EXECUTIVE SUMMARY

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

Summary of Baldwin Contracting Company, Inc. - Decision After Reconsideration

Employer was cited for not maintaining a mobile asphalt plant "as recommended by the manufacturer", per section 3328(b). Employer modified the plant and developed its own cleaning procedure that was different from the procedure demonstrated by the manufacturer's representatives. The Board held that the demonstration by the manufacturer was a recommendation of the manufacturer and the testimony of employees who saw the demonstration and heard what the manufacturer’s representatives said was not inadmissible hearsay. The fact that Employer modified the plant did not relieve it of its duty to follow the manufacturer’s recommendations. The fact that the ALJ denied the appeal based upon a theory advanced by the affected employee/third party and not the Division, did not violate Employer's due process rights. A serious violation of section 3328(b) was upheld.

Baldwin Contracting Company, Inc., 97-2648
December 17, 2001