National Realty and Construction Co. v. Occupational Safety and Health Review Commission

At a construction site operated by National Realty and Construction Company, Inc. (company) (plaintiff), O. C. Smith, one of the company’s foremen, was riding on the running board of a front-end loader. While the vehicle was traveling down a dirt ramp into an excavation, the engine stalled. Smith jumped off but was killed when the loader toppled off the ramp and landed on top of him. The company had an oral policy against equipment riding. Smith’s supervisor did not see the accident but had stopped the four or five workers he had seen taking rides during the previous two years. The loader’s driver did not order Smith off the vehicle because Smith was his foreman. The United States secretary of labor (secretary) cited the company for violating the general-duty clause of the Occupational Safety and Health Act (act), which provided that if no specific safety standard under the act was applicable, an employer had a general duty to render its workplace free of recognized hazards that were likely to cause death or serious harm. A hearing examiner dismissed the citation, finding that the secretary had not proven its allegation that the company permitted Smith to ride the loader. The Occupational Safety and Health Review Commission (commission) (defendant) reversed the examiner and suggested improvements for the company’s policy, including putting the policy in writing, posting no-riding signs, automatically discharging violators, and providing alternative means of transport at construction sites. The company appealed.