## Facts

- National Realty and Construction Company operated a motel construction site in Arlington, Virginia.
- A foreman, O. C. Smith, rode as a standing passenger on the running board of a front-end loader driven by a subordinate.
- The loader’s engine stalled while descending an earthen ramp into an excavation, swerved, and began to topple; Smith jumped but was killed when the loader fell on him.
- The Secretary of Labor cited the company for a serious violation of OSHA’s general duty clause, alleging it “permitted” an employee to ride on the loader’s running board while in motion, a recognized hazard likely to cause death or serious physical harm.
- National Realty maintained an orally communicated no-riding policy and presented testimony that supervisors had stopped employees from riding on equipment on several occasions.
- The driver did not order Smith to dismount because Smith was the driver’s foreman and superior.
- An ALJ dismissed the citation; the Occupational Safety and Health Review Commission reversed, found a serious violation, and imposed a $300 penalty, suggesting additions to the safety program (e.g., written rules, signage, automatic discharge, alternative transportation).

## Issues

1. Whether substantial evidence supported the Commission’s finding that National Realty committed a serious violation of the OSHA general duty clause by “permitting” the hazardous conduct.
2. Whether the general duty clause requires elimination of all hazards or only those hazards preventable through feasible measures.
3. Whether the Secretary must prove the feasibility and likely utility of additional measures that would materially reduce the hazard.
4. Whether the Commission could rely on its own proposed safety-program improvements without record evidence establishing feasibility and effectiveness.

## Decision

- The D.C. Circuit reversed the Commission’s order and vacated the finding of a serious violation and the penalty.
- The court held the record lacked substantial evidence that National Realty violated the general duty clause.
- The court rejected the Commission’s reliance on suggested program changes where the Secretary did not prove those measures were feasible and would materially reduce the risk.
- The court concluded the evidence was consistent with an effectively communicated and enforced no-riding policy and with employee misconduct that was not shown to be preventable by additional proven measures.

## Legal Principles

- The OSHA general duty clause does not make employers insurers of employee safety; it requires elimination of preventable hazards, not absolute or theoretical safety.
- To establish a § 654(a)(1) violation, the Secretary must prove: (1) a workplace hazard, (2) the hazard was recognized, (3) the hazard was causing or likely to cause death or serious physical harm, and (4) feasible and effective means existed to eliminate or materially reduce the hazard and were not adopted.
- The Secretary bears the burden to show the feasibility and likely utility of proposed abatement measures; speculation by the Commission cannot substitute for proof.
- “Unpreventable employee misconduct” is not within the general duty clause where the employer has a safety rule addressing the hazard and takes reasonable steps to communicate and enforce it.
- Appellate review of Commission factfinding is limited to whether findings are supported by substantial evidence on the record as a whole.

## Conclusion

The court set aside the general duty clause citation because the Secretary failed to produce substantial evidence that National Realty’s existing no-riding policy and enforcement were inadequate or that additional, feasible measures would likely have prevented the fatal riding incident, making the Commission’s violation finding unsupported under the substantial-evidence standard.


Nat'l Realty & Constr. Co. v. Occupational Safety & Health Rev. Comm'n, 489 F.2d 1257 (D.C. Cir. 1973)