A. Amorello & Sons, Inc.

Plain-English summary

OSHA cited A. Amorello & Sons after inspectors observed a front-end loader operating in reverse without hearing its backup alarm. The loader's engine housing blocked the operator's view only for about two feet directly behind the machine, while the exhaust pipe did not block the rear view. Chairman Rowland and Commissioner Buckley concluded that this limited blind spot was not an obstructed rear view within the meaning of the cited standard. They reasoned that the obstruction existed only at the start of reverse travel and was comparable to minor limitations common to ordinary vehicles and earthmoving equipment. The Commission therefore affirmed the citation's vacation. Commissioner Cleary dissented because an employee in the two-foot blind spot could be crushed as the loader began moving.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.602(a)(9)(ii)
• Outcome: Backup-alarm citation vacated.
• Key point: The Commission majority held that a minor two-foot blind area behind a loader did not trigger the standard's backup-alarm or signal-person requirement.

Full text (OSHRC public release)

Docket No. 79-4703

SECRETARY OF LABOR,

Complainant,

v.

A. AMORELLO & SONS, INC.,

Respondent.

OSHRC Docket No. 79-4703

DECISION

Before:  ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.

ROWLAND, Chairman:

This case is before the Occupational Safety and Health Review Commission
under 29 U.S.C. � 661(i), section 12(j) of the Occupational Safety and Health Act of
1970, 29 U.S.C. �� 651-678 ("the Act").  The Commission is an
adjudicatory agency, independent of the Department of Labor and the Occupational Safety
and Health Administration.  It was established to resolve disputes arising out of
enforcement actions brought by the Secretary of Labor under the Act and has no regulatory
functions.  See section 10(c) of the Act, 29 U.S.C. � 659(c).  An item
of a citation issued by the Secretary alleges that A. Amorello, & Sons, Inc. violated
a construction standard at 29 C.F.R. � 1926.602 (a)(9)(ii). [[1]] This standard provides:

No employer shall permit earthmoving or compacting equipment which has an
obstructed view to the rear to be used in reverse gear unless the equipment has in
operation a reverse signal alarm distinguishable from the surrounding noise level or an
employee signals that it is safe to do so.  For the reasons stated in our separate
opinions, Commissioner Buckley and I vacate this item.

A compliance officer of the Occupational Safety and Health Administration and
his supervisor arrived at Amorello's worksite in Worcester, Massachusetts, in response to
a complaint about an unshored trench.  As they got out of their car, they observed a
front- end loader operating in reverse.  Neither the compliance officer nor his
supervisor heard a backup alarm.  During the latter part of the inspection, however,
the compliance officer was shown that the loader was equipped with such an alarm.  In
the compliance officer's view, a backup alarm was required to be in operation while the
loader was in motion because the view to the rear of the loader was obstructed.  He
stated that the rear view of the loader was obstructed because "[t]he engine sticks
out over the back . . . and the operator cannot see a person immediately to the rear of
it."  He also stated that an exhaust pipe "could" obstruct the view to
the rear.  The compliance officer did not get into the loader to see if the view was
obstructed nor did he measure the extent of the rearview obstruction.

The only other testimony on this point was by Herbie Violette, one of
Amorello's heavy equipment operators.  He testified that the rear view of the loader
was not obstructed.  Violette was not operating the loader on the day of the
inspection but stated that he had operated it in the past.  When asked, "How
close to the machine would a man of average height . . . have to be before your view of
them would be obstructed?", he replied, "[a] couple of feet." Violette also
testified that the exhaust pipe on the rear of the loader was three to four inches in
diameter and was about three to four feet high but did not obstruct the operator's rear
view.

Judge Worcester did not decide whether Amorello's loader had an
"obstructed view to the rear."  He vacated this item because he found that
the compliance officer admitted that he heard the backup alarm during his inspection.
 Based on a credibility finding, the judge determined that the compliance officer's
testimony was otherwise entitled to no weight.  On review, the Secretary argues that
the judge's reasons for not crediting the testimony of the compliance officer were
unsound.  The Secretary also contends that a violation was proven because the
standard requires either a reverse alarm or a signalman if the view to the rear is
obstructed "to any extent."  The Secretary contends that the operator's
view to the rear was obstructed by the exhaust pipe and for a "few feet" by the
location of the loader's engine.

I conclude that the item should be vacated, but I rely on different reasons
from the judge.  Section 1926.602(a)(9)(ii) is applicable only if the cited equipment
"has an obstructed view to the rear."  There are two alleged limitations on
the rear view here.  First, with respect to the exhaust pipe, the evidence clearly
shows that the exhaust pipe did not obstruct the rear view.  I base this finding upon
the testimony of Amorello's operator, Violette, who sat in the loader, and upon my
examination of the photographs.  This evidence establishes that the loader's operator
had a clear view to the rear, unblocked by any part of the loader, except for two feet
immediately behind it, where the view was limited only by the location of the loader's
engine.  The question therefore reduces to whether the two-foot limitation created by
the engine compartment amounts to an "obstructed view to the rear" within the
meaning of the standard.  I think not.

I first emphasize that this case does not involve the usual sort of
obstructed rear view presented by past cases.  The condition cited here is not a
significant obstruction created by a special part of the vehicle, such as a bucket, that
obstructs the operator's view during the entire course or a significant portion of
rearward travel.  See Brown & Root, Inc. , 79 OSAHRC 20/A2, 7 BNA
OSHC 1215, 1979 CCH OSHD � 23,435 (No. 13685, 1979), aff'd , 639 F.2d 1289 (5th
Cir. 1981)(violation of 1926.602(a)(9)(ii) found where equipment with "paddles"
attached to rear of machine obstructed rear view for a distance of 30-40 feet).  
Here, by contrast, there existed a rather minor limitation on the operator's rearward
vision, comparable in extent and nature to the limitation on rearward vision that drivers
of many ordinary vehicles would experience when backing out of a driveway. [[2]]
Furthermore, the limitation on rearward vision of Amorello's loader existed only during
the first two feet of travel; after that, the operator's field of vision encompassed areas
previously seen to be clear.  Finally, I note that the phrase "obstructed view
to the rear" did not appear in the proposed version of this standard; instead, the
proposed standard would have required backup alarms on all finally, I note that the phrase
"obstructed view of the rear" did not appear in the proposed version of the
standard; instead, the proposed standard would have required backup alarms on all
earthmoving equipment.  36 Fed. Reg. 1802, 1846 (1971).  That the Secretary
included the qualifying phrase "obstructed view to the rear" in the final
standard, 37 Fed. Reg. 3512, 3517 (1972), leads me to conclude that section
1926.602(a)(9)(ii) was not intended to govern minor limitations that are common to nearly
all earthmoving equipment. [[3]]

Accordingly, the portion of the judge's decision vacating item two of
citation one is affirmed.

FOR THE COMMISSION

Ray H. Darling, Jr.

Executive Secretary

DATED:  JUN 21 1984

BUCKLEY, Commissioner, concurring:

I agree with Chairman Rowland's conclusion that the respondent did not
violate the cited standard.  Whether "earth-moving or compacting equipment"
has an "obstructed view to the rear" requiring a signalman or signal alarm
within the meaning of the standard will depend upon the facts of each case.  To make
that determination several factors must be taken into account, including the depth and
breadth of the area to the rear of the equipment that would be blocked from the operator's
view by the obstruction and the speed at which the machine is operated.

In this case, the Secretary alleged that the exhaust pipe and the engine
housing of a loader obstructed the operator's view to the rear while the loader was in
motion.  I agree with the Chairman that the evidence is clear that the 3- or 4-inch
exhaust pipe did not obstruct the operator's view at all.

The view directly to the rear of the front-end loader was limited for a
distance of only two feet from the backend of the loader by the engine housing.
 Someone standing directly behind and within two feet of the backend of the loader
might not be visible to the operator while the loader was standing still.  The view
to the rear was limited, however, only for the two feet initially traversed by the loader
at the start of its movement.  Thereafter, even at a speed of less than two miles per
hour the loader would travel two feet in approximately one second.  Once in motion,
the loader was covering ground the operator had seen to be clear and there was no
obstruction of the operator's view.  Operating the machine in reverse gear with no
alarm sounding when the loader was moving, as alleged in the citation and observed by the
compliance officer, does not violate the standard because the operator's vision was not
obstructed at that time.  For these reasons I agree that the citation should be
vacated.

CLEARY, Commissioner, dissenting:

I respectfully dissent.  I cannot agree with the majority's conclusion
that Amorello's loader did not have "an obstructed view to the rear" within the
meaning of section 1926.602(a)(9)(ii).  In my opinion, section 1926.602(a)(9)(ii)
applies whenever the operator of earthmoving equipment cannot see his entire path to the
rear.  The evidence shows that the operator of this loader could not see the first
two feet of his rearward path.  An employee behind the loader in the operator's blind
spot would be crushed if the loader backed up without warning.  Accordingly, I would
find that Amorello's loader had an obstructed view to the rear and that a reverse signal
alarm or a signalman was required when this equipment was operated in reverse.

The purpose of section 1926.602(a)(9)(ii) is to ensure that employees are not
in the path of earthmoving equipment.  Brown & Root, Inc. , 79
OSAHRC 20/A2, 7 BNA OSHC 1215, 1218, 1979 CCH OSHD � 23,435, p. 28,363 (No. 13685, 1979),
aff'd , 639 F.2d 1289 (5th Cir. 1981).  The interpretations adopted in the
majority opinions, unfortunately, defeat this purpose.  The standard is effectively
rewritten to limit its applicability to "significant" obstructions.  As a
result, obstructions "common to nearly all earthmoving equipment" will not be
covered by this standard.  It is also concluded that the standard is inapplicable
because the obstruction existed "only" during the first two feet of the loader's
travel and lasted for "approximately one second."

To the extent that the majority opinions focus on the extent of the
obstruction, I find their rationales indistinguishable.  Both rationales cloud the
unambiguous terms of this standard and contravene the Act's objective of eliminating
  hazards from the workplace.  I find nothing in the language of this standard
or its meager regulatory history to support the view that this standard may be interpreted
by resort to a tape measure or a stop watch.  Support of the opinion that the
standard is inapplicable to "minor limitations" on an operator's rear view is
inferred from an amendment to the proposed standard adding the phrase "obstructed
view to the rear."  I doubt that this was the Secretary's intent.  This
amendment could as well reflect the Secretary's intent to limit

the standard's applicability to equipment with an "obstructed" rear view and to
exempt equipment with a completely unobstructed rear view from needless compliance
with the standard's requirements.  It can hardly be said that by purposely adding
this phrase that the Secretary further intended that it should not be applied according to
its plain meaning and that the standard should apply only to "significant"
obstructions.

The majority interpretations also introduce a mischievous element of
subjectivity into a standard that objectively sets forth the circumstances under which
compliance is required.  Heretofore, an employer could confine his inquiry to whether
the view of the operator was obstructed within the plain meaning of the term.  An
employer now must also determine whether the obstruction is "significant ".
  But there is little guidance as to when a "significant" obstruction
exists.  All that can be said is that equipment obstructed for a distance of two feet
is not governed by the standard while equipment obstructed for a distance of 30-40 feet,
as was the case in Brown & Root , is.  I am unclear as to when an
obstruction ceases to be a "minor limitation" and becomes
"significant" and I suspect employers who apply this standard in the future will
share my confusion.  Under the rationale in the concurring opinion, instead of
determining whether the entire path to the rear of equipment is in the operator's view, an
employer must take "several factors" into account to decide whether the rear
view of the equipment is obstructed.  Little guidance is provided as to how to apply
these factors or when these factors combine to yield a conclusion that an obstructed rear
view exists.

The majority opinions also ignore the manner in which earthmoving equipment
is operated.  These machines are constantly moving back and forth on a construction
site.  Often the machines are operated in close quarters with employees performing
other jobs.  In the normal course, equipment often rests in an idling position while
other work is performed.  If an employee entered the operator's blind spot while the
equipment was idling, he would be crushed if the operator abruptly shifted the equipment
into reverse and began to travel. [[4]]  The conclusion that the standard is
inapplicable because the operator's view was obstructed for only two feet also disregards
the fact that earthmoving equipment is not operated exclusively on level ground.
 When a piece of equipment is positioned at the top of an incline, the obstructed
rear view may be increased depending on the angle of the incline.  The same piece of
equipment might be obstructed on one type of terrain and unobstructed on another.  It
also apparently is assumed that employees only stand.  But construction machinery is
operated in close proximity to employees, and employees may be sitting, kneeling, or
bending over. [[5]]  Given the manner and the conditions under which this machinery
is operated, as well as the proximity of employees, it is apparent that the hazard of an
unseen employee being crushed would be greatest when this equipment begins
travelling in reverse without warning. [[6]]  Under such circumstances, I am
unimpressed by the fact that the rear view of Amorello's loader was obstructed
"only" for a distance of two feet.

Nor do I agree that this standard can be interpreted by comparing earthmoving
equipment with an ordinary vehicle such as a pickup truck.  This comparison assumes
only the best of circumstances, as if earthmoving equipment were operated in reverse
infrequently and not in close quarters.  Moreover, unlike an operator of a pickup
truck, the operator of earthmoving equipment often must coordinate a complicated system of
controls, while simultaneously paying heed to other distractions.

It is rationalized that "[o]perating the machine in reverse gear with no
alarm sounding when the loader was moving, as alleged in the citation and
observed by the compliance officer , does not violate the standard because the
operator's vision was not obstructed at that time."  (Emphasis added.)  
This view apparently construes the citation, in light of the testimony of the compliance
officer, to allege that a violation occurred only while the machine was in motion. 
It determines that the question to be decided is whether the rear view of Amorello's
loader was obstructed while the machine was in motion and not when it started up
from a stationary position.  Such a reading of the citation violates the well-settled
principle that administrative pleadings are to be "very liberally
construed."  National Realty & Construction Co. v. OSHRC , 489 F.2d
1257, 1264 (D.C. Cir. 1973).  I do not agree that this citation charges Amorello with
violating the standard only when the compliance officer arrived at the site and
observed the loader in motion.  The citation alleges that the loader had an
obstructed view to the rear and was "operated" in reverse gear without a signal

alarm or signalman.  The operation of a vehicle necessarily includes the moment it
begins to travel.

Based on the foregoing, I would find that Amorello's loader had "an
obstructed view to the rear" within the meaning of section 1926.602(a)(9)(ii), and
that Amorello failed to comply with the standard's requirement that a signal alarm be
used.  The compliance officer testified that he did not hear an alarm when he
observed the loader operating in reverse.  The judge rejected the compliance
officer's testimony on credibility grounds, but the compliance officer's supervisor, whose
credibility was not questioned, also testified that he did not hear a backup alarm when
the loader was operating in reverse.[[7]]  It is not contended that a signalman was
present.  Accordingly, I conclude that a violation of section 1926.602(a)(9)(ii) was
proven.  This item of the citation should be affirmed.

The Administrative Law Judge decision in this matter is unavailable in this
format.  To obtain a copy of this document, please request one from our Public
Information Office by e-mail ( [email protected]
), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).

FOOTNOTES:

[[1]] The citations issued to Amorello by the Secretary contained five items.
 After a hearing, the judge vacated four of these items, including the item now on
review.  As to the remaining item, the judge determined that a violation was
established but characterized this violation as de minimis .  On
petition by the Secretary, former Commissioner Cottine directed review of the judge's
rulings on all five items.  While this case was pending before us, the Secretary
stated that he objects only to the judge's disposition of the item concerning � 1926.602
(a)(9)(ii).  Our review therefore is limited to this item of the citation.

[[2]] For example, 29 C.F.R. � 1926.601(b)(4), which is applicable to motor
vehicles used on "off-highway jobsite[s]", provides, in terms almost identical
to the standard involved here, that a motor vehicle with an obstructed rear view shall not
be operated in reverse unless it is equipped with a reverse signal alarm or a signalman is
used.  In my review of photographic exhibit C-5, I noted the presence of an ordinary
pickup truck on Amorello's worksite.  It would seem to follow from the Secretary's
approach that this ordinary pickup truck and, indeed, almost all pickup trucks, would have
an "obstructed view to the rear" within the meaning of � 1926.601(b)(4).
 This standard, however, was not intended to require such ordinary vehicles to have
backup alarms or be operated in reverse only with a signalman.

[[3]] The result sought here by the Secretary could have been achieved if
this standard had been drafted like the Mine Safety and Health Administration standard
contained at 30 C.F.R. � 77.410.  Under this standard, the Secretary required that
front-end loaders and other equipment used in surface mining operations be equipped with
reverse signal alarms regardless of whether the rear view is obstructed.  Section
77.410 provides:

Mobile equipment; automatic warning devices .

Mobile equipment, such as trucks, forklifts, front-end loaders , tractors and
graders, shall be equipped with an adequate automatic warning device which shall give an
audible alarm when such equipment is put in reverse. [Emphasis supplied.]

[[4]] This would not occur if a backup alarm sounded.  The Society of
Automotive Engineers ("SAE") has established a "Recommended Practice"
for backup alarms, SAE J994.  This "Recommended Practice" was substantially
amended in May, 1974. The amended version may be found in the 1981 SAE Handbook at p.
35.33.  Section 6 of this "Recommended Practice," as amended, discusses the
use of backup alarms on excavation equipment.  Section 6.2 states:

The backup alarm shall be activated immediately when the transmission
control mechanism is shifted into a reverse position, and shall remain activated until the
mechanism is shifted out of the reverse position. [Emphasis added.]

An alarm installed in accordance with the SAE criteria would sound when the
reverse gear of equipment was engaged and before the equipment began to move, thus
allowing an employee positioned immediately behind the equipment to get out of its path.
 Prior to its amendment in 1974, SAE J994, as contained in the 1973 SAE Handbook at
p. 1194, recommended that a backup alarm "must produce an audible warning within the
initial 3 ft. (0.9m) of backward motion of the vehicle."  I consider it
significant that the SAE's "Recommended Practice" was amended to provide that an
alarm sound immediately when the reverse gear of earthmoving equipment is engaged.

[[5]] See H.C. Nutting Co. v. OSHRC, 8 BNA OSHC 1241, 1980 CCH
OSHD � 24,548 (6th Cir. 1980) (employee killed while crouching to take soil sample; run
over by compacting machine operating in reverse); Edward J. Huegel, Inc ., 74 OSAHRC
93/D8, 2 BNA OSHC 3255, 1974-75 CCH OSHD � 19,095 (No. 893, 1974)(ALJ) (foreman run over
and killed by backhoe while kneeling within 6 feet of rear of machine).

[[6]] I would attach no significance to the fact that the operator's view was
obstructed  for "approximately one second" since the hazard of an unseen
employee being crushed is perhaps greatest at the moment equipment begins travelling in
reverse.  In any event, the Commission has held that the brevity of employee exposure
to a hazard cannot negate the existence of a violation.  Stahr and Gregory
Roofing Co ., 79 OSAHRC 2/B12, 7 BNA OSHC 1010, 1012, 1979 CCH OSHD � 23,261, p.
28,135 (No. 76-88, 1979); American Bechtel, Inc ., 77 OSAHRC 214/A2, 6 BNA OSHC
1246, 1248, 1977-78 CCH OSHD � 22,466 p. 27,079 (No. 11340, 1977).

[[7]] The record shows that the loader was equipped with an alarm, but that the operator
could shut the alarm off with a switch. Although one of Amorello's employees testified
that the alarm was operating before the compliance officer and his supervisor arrived at
the worksite, the supervisor's testimony that he did not hear an alarm when he observed
the loader operating in reverse is uncontradicted.