MAHER DISTRIBUTION CENTER
OSHRC Docket No. 981
Occupational Safety and Health Review Commission
October 25, 1973
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: VAN NAMEE
OPINION:
VAN NAMEE, COMMISSIONER: This matter is before the Commission in accordance with my order directing review of a decision by Judge Jerome C. Ditore. Judge Ditore concluded that Respondent committed a serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq. ) by violating the standard at 29 CFR 1910.178(m)(9). The Judge assessed a penalty of $700.
We have reviewed the record and find no prejudicial error therein.
Accordingly, it is ORDERED that the Judge's decision be and the same is hereby affirmed.
CONCURBY: MORAN
CONCUR:
MORAN, CHAIRMAN, concurring: I concur in this disposition because respondent admitted the occurrence of the violation. Since respondent did not raise any question respecting the coverage, application or interpretation of 29 CFR 1910.178(m)(9), I take no position on such issues.
[The Judge's decision referred to herein follows]
DITORE, JUDGE, OSAHRC: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereinafter called the Act), contesting a Citation for a serious violation issued by the Complainant against Respondent under the authority vested in Complainant by Section 9(a) of the Act.
The Citation alleges that as the result of the inspection of a workplace under the ownership, operation or control of the Respondent, located at Building 268, Port Newark, New Jersey, the Respondent has violated Section 5(a)(2) of the Act by failing to comply with a certain occupational safety and health standard promulgated by the Secretary of Labor pursuant to Section 6 thereof.
The Citation, which was issued on May 15, 1972, alleges that the serious violation resulted from Respondent's failure to comply with a standard promulgated by the Secretary by publication in the Federal Register on April 27, 1971 (36 FR 10616 (1971)), and codified in 29 CFR 1910.178(m)(9). The description of the alleged violation set forth in the Citation states:
Section B, East End. Building 268. Employee operating forklift truck No. 1632 which was not provided with an overhead guard.
The standard as promulgated by the Secretary is as follows:
(m) Truck Operations. . . .
(9) An overhead guard shall be used as protection against falling objects. It should be noted that an overhead guard is intended to offer protection from the impact of small packages, boxes, bagged material, etc., representative of the job application, but not to withstand the impact of a falling capacity load.
Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, the Respondent was notified by letter dated May 15, 1972, from Thomas W. Fullam, Jr., Area Director of the New Jersey Area, that the Occupational Safety and Health Administration, U.S. Department of Labor proposed to assess a penalty for the alleged serious violation in the amount of $700.
Simultaneously with the issuance of the Citation for a serious violation, Respondent received a Citation for six non-serious violations and a Notification of Proposed Penalty totaling $175, which Respondent did not contest (Complaint and Answer).
After Respondent contested the Citation for a serious violation, and a complaint and answer had been filed by the parties, the case came on for a hearing at New York, New York, on October 20, 1972.
ISSUES
1. Whether Respondent is responsible for the violation of 29 CFR 1910.178(m)(9) by one of its supervisory employees.
2. If Respondent is responsible, whether the penalty proposed is proper and reasonable.
STATEMENT OF THE EVIDENCE
Respondent, Maher Distribution Center, is a New Jersey corporation engaged in the business of operating warehouses for receiving and delivering waterborne cargoes in foreign and interstate commerce, at its facilities in Port Newark, New Jersey (T. 5, 72). n1
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n1 Reference key: T-refers to transcript pages of trial minutes.
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On May 3, 1972, in the course of Respondent's business, crates of motorcycles were unloaded from trucks and stored in Section C of Building 268 (T. 18, 37, 108-109). Building 268 is a large warehouse which is divided into Sections A, B and C. This building is under the immediate control and responsibility of Anthony Cordero, Respondent's work supervisor or "header" (T. 18, 116, 124). Cordero is also responsible for the work assignments and operations of Respondent's employees in this building (T. 8-9, 105, 116).
THE EVENTS OF MAY 4, 1972
On the morning of May 4, 1972, Harold Gardner, an employee of Respondent, reported to Cordero for his work assignment (T. 5, 10, 11, 22, 23). Cordero assigned Gardner to move motorcycles crates from Section C to Section B. The crates were to be transported two at a time on a forklift truck, and stacked four crates high. Each crate weighed approximately five hundred pounds (T. 12, 22; see Complainant's Exhibit C-2, T. 30, 90-92).
Cordero directed Gardner to get a forklift truck. Gardner found one with an overhead guard but it was out of fuel. Directed by Cordero to get another forklift truck, Gardner returned with forklift truck, No. 1632, which was not equipped with an overhead guard (T. 11, 12, 22-23, 50, 110). Cordero permitted Gardner to use this truck but cautioned him to use it only for transporting crates to Section C where another employee, Sam Gault, would stack them (T. 12-13, 15). Cordero said to Gardner: "If you are going to work with that machine keep them down [motorcycles crates] and let Sam put them away [stack the crates]" (T. 24). Cordero observed Gardner make two trips with this truck. On each trip Gardner's truck carried two crates, one on top of the other. The crates, when the forkblades of the truck were in the lowest position for surface travel, reached to the height of the boom of truck (T. 15).
About fifteen minutes after beginning work, Gardner, in attempting to stack his second load of crates, raised the forkblades of his truck which in turn elevated the uppermost of the two crates above the boom of the truck. This crate fell on Gardner. The lower crate remained on the raised forkblades (Complainant's Exhibit C-1, T. 30; T. 16, 24, 36, 38, 90-92). Gardner died of his injuries two days later (T. 18, 113).
As a result of this fatality, a compliance officer of the United States Occupational Safety and Health Administration inspected Respondent's work site. On the basis of this inspection, Complainant issued to Respondent a Citation for a serious violation of 29 CFR 1910.178(m)(9) in that an employee of Respondent operated a forklift truck which was not provided with an overhead guard (T. 44-48, 49-51, 52).
The alleged violation was deemed to be serious because of the substantial probability that the operation of a forklift truck without an overhead guard in Respondent's work could result in death or serious physical harm (T. 52, 54).
The penalty of $700 proposed by Complainant for this alleged serious violation was arrived at by taking the maximum unadjusted penalty of $1,000 and reducing it by 20% for no previous history, and 10% for good faith (T. 53-56, 62-64).
FORKLIFT TRUCKS
Respondent owns about 485 forklift trucks, and rents an additional 15. These rented trucks were equipped with overhead guards and were used in Respondent's warehouses. Three or four of the rented trucks, including No. 1632, were assigned to Building 268 (T. 19, 20, 50, 71, 127, 128, 131). Truck No. 1632 was used on the night of May 3, 1972, to unload a truck delivery of motorcycles crates, which inferentially accounts for the removal of its overhead guard (T. 23-24). Ignition keys to all the trucks when unattended are left in the trucks (T. 34).
RESPONDENT'S SAFETY PROGRAM
The credible evidence is more than sufficient to establish that Respondent maintained an active and effective safety program for many years prior to May 4, 1972. This program was not only headed by a safety manager who kept abreast of all safety and health information, regulations and education but was programmed to periodically disseminate this knowledge to Respondent's management staff and employees (T. 68-70, 72, 77-79, 82, 83-85, 87-88). In addition, Respondent assigned each of its supervisory personnel with the responsibility of enforcing Respondent's safety rules, and for the safety of the working operations under his control (T. 86-87, 99, 106-107, 116, 117).
Among Respondent's safety rules, was one which was emphasized repeatedly to all of its employees and supervisory personnel: no forklift trucks were ever to be used without an overhead guard except in two instances. The two exceptions were in the unloading or loading of cargo from, or into, a truck, or the 'tween deck section of a ship (T. 71, 72, 79, 80, 108; see also 29 CFR 1910.178(e)(1)). All of Respondent's employees and supervisory personnel including Cordero, were fully aware of, and alerted to, this safety rule (T. 20-21, 27, 40-42, 71, 79-80, 88-89, 97). Respondent's supervisory employees who testified at trial on Respondent's behalf, without exception stated that they would have stopped Gardner immediately, if they had observed him using truck No. 1632 (T. 75-76, 96, 113, 131).
The affected employees representative, Mr. Joseph Leonard, appeared during the course of the trial. He formally entered his appearance and stated to the court that he appeared as an observer and did not wish to directly participate in the action (T. 125-126).
OPINION
The facts in this case, essentially, are not in dispute. The evidence establishes that Respondent's deceased employee, Harold Gardner, who was an experienced workman, with the knowledge and permission of his immediate supervisor, Anthony Cordero, violated a firm safety rule of Respondent, and of standard 29 CFR 1910.178(m)(9), by using a forklift truck without an overhead guard for stacking motorcycles crates.
The ultimate question to be resolved is whether Respondent was responsible for this violation under the Act. Complainant contends Respondent was responsible because its supervisor, Anthony Cordero, knowingly permitted the unsafe truck to be used by Gardner (Complainant's brief; T. 133). Respondent counters that it was not responsible because the use of the unsafe truck was an isolated and brief action on the part of two employees, Cordero and Gardner, of which it had no knowledge, nor could reasonably have knowledge (Respondent's brief, pp. 8-12; T. 66, 132).
The Act does not require, and the Commission has so stated, that an employer be held to the strict standard of being an absolute guarantor or insurer of the safety of his employees. Secretary of Labor v. Standard Glass Company, Inc., Secretary of Labor v. Mountain States Telephone & Telegraph Company, Secretary of Labor v. Lebanon Lumber Company,
In Lebanon Lumber Company, supra, at page 4, the Commission stated:
The duty of the employer is to furnish his employees with a safe workplace. This necessarily implies that the employer will take whatever steps are necessary to accomplish the job safely. Employees have the concommitant duty to comply with safety standards applicable to their conduct (section 5(b) of the Act), but, "final responsibility for compliance with the requirements of this Act remains with the employer" S. Rep. 91-1282, 91st Cong., 2nd Sess. 11 (1970).
The evidence of record discloses that Respondent maintained an active and effective safety program. Included in this program was the assignment by Respondent to its supervisory personnel the duty, among others, of enforcing Respondent's safety rules and regulations.
Among the safety rules issued by Respondent was one which was repeatedly stressed to all of its employees: No forklift trucks without overhead guards were ever to be used in the operation of Respondent's business except in two situations not here material.
If the evidence merely established that in a brief but isolated space of time, Respondent's experienced employee, Harold Gardner, with the knowledge and acquiescence of another employee, took it upon himself knowingly to violate Respondent's safety rule and the federal standard before either Respondent or its supervisory personnel could with reasonable diligence have known of the violation, this Judge would not hesitate in vacating the Citation herein.
When a safe workplace is provided, neither an employer nor his supervisory personnel are bound to continuously follow or oversee an experienced employee to see that the employee performs his work carefully and uses his employer's equipment properly. See Rodriguez v. United States, 97 F. Supp. 172 (E.D. Pa., 1951), reversed on other grounds, 204 F.2d 508 (3rd Cir., 1953). The facts of this case, however, do not relieve Respondent of liability for the violation.
Anthony Cordero, was not merely another fellow worker, but was one of Respondent's supervisory personnel in charge of Building 268. Cordero not only assigned and supervised the work of Respondent's employees directly under him, but was charged, as were all of Respondent's supervisory personnel, with enforcing Respondent's safety rules.
Not only was Cordero well aware of Respondent's safety rule as to the use of forklift trucks, but he permitted Gardner in his presence to violate that rule and the federal standard. Respondent does not disagree with this view of the evidence but contends that it cannot be charged with, and be responsible for, Cordero's breach of its safety rule, and the federal standard, because it had no knowledge of Cordero's improper action, and could not with reasonable diligence have acquired that knowledge within the brief time that elapsed (Respondent's brief p. 10).
Under the Act, as well as under the Common Law, the duty of an employer to furnish a safe working place for his employees is positive, continuing and non-delegable. This does not imply that an employer cannot discharge this duty by assigning others to perform it. What is meant is that an employer cannot escape responsibility if the person who carries out or performs the duty does so improperly. Nor does it make any difference that the person who is so assigned is drawn from the ranks of labor rather than from management.
Cordero controlled the work of Respondent's employees, and was charged with enforcing Respondent's safety rules. In such a capacity, Cordero was a representative of Respondent carrying out Respondent's non-delegable duty of providing his employees with a safe place to work. See Holliday v. Fulton Band Mill, 142 F.2d 1006.
In the course and scope of his duties, Cordero permitted Gardner to utilize a forbidden method of work in Respondent's business of warehousing cargoes. Cordero's knowledge of the violation of Respondent's work rule was Respondent's knowledge. To hold otherwise would permit Respondent to divest itself of a non-delegable duty under the Act by shifting this duty to a supervisory employee. To allow this would, in substantial effect, defeat the very purpose of the Act. Respondent had knowledge of, and is responsible for, the violation of 29 CFR 1910.178(m)(9).
The record further discloses that Respondent permits the ignition keys of its unattended forklift trucks to remain in the trucks. Removal of these keys, with custody and control of them by a supervisor, might well prevent employees who are so disposed, from utilizing unsafe forklift trucks (See: 29 CFR 1910.178(m)(5)).
The violation was a serious one. The safety standard was promulgated to prevent the very type of grievous and fatal harm that occurred here. Respondent agrees that the hazard created by the use of a forklift truck without an overhead guard, is serious. It was for this reason that Respondent promulgated and stressed its safety rule as to forklift trucks.
Under the circumstances and facts of this case, this Judge finds that a penalty of $700 is proper and reasonable.
FINDINGS OF FACT
The credible evidence and the record as a whole establishes substantial proof of the following specific findings:
1. Respondent, Maher Distribution Center, is a corporation organized under the laws of the State of New Jersey, and maintains an office and place of business in Building 107, Morse Street, Port Newark, New Jersey (T. 5).
2. At all times material herein, Respondent was engaged in the business of operating a warehouse for the storage of cargo moving in foreign and interstate commerce (T. 5, 72).
3. Respondent employed at its job site in Building 268, Port Newark, New Jersey, employees who were members of The Marine Terminal and Warehousemen's Local No. 1478-2, International Longshoreman's Association, 414 Chestnut Street, Newark, New Jersey (Complaint and Answer).
4. At all times material herein, Respondent controlled and operated at its work site a rented forklift truck, numbered 1632 (T. 5-6, 50).
5. Respondent maintained an active and knowledgeable safety program in carrying out its duty of providing a safe work place for its employees (T. 68-70, 72, 77-79, 82, 83-88, 99, 106-107, 116, 117).
6. Respondent asserted and emphasized in its safety program, to all of its employees, that no forklift truck without an overhead guard was to be used in Respondent's work operations except in two situations not here relevant (T. 71, 72, 79, 80, 108).
7. Anthony Cordero was in charge of the work assignments and operations of Respondent's employees in Building 268. Mr. Cordero was also assigned the duty of carrying out and enforcing all of Respondent's safety work rules (T. 8-9, 86-87, 99, 105-107, 116, 117).
8. On May 4, 1972, Respondent's employee Harold Gardner, was assigned by Cordero to move motorcycles crates from one section of Building 268 to another section (T. 12, 22).
9. To perform this task, Cordero directed Gardner to use a forklift truck which was equipped with an overhead guard but found to be without fuel (T. 11, 22).
10. Cordero directed Gardner to get another forklift truck. Gardner reported back with a rented forklift truck, No. 1632, which was not equipped with an overhead guard (T. 11, 12).
11. Cordero, contrary to Respondent's safety work rule, permitted Gardner to use this unsafe truck with a caution that Gardner was not to stack any crates with this machine (T. 12-13, 15, 24, 97, 99, 116, 117).
12. Gardner did attempt to stack two crates upon two other crates already in place. To accomplish this operation, Gardner raised the forklift blades of his truck which elevated the uppermost of the two crates above the boom of the forklift truck. This top crate weighed approximately five hundred pounds. It fell on Gardner. Gardner died two days later of his injuries (Complainant's Exh. C-1, T. 30; T. 16, 18, 24, 36, 38, 90-92, 113).
13. As a result of this fatality an inspection of Respondent's work site was made by a compliance officer of the United States Occupational Safety and Health Administration on May 8, 1972 (T. 44-45).
14. Based upon this inspection, a citation for a serious violation of 29 CFR 1910.178(m)(9) was issued against Respondent by Complainant on May 15, 1972 (T. 45-48, 49-51, 52).
15. Respondent timely contested this citation for a serious violation and complied with all posting requirements (T. 6-7).
16. Respondent's duty to provide a safe work place for its employees is non-delegable (See, Opinion).
17. Anthony Cordero in his capacity as a work supervisor and as an enforcer of Respondent's safety rules, was a representative of Respondent and not a mere fellow employee (T. 8-9, 18, 97-99, 105, 116, 117, 124; see Opinion).
18. Anthony Cordero's knowledge of Gardner's use of an unsafe machine, in violation of Respondent's safety rule, and of 29 CFR 1910.178(m)(9), was Respondent's knowledge (T. 12-13, 15, 24, 97-98; see Opinion).
19. The violation was serious in that the failure to provide an overhead guard for truck No. 1632, created a substantial probability that death or serious physical harm could result, and in this case did result (T. 52, 54, 71-72).
20. The proposed penalty was arrived at by assessing the maximum penalty of $1,000 and adjusting it to $700, after allowing a 20% credit for no prior history, and a 10% credit for good faith (T. 52-57, 64).
21. Under the facts of this case, the penalty of $700 is found to be proper and reasonable (See, Opinion).
CONCLUSIONS OF LAW
1. The Respondent is, and at all times material herein was, engaged in a business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970.
2. The Occupational Safety and Health Review Commission has jurisdiction over the subject matter and parties to this action.
3. Respondent was in violation of standard 29 CFR 1910.178(m)(9) on May 4, 1972.
4. The violation of 29 CFR 1910.178(m)(9) was a serious one within the meaning of the Act.
5. A penalty of $700 for the serious violation of 29 CFR 1910.178(m)(9) is proper.
ORDER
Due deliberation having been had on the whole record, it is hereby
ORDERED that the Citation for a serious violation of 29 CFR 1910.178(m)(9) issued on May 15, 1972, by Complainant against Respondent is affirmed; it is further
ORDERED that a penalty of $700 is assessed for this violation.