ST. JOHNSBURY TRUCKING CO., INC.

OSHRC Docket No. 13222

Occupational Safety and Health Review Commission

January 3, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Albert H. Ross. Reg. Sol., USDOL

Frederick Mandel, for the employer

OPINION:

DECISION

This case is before the Commission pursuant to a sua sponte order for review. The parties have filed no objections to the Administrative Law Judge's decision, either by way of petitions for discretionary review or response to the order for review. Accordingly, there has been no appeal to the Commission and no party has otherwise expressed dissatisfaction with the Administrative Law Judge's decision.

In these circumstances, the Commission declines to pass upon, modify or change the Judge's decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.

The Judge's decision is accorded the significance of an unreviewed Judge's decision. Leone [*2] Constr. Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).

It is ORDERED that the decision be affirmed.

CONCURBY: MORAN (In Part)

DISSENTBY: MORAN (In Part)

DISSENT:

MORAN, Commissioner, Concurring in Part, Dissenting in Part:

I agree with the vacation of item 3 of the citation but would also vacate the remaining two items because the motor carrier industry, of which respondent is a part, is excluded from the jurisdiction of the Occupational Safety and Health Act of 1970 by virtue of 29 U.S.C. 653(b)(1). Secretary v. Lee Way Motor Freight, Inc., OSAHRC Docket No. 7674, December 22, 1975 (dissenting opinion). Furthermore, for the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, December 20, 1976, I disagree with the manner in which my colleagues are disposing of this case and with their views regarding the significance of decisions rendered by Review Commission Judges.

Since this decision does not address any of the matters covered in Judge Furcolo's decision, his decision is attached hereto as Appendix A so that the law in this case may be known.

APPENDIX A

DECISION AND ORDER

Johanna Harris, For Complainant

Frederick [*3] Mandel, For Respondent

ALJ-DECISION:

DECISION AND ORDER

Furcolo, Judge

This is a proceeding pursuant to the Occupational Safety and Health Act of 1970, as amended (29 USC, sec. 651 et seq.) hereinafter called the Act. The Complainant alleges that the Respondent has violated sec. 5(a)(2) of the Act (sec. 654) by not complying with Occupational Safety and Health standards 29 CFR 1910.132(a), 1910.133(a)(1), and 1910,308/309(a).

The Respondent is a corporation in the trucking industry and its business affects the commerce of the United States.

The Respondent's worksite at 40 Erie Street in Cambridge, Massachusetts, was inspected by the Occupations safety and Health Administration (hereinafter called OSHA) on April 23, 1975. On April 25, 1975, a citation was issued against the Respondent for the following nonserious violations:

Item 1, a violation of standard 29 CFR 1910.132(a)

Item 2, a violation of standard 29 CFR 1910.133(a)(1)

Item 3, a violation of standard 29 CFR 1910.308/309(a)

The Notice of Proposed Penalty, issued against the Respondent on April 25 was as follows:

Item 1

$50

Item 2

Zero

Item 3

Zero

On May 5, 1975 the Respondent contested the Citation and the [*4] proposed penalties.

The pertinent words of the Citation involved are as follows:

Item 1: "Employer failed to ensure that garagemen, dockworkers, and truck drivers, exposed to hazards of foot injury, the use of protective footwear."

Item 2: "Employer failed to ensure that protective eye and face equipment shall be required where there is a reasonable probability of injury."

Item 3: "Employer failed to assure that live parts operating at 50 volts or more shall be guarded."

The pertinent words of the standards involved are as follows:

Item 1: Standard 1910.132(a) - "Protective equipment . . . for . . . extremities . . . shall be provided, used, and maintained . . . wherever it is necessary by reason of hazards of processes . . . or mechanical irritants encountered in a manner capable of causing injury. . ."

Item 2: Standard 1910.133(a)(1) - "Protective eye and face equipment shall be required where there is a reasonable probability of injury that can be prevented by such equipment . . . suitable eye protectors shall be provided where machines or operations present the hazard of flying objects. . ."

Item 3: Standard 1910.308/309(a), referring to National Electrical Code Article [*5] 110-117(a) - ". . . . live parts of electrical equipment operating at 50 volts or more shall be guarded. . ."

The Complainant's motion to amend paragraph 3(a) of the Complaint was allowed, which changed the words "garagemen, dockworers and truck drivers" to "dockworers and mechanical workers"; and the location from "trailer shop" to "trailer shop and dock area."

EVIDENCE

The witness, Richard L. Scotti, called by the Complainant, testified that he has been an employee of the Respondent for 10 years, working as a driver and an unloader of trucks. The Respondent's worksite on Erie Street in Cambridge, Massachusetts, consisted primarily of a platform or "dock" with bays for trucks to be unloaded. He estimated the dock to be about 300 feet in length, 70-80 feet in width, with 77 doors leading off it to rooms for materials unloaded from trailer trucks that were about 45 feet in length, 8 feet in width, and over 3 feet in height. The freight varied from tiny boxes of very light weight to huge pieces of steel or machinery weighing thousands of pounds. The boxes or containers were of all shapes and weights and some had sharp edges inside or outside the containers. The freight was usually [*6] stored on pallets inside the trucks. Equipment used in the unloading and storing of freight included some 7-8 carts with two wheels (two-wheelers), 3 forklifts, 100-200 four wheel carts (four-wheelers), about a hundred pallets approximately 48 inches by 40 inches and 3 inches in height, and other items such as Johnson Bars. The dock floor often had liquids on it such as oil from forklifts or water from ice on perishable food freight (Tr. 8-9). Depending on the number of trucks to be unloaded, there might be anything from 3 or 4 to 20 or 30 employees working at a particular time. There were 3 shifts and overtime was apportioned by seniority. The unloading was usually done by pairs of employees, the "stripper" taking the freight off the truck and the "walker" taking it to the designated door. Sometimes freight was temporarily stored on the central part of the dock (called the patio) or on the alleys between the bays where the trucks had pulled up adjacent to the dock (Tr. 17). In addition to the men loading or unloading trucks, other personnel from time to time included two maintenance men with a vacuum cleaner and two or three supervisors or office personnel (Tr. 7). There [*7] was often great congestion (Tr. 42, 57) and the job was dangerous (Tr. 32-34, 56). He himself had been hurt and he had seen others injured because of the dock conditions (Tr. 29-36, 59). Most of the men working did not wear safety shoes of any kind (Tr. 37) and he had complained to the Respondent's supervisors and others about unsafe conditions from equipment used in unloading or material dropping and other such possibilities (Tr. 61-63). He has seen several accidents and near accidents involving forklifts or other equipment, freight falling, and similar incidents (Tr. 23, 29-36, 59-60). The President of the Respondent saw one with him and a supervisor was involved in another (Tr. 30, 61).

On cross-examination, Scotti testified he might have reported personal injuries to himself some 17 times between 1971 and 1975 and a total of 32 such reports from 1965 to 1975, including some driving accidents, but denied that he was "accident prone" (Tr. 52-54). In esponse to cross-examination questions asking if he had not complained about the Respondent to outside agencies such as OSHA, the Labor Relations Board, and the District Attorney's office, he said that he had (Tr. 52). He also [*8] testified that he had received "letters of warning" from the Respondent, such a document being the first step in disciplinary procedure when the Respondent was dissatisfied with the work of an employee, but he had never been "docked" in pay or suspended and "was only fired once" two or three years ago (Tr. 48, 68). He regularly does overtime work (Tr. 66).

The witness, John Fiatarone, called by the Complainant, testified that he has been the OSHA Area Director in Massachusetts for four years, had spent 30 years in the Boston Navy Yard and was very familiar with the various docks or platforms there that are practically identical with the Respondent's worksite; and that he has personally inspected various trucking docks, and is very familiar with the type of operation conducted by the Respondent at the Respondent's worksite in Cambridge (Tr. 70). He conducted the inspection of the Respondent's worksite on April 26th and issued the Citation for the alleged violation. He agreed with the witness Scotti's description of the Respondent's worksite although, at the time of his inspection of it, there were very few employees working and very little activity on the dock (Tr. 76, 78). One [*9] of the employees said he did not have safety shoes (Tr. 80, 102). In his opinion, the dockworkers and truck drivers should wear safety shoes of some type because the hazard of foot injury was very great due to the possibility of freight being dropped, forklifts turned onto a foot, carts running over toes, and similar accidents. It is a recognized hazard in the industry (Tr. 81, 86-87). The Respondent's records showed at least 4 toe injuries in the last year (Tr. 87). Various types of safety shoes are easily available and such protection would eliminate the hazard of toe or foot injury (Tr. 83, 86). Together with one of the Respondent's supervisors, he went to the trailer repair area and he and the supervisor both saw 2 of the Respondent's employees using electric hand drills installing metal plates on a trailer truck, one employee working inside and one outside the truck (Tr. 89, 113). He saw metal chips flying through the air and on the floor (Tr. 91). The drilling was being done near the supervisor's office, "on a direct line with it" (Tr. 111-112). They had glasses with them but were not wearing them (Tr. 89, 111). The Respondent's records showed "a few" eye injuries (Tr. [*10] 91). In his opinion, the hazard from drilling into metal without safety glasses of some kind is the danger of a chip of metal injuring the eye or causing loss of sight (Tr. 90). Safety glasses of various types are easily available and would practically eliminate the risk of eye damage (Tr 92).

Fiatarone also described what he regarded as improper electrical wiring but he did not test the voltage (Tr. 93). He said that industrial installations used from 50 to 150 volts in wiring (Tr. 93).

The witness, Paul E. Tibbetts, called by the Complainant, testified that he has been the Safety Director of the Respondent for the past 7 years, has several safety supervisors for the Respondent's various terminals, and is familiar with operations at the Respondent's Cambridge worksite. At the time in question, the Respondent's employees wore all kinds of footwear, including sneakers, and he is aware that some of the Respondent's dockworkers did not wear safety footwear (Tr. 116). He posted two notices, the first on June 22, 1974, and the second on an unspecified date. The first notice read as follows:

"To all terminal managers, supervisors and dispatchers, from Paul Tibbetts, dated June [*11] 22, 1974, regarding footwear. It has been company policy and still is that no employee will be allowed to work wearing sneakers. It seems that we have a few who are wearing them at present and until you want to buy somebody a foot or a leg, stop this dangerous practice immediately. Carbon copies to Red Williams and William Duddy." (Tr. 117)

The second notice read as follows:

"Cambridge Terminal - Please Post - St. Johnsbury Trucking Company, Inc. To: All local drivers, platform employees, mechanics and supervisors. The Occupational Safety and Health Administration has passed a regulation that states that all people exposed to foot injury shall wear safety shoes. The OSHA requirements are in the Federal Regulations under 1910.132(a). Therefore, all local drivers, mechanics, dock workers and supervisors are hereby notified that OSHA regulations require that they wear safety shoes (steel toed) effective immediately. Those of you who do not have safety shoes should purchase them by February 26, 1975. They may be purchased at the stores listed on the attached sheet. Signed: Paul E. Tibbetts, Director of Safety. Distribution: Walter Little, Local #25, Local #1898, Mechanics [*12] Union, Bob Powers, Red Williams (2), Bill Duddy, Mr. Frank Thompson, employees, Motor Freight Carriers, Inc., File, Copy to Local Union dated 12/26/74." (Tr. 118-119)

Tibbetts also testified that any dockworker who comes to work in sneakers is sent home (Tr. 117).

Tibbetts also testified that the Respondent supplies safety glasses to its employees and they are instructed to wear them when they drill (Tr. 130). If an employee does not, he is "orally disciplined" (Tr. 130, 132). He said the Respondent's contract with the union does not permit the Respondent to fire an employee (Tr. 132-133). He has heard of cases where employees did not wear safety glasses (Tr. 130). As concerns injuries to feet or eyes of employees, he does remember there were such injuries, but, not having his records at the hearing, he cannot recall the details or the causes of such injuries.

It was stipulated or admitted by the parties that the Respondent had a gross revenue of about $57,000,000 for the year ending 1974; has 300 employees in its various terminals, about 70 being employeed at the Cambridge worksite; and handles goods that cross state lines (Tr. 148 and Respondent's Admissions 2 and 3). It [*13] has had 6 nonserious violations and penalties going from zero to $185. (There was no stipulation on what specific standards were violated.) (Tr. 148).

The Respondent did not offer any witnesses but, as already noted, two of the witnesses called by the Complainant were the Respondent's Safety Director and the Respondent's employee, Scotti.

DISCUSSION

While the Respondent might argue that the witness Scotti was "unfriendly" or "unreliable", most of his testimony was corroborated by other evidence. There was no contradiction of the physical layout of the Respondent's worksite as described by Scotti; and the description was also corroborated by Fiatarone. The was also no contradiction of Scotti's testimony concerning the number and types of carts, forklifts, and other equipment used to unload freight. Nor was there any contradiction of Scotti's testimony that even with three regular shifts there was overtime work. These facts, coupled with the volume of business done by the Respondent (over $56,000,000 in 1974) and the number of employees at the Cambridge worksite (70 out of a total workforce of 300) would tend to corroborate Scotti's testimony about activity and congestion on [*14] the dock at various times of the day.

As far as the possibility of foot injury is concerned, it is common knowledge that the moving of freight under such dock conditions is hazardous. The OSHA Director, who has had vast experience, gave examples of the hazard to dockworkers without safety footwear. In addition, there was no contradiction of his statement that it is a recognized hazard in the trucking industry. The very notices posted by the Respondent's own Safety Director -- the one of June 22, 1974, concluding with the warning, ". . . . stop this dangerous practice immediately . . ." and the later notice of December 26, 1974 -- are both clear proof that the Respondent itself recognized the hazard.

The witness Fiatarone's testimony about the two employees drilling without safety glasses was not contradicted in any way; nor was his statement that the Respondent's supervisor saw the incident.

As far as the electrical code violation is concerned (Item 3): while there was evidence that the electrical wiring was improper, there was no evidence to justify any finding that the voltage was of sufficient degree to require protective covering.

The standard requires protection of live [*15] parts operating at 50 volts or more.

Fiatarone was the only witness on this alleged violation and, while he testified that the usual industrial installation has voltage of 50 to 100 volts, he had not tested it at this particular industrial installation. Under such circumstances, the Complainant has not sustained its burden of proving a violation.

As concerns the Respondent's contention that it could not do more than "orally discipline" it employees: the evidence indicates that the Respondent could do much more than that when it wished. For example, the Respondent has issued letters of warning and has sent employees home for various reasons. In addition, with reference to the specific incident that Fiatarone testified to, the Respondent offered no evidence to show that its supervisor took any action of any kind, such as ordering the drilling stopped or telling the employees to put on safety glasses or "orally disciplining" them (whatever that might be).

FINDINGS OF FACT

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

1. At all times concerned, the Respondent regularly received, handled or worked with [*16] goods which had moved across state lines.

2. The dock at the Respondent's worksite was a place of great activity and congestion at various times of the day; and the unloading of various kinds of freight of all sizes and weights, together with the use of forklifts, carts, and other equipment, constituted a hazard to employees working on the dock.

3. As concerns Item 1 of the Citation, the Respondent's employees customarily wore footwear other than protective or safety shoes; and they were exposed to the hazard of sustaining harm from the dropping of heavy or sharp materials on the foot or toes of an employee, or the foot or toes being run over by forklifts, carts, or other equipment.

4. As concerns Item 2 of the Citation, employees of the Respondent were not wearing safety glasses when drilling metal; and they were exposed to the hazard of a chip of metal injuring an eye or causing loss of eyesight.

5. Supervisory personnel of the Respondent were aware of the hazardous conditions that existed at the Respondent's worksite as described in Findings of Fact numbers 2-4 and knew that employees were exposed to such hazards.

6. Safety shoes that were easily available would have [*17] eliminated or lessened the hazard described in Finding of Fact number 3; and safety glasses that were easily available would have eliminated or lessened the hazard described in Finding of Fact number 4.

7. As concerns Item 3 of the Citation, there was no evidence that live parts of the Respondent's electrical equipment were operating at 50 volts or more.

CONCLUSIONS OF LAW

1. At all pertinent times, 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 of this proceeding.

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 29 CFR 1910.132(a) and 1910.133(a)(1) and the Complainant has sustained the burden of proving the Respondent violated section 5(a)(2) of the Act, (29 USC section 654(a)(2)).

4. The Complainant has not sustained the burden of proving the Respondent violated 29 CFR 1910.308/309(a).

ORDER

The whole record having been considered, and due consideration having been given to 29 USC 666(j), [*18] it is ordered:

1. Items 1 and 2 of the Citation are affirmed and a penalty of $50 is assessed for Item 1;

2. Item 3 of the Citation is vacated. So ordered.

FOSTER FURCOLO, Judge, OSAHRC

Dated: March 8, 1976, Boston, Massachusetts