JOHN W. ESHELMAN & SONS
OSHRC Docket No. 76-5039
Occupational Safety and Health Review Commission
February 27, 1981
[*1]
Before: CLEARY, Chariman; BARNAKO and COTTINE, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
William S. Kloepfer, Associate Regional Solicitor, USDOL
Merle Wood II, John W. Eshelman & Son, Division of Carnation Company, for the employer
OPINION:
DECISION
BY THE COMMISSION:
This is a case under the Occupational Safety and Health Act of 1970, 29 U.S.C. § § 651-678 ("the Act"). A decision of Administrative Law Judge William E. Brennan is before the Commission for review under section 12(j) of the Act, 29 U.S.C. § 661(i). Judge Brennan concluded that John W. Eshelman & Sons, Respondent, committed a serious violation of the Act by failing to comply with the standard at 29 C.F.R. § 1910.178(p)(1). n1 However, the judge rejected the Secretary's allegation that the violation of section 1910.178(p)(1) was willful. Pursuant to Chairman Cleary's granting of the petition for discretionary review filed by the Secretary of Labor ("Secretary"), the sole issue for consideration is whether the judge erred in concluding that the violation was not willful. n2 We conclude that Respondent's failure to comply with section 1910.178(p)(1) was a willful violation of the Act.
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n1 The standard provides:
Subpart N - Materials Handling and Storage
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§ 1910.178 Powered industrial trucks.
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(p) Operation of the truck. (1) If at any time a powered industrial truck is found to be in need of repair, defective, or in any way unsafe, the truck shall be taken out of service until it has been restored to safe operating condition.
n2 The term "willful" is not defined in the Act, but section 17(a) of the Act, 29 U.S.C. § 666(a), states:
Any employer who willfully or repeatedly violates the requirements of section 5 of this Act, any standard, rule, or order promulgated pursuant to section 6 of this Act, or regulations prescribed pursuant to this Act, may be assessed a civil penalty of not more than $10,000 for each violation.
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I
Compliance Officer Earl Maxie inspected Respondent's facility on November 2 and 4, 1976, in response to an employee complaint pertaining to the unsafe operation of a forklift truck. As a result of that inspection, Respondent was issued a citation alleging [*3] a willful violation of the Act for noncompliance with section 1910.178(p)(1). A $900 penalty was proposed by the Secretary.
Respondent, a division of Carnation Co., operates a facility in Circleville, Ohio, where it processes animal feed. The facility consists of a mill building, where the animal feed is made and packaged, and an adjoining warehouse. After packaging, the feed is sent from the mill down a chute to a table within the warehouse. Respondent's employees lift the bags off the table and stack them on empty pallets. Forklift trucks position the pallets beside the table and then carry the loaded pallets to a storage area within the warehouse.
One of Respondent's employees, Harold Parker, regularly operated Respondent's forklift truck No. 829. On October 25, 1976, Parker noticed that the brake pedal was "low" and reported that condition to his supervisor, Danny Radcliff. Radcliff then "looked" at No. 829 and asked if Parker could operate the truck safely. Parker replied that he could, and he operated No. 829 for the remainder of the day with "caution." Soon after his conversation with Parker, Radcliff reported the brake problem to Respondent's plant manager, Harold [*4] Morton. Upon being told by Radcliff that Parker believed he could still use the truck safely, Morton did not take No. 829 out of service. However, he did telephone the dealer to request that someone come to repair the brakes right away. The dealer told Morton that a service representative might not be available for a day or so.
At 7:00 a.m. on the next day, October 26, Parker began to operate No. 829 again, but he noticed that the brakes were worsening as the morning progressed. At about 9:45 a.m. Parker parked No. 829 in the warehouse "because [he] was afraid somebody could get hurt . . . ." Parker did not use No. 829 for the remainder of that day.
Later that day, Respondent's employee John Ramsey and two other employees were loading bags of feed at the table onto the pallets. The pallets Ramsey and the other employees were loading became full, while the bags of feed continued to come down the chute. The three employees shouted up to the employees at the other end of the chute to stop sending bags until an empty pallet could be brought up to the table. Apparently their shouts were not heard, and the bags began to pile up. To shut the conveyor belt off required going upstairs. [*5] Ramsey looked around and saw forklift truck No. 829 parked near the loading table where Parker had left it. n3 The emergency brake was on and the keys had been left in the ignition. Ramsey considered it his job to assure continuous loading of the pallets. He had not been warned that the truck was defective nor had he been given any instructions not to use the truck. Thus, he went over to No. 829, started the engine, and drove it toward the loading table in order to remove the full pallet and replace it with an empty one. When he tried to stop, he realized that the brakes were functioning improperly. The forklift truck hit the loading table, barely missing the loading employees who had stepped aside in time. The accident was reported to plant manager Morton.
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n3 Ramsey had been operateing Respondent's forklift trucks to move pallets as a relief driver, i.e., during the overtime work periods and the breaks taken by the regular operators.
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Parker again operated No. 829 on October 27, the day after the accident, [*6] but only in the center of the warehouse away from areas frequented by other employees. Later that same day, the dealer's service representative arrived at the plant to repair No. 829. He was told that it could not be withdrawn from service at that time because Respondent owned only one other forklift truck and both were necessary for moving the large amount of packaged feed to be handled that day. The next day, the repairman returned and made the brakes "usable" by replacing No. 829's leaking brake cylinder. He said that in order to complete the repairs he would need to return and replace the brake shoes that had become soaked with the leaking brake fluid. On November 2, he was at Respondent's facility replacing No. 829's brake shoes while Compliance Officer Maxie was conducting his inspection.
According to Compliance Officer Maxie, Morton told him at the closing conference on the day of the inspection that he was aware that the brakes on No. 829 malfunctioned on October 25 and that an accident had occurred on the following day because of the faulty brakes. Maxie testified that Morton also told him that Respondent had to continue using No. 829 because it was busy and only owned [*7] two forklift trucks. According to Maxie's testimony, Morton admitted at the closing conference that he had made the decision to continue the use of No. 829 and also admitted that his decision was "stupid and inexcusable."
II
In his decision, Judge Brennan specifically relied on the test for proving willfulness set forth in Intercounty Construction Co. v. OSHRC, 522 F.2d 777 (4th Cir. 1975). The judge listed the requisite elements for proof of willfulness as follows:
1) An act by an employer which is deliberately, intentionally, consciously and voluntarily done, and
2) the employer act is done with knowledge that it violates the Occupational Safety and Health Act or a Standard promulgated thereunder.
Judge Brennan noted Maxie's testimony as to Morton's statements regarding his choice not to withdraw No. 829 from service. The judge considered Morton's own testimony in general to be "confused, unclear, vague and contradictory." The judge concluded that "the evidence clearly establishes that Respondent deliberately, intentionally, consciously and voluntarily did not take fork-lift No. 829 out of service when it was defective, unsafe and in need of repair . . . ." However, [*8] the judge determined that the preponderance of the evidence of record failed to establish that Respondent had knowledge that it was in violation of a standard promulgated under the Act when it chose not to take No. 829 out of service. Therefore, Judge Brennan rejected the willful characterization of the violation. He concluded, instead, that the violation was serious and assessed a penalty of $800.
III
On review, the Secretary argues that the judge erred in rejecting the Secretary's characterization of the violation as willful. The Secretary argues that the judge used the wrong test for "willfulness" because section 17(a) of the Act as well as Commission precedent indicate that an employer can willfully violate the Act regardless of whether the employer knew that its action violated the Act or a particular standard. The Secretary contends that an employer commits a willful violation when it acts with "plain indifference to the requirements of the Act," citing Intercounty Construction Co., supra, and other cases, or with "reckless disregard of employee safety," citing Georgia Electric Co., 77 OSAHRC 30/A2, 5 BNA OSHC 1112, 1977-78 CCH OSHD P21,613 (No. 9339, 1977), [*9] aff'd, 595 F.2d 309 (5th Cir. 1979), and other cases. The Secretary asserts that the evidence of record establishes that Respondent acted with plain indifference to the Act and with careless disregard of employee safety.
Respondent contends on review that Judge Brennan correctly concluded that the violation was not willful, and Respondent argues in support of the judge's rationale. Respondent asserts that the Secretary offered no evidence showing the requisite knowledge of either the Act or an appropriate specific standard under it, although ample opportunity existed for cross-examination of Morton at the hearing. According to Respondent, the "plain indifference to the Act" or "reckless disregard for employee safety" test, first mentioned by the Secretary on review, should not now be considered by the Review Commission because they constitute legal theories not presented at the hearing, citing National Realty and Construction Co. v. OSHRC, 489 F.2d 1257 at 1267, n. 40 (D.C. Cir. 1973).
IV
The Commission has found a violation to be willful when it is marked by careless disregard of a standard or of employee safety. A. Schonbek & Co., 80 OSAHRC / , 9 BNA OSHC [*10] 1189, 1981 CCH OSHD P25,081 (No. 76-3980, 1980), appeal docketed, No. 81-4014 (2d Cir. February 3, 1981); Brown & Root, Inc., 79 OSAHRC 20/A2, 7 BNA OSHC 1215, 1979 CCH OSHD P23,435 (No. 13685, 1979); Constructora Maza, Inc., 78 OSAHRC 6/E2, 6 BNA OSHC 1309, 1977-78 CCH OSHD P22,487 (Nos. 13680 & 14509, 1978). Therefore, once careless disregard of employee safety has been established, the Secretary need not prove additionally that an employer knew that it was violating the Act. A. Schonbek & Co., supra; Constructora Maza, Inc., supra.
We conclude that the evidence of record in the instant case establishes that Respondent acted with careless disregard for employee safety when, having been informed of No. 829's defective brakes, it failed to withdraw No. 829 from service. Respondent first exhibited this careless disregard when, having been told by Parker on October 25 of the defective brakes, Parker's supervisor Radcliff and then Respondent's plant manager Morton did not take No. 829 out of service immediately. On October 26, Respondent again acted without regard for employee safety when its supervisory staff failed to withdraw No. 829 following the [*11] accident earlier that day. Respondent once more neglected employee safety when the repairman arrived on October 27 to fix the brakes on No. 829 and was told of Morton's decision to keep No. 829 in service due to the volume of packages that had to be moved that day. n4
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n4 We reject Respondent's contention that the test of disregard for employee safety cannot now be applied by the Commission because it constitutes a legal theory which the Secretary did not raise before the judge. Insofar as Respondent's argument may be interpreted as a contention that the Secretary must plead the specific factual basis on which he considers the violation to be willful, we do not agree. Cf. PAF Equipment Co., 79 OSAHRC 18/A2, 7 BNA OSHC 1209, 1979 CCH OSHD P23,421 (No. 14315, 1979), aff'd, No. 79-1398 (10th Cir. Dec. 2, 1980) (amendment to allege a willful rather than serious violation does not change the underlying cause of action and is permitted so long as the employer is not prejudiced in the presentation of its case). Respondent here does not aver that it has been prejudiced in any particular manner although it alludes to "a set of facts which was not presented at the hearing." However, Respondent clearly had notice that the willfulness of the violation would be in issue since the citation alleged the violation as willful, and the issue of willfulness was fully litigated. In this respect, the case is distinguishable from National Realty & Constr. Co. v. OSHRC, 489 F.2d 1257, 1267 n. 40 (D.C. Cir. 1973) since the portion of that opinion on which Respondent relies is concerned with a legal theory on which no evidence of record was adduced. Furthermore, it is the obligation of the Commission to decide cases by applying the relevant precedent at the time the decision is issued. Respondent does not claim that the case law regarding the elements of proof of a willful violation had changed since this case was heard, but even assuming there had been an intervening material change in the relevant case law, we would not vacate the willful allegation but rather would determine whether Respondent should be afforded an opportunity to present evidence in rebuttal to the Secretary's prima facie case. In this case a remand is not appropriate since the evidence of record reveals that Respondent could not rebut the Secretary's showing of a careless disregard of employee safety. Cf. J.L. Foti Constr. Co., 80 OSAHRC 36/C10, 8 BNA OSHC 1281, 1980 CCH OSHD P24,421 (Nos. 76-4429 & 76-5049, 1980) (no remand necessary because evidence of record indicated that Respondent could not rebut the Secretary's prima facie showing that a violation was repeated).
[*12]
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We therefore conclude that Respondent committed a willful violation of the Act when it failed to comply with section 1910.178(p)(1). Based on the criteria set forth in section 17(j) of the Act, 29 U.S.C. § 666(i), we assess a penalty of $900.
IT IS SO ORDERED.