“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 6790 ROBERT T. WINZINGER, INC., \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0July 22, 1976DECISIONBEFORE BARNAKO,Chairman; MORAN and CLEARY, Commissioners.CLEARY,Commissioner:OnFebruary 5, 1975, Administrative Law Judge William E. Brennan issued hisdecision affirming two of four alleged violations of section 5(a)(2) of theOccupational Safety and Health Act of 1970, 29 U.S.C. ? 651 et seq.[hereinafter the ?Act?] issued to respondent employer, Robert T. Winzinger,Inc. The Judge affirmed a citation for serious violation for failure to complywith the standard at 29 CFR ? 1926.651(c),[1] and one item of a citationfor non-serious violations, for failure to comply with the standard at 29 CFR ?1926.651(i)(1).[2]Two items of the non-serious citation, alleging noncompliance with thestandards at 29 CFR ? 1926.602(a)(9)(ii)[3] and 29 CFR ? 1904.2,[4] were vacated.The$650 penalty proposed by the Secretary for the serious violation was reduced bythe Judge to $325. Also, although the Secretary proposed no penalty forrespondent?s failure to comply with ? 1926.651(i)(1), the Judge assessed apenalty of $25.Pursuantto section 12(j) of the Act, review of the Judge?s decision was directed on thefollowing issues:(1)With regard to the violation of ? 1926.651(i)(1), what was the legal basis forthe assessment of a monetary penalty where none had been proposed; and(2)With regard to the vacation of the alleged violation of $1926.602(a)(9)(ii),whether the Judge committed reversible error in finding that there was noevidence of record to support a conclusion that Respondent knew, or could havereasonably anticipated, the breach of company rules by its employee, or thatsuch breach was other than an isolated occurrence.Therelevant facts are as follows: On January 24, 1974, an OSHA compliance officerinspected respondent?s worksite in Camden, New Jersey. The compliance officerobserved an excavation which was 27-feet long, 15-feet wide, and 10-feet deep.The excavation was dug in a sandy soil. Some clay was encountered toward thebottom of the excavation. Various types of debris in the excavation, such asbricks and pieces of wood, indicated that some parts of the excavationconsisted of backfill. Recent rains caused the soil to be damp. This adverselyaffected the soil?s stability. Further, a heavily travelled road passed within7 feet of the excavation, increasing the load on the walls, and subjecting themto vibration. Excavated materials were piled directly on the edges of theexcavation. The highest pile was measured to be 40 inches. The evidenceestablishes that at least one, and possibly three, employees had been in theexcavation before the inspection.Thecompliance officer also observed a front-end loader with an obstructed rearview being operated in reverse without a backup alarm or signalman. The loaderhad been equipped with an alarm, but it had been disconnected by the operator.Inhis decision, Judge Brennan found that respondent had not complied with therequirements of 29 CFR ? 1926.651(c) and 29 CFR ? 1926.651(i)(1). Consideringrespondent?s size, good-faith, safety history, and the gravity of the violationthe Judge reduced the penalty for the ? 1926.651(c) violation to $325 from the$650 proposed by the Secretary. Although the Secretary proposed no penalty forthe ? 1926.651(i)(1) violation the Judge, finding that the extra load imposedon the excavation walls by the spoils piles increased the danger of a cave-in,assessed a penalty of $25.Itis well-settled that this Commission has the authority to assess penalties inexcess of those proposed by the Secretary. California Stevedore &Ballast Co. v. O.S.H.R.C., 517 F.2d 986, 988 (9th Cir. 1975); REAExpress, Inc. v. O.S.H.R.C., 495 F.2d 822, 827 (2d Cir. 1974); Brennanv. O.S.H.R.C. and Interstate Glass Co., 487 F.2d 438, 442 (8th Cir. 1973).Respondentwas cited for noncompliance with ? 1926.651(i)(1) because the complianceofficer believed that there was a hazard, albeit slight, that piled materialcould fall into the excavation and onto employees working within it. The Judgeimposed the $25 penalty for the violation because he found that the extra loadimposed by the spoil piles increased the likelihood of a cave-in. Thus, thepenalty assessment was based upon the gravity of the ? 1926.651(c) violation.The proper action for the Judge in this situation would have been to increasethe penalty for the violation which the condition aggravated. We will,therefore, vacate the penalty for the ? 1926.651(i)(1) violation, but raise thepenalty for the serious violation of ? 1926.651(c) by the amount involved toreflect more accurately the gravity of the violation caused by the spoil piles.Regardingthe alleged violation of ? 1926.6 2(a) Judge found that the operator of thefront-end loader backup alarm contrary to respondent?s instructions. anyevidence of record to indicate that respondent knew reasonably anticipated thisbreach of company rules, the that the disconnection of the alarm was an?isolated employee disobedience. Citing to the principle announced in StandardGlass Co., Inc., 1971-1973 CCH OSHD para. 15,146, 1 BNA OSHC 1045 (No. 259,1972), the Judge vacated the item.TheJudge erred. Whether a violation was the result of an unexpected, isolatedinstance of employee disobedience of a uniformly enforced work rule is anaffirmative defense to be proved by the respondent. Standard Glass Co.,Inc., supra; Mississippi Valley Erection Co., 1973-1974 CCH OSHD para.17,098, 1 BNA OSHC 1527 (No. 524, 1973); Murphy Pacific Marine Salvage Co.,1974-1975 CCH OSHD para. 19,205, 2 BNA OSHC 1464 (No. 2082, 1975). Thus, it waserror for the Judge to vacate the item on the grounds that the record wasdevoid of evidence establishing respondent?s knowledge of the violation in thatthe Secretary did not prove that the disconnecting of the alarm was not anisolated occurrence.Further,the record establishes that, although there was a company rule againstdisconnecting the backup alarm, that rule was not uniformly enforced.Respondent?s equipment operator testified that it was common practice todisconnect the alarm when working in the middle of an open field or roadway.Respondent?s vice-president testified that, although an operator would be askedto reconnect an alarm when one was found to be disconnected, there was noformal company policy against disconnecting the alarms. In light of thisevidence, it is clear that respondent failed to establish the affirmativedefense and was in violation of the standard.Theevidence also establishes employee exposure to the hazard. Approximately sixemployees were in the general area of the front-end loader. One employee wasapproximately 20 feet from the vehicle. We find the Secretary?s proposedpenalty of $30 to be appropriate. Respondent is of average size. It grossedunder $7 million during 1973 and maintains a work force of approximately100-110 employees. Respondent has exhibited good-faith in this matter and hasno history of previous violations. Finally, the violation was of low gravity.The compliance officer testified that because the vehicle moved slowly andthere were only a few employees in the area of operation, the probability of anaccident was very low.Accordingly,it is ORDERED that: (1) No penalty be assessed for the violation of 29 CFR ?1926.651(i)(1); (2) A penalty of $350 is assessed for the citation for seriousviolation of 29 CFR ? 1926.651(c); (3) The citation for violation of 29 CFR ?1926.602(a)(9)(ii) is affirmed and a penalty of $30 is assessed.?In all otherrespects, the Judge?s decision is affirmed.?FOR THECOMMISSION:?William S.McLaughlinExecutiveSecretaryBy: Gloria W.WhiteActing ExecutiveSecretaryDATED: JUL 22,1976?MORAN,Commissioner, Dissenting:Thiscase represents another complete reversal from the position taken by the sametwo members in Secretary v. Francisco Tower Service, OSAHRC Docket No.4845, February 6, 1976, and more than 50 subsequent decisions which have citedthat decision as precedent for vacating a Commission member?s direction that aJudge?s decision be reviewed.Messrs.Barnako and Cleary took the position in those cases that there was nojustification for taking up matters on review which were not raised by theparties. To quote from their Francisco Tower decision:? ?The ?issue? was neither raised, tried, norargued by the parties.?NowI ask my colleagues?and they will have plenty of time to revise their opinionbefore this decision is issued?which party ?raised, tried, or argued? thatJudge Brennan?s assessment of a $325 penalty for the ? 1926.651(a) charge wasinadequate? The briefs and other documents filed by the parties show that nomention of increasing this penalty from $325 to $350 was ever raised. Althoughtwo members of the Commission filed directions for review, neither of themmentioned the penalty levied by the Judge for the ? 1926.651(a) charge.Fortwo members of this Commission to arbitrarily increase a penalty amount?withoutever notifying the parties that such a matter is under consideration or givingthem a chance to state views on the matter?dishonors the judicial process andsmacks of star-chamber ?justice.? For Messrs. Barnako and Cleary to dothis?after pontificating for six months that the Commission should not take upmatters which were not listed in the direction for review.[5] ?unmasks their transparenthypocrisy for all to see.Theforegoing is not only charge in this case for which my colleagues have orderedan erroneous disposition.JudgeBrennan vacated a charge[6] that respondent violatedthe Act because of an alleged failure to comply with the requirements of 29C.F.R. ? 1926.602(a)(9)(ii). The charge specified that a piece of constructionequipment was not equipped with a reverse alarm. The Judge found that the equipmentdid have such an alarm ?[h]owever, its operator, contrary to respondent?sinstructions, had disconnected this alarm because there were no employees inthe immediate area where this equipment was being used to compact fill dirt.?Inorder for the respondent to be in violation of the Act there must be evidenceestablishing that its employees were exposed to the hazard resulting fromnoncompliance with the cited safety standard. See e.g., Secretary v. ChicagoBridge & Iron Company, 14 OSAHRC 361 (1974); Secretary v. BechtelCorporation, 12 OSAHRC 774 (1974). This Commission has determined thatexposure is established if the employees had access[7] to the zone of danger.That is, complainant must prove that the employees either while in the courseof their assigned working duties, their personal comfort activities while onthe job, or their normal means of ingress-egress to their assigned workplaces,will be, are, or have been in the zone of danger. Secretary v. Gilles &Cotting, Inc., OSAHRC Docket No. 504 (February 20, 1976).Thatis not the case here. As the Judge stated: ?. . . there were no employees inthe immediate area . . .? Incredulously, however, my colleagues conclude thatcomplainant did establish that the respondent?s employees were exposed to the zoneof danger. The facts clearly do not support this finding. The only evidence inrelation thereto is that the closest employee was approximately 20 feet fromthe front-end loader. The record is void as to whether any employee?s assignedworking duties, personal comfort activities, or normal means of ingress-egressto his assigned workplace did or would require being closer than 20 feettherefrom. This distance certainly cannot be considered part of the zone ofdanger of the swing radius of a front-end loader. Messrs. Barnako and Cleary,however, blatantly ignore the criteria they put forth in Gilles &Cotting in determining that there was access to the zone of danger by therespondent?s employees.Themajority decision is also wrong on the law it applies in resolving this charge.They state that ?[w]hether a violation was the result of an unexpected,isolated instance of employee disobedience of a uniformly enforced work rule isan affirmative defense to be proved by the respondent.? No court has ever heldto this effect and, two in fact, have specifically held just the opposite. Iquote from Horne Plumbing and Heating Company v. OSAHRC, 528 F.2d 564,570 (5th Cir. 1976):The Ninth Circuit recently affirmed aCommission decision holding that employer knowledge is an element of proof ofboth serious violations under section 17(k) and nonserious violations and thatthe burden is on the Secretary to prove the existence of that element ratherthan on the respondent to prove its absence. Brennan v. Occupational Safetyand Health Com?n, 511 F.2d 1139 (9th Cir. 1975) . . . We adopt thereasoning of the Ninth Circuit . . .\u00a0Messrs.Barnako and Cleary ignore these two decisions?rendered in 1975 and 1976?byUnited States Courts of Appeal, and cite instead to much older rulings of thisCommission which state a contrary rule. Their reason for such a bizarreapproach is not stated.?APPENDIX A\u00a0\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 6790 ROBERT T. WINZINGER, INC., \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0FINAL ORDER DATE: March7, 1975?DECISIONAND ORDERAPPEARANCES:FOR THE SECRETARYOF LABOR Francis V.LaRuffa, Regional Solicitor Theodore T. Gotsch, Esq. U.S. Department of Labor\u00a0FOR THE RESPONDENTKelly Young, Esq.\u00a0Brennan, W. E.; A.L.J.Thisis an action arising under the provisions of Section 10(c) of the OccupationalSafety and Health Act of 1970, 29 U.S.C. 659(c), (hereinafter the Act), toreview a Citation for Serious Violation (one Item) and a Citation forNonserious Violations (three Items) and penalties proposed thereon issuedpursuant to Sections 9(a), and 10(a) of the Act, (29 U.S.C. 658(a) and 659(c))on January 28, 1974, by the Secretary of Labor through the Area Director of theOccupational Safety and Health Administration for Newark, New Jersey,(hereinafter Complainant) to Robert T. Winzinger, Inc., of Hainesport, NewJersey, (hereinafter Respondent).Thesecitations allege violations of Section 5(a)(2) of the Act by Respondent onJanuary 24, 1974, at an excavation worksite located at the intersection ofFifth and Mickle Streets in Camden, New Jersey, (hereinafter worksite), becauseof its failure to comply with the Occupational Safety and Health Standards asset forth below:\u00a0 Serious Citation \u00a0 Standard cited Description of alleged violation \u00a0 29 C.F.R. 1926.651(a)[8] West side of Intersection: Failure to guard employees in 10 ft. deep excavation by shoring or sloping ground or other equivalent means; excavated area contains some back fill material; lower north side of excavation is clay, remaining material is sandy soil. Excavation is 7 ft. from heavily travelled 5th Street. \u00a0 Nonserious Citation \u00a0 Item No. 1?Standard cited Descriptions of alleged violations \u00a0 29 C.F.R. 1926.651(h)(i)(1)[9] \u00a0 West side of Intersection: Failure to store and retain excavated material at least 2 feet or more from edge of excavation; excavated material up to 40 inches high piled around edge of excavation. \u00a0 Item No. 2?Standard cited Description of alleged violation 29 C.F.R. 1926.602(9)(ii)[10] \u00a0 500 Block Mickle Street: Failure to utilize reverse signal alarm or employee signals while operating Caterpillar Front Loader #850. Rear view of operator obstructed; further, operator was observed backing while looking forward. \u00a0 Item No. 3?Standard Cited Description of alleged violations \u00a0 29 C.F.R. 1904.2 \u00a0 500 Block Mickle Street: Failure to maintain OSHA?100, log of recordable injury and illness records. \u00a0 Abatementas to all alleged violations was to be accomplished, ?Immediately upon receiptof this citation.? A $650 penalty was proposed for the serious violation and a$30 penalty for Item No. 1 of the Nonserious Citation.Pursuantto Section 10(c) of the Act, 29 U.S.C. 659(c), Respondent, through a letterfrom its Vice President, gave notice of its intention to contest the Citationsand proposed penalties.Afterthe filing of the Complaint and Answer herein, this case came on for trial atPhiladelphia, Pennsylvania pursuant to notice, both parties being representedby counsel.Noaffected employees or representatives thereof desired party status.Allbriefs and replies were finally filled by October 11, 1974.Havingconsidered the entire record herein, the testimony and demeanor of thewitnesses, the exhibits, stipulations, representations and admissions of theparties, it is concluded that the substantial evidence of record considered asa whole supports the following findings of fact and conclusions of law.Thefollowing facts were stipulated to by the parties.TheRespondent company is incorporated in the State of New Jersey with itsprincipal office located at Marne Highway in Hainesport, New Jersey. Respondentconceded that it is an employer engaged in a business affecting commerce withinthe meaning of Sections 3 (5) and 3 (6) of the Act, 29 U.S.C. 652(5) and (6).No injuries were involved in this case. The Respondent?s business is of averagesize with gross receipts for 1973 of $6,924,241. It has an average daily numberof employees from 100 to 110, which increases to 180 in the summer months.Respondent had no history of prior violations of the Act.SeriousCitationTheStandard charged to have been violated in the corrected Citation for SeriousViolation provides as follows:29 C.F.R.1926.651(c)?(c) The walls andfaces of all excavations in which employees are exposed to danger from movingground shall be guarded by a shoring system, sloping of the ground, or someother equivalent means.\u00a0TheComplainant produced the testimony of one witness, Mr. Walter Wilson, who whenhe made an inspection of Respondent?s worksite on January 24, 1974, was a ComplianceOfficer.[11]He had been so employed by Complainant for approximately 2 1\/2 years.Previously, he had been employed in the zero-space industry as a supervisingengineer for about 15 years, with responsibilities, in part, for theconstruction of buildings, including foundations, and special foundations tosupport spacecraft at two Air Force locations. He holds a degree in MechanicalEngineering from the University of Pittsburgh and is a registered engineer inNew Jersey and Pennsylvania. His responsibilities in both the aerospaceindustry and with the Complainant required an understanding of soils. He was anexperienced Compliance Officer, having conducted approximately 250 inspectionsin that capacity involving both general industry and the construction field.OnJanuary 24, 1974, he inspected Respondent?s worksite. At the intersection ofFifth and Mickle Streets in Camden, New Jersey, he observed an excavationmeasuring 10 feet deep, 15 feet wide and 27 feet long. In the bottom of thisexcavation was a concrete foundation, or pad, from the perimeter of which thereextended vertical reinforcing rods. The sides of this excavation weresubstantially vertical and were not sloped. No shoring of any description, orother equivalent means of guarding against moving ground were present. Mr.Wilson photographed this scene. (See Exhs. C?1, C?2, C?3, C?5.)Uponhis arrival at this worksite at approximately 9:00 a.m., Mr. Wilson talked withtwo of Respondent?s employees, Messrs. Timarco, an ironworker, and Haley, acarpenter. He also met and conducted this inspection with Respondent?s projectSuperintendent, Mr. Rue.Intalking with these two employees, who were not in this excavation but workingat ground level near it, preparing forms, Mr. Wilson testified that both ofthese employees ?indicated? (TR 24) to him that they had been working in thisexcavation on the morning of the inspection, cleaning dirt off the surface ofthe foundation, and straightening some of the protruding reinforcing bars (TR61).Thistestimony of course was hearsay, clearly admissible under judicial precedent,[12] but insufficient,standing alone, to establish employee exposure to the hazard of cave-in presentin this excavation.[13]However,the essential element of employee exposure[14] necessary as part ofComplainant?s prima facie case,[15] was supplied by thetestimony of one of Respondent?s laborers, Rocco DeMarco, who testified thattwice, on the day before the inspection he went into this excavation.[16] The first time for?several minutes? (TR 161) to level the bottom of this excavation to grade forreceipt of the concrete foundation which had been precast at surface level, thesecond time to bring some tools and reinforcing bars down into this excavation.(See Exhs. C?2 and C?3.)Althoughthis employee exposure was very brief,[17] it does satisfy the legalrequirements set forth supra (fns. 7 and 8) and thus, Respondent?s defense tothis Serious Citation cannot be sustained.Mr.Wilson further testified that the soil at this excavation consisted of varioustypes, some grey clay towards the bottom, some back fill material as evidencedby buried, broken bricks and other debris, i.e., pieces of wood, and some sandysoil. Further that a light rain was falling on the day of the inspection and ithad been ?rainy? for the prior two weeks. He voiced the opinion, which isunchallenged in this record, that damp clay is ?very slippery and unstable? (TR37), and that wet weather conditions weaken the stability of soils.Hefurther testified that in his opinion the excavation in question constituted aserious violation of the Act because of the type of soil present, and itsstability being adversely affected by the wet weather conditions, the closeproximity of heavy vehicular traffic on Fifth Street, within seven feet of theexcavation, which increased the load on the excavation walls as did thevibrations of such traffic, the increased load on the excavation walls causedby storing the excavated soil from the excavation on the edge of theexcavation, the vertical, unshored and unsloped excavation walls and the dangerthat any employee might be impaled upon the reinforcing bars, protruding fromthe concrete foundation, all resulting in ?a substantial probability that deathor serious physical harm could result? from these conditions.Thereis no reliable evidence in this record to the contrary, in fact, theseconclusions are neither challenged nor rebutted. Thus, they are found to havebeen established by this record, and it is concluded that Respondent was inserious violation as charged in the Serious Citation as corrected.Theproposed penalty for this violation was $650. In my view of the evidence ofrecord, this penalty must be modified.UnderSection 17(j) of the Act, 29 U.S.C. 666(j) the Commission has the exclusiveauthority to assess all penalties under the Act.[18] Of the four elements setforth in Section 17(j) of the Act, the Commission has held that these factorsneed not be accorded equal weight,[19] and that the mostimportant element is gravity.[20] Further, four factors maybe considered in evaluating gravity.[21]First,the number of employees exposed to the risk of injury. The evidence hereinreveals that three employees were exposed. Second, the duration of exposure.Here, the exposure of these employees was brief, a matter of minutes. Third,the precautions taken against injury. Here, the evidence reveals that noemployees were observed by the Compliance Officer in the excavation after hisarrival on the scene. Further, the walls of the excavation were sloped back, tosome degree, before the Compliance Officer completed his approximate five-hourinspection.[22]Fourth, the degree of probability of the occurrence of any injury. The evidenceof this record establishes that this factor was rather high, due to thevertical walls of the excavation, its 10-foot depth, the varying types of soilsin which it was dug, the wet weather conditions, the vibrations of Fifth Streettraffic, and the added loading caused by the spoil piled up to the edge of theexcavation. Further, if a cave-in had taken place, the probability of death orserious bodily harm was increased because of the possibility that any employeein the excavation might be impaled upon the reinforcing bars protruding fromthe foundation or pad which was in the excavation.Consideringthese factors, it is concluded that the gravity of this violation was in themiddle range, primarily due to the very limited exposure of employees.Asto Respondent?s size, it has approximately 100 year-round employees, which isincreased to 180 in the summer months. It considers its size to be ?average,?with gross receipts for 1973 of $6,924,241.Asto its history of prior violations, it has no known history of prior violationsof the Act.Asto Respondent?s good faith,[23] the Compliance Officerwas of the opinion that it had ?. . . an ample safety program.? (TR 67.)Further, Respondent was cooperative throughout the inspection and corrected allconditions found before the Compliance Officer left the worksite.Uponthis state of the evidence, it is concluded that an appropriate and reasonablepenalty for the serious violation found to have existed at Respondent?sworksite is ?325.NonseriousCitationTheStandard charged to have been violated in Item No. 1 provides as follows:29 CFR,1926.651(i)(1)In excavationswhich employees may be required to enter, excavated or other material shall beeffectively stored and retained at least 2 feet or more from the edge of theexcavation.?ComplianceOfficer Wilson testified that on the day of the inspection, he observed thespoil material from the excavation in question, ?. . . piled directly on theedge of the opening.? (TR 110.) Exhibits C?1, C?2, C?5 and C?6 depict thiscondition. He measured the highest pile and found it to be 40 inches at itshighest point. He further testified that there was sufficient room to havepiled this spoil material two feet back from the edge of the excavation. Thiscondition was discussed with Superintendent Rue, who advised that he had beenled to believe that the observed condition was ?all right? because a Stateinspector had not indicated anything wrong.Mr.Wilson classified this condition to be a nonserious violation and recommendedno penalty thereon.[24]Thereis no evidence contradicting the testimony of Mr. Wilson and it is concludedthat this condition did constitute a nonserious violation of the citedStandard.Inmy view of the evidence, however, a penalty in the amount of $25 is warrantedas to this nonserious violation, primarily because it increased the gravity ofthe serious violation, discussed supra, by adding weight to the verticalwalls of the excavation in question, and thereby increased the hazard ofcave-in. No larger penalty is appropriate because of low employee exposure, andbecause this condition was corrected before Mr. Wilson left the worksite.TheStandard charged to have been violated in Item No. 2 provides as follows:29 C.F.R.602(a)(9)(ii)No employer shallpermit earth-moving or compacting equipment which has an obstructed view to therear to be used in reverse gear unless the equipment has in operation a reversesignal alarm distinguishable from the surrounding noise level or an employeesignals that it is safe to do so.?Mr.Wilson testified that he observed a large front end loader[25] being operated inreverse, with no audible reverse alarm, and no employee signaling.Theevidence reveals that this piece of equipment was equipped with a reversealarm, which had been functioning early on the morning of the inspection.However, its operator, contrary to Respondent?s instructions,[26] had disconnected thisalarm because there were no employees in the immediate area where thisequipment was being used to compact fill dirt.Thereis no evidence of record which would support a conclusion that Respondent knewof, or could reasonably have anticipated the breach of company rules by thisequipment operator, or that such a breach was other than an isolatedoccurrence.Thusthis case falls within the principle announced by the Commission in Sec. ofLabor v. Standard Glass Co., Inc.; 1 OSAHRC 594 (7\/27\/72), to wit:An employer cannotin all circumstances be held to the strict standard of being an absoluteguarantor or insurer that his employees will observe all the Secretary?sstandard at all times. An isolated brief violation of a standard by an employeewhich is unknown to the employer and is contrary to both the employer?sinstructions and a company work rule which the employer has uniformly enforceddoes not necessarily constitute a violation of section 5(a)(2) of the Act bythe employer. (p. 596.)[27]\u00a0Itis therefore concluded that Item No. 2 and the penalty proposed thereon, mustbe vacated.TheStandard cited for Item No. 3 provides as follows:29 C.F.R. 1904.2(a) Each employershall maintain in each establishment a log of all recordable occupationalinjuries and illnesses for that establishment, except that under thecircumstances described in paragraph (b) of this section an employer maymaintain the log of occupational injuries and illnesses at a place other thanthe establishment. Each employer shall enter each recordable occupationalinjury and illness on the log as early as practicable but no later than 6working days after receiving information that a recordable case has occurred.For this purpose, Occupational Safety and Health Administration OSHA Form No.100 or any private equivalent may be used. OSHA Form No. 100 or its equivalentshall be completed in the detail provided in the form and the instructioncontained in OSHA Form No, 100. If an equivalent to OSHA Form No. 100 is used,such as a printout from data-processing equipment, the information shall be asreadable and comprehensible to a person not familiar with the data processingequipment as the OSHA Form No. 100 itself.?(b) Any employermay maintain the log of occupational injuries and illnesses at a place otherthan the establishment or by means of data processing equipment, or both, underthe following circumstances:?(1) There isavailable at the place where the log is maintained sufficient information tocomplete the log to a date within 6 working days after receiving informationthat a recordable case has occurred, as required by paragraph (a) of thissection.?(2) At each of theemployer?s establishments, there is available a copy of the log which reflectsseparately the injury and illness experience of that establishment complete andcurrent to a date within 45-calendar days.\u00a0Mr.Wilson testified that he asked Superintendent Rue for Respondent?s Log ofOccupational Injuries and Illnesses (OSHA Form 100), but that Mr. Rue did notappear to know what he was referring to. Upon Mr. Rue?s suggestion, Mr. Wilsoncalled Respondent?s home office and spoke with an unidentified person whosimilarly did not appear to know what was being referred to.Respondent?sVice President testified that Respondent?s Safety Officer, Mr. Rivera, has theresponsibility of maintaining the records required under the Act, at Respondent?shome office. Further that the required records were being kept at this locationon the day of the inspection and that after the inspection, a representative ofComplainant did visit this home office, inspected its OSHA records, and foundthem in order. He produced copies of these records (see Exhs. R?1, R?2, R?3).Theevidence of record conclusively establishes that Respondent did maintain therequired records at ?an established central place,? (29 C.F.R. 1904.14(a)),[28] thus satisfying the requirementsof Complainant?s regulations. Thus, no violation of the cited Standard has beenestablished and Item No. 3 is vacated.Basedupon the foregoing findings and conclusions and pursuant to the provisions ofSections 10(c) and 12(j) of the Act, (29 U.S.C. 659(c) and 661(i) it is hereby,ORDERED1.That the Citation for Serious Violation of Section 5(a)(2) of the Act, and theStandard set forth at 29 C.F.R. 1926.651(c), and Item No. 1 of the NonseriousCitation and the Standard set forth at 29 C.F.R. 1926.651(i)(1), are AFFIRMED.2.Items numbered 2 and 3 of the Nonserious Citation herein, and penaltiesproposed thereon, are VACATED.3.Civil penalties in the following amounts are assessed based upon the violationsherein found to exist at Respondent?s worksite; Serious Violation $325.00 Item No. 1 – Nonserious Violation \u00a0 25.00 Total $350.00 \u00a0\u00a0WILLIAM E. BRENNANJudge, OSAHRCDated: February 5, 1975Hyattsville, Maryland\u00a0[1] ? 1926.651Specific excavation requirements.(c) The walls andfaces of all excavations in which employees are exposed to danger from movingground shall be guarded by a shoring system, sloping of the ground, or someother equivalent means.\u00a0[2] (i) (1) In excavationswhich employees may be required to enter, excavated or other material shall beeffectively stored and retained at least 2 feet or more from the edge of theexcavation.\u00a0[3] ? 1926.602Material Handling equipment(a) Earth movingequipment; General(9) Audible alarms(ii) No employershall permit earth moving or compacting equipment which has an obstructed viewto the rear to be used in reverse gear unless the equipment has in operation areverse signal alarm distinguishable from the surrounding noise level or anemployee signals that it is safe to do so.\u00a0[4] Respondent wascited for not maintaining OSHA Form 100. The Judge vacated the item. Neitherparty has excepted to this holding and it is not before us on review.[5] Ironically they also have caused tobe published in the Federal Register for comment a proposed change in theCommission?s Rules of Procedure the stated purpose of which is to restrictreview by the Commission members to matters stated specifically in a directionfor review. See 41 Fed. Reg. 24724 (1976).[6] The full text of Judge Brennan?sdecision is incorporated herein by reference and attached hereto as Appendix A.\u00a0[7] For the reasons cited in myseparate opinions in Secretary v. A J. McNulty & Company, Inc.,OSAHRC Docket No. 2295, April 8, 1976; and Secretary v. Gilles &Cotting, Inc., OSAHRC Docket No. 504, February 20, 1976, I believe actualemployee exposure to hazard rather than employee access to the zone of dangershould be an essential element of proof in establishing any violation of 29U.S.C. ? 654(a)(2).[8] At the outset of the Trial, Withoutobjection, the following typographical or clerical errors were corrected in theCitations:Serious Citation:? correct Standard Cited from 29 C.F.R.1926.651(a) to 29 C.F.R. 1926.651(c).NonseriousCitation: correct Standards cited; Item No. 1?from 29 C.F.R. 1926.651(h)(i)(1)to 29 C.F.R. 1926.651(i)(1).Item No. 2?from 29C.F.R. 1926.602(9)(ii) to 29 C.F.R. 1926.602(a)(9)(ii).\u00a0[9]See fn. 1,supra.\u00a0[10]See fn. 1,supra.[11] At the time of trial, Mr. Wilsonhad assumed the responsibilities of a program analyst in the Regional Office.\u00a0[12] Carter-Wallace, Inc. v. Gardner, 417 F2d 1086 (CA4, 1969) cert. den. 398 U.S. 938 (1970).Brown v. Gamage; 377 F2d 154(C.A.D.C., 1967) cert. den. 389 U.S. 858 (1967).[13] ConsolidatedEdison Co. v. NLRB, 305 U.S. 197, 230 (1938).\u00a0[14] Sec. of Labor v. HawkinsConstruction Co.;OSAHRC Docket No. 949 (5\/20\/74);Sec. of Labor v.J. E. Roupp and Co. and Denver Dry Wall Co.; OSAHRC Docket Nos. 146 and 147(4\/15\/74).Sec. of Labor v. Gillesand Cotting, Inc.;OSAHRC Docket No. 504 (10\/9\/73).Sec. of Labor v.Bechtel Corp.;OSAHRC Docket No. 1038 (10\/31\/74).\u00a0[15] Sec. of Laborv. Armor Elevator Co., Inc.; 5 OSAHRC 260 (1973).Sec. of Labor v.Arvin Millwork Co.;OSAHRC Docket No. 587 (7\/1\/74).Sec. of Labor v.Ellison Electric;1 OSAHRC 547 (1972).Sec. of Labor v.Bechtel Corp., suprafn. 7.\u00a0[16] Evidence producedby the opposing party is available to either party. Bradford Builders v.Sears, Roebuck & Co. 270 F2d 649 (CA 5, 1959).\u00a0[17] A mattersignificantly affecting the penalty as discussed infra.[18] Sec. of Laborv. National Realty and Construction Co., 1 OSAHRC 731 (9\/6\/72); 489 F2d1257 (C.A.D.C., 1973).\u00a0[19] See fn. 11,supra.\u00a0[20] Sec. of Laborv. Baltz Bros. Packing Co.; 2 OSAHRC 384 (2\/8\/73).\u00a0[21] Sec. of Laborv. Broadview Constr. Co.; 2 OSAHRC 210 (1\/10\/73).\u00a0[22] The testimony ofRespondent?s laborer, DeMarco, that he was instructed not to go into thisexcavation on January 23, 1974 (TR 145), I find not creditable because of his demeanorand contradictions in his testimony (see TR 144, 147, 161, 178).[23] See Sec. ofLabor v. Nacirema Operating Co., Inc.; 1 OSAHRC 33 (2\/7\/72).[24] The Notificationof Proposed Penalty issued to Respondent on January 28, 1974 erroneously listedthe following penalties for the alleged nonserious violations; Item No. 1?$30;Items No. 2 and 3, no penalties. These proposed penalties were correctedwithout objection at trial to accurately reflect the Complainant?s proposal,Items No. 1 and 3, no penalty; Item No. 2, $30 (TR 117).\u00a0[25] See Exh. C?4.\u00a0[26] Respondent?s VicePresident testified that it was company policy that all reverse alarms were toremain on at all times (TR 202). There is no evidence to the contrary.[27] The operatortestified that he had been instructed that the reverse alarm was to be keptconnected at all times (TR 183).[28] 29 C.F.R. 1904.14 provides:Employers ofemployees engaged in physically dispersed operations such as occur inconstruction, installation, repair or service activities who do not report toany fixed establishment on a regular basis but are subject to commonsupervision may satisfy the provisions of ?? 1904.2, 1904.4, and 1904,6 withrespect to such employees by:(a) Maintainingthe required records for each operation or group of operations which is subjectto common supervision (field superintendent, field supervisor, etc.) in anestablished central place;(b) Having theaddress and telephone number of the central place available at each worksite;and(c) Havingpersonnel available at the central place during normal business hours toprovide information from the records maintained there by telephone and by mail.”