IV\/50 55, Exh. R 9), but the violations are of aserious nature, and of a high level of gravity; in fact, a death stemmed fromthese 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 thatserious Items 1 and 2 be affirmed, and a penalty of $950 be assessed for eachitem; and that the willful citation and the two nonserious items be vacated.?ABRAHAMGOLDJudge,OSHRCDated:September 21, 1977?Boston,Massachusetts[1] The decision ofthe administrative law judge comes before the Commission pursuant to section12(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 MotorVehicles.? ??(b)? General Requirements.? ??(10)? Trucks with dump bodies shall be equippedwith positive means of support, permanently attached, and capable of beinglocked in position to prevent accidental lowering of the body while maintenanceor inspection work is being done.(11)? Operating levers controlling hoisting ordumping devices on haulage bodies shall be equipped with a latch or other devicewhich will prevent accidental starting or tripping of the mechanism.[3] Theadministrative law judge found that Gerard Leone?s worksite was on a highwayopen to public traffic, and that finding is not challenged on review.[4] This sectionprovides:? 1926.601 Motor Vehicles.(a)\u00a0\u00a0Coverage. Motor vehicles as covered by this partare those vehicles that operate within an off-highway jobsite, not open topublic traffic.? The requirements of thissection do not apply to equipment for which rules are prescribed in ? 1926.602.[5] The judge alsoruled 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 Clarksondealt with the question of whether standards at 1926.601 apply to vehiclesoperated off the worksite, whereas the question here is whether they apply tovehicles being operated on a worksite that is open to public traffic. [6] Gerard Leone alsorelies on S.J. Groves & Sons Co., 77 OSARHC 129\/C13, 5 BNA OSHC1946, 1976-77 CCH OSHD ? 20, 962 (No. 15573, 1977) (ALJ).? This, however, is an unreviewed judge?sopinion and as such is not binding on the Commission.? Leone Constr. Co., 76 OSAHRC 12\/E6, 3BNA OSHC 1979, 1975-76 CCH OSHD ? 20,387 (No. 4090, 1976).[7] ? 1926.602 Materialhandling equipment.(a)\u00a0\u00a0Earthmovingequipment; General (1) These rules apply to the following types of earth movingequipment:? scarpers, loaders, crawler orwheel tractors, bulldozers, off-highway trucks, graders, agricultural andindustrial tractors and similar equipment.?The promulgation of specific rules for compactors and rubber-tired?skidsteer? equipment is reserved pending consideration of standards currentlybeing developed.[8] In granting thecompany?s petition for review, Acting Chairman Barnako directed the parties toconsider 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 shallbe substantially blocked or cribbed to prevent falling or shifting beforeemployees are permitted to work under or between them.? Bulldozer and scraper blades, end-loaderbuckets, dump bodies, and similar equipment, shall be wither fully lowered orblocked when being repaired or when not in use.?All controls shall be in a neutral position, with the motors stopped andbrakes set, unless work is being performed requires otherwise.However, our holding makes itunnecessary 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 notapply to trucks which operate exclusively off ?highway.? See note 2, infra. [10] My colleaguesstate the section 602 applies, and section 602 does not apply, among otherthings, to trucks operated ?exclusively off highway? (emphasisadded).? However, trucks operatedexclusively off highway are capable of being operated on a highway jobsite aswell.? Therefore, may colleagues?characterization of their holding ?that section 601 applies to trucks that canoperate both on and off highway regardless of their actual or general use ?.?(emphasis added) is inconsistent for it includes all off-highway trucks withinthe ambit of section 601.[11] DurantElevator involved the meaning of the term ?farm vehicle? as used in thestandard regulating hydrous ammonia, 29 C.F.R. ? 1910.111.[12]? A provision of the general standard atsection 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 partsthereof, which are suspended or held aloft by the use of slings, hoists, or jacksshall be substantially blocked or cribbed to prevent falling or shifting beforeemployees are permitted to work under or between them ?[D]ump bodies ?shall beeither fully lowered or blocked when being repaired or when not in use.?? I would not, however, ament he citation toallege a violation of this standard.?Such an amendment would only be appropriate if the parties tried theissue of a violation of subsection 600(a)(3)(i) by express or impliedconsent.? See Mississippi Power & LightCo., 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 BNAOSHC 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 possibilityof Repsondent?s noncompliance with subsection 600(a)(3)(i) was never raised ator prior to the hearing, and the parties plainly did not believe that they weretrying a violation of that standard.?Moreover, the requirements of the subsection 600(a)(3)(i) differsubstantially from the requirements of the standards that were cited.? The cited standards require that dump trucksbe equipped with certain devices, while subsection 600(a)(3)(i) required thatcertain work practices be followed.?Thus, Respondent did not have the opportunity fully to litigate allissues relevant to a possible violation of subsection 600(a) (3) (i).? I also note that the Secretary has not movedfor an amendment to subsection 600(a)(3)(i) even after my direction for reviewcalled attention to the possible applicability of that standard.[13] 1926.602(a)(1) states that the ruleswhich follow apply to certain listed types of earthmoving equipment, and1926.601(a)(1) declares that the requirements of 1926.601 do not apply toequipment for which rules are prescribed in 1926.602.[14] The citation and complaint do notallege that the hand brake was not operable. The allegations refer only to theservice (foot) brake system.”