“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 4533 WILLIAMS ENTERPRISES, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 September 8, 1976DECISIONBefore BARNAKOChairman; MORAN and CLEARY,Commissioners.CLEARY, Commissioner:I. IntroductionThe decision ofAdministrative Law Judge Ben D. Worcester, rendered June 26, 1974, is beforethe full Commission pursuant to section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ? 651 et seq. [hereinafter ?the Act?] JudgeWorcester vacated the Secretary of Labor?s (complainant) allegation of awillful violation of section 5(a)(1), the ?general duty clause? of the Act, aswell as the Secretary?s $10,000 proposed penalty. The citation is based uponthe alleged failure of Williams Enterprises, Inc. (respondent) to ?secure,place, or fasten a crane counterweight . . . in a manner that would prevent itfrom endangering his employees by falling or toppling.?In his decision, JudgeWorcester notes that the ?proximate cause of the accident is unknown.? Heconcludes that not only did the Secretary of Labor fail to sustain his burdenof proof, but he ?also failed to adduce any evidence to show what respondentshould have done to prevent the accident.?II. BackgroundOn August 24, 1973, acompliance officer of the Department of Labor?s Occupational Safety and HealthAdministration was dispatched to the scene of a double fatality accident. Theaccident took place on First Street between Independence Avenue and C Street,Southeast in Washington, D.C. At the time of the accident, respondent wasengaged in the construction of an addition to the Library of Congress.On the morning of theaccident, respondent had moved a 135 ton Manitowoc crane from Seventh Street tothe First Street worksite. The crane was parked facing north on the east sideof the street. In order to move the large crane, it had to be partiallydismantled. On the day before the accident, the two counterweights on the rearof the crane were removed with the aid of a Lima 90 ton crane and loaded onto aflatbed trailer, termed a ?lowboy.? After the Manitowoc crane was positioned onFirst Street, the crane operator brought the Lima from Seventh Street andpositioned it approximately 13 to 20 feet south of and directly behind the Manitowoc.At the same time, the lowboy was positioned behind the Lima.First Street, at the siteof the accident, is inclined at a ratio of two inches for every four feet. As aresult, the Manitowoc was parked at a slightly higher elevation than the Lima.After the ?rush hour?traffic had subsided, the police closed First Street between C and Independenceto allow the lowboy to be positioned next to the two cranes. Inasmuch as thepolice were anxious to reopen the street, it was decided to off-load the Manitowoc?scounterweights to the area between the two cranes, rather than off-loadingdirectly from the lowboy to the Manitowoc. The latter method was the usualprocedure, but by off-loading to the street, the lowboy would be in use for ashorter period and the street could be reopened sooner.The larger counterweightwas approximately 10 feet long by 28 inches wide by 9 feet high. It had aslight curve running through its length and weighed 43,000 pounds. It wasoff-loaded first by the Lima crane from the lowboy. When it was placed on thestreet between the cranes it became clear that, because of the grade of thestreet, it would be unstable. The crane operator relifted the counterweight anda base was prepared to offset the incline and receive the weight.Construction of the basebegan by placing a sheet of \u215d inch plywood directly on the streetsurface. Next, two four-by-four inch timbers, longer than the 28-inch width ofthe weight, were placed of the plywood. Finally, a smaller piece of \u215d inchplywood was placed on the back part of the four-by-fours. The counterweight waslowered onto this base so that it rested in part directly on the timbers and inpart on the smaller piece of plywood. In this manner, the counterweight was?tipped? to partially compensate for the grade of the street. After it wasplaced on this base, an employee climbed onto the weight and unshackled it fromthe Lima crane. The counterweight remained free standing in this uprightposition for approximately 20 minutes.During that twenty-minuteperiod, the smaller counterweight was off-loaded and placed between the Limacrane and the larger counterweight. The smaller weight was approximately 17inches wide, 10 feet long, 6 feet high and weighed approximately 30,000 pounds.Shortly after the smaller counterweight was placed on First Street, the largercounterweight toppled over striking the smaller counterweight, which in turntoppled into the Lima crane. Two of respondent?s employees, a foreman man andan oiler, were trapped by the falling counterweights and killed.Pursuant to the accidentinvestigation, the Secretary issued a citation charging respondent with awillful violation of section 5(a)(1) of the Act. Respondent duly filed itsnotice of contest. Subsequent to respondent?s notice of contest, the Secretaryfiled his complaint with this Commission. Issue was joined and the case wasassigned for disposition to Administrative Law Judge Worcester.Respondent filed a motionfor discovery and a motion for a more definite statement. These motionsculminated in a prehearing conference before Judge Worcester. The Judge ordereddepositions to be taken of the Secretary?s Compliance Officer, James Amato, andAssistant Regional Director, David Rhone. During their depositions both Amatoand Rhone relied on the informers? privilege as the basis for refusing toanswer some of the questions asked by defense counsel. Respondent filed asuccessful motion to compel answers propounded upon oral examination. On June3, 1974, the Secretary filed with Judge Worcester a petition seekingcertification by the Judge of his ruling for interlocutory appeal and an orderstaying the proceeding until the appeal was resolved. The Secretary also filedwith the Commission a petition for special permission to file an interlocutoryappeal and for the issuance of a stay order.On June 6, 1974,respondent notified the Secretary that it intended to file a waiver of itsright to further depose Amato and Rhone.[1] It also notified theSecretary that at least two employee witnesses would not be available totestify at the hearing scheduled for June 10, 1974. The Secretary notifiedrespondent by letter of his intent to call William Lucas and Clyde Farrar. Theletter was received on the morning of the hearing, June 10, 1974.The hearing was convenedbefore Judge Worcester. The issue of the most recently added witnesses wasraised by the Judge. After argument by counsel the Judge refused to allow theSecretary the opportunity to present his ?unscheduled? witnesses. Moreover, hedid not allow the Secretary to make an offer of proof concerning the probabletestimony of the excluded witnesses.Later, during thehearing, the Judge excluded testimony from the crane operator that, after theaccident, the large counterweight was wired to the Manitowoc crane. The basisfor this ruling was the tort oriented rule that evidence of subsequent repairsis not admissible to show prior defects. In another ruling the Judge admittedevidence of the D.C. safety standard requiring the securing of material. Helimited the use of that evidence to show the basis of the Area Director?sconclusion that the hazard was recognized and not for the purpose ofestablishing that the hazard was recognized.At the conclusion of theSecretary?s case, respondent?s counsel moved to dismiss the citation on theground that the Secretary had failed to sustain his burden of proof. Afterlistening to the arguments of both counsels, the Judge granted respondent?s motion.Subsequent to theissuance of the Judge?s decision, the Secretary filed a petition fordiscretionary review wherein he excepted to the exclusion of four prospectivewitnesses. He excepted also to the Judge?s refusal to accept an offer of proofas to their testimony. The Secretary excepted to the Judge?s ruling wherein herefused to admit 214 citations issued to respondent by the District of ColumbiaMinimum Wage and Safety Board. He further excepted to the use by the Judge ofthe tort-law ?repair? doctrine as the basis for refusing to admit evidencerelevant to the Secretary?s burden of proving what respondent could have doneto prevent the accident. Finally, the Secretary excepted to the vacation of thecitation.The case was called forreview before the full Commission by Commissioner Cleary.III. DiscussionThe first two exceptionsto the Judge?s decision taken by the Secretary of Labor involve the exclusionof certain witnesses and the refusal of the Judge to accept an offer of proofas to their probable testimony. In considering these two exceptions, we havecarefully reviewed the rather extensive prehearing proceedings in this matter.Judge Worcester, in an effort to narrow the issues and expedite the hearingprocedure, properly encouraged the parties to exchange information. The Judge?sactions in this regard are most consistent with one of the principal objectivesof modern procedure under the Federal Rules;[2] that is, the eliminationof the ?old sporting theory of justice? by substituting the ?more enlightenedpolicy of putting the cards on the table?. Clark v. Pennsylvania RailroadCompany, 328 F.2d 591, 594 (2d Cir. 1964), cert. denied, 377 U.S. 1006(1964). In other words, modern procedure attempts to keep ?surprise tacticsdown to a minimum.? Clark v. Pennsylvania Railroad Company, supra at594.Matters settled duringthe prehearing stage, e.g. the names of prospective witnesses, will controlgenerally the remainder of the proceeding unless later modified by the Judge toprevent manifest injustice. See 3 J. Moore, Federal Practice para.16.19, at 1130 (2d ed. 1974). The decision whether or not to permit themodification of a witness list settled upon during the prehearing stage is amatter left to the discretion of the Judge. See Texas & Pacific RailwayCo. v. Buckles, 232 F.2d 257 (5th Cir. 1956), cert. denied, 351 U.S. 984(1956); Scott v. Spanjer Bros., Inc., 298 F.2d 928 (2d Cir. 1962). Hencein reviewing a Judge?s decision to exclude certain witnesses because they werenot listed on a party?s prehearing witness list, the issue before us is whetheror not the Judge abused his discretion. See Clark v. Pennsylvania RailroadCompany, supra at 594. Having closely examined Judge Worcester?s actionswith regard to the excluded witnesses, we conclude that there was no abuse ofdiscretion.The Judge did err,however, in refusing to accept an offer of proof as to the probable testimonyof the excluded witnesses. Rule 74 of the Commission?s Rules of Procedure[3] clearly permits suchoffers to be made whenever evidence is excluded from the record as the resultof a party?s objection. Upon remand, therefore, the Secretary will be given theopportunity to make his offer of proof.The Secretary?s textexception to the decision before us goes to the Judge?s refusal to admit intoevidence 214 citations issued to respondent by the District of Columbia MinimumWage and Safety Board. On this matter, we note simply that the Secretary?scounsel, at the hearing, acceded to the Judge?s ruling. Error not preserved bycounsel at the hearing level is not properly an issue for subsequent review. Haynesv. United States, 418 F.2d 1380, 1382 (Ct. Cl. 1969). Therefore, we declineto pass upon the Judge?s refusal to admit evidence of the 214 citations.We next considerrespondent?s motion to dismiss under Rule 41(b) of the Federal Rules of CivilProcedure[4] and the effects of theJudge?s decision to grant the motion.When respondent makes amotion to dismiss under Rule 41(b), the Judge is called upon not only to decidethe law, but, in addition, to weigh and evaluate the evidence without making?special inferences? in complainant?s favor. Emerson Electric Co. v. Farmer,427 F.2d 1082 1086 (5th Cir. 1970). If after considering the law and facts, theJudge concludes that complainant has successfully carried his burden ofestablishing a violation of the Act, he must deny respondent?s motion todismiss. See 5 J. Moore, Federal Practice para. 41.13, at 1146 (2d ed.1976); Emerson Electric Co. v. Farmer, supra at 1086. We have reviewedthe record in this case, including the briefs of the parties, and conclude thatthe Judge erred in granting respondent?s motion to dismiss.Respondent is alleged tohave willfully violated section 5(a)(1)[5] of the Act for its failure?to secure, place or fasten a crane counterweight weighing approximately 40,000pounds in a manner that would prevent it from endangering . . . employees byfalling or toppling.? In order to carry his burden of proving a violation ofsection 5(a)(1) of the Act, the Secretary must establish ?(1) that the employerfailed to render its workplace ?free? of a hazard which was (2) ?recognized?and (3) ?causing or likely to cause death or serious physical harm?.? NationalRealty & Construction Co., Inc. v. O.S.H.R.C., 489 F.2d 1257, 1265 (D.C.Cir. 1973). Moreover, a violation of the general duty clause cannot besustained unless the Secretary is able (a) to establish the type of employerconduct necessary to avoid citation under similar circumstances and (b) ?todemonstrate the feasibility and likely utility? of such conduct. NationalRealty & Construction Co., Inc. v. O.S.H.R.C., supra at 1268.The hazard in this casewas the failure to secure a crane counterweight. The record clearly supports afinding that the hazard was ?likely to cause death or serious physical harm.?Indeed, the potential for serious harm is indicated by the actual death ofrespondent?s two employees and, of course, by common sense.The hazard wasrecognized.[6]In this regard the record furnishes significant testimony concerning the workpractices of respondent?s industry. One witness, Mr. John Wiseman, a man withfifteen years? experience as a journeyman iron worker in addition to his tenyears? experience as a compliance officer for both the Federal Government andthe District of Columbia, on direct examination testified as follows:Q. Mr.Wiseman, in your experience working with cranes and counterweights, and thatwould be 15 years and ten more years in safety following that, do you have anyknowledge of the manner in which counterweights should be handled when they arebeing removed from a trailer to be placed on to a crane??A.Yes, I do.?Workingas a foreman handling cranes, normally when you unload a counterweight sectionfrom a truck or lowboy, whatever they handled it on, you would hook it directlyto the crane that it would be used on.?Thatway you would have it secured to the crane before the cable or anything wastaken out or off?away from it.?So,therefore your counterweight which in my opinion?now, maybe I shouldn?t saythat?is top heavy to start with, and if it was secured to the crane when thecables are removed from the holding crane, there is no way for it to get out ofcontrol, topple over, sway or move about.[7]?Q. Mr.Wiseman, given the street that you saw [respondent?s worksite] and the locationbetween the crane that you observed what in your opinion with reasonableforesight and experience would be the method that this counterweight should beplaced on the ground so that it wouldn?t topple over by reason of the inclineor whatever factors you might have seen? I wish you would spell out the factorsas you discussed them.?A. Thecounterweight in my opinion when this was taken loose since it couldn?t behooked directly to the crane before it was secured, so it should have beensecured in an upright position before it was ever taken loose from the loadline of the crane and swung back to pick up the other load.?Q. Yousay it was secured?in what manner??A.Secured with cables, chains, any kind of supporting members that would holdthis amount of weight and keep it from getting out of control and being able totopple over.?Inother words, if they secured a cable to each crane to give this stability, thenit couldn?t have fallen either way and gotten out of control. If they usedchain cables, anything to hold it for whatever period of time that they neededthey could swing back and get the other counterweight off the truck.[8]?Q. Onthe basis of that would you have felt you could have foreseen an accident wouldhave happened??A. Ibelieve so, yes.[9]?In addition to thetestimony on the issue of whether this particular hazard is ?recognized? in theindustry, counsel for the Secretary introduced into evidence an industrialsafety standard[10]of the local jurisdiction that lends force to his argument that the failure tosecure such equipment from toppling is recognized as a hazard.With respect to theSecretary?s effort to establish the type of employer conduct that would haveavoided the citation in this instance, we note that complainant takes exceptionto the Judge?s reliance on the tort-law ?repair doctrine? as the basis forrefusing to admit the testimony given by respondent?s crane operator. The craneoperator testified that, following the fatal accident, the large counterweightwas secured to the Manitowoc crane.Traditional common lawconcepts are generally disregarded when dealing with remedial sociallegislation such as the Act. Cf. REA Express, Inc. v. Secretary of Labor andO.S.H.R.C., 495 F.2d 822 (2d Cir. 1974); National Realty, supra.Moreover, even if we were to consider certain traditional negligence concepts,the crane operator?s testimony would be admissible and probative to demonstratethe feasibility and utility of measures that could have been taken byrespondent to avoid the citation. Boeing Airplane Company v. Brown, 291F.2d 310, 315 (9th Cir. 1961); see Fed. R. Evid. 407. In offering thetestimony, the Secretary is not attempting to establish respondent?snegligence. He is merely illustrating the feasibility of a reasonable step thatcould have been taken to prevent the hazardous condition. The Judge?s refusalto admit the testimony was error.The Secretary hassuccessfully carried his burden of establishing respondent?s violation ofsection 5(a)(1) of the Act. We consider next whether the Secretary hasestablished that respondent?s violation was willful as alleged.In IntercountyConstruction Co. v. O.S.H.R.C., 522 F.2d 777, 779 (4th Cir. 1975), cert.denied, 44 U.S.L.W. 3412 (U.S. January 19, 1976) (No. 75?594), the court statedthat:Weagree with the position adopted by the Commission in interpreting the statutethat ?willful? means action taken knowledgeably by one subject to the statutoryprovisions in disregard to the action?s legality. No showing of maliciousintent is necessary. A conscious, intentional, deliberate, voluntary decisionproperly is described as willful, ?regardless of venial motive?. F. X.Messina Construction Corp. v. Occupational Safety and Health Review Commission,505 F.2d 701, 702 (1st Cir. 1974).[11]?Respondent, on the factsbefore us, was not indifferent to the hazard. It did not choose to ignorecompletely the precarious situation. Instead, respondent made an attempt,albeit inadequate, to steady the large counterweight on the inclined streetsurface. We conclude that this effort removes respondent?s action from the paleof willful activity. Cf. United States v. Dye Construction Corp. &O.S.H.R.C., 510 F.2d 78 (10th Cir. 1974).Thus, the Secretary hasestablished respondent?s violation of section 5(a)(1) of the Act, but hasfailed to prove that such violation was willful as alleged. Where a violationhas been established but it is not of a willful nature as alleged, theCommission will find ordinarily the underlying violation. See TolerExcavating Co., 19 OSAHRC 492, BNA 3 OSHC 1420, CCH OSHD para. 19,975(1975); CPL Constructors, BNA 3 OSHC 1865, CCH OSHD para. 20,251 (1975).There remains, however,the problem engendered by the Judge?s granting of respondent?s motion todismiss at the conclusion of the Secretary?s case. In a non-jury case where theJudge has granted the defendant?s motion to dismiss under Federal Rule of CivilProcedure 41(b) and the Judge?s ruling on the motion is subsequently reversedon appeal, the case must be remanded for further proceedings to permit thedefendant to present his case. White v. Rimrock Tidelands, Inc., 414F.2d 1336, 1340 (5th Cir. 1969).Accordingly, it isORDERED that the decision of Judge Ben D. Worcester granting respondent?smotion to dismiss is reversed and remanded for further proceedings consistentwith this opinion.FOR THE COMMISSION:William S. McLaughlinExecutive SecretaryDATED: SEP 8, 1976?MORAN, Commissioner, Dissenting:Judge Worcester?s dispositionof this case was correct, and his decision, which is attached hereto asAppendix A, should be affirmed. His granting of respondent?s motion to dismisswas fully justified because of several fatal deficiencies in complainant?scase.As the majority opinionstates, proof that a condition constituted a ?recognized hazard? is anessential element of proof to establish a violation of 29 U.S.C. ? 654(a)(1),the so-called general duty clause. A condition is recognized as a hazard whenit is commonly known as such by the public in general or in the citedemployer?s industry. See National Realty and Construction Company, Inc. v.OSAHRC, 489 F.2d 1257, 1265 n. 32 (D.C. Cir. 1973). There is no proof ofeither in the instant case. My colleagues rely on twoelements of proof in concluding that the manner in which respondent chocked thecounterweight constituted a recognized hazard. That reliance is misplaced. Thetestimony of Mr. Wiseman shows on its face that his views represented no morethan his own personal opinion and not a consensus of the construction industryor any other industry. Similarly, their reliance on the District of Columbiaindustrial safety standard is also inappropriate. Not only is there no showingthat this standard represents the view of any particular industry, but it is sogeneral in scope that it is of no value in ascertaining the recognition of ahazardous condition in this case. It amounts to little more than an exhortationto store things so they won?t fall. It doesn?t say ?how? to store them yet thecrux of the allegation is just that.The evidence indicatesthat the counterweight was placed on a street which sloped only slightly?a2-inch vertical rise for every 4 feet of horizontal distance. Thus, the streetwas virtually level. The counterweight had a rectangular base which was about10 feet long and over 2 feet wide. The adequacy of respondent?s chocking wasillustrated by the fact that a worker had climbed upon it without it falling inorder to detach the Lima crane?s cable from the counterweight. Considering thisevidence and the photographs of the scene of the accident, it is clear that themeasures taken by respondent are not commonly recognized as hazardous by thepublic in general.Complainant has not onlyfailed to show that respondent?s actions were in any way unreasonable, but theevidence as a whole shows that respondent?s precautionary procedures werereasonable under the prevailing circumstances. Respondent?s normal procedure,and the preferred one, was to mount the counterweights in their proper positionon the Manitowoc crane when off-loading them from the lowboy. This procedurewas not followed in this instance because of pressure from the police toexpedite the removal of the counterweights from the lowboy in order toeliminate the blockage of the street by the lowboy as soon as possible so thatthe street could be reopened to traffic. Since the mounting of thecounterweights directly onto the Manitowoc crane would have caused a longerblocking of the street than would result if the counterweights were firstplaced on the street before mounting, the latter procedure was followed as atemporary expedient. Under these circumstances, the chocking of thecounterweight and the other actions of respondent were clearly not unreasonable.In effect the majority issaying that the condition constituted a recognized hazard because thecounterweight fell over. Unfortunately, they have forgotten that the ?actualoccurrence of hazardous conduct is not, by itself, sufficient evidence of aviolation, even when the conduct has led to injury.? National Realty andConstruction Company, Inc. v. OSAHRC, supra at 1267. They are thereforeerroneously applying a standard of strict liability which is not intended bythe Act. Horne Plumbing and Heating Company v. OSAHRC, 528 F.2d 564 (5thCir. 1976); Secretary v. Engineers Construction, Incorporated, 20 OSAHRC348 (1975), and the cases cited therein.To establish a violationof the general duty clause, complainant must also show what procedures thecited employer should have taken to avoid citation plus the feasibility andlikely utility of those measures. National Realty and Construction Company,Inc. v. OSAHRC, supra at 1267. Complainant?s attorney properly conceded noless than three times at the hearing that the reason for the falling of thecounterweight could not be established. Absent evidence of why it fell, thereis insufficient evidence to show that the ?likely utility? of the measuresproposed by complainant to avoid citation were any better than thoseimplemented by respondent. The testimony of Mr. Wiseman amounts to nothing morethan his proposal as to what should have been done. Neither this testimony norany other evidence establishes that the accident would not have occurred if theWiseman?s proposals had been utilized.The purpose of the Act isto reduce workplace hazards. When the cause of an accident is not known,effective countermeasures cannot be known. The Act is not designed to punishemployers, but to tell them how to prevent accidents. Diamond Roofing Co. v.OSAHRC, 528 F.2d 645, 650 (5th Cir. 1976). The majority errs in this caseby overlooking that purpose.\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 4533 WILLIAMS ENTERPRISES, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0FINAL ORDER DATE: July26, 1974DECISIONAND ORDERAppearances:On behalf ofComplainant: HOWARD K. AGRAN, ESQ., of Philadelphia, Pennsylvania\u00a0On behalf ofRespondent: JAMES BRENT CLARKE, JR., ESQ., of Washington, D.C.\u00a0Ben D. Worcester, Judge,OSHRCThisproceeding arises pursuant to a notice of contest filed by the respondent, onSeptember 11, 1973, under the provisions of section 10(c) of the OccupationalSafety and Health Act of 1970 (84 Stat. 1590 et seq., 29 U.S.C. 651 et seq.)hereinafter called the Act. On August 31, 1973, a citation was issued allegingthat the respondent had violated section 5(a)(1) of the Act on August 24, 1973.It was alleged that:The employerfailed to furnish his employees working at his worksite at 1st Street, S.E.,Washington, D.C. a place of employment that was free from recognized hazardsthat were likely to cause death or serious physical harm to his employees inthat he failed to secure, place, or fasten a crane counterweight weighingapproximately 40,000 pounds in a manner that would prevent it from endangeringhis employees by falling or toppling.\u00a0Therespondent was charged with a willful violation of the general duty clause forwhich a penalty of $10,000.00 was proposed. The matter was heard in Washington,D.C., on June 10, 1974.OnAugust 24, 1973, the respondent had a dismantled 135 ton Manitiwoc craneparallel to the curb and heading north on the east side of 1st Street,Southeast, near Independence Avenue in Washington, D.C. In the process ofassembling this crane the respondent?s employees had moved a 40 ton Lima craneto a point behind the larger crane and also parallel to the curb facing northso it would be in a position to lift two counterweights from an adjacent flatbed trailer to a point adjacent to the Manitiwoc crane. Normally, suchcounterweights are secured to the sides of the crane, but in this instance theywere to be attached to the rear so that there would be less obstruction of thestreet. First Street was not level. It sloped approximately 2 inches in every 4feet, the slope being in a southerly direction from the Manitiwoc crane to theLima crane.TheSecretary presented an eyewitness to the ensuing event, the operator of theLima crane. He said that a foreman on the ground directed him in the removal ofthe two counterweights from the trailer to a position in the street behind theManitiwoc crane. Apparently, two of the respondent?s laborers were assisting onthe ground. There was no evidence to explain their movements. All that isrevealed from the record is that shortly after the two counterweights wereplaced upon some plywood and 4 x 4 timbers of unspecified length behind theManitiwoc crane they toppled in the direction of the Lima crane and the twolaborers were crushed to death.Therecord is silent as to the reason the two laborers were in such a perilousposition. The proximate cause of the accident is unknown. The sole basis forthe issuance of a citation for a violation of section 5(a)(1) of the Act wasthe toppling of the counterweights. The Secretary concedes that no one knewwhat caused them to fall.Therespondent?s motion to dismiss after submission of the case on this evidencewas granted. The Secretary not only failed to sustain the burden of proof thatthere was a violation of the general duty clause, but also failed to adduce anyevidence to show what the respondent should have done to prevent the accident.InNational Realty and Construction Company, Inc. v. Secretary of Labor,489 F.2d 1257, 1267, (D.C. Cir. 1973) it was held that the Congress did notintend the general duty clause to impose strict liability; that a hazardconsisting of unpredictable acts of employees cannot be totally eliminated andthat:?. . . actualoccurrence of hazardous conduct is not, by itself, sufficient evidence of aviolation, even when the conduct has led to the injury. The record mustadditionally indicate that demonstrably feasible measures would have materiallyreduced the likelihood that such misconduct would have occurred.??FINDINGSOF FACT1.Williams Enterprises, Inc. is a Virginia corporation with its principle officeat Merrifield, Virginia, involved in the business of steel fabrication.2.On August 24, 1973, its employees were placing two counterweights behind acrane in the vicinity of First and C Streets, S.E. in Washington, D.C., whenthe two counterweights toppled over killing two employees.3.The cause of the toppling is unknown.4.The reason the two employees were exposed to the hazard which caused theirdeath is unknown. There is no evidence which reveals who, if anyone, orderedthem into a place of peril before the counterweights were fastened to the craneor why they were there.CONCLUSIONSOF LAW1.The respondent, Williams Enterprises, Inc., is and was at all times relevant tothis proceeding an employer subject to the provisions of the OccupationalSafety and Health Act of 1970.2.The Occupational Safety and Health Review Commission has jurisdiction of therespondent and of the subject matter of this proceeding.3.The complainant has failed to sustain the burden of proof that the respondentviolated section 5(a)(1) of the Occupational Safety and Health Act of 1970 (29U.S.C. section 654) on August 24, 1973, at Washington, D.C., as alleged in thecitation issued August 31, 1973, and the complaint.ORDERItis accordingly hereby ordered that the citation and the proposed penalty of$10,000.00 be vacated and that this proceeding be dismissed.?BEN D. WORCESTERJudge, OSHRCDated: June 26, 1974Washington, D.C.[1] On June 7, 1974,respondent filed a written waiver with the Commission on the condition that thehearing be held as scheduled on June 10, 1974.[2] Procedure beforethe Occupational Safety and Health Review Commission is in accordance with theFederal Rules of Civil Procedure in the absence of a specific provision in theCommission?s own Rules of Procedure. Rule 2 of the Commission?s Rules ofProcedure, 29 CFR ? 2200.2.\u00a0[3] Rule 74 of theCommission?s Rules of Procedure, 29 CFR ? 2200.74, in pertinent part reads asfollows:? 2200.74Objections(b) Wheneverevidence is excluded from the record, the party offering such evidence may makean offer of proof, which shall be included in the record of the proceeding.[4] See note 2 supra.Rule 41(b) reads as follows:Rule 41. Dismissal of Actions(b) Involuntary Dismissal: Effect Thereof.For failure of the plaintiff to prosecute or to comply with these rules or anyorder of court, a defendant may move for dismissal of an action or of any claimagainst him. After the plaintiff, in any action tried by the court without a jury,has completed the presentation of his evidence, the defendant, without waivinghis right to offer evidence in the event the motion is not granted, may movefor a dismissal on the ground that upon the facts and the law the plaintiff hasshown no right to relief. The court as trier of the facts may then determinethem and render judgment against the plaintiff or may decline to render anyjudgment until the close of all evidence. If the court renders judgment on themerits against the plaintiff, the court shall make findings as provided in Rule52(a). Unless the court in its order for dismissal otherwise specifies, adismissal under this subdivision and any dismissal not provided for in thisrule, other than a dismissal for lack of jurisdiction, for improper venue, orfor failure to join a party under Rule 19, operates as an adjudication upon themerits. Fed. R. Civ. P. 41(b).\u00a0[5] 29 U.S.C. ?654(a)(1). The section, the general duty clause, reads as follows:Sec. 5(a) Each employer?(1) shall furnish to each of his employeesemployment and a place of employment which are free from recognized hazardsthat are causing or likely to cause death or serious physical harm to hisemployees;\u00a0[6] A recognized hazard is a condition that isknown to be hazardous and is known not necessarily by each and every individualemployer but is known taking into account the standard of knowledge in theindustry. In other words, whether or not a hazard is ?recognized? is a matterfor objective determination; it does not depend on whether the particularemployer is aware of it. 116 Cong. Rec. (Part 28) 38377 (1970) (remarks ofRepresentative Daniels).[7] Transcriptat 210?211.[8] Transcriptat 220?221.[9] Transcriptat 222.[10] Industrial SafetyStandard No. 11?21011 of the District of Columbia reads in pertinent part asfollows:11?21011. Securely Placed And Fastened.(a) Any material, equipment, tool, or other object being used, handled,transported, stored or serving as a workplace shall be so held, fastened,secured, placed, or piled that it cannot fall, topple over, roll, sway, slide,otherwise move about, or get beyond control, in any manner to endangeremployees or others.[11] Concerning theCommission?s own precedent, see Dye Construction Company, BNA 4 OSHC1444, CCH OSHD para. 20,888 (No. 4172, July 12, 1976), and cases cited therein.”