This section contains the nature of the case and procedural background.

Republic (D) operated five railroad tie marshaling yards. These ties weighed approximately 150 to 235 pounds each. The truckloads of ties arriving at the yard were secured by chains to the transporting trucks. In twenty to twenty-five percent of the truckloads, the ties were bound together into packages, with each package held together by a single narrow steel band. Each package contained 25 to 45 ties, five ties high, five to nine ties across, and one tie in length. The packaged ties were loaded lengthwise along the length of the truck, generally one package high and two packages across. The truck driver ordinarily removed the chains holding the packages of ties onto the truck. Republic's (D) unloader operator then moved a forklift truck into position so that it supported a package of banded ties. Only after the unloader was supporting a package, did the truck driver, standing on an adjacent package, cut the band on the package to be unloaded. The unloader then removed the loosened ties from the truck. During the entire operation, all Republic (D) employees, other than the unloader operator, remained at a safe distance from the truck. Raymond Davis, a new employee, had been hired to sort and stack ties after the completion of the unloading process. Davis was to assist in the unloading. The field superintendent, Wallace Worley, when hiring Davis had told him 'not to get around no trucks; the unloader done all the unloading.' Davis was originally standing some distance from the truck and was expected to remain there until the unloading was completed. The chains had, at this time, already been removed from the truck but the unloader had not yet been moved into position. Without being ordered to do so and without informing anyone of what he intended to do, Davis went up to the truck and while standing on the ground next to the truck, cut the steel band on a package of ties with an ax. Five of the ties fell on Davis, fatally injuring him. P conducted an inspection and issued two citations to Republic (D) for alleged violations of the Occupational Safety and Health Act. Both citations were affirmed but the second citation was raised from a nonserious to a serious violation. The total penalty imposed was $1300. Republic (D) petitioned for discretionary review by the Occupational Safety and Health Review Commission (D). It reversed the administrative law judge and vacated the citations. P appealed.

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