ED CHEFF d/b/a ED CHEFF LOGGING

OSHRC Docket No. 77-2778

Occupational Safety and Health Review Commission

May 29, 1981

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Before: CLEARY and COTTINE, Commissioners.  

COUNSEL:

Henry C. Mahlman, Reg. Sol., USDOL

George J. Tichy, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge John J. Morris is before the Commission for review under section 12(j), 29 U.S.C. §   661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   The issue in this case is whether the Respondent, Ed Cheff d/b/a Ed Cheff Logging ("Cheff), violated either section 5(a)(1) or section 5(a)(2) n1 of the Act, 29 U.S.C. § §   654(a)(1) and (2), by failing to require his employees to wear seatbelts when operating crawler tractors equipped with rollover protective structures.

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n1 Those sections provide:

Sec. 5.   (a) Each employer --

(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;

(2) shall comply with occupational safety and health standards promulgated under this Act.

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The inspection in this case was conducted in response to a fatality report received by the Department of Labor.   As a result of that inspection, a citation was issued by the Secretary of Labor ("Secretary") alleging a violation of section 5(a)(1) or, in the alternative, a violation of section 5(1)(2) for failure to comply with the safety standard at 29 C.F.R. §   1910.132(a). n2 The facts alleged to constitute the violation are that a Cheff employee who operated a crawler tractor was not wearing a seatbelt while clearing and piling brush during logging operations.   A hearing was held before Judge Morris, who found that Cheff was not in compliance with section 1910.132(a).   The judge affirmed the citation and assessed a penalty of $450.   We affirm the judge's disposition.

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n2 That standard provides:

§   1910.132 General requirements.

(a) Application. Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.

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I

Cheff is engaged in logging operations in Montana.   In the course of logging operations, Cheff uses a multi-purpose piece of heavy equipment called a crawler tractor or "cat," a tracked vehicle that can be used with a number of different attachments to perform several different types of work.   Cheff owns and operates two cats, which can be equipped with an earthmoving blade to build trails for access to the area to be logged (sawstrips) and trails for dragging out felled logs (skid trails).   With a different blade, the cats can be used to clear underbrush from an area being logged.   With a blade attachment that has tines like a rake, the cats can be used to pile brush and debris where they can be burned.   With a winch and cable attachment, the cats can be used to pull or "skid" logs to the place where they will be loaded.   Both of Cheff's cats have rollover protective structures ("ROPS").   Although both cats have hooks to which seatbelts can be attached, neither is equipped with seatbelts, and Cheff's operators have never worn seatbelts while operating the cats.

Because the logging is done in a mountainous [*4]   area, much of the work performed by the cats is done on the sides of steep hills.   The Cheff employee who was killed had been operating a cat on a slope estimated by the compliance officer as 45 degrees and by Cheff as 23 degrees.   Cats commonly operate on grades of twenty degrees and greater.   Although cats have a low center of gravity, they do occasionally tip over, and the rugged terrain can contribute to a rollover. These rollovers often result in death or serious injury to the driver, and the compliance officer testified that there is a body of opinion among safety experts that when a cat has a ROPS, the driver should wear a seatbelt.

In logging operations, cat operators often encounter objects entering the cab of the cat, including "jillpokes," "sweepers," rocks, rolling logs, and other debris. "Jillpokes" are saplings or limbs that are propelled into the cab, usually when the blade or track of the cat pushes over a small tree as the cat moves forward.   If the tree breaks off, the release of tension can propel the tree into the air.   The broken end is often sharp or jagged.   Under certain conditions, it can enter the cab sharp end first, much like a spear, and can impale   [*5]   the operator.   Jillpokes can also enter the cab when the end pointing toward the cat is not flat on the ground and the tree or limb comes up between the body of the cat and the track.   Jillpokes come at the driver from the general direction in which the cat is traveling.   "Sweepers" are tree limbs that protrude into the path of the cat and "sweep" along its sides as it passes by.   The treads of the crawler can also throw up rocks, mud clods and branches as they move.   In addition, rocks, logs and other debris can roll down the hillside into the cab. One witness estimated that jillpokes, sweepers, and debris could be encountered as often as 100 times a day.   Other witnesses estimated the frequency of encounter at 10 to 25 times in the course of an average day.   Cheff's accident records show that only one Ed Cheff employee has been injured by a jillpoke. A driver was hit above the nose with a jillpoke. Stitches were required to close the wound.   Mr. Tom Cheff, Ed Cheff's brother and employee, testified that on another occasion a pole penetrated the firewall of a cat he was operating and went 3 or 4 feet through the back canopy.   He expressed the belief that, if he had been strapped [*6]   in, he might have been killed or seriously injured.

Cheff presented testimony from three witnesses who are experts in logging operations, Glen Kartheiser, president of Canyone Logging Company, Virgil Walter, vice president of Royal Logging Company, and Royce Saterlee, vice president of Stoltze Land & Lumber Company.   They testified that the general opinion in the logging industry is that cat operators must be able to dodge these objects in order to avoid being injured.   The logging experts whose testimony was introduced into this record from another case expressed the opinion that jillpokes and sweepers cause few accidents because the operators are able to get out of their way.   The major controversy between the parties concerns the Secretary's belief that cat operators engaged in logging should wear seatbelts while Cheff believes that the operators are safer without them because the drivers must be free to dodge jillpokes, sweepers, and other flying objects.

II

In his decision, Judge Morris concluded that Cheff had violated section 5(a)(2) of the Act by not complying with 29 C.F.R. §   1910.132(a).   The judge found that "[t]he hazard of being thrown with possible resulting amputation,   [*7]   paralysis, or death can be avoided by strapping in the operator." He considered the evidence that the cat operators were exposed to jillpokes, sweepers, and other debris as evidence supporting the affirmative defense of greater hazard and concluded that Cheff had not carried his burden of proving one of the elements of that defense: that alternative means of protecting employees are unavailable. He held that this element was not proved because Cheff had not attempted to have plexiglas installed around the cab, "nor did [Cheff's] expert have an opinion on the feasibility of such use . . . ." The judge found that the evidence of jillpokes as a hazard, particularly in brush clearing operations, was "credible and well documented." He also found that the penetration by a jillpoke of a cat's firewall "could be protected against by shielding the vulnerable parts of the tractor." The judge affirmed the citation and the penalty proposed by the Secretary.

Cheff petitioned for review of the judge's decision.   Former Commissioner Barnako directed that the decision be reviewed.   The Commission ordered the parties not to file briefs until the Commission had decided the factually similar case   [*8]   of Royal Logging Co., 79 OSAHRC 84/A2, 7 BNA OSHC 1744, 1979 CCH OSHD P23,914 (No. 15169, 1979), aff'd, Nos. 79-7622 & 79-7628 (9th Cir. May 18, 1981).   After Royal Logging was decided, a briefing order was issued requesting submissions on the following issues: n3

1.   Whether the judge erred in concluding that 29 C.F.R. §   1910.132(a) is applicable to the conditions alleged in the citation;

2.   Assuming the answer to issue 1 above is in the negative, whether the judge erred in concluding that 29 C.F.R. §   1910.132(a) requires the use of seat belts on crawler tractors engaged in clearing and moving brush in Respondent's logging operations;

3.   Assuming the answer to issue 1 above is in the affirmative, whether section 5(a)(1) . . . is applicable to the conditions alleged in the citation and if so, whether Respondent violated section 5(a)(1).

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n3 Cheff's petition for discretionary review noted many exceptions to the judge's decision and raised several issues.   Former Commissioner Barnako's direction for review did not grant that petition; it simply directed that the case be reviewed and stated the issue as "whether employees engaged in logging operations using crawler tractors should be required to wear seat belts." The subsequent briefing order of January 14, 1980, did not request briefs on all issues raised by Cheff's petition, but only those inferentially raised by the direction for review.   Consequently, we will not review issues raised in Cheff's petition but not encompassed by the direction for review as specifically defined by the briefing order.

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The parties were also requested to address "whether the Commission decision in Royal Logging is controlling precedent in this case."

III

In Royal Logging, the employer performed logging operations very similar to Cheff's.   The Secretary issued a citation alleging noncompliance with the construction safety standard at 29 C.F.R. §   1926.28(a). n4 The Secretary subsequently moved to amend his complaint to allege, in the alternative, a violation of section 5(a)(1) of the Act, the "general duty" clause.   Royal Logging raised the same argument that Cheff has, that seathelts cause a less safe situation, not a safer one.   The Commission held that the standard under which Royal was cited did not apply because Royal was not engaged in construction work.   It therefore decided the case on the alternatively pleaded section 5(a)(1) theory.   Neither party in Royal Logging suggested that section 1910.132(a) might apply, and we did not consider that issue.

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n4 That standard provides:

§   1926.28 Personal protective equipment.

(a) The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.

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To prove a violation of section 5(a)(1), the Commission noted in Royal Logging, the Secretary must establish that the employer failed to render its workplace "free" of a hazard that was recognized and was causing or likely to cause death or serious physical harm to the employees, and that there is a feasible means to reduce the hazard. Once the Secretary has made this showing, the Commission held, the burden of going forward shifts to the employer to show that the Secretary's proposed method of abatement would cause such adverse consequences as to render the abatement infeasible.   Because the ultimate burden of persuasion on the issue of feasibility in a section 5(a)(1) case is on the Secretary, and because the creation of a new hazard may render infeasible the abatement method suggested by the Secretary, the affirmative defense of greater hazard does not apply.   Royal Logging Co. 7 BNA OSHC AT 1751, 1979 CCH OSHD at p. 28,997.

The Commission weighed the evidence in Royal Logging and found the hazard posed by rollovers to be "commensurate" with the hazard posed by jillpokes, sweepers and [*11]   debris. Royal Logging Co., 7 BNA OSHC at 1752, 1979 CCH OSHD at p. 28,998. On the basis of this finding, the Commission concluded that the Secretary had failed to establish that the proposed method of abatement was feasible when drivers are exposed to jillpokes, sweepers, and other debris. The Commission therefore held that operators of equipment with rollover protection must wear seatbelts except when they are exposed to the hazard of jillpokes, sweepers and flying debris. Id. Accordingly the citation was affirmed only in part.

IV

On review in this case, Cheff argues that the standard at section 1910.132(a) is unconstitutionally vague and that nothing in either the standard itself or in Subpart I, where the standard is located, suggests that seatbelts are required.   He argues that employer knowledge that seatbelts are required must be proved before a violation can be found.   Cheff argues that section 1910.132(a) cannot apply because the Commission's decision in Royal Logging is a holding that no standard applies to the facts of that case and the two cases, Royal Logging and the situation here, are identical.   In order to find that the standard applies, Cheff [*12]   argues, the Commission would have to overrule Royal Logging.

Cheff further argues that the finding in Royal Logging that the Secretary failed to prove that seatbelts were feasible is controlling here.   Cheff also argues, however, that the finding in Royal that the hazard of rollovers is recognized by the logging industry is erroneous and should not be controlling here.   He argues that the logging industry does not recognize seatbelts as the safest way to protect the drivers and that, because of the high frequency of jillpokes and the low frequency of rollovers, the practices in the logging industry is to leave the drivers free to avoid the incoming debris. Cheff argues that a reasonably prudent man familiar with the logging industry would not understand that seatbelts are necessary.   Cheff would place the burden on the Secretary to show that the practice of leaving the drivers free to dodge is "unacceptable in [the logging] industry . . . ."

The Secretary argues that the standard can and should be interpreted to include the use of seatbelts as equipment required to be used.   He argues that the word "including" in section 1910.132(a) indicates that the equipment mentioned [*13]   in the standard is only illustrative of some of the kinds of protective equipment required and that the enumeration of certain specific types of equipment was not intended to exclude any other protective equipment.   He argues that the kinds of protective equipment required are not limited to those mentioned in other parts of Subpart I.   The Secretary argues that the test of whether the standard is too vague is not whether a reasonably prudent man familiar with the logging industry would recognize that seatbelts are required, but whether that reasonably prudent man would recognize that there is a hazard warranting some kind of protection for the exposed employees.   The Secretary argues that this element has been proved because he has proved both Cheff's actual knowledge of the hazard and industry recognition.   The Secretary argues that all of Cheff's witnesses knew of rollovers that had resulted in fatalities and Ed Cheff himself knew of four rollovers that had resulted in death or serious injury to the drivers involved.   The Secretary contends that the judge's finding that extrinsic factors demonstrated the necessity of protecting employees from the hazard of rollovers and the Commission's [*14]   finding in Royal Logging that the hazard of rollovers is recognized in the logging industry are "virtually dispositive of whether the reasonable person test applicable to §   1910.132(a) has been met."

The Secretary argues that this case is different from Royal Logging and that it is not governed by the holding there because the elements of proof are different in a section 5(a)(1) case than in a section 5(a)(2) case.   The Secretary states that the employer in a 5(a)(1) case need not prove a greater hazard defense but need only show that the suggested means of abatement will create new hazards such that the abatement method is infeasible.   This is not the case, however, argues the Secretary, under section 5(a)(2) when the allegation involves a specific standard.   Section 1910.132(a) specifies the conduct required of an employer.   The Secretary argues that the standard imposes the specific duty on the employer to provide protective equipment when his employees are exposed to hazards from which that equipment will protect them.   Therefore, the Secretary argues that he need not prove in a section 1910.132(a) case the feasibility of using equipment; he need only identify an "appropriate"   [*15]   form of protective equipment.   For these reasons, the Secretary concludes that the judge properly imposed the burden on the employer to prove the elements of a greater hazard defense.   The Secretary argues that the judge correctly found that Cheff had not carried the burden of proving that affirmative defense because Cheff did not prove the second element of the defense, that an alternative means of protecting his employees was not available.   The Secretary discounts the danger of jillpokes, pointing to evidence showing that Ed Cheff Logging had no recorded jillpokes injuries in 1977, had experienced only one jillpoke injury ever, a laceration, and that Ed Cheff himself had never heard of a jillpoke fatality. The Secretary contrasts this evidence with the testimony of one of Cheff's experts that he knew of 25 to 30 rollovers in the logging industry, of which approximately half involved fatalities.

The Secretary argues that Cheff incorrectly relies on the practice in the logging industry.   Relying on a section 5(a)(1) case, General Dynamics Corp. v. OSHRC, 599 F.2d 453 (1st Cir. 1979), the Secretary argues that industry practice is not dispositive and that safety precautions   [*16]   against a known hazard should be used whenever they are feasible, whether or not the precautions are generally used throughout the industry.

The Secretary argues in conclusion that a violation has been proved because Cheff's drivers never wore seatbelts under any circumstances, whether they were exposed to jillpokes or not.   The Secretary further argues that there is no evidence that the driver involved in the fatal accident which precipitated the inspection in this case was exposed to jillpokes. The testimony, the Secretary contends, shows only that he was "on his way" to clear brush and the rollover occurred before he began brush clearing. For these reasons, the Secretary argues that the judge's decision should be affirmed.

V

We first examine whether section 1910.132(a) is applicable to the condition described in the citation.   As we have noted, the citation alleges that seatbelts were not worn or provided during brush-clearing and brush-piling.   The issue is, therefore, whether the standard applies to such conditions and requires seatbelts as a form of protective equipment.

It is our view that, given the breadth of the standard's language, the term "hazards of processes or [*17]   environment" includes the rollover hazard to which Cheff's employees were exposed during logging operations.   In common usage, the word "environment" refers to surroundings.   The Act and the standards enacted pursuant to the Act must also be interpreted in light of the remedial purpose of the Act.   Gil Haugan d/b/a Gil Haugan Construction Co., 79 OSAHRC 107/A2, 7 BNA OSHC 2004, 1979 CCH OSHD P24,105 (Nos. 76-1512 & 76-1513, 1979).   See Brennan v. OSHRC (Gerosa, Inc.), 491 F.2d 1340 (2d Cir. 1974). We therefore hold that hazards of the environment include the rollover hazard during logging operations caused by uneven terrain.

We also conclude that seatbelts are a form of protective equipment within the meaning of section 1910.132(a).   Section 1910.132(a) requires the use of protective equipment whenever employees are exposed to a wide variety of hazards found in the workplace.   Protective equipment is equipment that will provide protection from a hazard. The use of the word "including" indicates that the enumeration in the standard of various kinds of personal protective equipment was not intended to be exclusive, but instead to give examples of some types of protective [*18]   equipment.   There is also no indication that the drafters of the standard intended to limit the types of protective equipment so as to exclude seatbelts. Inasmuch as occupational safety and health standards are to be given a broad, rather than narrow, construction, we find no basis here to exclude seatbelts from the category of protective equipment. n5

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n5 In view of our conclusion that §   1910.132(a) applies to the working conditions cited, we need not decide whether Cheff violated §   5(a)(1) of the Act.   We also note that, contrary to Cheff's argument, Royal Logging did not pass upon the applicability of §   1910.132(a) to the conditions at issue and therefore does not hold that no standard is applicable.

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The breadth of section 1910.132(a), however, has caused us to hold that its application to a particular case "depends on whether there is a condition that would be recognized as a hzard by a reasonable person familiar with the circumstances." OSCO Industries, Inc., 80 OSAHRC 76/A2, 8 BNA OSHC 1799, 1801, 1980 [*19]   CCH OSHD P24,689 at p. 30,301-5 (No. 76-2383, 1980).   In another case in which a citation for noncompliance with section 1910.132(a) was before us, we explained:

The standard at issue in this case is a broadly worded standard that imposes a generalized duty to protect employees by the use of whatever personal protective equipment is necessary by reason of certain hazards, including those of processes or environment.   We have held that in order to determine the application of this and similar broad standards to a particular situation, we will consider whether a reasonable person familiar with the circumstances surrounding an allegedly hazardous condition, including any facts unique to a particular industry, would recognize a hazard warranting the use of protective equipment.   Although industry custom and practice will aid in determining whether a reasonable person faniliar with the circumstances and with any facts unique to the industry would perceive a hazard, they are not necessarily dispositive.

Owens Corning Fiberglas Corp., 79 OSAHRC 26/D6, 7 BNA OSHC 1291, 1295, 1979 CCH OSHD P23,509 at p. 28,491 (No. 76-4990, 1979), appeal filed, No. 79-2516 (5th Cir. June 26, 1979).   [*20]  

Based on the testimony of the three witnesses who testified as experts on the logging industry, we find that rollovers are acknowledged by the industry as a hazard of operating heavy equipment like Cheff's.   In addition, we agree with the Secretary's argument that Cheff had actual knowledge that rollovers could occur in logging operations and that rollovers are dangerous.   We therefore find that a reasonable person familiar with the circumstances would recognize, and that Cheff himself recognized, the existence of a crushing hazard against which some kind of protection for employees is warranted.   The Secretary has also identified an available form of protective equipment that will substantially reduce the hazard of employees being crushed during rollovers (seatbelts) and that Cheff's drivers did not use that equipment.   See S & H Riggers & Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA 1260, 1979 CCH OSHD P23,480 (No. 15855, 1979) (involved 29 C.F.R. §   1926.28(a), the similarly broad construction industry counterpart of section 1910.132(a)), pet. for review filed, No. 79-2358 (5th Cir. June 7, 1979).   The Secretary has therefore made a prima facie showing a noncompliance [*21]   with 29 C.F.R. §   1910.132(a).

Cheff, however, argues that seatbelts cannot be required because employees will be in greater danger when wearing them.   In order to prove the affirmative defense of a greater hazard, an employer must show (1) that compliance with the cited standard would diminish rather than increase the safety of the employees; (2) that alternative means of protecting employees are either unavailable or are being used; and (3) that a variance application under section 6(d) of the Act, 29 U.S.C. §   655(d), would be inappropriate.   Marion Power Shovel Co., 80 OSAHRC 110/A2, 8 BNA OSHC 2244, 1980 CCH OSHD P24,915 (No. 76-4114, 1980).

In his decision, Judge Morris made no express finding as to whether compliance would diminish rather than increase employee safety.   He focussed instead on the second element of the defense and found that Cheff had not proved that alternative methods of protecting employees against jillpokes were unavailable. We find that Cheff has failed to establish a greater hazard affirmative defense because he has failed to prove both the first and second elements of the defense.

At the outset, it is important to note that the record in this case [*22]   shows that a cat operator will always be exposed to two separate hazards: the hazard of a rollover and the hazard of being struck by objects entering the cab. The magnitude of each hazard will vary depending on whether seatbelts are used.   If seatbelts are used, the hazard of rollovers would be reduced but the hazard of being struck by an object may be increased because the operator's ability to avoid jillpokes and other objects would be reduced.   If seatbelts are not used, there would be no restraints on the operators' ability to avoid jillpokes and other objects, and the hazard of being struck would therefore be lower; but the rollover hazard would be greater.   It would therefore not be correct simply to compare the magnitude of the hazard of being struck by objects and the magnitude of the rollover hazard if seatbelts are or are not worn. We must instead compare the combined magnitude of the rollover hazard and jillpoke hazard when seatbelts are worn with the combine magnitude of the same hazards when seatbelts are not worn. On the evidence in this case, we are not persuaded that the former is greater than the latter.

In greater hazard cases, it is not enough to show that the [*23]   new hazard or new combination of hazards is commensurate with the old.   It is our judgment here that the hazards of compliance have not been shown to be greater than the hazards of noncompliance. Although rollovers do not occur frequently, roughly half the known rollovers resulted in a fatality and others resulted in serious injuries.   Although seatbelts might not keep operators perfectly safe during a rollover, they would substantially reduce the probability and seriousness of the injuries.   We do not accept at full face value Cheff's argument that the reasons there are so few jillpoke injuries are the excellent reflexes of the drivers and the drivers' ability to jump out of their seats.   We do not doubt that jillpokes and sweepers are a frequent nuisance to cat operators, that they pose a hazard, or that that hazard may be increased if the drivers must wear seatbelts. We are, however, simply unconvinced by the record in this case that seatbelted cat operators are necessarily in greater danger than unbelted operators.

Furthermore, we agree with the judge's finding that on this record Cheff has not carried his burden of proving the second element of a greater hazard affirmative [*24]   defense, that alternative means of protection are unavailable.

The final issue on review is whether the Commission decision in Royal Logging is controlling precedent in this case.   It is not.   Because Royal Logging was decided under section 5(a)(1) of the Act and we have found here that the standard at section 1910.132(a) applies, the legal and factual issues in the two cases are different.   The finding in Royal that seatbelts were not feasible does not affect our decision here because feasibility is not a part of the Secretary's burden in this section 5(a)(2) case.   See S & H Riggers & Erectors, Inc., 7 BNA OSHC at 1265-1266, 1979 CCH OSHD at pp. 28,438-9. In a section 5(a)(1) case, the Secretary must show that there was a feasible means to abate or reduce the hazard, but he has no such burden here.   The evidence that went to the question of feasibility in Royal goes to the greater hazard affirmative defense here, and we have rejected Cheff's arguments on that question for the reasons given above.   The inconsistency in results in the two cases arises from the Secretary's failure in Royal to proceed on the stronger legal theory he employed in this case,   [*25]   and the employer's failure in Royal to argue that section 1910.132(a) was applicable and therefore displaced the general duty clause. n6

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n6 Commissioner Cleary agrees that §   1910.132(a) applies to the facts of this case and that Cheff has failed to establish the affirmative defense of greater hazard. As he indicated in his separate opinion in Royal Logging, if there is some other hazard brought about by the wearing of seatbelts, it does not even come close to the hazard of being crushed, which is a distinct possibility should the equipment roll over while the operator is not wearing a seatbelt.

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Accordingly, the judge's decision is affirmed.

SO ORDERED.