SECRETARY OF LABOR,
Complainant,

v.

UNITED PARCEL SERVICE,
Respondent.

OSHRC Docket No. 82-0815

DECISION

Before:  BUCKLEY, Chairman; WALL, Commissioner.
BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. § 661(j), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 ("the Act").  The Commission is an adjudicatory agency, independent of the Occupational Safety and Health Administration of the Department of Labor.  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).

The issues on review are whether Administrative Law Judge Foster F. Furcolo properly granted the Secretary's motion for summary judgment and denied United Parcel Service's cross motion for summary judgment, and, if neither motion is granted what disposition is appropriate.  We set aside the judge's order granting the Secretary's motion and remand for further proceedings.

In March of 1981, in docket no. 81-1162, United Parcel was cited for violating 29 C.F.R. 1910.132(a)[[1]] at its sorting and distribution center or hub in Hartford, Connecticut.  The citation stated that:

29 C.F.R.1910.132(a):  Protective equipment was not used when necessary whenever hazards capable of causing injury and impairment were encountered:

* * *

(b) Throughout the plant:  Not all employees, including (but not limited to) loaders, unloaders, sorters, pickers, and rewrappers, who regularly handle heavy parcels, were wearing foot protection in accordance with 1910.136.[[2]]

United Parcel timely contested the citation, but in a letter to the judge dated February 8, 1982, it withdrew its notice of contest.   In the letter withdrawing the contest, United Parcel stated that it "in no way concedes that it was guilty of any of the violations alleged in the citations or that the citations were properly issued by OSHA."  Administrative Law Judge Richard DeBenedetto granted United Parcel's request to withdraw its notice of contest in March 1982.  Subsequently, Judge DeBenedetto's order became a final order of the Commission under section 12(j) of the Act when no Commissioner directed that it be reviewed.

In July 1982, the Secretary reinspected the Hartford hub, and found that the employees referred to in the citation were not wearing safety shoes.  He issued a failure-to-abate notification for United Parcel's failure to comply with sections 1910.132(a) and 1910.136. He proposed a penalty of $1,000.

The Secretary subsequently moved for summary judgment on the grounds that although the section 1910.132(a) citation in docket no. 81-1162 had become a final order of the Commission, United Parcel had not required the use of safety shoes.  United Parcel filed a cross-motion for summary judgment.  It provided affidavits and documents regarding the implementation of a "sturdy shoe" program at its Hartford hub, whereby certain employees who handled iron and irregular objects were required to wear safety shoes, and other employees were required to wear sturdy shoes.  United Parcel contended this program abated the condition for which it received the section 1910.132(a) citation in docket no. 81-1162.

Administrative Law Judge Foster F. Furcolo granted the Secretary's motion and denied United Parcel's motion.  He concluded that there was "no question" that United Parcel failed to comply with the underlying citation that became the Commission's final order in docket no. 81-1162.  In drawing this conclusion, Judge Furcolo found that UPS had been "cited under 29 CFR 1910.132(a) for failing to require that 'all employees' wear steel-toed shoes . . . "

Before the Commission, United Parcel renews the arguments it made before the judge.  It also maintains that its withdrawal of its notice of contest in docket no. 81-1162 does not collaterally estop it from arguing that sturdy work shoes constitute compliance with section 1910.132(a).  It relies an York Metal Finishing Co., 74 OSAHRC 19/D2, 1 BNA OSHC 1655, 1973-74 CCH OSHD ¶ 17,633 (No. 245, 1974), where the Commission held that employers in failure-to-abate actions may contest the existence of a violation, either at the time of the original citation or at the time of the reinspection giving rise to the failure-to-abate citation, if the original citation had not been contested.  United Parcel also notes that it had not yet implemented its sturdy shoe program at the time of the inspection in docket no. 81-1162.   It claims therefore that in that litigation it could not have argued that it was in compliance with section 1910.132(a), and had no choice but to withdraw its notice of contest.

The Secretary contends that United Parcel's withdrawal of its notice of contest in docket no. 81-1162 collaterally estops it from challenging the merits of that citation because it had an opportunity to fully litigate the citation.  He maintains that the Commission's decision in York Metal is contrary to the language and intent of the Act and, in any event, does not apply if the underlying citation had been contested and the contest was withdrawn.  He also argues that United Parcel cannot claim that its sturdy workshoe program constituted abatement when the citation clearly put it on notice that abatement would require the use of safety-toe footwear as it is described in ANSI Z41.1-1967.

The issue here is whether United Parcel failed to abate as ordered by the citation in docket no. 81-1162.  The citation did not require that safety-toe footwear be worn in all circumstances; though it cited section 1910.136, that standard does not state when safety-toe footwear must be worn.   Instead, the citation's abatement requirement was predicated on the existence--in the language of both the citation and section 1910.132(a)--of "hazards capable of causing injury and impairment."  United Parcel could therefore have met its abatement obligation under the citation if it had eliminated this underlying condition, just as an employer required by a Commission final order under section 1910.95(b)(1) to ensure that employees wear earplugs could avoid the requirement by instead reducing noise levels or employee exposure time.  See Savina Home Industries, 77 OSAHRC 5/D5, 4 BNA OSHC 1956, 1976-77 OSHD ¶ 21,469 (No. 12298, 1977)(no failure to abate if employees no longer exposed to cited hazards), aff'd on other grounds, 594 F.2d 1358 (10th Cir. 1979).  Cf. Cyprus Mines Corp., 83 OSAHRC 19/B2, 11 BNA OSHC 1063, 1066, 1983 CCH OSHD ¶ 26,387, p. 33,486 (No. 76-616, 1983)(employer may abate a violation in any appropriate way).  A program in which some employees wear sturdy shoes rather than safety-toe footwear has been found adequate to eliminate the hazard in workplaces similar to United Parcel's.  General Motors Corp., GM Parts Division, 84 OSAHRC 23/A2, 11 BNA OSHC 2062, 1984 CCH OSHD ¶ 26,691 (Nos. 78-1443, 79-4478), aff'd, 764 F.2d 32 (1st Cir. 1985); Haysite Division of Synthane Taylor, 84 OSAHRC 18/A2, 11 BNA OSHC 1967, 1969, 1984 CCH OSHD ¶ 26,917, p. 34,478 (No. 79-407, 1984)(use of sturdy work shoes tends to negate inference that hazard of injury to feet recognizable by reasonable man existed); American Airlines v. Secretary, 587 F.2d 38, 41 (2nd Cir. 1978); United Parcel Service v. OSHRC, 570 F.2d 806, 812-13 (8th Cir. 1978).

Accordingly, because the judge did not consider whether United Parcel's sturdy shoe program negated the underlying hazards, we find that there is a genuine issue of material fact still in dispute.  We therefore set aside the judge's order granting the Secretary's motion for summary judgment.  We remand to the judge for a hearing to determine whether, at the time of reinspection, the "hazards" cited in docket no. 81-1162 had been abated or continued to exist in light of all the facts, including United Parcel's sturdy shoe program.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED:  October 7, 1986

SECRETARY OF LABOR,
Complainant,

v.

UNITED PARCEL SERVICE,
Respondent

OSHRC DOCKET NO. 82-0815

APPEARANCES:

Michael D. Felsen, Esq., for Complainant

Richard Voigt, Esq., for Respondent

DECISION AND ORDER

This case arose under 29 USC, sec. 651 et seq., of the Occupational Safety and Health Act of 1970 (the Act).  As a result of an inspection by the Occupational Safety and Health Administration (OSHA) of the Respondent's premises on or about July 6, 1982, Citation #1 was issued on or about July 9, 1982, charging the Respondent with the repeated violation of sec. 5A1 of the Act by permitting supervisors to walk, work or ride on overhead conveyors, including moving conveyors, as a common practice to free jammed parcels.

The Respondent was also issued a notification of failure to correct violations for which a citation for violations of the standard at 29 CFR 1910.132(a) had become a final order.

On or about August 2, 1982, the Respondent filed Notice of Contest to Citation #1 and to the Notification of Failure to Correct Violation, and the penalties proposed therefor.

The pertinent sections of the Act and the standards are appended to this decision under appropriate titles.

THE WORKSITE

The worksite is a central sorting facility for packages coming from all sections of the country and going to various destinations.  It houses a maze of conveyors or belts of various colors [red, yellow, brown, blue, orange, purple, pink, etc.], the color-coding relating to the ultimate destinations of the packages carried on the conveyors to outbound trucks.

The conveyors or belts [the terms were used interchangeably by witnesses] were described in detail by Brown, the Respondent's Safety Manager, as follows:  "The belt rides on the steel itself ... The actual gauge of it, I would say, is about 3/16 inch steel, welded to the side supports ... you are walking on that firm steel surface, with the belt on top ... a rubberized surface, so it is a non-slip situation ... a 12 inch side guard on each side ... the belts are 5 feet wide."...Tr. 918-920.  That description of the conveyors or belts was not contradicted or challenged in any way by either party.

With the exception of the "receiving counter belt", the belts or conveyors are 5 feet wide, vary in length from 25 to 200 feet, and run at various heights above the concrete floor of the building ... Tr. 333, 618, 672.  The "receiving counter belt" is 3 feet wide and, as its designation indicates, is the place where incoming parcels are brought by retail customers.  The testimony of the Respondent tended to establish that the "receiving counter belt" was a part-time conveyor that only handled a few hundred parcels a day whereas regular conveyors transported thousands, and that it was not a part of the worksite...Tr. 735, 736, 901-905.  However, the Respondent's jobsite manager (Lane) conceded that it was in the same physical plant as the other belts and that it feeds into the other belts...Tr. 905.

I find that the "receiving counter belt" was included as a "flat belt transfer conveyor" as that term was used in Citation #1.

While some of the conveyors or belts are level for the length of their run, others may be as low as a few feet above the floor in certain places and rising to 25 or 30 feet in others...Tr. 43, 70, 202, 355, 672, 690.  The "low volume" belts carry fewer packages than the "high volume" ones and, in general, are operated at lower heights.  Some of the belts are parallel to each other and, when running at different heights, may be totally or partially under higher belts; while other belts are lateral or transverse to the main ones. There are metal or wood chutes or slides running off some of the belts at various places; and there are belt-supporting structures and catwalks alongside of some areas of some belts.   The edges of all belts have a metal guard or lip or riser some 12 inches high to keep packages from falling off the belt.

Employees with such job descriptions as "loaders", "unloaders", "sorters", and "pickers" work at various places along the belt lines, sorting and diverting packages from one belt to another in routing them to their different destinations; and several supervisors oversee the general operation.  The packages, which are of different sizes and shapes, measure not more than 84 square inches, weigh between 10 to 50 pounds, and number in the thousands, estimates ranging from several hundred an hour to 150,000 a day ... Tr. 92, 224, 954, 957, Exh. R-10, and the Respondent's Answers to Interrogatories 16 and 17.

While package jams occur on all belts, there might be as few as one every three days on a very "low volume" belt to as many as 25 or 30 a day on a "high volume" belt...Tr. 191, 627, 628.  The jams are broken by supervisors.

STIPULATIONS

The Respondent stipulated, and the uncontradicted evidence established, that until about February or March of 1982, it was common practice for supervisors to walk or work on moving conveyors as well as stationary ones.  The parties differed on the practice after that date, the Respondent contending that it thereafter had a strictly enforced rule against walking or working on moving conveyors whereas the Complainant offered testimony tending to establish that supervisors continued to do so.

The parties also agreed that walking or working on moving conveyors was hazardous; but they disagreed as to walking or working on stationary conveyors, the Complainant alleging that that, too, was hazardous while the Respondent maintained it was not.

THE ALLEGATION

The parties also disagreed on exactly what was alleged by the citation and complaint.   They seemed to be in agreement that the citation and complaint alleged that walking or working on moving conveyors was hazardous; but they differed on whether the allegation also included stationary belts.  The citation [and the complaint, which followed its wording] specified "overhead conveyors, including moving conveyors".  In my opinion, the only reasonable interpretation of those words is that the allegation refers to both moving and stationary belts when it says "including" moving conveyors.   That wording would obviously mean that something more than moving belts was referred to - and that could only be stationary ones.  What other explanation can there be for such wording?  Moreover, the uncontradicted testimony of Safety Specialist Pellegrini and Safety Specialist Supervisor Kaletsky tends to establish that such an interpretation was clearly understood in conferences with the Respondent ... Tr. 423, 493-497, 501-504, 539.

I find that both stationary and moving conveyors were alleged in the citation and complaint.  Was it hazardous to walk or work on either?

"RECOGNIZED HAZARD"

In trying to establish that the conveyor industry recognized the hazard of employees working or walking on stationary conveyors or belts, the Complainant relied primarily on the witnesses Pellegrini and Ferris.  The Respondent's main witness to the contrary was Vitek.

Pellegrini, who has had great experience as a professional safety expert, stated that "conveyors in most places of employment...are hazardous.  This is immediately recognized."  And he then gave specific illustrations of how "misuse of a conveyor" was treated at one place of employment.  He also pointed out that, in some 900 inspections, the only place where he had ever seen a person on a conveyor was at the Respondent's jobsite.

Vitek, who had had extensive experience in and knowledge of the conveyor industry, testified that the Respondent's conveyor practices conformed to those followed by the industry.  He gave specific illustrations that tended to show that walking or working on stationary conveyors was not a "recognized hazard".

Ferris' testimony was practically limited to the postal service and, important as that governmental department is, it is not necessarily representative of the entire conveyor industry.  Knowledge of every detail of the postal service does not constitute knowledge of the conveyor industry.  As a result, the question of whether there is a "recognized hazard" must be determined largely by the testimony of Pellegrini and Vitek.

While I was greatly impressed with Pellegrini's qualifications and experience, and he made an excellent witness, the same is true of Vitek.  In that state of the evidence, I cannot find that it has been established that walking or working on conveyors is a "recognized hazard" in the conveyor industry.

THE HAZARD

In the instant case, at first blush the very description of the Respondent's operation seems to lead to the conclusion that it is hazardous for anyone to do any sort of work on even a stationary conveyor that is only 5 feet wide and that slants upward in a short distance from a low of several feet to a high of 25 or 30 feet.  However, as the court said in the Southern Ohio case [649 F(2) 456]: "The fact that serious injury may occur in a fall from a roof is not proof that working on a roof is likely to produce a fall."

Pause is further given when it is noted that there has apparently never been an injury due to a fall from a conveyor or belt at the worksite.  That was the uncontradicted [and, in fact, unchallenged] testimony of all witnesses who testified on that question.  Brown said that was the fact during his 20 years of employment, Lane during his 18 years, Skukowski during his 16 years, and other witnesses during their several years of employment.  That 20 year period of time also included several years of the then usual practice of walking or working on moving conveyors, which are far more dangerous than stationary ones ... Tr. 622, 664, 665, 710, 792, 824, 848, 925, 980, 1054.

While injury records are not conclusive on the presence or absence of hazardous conditions, they are nevertheless a significant factor.   The protection of employees certainly does not have to wait until someone has been hurt; on the other hand, careful consideration should be given before requiring an employer to change a practice that has been accident-free over a long period of time.

STATIONARY CONVEYORS

As far as stationary belts are concerned, there is no basic disagreement about the Complainant's allegation that the Respondent's supervisors walked or worked on them:   both parties have clearly established that it is and has always been customary for supervisors to walk or work on stationary conveyors ... Tr. 20, 79.  However, the witnesses differed on whether that practice is hazardous.

The Complainant's main witnesses on hazard were Safety Specialist Pellegrini, Supervisory Safety Specialist Kaletsky, and the expert Ferris.  All were very experienced and well-qualified in their fields, and they were excellent witnesses.  Each opined it was hazardous to walk or work on stationary belts, and each gave reasons for his belief.  The main reasons were tripping over a package, losing balance, bumping an overhead obstacle, or falling for one cause or another ... Tr. 427-432, 493, 507, 510, 1075-1078.

The Respondent's main witnesses on hazard were supervisors Sheneth, Donovan, Washington, Gibney, Hancock, Llewellyn, Safety Director Brown, Maintenance Manager Skukowski, Hartford Manager Lane, and the expert Vitek.   They all believed that walking or working on stationary conveyors was not hazardous.

I saw no reason to doubt the honesty of any witness's opinion about hazard.  That being so, was one to be preferred over another? While I certainly would accept the expert opinions of Pellegrini, Kaletsky, Ferris, Brown, Skukowski, Lane, and Vitek over those of the "non-expert" supervisors of the Respondent on any question involving expertise, that is not the type of hazard in dispute in the instant case.  Here, no great expertise is required to assess the possible hazard.  It does not involve complicated machinery or highly technical situations but merely concerns tripping or losing balance or falling for some reason that would be as apparent to someone who had worked on conveyors for several years as it would be to the most highly qualified expert.  For that reason, the opinions of the Respondent's supervisors are entitled to at least as much weight as those of the experts.

What was the substance of their testimony?   They all had several years of experience with conveyors or belts, and all concluded that walking or working on a stationary conveyor was not hazardous.  Sheneth said it was "impossible" to fall off the belt ... Tr. 638. Donovan said it was "safe" to walk on ... Tr. 696, 697, 700.  Washington said he didn't see how a person could fall ... Tr. 720, 721. Gibney, Hancock, and Llewellyn all gave similar testimony ... Tr. 791, 824, 843, 848.  There was no contrary opinion expressed by any employee who customarily worked or walked on stationary conveyors.

The determination of whether a hazard existed did not involve any great degree of technical or scientific knowledge but was merely a question of whether an experienced employee might lose his balance or trip or fall from the described conveyor for some reason. From that point of view, the supervisors were more knowledgeable than the "experts", some of whom had never seen anyone breaking a jam on a stationary conveyor or had much personal experience with such conditions.  While the supervisors were not as well-qualified "on paper" as the experts, they had at least as much knowledge of and experience with conveyors in the Respondent's operation as anyone.  Their testimony tended to establish that there was no hazard.

There are four additional factors that weigh heavily in the Respondent's favor.  The first is that, in determining whether there is a hazardous condition, it is important to note that the average employee is not permitted to walk or work on stationary conveyors; the only ones allowed to do so are those who through knowledge, experience, seniority, or for other reason, have attained supervisory positions.

The second is the injury record, which tends to corroborate the Respondent's contention that there is no hazard.

The third is the stability and firmness of the conveyors, as portrayed by Brown, Gibney, and Vitek, who were the only witnesses who testified specifically on the point.  Brown's testimony described the conveyor as a "very stable, non-slip" rubberized surface resting on a steel table 3/16 inch thick without any give in the steel when walked on ... Tr. 918, 191.  Gibney's testimony indicated that the belts were "very sturdy" and had a stability the same as a floor ... Tr. 816.  Vitek said there was no vibration or movement, and the belt was non-skid... Tr. 1025.  Their description of the conveying system was not contradicted or even questioned in any way.

The fourth is that the Complainant has the burden of proof.

In that situation, I find that the Complainant has not sustained the burden of proving that it was hazardous for the Respondent's supervisors to walk or work on stationary conveyors.

MOVING CONVEYORS

As far as moving conveyors are concerned, there can be no question that walking or working on them is hazardous.  The Respondent itself conceded as much, and that the resulting injury could be serious ... Tr. 115-117, 513, Respondent's Answer to Complainant's Interrogatory #5.

Did the Respondent permit its supervisors to walk or work on moving conveyors?  There is marked disagreement of the witnesses in their testimony on that point.

THE COMPLAINANT'S WITNESSES

Several employees of the Respondent testified to specific incidents where named supervisors walked or worked on moving conveyors.  Callahan testified that she saw supervisors Hancock, Goodale, and others on moving belts...Tr. 162-168.  She also said she had seen manager Lane and supervisor Corliss on belts but did not know if they were moving or stationary; and that she knew of only one instance in the last nine months of any supervisor being on a moving belt ... Tr. 166-168, 187.  Flanigan testified that in January, 1983, he saw supervisor Donovan on a moving belt 15 feet high and supervisor Wooley on a moving belt 20-25 feet high... Tr. 210, 214, 216, 222.  Glen Brielman testified that, between October of 1982 and January of 1983, he saw supervisor Goodale and manager Brown on moving belts...Tr. 258-262, 284-287.  Julie Brielman testified that she saw manager Lane on a moving belt on June 23, 1982 ... Tr. 299-302.   Croce testified he saw supervisor Sprona [Spranzo?] on a moving belt in January of 1983 and supervisor Nodgren on one several months before the hearing...Tr. 314-318, 350.  Wurth testified that in November and December of 1982 he saw supervisors Desjardins, Sheneth, and Lane on moving belts...Tr. 353-362, 371.  Fogarty testified that he saw supervisor Spranzo on January 12, 1983, on a moving belt about 18 - 20 feet high ... Tr. 319, 392.  Linares testified that he saw supervisors in December of 1982 on moving belts ... Tr. 399-400L.

In addition to those direct allegations by the Complainant's witnesses, there was also some slight corroboration of their testimony. For example, although the Respondent contended it was "unpreventable misconduct", it did concede that one supervisor [Colavolpe] had walked or worked on a moving conveyor ... Tr. 80, 706, 722, 723. Moreover, there is at least some minimal corroboration of the Complainant's witnesses' testimony that supervisors walked or worked on moving conveyors when both supervisors Sheneth and Washington testified that they had been on top of moving conveyors, even though to only some very slight degree and for the briefest of time ... Tr. 621, 622, 644, 711, 730.

The Respondent also attempted to show that some of the Complainant's witnesses were biased or hostile as members of a union having disagreements with the Respondent, or as employees who had been disciplined by the Respondent.  I did not detect that such feeling [if it existed] had any influence on their testimony... Tr. 177-183, 193-196, 292, 308-310, 395, 400Q.  In fact, the Transcript indicates several instances where witnesses [for example, Callahan, Glen Brielman, Julie Brielman, Flanigan, Murphy] did not hesitate to testify favorably to the Respondent when it would have been just as easy to do otherwise if they had wanted to ... Tr. 166-168, 187, 214, 223, 224, 236, 241, 244-248, 269, 271, 300, 301.

EXHIBITS C12-14

Although I would not accept the statements in Exh. C12-14 alone as sufficient evidence to sustain Citation #1, I do accord those sworn statements some slight corroborative weight tending to establish the allegation that supervisors worked or walked on moving conveyors.   The Respondent did not contradict [or even challenge] any of the statements, and there was no explanation of the failure to do so.

THE RESPONDENT'S WITNESSES

The Respondent's witnesses testified that they never saw anyone on moving conveyors with the sole exception of one supervisor [Colavolpe], who was promptly admonished for it ... Tr. 80, 706, 707, 722.

DISCUSSION

Although there is a clear conflict of testimony between the Complainant's witnesses who testified they saw supervisors on moving belts and the Respondent's witnesses who saw no one, I do not find any of the witnesses unworthy of belief.  A finding that no one was on a moving belt would indicate disbelief of the testimony of witnesses who said someone was there.  On the other hand, a finding that someone was on a moving belt would not indicate disbelief of the testimony of witnesses who said they never saw anyone in that position:  they might simply not have been present or looking at the time.   It is for that reason that I find that [in those cases where there was not an outright testimonial denial by the person named] the Complainant has sustained the burden of proving that supervisors worked or walked on overhead moving conveyors.

ABATEMENT

Any hazard can be quickly and easily abated simply by enforcing the Respondent's rule that no one will be permitted to walk, work, or ride on a moving overhead conveyor.

SUMMARY JUDGMENT

There are separate motions for summary judgment.  As concerns the Notice of Failure to Abate, there is no disagreement about the facts on which it is based.  As summarized in the Respondent's Memorandum on the parties' motions concerning summary judgement:  (1) the Respondent was cited under 29 CFR 1910.132(a) for failing to require that "all employees" wear steel-toed shoes; (2) the Respondent withdrew its Notice of Contest and the Review Commission affirmed the citation; and (3) the Respondent "did not and does not require its employees to wear steel-toed shoes".

The Respondent defended on the ground that, both before and after the instant case, various divisions of OSHA in other states, and also the Hartford, Conn. office, had withdrawn or vacated identical citations based on identical facts; and that the Hartford, Conn. OSHA office should accept the Respondent's position that its program of sturdy work shoes for some employees and steel-toed shoes for others constitutes compliance with the standard at 29 CFR 1910.132(a).

The Respondent's contention is rejected because, in my opinion, the issue here is whether the Respondent failed to abate as ordered by the Review Commission.  There can be no question that the Respondent did fail to comply with that order.  As concerns the Notice of Failure to Abate, the Complainant's motion for Partial Summary Judgment is granted and the Respondent's motion for Partial Summary Judgment is denied.

As concerns the Complainant's oral motion for summary judgment based on the Respondent's withdrawal of its Notice of Contest to that part of Citation #1 alleging that a supervisory employee walked or worked on the "receiving counter conveyor", the Complainant's motion is granted and Citation #1 is affirmed insofar as it alleges that the Respondent permitted a supervisor to work or walk on that stationary conveyor ... Tr. 735, 738, 770-776, 906-909.

AMENDMENT

At the hearing, the Complainant moved to amend the Complaint to include permitting supervisors to walk or work on conveyors up to the date of the hearing.  That motion was granted with the understanding that the Respondent would be granted time to prepare a defense to it... Tr. 128-147.  Following that ruling on February 1, 1983, the hearing continued on February 2, 3, and 4; and was then resumed on May 16, 1983, by agreement of the parties.  The Respondent made no further request concerning the amendment.

FINDINGS OF FACT

Having heard the testimony, observed the witnesses, and examined the exhibits, the following Findings of Fact are made:

1.  At all times concerned, the Respondent regularly received, handled or worked with goods which had moved across state lines.

2.  As concerns Citation #1, the Respondent permitted supervisors to walk or work on stationary and moving conveyors as a common practice to free jammed parcels.

3.  The situation described in paragraph 2 was identical with a similar set of facts alleged against the Respondent involving the same worksite and the same kind of employees several months earlier.

4.  The Respondent had not corrected the violations of the standard at 29 CFR 1910.132(a) as specified in a final order of the Review Commission.

5.  The conditions described in the Notification of Failure to Correct violations exposed the Respondent's employees to sustaining harm because of the hazard of a parcel weighing from 10 to 50 pounds falling on the foot.

6.  The conditions described in Citation #1 exposed the Respondent's employees to sustaining serious or fatal harm because of the hazard of falling from a moving conveyor, but there was no hazard of falling from a stationary conveyor.

7.  One or more officers or supervisory personnel of the Respondent knew of the hazardous conditions described herein and knew that employees were exposed to such hazards.

8.  The Respondent withdrew that part of its Notice of Contest that referred to the "receiving counter belt".

CONCLUSIONS OF LAW

1.  At all times concerned, the Respondent was an employer engaged in a business affecting commerce within the meaning of the Act; and the Occupational Safety and Health Review Commission has jurisdiction over the subject matter and the parties.

2.  At all times concerned, the Respondent knew, or with the exercise of due diligence should have known, of the alleged violations.

3.  On the date in question, the Respondent was not in compliance with section 5A1 as concerns moving conveyors and the stationary "receiving counter belt".

4.  The Complainant has not sustained the burden of proving the Respondent violated section 5A1 as concerns stationary conveyors except for the "receiving counter belt".

5.  The Complainant has sustained the burden of proving that the Respondent failed to correct violations of the standard at 29 CFR 1910.132(a), and the Respondent has violated section 5(a)(2) of the Act.

ORDER

The whole record having been considered, and due consideration having been given to 29 U.S.C. sec. 666(j), it is ordered:

1.  Citation #1 is affirmed as far as it concerns moving conveyors and the stationary "receiving counter belt"; and a penalty of $900 is assessed for the moving conveyors violation and a penalty of $1 for the stationary "receiving counter belt" violation, for a total penalty of $901 for Citation #1.

2.  The Notification of Failure to Abate is affirmed, and an additional penalty of $100 is assessed therefor.

FOSTER FURCOLO
JUDGE, OSHRC

Dated:  September 13, 1983
Boston, Massachusetts

APPENDIX

THE ACT

Section 654 [section 5(a)(1)] Employer "...shall furnish...a place of employment...free from recognized hazards...likely to cause death or serious physical harm to his employees; ..."

Section 654 [section 5(a)(2)] Employer "...shall comply with occupational safety and health standards..."

Section 666 [section 17(a)] "...employer who willfully or repeatedly violates...this Act...may be assessed a civil penalty of not more than $10,000 for each violation."

Section 666 [section 17(b)] "...employer who has received a citation for a serious violation...of this Act ... shall be assessed a civil penalty of up to $1,000 for each such violation."

Section 666 [section 17(j)] "...assess all civil penalties ... giving due consideration to...the size of the business ... gravity of the violation, the good faith of the employer, and the history of previous violations."

Section 666 [section 17(k)] "...a serious violation shall be deemed to exist...if there is a substantial probability that death or serious physical harm could result ... unless the employer did not, and could not ... know of the presence of the violation."

THE STANDARD

29 CFR 1910.132(a):  "Protective equipment ... shall be provided, used, and maintained ... wherever it is necessary by reason of hazards..."

FOOTNOTES:

[[1]] Section 1910.132(a) states:

§ 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.

[[2]] Section 1910.136 states:

§ 1910.136 Occupational foot protection

Safety-toe footwear for employees shall meet the requirements and specifications in American National Standard for Men's Safety-toe Footwear, [ANSI] Z41.1-1967.