ROADWAY EXPRESS, INC.

OSHRC Docket No. 76-1108

Occupational Safety and Health Review Commission

October 25, 1977

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Before: CLEARY, Chairman; and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Bobbye D. Spears, Regional Solicitor

Walter E. Debruin, for the employer

OPINION:

DECISION

BY THE COMMISSION: A decision of Review Commission Judge James D. Burroughs, dated December 27, 1976, is before this Commission for review pursuant to a direction for review by former Commissioner Robert D. Moran under 29 U.S.C. 661(i). That decision vacated item 1 of a nonserious citation and affirmed in part a citation for a repeated violation. The direction for review does not enumerate any specific issues for review. Neither party has taken issue with the Judge's disposition of the non-serious citation. n1

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n1 In these circumstances, the Commission will not review the Judge's action on that citation. See Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD para. 20,780 (No. 4136, 1976); Crane Co., 76 OSAHRC 37/A2, 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976). Accordingly, item 1 of the nonserious citation is affirmed and the portion of the Judge's decision pertaining to that item is accorded the significance of an unreviewed Judge's decision. Leone Constr. Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 196).

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The citation for a repeated violation alleged that respondent had violated 29 C.F.R. 1910.132(a) n2 by failing to require its city drivers and supervisory and staff personnel to wear safety-toe footwear. The Judge affirmed only a nonserious violation and that portion of the citation pertaining to city drivers. He vacated the portion of the citation pertaining to the supervisory and staff personnel and the $200 penalty proposed for this citation. The complainant contends in its petition for review n3 that the Judge erred in vacating the portion of the citation pertaining to supervisory personnel. For reasons that follow, the Commission agrees. The complainant does not take exception to the Judge's recharacterization of the citation as nonserious nor to his vacation of the portion of the citation pertaining to staff personnel. n4

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n2 This standard provides, in pertinent part, that:

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 whereever it is necessary by reason of hazards of processes or environment. . . .

n3 The respondent contends in a statement filed in opposition to the complainant's petition that the complainant's petition was untimely under Commission Rule 91(b)(1), 29 C.F.R. 2200.91(b), because it was not received by the Judge within 20 days following the mailing of his decision to the parties. Rule 91(b)(1) provides that:

Except as provided in paragraphs (b)(2) and (3) of this section, any petition must be received by the Judge at his office on or before the twentieth day following his mailing of a copy of the decision to the parties. (Emphasis added.)

Paragraph (b)(3) of the rule states that:

Petitions for review of a Judge's decision may be filed directly with the Executive Secretary subsequent to the filing of the Judge's report. Such petitions will be considered to the extent that time and resources permit. Parties filing such petitions should be aware that any action by a Commission Member directing review must be taken within thirty (30) days following the filing of the Judge's report.

In the exercise of its discretion under paragraph (b)(3), the Commission concludes that the complainant's petition was not untimely and will consider it under the Commission's policy statement of December 1, 1976, published at 41 Fed. Reg. 53015 (1976).

n4 The Commission therefore will not review those actions of the Judge. See footnote 1, supra.

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The Judge correctly found that only one of the respondent's thirty-eight supervisors employed at the cited terminal wore safety shoes and that the supervisors spend ninety percent of their time on the loading docks. However, he vacated as to the supervisors because he considered the testimony of the complainant's inspector to be too general to establish that the supervisors were exposed to a hazard. In particular, he found that exposure had not been established because the inspector did not testify as to the "actual distance the supervisors were observed from the freight, carts, etc." He also concluded that the inspector was "prone to making broad statements which bear upon the credibility of his determination."

Although the inspector did not give any specific distances, he testified that the supervisors came within close proximity to the movement of freight and close enough that they could be hurt by the freight. The respondent's district manager testified that he was not exposed to any hazard because he did not come into contact with anything that could hurt his feet. Three other supervisors did [*4] not believe that they were exposed to a hazard because they did not handle freight. Roscoe Darnell, freight handler, testified that the supervisors came within three feet of freight handlers while they were handling freight. The respondent's district manager also admitted that the supervisors occasionally walked right up to freight handlers who were handling freight. One of respondent's dock foremen was injuried a little more than two months before the inspection when a pole fell on his foot "while instructing its removal."

The Commission finds that the Judge misinterpreted the complainant's burden of proof. Proof of the violation does not necessarily require that there be evidence of actually how close the supervisors came to the freight in feet and inches or that they handled or otherwise physically came in contact with the freight. The crucial question is whether a reasonable man would have recognized a danger warranting the use of safety-toed footwear under the existing conditions. Arkansas Best Freight Systems, Inc. v. OSHRC, 529 F.2d 649, 655 (8th Cir. 1976); American Airlines, Inc., 76 OSAHRC 110/A2, 4 BNA OSHC 1630, 1976-77 CCH OSHD para. 21,036 (No. 6706, 1976). [*5]

Since thirty-eight supervisors spend ninety percent of their time on a busy loading dock, the Commission infers that they were within a zone of danger. n5 Furthermore, the testimony of Darnell and the district manager establishes that the supervisors were frequently in positions where freight could fall on their feet. Their testimony is corroborated by the one prior toe injury suffered by a supervisor. n6 The Commission therefore concludes that supervisors performed their jobs in a zone where it was reasonably foreseeable that the danger of foot injuries warranted the use of safety-toed shoes.

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n5 See Gilles & Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 1975-76 CCH OSHD para. 20,448 (No. 504, 1976).

n6 The injury rate is just one factor to be considered, and the fact that there may have been relatively few toe injuries does not establish the absence of an injury producing hazard. Wilson Freight Co., 77 OSAHRC 150/C10, 5 BNA OSHC 1692, 1977-78 CCH OSHD para. 22,041 (No. 13030, 1977).

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Despite this modification [*6] in the Judge's decision, no penalty is assessed. Respondent in good faith believed that supervisors were not required to wear foot protection. Moreover, we are impressed by responent's compliance with the standard with regard to freight handlers and mechanics.

Accordingly, the Judge's decision is modified by affirming a violation of 29 C.F.R. 1910.132(a) for the failure of respondent to require its supervisors to wear safety-toe footwear.