UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 7227

ATLANTIC SUGAR ASSOCIATION,

 

                                              Respondent.

 

 

June 24, 1976

ORDER OF REMAND

An order of Administrative Law Judge John J. Larkin is before this Commission pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq. hereinafter ‘the Act’). Judge Larkin held, at the close of the Secretary’s case-in-chief, and before respondent introduced evidence, that the record did not reflect a violation of section 5(a)(1) of the Act, and vacated the citation and proposed penalty.

Upon consideration of the record in the instant case and the submissions of the parties, it is found that the evidence presently of record is sufficient to prove a violation of section 5(a)(1) of the Act. It is enough here to find that by means of correspondence, industry meetings and highly publicized accidents, there is sufficient evidence that the sugar cane industry and respondent had knowledge that transporting field workers in a standing position in trucks without adequate seating or substantial rear barriers was hazardous to the workers. It is further found that Complainant’s Exhibits 1 and 2[1] are admissible, and shall without further motion be admitted into the record.[2] The exhibits are relevant to the issue of whether standing in a truck is a recognized hazard. See Fed.R.Evid. 401.

Accordingly, it is ORDERED that the decision of the Administrative Law Judge, granting respondent’s motion for an involuntary dismissal under Fed.R.Civ.P. 41(b), is hereby reversed and the case be remanded for further proceedings.

 

It is so ORDERED.

 

FOR THE COMMISSION:

 

William S. McLaughlin

Executive Secretary

BY: Gloria W. White

Assistant Executive Secretary

Dated: JUN 24, 1976

 

MORAN, Commissioner, Dissenting:

Judge Larkin correctly decided this case and his decision, which is attached hereto as Appendix A, should be affirmed for the reasons stated therein. Additionally, complainant’s amendments of the citation were improper.

            In order to establish a violation of 29 U.S.C. § 654(a)(1), complainant must prove that the alleged violative condition was a recognized hazard that was causing or was likely to cause death or serious physical harm. National Realty & Construction Company, Inc. v. OSAHRC, 489 F.2d 1257, 1265 (D.C. Cir. 1973); 29 U.S.C. § 654(a)(1). In my concurring opinion in Secretary v. Sugar Cane Growers Cooperative of Florida, OSAHRC Docket No. 7673, June 15, 1976, I stated that, without more, it is not a recognized hazard for a passenger to stand while riding in a moving vehicle. Every day millions of workers throughout the United States must stand aboard moving vehicles while being transported to and from their places of work on various mass transit systems. The government, which subsidizes these operations does not prohibit standing or overcrowded conditions. I concurred with the affirmance of a violation in the Sugar Cane Growers case because melting ice and unsecured materials in the truck-bed created slipping and striking hazards. Such egregious conditions are not present in this case. In fact, the inspecting officer never actually saw passengers on the trucks. He photographed an empty vehicle parked at the cane fields.

The majority relies on correspondence, meetings, and two accidents to show that the alleged hazardous practice was ‘recognized.’ The Judge carefully considered each of these matters and properly ruled that they did not establish that the alleged hazards were ‘recognized.’ However, some of the Judge’s conclusions warrant discussion in view of the summary manner in which my colleagues reject his findings.

The correspondence consisted of an interchange between the Secretary of Labor’s Assistant Regional Director for Manpower and the manager of the labor division, Florida Fruit and Vegetable Association, the substance of which was an agreement by the association to provide transportation for workers in vehicles with fixed seating and protective covering. Judge Larkin, finding the letters irrelevant, refused to admit them into evidence. Assuming arguendo that the letters were admissible, they do not prove industry recognition of a hazardous condition. The letters do not explain why the agreement was reached. The object of the new policy may very well have been to provide more comfortable conditions for employees. The letters make no mention of a potential danger to employees. Furthermore, the letters reflect an agreement to provide seating for the 1974–75 season—almost one year after the citation was issued.

The area director admitted that his statements concerning safe transportation of employees at association meetings were extremely brief. More importantly his opinions fall far short of establishing the existence of a hazard that was recognized by sugarcane producers.

The only testimony regarding the nature of the publicity surrounding the two accidents reveals that trucks carrying sugarcane workers overturned causing injuries to some of the passengers. There was no information supplied concerning whether the passengers were standing or seated or whether the injuries were in anyway related to the conditions upon which complainant relies in this case.

Even construing the evidence most favorably toward the complainant, I cannot conclude that the record supports a finding of the existence of a recognized hazard. Furthermore, it will be wrong if the Judge on remand affirms the alleged violation on the basis of complainant’s amendments of the citation.

The citation averred that respondent violated section 654(a)(1) because ‘employees were being transported in a vehicle with no provisions for seating.’ In obvious recognition of the fact that this charge could not be proved,[3] the complaint attempts to completely change the description of the violation by asserting that respondent

‘. . . permitted an excess number of employees being transported in motor vehicles in a standing position, at the aforesaid jobsite, failing to provide an adequate number of seats in said vehicles, or to limit the employees transported without adequate provisions for seating, in order to keep secure and stabilized the load of personnel while being transported in the aforesaid vehicles.’

 

Moreover, at the pretrial conference the complainant sought to enlarge the charges ‘to allege that respondent’s vehicles contained a rope instead of a more permanent rear barrier for employee protection.’

The above-described amendments are improper and should not be countenanced by the Commission. Secretary v. Warnel Corporation, OSAHRC Docket No. 4537, March 31, 1976 (dissenting opinion).

 

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 7227

ATLANTIC SUGAR ASSOCIATION,

 

                                              Respondent.

 

 

FINAL ORDER DATE: March 5, 1975

ORDER GRANTING RESPONDENT’S MOTION FOR DIRECTED JUDGMENT

LARKIN, Judge, OSAHRC

This is a proceeding under section 10(c) of the Occupational Safety and Health Act of 1970 29 U.S.C. 65 et seq. (referred to as the Act) to review an alleged serious citation and proposed penalty of $600 issued on March 8, 1974, by the Secretary of Labor (referred to as the Secretary) pursuant to sections 9(a) and 10(a) of the Act.

The citation was received by respondent on March 12, 1974, and its notice of contest was mailed on March 25, 1974. The Secretary filed a complaint on April 15, 1974, and respondent filed its answer on May 1, 1974. At the conclusion of the Secretary’s evidence on August 14, 1974 in West Palm Beach, Florida, respondent moved for directed judgment on the grounds the Secretary had failed to establish a ‘recognized hazard or hazards’ as required by section 5(a)(1) of the Act.

Respondent is a cooperative association of sugar cane producers located in Belle Glade, Florida. It grows, harvests and refines sugarcane for the production of sugar. It was cited for an alleged violation of section 5(a)(1) of the Act in that ‘Employer failed to provide employees a place of employment free from recognized hazards that were causing or likely to cause death or serious physical harm in that on or about February 27, 1974, employees were being transported in a vehicle with no provision for seating.’

In his complaint, the Secretary abandoned the allegation in the citation that the alleged vehicle contained no provision for seating. Instead, he alleges that respondent ‘. . . permitted an excess number of employees being transported in motor vehicles in a standing position, at the aforesaid jobsite failing to provide an adequate number of seats in said vehicles, or to limit the employees transported without adequate provisions for seating, in order to keep secure and stabilized the load of personnel while being transported in the aforesaid vehicles.’

At the pre-trial conference on July 16, 1974, the Secretary broadened his ‘scatter gun volley’ under section 5(a)(1) by moving to amend his complaint to allege that respondent’s vehicles contained a rope instead of a more permanent rear barrier for employee protection.

The issue for decision is whether the Secretary’s evidence is sufficient to establish ‘a recognized hazard or hazards’ as that term is used under section 5(a)(1) of the Act. To be a ‘recognized hazard’ the employer must have actual knowledge of the hazardous condition or else constructive knowledge because the condition is generally recognized as hazardous within respondent’s industry. See Brennan v. OSAHRC and Vy Lactos Laboratories, Inc., 494 F.2d 460 (8th Cir. 1974). American Smelting and Refining Company v. Brennan, 501 F.2d 504 (8th Cir. 1974). It is in the light of such criteria that the Secretary’s evidence must be analyzed.

CORRESPONDENCE BETWEEN THE MANPOWER ADMINISTRATION OF THE SECRETARY AND AN ASSOCIATION OF WHICH RESPONDENT IS A MEMBER

By letter dated August 9, 1973, the Secretary’s Manpower Administration wrote to the Florida Fruit and Vegetable Association of which association respondent is a member as pertinent as follows:

 

‘D. Transportation of Workers to Fields

 

It was observed during the course of the investigation that most workers were transported from their barrack to the fields in trailer trucks without regard to individual seating. It is our understanding that the industry has agreed to the following:

1. Fixed seats in vehicles with protective covering will be available for each worker transported during the 1973–74 pre-harvest and harvest season; and

 

2. All workers will be transported in busses beginning with the 1974 season.’

 

On August 31, 1973, the manager of the association replied as pertinent as follows:

‘With respect to transportation to and from fields, the sugar industry in April 1973 agreed to provide protective covering on all transport vehicles in the 1973–74 season and

 

‘by the 1974–75 season, all workers will be transported in buses or fixed seat vehicles with protective covering.’

The correspondence was identified without clarification by the manager of the association called as a witness by the Secretary. The respondent objected to its admissibility on the grounds of irrelevancy. This objection was sustained. The correspondence was excluded as the conditions apparently agreed to by the association applicable to fixed seated vehicles refers to the 1974–75 season which is almost a year subsequent to issuance of the citation. The Secretary’s attorneys were granted leave to lay better foundation. Instead, they proffered the documents. Yet, the author of the reply was on the witness stand and no attempt was made to clarify the correspondence or lay foundation to show that it was relevant to the litigation in issue. Moreover, the correspondence refers to providing fixed seated vehicles and the Secretary has abandoned his position stated in the citation ‘. . . that employees were being transported in vehicles with no provisions for seating.’

Even assuming arguendo the letters are admissible, they set forth no explanation for the requested changes. If the government considered that the changes were to eliminate a hazardous condition, it would seem that the Manpower Administration would have immediately corrected the discrepancy between the two letters. It must be concluded the condition did not create a safety hazard of much concern to the government or an immediate follow-up would have been made to so advise the industry. Also, had the correspondence been understood to advise the industry of a hazardous condition, such fact could have been clarified by the government’s witness. Yet, the Secretary asked no questions to clarify the confusion. The documents are excluded as insufficient foundation was laid to show relevancy.

KNOWLEDGE IMPUTED TO STATEMENTS OF AREA DIRECTOR TO ASSOCIATION MEETINGS

The Secretary urges that respondent and the industry had knowledge of a ‘hazardous condition’ based upon comments of the Area Director of the Occupational Safety and Health Administration (OSHA) at association meetings on three different occasions. As to specific mention of the problem in issue, this witness testified:

Q: ‘And what specifically was discussed?

 

A: ‘Transporting of workers was one of the items discussed. When I say discussed, Your Honor, I don’t mean it was a two-way conversation. In my presentation, I said that transporting of workers is one of the problem areas, and it should be done in a safe manner, and busses were considered a safe manner.

 

‘Q: ‘But, would you conclude that your discussion was specific instructions to them that they should use buses in the transportation of cane cutters, or was this a rather general type of discussion where that they could have concluded that this was not specific instruction?

‘I want to know—I want to know specifically what was told these people.

 

A: ‘All right. Specifically they were told that they could not allow workers to ride on loads of cane, which I had personally observed. That is what prompted me to mention that.

 

Q: ‘Right.

 

A: ‘And they could not allow them to be transported in the four-wheel tractor-drawn cane wagons. And I believe someone—I couldn’t say who at this time—asked me what the safer method would be, what would I consider, and I said busses.

 

Q: ‘But, you did not—did you ever say to them not to use trucks with seats?

 

A: ‘I don’t recall ever saying that, no, sir.

 

Q: ‘Do you ever recall ever saying to them do not use trucks with someone standing while moving?

 

A: ‘I could say yes. I told them specifically that transporting of workers in a standing position would be an unsafe manner.

 

Q: ‘Were they told in such a manner that they could conclude that they would be in violation of what is expected of them by the Occupational Safety and Health Administration?

 

A: ‘I couldn’t say that, no sir.

 

Q: ‘I am not trying to embarrass you. In other words, I have to draw a conclusion from this record and this is one area of the law that, you know, I want to be fair to everyone and I—If these people were on notice, I want to know about it, and if they weren’t on notice.

 

‘In other words, if they were only on notice in generalities, I don’t think that is fair to them.

 

A: ‘I could best answer that by I know of one company that didn’t have any question about what I said. They understood that certain methods were unsafe. Now, as to every company understanding that or not, I couldn’t attest to it.

 

Q: ‘The one company you have in mind, was it the company I have before me?

 

A: ‘No, sir.’

 

Q: ‘. . .. In 1971, at the sugar industry in Clewiston, the meeting there, what was the topic of your discussion as to transportation?

 

A: ‘The topic wasn’t just transportation. It was about OSHA in general. This was in September, and we had just began enforcing the law.

 

Q: ‘How much was your—how much time did your total presentation involve?

 

A: ‘about 25 minutes.

 

Q: ‘All right. How much of this time was related to transportation?

 

A: ‘One or two sentences, at the most.

 

Q: ‘What were those sentences? Can you recall?

 

*4 A: ‘Not word for word, but basically transporting workers in cane carriers, cane transporting-type vehicles would not be permitted under the regulations. Transporting of workers riding on loads would not be permitted and standing in trucks would be an unsafe method. Other than that, I couldn’t say any specific wording.

 

Q: ‘How much time would you say it took you to devote to transportation, to say these one or two sentences?

 

A: ‘Thirty seconds. I would say within two minutes.

 

Q: ‘Let’s go right down to your presentation itself, the topic concerning transportation.

 

A: ‘I was on the program for about 25 minutes, and I discussed, among other things, about the law and how we enforce it, one of which was safe transporting of workers in any industry.

 

Q: ‘Were there more than the sugar industry present at this?

 

A: ‘Yes, citrus.’

 

Perhaps the answer to the Secretary’s argument can best be made in the form of a question. Was the notice provided by the Ares Director at the meetings the type of notice anticipated by Congress as sufficient for an employer or an industry to have notice of a ‘recognized hazard’ as that term is used in section 5(a)(1)? When the Secretary’s evidence is subjected to this test, the answer becomes obviously ‘no.’ The Secretary has failed to prove that the statements provided actual knowledge to respondent or knowledge of a ‘recognized hazard’ to the industry.

OCCURRENCE OF TWO ACCIDENTS WITHIN THE INDUSTRY

The Area Director issuing the citation testified that in December 1973 and January 1974 two vehicles overturned resulting in ‘. . . quite a bit of media attention, the first two occurrences. St. Petersburg Times, your local newspapers here, the television networks in Miami, and so on.’ (Tr. 334). This witness’s personal knowledge of the facts were:

Q: ‘Are you familiar with the investigative facts as to those two accidents?

 

A: ‘Well, when we go to trial with them, the compliance officers who made the inspection will be here, sir, and they will bring it out in full detail what the findings were.’

 

 

The only details of the accidents and those details based obviously upon hearsay were:

Q: ‘What type of accident was it?

 

A: ‘The first one was a stake-back truck carrying about 39 people standing up which went off the road and flipped on its side, and in this case, we had, I believe, 37 or 38 hospitalized.

 

‘The second one that occurred in January was a semi-trailer transporting approximately 80 people. It likewise flipped over on its side. The box skidded, I think, 114 feet and there was one person killed inside of the trailer and I believe there was 70 some odd hospitalized.’

 

 

The Secretary relies upon the foregoing record as proof that respondent had knowledge that a ‘recognized hazard’ existed. (Tr. 371).

In essence, the Secretary’s argument is that two accidents within an industry without details, such as similarity of equipment or operating conditions, human error factors, the cause or causes generating the accidents and pertinent details, would be notice to respondent of a recognized hazard. In addition, the Secretary assumes without supporting facts that the media described was disseminated to respondent. There were no witnesses called from respondent to show that respondent received the first idiom of notification concerning the accidents through the news media or otherwise. The injuries and fatality could have been solely unrelated to whether the employees were standing or that the providing of a seat without further safety protection such as a safety belt would have prevented injuries. The injuries and fatality may have resulted from a type of vehicle construction completely dissimilar to the vehicles used by respondent. As stated by respondent’s counsel in support of his motion, ‘We don’t know whether if the people had been belted down with steel helmets on . . .’ injuries or a fatality would still have resulted from the accidents. To hold that respondent had notice under the limited foregoing facts would have to be based upon an unfounded assumption.

Again, notice as to ‘recognized hazard’ under section 5(a)(1) of the Act cannot be based upon speculation or conjecture as there must be proof of actual notice received by an employer or notice imputed because of common knowledge within the industry.

FEDERAL REGULATIONS AND FLORIDA CODE AS NOTICE OF ‘RECOGNIZED HAZARD’ UNDER SECTION 5(a)(1)

The Secretary cites section 316.289 of the Florida Code; 29 CFR 1926.601(b)(8); 20 CFR 602.10(g) and 49 CFR 398.4(g)(1) and (5) as creating notice to respondent and its industry of a ‘recognized hazard’ under section 5(a)(1).

Section 316.289 of the Florida Code pertains to transportation of migrant farm workers. 29 CFR 1926.601(b)(8) is a part of what is commonly referred to as ‘construction standards’ or regulations governing the construction industry. The specific section refers to vehicles that operate within off-highway jobsites not open to public traffic. 20 CFR 602.10(g) are regulations of the Manpower Administration, U. S. Department of Labor, as to migrant farm workers, which incorporate common carrier requirements of the Federal Highway Administration cited as 49 CFR 398.

In effect, the Secretary’s argument is that he may be dilatory in advising an industry by specific safety and health standards and then hold that industry of being cognizant of every state or federal regulation or statute even remotely related to the industry as notice of a ‘recognized hazard’ under section 5(a)(1). The Secretary cannot point to any authority to support such an extreme position. In fact, a reading of congressional reports indicates that section 5(a)(1) was intended to be discriminately used. It was not intended to be used where specific safety standards were or should have been promulgated covering an industry pursuant to section 6(a) of the Act. Such is emphasized in Representative Steiger’s comment as to section 5(a)(1) that ‘It is expected that the general duty requirement will be relied upon infrequently and that primary reliance will be placed on specific standards which will be promulgated under the Act.’ 116 Cong. Rec. 11899 (daily ed. Dec. 17, 1970).

Because of such intended restricted use, the criteria of whether there is notice of ‘recognized hazards’ was in like manner restricted to actual or imputed common knowledge within the industry. To attempt to extend the notice to imputed knowledge from all statutes or regulations irrespective of their application, violates reason and the concepts of notice as anticipated under due process.

OVERALL RECORD SUPPORTS NO INDUSTRY KNOWLEDGE OF ‘RECOGNIZED HAZARD’

There are no probative facts of record to show that any employers in the industry used a different method of transportation than the method used by respondent. The Secretary’s only evidence that a different type of transportation was used was the hearsay statement of the former Area Director that one industry employer was using busses. The record contains no further details or facts. Even if the hearsay statement is given weight, a practice of one employer is not sufficient proof to show industry practice. On the contrary, the citing of respondent and numerous other employers within the industry as reflected from other docketed cases leads to the inference that respondent’s practices represented common practices within the industry.

RECORD LACKING IN SPECIFIC FACTS TO PROVE CHARGES RELIED UPON BY COMPLAINANT AND TO SUPPORT CONCLUSIONARY OPINIONS OF EXPERT WITNESSES

To support the charges alleged in the complaint and motion to amend at the pre-trial conference, the Secretary relied upon the testimony of a former employee of respondent and photographs taken by a local newspaper reported. The former employee’s testimony was conclusionary and lacking in specific facts to support the Secretary’s charges. For instance, his testimony was that the trucks were ‘packed’ or ‘crowded’ or similar conclusions. There are no facts in the record as to the lengths of vehicles in use or specific seating capacities of those vehicles. The witness conceded that he did not count the number of employees transported. Such facts were not offered through any other witness. This witness’s credibility was attached by opposing counsel and the record reflects he left respondent’s employment under other than favorable circumstances.

The record lacks in detail supporting the conclusions of the expert witness that the conditions were likely to cause death or serious physical harm. The Secretary’s proof of speed of the vehicles is based upon this witness’s estimate and the estimate of a witness riding a bicycle near darkness. There was no testimony as to the strength or durability of the rope in issue or exposure of employees through use of the rope at hazardous speeds. The drivers of the vehicles who were in best position to offer details as to specifics of seating, passenger capacities, vehicle speeds and company practices, were not called to furnish details. The lack of detail in the record to support the conclusions of the expert witnesses was called to counsel’s attention on numerous occasions during the trial. In view of the inadequacy of the record, it is concluded also that the Secretary has failed to sustain his overall burden of proof.

RELIANCE UPON THE CASE OF SUGAR CANE GROWERS COOPERATIVE

OSAHRC Docket No. 7673

The intervenor filed brief relying upon the case of Sugar Cane Growers Cooperative. The intervenor cites that portion of the opinion where the Judge concludes:

‘There is no question in my mind that the general public is well aware of the ‘recognized hazard’ in riding a moving vehicle in an unsecured upright position. Further, this view of the ‘hazard involved in much riding was clearly enunciated to members of respondent’s trade association on two occasions and on each occasion respondent had someone in attendance. While respondent makes much of the brevity of the particular comment respecting the transportation here in issue, such brevity is more than off-set by the fact that in one instance the information was in response to a specific question which makes a much more lasting impression and this is especially so when the response is to a question from respondent’s president. Thus, even if it were argued that this hazard was not generally recognized in the industry the record is clear that respondent had actual knowledge. See Brennan v. OSAHRC and Vy Lactos Laboratories, Inc., 494 F2 [sic] 460.’

 

 In all due humble respect, a different conclusion must be drawn in the instant case. Specifically, it is the conclusion in the instant case that ‘public knowledge’ was never intended by Congress to be used as a measuring device of knowledge of a ‘recognized hazard’ under section 5(a)(1). The intent of Congress was to limit the criteria to actual knowledge or knowledge within the applicable industry. The foregoing criteria establishes definite standards or conditions for determining knowledge. To extend the criteria to an indefinite standard such as ‘public knowledge’ only creates vagueness and confusion. For instance, now can an employer determine what is ‘public knowledge’ and especially when applied to the unique characteristics of an individual business or industry? It is concluded that ‘public knowledge’ cannot be used as a criterion for measuring knowledge of a ‘recognized hazard’ as that term is used under section 5(a)(1).

Moreover, assuming arguendo, public knowledge could be used as a criterion, the facts in the instant case do not support a conclusion that standing on moving transportation is hazardous. For instance, public transportation may be observed daily of passengers standing on school busses, public busses and subways in large cities during crowded work hours.

Respondent offered the testimony of two experts in the field of transportation. The first witness’s conclusion as to the hazard in standing as opposed to sitting in a seat without safety belts came only after technical and extended formal education and studying tests conducted by various groups, including the U. S. Department of Transportation. (Tr. 154, 160). The second witness’s conclusion came as a result of studies conducted by the U. S. Army over a period of at least ten years. (Tr. 223). Certainly, such extended study does not support a conclusion that such knowledge is a matter of ‘general public knowledge.’

With reference to the statements to members of the trade association, the witness’s testimony in the Sugar Cane Growers Cooperative record may have differed substantially from those of the same witness in the instant case. If not, in due respect to Judge Chaplin, a different weight is afforded to the testimony of remarks to the industry in the instant case.

With reference to the conclusion drawn from the statement attributed to the president of respondent in the Sugar Cane Growers Cooperative case, the same witness in the instant case testified:

Q: ‘. . .. Now, at this ‘72 meeting, in a previous case, you said your supposed notice came in a discussion with George Wedgeworth. What kind of a discussion was that?

 

A: ‘No, I misled you on that. My conversation with George Wedgeworth was primarily about burning of cane fields and pollution of the air, which I said was not our business.

 

‘Our concern of burning of the cane fields—and I remember this conversation—was of a danger to the health of employees only would be our concern. The other was EPA’s business, and that was our conversation.’ (Tr. 298).

 

It appears that Judge Chaplin was misled in his conclusion that the president of Sugar Cane Growers Cooperative was personally advised of a hazard existing and ‘. . . that respondent in that case had actual knowledge.’ (Tr. 294–300).

The arguments of the intervenor have been carefully considered and are rejected for the above stated reasons.

CONCLUSIONS OF LAW AND DECISION

1. Respondent is an employer affecting interstate commerce within the meaning of the Occupational Safety and Health Act.

2. The notice of contest was timely filed and the Commission has jurisdiction of the proceeding.

3. The complainant has failed to prove that respondent was in violation of section 5(a)(1) of the Act.

Wherefore, it is ORDERED:

The respondent’s motion is granted. The citation issued on March 8, 1974, is vacated and no penalty is assessed.

 

Dated February 3, 1975.

John J. Larkin

Judge, OSAHRC


[1] The pertinent parts of these exhibits are reproduced in Sugar Cane Growers Cooperative of Florida, No. 7673 (June 15, 1976). The parties are directed to our decision there for an indication of the evidence that the Commission considers relevant to proof of the elements of a section 5(a)(1) violation, especially the ‘recognition’ element.

 

[2] The Judge had excluded the exhibits as irrelevant because they referred to future conditions and to a total lack of fixed seating. We find them relevant to the ‘recognition’ factor, whether or not they referred to a future season; they also placed respondent on notice of the hazards resulting from a partial lack of fixed seats. The Judge’s objections should properly have been directed to the weight to be accorded to the exhibits. See Fed.R.Evid. 401.

[3] Complainant failed to comply with Commission Rule 33(a)(3), 29 C.F.R. § 2200.33(a)(3), which requires him to set forth reasons for an amendment of a citation.