FROZEN FRUIT CONCENTRATES, INC.
OSHRC Docket No. 3313
Occupational Safety and Health Review Commission
December 19, 1974
[*1]
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: MORAN
OPINION:
MORAN, CHAIRMAN: A decision of Review Commission Judge William E. Brennan is before this Commission for review pursuant to 29 U.S.C. § 661(i).
Having examined the record in its entirety, the Commission finds no prejudicial error therein. Accordingly, the Judge's decision is hereby affirmed.
CONCURBY: CLEARY
CONCUR:
CLEARY, COMMISSIONER, concurring: I directed review of this case granting respondent's petition for discretionary review of the Judge's decision. The petition asserts that substantial evidence does not support the Administrative Law Judge's findings of fact. The factual issue raised is whether the hazard of falling objects existed, thus requiring the use of an overhead guard on a forklift, as required by 29 CFR § 1910.178(m)(9). In response to the Commission's form notice inviting the parties to raise additional issues, respondent also raised subsequently the issue of whether the violation was "serious" within the meaning of section 17(k) of the Act.
The findings and conclusions of the Administrative Law Judge are not "sacrosanct," and are not necessarily binding upon us. Adolph Coors Co. v. [*2] Federal Trade Commission, 35 Pike & Fischer Ad. Law (2n) 176 (10th Cir. June 4, 1974). Nevertheless, having reviewed the entire record, I find the Judge's findings of fact to be supported by a preponderance of the evidence, and do not disturb them. Also, the Judge's finding that the violation is "serious" is affirmed for the reasons assigned by him and those stated in Natkin & Co., No. 401 (April 27, 1973).
For the foregoing reasons, I concur in the disposition of this case.
[The Judge's decision referred to herein follows]
BRENNAN, JUDGE: This is an action arising under the provisions of Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 659(c), hereinafter the Act), to review a Serious Citation n1 and penalty proposed thereon issued pursuant to Sections 9(a) and 10(a) of the Act, on May 23, 1973, by the Secretary of Labor through the Area Director of the Occupational Safety and Health Administration for Puerto Rico, (hereinafter Complainant) to Frozen Fruit Concentrates, Inc., of Bayamon, Puerto Rico, (hereinafter Respondent).
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n1 Respondent was also issued on May 24, 1973 a Non-Serious Citation consisting of three numbered Items, with proposed penalties of $40.00 for Item No. 2, $140.00 for Item No. 3 and no penalty for Item No. 1. At the commencement of the hearing, Respondent filed a Motion to Withdraw its Notice of Contest to this Non-Serious Citation (Exh. B). This Motion, complying with Commission requirements and with the stated lack of any objection by Complainant (Exh. C), was granted (Tr. 5).
[*3]
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The Serious Citation alleged a violation of Section 5(a)(2) of the Act by Respondent on May 18, 1973, at its plant located at Bayamon, Puerto Rico (hereinafter worksite), because of its failure to comply with the Occupational Safety and Health Standard set forth at 29 CFR 1910.178(m)(9), in the following words:
Description of alleged violation
Failure to use an overhead guard as protection against falling objects, on the fork truck used in the drive-in freezer.
Abatement was to be accomplished "Immediately upon receipt of this Citation." A penalty of $750.00 was proposed.
Pursuant to Section 10(c) of the Act, Respondent, through its counsel, gave notice of its intention to contest the Citation and proposed penalty. n2
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n2 Both Citations, Serious and Non-Serious were contested. See footnote 1 supra.
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After the filing of the Secretary's Complaint and Respondent's Answer, this case came on for hearing at San Juan, Puerto Rico, [*4] on October 3, 1973.
No other person desired party status.
All briefs and replys were finally filed by December 28, 1973.
Having considered the entire record herein, the testimony and demeanor of the witnesses, the exhibits, stipulations, representations and admissions of the parties, it is concluded that the substantial evidence of record considered as a whole supports the following findings of fact and conclusions of law.
At the outset of the hearing, the parties entered into evidence their joint stipulation which reveals among other things, the following.
The Respondent is incorporated at and under the laws of the Commonwealth of Puerto Rico with its principal office located in Bayamon, Puerto Rico. It exports fresh juices to the United States. No injuries were connected with the alleged violation and Respondent has no history of previous violations. Respondent is of medium size with an average daily number of 50 employees. Its total sales during 1972 were in excess of one million dollars. Proper posting of the Citation and Notice of Hearing as well as proper services of said Citation and Notification of Proposed Penalty was acknowledged (Exh. A).
The Standard allegedly [*5] violated provides as follows:
29 CFR 1910.178(m)(9) -- Powered industrial trucks.
(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.
There is no substantial controversy in the evidence of record as to the facts surrounding the alleged violation. On May 18, 1973, Compliance Officer Jimenez inspected Respondent's plant. During this inspection, sometime about 3P.M. he observed one of Respondent's forlift trucks, without an overhead guard, parked in front of a drive-in freezer room. This truck had two pallets on its tangs or forks. Each pallet carried 10 layers of cartons. Each carton contained 24-6 oz. cans of fruit concentrate. Each loaded pallet measured 45 inches high. One pallet load was stacked atop the other loaded pallet. Thus the top of the load was 90 inches from the concrete surface upon which the forklift was parked. He photographed this scene as well as the inside of the drive-in freezer. These [*6] photographs were admitted into evidence as photo #1 of the forklift truck, #2 and #3 of the interior of the freezer.
Upon the Compliance Officer's direction, this forklift truck was immediately taken out of service and sent to Respondent's maintenance department.
The forklift operator testified that this truck had been equipped with an overhead guard, but that the rear supports for the guard had been damaged on May 17, 1973. Thus on the day of the inspection, May 18th, the driver, about 8:30 A.M., removed the guard from the truck because of the vibration. The driver notified his "boss" and the maintenance supervisor of the condition of the guard and they had knowledge that this truck was operated after 8:30 A.M. on May 18th without the guard in place.
This truck was used between 8:30 A.M. and about 3:30 P.M. on May 18th to take cartons of juice concentrate stacked on pallets as shown in photo #1, from the production line, a distance of about 100 feet to the drive-in freezer. Most of these loads consisted of one stacked pallet. The truck ran on smooth unbroken concrete. Upon arrival at the freezer, the loaded pallets were stacked three tiers high, so that the top level or row [*7] of the cartons in the third tier were at a height of 135 inches, or 11 feet 3 inches above the floor. Thus some of the palletized boxes were above the head of the driver when he was stacking these loads to the third tier level within the freezer.
The driver further testified that it was his own decision to remove the overhead guard and he did so believing that the "veranda," the uprights on the front of the forklift, would prevent the load from falling back upon him, based upon his long experience in operating this type of equipment at Respondent's plant.
However, the record clearly establishes that the driver's immediate supervisor, Mr. Castro, saw ths driver using the forklift truck without the overhead guard during the hours of 8:30 A.M. to about 3:30 P.M. on May 18th.
After this truck was removed from service on the afternoon of May 18th, the overguard was reinstalled on May 19th before it was put back into service. This was confirmed by reinspection on May 21, 1973.
Based upon the foregoing, it is concluded that Respondent was in violation of the Standard cited, 29 CFR 1910.178(m)(9), on May 18, 1973 as alleged.
Respondent's reliance upon the case of Secretary [*8] of Labor v. Hennis Freight Lines, Inc.,
That case stands for the proposition that under the Standard at issue: ". . . if there is no possibility of falling objects, there is no requirement for an overhead guard" (1 OSHC 1179, 1180).
The unrebutted testimony of the driver of the forklift in question here, was that on May 18th, he did stack boxes of canned juice to a level of 11 feet 3 inches within the freezer, while the headguard was not in place. Hence, there was the possibility of one or more boxes on the top of the stacked merchandise being dislodged and striking the driver.
Section 17(k) of the Act provides that ". . . a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result. . . from one or more practices. . . (or) operations. . . which. . . are in use. . . . unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation."
The record here establishes that the supervisor of the forklift driver saw the forklift being operated without an overhead guard on [*9] May 18th. Thus, respondent knew of the violative condition as the knowledge of the supervisor is imputed to the Respondent.
Additionally, if only one box containing 24-6 oz. cans, was dislodged and struck the driver, this nine pound object could cause serious physical harm. Of course, the harm would be greater if more than one box toppled upon the driver. It is therefore concluded that the violation found to exist at Respondent's worksite on May 18, 1973, was a serious violation within the meaning of Section 17(k) of the Act.
There remains for determination what penalty should be assessed pursuant to Section 17(b) of the Act.
The Complainant proposed a $750 penalty, reducing the statutory maximum penalty of $1000, 10% for good faith, 10% for no prior history n3 and 5% for size.
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n3 Complainant concedes in brief, that based upon an erroneous assumption of facts, a credit of 20% should have been allowed for no history of previous violations.
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I find such a penalty inappropriate.
The record establishes [*10] that only one employee was exposed to the hazardous condition, and this exposure was relatively brief, during the periods that the unguarded forklift truck was used within the freezer to stack palletized boxes to the third level or tier. The exact amount of time of this exposure can not be determined on the evidence of record.
Further, the forklift was immediately removed from service upon discovery by the Compliance Officer, and was repaired before it was again put into service. Respondent's other forklift truck, not the subject of this case, was properly equipped with an overhead guard. The unguarded forklift truck was operated for only a six hour period before it was sent to the maintenance department for repairs.
No injuries were associated with the violation herein, and Respondent has no known history of previous violations of employee safety or health laws. The record is silent as to Respondent's safety program, if any, although it does support the conclusion that the Compliance Officer was courteously received and abatement was accomplished immediately. Respondent, with 50 employees and total sales during 1972 in excess of one million dollars, must be considered [*11] a medium sized employer.
Fully considering the factors mandated by Section 17(j) of this Act in the light of the evidence of record it is concluded that a civil penalty in the amount of $200 is appropriate.
At all times involved in this case, Respondent furnished employment to its employees at the worksite hereinbefore identified. The Act is applicable to such employment within the meaning of Section 4(a) thereof and the Commission has jurisdiction of the parties and the subject matter herein pursuant to the provisions of Section 10 thereof.
Based upon the foregoing findings and conclusions and pursuant to the provisions of Sections 10(c) and 12(j), of the Act, it is hereby ORDERED that,
1. The Citation for Serious Violation dated May 23, 1973 addressed to the Respondent herein is AFFIRMED.
2. A civil penalty in the amount of $200.00 is assessed based upon the Serious Violation herein found to exist.
3. The Citation for Non-Serious Violation dated May 24, 1973, Consisting of three Items, and the penalties proposed thereon in the total amount of $180.00, based upon Respondent's Motion to Withdraw its Notice of Contest thereto having been granted, are AFFIRMED.