SECRETARY OF LABOR,
Complainant,

v.

GENERAL MOTORS CORPORATION,
GM PARTS DIVISION,
Respondent.

OSHRC Docket Nos. 78-1443 and 79-4478

DECISION

Before:  ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.

BY THE COMMISSION:

These cases are before the Occupational Safety and Health Review Commission under 29 U.S.C. 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act").[[1]]  The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration.  It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions. See section 10(c) of the Act, 29 U.S.C. 659(c).

At issue in these two cases is whether respondent, General Motors Corporation ("GM"), violated 29 C.F.R. 1910.132(a)[[2]] by failing to require its employees to wear safety shoes at its parts warehouses in Westwood, Massachusetts and Chamblee, Georgia.  In separate opinions, Judge Edwin G. Salyers and Foster Furcolo found violations of the standard and affirmed the items on review. We reverse the judges' decisions and vacate those items.

I
Docket No. 78-1443 involves GM's parts warehouse in Westwood, Massachusetts.  At this warehouse, GM employs 150 people who handle approximately 1 1/2 million parts a year.   The parts weigh from a few ounces up to nearly 200 pounds and include wheel rims, wheels, manifolds, fenders, and brake drums.  Ninety percent of the parts are moved by hand.  The parts are stored on wooden pallets steel racks at various levels in the warehouse.  Employees climb portable step ladders to retrieve parts stored as high as fifteen feet above the floor.  They also work in the vicinity of forklift trucks.   Employees testified that they handled from two hundred to five hundred parts a day.   The weights of the heaviest parts handled by the employees who testified ranged between 50 and 130 pounds.

Five foot injuries had occurred in the two and one half years before the inspection.   Four of these injuries, including three toe fractures, occurred as a result of falling auto parts.  The fifth injury occurred when an employee's toe was run over by a forklift wheel.  An additional toe fracture caused by a falling part was suffered after the inspection but before the hearing.  GM does not require employees to wear safety shoes, but requires that substantial leather shoes be worn and offers a payroll deduction plan that enables employees to purchase safety shoes at a substantial discount.

Barnes, a supervisor in OSHA's Hartford area office, testified on behalf of the Secretary.   He was formerly employed as safety director for the Packaging Division of Monsanto and had worked in material management with Crown-Zellerbach.  Although he had some familiarity with small-scale auto parts warehouses, Barnes' primary experience involved warehouse handling a smaller volume of objects that were heavier than those in GM's warehouses.  He testified that a person familiar with the circumstances of the warehousing industry would have used safety shoes to protect against the hazard to the feet present in GM's warehouse.  He stated that the existence of the hazard was evidenced by the five foot injuries received by GM's employees.  Barnes recommended that GM's employees wear either Class 75 foot protection as described in American National Standards Institute ("ANSI") Z41.1-1967, USA Standard for Men's Safety Toe Footwear 8-11,[[3]] or toe caps.  He testified that if GM's employees had been wearing safety shoes, the five foot injuries could have been prevented.  Barnes testified that he did not know whether most employers in the warehousing and auto parts industry require the wearing of safety shoes.  Based on his own experience, he knew three employers that required the wearing of safety-toed shoes in their warehouses.

Derby was the director of safety for GM's parts division.  He testified that, after conferring with outside experts, GM had determined that a mandatory safety shoe requirement should be instituted for employees in the foundry but concluded that in its parts warehouses employees should be required to wear leather shoes.  Derby testified that a manifold or other palletized material could cause an injury if it fell on an employee's foot, but that safety shoes afford protection beyond what the warehouse conditions require.  In Derby's view, 5 foot injuries received by 150 employees moving 1 1/2 million parts a year over a 2 1/2 year period did not warrant a mandatory safety shoe requirement.  Derby testified that only 3 of these 5 injuries could have been prevented by safety shoes.  He testified that GM required and paid for safety shoes in its foundry operations, where the circumstances warranted it.

Judge Furcolo affirmed item 2 of citation 2 alleging a violation of section 1910.132(a).  He found that the facts demonstrated that GM's employees were exposed to a hazard of foot injuries that could have been prevented by safety shoes.  Judge Furcolo found that GM knew of the hazard.

Docket No. 79-4478 involves GM's Chamblee, Georgia parts warehouse.  At this location, approximately 25 GM employees handle truck parts that weigh from a few ounces to over one hundred pounds.  Forklifts and other lifting devices are available for employees to use in moving parts.  At the time of the inspection, GM did not require employees to wear steel-toed safety shoes, but it encouraged their use and made them available through a payroll deduction plan.  GM did prohibit the wearing of canvas shoes, sandals, and similar shoes in the working area of the warehouse.  Warehouse employees had suffered 12 foot injuries between 1971 and July 1979.   Jackson, who had been employed by GM for 23 years, testified that there was "a danger of things falling on your feet" when unloading trucks and handling pallets.  Jackson testified that he had always worn regular leather shoes because GM required no more, though he testified that he believed a need existed for safety shoes.

Ellison, the warehouse manager for a hinge manufacturing plant, had never been in GM's or any other parts warehouse.  She testified that employees at her hinge warehouse lift 30 to 60 pound boxes of hinges a distance of three feet from shelves onto pallets.  Ellison stated that the hinge warehouse employees had been required to wear steel-toed shoes for fifteen years, but she was unable to explain why the shoes were required.

Laurent is the occupational safety and health administrator for GM and a member of the occupational safety and health group of the Motor Vehicle Manufacturers Association.   He testified that industry practice in the automobile parts warehousing industry is to encourage but not require protective footwear.  According to Laurent, GM's injury records do not indicate how injuries occur, whether employees were wearing safety shoes when they were injured or whether the injuries would have been prevented by wearing safety shoes.  However, Laurent did testify that safety shoes would have prevented at least three lost-time injuries.  He explained that GM has attempted to make the task of handling auto parts safer by eliminating the need for employee actions that cause injuries.  Laurent testified that employees could avoid foot injuries by using "a picking buggy," a four-wheeled carrier that is "wheeled up immediately" to where parts are stored in order to transfer the parts.

Judge Salyers affirmed item 1 or citation 1 alleging a violation of section 1910.132(a).   He found that the Secretary had established the hazard of foot injuries from falling auto parts and had shown that safety shoes were neither worn nor required to be worn. Judge Salyers also found that GM had knowledge of the hazard.

II
On review, GM argues that in order to prove a violation of section 1910.132(a) the Secretary must demonstrate that an employer had actual knowledge of the existence of a hazard or that the employer's failure to require personal protective equipment was contrary to what was customarily required in the employer's industry.  GM relies on S&H Riggers & Erectors, Inc. v. OSHRC, 659 F.2d 1273 (5th Cir. 1981), rev'g, 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1979 CCH OSHD 23,480 (No. 15855, 1979) (section 1926.28(a)).  In that case, the United States Court of Appeals for the Fifth Circuit reversed a Commission decision and held that industry custom is controlling and that to prove a violation of a broad standard such as section 1926.28(a) the Secretary must show that an employer's conduct did not conform to that of his industry.  659 F.2d at 1285.  In a companion case, the Court affirmed this test but added that a violation could be shown if the Secretary proved that the employer had actual knowledge that personal protective equipment was necessary to protect his employees from a particular hazard.  Owens-Corning Fiberglas Corp. v. Donovan, 659 F.2d 1285, 1288 (5th Cir. 1981) (section 1910.132(a)), aff'g on other grounds 79 OSAHRC 26/D6, 7 BNA OSHC 1291, 1979 CCH OSHD 23,509 (No. 76-4990, 1979).

GM argues that the Secretary has not shown that it had actual knowledge of a foot hazard or that its failure to require safety shoes fell short of industry custom in the automotive parts warehousing industry.  GM points to the unrebutted testimony of Laurent and Derby that the practice in the automotive parts warehousing industry was to encourage the use of safety shoes but not to require their use.  GM claims that the testimony of the witnesses on industry practice called by the Secretary should be given no weight because they did not have experience in automotive parts warehouses.  It maintains that the small number of injuries received by its employees did not provide it with actual knowledge of a hazard.  GM also disputes the Secretary's claim that its encouragement of the wearing of safety shoes and its payroll deduction plan demonstrate that it was aware of a hazard requiring safety shoes.

Despite the Fifth Circuit's rejection of the Commission's rationale that industry custom is not dispositive but is only an aid in determining whether a reasonable person would recognize a hazard requiring personal protective equipment, the Secretary urges the Commission to adhere to the rationale in S&H Riggers and Owens-Corning.  The Secretary maintains that compliance with a broad standard such as section 1910.132(a) may require methods of employee protection beyond that practiced in the industry.

According to the Secretary, the evidence demonstrates that a reasonable person would recognize that the hazards at GM's workplaces require that safety shoes be worn.  He relies on, among other things, the dangers posed by the heavy parts, the injuries received by employees, and in Docket No. 78-1443, the testimony of OSHA official Barnes that a person familiar with the warehouse and auto parts industries would recognize a hazard of foot injuries at GM's warehouse.  The Secretary disputes GM's argument in Docket No. 79-4478 that the equipment and training provided by GM eliminate the need for safety shoes.  He notes that these measures have not prevented injuries and claims that training should not be relied on as the chief form of protection when protection is available that does not depend on employee conduct.

The Secretary also contends that the evidence demonstrates that GM had actual knowledge of the hazard.  He relies primarily on GM's knowledge that foot injuries had occurred, on the concessions by GM's safety officers that safety shoes offered more protection and were "useful," and on GM's facilitation of the purchase of safety shoes through the payroll deduction plan.

III
The Commission has held that a hazardous condition requiring the use of personal protective equipment exists under section 1910.132(a) if a reasonable person familiar with the circumstances surrounding an allegedly hazardous condition, including any facts unique to a particular industry, would recognize a hazard warranting the use of personal protective equipment. Owens-Corning, 7 BNA at 1295, 1979 CCH OSHD at p. 28,491.   Commission precedent also holds that evidence of industry custom and practice will aid in determining whether a reasonable person familiar with the circumstances would perceive a hazard, though it is not necessarily determinative.  Id.  The Commission also examines the employer's own understanding of the alleged hazard.  Id.   We do not decide at this time whether the Commission's reasonable person/actual knowledge test or the Fifth Circuit's industry custom/actual knowledge test is more appropriate.  The Secretary has failed to prove the existence of violations of the cited standard under either test.  See Consolidated Rail Corp., 82 OSAHRC 41/D3, 10 BNA OSHC 1851, 1858, n.19, 1982 CCH OSHD 26,165, p. 32,992 n.18 (No. 78-238, 1982) (Rowland, Chairman, dissenting in part and concurring in part).

We turn first to the "actual knowledge" question.  Although the Secretary relies heavily on the number of injuries received by GM's employees, we are unconvinced that the number of injuries incurred gave GM actual knowledge that a hazard warranting safety shoes existed.  According to Derby, GM's safety director, during the 2 1/2 years before the inspection there had been 3 foot injuries at GM's Westwood warehouse that could have been prevented by the wearing of safety shoes.  But during that 2 1/2 year period, 150 employees had handled nearly 1 1/2 million parts a year.  Even if we accept OSHA official Barnes' testimony that 5 foot injuries could have been prevented, this is an injury rate of 1.33 foot injuries per million parts handled.  In view of this low incidence of injuries, it is understandable that GM's witnesses testified that a foot hazard requiring the wearing of safety shoes was not present at the parts warehouses.   Derby stated that in his judgment the small number of injuries did not warrant a mandatory safety shoe program.  He testified that safety shoes would offer protection beyond what was needed in the parts warehouse.  Laurent emphasized GM's attempts to have employees use "picking buggies" to transport auto parts and eliminate the need for employee actions that could cause injuries.

We are also reluctant to attach much importance to the fact that GM encouraged employees to wear safety shoes and made provisions for their purchase through payroll deduction.   An employer's safety recommendations do not establish that such precautions were necessary in order to comply with a standard.  See United States Steel Corp., 82 OSAHRC 62/A2, 10 BNA 2123, 2131, 1982 CCH OSHD 26,297, p. 33,235 (No. 77-3378, 1982).  If employers are not to be dissuaded from taking precautions beyond the minimum regulatory requirements, they must be able to do so free from concern that their efforts will be relied on to establish their knowledge of an alleged hazard.  See S&H Riggers & Erectors v. OSHRC, 659 F.2d at 1284; Diebold, Inc. v. Marshall, 585 F.2d 1327, 1338 (6th Cir. 1978); Cape & Vineyard Division v. OSHRC, 512 F.2d 1148, 1154 (1st Cir. 1975). Accordingly, we conclude that the Secretary failed to establish that GM had actual knowledge of a hazard requiring safety shoes.

We also find that the Secretary failed to establish that a reasonable person would have recognized a hazard warranting the use of safety shoes at GM's parts warehouses.  The incidence of foot injuries was not such as to have led a reasonable man to differ with GM's conclusion that conditions at its warehouses required, at most, that employees wear leather shoes.  Perhaps the most revealing evidence on the point is the practice of those persons most clearly familiar with the industry--the employees.  See Haysite, Div. of Synthane-Taylor, 84 OSAHRC __/__, 11 BNA OSHC 1967, 1984 CCH OSHD 26,917 (No. 79-407, 1984); Owens-Corning, 7 BNA OSHC at 1295, 1979 CCH OSHD at p. 28,492.  Although Jackson, who had worked at the Chamblee plant for 23 years, testified that the unloading of pallets and trucks presented a danger of things falling on his feet, he chose to continue wearing leather shoes despite the payroll deduction plan.   None of the 6 employees from the Westwood warehouse who suffered foot injuries had been wearing safety shoes when they were injured.  Four employees who had been injured testified.  Two wore safety shoes after the injury, but one of them did so only in the winter.  Of the total of 175 employees at the two warehouses, most did not wear safety shoes though they had been encouraged to do so.  Thus, substantial numbers of the employees who experienced the conditions at the parts warehouses on a daily basis chose not to wear safety shoes even though they were encouraged to do so by their employer and the shoes were made available at a discount.

We also consider it relevant that the Secretary failed to establish that it was customary in the auto parts warehousing industry to require that safety shoes be worn.   His witnesses on this point had, at most, a passing familiarity with auto parts warehouses.  OSHA official Barnes had at one point visited small-scale parts warehouses.  He had no first-hand experience of operations
like GM's.  The warehouses he was familiar with generally dealt with much larger objects than those moved by GM's employees. Ellison had never visited GM's parts warehouse or any other auto parts warehouses.  She was able to testify only to what was required at the hinge manufacturing warehouse she managed, and she could not explain why safety shoes were required.  Neither Barnes' nor Ellison's testimony aids us in determining what the practice in the industry is.  The only authoritative testimony on industry custom was given by GM's safety professionals, Derby and Laurent.  They testified without rebuttal that the custom in the automotive parts warehouse industry was to encourage but not require the wearing of safety shoes.  Industry custom therefore suggests that a reasonable person familiar with the circumstances would not recognize a hazard requiring the wearing of safety shoes in the parts warehouses.  Thus, we conclude that the Secretary has failed to establish that a reasonable person familiar with the circumstances at GM's two parts warehouses would recognize a hazard requiring the wearing of safety shoes.[[4]]

Accordingly, the judge's decisions are reversed.  In Docket No. 78-1443, item 2 of citation 2 is vacated.  In Docket No. 79-4478, item 1 of citation 1 is vacated.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED:  JUN 29 1984

CLEARY, Commissioner, dissenting:

I must dissent from my colleagues' disposition of these two consolidated cases.  In my view, the majority opinion is not only contrary to Commission precedent, but also runs afoul of several of the most basic tenets of occupational safety and health law.

I.
The majority concludes that in both cases the evidence fails to establish either that GM had actual knowledge of the need to require safety shoes, or that a reasonable person familiar with the circumstances of these cases would recognize a hazard warranting the use of safety shoes.  An examination of the legal and factual bases for their conclusions, however, reveal numerous fundamental errors.

First, they find that the incidence of injuries was too low to warrant a mandatory safety shoe program.  The majority notes, for example, that over a 2-1/2 year period at GM's Westwood warehouse, the injury rate was 1.33 foot injuries per million parts handled.

Implicit in such a conclusion is that before actual or constructive knowledge of the need to require safety shoes at GM warehouses could be established, there would have to be more accidents.  Such an approach flagrantly violates the two primary tenets of the Act.  First, "[t]he keystone of the Act...is preventability."   Brennan v. OSHRC (Underhill Construction Corp.), 513 F.2d 1032, 1039 (2d Cir. 1975).  Second, "[o]ne purpose of the Act is to prevent the first accident."  Lee Way Motor Freight, Inc. v. Secretary of Labor, 511 F.2d 864, 870 (10th Cir. 1975); see also Brennan v. Butler Lime and Cement Co., 520 F.2d 1011 (7th Cir. 1975). Thus, actual injury is not a prerequisite to establishing a violation.  Lee Way Motor Freight v. Secretary of Labor, supra; Haysite Division of Synthane-Taylor, 84 OSAHRC ____ , 11 BNA OSHC 1967, 1984 CCH OSHD (No. 79-407, 1984) (Cleary, dissenting).  Indeed, the Act does not establish as a sine qua non any specific number of accidents or injury rate.  Accordingly, reliance on the allegedly low incidence of injury is misplaced.  Ryder Truck Lines v. Brennan, 497 F.2d 230 (5th Cir. 1974).

Moreover, I would observe that my colleagues' conclusion that the injury rates were low is contrary to the facts.  While the majority would base an injury rate on the number of parts handled, I suggest that the purposes of the Act would be better served by focusing on employees rather than things.  Thus, in the Westwood warehouse there were six foot injuries in a 2-1/2 year period, or 2.4 foot injuries per year.  At the Chamblee warehouse, there were 12 foot injuries over an eight-year period, or 1.5 foot injuries per year. Moreover, the Chamblee warehouse employed only 25 persons at any given time.   Thus, approximately six percent of the Chamblee employees could be expected to suffer foot injuries in any given year.  In both cases, the incidence of foot injuries was significant and should have warned any reasonable person of the need to inquire safety shoes.

Second, my colleagues make much of the fact that the employees who had actually experienced the conditions at the warehouse on a daily basis chose not to wear safety shoes even though they were encouraged to do so by their employer and the shoes were made available at a discount.  The majority focuses on the testimony of Jerry Jackson, who, despite having worked at the Chamblee plant for 23 years, and recognizing the danger of things falling on his feet, chose not to wear safety shoes.  The practice of these employees not to wear safety shoes, we are told, is compelling evidence that a reasonable person familiar with the industry would not recognize the need for safety shoes.

My colleagues totally mischaracterize Jackson's testimony.  In fact, Jackson's testimony, if anything, establishes that he recognized the need for safety shoes.   For example, after indicating areas in the warehouse where he believed safety shoes are warranted, Jackson testified as follows:

Q.  . . . If you feel that more protection is warranted in those areas and you've read that safety shoes may be purchased through payroll deduction at the employer's cost, why did you not purchase shoes when you were performing those functions?

A. Well, I really -- I can't -- I don't know.  I guess I don't have too much respect for my feet, but I've always wore these and they didn't require anymore.  So, I guess I'm like a lot of other people, just didn't do it.

(Emphasis added)

The testimony clearly establishes that Jackson recognized a need for safety shoes.  His failure to wear them was not attributed to a lack of a hazard, but rather to a lack of "respect for my feet."  Jackson's failure to wear safety shoes no more shows a lack of a hazard presented to his feet by falling objects than the failure of millions of Americans to wear safety belts establishes a lack of a hazard inherent in driving a car.

I would also note that the majority's reliance on the failure of employees to wear safety shoes is misplaced in that it improperly shifts the burden of compliance on employees.  It has long been established that the entire thrust of the Act is to place primary responsibility for safety in the workplace upon the employer.  Atlantic & Gulf Stevedores, 534 F.2d 541 (3d Cir. 1976); Brennan v. O.S.H.R.C. & Gerosa, Inc., 491 F.2d 1340 (2d Cir. 1974).  If anything, Jackson's testimony underscores the wisdom of that principle.

My colleagues also refuse to consider the fact that GM encouraged employees to wear safety shoes and instituted a payroll deduction and discount plan to facilitate their purchase as evidence that GM had actual knowledge of the hazard.  They base their refusal on the grounds that 1) an employer's safety recommendations do not establish that such precautions were necessary in order to comply with a standard, and 2) if employers are not to be dissuaded from taking precautions beyond the minimum regulatory requirements, they must be able to do so free from concern that their efforts will be relied on to establish their knowledge of an alleged hazard.

The majority fails to recognize, however, that, generally, and employer's own practices regarding the use of protective equipment are relevant.  Cape & Vineyard Division v. OSHRC, 512 F.2d 1148 (1st Cir. 1975); Owens-Corning Fiberglas Corp., 79 OSAHRC 26/D6, 7 BNA OSHC 1291, 1979 CCH OSHD 23,509 (No. 76-4990, 1979) aff'd, 659 F.2d 1285 (5th Cir. 1981).  Any reluctance to use such evidence has occurred either when the employer's practice constituted the sole evidence against it, Diebold, Inc. v. Marshall, 585 F.2d 1327 (6th Cir. 1978); United States Steel Corp., 82 OSAHRC 62/A2, 10 BNA OSHC 2123, 1982 CCH OSHD 26,297 (No. 77-3378, 1982); or where the alleged safety rule was so vague that it was subject to varying interpretations. Cape & Vineyard Division v. OSHRC, supra.  (General requirement that sufficient protective covering be used where work is actually being done close to live wire not sufficiently specific to establish recognition of electrocution hazard in situation at issue.) Neither exception is applicable here.  From the size and weight of the objects and the history of injuries to the testimony of employees and experts, the record is replete with evidence establishing the need for safety shoes.  Far from standing alone, GM's encouragement of its employees to wear safety shoes is but one link in a long chain of evidence establishing actual knowledge of the need to require safety shoes.  Moreover, rather than being ambiguous, GM's policy is specifically geared to the protection of employee feet from the hazard of falling auto parts that exist at the warehouses.

My colleagues' next fundamental error occurs in their undue focus on the customs and practices of the auto warehouse industry.  It has long been held that while relevant in determining whether a reasonable person would perceive a hazard, industry custom and practice is not dispositive.  Consolidated Rail Corp., 82 OSAHRC 24/F7, 10 BNA OSHC 1564, 1982 CCH OSHD 26,046 (Nos. 78-1504 & 78-1779, 1982), appeal dismissed, No. 82-3301, (3d Cir., July 22, 1983); Allegheny Airlines, Inc., 81 OSAHRC 37/A14, 9 BNA OSHC 1623, 1981 CCH OSHD 25,339 (No. 14291, 1981); Owens-Corning Fiberglas Corp., supra.  Where industry practice fails to take reasonable precautions against hazards generally known in the industry, the employer may properly be held to a standard higher than that of actual practice.  Voegele Co. v. OSHRC, 625 F.2d 1075 (3d Cir. 1980); Cape & Vineyard Division v. OSHRC, supra.   Any other standard would allow an entire industry to avoid liability by maintaining inadequate safety measures.  Voegele Co. v. OSHRC, supra.

II.
In Docket No. 78-1443, the evidence establishes that at its parts warehouse in Westwood, Massachusetts, GM employs 150 people in the handling of auto parts weighing from a few ounces to nearly 200 pounds.  The employees handled up to 500 parts a day including fenders (weighing 35 to 50 pounds), wheel rims (5 to 6 pounds), intake manifolds (10 to 40 pounds), hood panels (80 to 125 pounds), brake drums (up to 78 pounds), and flywheels (8 to 50 pounds).  Ninety-five percent of the parts were moved by hand.  Many of the parts were greasy and oily.  Forklifts, weighing 2 to 2-1/2 tons, also were used to move pallets and racks loaded with parts.  These loads ranged from 500 to 1,000 pounds.  On occasion, items have fallen from the pallets or racks.

During 1976 and 1977, GM employees suffered six foot injuries.  Five of these injuries were caused by dropped or fallen auto parts.  Three of these injuries resulted in fractures.  The sixth injury was caused by a forklift running over an employee's foot.

Despite these injuries, GM never required its employees to wear safety shoes.   Respondent did offer its employees a payroll deduction plan which enabled them to purchase safety shoes at a substantial discount.  Approximately 90 percent of the employees who handled parts did not wear safety shoes.  Moreover, general practice allowed employees to wear sneakers and canvas shoes from Memorial Day to Labor Day, and leather shoes thereafter.

Docket No. 79-4478 involves another auto parts warehouse, operated by Respondent in Chamblee, Georgia.  Approximately 25 employees, called "checkers," loaded and unloaded auto parts from trucks and removed them from stacks in the warehouse.   The weight of the parts ranged from a few ounces to over 100 pounds.  The "checkers" had the option of using forklifts or other lifting devices to assist them with the heaviest items.

Between 1971 and August 6, 1979, Respondent's employees had 12 foot injuries, including four fractures and four contusions which resulted in lost workdays.  Nevertheless, Respondent did not require its employees to wear safety shoes.  Rather, as in the Westwood, Massachusetts warehouse, GM instituted a payroll deduction plan where employees could purchase safety shoes at a discount.  Respondent's safety manual prohibited the wearing of tennis shoes, although employees were occasionally known to wear them.

It has been firmly established that a hazardous condition requiring the use of personal protective equipment exists under 1910.132(a) if a reasonable person familiar with the circumstances surrounding an allegedly hazardous condition, including any facts unique to a particular industry, would recognize a hazard warranting the use of personal protective equipment.  Consolidated Rail Corp., supra; Allegheny Airlines, Inc., supra; Owens-Corning Fiberglas Corp., supra.   Although industry custom and practice will aid in determining whether a reasonable person familiar with the circumstances and with any facts unique to the industry would perceive a hazard, they are not necessarily dispositive.  Consolidated Rail Corp., supra; Allegheny Airlines, Inc., supra; Owens-Corning Fiberglas Corp., supra.

In my view, the evidence clearly establishes a failure to comply with 1910.132(a) at both warehouses.  Employees at both sites were required to move auto parts of substantial size and bulk.  In both cases these parts often fell.  At the Westwood warehouse the parts were often greasy or oily, thereby increasing the danger of employees dropping loads.  OSHA Official Barnes, a safety engineer who had been involved in material handling for 30 years, testified that safety shoes should have been required at the Westwood warehouse.  Moreover, the record establishes that a substantial number of foot injuries have occurred at both sites. Clearly, Respondent's "substantial shoe" requirement, which was not fully enforced in either warehouse, was not sufficient to prevent these injuries.  The evidence also establishes that several of the foot injuries could have been prevented by safety shoes. While safety shoes may not have prevented all the injuries, the additional protection afforded by safety shoes might have reduced the degree of damage in those instances where injury was inevitable.  The overwhelming preponderance of the evidence establishes
that a reasonable person familiar with these circumstances would have recognized the need for a mandatory safety shoe program.

The evidence clearly establishes the existence of a hazard.  Numerous injuries, employee testimony, work process, and expert testimony of persons familiar with material handling plants all have indicated that safety shoes should be worn.  If, as the majority asserts, the auto parts warehousing industry does not customarily require safety shoes, the law and the facts mandate that those customs must change.


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FOOTNOTES:

[[1]] Because they present the same question of law on nearly identical facts, and involve the same employer, we consolidate these cases for decision under Commission Rule 9, 29 C.F.R. 2200.9.

[[2]] 29 C.F.R. 1910.132(a) provides:

1910.132 General requirements.
(a) Application.  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 processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.

[[3]] Class 75 safety toe footwear must be able to withstand 2500 pounds of compression and 75 foot-pounds of impact.  See ANSI Z41.1-1967, USA Standard for Men's Safety Toe Footwear 8.

[[4]] In a footnote in his brief in Docket No. 79-4478, the Secretary requests the Commission to take official notice of statistics in Bureau of Labor Statistics, Dep't of Labor, Rep. No. 626, Accidents Involving Foot Injuries 5 (1981).  He contends that the statistics demonstrate that significant numbers of foot injuries occur from falling metal objects generally and from falling auto parts in particular.  GM opposes the Secretary's request on the grounds that the statistics are not appropriate for judicial notice.  Inasmuch as the document would not affect any of the conclusions we have reached with regard to the Secretary's case, it is unnecessary to decide whether to take official notice of it.  The report states that a certain number of foot injuries were recorded in a two-month period in 1979 and that 2% of these involved falling auto parts.  However, the document itself contains a warning against using the data as if it were representative of "the country as a whole." Id. at 1. Moreover, the document does not purport to give injury figures for auto parts warehouses, nor does it provide any details about the circumstances of the injuries received from falling auto parts.