Docket No. 22

REPUBLIC CREOSOTING CO., DIVISION OF REILLY TAR & CHEMICAL CORP.

OSHRC Docket No. 22

Occupational Safety and Health Review Commission

February 9, 1973

Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners.

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: On February 10, 1972, Review Commission Judge William E. Brennan issued a decision in this case holding that the Respondent had violated Section 5(a)(1) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., 84 Stat. 1590, hereinafter referred to as the Act) because of the manner in which railroad ties were unloaded from a truck and the conditions surrounding the stacking and storage of railroad ties at respondent's tie marshalling yard. He assessed a penalty of $1300.00. Thereafter, pursuant to Section 12(j) of the Act, I directed that the decision be reviewed by the Commission.

The Commission has reviewed the record in this case and the briefs of the parties. On the basis of such review, the Commission finds that the Judge erred in holding that the respondent had violated Section 5(a)(1) as charged.

This case was initiated by the Secretary of Labor pursuant to Section 9(a) of the Act. On August 11, 1971, the Secretary caused two citations to be served upon the respondent. The first of these is labeled "Citation For Serious Violation" (hereinafter designated Citation FSV) and it charges that respondent violated Section 5(a)(1) of the Act. The "description of alleged violation" contained thereon is as follows:

Binders on the crosstie load were released without securing with unloading lines or unloading device. This is a serious condition which could, in fact did, cause a fatality to an employee.

This citation also sets forth the definition of a serious violation contained in Section 17(k) of the Act.

The second of these is labeled "Citation" and it also charges that respondent violated Section 5(a)(1) of the Act. The "description of alleged violation" contained thereon is as follows:

Item Number 1. Adequate warning signs prohibiting unauthorized foot or vehicle traffic in storage yard were not posted to cover all areas.

Item Number 2. Unstable piles of crossties are not barricaded or otherwise made safe.

The Judge found that the respondent had violated the Act as charged in both citations. n1 He assessed a total penalty of $1,300 against the respondent, $600 based upon the Citation FSV and $700 based upon the Citation.

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n1 With regard to the citation it is noted that in the course of affirmation, the Judge raised the citation to "serious" from "non-serious" as originally charged.

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There were no other details contained in the charges filed against the respondent, except that the situs of the alleged violation is listed as "a workplace under your ownership, operation, or control, located at Pennsylvania Avenue, Jeffersonville, Indiana 47130."

The respondent moved at the opening of the hearing for specification of a day or date when the alleged violations took place. The Judge ruled that July 9, 1971, was the date of the violation alleged in the Citation FSV and that July 30 was the date of the violation alleged in the Citation.

The parties entered into a Stipulation of Facts which was admitted into evidence as Government Exhibit Number 1. The pertinent facts set forth therein follow.

(a) Respondent, REILLY TAR & CHEMICAL CORPORATION, at all times hereinafter mentioned was an Indiana corporation. Reilly Tar & Chemical Corporation has and at all times hereinafter mentioned has had a division known as Republic Creosoting Company, which division is hereinafter called "Republic." Republic, at all times hereinafter mentioned had its principal office at 11 South Meridian Street, Indianapolis, Marion County, Indiana; and at all times hereinafter mentioned, Republic was engaged in the purchase of railroad ties, hereinafter called "ties."

(b) Republic is an operating division of the respondent; and Republic is not separately incorporated.

(c) Republic at all times hereinafter mentioned operated a tie marshalling yard at Jeffersonville, Clark County, Indiana, hereinafter called the "yard."

(a) Republic at all times hereinafter mentioned was engaged in a business affecting commerce at the yard.

(b) Republic at all times hereinafter mentioned was an employer having employees in said business at the yard.

(a) Republic operated the yard at the time of the alleged violations of the Act. It purchased ties which were trucked to the yard by sellers or by truckers hired by the sellers.

(b) Truckloads of ties arriving at Republic's yard are secured to the truck by chains. In a minority of cases, the ties are bound together by bands into packages for the convenience of the sellers in loading the trucks and transporting the ties to the yard. In such cases, the ties are loaded lengthwise along the length of the truck; generally one package high and two packages across and a suitable number of packages along the length of the truck, depending on the length of the truck bed.

(c) On some occasions, when none of Republic's employees are present at the yard, the sellers or their truckers leave ties on the ground in Republic's yard and negotiate for payment later. When Republic's employees are present at the yard, Republic's area director, or its buyer, inspects the load and counts the ties before the truck is unloaded.

(d) When a truckload of ties are ready for unloading at the yard and employees of Republic were present, the following procedure was customarily followed: The unloader operator (an employee of Republic) moved the unloader (which is a forked, lift "truck") into position by approaching the side of the truck and placing the tines of the fork of the unloader under the stack of ties to be first unloaded so that the vertical guard at the end of the fork nearer the unloader whould preclude the ties from falling from the truck on the side of the truck where the unloader was located; and all employees on the ground remained a safe distance from the truck. The chain holding the ties across the width of the truck at that point was removed by the truckdriver. When the ties were banded in packages, the unloader operator customarily moved his unloader into the aforesaid position against the stack of ties to be first unloaded before the band holding it was cut. The bands, if any, were most usually cut by the truckdriver, while standing on top of an adjacent package of banded ties; but on occasion they were cut by the unloader operator, by hitting the band with the end of a tine of the fork of the unloader. The process is repeated package by package until the truck is completely unloaded.

(e) On July 9, 1971, a truckload of ties was being inspected and counted by Republic's area director (in the absence of its buyer who was off of work due to illness) and the truckdriver. The ties were bound together by bands (the truckdriver having already removed the chains securing the load to the truck before any of the employees of Republic arrived at the yard). The unloader was still some distance from the truck on one side of the truck awaiting orders to move to the side of the truck to support the ties while the truckdriver cut the band on the package of ties to be first unloaded. The area director and the truckdriver were at the back of the truck (inspecting the load and counting the ties). On the side of the truck where the unloader was located, Republic's employee, Raymond Davis, was standing back some distance from the truck, with Republic expecting him to remain there until the unloading was completed, so that he could help sort and stack the unloaded ties; but instead (respondent contends "suddenly" and the petitioner disputes "suddenly"), without being ordered to do so and without informing anyone of what he intended to do, he approached the loaded truck and, while standing on the ground immediately adjacent to the side of the truck, cut the band binding together one package of ties with the result that approximately 5 of the ties fell from the truck onto Raymond Davis as he walked away, fatally injuring him. Mr. Davis is hereinafter referred to as the "deceased."

The deceased was first employed by Republic on June 28, 1971; and at the time of the incident on July 9, 1971, he had worked in the yard for 4 days. During this time, 11 truckloads of ties were received at the yard; and of these, 2 truckloads (including the one involved in the incident on July 9, 1971) had banded packages.

(a) On July 30, 1971, at the aforesaid yard, piles of ties were wind rowed.

(b) On July 30, 1971, at the yard, the respondent was an employer subject to the Act.

There is no longer any employment at the yard. These stipulations were among the Judge's findings of fact. The Judge also found that:

The ties were of various types of wood and their dimensions varied somewhat as did their weight, which ranged from 150 to 235 pounds each.

Approximately 20 to 25% of these truckloads contained packages of ties, each package usually containing 25 to 45 ties, generally 5 ties high and from 5 to 9 ties across. Each package was one tie long and measured approximately 8 1/2 feet in length. The ties in such packages were bound together by one steel band about 1 1/2 inches wide, placed around the middle of the package for the convenience of the sellers in loading the trucks and transporting the ties to the yard.

Persons experienced in the material handling industry generally, and in lumber or timber operations specifically generally recognize that cutting binders on packages of crossties on a truck, without first securing the ties by lines or other unloading devices, constitutes a hazardous condition which would likely cause death or serious physical harm to employees.

Republic's area director, who had the responsibility of supervising the activities of this workplace, knew that the deceased was in the area where the truck in question was to be unloaded. He knew, or should have known, that the deceased had not received training in unloading trucks, nor in any safety procedures to be followed and that he was without any experience in these tasks.

Republic, in the circumstances of this case, took no effective steps, either in providing adequate safety regulations or instructions, nor adequate supervision of its employees, or otherwise, to avoid or prevent the hazardous condition which existed at its workplace in July 9, 1971, which resulted in the death of one of its employees.

THE CITATION FOR SERIOUS VIOLATION

The Commission is of the opinion that the infraction alleged in the Citation FSV cannot be sustained on these facts.

The nature of the offense alleged is that "binders on the crosstie load were released without securing with unloading lines or other unloading device." n2 The facts establish that this happened only once and that it happened because an employee took it upon himself to cut the band binding the ties together prior to the time a fork lift could be moved into position in front of the load so as to protect against falling ties during unloading. Customarily, the lift was positioned prior to cutting, in a manner which is admittedly safe. It was also usual practice that the band be cut by the truck driver, not an employee of respondent.

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n2 The citation is vague and indefinite as to what "crosstie load" is in issue. The evidence reveals, however, that all parties understood that the reference was to the crosstie load which was on a truck at the time the deceased cut the binder from it.

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The Judge appears to rest his conclusions that the instantaneous occurrence above described constituted a violation of Section 5(a)(1) of the Act on the fact that the employer did not prevent the deceased employee's unexpected act or failed to train him to release crossties in an unhazardous manner.

However, the Secretary's original citation was for a "serious violation" pursuant to Sections 17(b) and (k) of the Act. To sustain this charge, the Secretary must prove that the employer knew, or could with the exercise of reasonable diligence, know of the presence of the violation.

It could be found that an employer is responsible for hazards in the workplace resulting from his failure to properly train his employees in safe working practices and procedures. It is both unnecessary and unreasonable, however, to so train an employee for a job to which he is not assigned. To protect people from floods, it is not necessary that all of them the taught how to build dikes. Their lives can be saved by evacuation from the area of flooding.

The fact that the deceased employee was hired for "stacking and sorting ties" and was specifically instructed that he had nothing to do with unloading them supports the position of respondent that he had no reason to expect the decedent's precipitous action. The employer's agent who both hired and supervised the deceased testified: "I told him not to get around no trucks; the unloader did all the unloading."

Overall, respondent's normal unloading procedures are shown to be nothing at all like the circumstances described in the citation, and the decedent's act was totally unforeseeable. For these reasons, it must be held that the evidence presented does not satisfy the "scienter" requirement of Section 17(k). The Citation FSV which the Secretary charged cannot be affirmed by this Commission.

THE CITATION

The allegations in the citation maintain that Section 5(a)(1) of the Act has been violated because of lack of warning signs, and because "unstable piles of crossties are not barricaded or otherwise made safe." The employer's obligation under this section of the Act is to maintain a workplace free from recognized hazards which are causing or likely to cause death or serious physical harm to his employees.

An examination of the record reveals that respondent had stacks of ties piled "chest high" in a windrowed fashion. The Secretary's representative, who conducted the inspection which led to the issuance of this citation, was permitted by the Judge to testify as an expert witness on the stacking of ties. He was asked as the hearing:

whether or not it constitutes a hazard in fact to stack railroad ties in windrowed piles without barricading them or posting signs restricting access to the area?

He answered:

I believe it is a hazard when the piles are stacked to the heights that they were stacked, and that they weren't evenly stacked; that some of the ties were cross-ways to the remainder of the windrowed pile and this, I believe, made the pile unstable and should have been protected either by barricades or some other means to make it safe.

The foregoing testimony establishes only that the situation may generally be a hazard. It is not alone sufficient to establish a violation.

This section of the Act does not prohibit hazards in general -- it addresses itself to a very specific type of hazard. To prove a violation of this section the evidence must show, among other things, that the workplace contained a recognized hazard. In that regard the compliance officer testified ". . . this is a recognized hazard in materials handling, that unstable piles will cause -- will fall and cause serious injury . . ." (Emphasis supplied)

The quoted testimony relates to recognition of the "hazards" of windrowed piles in "materials handling" industries. It is insufficient to establish that the "hazard" is recognized in the wood treatment industry in which respondent is engaged, and where windrowed piling is done for a specific purpose. In addition, there is nothing else in this record from which one can conclude that the "hazard" about which the Secretary's witness testified is one that is "recognized" as that term is used in this Act.

CONCLUSION

For the foregoing reasons, the Commission finds that the respondent was not in violation of the Act as charged. The decision of the Judge is reversed.

DISSENTBY: BURCH

DISSENT:

BURCH, COMMISSIONER, dissenting: I cannot agree with my colleagues' conclusions in this case and would find the respondent in violation of section 5(a)(1) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq., 84 Stat. 1590, hereinafter referred to as "the Act"). I would further conclude that the proposed penalty of $1300 is reasonable and proper under the circumstances of this case.

THE CITATION FOR SERIOUS VIOLATION

The record establishes that the deceased employee had been hired to sort and stack crossties and had been in the employ of the respondent for the four days prior to the accident. He had no experience with the procedures involved with the handling of lumber or ties, and the extent of the safety instruction given to him was the warning ". . . not to get around no trucks." With his limited experience in the yard and with no further safety instruction, the employee was ordered to assist a crew in unloading a truckload of railroad ties.

Although a witness averred that decedent took it upon himself to cut the bandbinding in an unsafe manner, it is apparent that the respondent had an affirmative duty to exercise that element of control and supervision over the yard that would have minimized the chances for such an occurrence.

It is surprising that my colleagues characterize the "warning" given to this employee as an example of specificity when it was merely an isolated and vague exhortation wholly unsuited to suffice as safety instruction in a working environment described in testimony as being "inherently dangerous."

Decedent's act of cutting the bandbinding has been labeled by the majority as being "totally unforseeable." I disagree. Any reasonably prudent supervisor would have foreseen such a possibility and taken steps to vitiate the hazard, particularly to a new, untrained, and inexperienced employee. My colleagues state that the evidence of record "does not satisfy the 'scienter' requirement of section 17(k) of the Act." n3 This perfunctory dismissal is not supported by the facts in this case. On the contrary, the ordering of an untrained employee by respondent into a situation admittedly hazardous creates a reasonable inference that the employer knew or should have known of the presence of the violation. Respondent was completely familiar with the nature of its business, and this familiarity encompassed the understanding that an affirmative obligation exists to supervise properly those employees having an unfamiliarity with the nature of the work to be done. This affirmative obligation was breached both by the lack of supervision and instruction and was the basis of the violation.

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n3 The majority opinion indicates that the term scienter is quoted. There is no indication whence it is quoted. It is not quoted from section 17(k) of the Act, which contains no Latin. Further, I question its use in connection with section 17(k). It is a term that is used to describe a principle almost wholly associated with criminal law.

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The majority, attempting to support its decision with somewhat heavy-handed humor, notes that, "To protect people from floods, it is not necessary that all of them be taught how to build dikes." We are expected to conclude, from this irrelevant tautology, that respondent was not obligated to train the decedent for a job to which he was not assigned. Certainly, decedent's duties required his presence at the worksite, and exposure was inevitable. It was his presence at the unloading site without proper supervision and instruction that constituted the violation.

The Commission was faced with a similar situation in the case of Secretary of Labor v. Arnold Hansen, d/b/a Hansen Brothers Logging. In that case we vacated the citation against the respondent stating, "There is nothing in the record to show that respondent owner knew or reasonably should have known that the deceased employee would disobey these instructions." The situation changes in the case before us by the very nature of the instructions disobeyed. In Arnold Hansen, supra, we noted that the record showed "Respondent's employees were repeatedly reminded of the danger involved." (Emphasis added). We also noted that, "The record shows that respondent's owner gave specific oral instructions to its employees to stay clear of the loading area while the equipment was in motion." The difference between the specific and repeated instruction and the lack of safety instruction in this case should provide us with a solid basis for affirming the section 5(a)(1) violation alleged by the Secretary.

Moreover, in Arnold Hansen, supra, the record establishes that, "[decedent] was not a fully experienced logging worker, but he was not a green hand." (Emphasis added). Decedent in Arnold Hansen, supra, had worked for respondent during the summer months for three years prior to his several weeks of full-time employment immediately prior to the accident. In the case before us the employee had a total of four days experience. The comparison between the relative experience, exposure, and quality of safety instruction in the two cases creates the strongest of inferences that decedent herein was unnecessarily exposed to an unfamiliar and hazardous situation, compounded by the absence of diligent supervision.

THE CITATION

The respondent in this case was cited for an alleged violation of section 5(a)(1) of the Act because it had, on its premises, "unstable piles of crossties . . . not barricaded or otherwise made safe." The respondent was also cited for a failure to post warning signs to alert employees to the danger of these crosstie piles. In the Citation it was noted that these two alleged violations were not of a serious nature. The Judge, in his Proposed Decision and Order, decided that the nature of these violations brought them within the language of section 17(k) of the Act and ordered that penalties be imposed to correspond with their seriousness. I agree.

The majority opinion states that the "unstable piles" of crossties in respondent's yard did not establish a recognized hazard in the wood treatment industry. The evidence of record is to the contrary. The testimony fully establishes that the ties which Republic stacked were made from recently cut green timber. They were not of a uniform size nor were they stacked evenly. It is recognized throughout the industry that lumber in this condition warps, making even and stable stacking a virtual impossibility. The piles of ties in the respondent's yard were placed randomly by virtue of the unloading process, and they had no interlacing, pallets or other means of stabilization. Their average height was 6 to 7 1/2 feet high, and their length was as great as 50 feet. The piles had walkways between them only 3 to 4 feet in width, and one of respondent's employees testified that if a man were trying to get more than one tie from a pile, "he would get behind the pile and push it off, and if nobody's in front, there's nothing dangerous."

When the Congress drafted the general duty clause of the Act it indicated that it had taken the problem of "general" hazards into consideration:

The committee recognizes that precise standards to cover every conceivable situation will not always exist. This legislation would be seriously deficient if any employee were killed or seriously injured because there was no specific standard applicable to a recognized hazard which could result in misfortune. Therefore, to cover such circumstances the committee has included a requirement to the effect that employers are to furnish employment and places of employment which are free from recognized hazards to the health and safety of employees (S. Rep. No. 1282, 91st Cong., 2nd Sess. 9 (1970)).

Congressman Daniels explained in discussion that:

"A recognized hazard is a condition that is known to be hazardous, and is known not necessarily by each and every individual employer but is known taking into account the standard of knowledge in the industry." (Legislative History of Occupational Safety and Health Act of 1970, p. 1007).

The majority opinion attempts to differentiate the condition created by unbarricaded withdrowed piles of crossties in the wood treatment industry and in "materials handling" industries. It is unclear to me what the rationale is in attempting to show the difference in industries when dealing with a problem common to both and dangerous in both. Crossties are certainly "material," and most assuredly "handled." In the respondent's yard they represented, on the strength of testimony, a hazard owing to their unstable nature. This hazard would remain the same in any site, and in any industry where there were materials present which were stacked insecurely endangering employees working in their proximity. The standard of knowledge in the wood treatment industry is most certainly of the level which recognizes this condition as hazardous and respondent's additional failure to post warning signs in the areas of these unstable piles considerably compounded the hazard to its employees.

Respondent herein failed to exercise the minimal control and supervision which are unquestionably required by the Act. The record is clear that the respondent showed little concern for the hazards to its employees present in the yard. For the foregoing reasons I would affirm the Citations and the Proposed Penalties.

[The Judge's decision referred to herein follows]

BRENNAN, JUDGE, OSAHRC: This is an action arising under the provisions of Section 10(c) of the Occupational Safety and Health Act of 1970, Public Law 91-596; 84 Stat. 1590 et seq.; 29 U.S.C. 651 et seq.; (hereinafter the Act), to review two citations issued by the Secretary of Labor (hereinafter Secretary), pursuant to Section 9(a) of the Act and a proposed penalty thereon issued pursuant to Section 10(a) of the Act.

The Citation for Serious Violation dated August 11, 1971, alleges that Republic Creosoting Co. (hereinafter Republic), a Division of Reilly Tar & Chemical Corporation, Merchants Bank Bldg., 1615 N. Meridian Street, Indianapolis, Indiana 46202, (hereinafter Respondent), at a work place under its ownership, operation, or control, located at Pennsylvania Avenue, Jeffersonville, Indiana 47103 (hereinafter the workplace) was in violation of Section 5(a)(1) of the Act. This Citation sets forth the following "Description of alleged violation":

Binders on the cross tie load were released without securing with unloading lines or other unloading device. This is a serious condition which could, in fact did, cause a fatality to an employee.

In the column in this Citation entitled, "Date on which alleged violation must be corrected" appears the word "Immediate."

This Citation is numbered "1" and is designated a "CITATION FOR SERIOUS VIOLATION" and alleges such a type of violation within the meaning of Section 17(k) of the Act [R. p. 1]. n1

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n1 References hereinafter have the following meaning:

R. p. 1 -- That document, bearing page number 1 on its lower right hand corner, appearing in Docket File No. 22 of the Occupational Safety and Health Review Commission.

R. p. H-1 -- That document, bearing page number H-1 on its lower right corner, received or issued by the Hearing Examiner and made a part of the record in this matter and incorporated into Docket File No. 22.

TR. 1 -- Page 1 of the Transcript of the hearing held herein.

Ex. G-1 -- Exhibit number 1 received into evidence upon motion of the Government (Complainant).

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The second Citation herein involved is also dated August 11, 1971, and alleges that the Respondent, at the same work place as identified in Citation number 1, was in violation of Section 5(a)(1) of the Act in two respects set forth under Items numbered 1 and 2. The following descriptions of alleged violations are therein set forth:

Item number 1: Adequate warning signs prohibiting unauthorized foot or vehicle traffic in storage yard were not posted to cover all areas.

Item number 2: Unstable piles of cross ties are not barricaded or otherwise made safe.

In the column in this Citation entitled, "Date on which alleged violation must be corrected" appears the date "9-11-71" as to both Items.

This Citation is numbered "2" and by an asterisk footnote it indicates that the, "Alleged violations covered by this citation are those which are not serious violations within the meaning of the Act but which have a direct or immediate relationship to occupational safety and health [R. p. la]."

A "NOTIFICATION OF PROPOSED PENALTY" also issued on August 11, 1971, to the Respondent proposing the assessment of a penalty in the amount of $600.00 based upon the serious violation alleged in Citation No. 1, and no penalty based upon the other violations alleged in Citation No. 2 [R. p. 2].

By a letter dated August 13, 1971, from its counsel, addressed to the Secretary's Area Director, the Respondent timely noted its intention to contest the Citations and proposed penalty [R. p. 3].

This matter was thereupon forwarded to the Occupational Safety and Health Review Commission (hereinafter Commission), receipt of which was acknowledged by the Commission by its Notice to the Secretary's Regional Solicitor and Respondent's counsel dated August 26, 1971, for hearing pursuant to Section 10(c) of the Act [R. p. 4].

The undersigned was appointed and this case assigned to him for hearing pursuant to Section 12(j) of the Act. Notice of this action was given to the parties by the Commission's notice dated September 1, 1971 [R. p. 5].

The hearing was conducted as scheduled on November 2, 1971, in the Federal Building at Indianapolis, Indiana, the parties appearing by and through their respective counsel heretofore identified.

After receipt of the transcript of this hearing the parties submitted their Proposed Findings of Fact, Conclusions of Law, Proposed Orders, Briefs and Reply Briefs [R. pp. H-10, H-11, H-14, H-15].

Having heard the testimony of the witnesses, and having considered the same together with the exhibits, Proposed Findings of Fact, Conclusions of Law, all arguments and briefs of the parties, it is concluded that the substantial, reliable and creditable evidence on the record considered as a whole, supports the following Findings of Fact, Conclusions of Law and Order.

FINDINGS OF FACT

1. The Respondent herein, REILLY TAR & CHEMICAL CORPORATION, at all times involved in this case was an Indiana corporation which had an operating division known as REPUBLIC CREOSOTING CO., with its principal office located at 11 South Meridian Street, Indianapolis, Indiana. Republic is not separately incorporated [Ex. G-1 para. 3; TR. 60].

2. At all times herein involved, Republic was engaged in the purchase of recently cut, green railroad ties (hereinafter ties). At said times, Republic operated five tie marshalling yards in southern Indiana, one of which being located at Pennsylvania Avenue, Jeffersonville, Indiana, (hereinafter workplace). This workplace was operated under Republic's control [Ex. G-1, para. 3; R. p. 1, 1a, TR. 60, 64, 168].

3. At this workplace, Republic engaged in the business of receiving, purchasing, sorting and occasionally drying and then delivering ties to the Penn-Central Railroad Company for its use or for shipment by rail to other railroad companies. The ties were received from various sawmills within a one-hundred mile radius of the workplace, a substantial number being received from sawmills located outside of the State of Indiana. At all times involved in this case, Republic was an employer employing employees at this workplace and has conceded that it was engaged in a business affecting commerce at this workplace [Ex. G-1, paras. 3, 4; TR. 62-70; 111-14].

4. Respondent's workplace was under the supervision of its Field Superintendent, Mr. Worley, n2 who also supervised Respondent's other four tie marshalling yards located in southern Indiana. Mr. Worley's immediate supervisor was based in Florence, Alabama, who visited all of Respondent's tie marshalling yards for short periods, once every month or two for a two or three day period. Mr. Worley has been Respondent's Field Superintendent for approximately seven years and is familiar with all aspects of the operation of its tie marshalling yards [TR. 62-66; 112-13].

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n2 Mr. Worley is referred to as Republic's "area director" in the stipulation between the parties, Ex. G-1.

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5. The workplace here involved is a long rather narrow, open marshalling yard with no fence nor gates. It is bounded on the east by railroad tracks of the Penn-Central Railroad Company which run north and south. It is bounded on the west by Pennsylvania Avenue, which runs north and south for most of the length of the yard, but curves to the east at the north end of the yard. It is bounded on the south by a railroad spur on an embankment which curves to the north at the east side of the yard to join the Penn-Central tracks. There is no well defined boundary at the north end of the yard. This workplace is approximately 1000 feet long on a north-south axis and approximately 35 feet wide for most of its length. A small, one story, frame office building approximately 12 feet square is located roughly in the center of this yard. There is a very slight grade to the surface of this yard, the east side being approximately 4 inches higher than the west. This grade, although slight, is sufficient in the opinion of the Secretary's safety expert to affect the stability of a load of ties on a truck located on this surface [TR. 98-107; 202-03; 212-13].

6. The ties received at this workplace were recently cut, green timber, which had not been seasoned nor creosoted. These ties were of various types of wood and their dimensions varied somewhat as did their weight, which ranged from 150 to 235 pounds each. Occasionally the ends of some ties as received were not square and Respondent would cut such ends square after delivery. Some ties were dried by Respondent to conform to railroad buyer requirements. The green condition of the ties, the fact that some ties did not have squared ends, makes possible the warping of these ties, and stacks of such ties can be unstable particularly if improperly stacked or if the stack is disturbed in transit [Ex. G-1, para. 5; TR. 69; 84; 110-14; 167-68; 207-09].

7. The ties received at this workplace were trucked there on flatbed trucks by sellers or by truckers hired by the sellers. Truckloads of ties arriving at Republic's yard were secured to the truck by chains. Approximately 20 to 25% of these truckloads contained packages of ties, each package usually containing from 25 to 45 ties, generally 5 ties high and from 5 to 9 ties across. Each package was one tie long and measured approximately 8 1/2 feet in length. The ties in such packages were bound together by one steel band about 1 1/2 inches wide, placed around the middle of the package for the convenience of the sellers in loading the trucks and transporting the ties to the yard. In such cases, the ties were loaded length-wise along the length of the truck, generally one package high and two packages across with a suitable number of packages along the length of the truck depending on the length of the truck bed [Ex. G-1, para. 5; Ex. G-4; TR. 83-85; 121-26; 297-300].

8. When none of Republic's employees were present at the yard, such as very early in the morning, the sellers or their truckers dumped ties on the ground in Republic's workplace and negotiated for payment at a later time. When Republic's employees were present in the yard, Republic's area director or the buyer inspected and counted the load of ties before the truck was unloaded. When a truckload of ties was ready for unloading at the yard and employees of Republic were present, the following procedure was customarily followed: The unloader operator, a Republic employee, moved Republic's only unloader, a rubber tired 4 wheel tractor fitted with a fork lift at the front end, into position by approaching the side of the truck and placing the tines of the fork of the unloader under the stack of ties to be first unloaded so that the vertical guard on the unloader would prevent the ties from falling from the truck on the side at which the unloader was working. All employees on the ground remained a safe distance from the truck, although no barriers or signs were used to advise or prevent them from close access to the truck being unloaded. The chain holding the ties across the width of the truck at this point was removed by the truck driver. When the ties were banded in package, the chains were first removed and the unloader operator customarily moved the unloader into position against the package of ties to be first unloaded before the band holding the package together was cut. The bands were customarily cut by the truck-driver while standing on top of adjacent packages of ties on the truck. The truckdriver would then remove himself from the bed of the truck. After the band was cut, the unloader would off-load the first one or two stacks of ties, taking the entire stack consisting usually of 5 ties in each stack. This off-loading procedure occasionally resulted in ties falling from the unloader as it moved away and turned from the truck and in ties falling from either or both sides of the truck. The process of cutting the band and off-loading the ties, was repeated package by package until the truck was completely unloaded. The bands on the packages of ties were cut before off-loading because the lifting capacity of Republic's unloader was not sufficient to lift an entire package of ties [Ex. G-1, para. 5; Ex. G-4; Tr. 85; 89-91; 98; 109; 115-16; 123-24; 167-72; 174-75; 235-36; 250; 259-60; 280-81; 286-87; 301].

9. On July 9, 1971, a truckload of ties arrived at Republic's workplace in the early morning before Republic's employees arrived at the yard. The truckdriver positioned his truck approximately 25 feet from the west boundary of the yard, in the southern portion thereof, facing in a northerly direction. The truckdriver removed the chains securing the ties to the truck before any employees arrived at the yard. These ties were bound together in packages, each package having one band. None of the bands had been removed and the load on this truck was one package high. The area director, the unloader operator and another employee, Mr. Raymond Davis, after arriving at the yard that day, proceeded to the area where this truck was located. There being no need for his services elsewhere in the yard, Mr. Davis was asked by the unloader operator to accompany the others to assist them if needed. When Republic's three employees reached the truck, the area director and the truckdriver went to the rear of this 40 foot truck to inspect and count the ties. The unloader, with its operator in its seat, was approximately 10 to 15 feet from the flat bed of this truck on the west side thereof awaiting orders to move to the side of the truck to support ties while the band was cut on the package of ties first to be off-loaded. Slightly to the rear of the unloader, Republic's employee, Raymond Davis (hereinafter deceased) was standing. Without being specifically ordered to do so, and without informing anyone of what he intended to do, the deceased took an ax from the unloader and went to the loaded truck. While standing on the ground immediately adjacent to the west side of this truck, he cut the band binding together the northernmost package of ties on the truck. As he turned away from the truck, five ties in the first stack of ties in the package fell from the truck onto him, fatally injuring him [Ex. G-1, para. 5; Ex. G-4; Ex. G-2, p. 2; TR. 76-78; 83-85; 100-02; 106-07; 126; 181-83; 276-79; 285-89].

10. The deceased was first employed by Republic on June 28, 1971. When he was hired, his past work experience was with odd jobs. He had no experience involving the handling of lumber or ties and so advised Republic's area director when he was hired. He was given no safety instructions, written or oral, other than the oral admonition when he was hired, "To be careful". Republic, at this workplace, had no written safety rules and no formal safety program, the responsibility for safety being widely allocated to "foremen" and older employees. Republic relied solely upon "on-the-job" training in how to do the work without any specific instructions on working safely and the use of safe work methods.

The deceased was hired as a laborer to work with cross-ties. Employees at Republic's workplace were not restricted to particular tasks but worked where they were most needed doing those tasks which were necessary at the time. Deceased's on the job training was limited to sorting and stacking ties and did not include training on the unloading of trucks. The deceased was given no safety instruction of any kind by any Republic employee or agent concerning the unloading of trucks. On July 9, 1971, the deceased had worked at Republic's yard for four days. During this time, eleven truckloads of ties were received at this yard, two of which (including the one involved in this accident) contained loads of packages of ties banded into packages. The deceased was occupied elsewhere in this yard at those times when the ten trucks were unloaded and hence did not have an opportunity to closely watch any unloadings.

In view of the fact that the deceased was hired as a laborer to work with ties, and was requested by the unloader operator to accompany him to the truck to be off-loaded, his conduct on July 9, 1971, was reasonably foreseeable under the circumstances [Ex. G-1, paras. 5, 6; Ex. G-2, p. 2 lines 16(a)(b); 23, 24; TR. 131-33; 146-50; 168; 181-82; 187; 217-20; 234-35; 240-42; 276-78; 281-84].

11. The work conducted at Republic's work place, the loading, unloading, stacking and sorting of green railroad ties is inherently dangerous because of the weight of the material being handled. Persons experienced in the material handling industry generally, and in lumber or timber operations specifically generally recognize that cutting binders on packages of cross-ties on a truck, without first securing the ties by lines or other unloading devices, constitutes a hazardous condition which would likely cause death or serious physical harm to employees. Republic's area director, prior to July 9, 1971, did know that such a practice was not safe and adopted the practice of having the ties held in place by the unloader so as not, "--to expose any of (Republic's) employees to any hazard likely to result in death --" from falling ties. Republic's area director, who had the responsibility of supervising the activities of this workplace, knew that the deceased was in the area where the truck in question was to be unloaded. He knew or should have known that the deceased had not received training in unloading trucks, nor in any safety procedures to be followed and that he was without any experience in these tasks. Republic, in the circumstances of this case, took no effective steps, either in providing adequate safety regulations nor instructions, nor adequate supervision of its employees, or otherwise, to avoid or prevent the hazardous condition which existed at its workplace on July 9, 1971, which resulted in the death of one of its employees [Ex. G-1, para. 5; Ex. G-4; TR. 80; 85-89; 181-82; 190-94; 204-10; 213-14; 221; 223-24; 240-42].

12. The following additional procedures were followed in Republic's unloading operation. The unloader operator, with from 5 to 10 ties on the forks of the unloader, would choose a location close to the truck being off-loaded where the ties could be temporarily placed prior to sorting them by size and type of wood. The pile of off-loaded ties was made by the unloader dumping the ties onto the ground by tilting the forks of the unloader forward to that angle where the ties fell off the fork. This process continued resulting in a pile which was one tie-length wide, up to 7 1/2 feet high and up to 50 feet long, which would include all of one or more truckloads of ties. The ties is such piles were in the random positions they assumed as they fell from the unloader onto the pile. No interlacing, pallets or other means of stabilizing these piles were used. Such piles are referred to as "wind-rowed" piles. After sorting the ties, they are placed in other wind-rowed piles of the same type, except that the piles are placed on wooden stringers. Republic placed wind-rowed piles close together, leaving walkways of about 3 to 4 feet between piles. Employees used these walkways. Republic's employees sorted ties from these wind-rowed piles by pulling or pushing ties down off the pile.

Wind-rowed piles of ties are likely to be unstable due to the nature of randomly stacking the ties. Ties may fall or slip from such piles. Republic placed no warning signs or barriers around these piles in this unfenced yard, to prevent employees from exposing themselves to the danger of these unstable piles when there was no work-related reason for such employees to be in those areas occupied by these piles. Republic continued the practice of placing unloaded ties in wind-rowed piles as late as July 30, 1971, three weeks after the deceased was fatally injured by falling ties [Ex. G-1, para. 8; TR. 123-24; 127-28; 150-58; 165-66; 179-80; 199-202; 205-06].

13. Persons experienced in the material handling industry generally and in lumber or timber operations specifically, generally recognize that failure to guard areas used to pile wind-rowed ties so as to prevent employees from unnecessarily entering such areas and to alert those who must enter such areas to the danger of falling ties or to make said piles safe creates a condition of employment wherein there is a substantial probability that death or serious physical harm could result from such condition. In the light of the circumstances of this case, Republic knew or should have known of the existence of such hazardous conditions at its workplace herein involved [TR. 130; 157-58; 190; 192-94; 203-06; 216-17; 231].

14. On July 29, 1971, the Secretary's duly authorized representative, compliance officer Weaver, went to Republic's workplace to make an inspection and investigation pursuant to Section 8 or the Act, having been advised of the accident which occurred at this yard on July 9, 1971. Finding no one at the yard, he left, returning the following morning. He identified himself to Republic's Area Director, presented his credentials and discussed his visit with this individual, and with his cooperation completed an inspection of this yard and his investigation of the fatal accident. Officer Weaver observed wind-rowed ties at this workplace on both July 29 and 30, 1971. No representative of the Secretary was present at this workplace on the day of the fatal accident, July 9, 1971 [TR. 13; 28-33; 198-202; 233].

15. The two Citations, numbered 1 and 2, issued by the Secretary's Area Director pursuant to Section 9(a) of the Act dated August 11, 1971, were received by the Respondent on August 13, 1971, as was the Notice of Proposed Penalty also dated August 11, 1971. Upon receipt the Respondent prominently posted Citations numbered 1 and 2 as well as the notice of hearing on a bulletin board outside of the office at Republic's workplace. Employees of Republic employed at this workplace are not, and have not been at any time since the effective date of the Act, represented by a collective bargaining agent.

No employee identified himself prior to or at the commencement of the hearing as desiring to participate therein in any status. Respondent's employees appeared at the hearing as witnesses for either the Complainant or Respondent.

There is no longer any employment at this workplace.

The immediate abatement called for in the Citation for Serious Violation (Citation No. 1), under the circumstances of this case was reasonable.

The abatement called for in the Citation for nonserious violation (Citation No. 2), under the circumstances of this case was reasonable [R. pp. 1, 1a, 2; Ex. G-1, paras 7, 8, 9, 11; TR. 50; 183-84].

16. The Respondent's net worth is approximately $15 million. Republic's tie assembling operations at the workplace involved here have a net worth which is approximately $10,000. The Respondent's gross annual dollar volume of business done is approximately $36 million. Republic's tie assembling operations at the workplace involved here have a gross annual dollar volume of business done of approximately $60,000.

The Respondent has an average total employment of approximately 850 employees. Republic's tie assembling operations at the workplace involved here had an average total employment of 7 employees [Ex. G-1, para. 10].

17. The Secretary's Area Director proposed a monetary penalty in the amount of $600 for the Serious Violation set forth in Citation No. 1 and no monetary penalty for the two violations set forth in Citation No. 2. The amount of this penalty was arrived at by the Complainant in accordance with a standard procedure under which the maximum penalty for a Serious Violation, $1000, was reduced by 40 percent, to wit, 10 percent for Respondents good faith, 10 percent for Respondent's size and 20 percent for Respondent's lack of previous violations under the Act [R. p. 2; Ex. G-3; TR. 225-29; 242-46].

CONCLUSIONS OF LAW

1. Jurisdiction of this action is conferred upon the Occupational Safety and Health Review Commission by Section 10(c) of the Act and the undersigned has been duly designated to hear and make determinations upon this proceeding and to report such determinations to the Commission pursuant to Section 12(j) of the Act.

2. At all times involved in this action, Respondent herein was an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Act.

3. At all times involved in this action, the Respondent through its Republic Creosoting Division, furnished employment to its employees at a workplace within the city of Jeffersonville, State of Indiana, and the Act is applicable to such employment within the meaning of Section 4(a) of said Act.

4. On August 11, 1971, the Secretary, pursuant to the provisions of Sections 9(a) and 10(a) of the Act, issued to this Respondent a Citation for Serious Violation (Citation No. 1) and a Citation for Non-Serious Violation (Citation No. 2), and Notification of Proposed Penalty thereon.

On August 13, 1971, pursuant to Section 10(c) of the Act, this Respondent timely filed with the Secretary its notification of intent to contest these Citations and proposed penalty. The Secretary thereupon transmitted this case to the Commission which, pursuant to the provisions of Section 10(c) of the Act, has jurisdiction of the parties and of the subject matter herein.

5. Section 5(a)(1) of the Act provides that:

Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

6. The condition found to exist at the Respondent's workplace on July 9, 1971, which formed the basis of Citation number 1 issued herein, namely, "Binders on the cross-tie load were released without securing with unloading lines or other unloading device," constituted a recognized hazard which was likely to cause, and did cause, the death of one of Respondent's employees. Said condition is a violation of Section 5(a)(1) of the Act.

7. The conditions found to exist at the Respondent's workplace on July 30, 1971, which formed the basis of Citation number 2 issued herein, namely, "Adequate warning signs prohibiting unauthorized foot or vehicle traffic in storage yard were not posted to cover all areas. Unstable piles of cross-ties are not barricaded or otherwise made safe," constitute a recognized hazard that was likely to cause death or serious physical harm to employees working in these areas. Said condition is a violation of Section 5(a)(1) of the Act.

8. The violations set forth in both Citation number 1 and 2 constitute serious violations within the meaning of Section 17(k) of the Act.

This Respondent cannot divest itself of responsibility for the violation charged in Citation number 1 by alleging that the deceased employees misconduct on July 9, 1971, caused the fatal injuries. The final responsibility for violations of the Act rests with the employer and the Act imposes upon the employer the responsibility to take steps necessary to provide a place of employment free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees. The Respondent here failed to provide adequate supervision of its employees which created the hazardous condition herein found to exist.

The practice of the Respondent of placing off-loaded ties in wind-rowed piles at this workplace, and the failure to either make these piles stable or to guard them by signs or barricades, as alleged in Citation number 2, resulted in the failure of the Respondent to furnish a place of employment which was free from recognized hazards that were likely to cause death or serious physical harm to its employees. There was a substantial probability that death or serious physical harm could result from this practice. The Respondent knew, or with the exercise of reasonable diligence, could have known of the hazards of falling ties created by such a practice. It continued this practice for approximately three weeks after one of its employees was fatally injured by falling ties.

9. The Citation for Serious Violation, (Citation No. 1) was properly issued pursuant to Section 9(a) of the Act. The Act does not require that the Secretary's representative personally observe a violation during an inspection before a citation may properly issue. Nothing in the legislative history of the Act could be found to support Respondent's contention. A citation may properly issue based upon either an inspection or investigation under the provisions of Section 9(a) of the Act.

10. Contrary to Respondent's contention, there is no deprivation of due process of law under the Act by the Congressional delegation of investigatory, prosecutory and adjudicatory functions thereunder.

The Secretary of Labor, among other functions, is delegated the responsibility of investigating and inspecting workplaces pursuant to Section 8 of the Act. If upon such inspection or investigation there is a belief that the requirements of Section 5 or any standard, rule or order prescribed by Section 6 of the Act has been violated or any regulation prescribed pursuant to the Act has been violated, he is authorized by Congress to issue Citations alleging such violations pursuant to Section 9 of the Act.

If anyone charged with an alleged violation wishes to contest the same, the matter is thereupon referred to the Occupational Safety and Health Review Commission, an independent body, for adjudication pursuant to Section 10(c) of the Act. The role of the Commission is exclusively adjudicatory. The decisions of the Commission are subject to judicial review pursuant to the provisions of Section 11 of the Act. The Act clearly meets the due process requirements of the constitution.

Neither is the Act indefinite or uncertain in its application to Respondent. Section 5 of the Act establishes objective requirements to which employers must adhere with as much specificity as common law principles of law in other types of actions. The lack of authoritative judicial interpretations of the provisions of the Act furnishes no basis for a conclusion that the Act itself is indefinite or uncertain. In this case the violations were adequately described in the Citations as issued to sufficiently inform the Respondent of the nature of the violations to allow it to prepare its case.

11. The periods for abatement set forth in the Citations here involved, under the circumstances of this case, were reasonable.

12. The Citations and Notice of Proposed Penalty issued herein were properly served upon this Respondent and the said Citations and notice of hearing were posted by this Respondent consistent with the provisions of Section 9(b) of the Act and the regulations promulgated thereunder.

13. Due consideration having been given to the proposed penalty based upon the violation set forth in Citation number 1, pursuant to the provisions of Section 17(j) of the Act, it is determined that said penalty, under the circumstances herein, is not unappropriate.

14. The practices of Respondent set forth under items numbered 1 and 2 of Citation number 2, are herein found to jointly constitute a serious violation of Section 5(a)(1) of the Act. The provisions of Section 17(b) of the Act make the assessment of a penalty for a serious violation mandatory. Pursuant to the provisions of Section 17(j) of the Act it is appropriate to assess a penalty in the amount of $700 for said violation, no credit being allowed for good faith.

ORDER

Based upon the foregoing findings, conclusions and determinations, and pursuant to the provisions of Section 10(c) of the Act, it is hereby,

ORDERED:

1. That the Citation for Serious Violation (Citation number 1) and Proposed Penalty dated August 11, 1971, addressed to the Respondent herein, as issued by the Secretary, are hereby affirmed.

2. That the Citation for Non-Serious Violation (Citation number 2) and Proposed Penalty dated August 11, 1971, addressed to the Respondent herein, as issued by the Secretary, are hereby modified. The violation therein alleged and herein found to exist on July 30, 1971, is a serious violation within the provisions of Sections 5(a)(1) and 17(k) of the Act.

3. Giving due consideration to the size of Respondent's business, the gravity of the violation, the good faith of Respondent and its history of previous violations, it is not inappropriate to access a penalty in the amount of $700 for the serious violation herein found to exist at Respondent's workplace on July 30, 1971.