“SECRETARY OF LABOR,Complainant,v.THE GREAT LAKES CONSTRUCTION CO.,Respondent.OSHRC Docket No. 85-547 _ORDER_The Commission approves the Parties’ Stipulation and SettlementAgreement. The Judge’s decision is set aside and the citation andpenalty are vacated pursuant to the terms of the settlement agreement.FOR THE COMMISSIONRay H. Darling, Jr.EXECUTIVE SECRETARYDATED: _Feb. 10, 1987_————————————————————————WILLIAM E. BROCK, SECRETARY OF LABOR,Complainant,v.THE GREAT LAKES CONSTRUCTION Co.Respondent.OSHRC Docket No. 85-597_STIPULATION AND SETTLEMENT AGREEMENT_I.The parties have reached agreement on a full and complete settlement theinstant matter which is currently pending before the Commission.II.The parties stipulate as follows:(a) The Occupational Safety and Health Review Commission (hereinafter\”the Commission\”) has jurisdiction of this matter pursuant to Section10(c) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590;29 U.S.C. ?651 _et_ _seq_. (hereinafter \”the Act\”).(b) Respondent, the Great Lakes Construction Co., a corporation with itsplace of business in Cleveland, Ohio. It is engaged in the business ofhighway and heavy construction and during the course of its business itsemployees perform various tasks in the nature of construction work. During the course of its business, respondent uses materials andequipment which it receives from places located outside Cleveland, Ohio. Respondent, as a result of the aforesaid activities, is an employeeengaged in a business affecting commerce as defined by sections 3(3) and3(5) of the Act, and has employees as defined by section 3(6) of theAct, and is subject to the requirements of the Act.(c) As a result of an inspection conducted on March 2, 1985, atrespondent’s workplace at the Interstate 675 project, in the Dayton,Ohio area, a citation alleging one serious violation of the standard at29 CFR 1926.602(a)(4), with a Proposed Penalty of $490.00, was issued torespondent on April 17, 1985 pursuant to section 9(a) of the Act.(d) Respondent submitted a notice of contest dated May 23, 1985,informing Complainant of its intention to contest the alleged violationand Proposed Penalty. The notice of contest was received by theCincinnati, Ohio Area Director, Occupational Safety and HealthAdministration, on May 28, 1985. Thereafter, the parties duly filed acomplainant and an answer.(e) On December 4, 1985, a hearing was held before CommissionAdministrative Law Judge Joe D. Sparks on respondent’s notice ofcontest. On March 26, 1986, Judge Sparks issued his decision and Orderin which affirmed the serious citation alleging a violation of 29 CFR1926.602(a)(4) and assessed penalty of $500.00. Thereafter, respondenttimely filed a Petition for Discretionary Review to the Commission andon May 21, 1986, Commissioner Rader granted review of the issues raisedin respondent’s petition. The Commission issued a Briefing Notice onOctober 10, 1986. Respondent submitted its brief to the Commission onNovember 19, 1986. III.Now, the Secretary of Labor and the Great Lakes Construction Co., inorder to conclude this matter without the necessity of furtherlitigation, stipulate and agree as follows: IV.Respondent hereby states that the alleged violation of 1926.602(a)(4)has been abated and the worksite at issue is no longer in existence. V.The Secretary hereby withdraws its Citation for alleged violation of1962.602(a)(4), with prejudice, issued to respondent on April 17, 1985. The Secretary believes that the judge’s decision was correctly decided.However, particularly in view of the fact that the worksite which wasthe subject of the citation is no longer active, the Secretary hasdetermined that further. litigation of the case is not merited. Accordingly, the Secretary requests. the Commission set aside thejudge’s decision. VI.Respondent and Complainant agree that each party shall bear its own costs. VII.Respondent agrees to post this Stipulation and Settlement Agreement inaccordance with Commission Rules 2200.7 and 2200.100.WHEREFORE, the parties request that this Stipulation and SettlementAgreement be approved by the Commission.ORLANDO PANNOCHIAAttorney for theSecretary of LaborKEITH A. ASHMUS, Esq.Thompson, Hine and Flory————————————————————————SECRETARY OF LABOR,Complainant,v.THE GREAT LAKES CONSTRUCTION CO.,Respondent.OSHRC Docket No. 85-597APPEARANCES:F. Benjamin Riek, III, Esquire, Office of the Solicitor,U.S. Department of Labor, Cleveland, Ohio, on behalf orcomplainant.Keith A. Ashmus, Esquire, Thompson, Hine and Flory,Cleveland, Ohio, on behalf of respondent. _DECISION AND ORDER_SPARKS, JUDGE: A loaded dump truck on a highway construction job couldnot be stopped as it was driven down a steep grade resulting in it beingrun into a ditch. A citation, as amended at the hearing, chargedrespondent with a violation of 29 C.F.R. ? 1926.602(a)(4)[[*\/]] forfailing to have adequate service brakes. IOn March 20, 1985, Great Lakes Construction Company was engaged inhighway construction work on the I-675 project north of Centerville,Ohio. Truck driver, A. D. Armstrong, was assigned an InternationalHarvester dump truck designated as ED-5. The foreman instructed him tobe careful as the brakes on the truck were bad (Tr. 15). He had noproblems stopping the truck at slow speeds on level terrain. Later inthe day, he was driving the loaded truck as it began gathering speeddown an incline. He tried the brakes once without any effect, swerved tomiss a bulldozer working in the area and came to a halt in a dictum thatwas being filled in. Armstrong was not injured and the truck was notdamaged, but the truck was parked until the brakes were examined. Themechanics discovered that the two front brakes were intact, but the tworear brakes were totally inoperative. The bleeder valve assembly wasdefective on one and the other had a \”blown\” air bladder (Tr. 130-132).The Secretary contends the service brakes were clearly defective andwere in violation of the standard. Respondent contends that theSecretary’s evidence was not credible, that the two front brakes weresufficient to meet the requirements of the standard and that theaccident occurred because of Armstrong’s inexperience with the truck. IIThe Review Commission has stated in _Astra Pharmaceutical Products,Inc._, 82 OSAHRC 55\/E9, 9 BNA OSHC 2126, 1981 CCH OSHD ? 25,578 (No.78-6247, 1979), the elements of violation as follows:In order to prove a violation of section 5(a)(2) of the Act, 29 U.S.C. ?654(a)(2), the Secretary must show by a preponderance of the evidencethat (1) the cited standard applies, (2) there was a failure to complywith the cited standard, (3) employees had access to the violativecondition and (4) the cited employer either knew or could have known ofthe condition with the exercise of reasonable diligence. _DanielInternational Corp., Wansley Project_, OSHRC Docket No. 76-181 (June 30,1981).The Commission also explained the burden of proof as follows, _ibid_:In cases before the Commission arising out of notices of contest, theSecretary bears the burden of proving the alleged violation. He must doso by a preponderance of the evidence. Applying the preponderance of theevidence test, the resolution of this case is thus reduced to thequestion whether, based upon all the evidence, the fact asserted by theSecretary. . .is more probably true than false. (Footnotes omitted.)It is not disputed that dump truck ED-5 was an \”off-highway truck\” whichwas manufactured after January 1, 1971, purchased by respondent in 1972,and had been used approximately 100,00 to 150,000 hours (Tr. 76, 186).Armstrong testified that a brief conference was held before thebeginning of his shift at which time he was told by foreman Ben Akers \”.. .that ED-5 didn’t have any brakes on it and to be careful with it\”(Tr. 14). Foreman Akers testified that Armstrong seemed a little shakyand stated \”. . .I heard that the brakes might be a little bad–not badbut to just make sure he took it easy\” (Tr. 104). Foreman Akersexplained that he did not test the brakes but that he had been told byRobert Zellman, who usually drove the ED-5, that \”. . .he didn’t saythat there wasn’t any. He just said they weren’t probably as good asthey ought to be\” (Tr. 104). He further indicated that other drivers hadsaid \”something\” about the brakes but denied they had stated \”there wereno brakes at all\” (Tr. 105). Akers again acknowledged that he had beentold the brakes were a \”little bad\” and \”weren’t up to par\” (Tr.109-110, 112).Armstrong stated that he did not try the brakes before his trip down thehill because he had been told it didn’t have any.Armstrong explained his accident as the result of driving the loadedtruck down a haul road which had a grade of approximately 25 to 30degrees (Tr. 17-18, 67). As he descended the slope, the truck gainedspeed. He tried to apply the brakes, but the truck had no brakes. Therewere no brakes and no stopping action (Tr. 18, 22-23, 37). Armstrongapplied the brakes only once and verified he did not have any (Tr.38-39). He then swerved barely missing a bulldozer and \”buried up\” inthe ditch (Tr. 18, 22).Respondent contends the accident was the result of Armstrong’sinexperience with dump truck ED-5. Armstrong was sent to the job fromthe union hiring hall and had not driven ED-5 previously although he haddriven trucks of the same type (Tr. 16, 27). Respondent contendsArmstrong should have used the retarded to slow and control the truckbefore stopping with the brakes (Tr. 124-125). Armstrong asserted thathe used the retarder which slowed the truck a little but not much (Tr.20, 23, 28, 31, 34). The testimony of Armstrong is creditable andestablishes that the service brakes failed to stop ED-5 when loaded.Compliance Officer Robert Beisel testified he did not understand thebraking system of the dump truck and based his conclusions upon thestatements of supervisors and employees (Tr. 98). He testified he triedthe service brake while the truck was parked but found it inoperative(Tr. 54). The braces operate by air pressure only when the engine isrunning so his testimony on that point adds nothing to the Secretary’scase (Tr. 128). Beisel further testified that he was investigating acomplaint that trucks ED- 5, ED-6, and ED-8 had defective brakes, but itwas verified only as to ED-5 (Tr. 47, 87, 98-99). Compliance OfficerBeisel testified that Cindy Baker, also a truck driver at the sitereported that the brakes on ED-5 didn’t work (Tr. 57-58). He testifiedthat Baker further stated that she heard foreman Ben Akers tell A. D.Armstrong that the truck ED-5 did not have brakes and to be careful (Tr.58-592, 98). Beisel also testified that he was told the truck brakes hadbeen in \”this condition\” for some time (Tr. 66, 73-73). Respondentcontends that testimony of Beisel reporting what he was told byemployees is unreliable hearsay. The Federal Rules of Evidence, Rule801(d)(2)(D) provides that the following is not hearsay:. . .a statement by [an] agent or servant [of a party] concerning amatter within the scope of his agency or employment, made during theexistence of the relationship. . .The statements of Baker and Akers reported by Beisel are within the rulequoted above and are not hearsay. As the Review Commission has held thathearsay evidence is admissible in proceeding, the statements would bereceived even if they were hearsay. _StanBest, Inc._, 83 OSAHRC 10\/D6,11 BNA OSHC 1222, 1983-84 CCH OSHD ? 26,455 (No. 76-4355, 1983). TheCommission held that:[Such] statements are an clearly admissions by a party opponent throughhis agent and servant and thus are not hearsay. Fed. R. Evid. 801(d)(2);_see Prestressed Systems, Inc_., 81 OSAHRC 43\/D5, 9 BNA OSHC 1864,1870, 1981 CCH OSHD ?25,358, p. 31,501 (No. 16147, 1981). In any event,hearsay is generally admissible in administrative proceedings and may beused as probative evidence. _See_ _Power Systems Division, UnitedTechnologies Corp._, 81 OSHRC 49\/C13, 9 BNA OSHC 1813, 1981 OSHD ?25,350 (No. 79-1552, 1981), and cases cited therein.Respondent contends the position of the Review Commission is in conflictwith the decision of the United States Court of Appeals for the SixthCircuit in _NRLB v. Sherwood Trucking Co._,775 F.2d 744 (6th Cir. 1985).In this case, the statements merely corroborate the testimony ofArmstrong and no finding of fact is bottomed on such statements.Evidence offered by the respondent establishes that ED-5 was lackingservice brakes on the two rear wheels. Richard L. Hanni, mastermechanic, testified the brakes at the two front wheels were intact, butthe rear wheels did not have any brakes (Tr. 130-132, 136). He estimatedthat the braking capacity of the truck was cut in half. He tested thebrakes before they were repaired and determined they could stop thetruck on level terrain (Tr. 142-143). That test has little probativevalue in determining whether the brakes could stop the loaded truckdescending a steep grade. Likewise that test performed after the brakeswere repaired to determine compliance with the standards of SAEJ166-1971 are of little value especially after the citation was amendedto allege a violation of the first sentence of 29 C.F.R. ? 1926.602(a)(4).In summary the facts of record establish that the rear brakes on ED-5were inoperative and the service brake system was incapable of stoppingthe loaded truck as it descended the haul road on March 20, 1985. Theevidence is convincing that the foreman, Ben Akers, was aware the brakeswere bad as he had been told by the regular driver and he subsequentlytold Armstrong. Such knowledge is imputed to respondent. The Secretaryof Labor has met his burden of proving a violation as alleged.Fortunately, no one was injured in the accident on March 20, 1985. Thetruck driver and the operator of the bulldozer were exposed to the riskof death or serious injury which are the probable consequences of thehazard (Tr. 78). The gravity of operating a loaded truck with defectivebrakes is high. Because the truck was removed from service and repaired,respondent demonstrated a measure of good faith. Considering thesefactors, a penalty of $500 is reasonable and appropriate. _FINDINGS OF FACT_1. Respondent, a highway contractor, employed employees on aconstruction project at I-675.2. On March 20, 1985, A. D. Armstrong was assigned to drive a dump truckdesignated ED-5, manufactured after January 1, 1971.3. At a conference at the beginning of the shift, respondent’s foreman,Ben Akers, informed driver Armstrong that ED-5 did not have brakes andinstructed Armstrong to be careful.4. While driving ED-5 loaded with rock down the haul road, Armstrongapplied the brakes without effect and had to swerve to avoid striking abulldozer before running into a ditch.5. The brakes were incapable of stopping ED-5 while loaded.6. Truck ED-5 did not have operative brakes on its rear wheels.7. Foreman Ben Akers knew that the brakes on ED-5 were bad.8. The probable result of an accident was death of serious injury.9. A penalty of $500 is reasonable. _CONCLUSIONS OF LAW_1. Respondent is an employer subject to the Occupational Safety andHealth Act of 1970 and this proceeding.2. Respondent violated 29 C.F.R. ? 1926.602(a)(4) under conditionsconstituting a serious violation.3. A penalty of $500 is reasonable. _ORDER_It is ORDERED:1. The citation is affirmed.2. A penalty of $500 is assessed.Dated this 15th day of April, 1986.JOE D. SPARKSJudgeFOOTNOTES:[[*\/]] Section 1926.602(a)(4) of 29 C.F.R. states as follows:All earthmoving equipment mentioned in this ? 1926.602(a) shall have aservice braking system capable of stopping and holding the equipmentfully loaded, . . .Section 1926.602(a) provides as follows:These rules apply to the following types of earthmoving equipment: . . .off-highway trucks . . . \””