Docket No. 76-637

KARSTEN EQUIPMENT COMPANY

OSHRC Docket No. 76-637

Occupational Safety and Health Review Commission

August 10, 1979

[*1]

Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

T. A. Housh, Jr., Regional Solicitor, U.S. Department of Labor

George A. Dorsey, for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Commissioner:

The issue is whether Administrative Law Judge Paul E. Dixon erred in vacating a nonserious citation alleging that Respondent (Karsten) violated 29 C.F.R. § 1926.1000(c)(1)(iii) by failing to equip two Caterpillar crawler-type loaders with rollover protective structures (ROPS). We conclude that the Judge did err, and reverse his decision. We affirm the citation and assess a $45 penalty.

In general, 29 C.F.R. § 1926.1000 requires that material handling equipment, including crawler-type loaders, used in construction work be equipped with ROPS. The standard, however, contains various dates by which the ROPS must be installed depending on the date of manufacture. Equipment manufactured after September 1, 1972, must be in immediate compliance. 29 C.F.R. § 1926.1000(b). For equipment manufactured before September 1, 1972, the following schedule of compliance dates is established:

29 C.F.R. § 1926.1000(c) Equipment manufactured [*2] before September 1, 1972. (1) All material handling equipment described in paragraph (a) of this section and manufactured or placed in service (owned or operated by the employer) prior to September 1, 1972, shall be fitted with rollover protective structures no later than the dates listed below:

(i) Machines manufactured on or after January 1, 1972, shall be fitted no later than April 1, 1973.

(ii) Machines manufactured between July 1, 1971, and December 31, 1971, shall be fitted no later than July 1, 1973.

(iii) Machines manufactured between July 1, 1970 and June 30, 1971, shall be fitted no later than January 1, 1974.

(iv) Machines manufactured between July 1, 1969, and June 30, 1970, shall be fitted no later than July 1, 1974.

(v) Machines manufactured before July 1, 1969: Reserved pending further study, development, and review.

The citation alleges that Karsten violated the standard on December 16, 1975, when an OSHA compliance officer observed the two Caterpillar loaders, without ROPS, at Karsten's worksite. As the above schedule shows, all equipment manufactured on or after July 1, 1969 had to be equipped with ROPS before December 16, 1975, while equipment manufactured [*3] before July 1, 1969 did not have to be so equipped. Thus, if Karsten's loaders were manufactured on or after July 1, 1969, Karsten violated § 1926.1000.

One of Karsten's Caterpillar loaders was a Model 955, serial number 85J2848, and the other was a model 977, serial number 11K3208. In order to establish the date of manufacture of the loaders, the Secretary introduced into evidence as Exhibit G-2, a page from the Green Guide for Construction Equipment, a standard reference work in the construction industry published by the Equipment Guide Book Company. The Green Guide shows the year of manufacture of construction equipment, based on the model and serial number of the equipment. Insofar as here relevant, Exhibit G-2 reads as follows:

CATERPILLAR
CRAWLER LOADERS
BEGINNING
SERIAL NO.	YEAR
MODEL 955 (85J Prefix)
SERIES "K"

85J1	68
85J1050	69
85J2347	70
85J3478	71
85J4672	72
85J6356	73
85J7184	74
85J9286	75

MODEL 977 (11K Prefix)

11K1	67
11K462	68
11K1451	69
11K2549	70
11K3258	71
11K4026	72
11K5131	73
11K6227	74
11K7230	75

Judge Dixon concluded that the Secretary had failed to prove the date of manufacture of the machines because the precise serial [*4] numbers of the equipment do not appear on this exhibit. The Secretary contends that the Judge misread Exhibit G-2. He points out that the listed serial numbers are only the beginning serial numbers for the years listed, and contends that all machines with serial numbers between the beginning number for a year and the beginning number for the next year were manufactured during the earlier year. Thus, according to the Secretary, the Model 955, serial number 85J2848 was manufactured in 1970 because 2848, the last four digits of its serial number, is between 2347, the beginning number for 1970, and 3478, the beginning number for 1971. Similarly, the Model 977 was manufactured in 1970 because the last four digits of its serial number, 3208, lies between 2549 and 3258.

We agree with the Secretary that he has proven the machines were manufactured in 1970. Since each column of serial numbers on Exhibit G-2 is headed "beginning serial no.," it is evidence that the exhibit does not list all serial numbers. Moreover, we infer from Exhibit G-2 that Caterpillar loaders of a given model are numbered sequentially as they are manufactured. Therefore, if the exact serial number of a particular [*5] loader does not appear in Exhibit G-2, it is nevertheless possible to determine the year of manufacture in the manner the Secretary contends. We also note that Karsten, which is presumably familiar with the dates of manufacture of its equipment, or is at least in a good position to determine those dates, presented no evidence tending to indicate that the two Caterpillar loaders were manufactured before July 1, 1969, and therefore did not have to be equipped with ROPS under the standard.

The citation alleged a violation of § 1926.1000(c)(1)(iii), which is the subsection applicable to equipment manufactured between July 1, 1970, and June 30, 1971. We cannot tell whether this precise subsection is applicable, as the evidence does not establish when in 1970 the machines were manufactured. As the Secretary points out, however, this is inconsequential, as even if the machines were manufactured between January 1 and July 1, 1970, they were still required to be equipped with ROPS by December 16, 1975, the date of the alleged violation. We will therefore delete the subsection reference from the citation and find Karsten in violation of 29 C.F.R. § 1926.1000(c)(1).

Karsten raises several [*6] peripheral arguments on review. It contends that the Secretary should not be permitted to take exception to the Judge's decision when he failed to file a brief before the Judge. Our rules of procedure, however, do not require that a party file a brief with the Judge, nor do they limit the right of Commission review to parties who file such briefs. 29 C.F.R. § § 2200.76 and 91(a). We therefore reject this argument.

Karsten further argues that Exhibit G-2 is defective because it was not properly identified, and because the exhibit contains no legend establishing how the information in it is to be used. We reject these arguments. Contrary to Karsten's contention, the compliance officer unequivocally identified Exhibit G-2 as a page from the Green Guide for Construction Equipment. Furthermore, the absence of a legend on the exhibit itself is not significant for the exhibit is self-explanatory and the interpretation urged by the Secretary is the only reasonable one.

Finally, Karsten asserts that the Secretary, in his petition for discretionary review, is attempting to insert new evidence into the record. Presumably, Karsten is referring to the interpretation of Exhibit G-2 suggested [*7] by the Secretary. That is not, however, new evidence but argument concerning the interpretation we should place on existing evidence properly introduced. The argument is rejected.

Finally, Karsten asserts that the Secretary, in his petition for discretionary review, is attempting to insert new evidence into the record. Presumably, Karsten is referring to the interpretation of Exhibit G-2 suggested by the Secretary. That is not, however, new evidence but argument concerning the interpretation we should place on existing evidence properly introduced. The argument is rejected.

Having considered the gravity of the violation together [*8] with Karsten's size, good faith, and prior history, we conclude that the $45 penalty proposed by the Secretary is appropriate.

Accordingly, the Judge's decision is set aside. The citation for nonserious violation of 29 C.F.R. § 1926.1000(c)(1) is affirmed, and a penalty of $45 is assessed.