SUGAR CANE GROWERS COOPERATIVE OF FLORIDA
OSHRC Docket No. 7673
Occupational Safety and Health Review Commission
June 15, 1976
[*1]
Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Beverley R. Worrell, Regional Solicitor, USDOL
R. Bruce Jones for the employer
Katherine Gruenheck, Migrant Legal Action Program, Inc., for Intervenor
OPINIONBY: CLEARY
OPINION:
DECISION
CLEARY, Commissioner:
On November 14, 1974, Administrative Law Judge Charles K. Chaplin affirmed a citation for a violation of section 5(a)(1) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. (hereinafter "the Act"). On December 18, 1974, Commissioner Moran on his own motion directed review of the Judge's decision. Submissions were invited on the following issues:
(1) Does the record demonstrate that complainant specified the particular steps respondent should have taken to avoid citation, and demonstrated the feasibility and likely utility of those measures? National Realty and Construction Co., Inc. v. OSAHRC et al., 489 F.2d 1257 (D.C. Cir. 1973).
(2) Was the truck in which employees were riding at the time of the alleged violation "a place of employment" as that term is used in 29 U.S.C. § 654(a)(1)?
(3) Was there sufficient evidence of record to sustain the Judge's finding that the respondent violated the [*2] Act as alleged?
All parties have filed briefs.
We first consider whether each stake-body truck used to transport employees is a "place of employment" within the contemplation of the general duty clause, section 5(a)(1) of the Act (29 U.S.C. § 654(a)(1)). n1 The pertinent facts are essentially undisputed. Respondent is a sugar cane growers cooperative. It harvests and processes sugar cane, and employs American agricultural laborers to cut cane and perform associated tasks on sugar cane farms. Almost all the laborers wait every morning at the same street corner in the town of their residence. Respondent's stake-body trucks arrive; pick up the workers; and transport them in a standing position to the fields to be worked that day, including moving from field to filed during the day; and take them back at the end of the day. The transportation is provided at the employer's expense, but the workers are not required to use it. Occasionally, as a convenience, some use their own cars, especially on cold mornings or when the fields are only a short distance away. Others have no other way to get to work and must use the trucks. It does not appear that wages are paid for the transport [*3] periods.
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n1 The general duty clause also requires that the employer furnish his employees "employment" free of recognized hazards. Because we conclude that the trucks are "places of employment," we need not consider whether their use is also within the reach of the term "employment."
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In resolving this question, we note at the outset certain general principles. The term "place of employment" should not be read restrictively. Cf. Bechtel Power Corporation, BNA 4 OSHC 1005, 1007, n.3, CCH 1975-76 OSHD para. 20,503 at 24,499 n.3 (No. 5064, March 11, 1976). "To draw narrow boundaries which would have the effect of restricting the area of protection would effectively defeat the clear purpose of the statute." Clarkson Constr. Co. v. O.S.H.R.C., No. 75-1070 (10th Cir., January 21, 1976). See REA Express, Inc. v. Brennan, 495 F.2d 822, 825 (2d Cir. 1974). This approach is consonant with the legislative history of the Act.
In talking about plant, factory, and so forth, the place of employment could [*4] ne the cab of a truck, the place of employment could be a private automobile, or the place of employment could be that of one who moves around from one place to another, such as an installer in a home or in a factory. All these are covered under this measure.
Remarks of Senator Saxbe, 116 Cong. Record 36523 (October 13, 1970), set forth in Staff of Senate Comm. on Labor & Public Welfare, 92d Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970 348 (Comm. Print 1971). Cf. Allied Electric Co., 1 OSAHRC 440, BNA 1 OSHC 3140, CCH 1971-73 OSHD para. 15,103 (No. 433, June 23, 1972) (Administrative Law Judge) (discussing meaning of "workplace").
Both the Secretary and the intervenor, Migrant Legal Action Program, Inc., have urged that, like Judge Chaplin, n2 we consider certain principles developed for the adjudication of cases arising under other social legislation -- workmen's compensation laws, in particular. The analogy, however, is not compelling, and though we find those principles to be helpful, they are not controlling. With this in mind, we note the usual rule that transportation to or from work, furnished by the employer as an [*5] incident of the employment, falls within the scope of such remedial legislation. See e.g., Liberty Mutual Insurance Company v. Gray, 137 F.2d 926, 928 (9th Cir. 1943); Bryan v. Aetna Casualty & Surety Company, 381 F.2d 872 (8th Cir. 1967) (collecting cases). See generally, 10 ALR 169; 21 ALR 1223; 24 ALR 1233; 62 ALR 1438; 145 ALR 1033. Simply stated, "[t]he notion is that when the employer furnishes a conveyance to the employee to go to and from his work, the transit is part of the 'course of employment.'" In re Spencer Kellogg & Sons, 52 F.2d 129, 133 (2d Cir. 1931). See also, Cardillo v. Liberty Mutual Insurance Company, 330 U.S.C. 469 (1946); Voehl v. Indemnity Insurance of North America, 288 U.S. 162 (1933). The provision of transportation need not be an express part of the contract of employment. It may stem from the employer's custom, or from a practice that is beneficial, convenient or advantageous to him. That wages are not paid while the employee is transported, that the transportation may be discontinued at any time, that the employees are under no obligation to use the vehicle provided and may use other available means, does [*6] not alter this principle. 99 C.J.S. Workmen's Compensation § 235. See Bryan v. Aetna Casualty & Surety Company, supra. Similarly, whether the transportation is provided gratuitously, or as a condition of employment, is immaterial. See California Casualty Indemnity Exchange v. Industrial Accident Commission, 132 P.2d 815, 816-818, 21 Cal.2d 461 (1942) (in bank). And under the Act, as the Tenth Circuit has correctly stated, "[t]he important aspect is that the truck was used to further the [respondent's] project." Clarkson Constr. Co. v. O.S.H.R.C., supra. Respondent's contrary assertions are accordingly untenable. We find that each of these trucks is a "place of employment" within the meaning of the general duty clause.
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n2 Judge Chaplin did not discuss the appropriateness of using these workmen's compensation principles in cases arising under our Act. At least one court has noted that our Act differs greatly from traditional workmen's compensation laws. National Realty & Constr. Co., Inc. v. O.S.H.R.C., 489 F.2d 1257, 1260 n.6 (D.C. Cir. 1973), hereinafter "National Realty."
[*7]
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In order to prove a violation of section 5(a)(1) of the Act, it must be shown that (1) the employer failed to render its workplace free of a hazard, which was (2) recognized, and (3) causing or likely to cause death or serious physical harm. In addition, the record must disclose that there are feasible steps that the employer can take to avoid the hazard. See generally, National Realty & Constr. Co., Inc. v. O.S.H.R.C., 489 F.2d 1265, 1268 (D.C. Cir. 1973), hereinafter "National Realty." The Judge found proof of each of these elements in the record. The evidence pertaining to the first and third numbered elements needs no further discussion and we adopt the Judge's report. As to the second numbered element, the Judge found that the hazard involved was "recognized" by the general public, by respondent's industry, and by respondent itself. See generally, Brennan v. O.S.H.R.C. and Vy Lactos Laboratorjes, Inc., 494 F.2d 460 (8th Cir. 1974) (employer knowledge sufficient). In the main part of its brief on review, respondent vigorously claims that the evidence of the "recognition" [*8] factor is insufficient.
The record shows the following. Exhibit C-1 is a letter dated August 9, 1973, from the Assistant Regional Director for Manpower of the Department of Labor to the Secretary-Treasurer of the Florida Fruit and Vegetable Association (FFVA). The letter detailed certain observations and issues of concern relating to the working conditions of farm workers. In pertinent part, it stated as follows:
D. Transportation of Workers to Fields
It was observed during the course of the investigation that most workers were transported from their barrack to the fields in trailer trucks without regard to individual seating. It is our understanding that the industry has agreed to the following:
1. Fixed seats in vehicles with protective covering will be available for each worker transported during the 1973-74 pre-harvest and harvest season; and
2. All workers will be transported in busses beginning with the 1974 season.
The Manager of the FFVA Labor Division replied in a letter dated August 31, 1973, admitted as Exhibit C-2. In pertinent part, it states: n3
In response to your letter . . ., concerning problem areas surrounding employment in sugar cane, please [*9] be advised of the following:
1. Copies of your letter were distributed to all attending Board Members of the Florida Sugar Cane League at their meeting in Belle Glade on August 14, 1973. Representatives of all cane mills were in attendance.
2. To ensure all FFVA sugar cane employers including the smaller employers received the information contained in your letter of August 9, a general synopsis of the major points of your letter was distributed to the top administrative personnel of all FFVA's Labor Bulletin Sugar Supplement No. S-106, dated August 9, 1973. This Sugar Supplement is used on a regular basis to keep FFVA sugar members advised of pertinent labor-related information.
To further ensure that all of our cane growers are advised of the specifics of your letter, a copy of the actual letter will be attached to Sugar Supplement No. S-107, which we expect to prepare and distribute by September 1, 1973.
* * *
7. With respect to transportation to and from the fields, the sugar industry in April 1973 agreed to provide protective covering on all transport vehicles in the 1973-74 season and by the 1974-75 season, all workers will be transported in buses or fixed seat vehicles [*10] with protective covering.
The author of the reply, Mr. George F. Sorn, testified that respondent is a member of the FFVA. He also stated that he attended a meeting between FFVA and Labor Department Manpower officials on July 27, 1973, during which the issue of safe transportation was discussed.
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n3 These exhibits are relevant concerning the "recognition" element, and may be relied upon. National Realty, 489 F.2d at 1265 n.32 (industry knowledge); Brennan v. O.S.H.R.C. and Vy Lactos Laboratories, Inc., 494 F.2d 460 (8th Cir. 1974) (employer knowledge).
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The intervenor introduced a Florida statute, section 317. 9931-317.9932 requiring securely attached seating for the transportation of migrant farm workers; a proposed amendment passed by both houses of the Florida legislature, but not yet signed by the Govenor, which would exempt carriers of fewer than nine migrant farm workers was also introduced by respondent. n4 (The proposed exemption does not alter the fact that the statute tends to show that the cited [*11] condition is widely recognized as hazardous).
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n4 Regulations and ordinances tending to show that the transportation hazard was recognized generally were also referenced. Thus, 29 CFR § 1926.601(a)(8) and (9) require that construction industry vehicles used to transport employees have firmly anchored seats and seat belts. Such regulations also tend to show that experts in transportation safety consider the cited activity hazardous. National Realty, 489 F.3d at 1265 n.32.
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An expert in transportation safety, Dr. August L. Burgett, a native of Florida who was familiar with the geography of the area in question, testified that the hazard was recognized generally. He further stated that there was nothing unique about the use of vehicles in the sugar cane industry that would in any way cause his opinion to vary. He had had, however, no personal contact with respondent, nor did he know of anyone who had actually provided respondent with information that the condition cited was hazardous, and he could not testify [*12] that this hazard was recognized by the agricultural industry. But see, National Realty, 489 F.2d at 1265 n.32. He stated, however, that all Department of Transportation regulations (see e.g., 49 CFR § 393.93, officially noticed by Judge Chaplin) and supporting documentation are published in the Federal Register, and are available to anyone. n5
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n5 The Area Director of the Occupational Safety and Health Administration for south Florida, Mr. George D. Barlow, testified that two highly publicized sugar cane industry accidents had occurred on December 31, 1973, and January 7, 1974. In the first, a stake body truck was involved in an accident and all 38 farm workers standing in its bed were hospitalized; in the second, a tractor-trailer van carrying about 80 unseated employees turned over, killing one person, and causing about 70 others to either be hospitalized or receive medical attention. His investigation disclosed that a lack of seating contributed to the injuries suffered. The finding, because it was the subject of pending litigation, was not formally conveyed to the local argicultural industry. The responsible employer had received and contested citations associated with the incidents. Agency policy prohibited discussion of the cases. Two other local companies did however come to OSHA offices for an informal conference on these matters. Though not conclusive, this evidence, especially of the informal conferences, does have relevance to the recognition element. I would rely on it as some evidence that respondent was reasonably put on inquiry notice that its safety practices may have been defective. Cf. Ballard v. Nye, 138 Cal. 588, 72 P.156, 160 (1903). Chairman Barnako does not share this view because he finds that Mr. Barlow's finding was not adequately disseminated.
[*13]
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Mr. James E. Blount, the former Area Director in south Florida, a traffic and vehicle safety engineer and expert, testified that after suffering a considerable number of fatalities, the United States Army now prohibits any person from standing in a vehicle during transportation. n6 He further testified that in August 1971 the sugar industry invited him to speak at a seminar in Clewiston, Florida. "Most of the sugar grower's personnel," he stated, [including] their forem[e]n, were present at this meeting . . . ." About 200 to 250 persons were present, including the president of respondent Sugar Cane Growers Cooperative, and its then safety director. Mr. Blount's remarks lasted one hour, and covered three safety hazards in the sugar cane industry that were not regulated by specific standards. The first two were employee exposure to the harmful effects of smoke from burning cane, and the overturning of farm tractors.
. . . And thirdly, the transporting of workers to and from the fields in open vehicles [.] . . . [A]t that particular time, one of the growers told me that they were going to buses, completely, [*14] and they did, in fact go the route of completely bussing all the people.
He told his audience that he considered it hazardous to transport workers in a standing position in open trucks or vans. He suggested that buses be used instead. These remarks about standees came in response to the question from the audience ". . . what do you consider a safe method of transporting workers to and from the field. . . [?]"
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n6 See note 4, supra.
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On another occasion, in September 1972, he spoke to the FFVA near Orlando (at Disney World); he was introduced by respondent's president to the audience of about 300 which included some citrus growers. Again, he stated that standing during transportation in open trucks and trailers was a hazard, and suggested that if buses could not be used, then a single-unit vehicle (hence, not a tractor-trailer) equipped with fixed seating be used. This subject consumed several minutes of his prepared presentation, which lasted about 35 minutes.
On cross-examination, Mr. Blount testified [*15] further.
Q To your knowledge, was anything ever disseminated from your office while you were down there other than the two rather brief comments that you just described?
A There were other meetings of the league, sugarcane league, in my office in Fort Lauderdale.
Q At which you attended?
A Well, in my office, yes. It was with me to discuss Federal Regulations as they pertain to the sugar industry and changes as they were occurring.
Q Discussing this particular question of fixed seats in buses and trucks, that question?
A This came up on every occasion.
* * *
A There were about four topics that were normally of interest to our office and the sugar industry, and that was all pertaining to the safety of the workers.
This evidence clearly preponderates in favor of the Judge's finding n7 that the hazard cited was recognized by the general public, by respondent's industry, and by respondent itself. n8
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n7 To whatever extent the Judge's findings rely on his evaluation of the credibility of witnesses, we find no reason to question his judgment. Evansville Materials, Inc., BNA 3 OSHC 1741, CCH 1975-76 OSHD para. 20,187 (No. 3444, November 28, 1975); Paul L. Heath d/b/a Paul L. Heath Contracting Company, 20 OSAHRC 297, BNA 3 OSHC 1550, CCH 1975-76 OSHD para. 20,006 (No. 5467, September 24, 1975). Cf. River Terminal Railway Company, BNA 3 OSHC 1801, CCH 1975-76 OSHD para. 20,215 (No. 4419, December 12, 1975).
n8 For my own part, I note that aside from questions of industry knowledge, the evidence is also sufficient to show that safety experts familiar with transporting standing workers in stake back trucks recognized this as a hazardous activity. National Realty, 489 F.2d at 1265 n.32.
[*16]
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Our final inquiry is one which was not explicitly mentioned in the Judge's opinion, but which is necessary before we enter an abatement order under section 5(a)(1). Respondent claims that the record demonstrates neither the particular steps respondent should take to abate the hazard, nor their likely utility nor feasibility. In view of the record, we must disagree.
The Secretary's allegedly feasible abatement alternatives would require respondent to either secure cargo and provide a single-body vehicle with fixed seating, or use buses or station wagons to transport workers. This was implicit in the citation, pleadings, and pre-hearing memorandum, and was clarified at the hearing. n9
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n9 National Realty, 489 F.2d at 1263-64. See also, Northwestern Bell Telephone Co. v. Nebraska State Ry. Commission, 297 U.S. 471, 476 (1936) (ambiguity cured at hearing).
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Dr. Burgett's testimony alone adequately establishes the likely [*17] utility of the alternatives. Securing loose objects, such as the ice, tongs, and water keg would have the likely utility, both under normal and abnormal conditions, of preventing those objects from moving about and injuring employees (especially those who were standing). He testified that if standees used a fixed seating system, they would not be subject to injury from being tossed about or ejected during normal driving conditions or as a result of an accident. Further, he stated that "a seat would provide a good measure of protection in the [event of a] rear-end impact." As to the likely utility of a covered vehicle (e.g., a bus or station wagon), Dr. Burgett stated that the top would prevent injuries caused by the ejection of passengers outside the vehicle. He was also of the opinion that, because stake body trucks have stiff and hard structures, passenger contact with such structures at travel speeds over ten miles per hour would produce skull fractures. n10
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n10 Respondent did not present, and the record does not supply, any rebuttal to this evidence of "utility". There is, for example, no record evidence showing that use of buses would increase hazards; all statements on that subject are unsupported assertions of counsel.
[*18]
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Mr. Blount testified that the Army also found the prohibition of standing and the provision of fixed seating to be feasible. He stated that with regard to the stake body trucks used by the sugar cane industry, feasible fixed seating would consist of seats attached to the floor and sides. In metal bodies, the seats would be attached by welding; in wood-bodied trucks; the seats would be bolted. Finally, we note that respondent, and the sugar cane industry, have agreed to use, and have been installing fixed seats in open vehicles, and now use buses to transport other farm workers. Obviously, these facts tend to show that the use of these measures is feasible. Boeing Airplane Company v. Brown, 291 F.2d 310, 315 (9th Cir. 1961) (such evidence both probative and admissible). See Fed.R.Evid. 407 (codifying prior law).
Under these circumstances, the citation must be affirmed. To the extent that it is consistent with this opinion, the Judge's report is accordingly adopted. To the extent of any inconsistency, it is hereby conformed to this opinion. Accordingly, the Judge's decision and order [*19] are modified and affirmed.
So ORDERED.
CONCURBY: MORAN
CONCUR:
MORAN, Commissioner, Concurring:
It is not a recognized hazard for a passenger to stand while riding in a moving vehicle. Millions of workers throughout this nation are required to stand on buses and subways everyday when using public transportation to and from their places of work. I know of no effort to prohibit standing on such public conveyances on the basis that it is a recognized hazard.
In my opinion, an employer who gratuitously provides his employees with transportation to and from his worksite should not be subjected to more stringent requirements than those which are currently acceptable in the mass transportation of commuters via rapid transit systems which operate in virtually every metropolitan area of the United States and are, indeed, subsidized and encouraged by the Federal Government.
Nevertheless, I generally agree with the reasoning in Judge Chaplin's decision, which is attached hereto as Appendix A, and therefore join in my colleagues' affirmance of the disposition he ordered in this case. However, my concurrence is based solely on the fact situation contained in this record, i.e.: the slippery conditions created [*20] by melting ice might cause employees to fall and heavy materials which could easily have been secured in the truck-bed presented a striking hazard to the employees riding in the truck.
APPENDIX A
DECISION AND ORDER
Joe D. Sparks and Edwin Hernandez, for Complainant
Sidney A. Stubbs, Jr. and R. Bruce Jones, for Respondent
Katie Gruenheck, for Intervenor, Migrant Legal Action Program, Inc.
Charles K. Chaplin, Judge
This is a proceeding pursuant to section 659 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereafter the Act) wherein the respondent contested both the fact of violation and the proposed penalty of $600 for an alleged serious violation of § 5(a)(1) n1 of the Act.
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n1 Section 5(a) Each employer ---
(1) 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.
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The violation as cited was described in the citation as:
"Employer [*21] failed to provide employees employment and a place of employment free from recognized hazards that are likely to cause death or serious physical harm in that on April 9, 1974, employees were being transported in a vehicle with no provisions for seating and with inadequate securing of loose materials in the same compartment, including blocks of ice, water kegs, and ice tongs."
In its answer to the complaint respondent admitted it was an employer engaged in a business affecting commerce within the meaning of the law.
In response to complainant's request for admissions respondent admitted that on or about April 9, 1974, it had transported three individuals in a standing position in the truck bed of its motor vehicles to a point where they were to work for respondent. In addition, the truck bed contained loose material including blocks of ice, water kegs and ice tongs. On April 9, 1974, there were no seats in the truck bed but they are now being added.
Issues
In its opening statement respondent argued that to charge its conduct in this instance as constituting a recognized hazard is violative of the due process clause of the Constitution. This contention was thoroughly discussed [*22] I am in accord with Judge Brennan's reasons and also reject this argument.
The issues to be considered in this decision are:
(1) Were the individuals observed being transported in the bed of respondent's trucks in an employee status at the time observed?
(2) Is it a recognized hazard to ride in the bed of a truck in a standing position without fixed seating where there is unsecured equipment?
(3) Does the fact that the transportation was available as a convenience and not required make it any less a recognized hazard or place of employment? and
(4) Is such transportation likely to cause death or serious injury?
The Evidence
A representative of the Florida Fruit and Vegetable Association testified that respondent was a member of the Association.
The complainant's inspector, compliance officer Francis L. Silverberg, testified that he inspected respondent on April 9, 1974, because of an employee complaint. The inspection commenced at approximately 6:45 a.m. and Mr. Silverberg observed the transportation situation admitted by respondent and reflected in the photographs [*23] admitted into evidence as C-3 and C-4. He also saw another truck pull out of the pick-up area with six women standing in the rear (Tr. 52). He observed that each truck contained items that were not secured in any way (Tr. 54) including blocks of ice.
Mrs. Margaret Jean Bradley testified that she was employed by respondent on the date of inspection (Tr. 62) and, as a convenience, utilized transportation offered by respondent to get to work. This was because the worksite changed from farm to farm. However, on occasion when it was convenient she drove her own car to the farm being worked (Tr. 65, 71). She identified the truck shown in exhibit C-3 as the type of vehicle she frequently rode in with other employees and unsecured water kegs and ice (Tr. 64). There were no seats for any employees riding in the back of the truck. When riding the truck she met it at the same designated spot each morning (Tr. 72). Another employee testified substantially to the same effect (Tr. 73).
August L. Burgett, a safety standards engineer in the office of Crash Worthiness of the Department of Transportation, was offered and accepted as an expert witness (Tr. 88). He testified that the unsecured [*24] objects in the truck bed constituted a hazard to occupants of the truck bed during normal driving and in a crash environment (Tr. 91). The standing occupants were also exposed to the hazard of being thrown into contact with the truck body or being projected out (Tr. 94). He expressed the opinion that there was a high likelihood of death or head injury resulting from any vehicular accident (Tr. 97) and fractures resulting from moving objects. He felt that this was a generally recognized hazard (Tr. 105, 111). He based his opinion on controlled experiments, his education and analysis of actual crashes (Tr. 109).
In the process of considering an objection to a question proposed to Dr. Burgett it was developed that the Labor Department considered that a § 5(a)(1) violation in this situation would not exist if the cargo had been secure and seats provided to the riders.
George D. Barlow, the Labor Department area director for South Florida, testified that in December 1973 and January 1974 there had been accidents in circumstances similar to the instant case, involving the transport of agricultural employees working in the sugar cane industry. In considering the seriousness of the [*25] alleged violation there was considered that there were six employees exposed to loose equipment, a likelihood of serious injury if an accident occurred or the vehicle made a sudden stop. He found no standard applicable to this situation and thus cited respondent under § 5(a)(1). He had been the area director in South Florida for nine months and in that time he had learned through experience that the cited violation was a recognized hazard. In setting the proposed penalty in this case Mr. Barlow allowed respondent the maximum credit for good faith and history under the Act so that the initial $1,000 penalty was adjusted to $600. Immediate abatement was ordered because of the seriousness of the alleged violation. On examination by the intervenor, Mr. Barlow stated the two accidents he had referred to involved a flat bed stake truck and a 40 foot tractor trailer, and in each case no seats had been provided.
Mr. James E. Blount, former area director in South Florida, testified that he had been educated in traffic safety and had considerable experience with transportation of personnel in trucks. He stated that in August 1971 he addressed a sugar industry seminar and discussed transportation [*26] of employees. He was asked a question by respondent's president, who was accompanied by his safety director, and in answer he discussed hazards in the industry including the transporting of workers to the fields in open trucks for which the remedy was buses (Tr. 149). He again addressed the industry in September 1972 where respondent's president introduced him and he again discussed worker transportation. He stated further that he advised the conferees on both these occasions that were workers observed being transported in open trucks a citation would be issued (Tr. 152, 156).
The evidence also includes copies of Florida statutes requiring a seat for each farm worker transported over the state highway (Exhibit I-1) and a proposed amendment thereto limiting its application to a carrier transporting nine or more workers (Exhibit R-1).
Findings of Fact
1. On April 9, 1974, respondent transported several employees from a pick-up point in a local community to a farm field in the vicinity where the employees were to perform work for the respondent.
2. The transportation was a stake-body truck and employees rode in the cab and the truck bed. There were no seats for the employees [*27] in the truck bed. Supply items, including water coolers and large cakes of ice, were also transported in the truck bed and were not secured or separated from the employees.
3. Respondent's employees were under the supervision and control of respondent from the time they were picked up to be transported to the worksite, and the means of transportation was a place of employment.
4. Standing up in a moving truck without any form of body security is inherently dangerous.
5. Unsecured cargo has a tendency to move in the cargo area of a moving truck.
6. Injuries resulting to humans when struck by large solid inaminate objects range from crushing injuries to broken bones.
7. The injuries resulting from being ejected from a moving vehicle range from loss of consciousness to death.
8. Two or more employees were exposed to the hazard of injury.
9. Respondent has demonstrated good faith through its immediate abatement of the hazard even though contesting the fact of violation.
10. The gravity of the violation is moderate because while the probability of an accident is low, the probability of severe injury is high.
Discussion
It is clear to this judges that when respondent [*28] provided transportation to its employees from their local community to a workplace in the fields of the surrounding area, it was mutually convenient for both the employees and the employer. It is also clear that this same mode of transportation was utilized during the work day to change work locales. Since the inspection took place prior to the time the workers actually began work there is a question whether the circumstances are such that the transportation is more than that, i.e., an extension of the worksite. While the general rule is that traveling to and from a worksite is not deemed to arise out of or be in the course of the employment situation, this general rule is subject to exceptions which depend upon the nature and circumstances of the particular employment (cf., Voehl v. Indemnity Insurance of North America, 288 U.S. 162). In this case it would appear that the nature of respondent's work caused its worksites to vary from day to day and utilization of public transportation (if existent) was not feasible. Further, the workers involved are not likely to be in a position to furnish their own transportation. Thus, unless respondent furnished a means of transportation [*29] it is unlikely that it could have had available a full work crew. Accordingly, respondent was justified in undertaking to pick up and deliver its employees to the fields to work but when it did so it was obligated to use the greatest of possible care and when a truck is furnished for the employees to ride to and from work the truck then becomes part of the place of employment (In re Spencer Kellogg & Sons Inc., 52 F<2> 129).
There is no question in my mind that the general public is well aware of the "recognized hazard" in riding a moving vehicle in an unsecured upright position. Further, this view of the hazard involved in such riding was clearly enunciated to members of respondent's trade association on two occasions and on each occasion respondent had some be in attendance. While respondent makes much of the brevity of the particular comment respecting the transportation here in issue, such brevity is more than offset by the fact that in one instance the information was in response to a specific question which makes a much more lasting impression and this is especially so when the response is to a question from respondent's president. Thus, even if it were argued that [*30] this hazard was not generally recognized in the industry the record is clear that respondent had actual knowledge. See Brennan v. OSAHRC and Vy Lactos Laboratories, Inc., 494 F<2> 460.
Conclusions of Law
1. The respondent is, nd was at all time relevant to the issues herein, engaged in a business affecting commerce within the meaning of section 3(3) of the Act.
2. The respondent is, and was at all times herein mentioned, an employer within the meaning of section 3(5) of the Act and subject to the provisions of sections 4(a) and 5(a) of the Act and standards authorized by section 6.
3. The respondent was in violation of section 5(a)(1) of the Act.
4. The violation of section 5(a)(1) on April 9, 1974, was a serious violation within the meaning of section 17(k) of the Act in that there was a substantial probability that death or serious physical harm could result from the conditions which existed and the practices and operations which were in use, which were known by the respondent.
5. Due consideration has been given to the provisions of section 17(j) of the Act as applicable to the cited facts and it is concluded that the proposed civil penalty of $600 is appropriate. [*31]
ORDERED:
That the citation for serious violation and civil penalty proposed therefore, dated April 15, 1974, and directed to the respondent herein, be AFFIRMED in all respects.
CHARLES K. CHAPLIN, Judge, OSAHRC
Dated: November 14, 1974
Washington, D.C.