Woodward, Ann Rosenthal, on the brieffor Respondent. McKie contested the citation and a hearing was held before an Administrative Law Judge. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. In this case, our review is greatly assisted by a thorough and well reasoned decision.
The issues on appeal are the same as those urged below and, for the most part, involve the application of settled legal standards to the facts as found. The dealership maintains an inventory of auto parts on two floors and uses a vertical reciprocating conveyor, or freight elevator, to move inventory. The elevator car is three-sided; there is no door, gate, or interlock safety device on the open side.
Although the elevator was designed for transporting freight, employees frequently used it rather than taking the stairs. The controls for the elevator are located on the wall next to the elevator on each floor and can be reached from inside the elevator.
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Once the elevator begins moving, however, there are no controls inside the car with which to stop or reverse the elevator's movement. This movement created at least two shear points: first, as the elevator floor rose past the mckie ford used for of the first floor, and second, as the elevator ceiling lowered past the floor of the second floor.
Don Biegler, a parts department employee who habitually rode the elevator because of his bad knees, was killed when his head was caught in the latter shear point. The clause, found at 29 U. In order to prove a violation of this provision, the Secretary of Labor mckie ford used for show: 1 that the employer failed to render its workplace free of a hazard which was 2 recognized and 3 causing or likely to cause death or serious physical harm.
A hazard is deemed recognized when the potential danger of a condition is known to the employer, or generally known in the industry. The Commission held that the danger caused by the elevator's unprotected shear points posed a hazard that was recognized by McKie personnel, and there is substantial evidence in the record to support this determination.
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In the first place, the configuration of the elevator and the lack of safety features makes the risk plainly obvious. A videotape of the elevator in operation was shown at the hearing and introduced into evidence.
There are pictures of the thing in the record, along with descriptions of how it operated. Not surprisingly, the latter's testimony was more damaging to McKie.
It is up to the factfinder who hears the live testimony, and is able to judge the demeanor, and ultimately the credibility, of witnesses to evaluate and credit one version of events over another. There must be evidence of aggravating circumstances, apart from mere lack of diligence or adequate care, in order to satisfy the standard.
McKIE FORD INC v. SECRETARY OF LABOR, FindLaw
In other words, simply failing to address a recognized hazard will not support a willful violation. There is substantial evidence that McKie's conduct demonstrated plain indifference. It had no meaningful safety program. Another employee at McKie had been injured in a similar accident. Despite this prior accident, which the ALJ permissibly found was known to the company, employees kept riding the freight elevator habitually for years.
The company did nothing of substance to prevent this dangerous practice.
We think characterizing this course of conduct as plain indifference is a permissible application of the law. The document has been signed and dated by the Area Director and requires the signature of an authorized company official to make the agreement binding upon the company.
Before McKie signed the document, Beelman contacted McKie by telephone and orally rescinded the offer. It is, of course, well settled that a party may revoke an offer before acceptance. McKie claims, however, that the document was merely the written mckie ford used for of an oral agreement reached by the parties during a settlement conference in which there was an offer and acceptance of the terms, later embodied in the writing.
The Commission held that the agreement never became binding.
The consideration of settlement agreements in OSH proceedings is governed by 29 C. The regulations contain several procedural requirements relating to the.
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