FLEMING FOODS OF NEBRASKA, INC.

OSHRC Docket No. 14484

Occupational Safety and Health Review Commission

November 4, 1977

[*1]

Before: CLEARY, Chairman; and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

T. A. Housh, Jr., Regional Solicitor, U.S. Department of Labor

Jerrold E. Fink, for the employer

OPINION:

DECISION

BY THE COMMISSION: A decision of Review Commission Judge Vernon Riehl, dated July 15, 1976, is before the Commission for review pursuant to 29 U.S.C. 661(i). Judge Riehl found the respondent in nonserious violation of 29 C.F.R. 1910.132(a) n1 for failing to provide its employees with head protection but assessed no penalty.

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n1 The standard provides as follows:

Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processses or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impariment in the function of any part of the body through absorption, inhalation or physical contact.

[*2]

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The respondent contends in essence on review that the Judge's decision should be reversed because:

(1) The evidence fails to establish a necessity for the respondent's employees to wear head protection.

(2) The evidence shows that is is not the practice in the respondent's industry to require the wearing of head protection under the circumstances prevailing in this case. n2

(3) The evidence established that the wearing of head protection would diminish, rather than enhance, employee safety.

(4) The affirmance of a violation in this case is inconsistent with other instances in which the respondent and other employers have not been cited for failing to require the wearing of head protection under substantially similar circumstances. n3

(5) The Judge erred in denying the respondent the opportunity to call a compliance officer as a witness who had conducted an inspection in a similar case in which a citation for a violation of 29 C.F.R. 1910.132(a) was withdrawn by the complainant.

(6) The complainant denied the respondent its right to an informal conference after issuance of the citation.

For reasons [*3] that follow, the Commission rejects the respondent's contentions and affirms the Judge's decision.

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n2 The respondent relies on the precedent established in the Commission's divided decision in Grand Union Co., 75 OSAHRC 88/A2, 3 BNA OSHC 1596, 1975-76 CCH OSHD para. 20,107 (No. 7031, 1975).

n3 After the hearing, the respondent moved to supplement the record with documents which indicate that a citation issued after the hearing in this case against one of the respondent's subsidiaries for a head protection violation of 29 C.F.R. 1910.132(a) was withdrawn following an "informal conference" with the area director. The respondent contended to the Judge and contends to the Commission that these documents demonstrate that the Secretary does not consider head protection to be necessary in warehouse situations substantially similar to those in the instant case. The Judge granted the respondent's motion to supplement the record but found that the actions by the complainant's representative in that case were not controlling in this case.

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The respondent is engaged in the business of distributing grocery items to retail stores. The site of the alleged violation in this case was one of the respondent's warehouses where boxes or containers of grocery items were stacked in metal racks, or pallets, or on the floor. Stacking was as high as 18 feet. The aisles between the stacked items were well-maintained. The respondent used various types of mechanical handling equipment to transport and maintain the stored items. Its forklifts were equipped with overhead protection. The complainant contended that the conditions in the warehouse required head protection for the 40 to 50 employees whose work in the warehouse involved the placing of goods in storage and removing them from the stacks to fill orders.

On review, the respondent does not dispute that the employees were not provided with head protection. It contends, however, that the wearing of head protection was unnecessary because there was no hazard to its employees from falling objects. The Commission finds that the evidence is to the contrary.

The compliance officer testified that hard hats were necessary any time there was overhead storage with [*5] the possibility of materials falling. Although he recognized that the primary method of preventing the hazard was care in stacking of materials and use of mechanical equipment, he indicated that hard hats would be helpful in lessening impact and preventing penetration if materials should fall. He acknowledged that a hard hat would not fully protect an employee if a heavy box hit the employee directly on the head, but expressed the opinion that it would decrease the seriousness of the injury and provide protection against glancing blows. The compliance officer concluded that there was a possibility of overhead objects falling on the respondent's employees.

The respondent's Loss Control manager testified that Travelers Insurance inspected the plant four times per year and never recommended use of hard hats. He also stated that inspections of several of the respondent's other facilities had not resulted in the issuance of any citations for lack of hard hats. He also stressed that neither Super Value nor Safeway use hard hats in their warehouse facilities. He stated, however, that he would not deny that there had been instances of items falling out of the racks throughout the respondent's [*6] facilities.

The respondent's Warehouse and Transportation Manager testified that employees do not want to wear hard hats. n4 He further indicated that the hats would be more of a nuisance than a help. He also corroborated the testimony of the Loss Control Manager regarding the inspections of Traveler's Insurance and testified concerning an award from the American Sanitation Institute for a high level of achievement in sanitation.

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n4 Another employee of the respondent also indicated that the attitude of employees was negative as to wearing hard hats.

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As the Judge correctly found in his decision, the evidence establishes that there had been eight instances of falling merchandise between January 1, 1975, and the hearing which had endangered the respondent's employees. One of these instances resulted in employee injury. Although head protection might not have prevented this injury, it probably would have reduced the severity of it. Under these circumstances, the Commission finds that the evidence establishes that [*7] hazards from falling overhead objects existed at the respondent's workplace which created a necessity for the wearing of head protection to protect the employees from head injuries or to reduce the severity of such injuries.

The holding in Grand Union Co., supra n. 2, is inapposite to this case. The respondent relies on that case for the proposition that the requirements of a broad standard such as 29 C.F.R. 1910.132(a) should be determined by referring to industry practice. In Grand Union it was necessary to examine the work of retail butchers in order to determine if they were exposed to a hazard that necessitated the use of wire mesh gloves. A divided Commission found that the evidence showed that the retail butchers were not exposed to a hazardous process within the meaning of 29 C.F.R. 1910.132(a). However, it is not necessary to examine industry practice when the hazard is readily apparent. See Cape & Vineyard Division of the New Bedford Gas and Edison Light Co. v. OSHRC, 512 F.2d 1148, 1152 (1st Cir. 1975). The test to be applied in such a situation "is an external and objective test, namely, whether or not a reasonable person would recognize a hazard." [*8] Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230, 233 (5th Cir. 1974). n5

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n5 Also see McLean Trucking Co. v. OSHRC, 503 F.2d 8 (4th Cir. 1974); Graves Truck Lines, Inc., 77 OSAHRC 147/F12, 5 BNA OSHC 1679, 1977-78 CCH OSHD para. 22,038 (No. 12682, 1977); Yellow Freight Systems, Inc., 75 OSAHRC 40/C9, 2 BNA OSHC 1690, 1974-75 CCH OSHD para. 19,439 (No. 2658, 1975), aff'd, 530 F.2d 1095 (D.C. Cir. 1976), cert, denied, 97 S.Ct. 79 (1976).

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The hazard in this case was readily cognizable. The evidence shows that grocery items had fallen and that injuries could result. The respondent outfitted its forklift trucks with overhead protection in apparent recognition of a hazard to its employees from falling objects. n6 The failure of the respondent's insurance company and others in its industry to require head protection is not crucial. An industry cannot ignore obvious hazards. Accordingly, the Commission concludes that the respondent should have known of the hazard and should have required its employees [*9] to wear head protection.

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n6 See 29 C.F.R. 1910.178(m)(9).

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We also affirm the Judge's finding that the evidence does not prove that the wearing if head protection would diminish, rather than enhance, employee safety. The evidence shows some inconvenience to employees, but this is insufficient to establish a "greater hazard" defense. n7

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n7 See Russ Kaller, Inc., 76 OSAHRC 130/F10, 4 BNA OSHC 1758, 1976-77 CCH OSHD para. 21,152 (No. 11171, 1976).

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The respondent's contention that the complainant's inconsistent enforcement of section 1910.132(a) for head protection violations warrants a dismissal is also rejected. Judge Riehl properly held that an exercise of enforcement discretion by a representative of the complainant involving another employer is not controlling here.

Enforcement of the provisions of the Occupational Safety and Health Act [*10] of 1970, 29 U.S.C. 651, et seq., is the function of the Secretary of Labor, whereas the Commission's role is adjudicatory. Dale M. Madden Construction, Inc. v. Hodgson, 502 F.2d 278 (9th Cir. 1974). The Secretary is required to issue a citation if he or his authorized representative "believes" that the Act has been violated. 29 U.S.C. 658(a). The complainant may not have issued head protection citations against other facilities or may have withdrawn such citations against other facilities for any number of reasons. Clearly, it would be inappropriate for the Commission to speculate as to the complainant's reasons for such actions. More importantly, the Commission's function is to decide this case and not rule upon the propriety of the complainant's actions in other cases.

The respondent argues that an affirmance of the citation in this case could lead to an absurd result in that it may now be cited for a repeated violation of the Act for the failure of employees to wear head protection at other facilities which were not cited for head protection violations as a result of prior inspections. This argument lacks merit. Whether such citations will be issued is [*11] purely speculative. Moreover, whether violations exist at other facilities and whether they are repeated violations depends on the circumstances that prevail at those facilities. Therefore, these are questions which properly must await resolution in future proceedings.

During the hearing, the respondent's attorney requested permission to call as a witness the compliance officer who had inspected a Super Value store n8 and who had not been scheduled to be called as a witness. The attorney asserted that he desired to call this compliance officer as a witness because:

It's my understanding that this inspector conducted as inspection of a plant, a food storage plant, which is in many respects similar to the Fleming Plant and in many respects more hazardous to the safety and health of the employees with respect to hardhats, that they did not wear hardhats at that plant which is a competitor of Fleming Food. That this inspector did cite them for hardhats but the Citation was dropped by the Secretary.

The attorney also stated, however, that "I have no idea as to what he is going to testify."

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n8 The respondent contends that he was the inspector in Super Value Stores, Inc., 1973-74 CCH OSHD para. 16,626 (No. 2690, 1973).

[*12]

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In denying the request to call the witness, the Judge correctly remarked that "you are talking about going on a fishing expedition." Allowing the appearance of an unscheduled witness is discretionary with the Judge. n9 The Commission concludes that Judge Riehl did not abuse his discretion.

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n9 Williams Enterprises, Inc.,    OSAHRC   , 4 BNA OSHC 1663, 1976-77 CCH OSHD para. 21,071 (No. 4533, 1976).

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The final issue involves the complainant's failure to grant the respondent's request for an informal conference. The respondent argues that the Act grants employers the right to such a conference and that right was denied. n10 The respondent's petition for review states:

While there may be some speculation whether Respondent would have derived any benefit from an informal conference, Respondent submits that the Record demonstrates that, on the same issue concerning hard hats, an informal conference was granted Respondent's affiliate General [*13] Merchandise Distributors, Inc., and, following that informal conference, the Secretary withdrew the hard hat citation item involved therein.

The respondent therefore argues that it should not have to speculate about whether it could have persuaded the complainant to withdraw the citation in this case.

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n10 The respondent's Loss Control Manager testified that he tried to have an informal conference with the complainant's regional officials, but was told "it would not do any good."

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Contrary to the respondent's assertion, that is nothing in the Act which requires the complainant to conduct an informal conference with a cited employer. Under 29 C.F.R. 1903.19 such a conference "may" be held. n11 Therefore, the holding of an informal conference is a matter which is left entirely to the discretion of the complainant's regional directors. The respondent's failure to establish an abuse of that discretion and that it was specifically prejudiced by the denial of an informal conference is fatal to the respondent's contention. [*14] See Kast Metals Corp.,    OSAHRC   , 5 BAN OSHC 1861, 1977-78 CCH OSHD para. 22,165 (No. 76-657, 1977).

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n11 Section 1903.19 provides in pertinent part:

At the request of an affected employer, employee, or representative of employees, the Regional Administrator may hold an informal conference for the purpose of discussing any issues raised by an inspection, citation, notice of proposed penalty, or notice of intention to contest.

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Accordingly, the Judge's decision is affirmed.