County Concrete Corp. (Commission decision, August 9, 1994)

Plain-English summary

OSHA inspected after an unoccupied County Concrete mixing truck rolled backward down a ramp and struck two employees, killing one. The company argued that the truck was governed only by the motor-vehicle section, which did not require wheel chocks, and not by the cited general equipment rule. The Commission held that both sections could apply because the motor-vehicle provisions were silent on parking precautions and did not conflict with the chocking requirement. It affirmed the serious violation and assessed $4,000.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.600(a)(3)(ii).
• Outcome: Affirmed. The serious wheel-chocking violation was affirmed with a $4,000 penalty.
• Key point: A more specific equipment section does not displace a general standard when it is silent about the cited hazard and the general rule provides additional protection.

Full text (OSHRC public release)

    OCCUPATIONAL          SAF~~~~~E~~~~~c~~“,~~                   COMMISSION

One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419

FAX:
COM (202) 6os5050 ns (202) 606-5050

..

SECRETARY OF LABOR, ..
..
Complainant,
..
..
v. .. OSHRC Docket No. 934201
.
COUNTY CONCRETE CORPORATION, ;
..
Respondent.
..
..

DECISION

BEFORE: WEISBERG, Chairman; FOULKE and MONTOYA, Commissioners.
BY THE COMMISSION:
The only issue in this case is whether 29 C.F.R. 5 1926.600, governing “equipment,” applies to Respondent County Concrete Corporation’s (“County”) concrete-mixing truck.
*
The Occupational Safety and Health Administration (“OSHA”) conducted an inspection of County’s worksite on October 2, 1992 after a County concrete-mixing truck, unoccupied at the time, rolled backward down a ramp and struck two employees, one of them fatally. County was cited for a number of violations, all of which were settled except for an alleged 2

serious violation of 29 C.F.R. 8 1926.600(a)(3)@).’ Administrative Law Judge Irving Sommer affirmed the violation and assessed a penalty of $4000.
County argues that its concrete-mixing truck is governed exclusively by section 1926.601, titled “Motor vehicles.” Since no provision of section 1926.601 requires employers to use chocks, County reasons, its failure to use them -- both in this case and on a regular basis -- does not violate the Act. County further contends that section 1926.600, under which it was cited, does not apply to its truck. We find that nothing in Subpart O2 precludes the simultaneous applicability of both sections 1926.600 and 1926.601 to concrete-mixing trucks3 We therefore affirm the violation and penalty.4

‘That standard provides:

8 1926.600 Equipment. .
.
(a) General requirements.
... i3)0i . . . .
(ii) Whenever the equipment is parked, the parking brake shall be set.
Equipment parked on inclines shall have the wheels chocked and the parking brake set.

It is disputed whether the driver in fact set the parking brake. However, the Secretary bases his case solely on County’s failure to use chocks as required by the standard.

subpart 0, captioned “Motor Vehicles, Mechanized Equipment, and Marine Operations,” consists of one general section covering “equipment,” as well as a variety of five specific sections covering “motor vehicles,” “material handling equipment,” “pile driving equipment,” “site-clearing” equipment, and “marine operations and equipment.”

30n the contrary, certain portions of SubDart 0 on their face demand simultaneous applicability. For instance, section 1926.600(a)(3)(*)1 , in the generic “Equipment” section, directs that “plulldozer and scraper blades. . . shall be either fully lowered or blocked when being repaired or when not in use.” Yet bulldozers are specifically listed among the specific types of “earthmoving equipment” covered under section 1926.602, captioned “Material handling equipment.”

4County also contends in its petition for discretionary review that the truck was not “parked,” that the standard is unconstitutionally vague, that the driver did set the parking brake, and that even if he did not, his failure to do so was an isolated occurrence and the result of unpreventable employee misconduct. Our direction for review specified only the (continued...)
 3

County is correct that no provision in section 1926.601, the more specific of the two
sections as far as motor vehicles are concerned, addresses the use of chocks or, indeed, any parking precautions. County asserts that it is a well-settled principle of statutory construction that the requirements of a more specific regulation control over the requirements of a more general regulation where there is a conflict between the two, citing In re Davidson, 120 Bar&r. 777 (D.N.J. 1990). We certainly recognize that principle, and have therefore carefully considered that same principle as embodied in 29 C.F.R. 0 1910.55 governing the applicability of standards under the Act. However, the principle does not support County’s interpretation. What County appears to overlook is that when, as here, a section is silent on a particular hazard, there is no conflict with another section that contains a standard that speaks to that hazard. See Quinlan t/a Quinlan Entep., 15 BNA OSHC 1780, MU-93 CCH OSHD lJ 29,765 (No. 91-2131, 1992) (section containing standards specially promulgated for steel erection industry did not address guarding of

4(...continued)
issue of whether the provisions of the standard applied to the concrete-mixer. The Commission has discretion to limit the scope of its review, and ordinarily does not decide issues that are not directed for review. In this case, the only objection that County raised to the judge’s decision which merits review is the one we directed. See Tampa Shipyards, Inc., 15 BNA OSHC 1533, 1535 n.4, MU-93 CCH OSHD lI 29,617, p. 40,097 n.4 (No. 8& 360, 1992) (consolidated) and cases and Commission rules cited.

‘That standard provides in pertinent part:

0 1910.5 Applicability of standards.

(c)(i) If a particular standard is specifically applicable to a condition, practice, means, method, operation, or process, it shall prevail over any different general standard which might otherwise be applicable to the same condition, practice, means, method, operation, or process. . . l

(2) On the other hand, any standard shall apply according to its terms to any employment and place of employment in any industry, even though particular standards are also prescribed for the industry . . . to the extent that none of Such particular standards applies.
 4

temporary floors, and thus did not preclude application of section containing general guarding standards, including a provision specifically applicable to situation).
Even if section 1926.601 could be construed, through its listing of required parts,
equipment, and accessories, to address parking hazards or the provision of chocks as standard safety devices, it would not necessarily automatically apply to the exclusion of section 1926.600. General standards remain applicable where they “provide meaningful protection to employees beyond the protection afforded” by specific standards. See Quinlan 15 BNA OSHC at 1782, 1991-93 CCH OSHD at p. 40,485, citing Bratton Corp., 14 BNA OSHC 1893, 198790 CCH OSHD 129,152 (No. 83-132, 1990). See ako Dravo Cop. v. OSHRC, 613 F.2d 1227, 1234 (3d Cir. 1980) (general industry standards apply if there is no specific construction, maritime and longshoring, or agricultural standard governing the hazardous condition). As we read section 1926.601, it affords no protection whatsoever against the hazard of runaway equipment and is therefore incapable of preempting the clear directive of section 1926.600 to use chocks on inclines?
In summary, we find that the chocking requirement applies to County’s concrete mixers and that its failure to equip its trucks with chocks and instruct its drivers in their use resulted in a serious violation of the standard.

6We note in passing that County’s contention that it had no reason to know that it was supposed to use chocks for its concrete mixers is severely undermined by former section 1926.700(d)(8), in the Subpart Q Concrete standards, that until June 1988 provided: “When discharging on a slope, the wheels of ready-mix trucks shall be blocked and the brakes set to prevent movement.” Even assuming, as County argues, that industry custom and practice has not reflected the regular use of chocks, such industry-wide failure would provide no defense for County here. 5

ORDER
Neither party disputed the appropriateness of the $4000 penalty the judge assessed.
Accordingly, we affirm the serious violation and, based on the statutory criteria in 29 U.S.C. 6 666(j), assess a total penalty of $4000.

Bild
E. 711wdJy
Stuart E. Weisberg chairman

ff
Edwin G. Foulke, Jr.
Commissioner

Commissioner

Dated: August 9, 1994
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 200364419

..

SECRETARY OF LABOR, l
l

. a

Complainant,
00
..
v. .. Docket No. 93-1201
..
COUNTY CONCRETE CORP., ..
..
Respondent.
0.
.

The attached decision by the Occupational Safety and Health Review Commission was issued on August 9.1994. ANY PERSON ADVERSELYAFFECTED OR AGGRIEVED WHO WISHES To OBTAIN REVIEW OF THIS DECISION MUST FILE A NOTICE OF APPEAL WITH THE APPROPRIATE FEDERAL COURT OF APPEALS WITHIN 60 DAYS OF THE DATE OF THIS DECISION. See Section 11 of the Occupational
Safety and Health Act of 1970,29 U.S.C. 3 660.

Autist 9.1994
Date
Docket No. 934201

NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Patricia Rodenhausen, Esq.
Regional Solicitor
Office of the Solicitor, U.S. DOL
201 Varick St., Room 707
New York, NY 10014

Lewis Stein, Esq.
Nusbaum, Stein, Goldstein & Bronstein
20 Commerce Boulevard
Succasunna, NJ 07876

Irving Sommer
Administrative Law Judge
Occupational Safety and Health
Review Commission
One Lafayette Centre
1120 20th Street, Suite 990 A
Washington, D.C. 200363419
 OCCUPATIONAL SAF~~$E:~:i:c;E”lEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419 *

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 93-1201
COUNTY CONCRETE CORPORATION
Respondent.

NOTICE OF DOCKETING
OF ADMINISTIUUIVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was docketed with the Commission on June 39, 1994. The decision of the Judge will become a final order of the Commission on August 1, 1994 unless a Commission member directs review of the decision on or before that date. ANY PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such etition should be received by the Executive Secret on or before July 20,, 1B94 in order to ermit sufficient time for its review. Y ee _ Commission Rule 91, 29 Is .F.R. 2200.91.
All further pleadings or communications regarding this case shall be P addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Re ‘onal Trial Liti ation
Office of the So%*&or, U.S. DO5
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for Regional Trial Litigation will represent the Department of Labor. Any pq havmg questions about review nghts may contact the Commission’s Executive Secretary or call (202) 606-5400.
FOR THE CO)4M$SSION
#

Date: June 30, 1994
DOCKET NO. 934201
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO5&
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Patricia Rodenhausen, Esq 0
Re ‘onal Solicitor
O&e of the Solicitor U.S. DOL
201 Varick, Room 7Oj
New York, NY 10014

Lewis Stein, Es uire
Nusbaum Stein 73 oldstein & Bronstein
20 Commerece Boulevard
Succasu~a, NJ 07876

Irvin Sommer
Chie f Administrative Law Jud e
Occupational Safety and Heal L
Review Commission
One Lafayette Centre 3
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419

00107361719:02
 UNITED STATES OF AMERICA
OCCUPATIOF -II SAFETY AND HEALTH REVlE’^’ COMMISSION One Lafayette Centfe
1120 20th Street, N.W. - 9th Floor
Washington, DC 200364419

SECRETARY OF LABOR,
.
.
.
.
Complainant,
.
.
.
.
v. .
. Docket No. 93-1201
.
COUNTY CONCRETE CORPORATION, I
.
.
.
Respondent.
..

Appearances:

Diane C. Sherman, Esq.
Lewis Stein, ESQ.
U.S. Department of Labor
Nusbaum, Stein,
New York, New York
Goldstein & Bronstein
Succasunna, New Jersey

For the Complainant
For the Respondent

Before: Administrative Law Judge Irving Sommer .

This is a proceeding under Section 10(c) of the Occupa- tional Safety and Health Act of 1970, 29 U.S.C. section 651 & Se* 3 ("the Act"), to review citations issued by the Secretary of Labor pursuant to section 9(a) of the Act, and the proposed assessment of penalties therein issued, pursuant to section 10(a) of the Act.
 Respondent is a corporation which was engaged in concrete delivery and related activities, On or about October 2,

1992, the worksite at Northfield Estates, Lot $1.54, Blk.

13304, Northfield Drive, Wantage, New Jersey was inspected by an OSHA compliance officer. Subsequently, on March 30, 1993, the company received a serious citation resulting from this inspection. Respondent filed a timely notice of contest to the citation and penalties. A hearing was held on November 29, 1993, in New York, New York. Both parties were represented at the hearing and both parties have filed post-hearing briefs. No

jurisdictional issues The matter
are in dispute. is now before c
the undersigned for a decision on the merits.

           At     the hearing                  on November               29, 1993,            the compliance

officer, Gary Jensen, testified that he had begun his investigation of the reported accident at the Respondent's worksite by getting updated by the New Jersey State Police concerning their findings regarding the accident. Mr. Jensen related that he had talked to two New Jersey State Police Officers, Trooper Jacobs and Trooper Gillette. Trooper Jacobs told the compliance officer that a concrete mixing truck owned by County Concrete Corporation had pulled up onto a ramp, that the driver of the truck out of the vehicle, and the
had gotten
vehicle had rolled backwards striking two men, resulting in the death of them, and then continued to roll across
of one
the
excavation to the southernmost edge before stopping. Trooper
Gillette, who was doing the inspection
of the truck's brakes,
indicated to the compliance officer that he had found no defects in the brake system of the vehicle and concluded that the parking brake had not been set (transcript, p. 62-64, Secretary's brief, P. 4). The compliance officer’s testimony was also supported by photographic evidence (exhibits C-l- C-13).
 The compliance officer also met with Respondent’s
representative, Mr. Napierski, to determine the company’s parking policy for its truck drivers. Mr. Napierski told Mr. Jensen that the company’s truck drivers were instructed to leave their trucks running in neutral) to apply the maxi air brake, and to make sure that the vehicle was not rolling prior to getting out of the truck l Mr. Jensen also met with County Concrete’s supervisor and dispatcher, Mr. Space, who concurred with Mr. Napierski regarding the company’s parking procedure. Both men also indicated to the
compliance officer that chocks were not provided nor used by
County Concrete personnel as part of their parking procedure on .
an incline (transcript, p. 39-43).

                The         Secretary’s            case      was further                illuminated            by the

testimony of New Jersey State Trooper Jacobs at the hearing.
Trooper Jacobs testified that the State Police did not classify
the accident as a motor vehicle accident as the concrete truck was being used as equipment at the time of the accident. The State Trooper defined the term “parked” as any vehicle which is stopped and left abandoned by an individual. In the police investigation reports the accident was described as a ’‘subject who was struck by an unattended cement truck while being used as
a machine”(exhibit C-ls transcript, p. 51-53, 60-78, Secretary’s
brief, p. 4-S).
 .

              Respondent              acknowledges         that             an accident            occurred at

its worksite. However, County Concrete asserts that since motor vehicles s such as the truck here in question, appear to be covered by 29 C.F.R. section 1926.601, the Secretary is in error by citing Respondent for a violation of 29 C.F.R. section 1926.600(a)(3)(ii), which pertains to "equipment" and not a
“motor vehicle". Further, even if Respondent had been cited
under the applicable standard (1926.601), Respondent still is not
guilty of any violation as that standard does not even sent ion *
the necessity to use chocks as
a safety device (transcript, p.
85-91, Respondent's brief, p. 4-8).

              Respondent              also     submits        that          the      Respondent's            cement

truck was not “parked” on the incline as that term is intended in the citation. Rather, the truck was never left unattended as
the truck driver, Mr. Hotalen, left the engine running to
dispense cement when he exited the truck cab and was standing
right next to the truck when it began to roll backwards
(transcript) p. 65-69, Respondent's brief, p. 5-9).

              Further,         Respondent            argues          that         the standard            that     the

Secretary has cited it of violating is unconstitutionally vague. In the instant case, there is no indication that the standard is meant to apply to motor vehicles. In addition, the Secretary has offered no evidence of the custom and practice of the concrete industry regarding the use of chocks on trucks (Respondent’s brief, p. 7-9).
The Respondent asserts that the
driver of the truck in
question set the parking brake However, if the parking brake l

was found ‘not to
_ be set by the driver, it was an isolated
occurrence. This brief violation of the standard was caused by
an employee not following an adequate work rule which had been
effectively communicated to the
employees and uniformly enforced
(transcript, p. 62-64, Respondent’s brief, p. 8-9).

                                     of        29 C-F&      SW

. lQ26.~OO(a~(3~(1~ . .
.
Serious Citation 1, item 1 alleges:
Equipment parked on an incline did not have the wheels
chocked and the parking brake set.

The primary question to consider here is whetheror not the Respondent violated the particular standard for which it was
cited. In this instance, County Concrete Corporation is accused
of violating section 1926.600( a)( 3), alleging that equipment
parked on an incline did not have the wheels chocked and the
parking brake set.

            The     Secretary        asserts that            the        Respondent           has been
properly    cited as       charged as                the truck     was being              utilized as
“equipment”’        to    pour      ready-mix             concrete.                The     Respondent
counters     that    it was       cited          incorrectly as                truck is not

the
“equipment” but a “motor vehicle’ ‘, governed by section
1926.601.
 In determining whether or not a particular standard applies the Commission looks primarily to the text and structure
of the statute
or regulations
whose applicability
is questioned.
. .
See Secretary of Lcabpr v- K-wit W@em C a 16 BNA OSHC 1689 (No. 91-2578, 1994).

In this
case, it is evident from reading the wording of
section 1926600(a)(3) that there is no language in the standard
which disallows a "motor vehicle" from being described or utilized as "equipment" as covered in this standard. Specifically, the concrete truck in question here was being m utilized at various locations at this worksite to pour ready-mix concrete. Consequently, its functional use was as a piecs of "equipment". The standard cited applies generally to tha securing of any type of self-propelled equipment. Consequently, I find that the Respondent was clearly cited under the proper standard in this matter and that the standard is not
unconstitutionally
vague.

               The Respondent                    asserts         that the tru.ck in question                            was

not "parked" as that term is used in the cited standard. The Secretary counters that the truck was definitely "parked" as
that term is normally
understood.

               The term              “parked’ ’ is                  defined in Webster’s Third New

International Dictionary (p. 1642, 1986) as to bring (something) to a stop and keep standing for a time in a certain location. In this matter, since the standard does not elaborate any exotic definition for the term ‘*parked”, I understand the term to be used as commonly understood and utilized. Both parties introduced testimony at the hearing and
touched on this issue in their
post-hearing briefs.
‘A review of the complete case record in this case as well as the common usage
of the term ’‘parked ’’ leads to the
inescapable conclusion that
County Concrete’s truck was “parked”
on the incline at the time
of the accident, which precipitated the inspection.

Respondent argues
that it is not industry custom to use .)
chocks with cement trucks. The Secretary asserts that the
Respondent is mistaken as the industry and the truck manufacturer
recommend the use of chocks for concrete trucks parked on an
inc 1ine .

             Respondent            supported           its           assertion           by     introducing
testimony          of its Vice President, Mr.                         Napierski) at the hearing
(transcript,          p. 85-92).             Mr.      Napierski testified                      that in     the

eight years that he had worked for County Concrete that he
had never seen any of the company‘s ready- mix cement trucks
equipped with chocks. In addition, he noted that since the
company had received the citation, he had personally checked with
four other concrete companies of comparable size and found that
not one of these companies used chocks with their trucks either.
Mr. Napierski also testified that he previously had been a New
Jersey State Trooper for a number of years. In his opinion, the
cement truck in question should be governed by standards as a
“motor vehicle” and not as “equipment”.

             The      Secretary         introduced            into        evidence        at the hearing

, the National Safety Council Data Sheet for Ready-Mixed Concrete
Trucks (exhibit .C-12). This exhibit in pertinent part advises
that concrete trucks should be equipped with wheel chocks and
never l8f t in a position to roll free. The exhibit further recommends the use of an emergency brake and chocking of the truck's wheels when parking on a slope (exhibit C-12, transcript,
p. 45-49, Secretary's brief, p.
In addition, 5-8). the Secretary
introduced
into evidence the Operator's Handbook issued by Mack
Truck for
the model and series utilized by Respondent at this
jobsite (exhibit C-13). The manual advises that when parking the. truck on a grade that chocks should be used under the rear wheels' or the truck's front wheels should be turned to the curb (exhibit C-13, transcript, p. 49-51, Secretary's brief, p. 5-8).

                 Weighing         the      arguments                of     both     parties            regarding             this

issue, I find that a preponderance of the evidence supports a conclusion that Respondent should have instructed its employees to utilize chocks with its cement trucks when parked on an incline, in conformance with the standard and in accordance with industry recommendations.

                 Respondent             maintains                   that         the       truck             driver,          Mr.

Hotalen, set the parking brake on the date of the accident.
However, if the parking brake was found not to be set by the
driver, it was an isolated occurrence. The Secretary argues that the evidence strongly indicates that Respondent's truck driver did not engage the parking brake on the day in question. Further, Respondent's own Vice President, Mr. Napierski, testified that the company’s truck drivers were not provided with chocks, nor instructed to use chocks when parked on an incline.

                    A preponderance                      of the evidence                    presented              indicates         ,

that Respondent ‘.struck driver, Mr. Hotalen, did not use the . Parking brake and did not use chocks when parked on an incline on the day of the accident in violation of the standard. The Secretary does not disagree with Respondent’s position that there is evidence that the truck driver’s failure to use the parking brake was an isolated instance as Respondent’s employees were generally trained to utilize the parking brake. However, the
Secretary maintains that the failure to
withuse respect to chocks that Respondent knew or should have known of the cited condition as it was Respondent's policy not to require the use of
chocks nor to make them available to its truck drivers, in violation 0 f the cited standard.

Despite Respondent's protestations to the contrary, the
facts in this case indicate that County Concrete Corporation was in violation of 29 C.F.R. section 1926.600(a)(3)(ii).
Clearly, a
truck operated by one of its employees was being used as jobsite
equipment to pour ready-mix concrete.
It is quite evident that
the wheels of
Respondent's truck were not chocked and Respondent's operator did not utilize the truck's emergency brake
when he parked the truck on the ramp. See -ret=77 of I&or v.
.
B-s. 10~. , 15 BNA OSHC 1941 (No. 90-3222, 1992);
ret=77 of Labor v, Cowete CQI)strtcn . Cm 9 4 BNA OSHC
1828 (Nos. 5692 & 7329, 1976).

               Therefore,                   taking         into       consideration                   all       the     record

evidence and credible testimony presented regard ing this
citation, I find that the Secretary has established a violation
of the standard by a preponderance of the evidence presented. The evidence further reflects that the Respondent knew or should have known of the hazard to its employees. The violation was obvious and discernible by mere observation. A review of all the relevant factors, the hearing transcript, and the original case
record fully establishes that a penalty of $4000 is appropriate
for this citation.
 All findings of fact and conclusions of law relevant
and necessary to a determination of the contested issues have
been found specifically and appear herein. See Rule 52(a) of the
Federal Rules of Civil Procedure. Proposed Findings of Fact or
Conclusions of Law inconsistent with this decision are denied.

Based upon the Findings of Fact, Conclusions of Law, and the

entire record, it is hereby ordered:

1. Citation 1, item 1, alleging a serious violation of 29

C.F.R. section 1926.600(a)(3)(ii), is affirmed and a penalty of

$4,000 is assessed.

Washington, D.C.