Linde Enterprises, Inc.

Read the official release (oshrc.gov)

Plain-English summary

Linde Enterprises is a Pennsylvania excavating contractor that was installing
utility lines in Dunmore, Pennsylvania. Acting on an anonymous complaint, an
OSHA compliance officer inspected the trench worksite and issued one serious
citation with four items. Linde first argued the inspection was invalid,
saying the officer had no basis to be there and videotaped the trench from
private property before a warrant was obtained. Judge John H. Frye, III
rejected those arguments: the complaint named Linde, and the videotaping was
done from a commercial parking lot open to the public, so the "open fields"
rule applied and the evidence stood.

On the merits, the judge affirmed the trenching violations. The soil was
properly classified as Type B (not the more stable Type A Linde claimed),
partly because of heavy truck traffic 20 to 30 feet away, so the trench was
improperly sloped (§ 1926.652(a)(1)); a trench box left only partly inserted
with a worker below its protection, and the failure to conduct a competent
daily inspection, also violated the standards (§ 1926.652(g)(2) and
§ 1926.651(k)(1)); and Linde's "impossibility" defense failed because it never
showed it tried feasible alternatives. A back-up alarm that was disconnected on
a front-end loader (§ 1926.602(a)(9)(ii)) was affirmed as serious but its
penalty was reduced to zero because Linde reconnected it immediately and had a
maintenance program. The seat-belt item (§ 1926.602(a)(2)(i)) was vacated
because the officer's observations did not show the equipment lacked compliant
seat belts. Total penalty: $1,800.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.652(a)(1), § 1926.652(g)(2), § 1926.651(k)(1), § 1926.602(a)(9)(ii), § 1926.602(a)(2)(i)
• Outcome: Items 1, 2a, 2b, and 3 affirmed serious (item 3 penalty reduced to $0); item 4 (seat belts) vacated; total $1,800
• Key point: Heavy adjacent traffic can push soil out of Type A classification, defeating a sloping defense; an "impossibility" defense requires proof the employer tried feasible alternative protection.

Full text (OSHRC public release)

```text
United States of America
OCCUPATIONAL SAF’ETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, DC 20036-34 19

                                                                         Phone: (202) 606-5400
                                                                             Fax:(202)606-5050

SECRETARY .OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 95-1089
LINDE ENTERPRISES, INC.
Respondent.

                  NOTICE OF DOCKETING
           OF ADMINISTRATIVE LAW JUDGE’S DECISION
 The Administrative Law Judge’s Report in the above referenced case was

docketed with the Commission on April 11, 1996. The decision of the Judge
will become a final order of the Commission on May 13, 1996 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 Secretary on or before
May 1, 198 6 in order to permit sufficient time for its review. See
Commission Rule 91, 29 C.F.R. 2200.91.
All further pleadings or communications regarding this case shall be
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 Regional Trial Litigation
Office of the Solicitor, U.S. DOL
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 party
having questions about review rights may contact the Commission’s Executive
Secretary or call (202) 606-5400.
FOR THE COMMISSION

Date: April 11, 1996 Ray H. Darling, Jr.
Executive Secretary
DOCKET NO. 95-1089
NOTICE IS GIVEN TO THE FOLLOWING:

Deborah Pierce-Shields
Re ional Solicitor
Of&e of the Solicitor U.S. DOL
14480 Gatewa Building
3535 Market Htreet
Philadelphia, PA 19104

James C. Oschal, Esq.
Rosenn Jenkins & Greenwald, L.L.P.
15 South Franklin
Wilkes-Barre, PA 18711

John H. Frye, III
Administrative Law Jud e
Occupational Safety an B Health
Review Commission
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419

00106466717:03
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR .
Complainant

                                           Docket Nr.    95-1089
          v.

LINDE ENTERPRISES, INC./
Respondent

APPEARANCES

For Complainant For Respondent
J. Davitt McAteer, Esq. ROseM, Jenkins & Greenwald, LLP
Acting Solicitor James C. Oschal, Esq.
Wilkes-Barre, Pennsylvania
Deborah Pierce-Shields, Esq.
Regional Solicitor

Allison Anderson Acevedo, Esq.
Attorney
U.S. Department of Labor
Philadelphia, Pennsylvania

BEFORE

JOHN H FRYE, III
Judge, OSHRC

                              DECISION AND ORDER

I. INTRODUCTION

    This case involves an action pursuant to Section 10 (c) of the

Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651 et seq,

(hereinafter the rrActll). Respondent, Linde Enterprises, Inc. is a
corporation with its principal place of business in Honesdale,

Pennsylvania. Respondent performed excavating work involving

installation of utility lines at a worksite in Dunham, Pennsylvania,

which was inspected by the Secretary.

  As a result of an anonymous telephone call alleging that

workers were involved in a dangerous work situation, David Martin, a

compliance officer from the Wilkes-Barre area office of the

Occupational Safety and Health Administration (UOSHA1l), conducted

the inspection of Respondent's Dunham worksite from April 28, 1995

through May 18, 1995. As a result, the Secretary issued one serious

citation containing four items alleging violations of 29 C.F.R. §§

1926.652(a)(l), 1926.652(g)(2), 1926.65%(k)(l), 1926.602(a)(g)(ii)

and 1926.602(a)(2) (i). Respondent filed a notice of contest of the

citations on June 15, 1995, invoking the jurisdiction of the

Occupational Safety and Health Review Commission. Jurisdiction over

the subject matter and the parties has been established.

II. BACKGROUND

  Acting following an anonymous complaint that Linde employees

were working in unprotected trenches on Tigue Street in Dunmore, Mr.

Martin's supervisor directed him to inspect the Respondent9 work

site on April 28. In fact, Respondent's worksite was on Dunham

Drive, about one-half mile from Tigue Street. Mr. Martin's

                                   2

directions took him to Dunham Drive via Tigue Street, where he

noticed other contractors at work, but did not observe any

excavations. He did not stop, but continued on to Respondent's

worksite on Dunham Drive. (Tr. 32-38.)

     When Mr. Martin arrived at Respondent's    site at about 4:00 PM

on Friday, April 28, 1995, he observed the worksite while he was

parked on the south side of Dunham Street. Because Respondent was

closing the worksite for the day, he took no further action at that

time. He returned on Monday, May 1, 1995. (Tr. 17, 19).

     On May 1, Mr. Martin first drove by the worksite making

observations. Next, he videotaped Respondent% jobsite from a hill

outside of the parking lot of a heavy equipment dealership located

on Dunham Street. He then videotaped Respondent% jobsite from the

entrance to GNB Batteries, a commercial establishment also located

on Dunham Street. At about 8:30 AM, he presented himself to Mr.

Joseph Jugan, Respondent% foreman on the site. (Tr. 46-48, 50; G-

6) l

     The evidence with regard to the conversation between Mr. Martin

and Mr. Jugan conflicts. Mr. Martin testified that Mr. Jugan

consented to the inspection. Mr. Jugan testified that he asked Mr.

Martin to "remain there and do nothing until I get back/ In any

event, both agree that Mr. Jugan excused himself and retrieved

Respondent% written policy concerning OSHA inspections from his

                                  3

truck. During this brief time, Mr. Martin measured and videotaped

the excavation. Mr. Martin stated that Mr. Jugan did not explain

the company policy to him until Mr. Jugan retrieved policy from the

truck. Respondent's written policy presented to Mr. Martin stated:

                   Companv Policv: OSHA Inspections
         The following is the official Company policy of Linde
   Enterprises, Inc. regarding OSHA field inspections:
         Upon notification by an OSHA compliance officer of a job
   site inspection, the person in change of the site shall advise
   the compliance officer that he is to wait until one of the
   owners of Linde Enterprises, Inc. or a representative designated
   by the owners arrives on the job site.

Mr. Martin then stopped inspecting. Some time later, Mr. Scott

Linde arrived and advised him that Respondent would not consent to

the inspection without a warrant. Mr. Martin returned on May 9 with
.
a warrant and was permitted to inspect. (Tr. 21-23, 51-53, 85-86,

109; R-l.)

III VAIJDITY OF THE APRIL 28 - MAY 1 INSPECTION

     Respondent     submits that, based upon the foregoing, Mr. Martin

had no probable cause to be at the worksite based upon the anonymous .

complaint concerning a worksite about one-half mile away. Respondent

also argues that Mr. Martin videotaped the trench from private

property on May 1, 1995, without a warrant in circumstances where

Respondent had a reasonable expectation of privacy. Moreover,

Respondent argues that after he was asked by Mr. Jugan to wait until

                                       4

one of Respondent's representatives arrived, Mr. Martin videotaped

and measured the trench. Respondent believes that Mr. Martin's

conduct violated its Fourth Amendment right to request a warrant, and

that its motion to exclude the all the evidence gathered prior to the

warrant being obtained should be granted. See Marshall v. Barlow%,

Inc., 1436 U.S. 307, 56 L. Ed. 2d 305, 314 (1978) (warrantless OSHA

inspections are unreasonable under the Fourth Amendment).

    Respondent's motion is denied.    First, RespondenPs     argument

that the anonymous complaint was directed toward another contractor

is not supported. While the complaint did refer to work being done

on Tigue Street, where Respondent was not present, it also

specifically referred to Respondent by name and to the excavation

work which Respondent was engaged in. Moreover, the directions

given Mr. Martin clearly sent him to Respondent's worksite, and

while Mr. Martin observed some construction work on Tigue Street, he

did not observe any excavation work in progress there. I find that

the complaint contained sufficiently information to provide OSHA

with a reasonable basis on which to inspect Respondent at its Dunham

Street worksite.

    Second, RespondenVs    argument that Mr. Martin entered on

private property in order to videotape its activities on May 1,

thereby depriving it of a reasonable expectation of privacy, is not
persuasive. Respondent urges that the "open-fields" doctrine does

not apply here, because it was working on private property in a

trench below ground level that was not readily observable from

public property. However, there is no evidence that Mr. Martin

entered on any property to which the public's access was

restricted. As a result, the "open fields" doctrine clearly

applies.

  Under that principle, there is no constitutional violation
  where an inspector makes observations from areas on commercial
  premises that are out of doors and not closed off to the
  public, even if the inspector entered the premises without
  permission.

Secretary v. Concrete Construction Co., 15 OSHC 1614, 1617 (Rev.

Corn. 1992). In this case, Mr. Linde testified that Mr. Martin would

have had to have taped from the GNB Batteries parking lot, and

produced photographs of that lot. (See R-2 - R-6.) Two signs at

the entrance to the parking lot advise that:

  This entrance is reserved for the sole use of GNB employees,
  customers, and suppliers.  Contractors use Gate '3;

  and

  Warning.   This property       is protected by electronic
  surveillance.

The photographs show that the lot is not protected by a gate or

fence. This fact, coupled with the fact that the first sign invites

customers and suppliers to use the lot, clearly indicates that the
GNB parking lot was not "closed off to the public" as contemplated

by Concrete Construction.

 Third, because Mr. Linde, not Mr. Jugan, informed Mr. Martin

that Respondent would not consent to a warrantless inspection, .

Respondent can make no claim that Mr. Martin ignored that demand

when he measured and videotaped the trench during the period that

Mr. Jugan was retrieving the company's policy from his truck. Once

presented with that policy, which simply asked that he await a

company representative, Mr. Martin complied. Assuming, as

Respondent maintains, that Mr. Jugan initially had asked Mr. Martin

to await that representative, Mr. Martin's failure to do so does not

violate Respondent's Fourth Amendment rights. At most, it offends §

8(e) of the Act, which provides that the Secretary shall afford a

representative of the employer the opportunity to accompany the

inspector. Here, there is no showing that Mr. Martin acted in such

a way as to deny Mr. Jugan that opportunity. Nor does it appear

that Mr. Jugan's brief absence prejudiced Respondent in the

preparation of its defense. Secretary v. Concrete Construction Co.,

supra, 15 OSHC at 1617-19.
IV. THE MERITS OF THE CITATIONS

    Citation   1. Item 1

    The Secretary cited Respondent for a violation             of 29 C.F.R. §

1926.652(a)(l). This regulation provides:

    Each employee in an excavation shall be protected from cave-ins
    by an adequate protective system designed in accordance with
    paragraph (b) or (c) of this section.

    Mr. Martin observed Respondent's      employees working in the

excavation on May 1, 1995. (Tr. 20-21, 147, 157, G-2 [Video Counter

Nos. 0:51, 3:02]). He measured the excavation, and found the north

side to have a depth of 10 feet and the south side a depth of six

feet. He found a small bench, 20 to 22 inches wide, located on the

north side six feet from the bottom of the excavation. There was no

slope. (Tr. 27-28, 64). He observed trash compactor trucks, trucks

delivering heavy machinery, and tractor trailers traveling along

Dunham Street within 20 to 30 feet of the excavation. (Tr. 132).

Based on this, Mr. Martin concluded that the adjacent road was

subject to extremely heavy traffic. (Tr. 143; G-2 [Video Counter

Nos. 0:56-1:35]).

    Mr. Martin conducted a manual test on the soil in the

excavation on May 1, 1995, and determined that the soil was not

cohesive. Based on this and the heavy traffic, he concluded that

the soil in the excavation should be classified as Type B. (Tr.

175). Accordingly, he testified that, to comply with the OSHA

                                     8

regulations, the excavation should have been sloped on a one-to-one

basis. (Tr. 28). He determined that fractures, or asphyxiation

resulting in serious physical harm or death could result from the

conditions present in the excavation. (Tr. 200).

 Mr. Martin recommended a penalty of $900.          In determining     this

amount, Mr. Martin considered the severity and probability of injury

associated with the violation. The proposed penalty also included a

forty percent reduction for Respondent's size. A fifteen percent

reduction was made for good faith, based on the fact that the

employer had a written safety policy. Respondent did not receive a

reduction for history, as it had one serious violation within the

last three years. (Tr. 201, 202)

     Respondent notes that it is charged with violating 29 C.F.R. §

1926.652(a), which requires an adequate protective system designed in

accord with § 1926.652(b) or (c). It notes that § 1926.652(b)(2)

permits sloping and benching systems to exist consistent with

Appendices A and B to that subpart. Citing Appendix B, Figure B-l.1

for excavations made in Type A soil, it maintains that the slope of

the trench was l/2:1, permissible for excavations which are open 24

hours or less and are 12 feet or less in depth. Mr. Yelland,

Respondent 9 superintendent, testified that the trench was sloped at a

ratio of l/2:1. (Tr. 369-70.) Mr. Yelland also indicated that he
 conducted both visual and Uthumbfl tests on the soil, and he concluded

that the soil was UhardpanU (Tr. at 3600362), which is specifically

defined as Type A soil in Appendix A to 29 C.F.R. 5 1926.652.

Similarly, Mr. Linde testified that he performed visual inspections

and concluded that the soil was hardpan. (Tr. at 349-350).

     The first question to be decided is whether the soil was

properly classifiable as Type A. Respondent is correct that hardpan

' is, by definition, Type A soil. However, Mr. Martin's concluded that

the soil was not cohesive, a condition inconsistent with hardpan. It

is unlikely that a Compliance Officer with Mr. Martin's experience

would make an error in this regard. If the soil were hardpan, that

condition should be evident from the soil deposited in the spoil pile,

where Mr. Martin obtained his sample. It is not likely that clumps of

hardpan would be completely broken up in the digging process.

     Moreover,    the presence of heavy truck traffic on the adjacent

roadway dictates against the Type A'classification. Appendix A

provides that no soil is Class A if it is subject to vibration from

traffic. While Mr. Martin conceded that the standard does not specify

a safe distance from the traffic (Tr. 172-173), Dr. Peck indicated

that heavy traffic on a road located some 20 to 30 feet from the

excavation Y.. would cause vibrations that would be transmitted to

the soil and cause it to become additionally unstable." (Tr. 297.)

It is clear that the soil in question was properly classified as Type

                                    10

B. The slopes which Respondent maintains were employed in the trench

are not acceptable for Type B soil.

  Additionally,   there is some question whether the trench was

sloped or benched. If the trench walls were sloped in Type A soil,

the l/2:1 ratio to which Mr. Yelland testified would be acceptable.

While the Respondent's witnesses often spoke in terms of slopes, it is

not clear whether they intended to imply that the walls were sloped to

the exclusion of utilizing benches. Mr. Yelland seems to say that

both were used. (Tr. 364-70.) Mr. Martin clearly indicated that the

trench walls were not sloped, and that the north wall was benched. If

the Respondent employed benches, a ratio of 3/4:1 would be required

(see Appendix B, 5 Bl.l(2)), and Mr. Yelland's ratio of l/2:1 would be

unacceptable.' In sum, the preponderance of the evidence supports the

issuance of this citation.

  Citation    I~ Items 2a and 2b

  Item   2(a) alleges a violation of 29 C.F.R. § 1926.652(g)(2),

which states:

  Excavations of earth material to a level not greater than 2
  feet (.6lm) below the bottom of a shield shall be permitted,
  but only if the shield is designed to resist the forces
  calculated for the full depth of the trench, and there are no
  indications while the trench is open of a possible loss of soil
  from behind or below the bottom of the shield.

Item 2(b) alleges a violation of 29 C.F.R. § 1926.651(k)(l),

which states in part that:

     Daily inspections of excavations, the adjacent areas, and
     protective systems shall be made by a competent person for
     evidence of a situation that could result in possible cave-ins,
     indications of failures of protective systems, hazardous
     atmospheres, or other hazardous conditions.

     When Mr. Martin arrived at the worksite on May 9, 1995, he

observed a trench box protruded half way out of the excavation. A

worker was in the trench. Mr. Yelland was present? After Mr.

Martin's arrival, the worker exited the trench and the box was more

fully inserted, an operation that entailed some difficulty because

the trench was not wide enough to accommodate the trench box. (Tr .

22-23, 204, 236). Mr. Martin measured the trench and the trench box .

and found the depth of the trench to be eight feet and the height of

the trench box to be five feet. (Tr. 204, G-2, Video Counter Nos.

5~28-5~44). Mr. Yelland testified that the trench box reached to

about 2 l/2 to 3 feet of the bottom of the trench. (Tr. 376, 382).

     Mr. Martin observed earth falling into the excavation while a

worker was present in the excavation after the box had been more

fully inserted into the trench. Mr. Martin observed that the worker

was working below the level of protection provided by the trench

l While Mr. Yelland testified that he had not recollection of a worker in
the trench at this time (Tr. 377, 380), Mr. Martin's testimony that a
worker was present was unequivocal. (Tr. 236-38, 240-43.) In this
circumstance, I credit Mr. Martin's testimony as accurate.
12
box. (Tr. 23, 211, G-2./ Video Counter No. 9:18). He also observed

heavy traffic passing near the excavation which could reduce the

stability of the soil, and that the soil had been previously

excavated. (Tr. 211-12, G-2, Video Counter Nos. 4:40-5:27). Mr.

Martin testified that the failure to properly install a protective

system into this excavation could result in broken bones or

asphyxiation of a worker. (Tr. 212).

    Respondent     asserts that it was not possible      to insert the

trench box far enough into the trench to comply with 5

1926.652(g)(2) because the box was obstructed by solid rock and some

utility lines. (Tr. 255-58, 267, 370, 378.) When an employer makes

an affirmative defense that compliance with the regulations is

impossible or infeasible, the employer bears the burden of

demonstrating that compliance with the standard is impossible and

that the employer used alternative means to protect its employees or

that alternative means were unavailable. See, Bancker Construction

Corp. v. Reich, 31 F.3d 32, 34 (2d Cir. 1994); Brock v. Dun-Par

Engineered Form Co./ 843 F.2d 1135, 1136 (8th Cir. 1988); Long Beach

Container Terminal, Inc. v. OSHRC, 811 F.2d 471, 479 (9th Cir. 1987);

Noblecraft Industries, Inc. v. Sec. of Labor, 614 F.2d 199, 205 (9th

Cir. 1980).

                                      13

In Dun-Par, an employer was cited for failing to provide

guardrails at a construction site. As its defense, Dun-Par claimed

that it was impossible to install the guardrails. The court held

that since it is the employer's responsibility for its employee's

safety under the Act, the employer must "affirmatively investigate

alternative measures of preventing the hazard, and actually

implement such alternative measures, to the extent feasible." Id.

at 1139.

     In the present      case, Respondent failed to adequately protect

its employees from cave-ins, but did not explore alternative means

of protecting its employees in the trench. Mr. Yelland indicated

that existing utilities and a rock preventing the box from being

inserted further into the excavation. (Tr. 379). However, the

defense of impossibility of performance will not lie Y.. if an

employer shows merely that compliance would be difficult,

inconvenient, or expensive-u Long Beach, supra. He also insisted

that a trench plate, which had been inserted, would protect the

workers. (Tr. 380). However, the video shows soil sporadically

flowing into the trench from the vicinity of the trench plate even

as an employee was working, as well as the presence of heavy truck

traffic immediately above the employee. (G-2, Video Counter No.

9:18). Respondent provided no evidence that it investigated and

attempted to implement any alternative measures to protect employees

                                         14

from a cave-in. Consequently, its arguments regarding the

impossibility or infeasibility of compliance are rejected.

     Moreover,     when Mr. Martin arrived on the site, the trench box

was only inserted to the extent of one-half of its height and a

worker was in the trench. Clearly, that worker received little if

any protection from the trench box. This hazard was blatant and

occurred in the presence of Respondent's competent person, Mr.

Yelland. Therefore, I must conclude that Mr. Martin is correct that

Mr. Yelland failed to recognize a blatant hazard. The Secretary has

demonstrated that Respondent violated 5s 1926.651(k)(l) and

1926.652(g) (2).

     Respondent urges that these items, and item 1, involving the

sloping of the trench, should be classified as "Other Than Serious/

Respondent urges that

          it is hard to imagine any scenario under which any employee
      in-the trenches which are the subject of [these items] could be
      subject to a "substantial probability" of asphyxiation and
      fracture hazards as alleged.... The trenches were sloped, and a
      trench shield was installed in each case, respectively.   In the
      case of the trench shield, it was resting on one side on solid
      rock which could not have collapsed below the shield. Thus,
      under any scenario, Citation I, Items  .1and 2a should be reduced
      in classification from WeriouP    to "Other Than SeriousH, even
      assuming arguendo that LINDE violated the regulations. The
      monetary penalties should be eliminated or reduced
      correspondingly as well.   (Respondent's brief, p. 13.)

      Trenching    is a hazardous activity.    Despite Respondent's

protestations to the contrary, it violated OSHA standards applicable

                                      15

to these trenches. The close proximity of heavy truck traffic and the

sporadic spilling of soil into the trench partially protected by the

trench box and shield dramatize the potential for serious injuries

even after the trench box had been more fully inserted into the

trench. Similarly, the failure to properly slope or bench the trench

inspected on May 1 carried with it the potential for serious injuries.

These violations were appropriately classified as "serious/ and the

penalties properly calculated by Mr. Martin.

  Citation       1     Item 3

  This item alleges a violation of 29 C.F.R. § 1926.602(a)(g)(ii)

which provides:

  All bidirectional machines, such as rollers, compactors, front-
  end loaders, bulldozers and similar equipment, shall be
  equipped with a horn, distinguishable from the surrounding
  noise level, which shall be operated as needed when the machine
  is moving in either direction. The horn shall be maintained an
  operative condition.

  Mr. Martin testified              that he observed a worker operating

Respondent's front-end loader on May 9, 1995, on the Respondent's

worksite. (Tr. 195-96, 219-220; G-2, Video Counter Nos. 6:46-7:15).

Mr. Martin saw the front-end loader back up several times in a ten-

minute period but did not hear the reverse signal alarm operating.

(Tr. 215, 220, 271; G-2,. Video Counter Nos. 6:46-7:15). Mr. Yelland

was present. (Tr. 360). Mr. Martin testified that when this

                                           16

situation was brought to the foreman's attention, the latter

indicated that the alarm had been disconnected for some reason and

immediately reconnected it. Thereafter, Mr. Martin heard the alarm

operating. (Tr. 214-15.) An accident which occurs as a result of

an inoperable back-up alarm could cause an employee to suffer death

from internal injuries, fractures, blood loss or asphyxiation. (Tr .

220).

    Respondent    urges that it has an active, ongoing vehicle

maintenance program (R-9) I and quickly corrected the violation. It

also urges that there is no evidence that it knew of and permitted

the condition to exist. However, Mr. Yelland's presence on the site

is sufficient to impute knowledge to Respondent. Respondent urges

that the violation should be classified as other-than-serious.

While the violation is clearly serious, Respondent's quick action to

correct it and its ongoing vehicle maintenance program dictate that

the penalty should be reduced to $00.

    Citation     1 Item 4

    This item 4 alleges a violation of 29 C.F.R. §

1926602(a)(2) (i), which provides, in part:

    Seat belts shall be provided on all equipment covered by this
    section and shall meet the requirements of the Society of
    Automotive Engineers, J386-1969, Seat Belts for Construction
    Equipment.


                                      17

Mr. Martin testified that on April 28, 1995, he observed an

employee riding on the access ladder of a front-end loader, without

being secured in the vehicle by a seat belt. (Tr. 129, 221, 222; G-

2, Video Counter Nos. 0:05-0:21, 0:39-0:44). Mr. Martin's

observations are not relevant to the issue of whether the front-end

loader was equipped with seat belts meeting the requirements of the

cited standard. This citation is vacated.

v. CONCLUSIONS OF LAW

   A.         Respondent Linde Enterprises,       Inc., is an employer

engaged in a business affecting commerce within the meaning of

section 3(5) of the Occupational Safety and Health Act of 1970, as

amended, 29 U.S.C. § 652(S) ("the Act").

   B.         Jurisdiction     of this proceeding   is conferred upon the

Occupational Safety and Health Review Commission by section 10(c) of

the Act, 29 U.S.C. § 659(c).

Citation 1, Item 1.

    c.        Respondent Linde Enterprises,       Inc., was in serious

violation of the standard set out at 29 CFR §§ 1926.652(a)(l). A

penalty of $900 is appropriate.

Citation 1, Items 2a and 2b

                                         18

/--
D. Respondent Linde Enterprises, Inc., was in serious

violation of the standards set out at 29 C.F.R. 5s 1926.652(g)(2)

and 1926.651(k)(l). A penalty of $900 is appropriate.

    E.         Respondent        Linde Enterprises,,     Inc., was in serious

violation of the standard set out at 29 C.F.R. 5 1926.602(a)(g)(ii).

A penalty of $00 is appropriate.

          F.        Respondent    Linde Enterprises,,     Inc., was in not serious

violation of the standard set out at 29 C.F.R. 5 1926.602(a)(2)(i).

VI. ORDER

    A.          Citation    1,    items   1,   2a, 2b, and 3 are affirmed   as

serious violations of the Act.

     B.         Citation    1,    Item 4, is vacated.

     C.         A total civil penalty of $1,800           is assessed.

Dated: -Am I 1 1996
Washington, D.C.

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