“Docket No. 85-0597 SECRETARY OF LABOR,Complainant,v.THE GREAT LAKES CONSTRUCTION CO.,Respondent.OSHRC Docket No. 85-547\u00a0ORDERThe Commission approves the Parties’ Stipulationand Settlement Agreement. The Judge’s decision is set aside and the citation and penaltyare vacated pursuant to the terms of the settlement agreement.FOR THE COMMISSIONRay H. Darling, Jr.EXECUTIVE SECRETARYDATED: Feb. 10, 1987WILLIAM E. BROCK, SECRETARY OF LABOR,Complainant,v.THE GREAT LAKES CONSTRUCTION Co.Respondent.OSHRC Docket No. 85-597STIPULATION AND SETTLEMENT AGREEMENTI.The parties have reached agreement on a full andcomplete settlement the instant matter which is currently pending before the Commission.II.The parties stipulate as follows:(a) The Occupational Safety and Health Review Commission (hereinafter \”theCommission\”) has jurisdiction of this matter pursuant to Section 10(c) of theOccupational 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 its place of businessin Cleveland, Ohio.\u00a0 It is engaged in the business of highway and heavy constructionand during the course of its business its employees perform various tasks in the nature ofconstruction work.\u00a0 During the course of its business, respondent uses materials andequipment which it receives from places located outside Cleveland, Ohio. \u00a0Respondent, as a result of the aforesaid activities, is an employee engaged in a businessaffecting commerce as defined by sections 3(3) and 3(5) of the Act, and has employees asdefined by section 3(6) of the Act, and is subject to the requirements of the Act.(c) As a result of an inspection conducted onMarch 2, 1985, at respondent’s workplace at the Interstate 675 project, in the Dayton,Ohio area, a citation alleging one serious violation of the standard at 29 CFR1926.602(a)(4), with a Proposed Penalty of $490.00, was issued to respondent on April 17,1985 pursuant to section 9(a) of the Act.(d) Respondent submitted a notice of contestdated May 23, 1985, informing Complainant of its intention to contest the allegedviolation and Proposed Penalty.\u00a0 The notice of contest was received by theCincinnati, Ohio Area Director, Occupational Safety and Health Administration, on May 28,1985. Thereafter, the parties duly filed a complainant and an answer.(e) On December 4, 1985, a\u00a0 hearing was heldbefore Commission Administrative Law Judge Joe D. Sparks on respondent’s notice ofcontest. On March 26, 1986, Judge Sparks issued his decision and Order in which affirmedthe serious citation alleging a violation of 29 CFR 1926.602(a)(4)\u00a0 and assessedpenalty of $500.00. Thereafter, respondent timely filed a Petition for DiscretionaryReview to the Commission and on May 21, 1986, Commissioner Rader granted review of theissues raised in respondent’s petition. The Commission issued a Briefing\u00a0 Notice onOctober 10, 1986.\u00a0 Respondent submitted its brief\u00a0 to the Commission on November19, 1986.\u00a0III.Now, the Secretary of Labor and the Great LakesConstruction Co., in order to conclude this matter without the necessity of furtherlitigation, stipulate and agree as follows:\u00a0IV.Respondent hereby states that the allegedviolation of 1926.602(a)(4) has been abated and the worksite at issue is no longer inexistence.\u00a0V.The Secretary hereby withdraws its Citation foralleged violation of 1962.602(a)(4), with prejudice, issued to respondent on April 17,1985.\u00a0 The Secretary believes that the judge’s decision was correctly decided.However, particularly in view of the fact that the worksite which was the subject of thecitation is no longer active, the Secretary has determined that further. litigation of thecase is not merited.\u00a0 Accordingly, the Secretary requests. the Commission set asidethe judge’s decision. \u00a0VI.Respondent and Complainant agree that each partyshall bear its own costs.\u00a0VII.Respondent agrees to post this Stipulation andSettlement Agreement in accordance with Commission Rules 2200.7 and 2200.100.WHEREFORE, the parties request that thisStipulation and Settlement Agreement be approved by the Commission.ORLANDO PANNOCHIAAttorney for the Secretary of LaborKEITH A. ASHMUS, Esq.Thompson, Hine and FlorySECRETARY OF LABOR,Complainant,v.THE GREAT LAKES CONSTRUCTION CO.,Respondent.OSHRC Docket No. 85-597APPEARANCES:F. Benjamin Riek, III, Esquire, Office of theSolicitor,U.S. Department of Labor, Cleveland, Ohio, on behalf orcomplainant.Keith A. Ashmus, Esquire, Thompson, Hine andFlory,Cleveland, Ohio, on behalf of respondent.\u00a0DECISION AND ORDERSPARKS, JUDGE:\u00a0\u00a0 A loaded dump truck ona highway construction job could not be stopped as it was driven down a steep graderesulting in it being run into a ditch. A citation, as amended at the hearing, chargedrespondent with a violation of 29 C.F.R. ? 1926.602(a)(4)[[*\/]] for failing to haveadequate service brakes.\u00a0IOn March 20, 1985, Great Lakes ConstructionCompany was engaged in highway construction work on the I-675 project north ofCenterville, Ohio.\u00a0 Truck driver, A. D. Armstrong, was assigned an InternationalHarvester dump truck designated as ED-5. The foreman instructed him to be careful as thebrakes on the truck were bad (Tr. 15). He had no problems stopping the truck at slowspeeds on level terrain. Later in the day, he was driving the loaded truck as it begangathering speed down 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 that was being filledin. Armstrong was not injured and the truck was not damaged, but the truck was parkeduntil the brakes were examined. The mechanics discovered that the two front brakes wereintact, but the two rear brakes were totally inoperative. The bleeder valve assembly wasdefective on one and the other had a \”blown\” air bladder (Tr. 130-132). TheSecretary contends the service brakes were clearly defective and were in violation of thestandard. Respondent contends that the Secretary’s evidence was not credible, that the twofront brakes were sufficient to meet the requirements of the standard and that theaccident occurred because of Armstrong’s inexperience with the truck.\u00a0IIThe Review Commission has stated in AstraPharmaceutical 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 theevidence that (1) the cited standard applies, (2) there was a failure to comply with thecited standard, (3) employees had access to the violative condition and (4) the citedemployer either knew or could have known of the condition with the exercise of reasonablediligence. Daniel International Corp., Wansley Project, OSHRC Docket No. 76-181(June 30, 1981).The Commission also explained the burden of proofas follows, ibid:In cases before the Commission arising out ofnotices of contest, the Secretary bears the burden of proving the alleged violation. Hemust do so by a preponderance of the evidence. Applying the preponderance of the evidencetest, the resolution of this case is thus reduced to the question whether, based upon allthe evidence, the fact asserted by the Secretary. . .is more probably true than false.(Footnotes omitted.)It is not disputed that dump truck ED-5 was an\”off-highway truck\” which was manufactured after January 1, 1971, purchased byrespondent in 1972, and had been used approximately 100,00 to 150,000 hours (Tr. 76, 186).Armstrong testified that a brief conference washeld before the beginning 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 shaky and stated \”. . .Iheard that the brakes might be a little bad–not bad but to just make sure he took iteasy\” (Tr. 104). Foreman Akers explained that he did not test the brakes but that hehad been told by Robert 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 as they ought tobe\” (Tr. 104). He further indicated that other drivers had said \”something\”about the brakes but denied they had stated \”there were no brakes at all\” (Tr.105). Akers again acknowledged that he had been told the brakes were a \”littlebad\” and \”weren’t up to par\” (Tr. 109-110, 112).Armstrong stated that he did not try the brakesbefore his trip down the hill because he had been told it didn’t have any.Armstrong explained his accident as the result ofdriving the loaded truck down a haul road which had a grade of approximately 25 to 30degrees (Tr. 17-18, 67).\u00a0 As he descended the slope, the truck gained speed. He triedto apply the brakes, but the truck had no brakes. There were no brakes and no stoppingaction (Tr. 18, 22-23, 37). Armstrong applied the brakes only once and verified he did nothave any (Tr. 38-39). He then swerved barely missing a bulldozer and \”buried up\”in the ditch (Tr. 18, 22).Respondent contends the accident was the resultof Armstrong’s inexperience with dump truck ED-5. Armstrong was sent to the job from theunion hiring hall and had not driven ED-5 previously although he had driven trucks of thesame type (Tr. 16, 27). Respondent contends Armstrong should have used the retarded toslow and control the truck before stopping with the brakes (Tr. 124-125). Armstrongasserted that he used the retarder which slowed the truck a little but not much (Tr. 20,23, 28, 31, 34). The testimony of Armstrong is creditable and establishes that the servicebrakes failed to stop ED-5 when loaded.Compliance Officer Robert Beisel testified he didnot understand the braking system of the dump truck and based his conclusions upon thestatements of supervisors and employees (Tr. 98). He testified he tried the service brakewhile the truck was parked but found it inoperative (Tr. 54). The braces operate by airpressure only when the engine is running so his testimony on that point adds nothing tothe Secretary’s case (Tr. 128). \u00a0 Beisel further testified that he was investigatinga complaint that trucks ED- 5, ED-6, and ED-8 had defective brakes, but it was verifiedonly as to ED-5 (Tr. 47, 87, 98-99). Compliance Officer Beisel testified that Cindy Baker,also a truck driver at the site reported that the brakes on ED-5 didn’t work (Tr. 57-58).He testified that 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 had been in \”thiscondition\” for some time (Tr. 66, 73-73). Respondent contends that testimony ofBeisel reporting what he was told by employees is unreliable hearsay. The Federal Rules ofEvidence, Rule 801(d)(2)(D) provides that the following is not hearsay:. . .a statement by [an] agent or servant [of aparty] concerning a matter within the scope of his agency or employment, made during theexistence of the relationship. . .The statements of Baker and Akers reported byBeisel are within the rule quoted above and are not hearsay. As the Review Commission hasheld that hearsay evidence is admissible in proceeding, the statements would be receivedeven if they were hearsay. StanBest, Inc., 83 OSAHRC 10\/D6, 11 BNA OSHC 1222,1983-84 CCH OSHD ? 26,455 (No. 76-4355, 1983).\u00a0 The Commission held that:[Such] statements are an clearly admissions by aparty opponent through his agent and servant and thus are not hearsay. Fed. R. Evid.801(d)(2); see Prestressed Systems, Inc., 81 OSAHRC 43\/D5, 9 BNA\u00a0 OSHC 1864,1870, 1981 CCH OSHD ?25,358, p. 31,501 (No. 16147, 1981).\u00a0 In any event, hearsay isgenerally admissible in administrative proceedings and may be used as probativeevidence.\u00a0 See Power Systems Division, United Technologies Corp.,\u00a081 OSHRC 49\/C13, 9 BNA OSHC 1813, 1981 OSHD ? 25,350 (No. 79-1552, 1981),\u00a0 and casescited therein.Respondent contends the position of the ReviewCommission is in conflict with the decision of the United States Court of Appeals for theSixth Circuit in NRLB v. Sherwood Trucking Co.,775 F.2d 744 (6th Cir. 1985). Inthis case, the statements merely corroborate the testimony of Armstrong and no finding offact is bottomed on such statements.Evidence offered by the respondent establishesthat ED-5 was lacking service brakes on the two rear wheels. Richard L. Hanni, mastermechanic, testified the brakes at the two front wheels were intact, but the rear wheelsdid not have any brakes (Tr. 130-132, 136). He estimated that the braking capacity of thetruck was cut in half. He tested the brakes before they were repaired and determined theycould stop the truck on level terrain (Tr. 142-143). That test has little probative valuein determining whether the brakes could stop the loaded truck descending a steep grade.Likewise that test performed after the brakes were repaired to determine compliance withthe standards of SAE J166-1971 are of little value especially after the citation wasamended to allege a violation of the first sentence of 29 C.F.R. ? 1926.602(a)(4).In summary the facts of record establish that therear brakes on ED-5 were inoperative and the service brake system was incapable ofstopping the loaded truck as it descended the haul road on March 20, 1985. The evidence isconvincing that the foreman, Ben Akers, was aware the brakes were bad as he had been toldby the regular driver and he subsequently told Armstrong. Such knowledge is imputed torespondent. The Secretary of Labor has met his burden of proving a violation as alleged.Fortunately, no one was injured in the accidenton March 20, 1985. The truck driver and the operator of the bulldozer were exposed to therisk of death or serious injury which are the probable consequences of the hazard (Tr.78). The gravity of operating a loaded truck with defective brakes is high. Because thetruck was removed from service and repaired, respondent demonstrated a measure of goodfaith. Considering these factors, a penalty of $500 is reasonable and appropriate.\u00a0FINDINGS OF FACT1. Respondent, a highway contractor, employedemployees on a construction project at I-675.2. On March 20, 1985, A. D. Armstrong was assigned to drive a dump truck designated 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 and instructed Armstrong to becareful.4. While driving ED-5 loaded with rock down the haul road, Armstrong applied the brakeswithout effect and had to swerve to avoid striking a bulldozer before running into aditch.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.\u00a0CONCLUSIONS OF LAW1. Respondent is an employer subject to theOccupational Safety and Health Act of 1970 and this proceeding. 2. Respondent violated 29 C.F.R. ? 1926.602(a)(4) under conditions constituting a seriousviolation.3. A penalty of $500 is reasonable.\u00a0ORDERIt 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 a service brakingsystem capable of stopping and holding the equipment fully loaded, . . . Section 1926.602(a) provides as follows:These rules apply to the following types of earthmoving equipment: . . . off-highwaytrucks . . . \” “