ULTIMATE DISTRIBUTION SYSTEMS, INC.

OSHRC Docket No. 79-1269

Occupational Safety and Health Review Commission

April 15, 1982

[*1]

Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor

Herbert Reader, President, Ultimate distribution Systems, Inc., for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Edward V. Alfieri is before the Commission for review under section 12(j), 29 U.S.C. 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). In his decision, the judge vacated a citation alleging that Respondent committed a serious violation of the Act because it failed to block the wheels of a trailer as required by 29 C.F.R. 1910.178(m)(7). n1 The judge concluded that the Secretary of Labor ("the Secretary") failed to prove the alleged violation by a preponderance of the evidence. The Secretary petitioned for review of the judge's decision and Commissioner Cleary directed review on the following issue:

Whether the administrative law judge erred in vacating a serious citation alleging a violation of 29 C.F.R. 1910. 178(m)(7) on the basis that the Secretary's introduction of circumstantial evidence failed to carry his burden of [*2] proving a violation by a preponderance of the credible evidence?

For the reasons that follow, we reverse the judge's decision and affirm the citation.

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n1 The standard provides, in pertinent part, as follows:

1910.178 Powered Industrial Trucks.

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(m) Truck operations.

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(7) Brakes shall be set and wheel blocks shall be in place to prevent movement of trucks, trailers, or railroad cars while loading or unloading. . . .

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I

Respondent, Ultimate Distribution Systems, Inc., operates a warehouse in Bayonne, New Jersey. On January 22, 1979, Respondent's employee Robert Young was injured at this workplace. The Secretary contends that the injury occurred while Young was backing a forklift from a trailer onto a warehouse loading dock. Specifically, he asserts that the trailer moved forward, causing the forklift to fall between the trailer and the dock where the forklift pinned Young to the ground.

Occupational Safety and Health Administration ("OSHA") compliance officer Fred Nemeth's investigation [*3] of the accident on February 14, 1979, led to the citation at issue. The Secretary proposed a $720 penalty for the alleged serious violation.

Nemeth interviewed several persons at Respondent's warehouse who reached the accident scene shortly after the forklift fell. He also talked with employee Young during his convalescence. According to compliance officer Nemeth, Young said the trailer moved as he backed the forklift from the trailer. Respondent's foreman told Nemeth that he did not know whether the trailer wheels were blocked when the mishap occurred.

Based on his investigation, Nemeth believed that the forklift fell between the trailer and the dock because the momentum of the forklift backing from the trailer onto the dock caused the trailer to move suddenly. He concluded that the trailer wheels were not chocked or blocked at the time of the accident. Indeed, in Nemeth's opinion, if wheel chocks had been in place, trailer movement would have been impossible and the accident could not have occurred.

The other witness for the Secretary, United States Customs Service officer Mark Fleming, testified that he arrived at the accident scene 2 or 3 minutes after he heard the forklift [*4] fall. By then, Fleming explained, the trailer had been pulled away from the dock to permit Young's removal from under the forklift. Fleming further testified that, upon his arrival, he "looked for some type of material to place between the ground and the forklift to try to alleviate the weight off the man's back, and there was nothing available to place there, indicating to me that there were no chocks, nothing available." According to Fleming, he could not find any pallets, lumber or other material to raise the forklift off Young. Fleming did not know if anything had been removed from the scene before he arrived.

Respondent presented no evidence in rebuttal to the Secretary's case.

II

In vacating the citation, the judge found that the Secretary failed to satisfy his burden of proving the alleged violation by a preponderence of the evidence. He made the following findings of fact:

1. The record contains no probative evidence to show what caused the trailer to move away from the loading dock while Mr. Young was operating the forklift.

2. The record contains no probative evidence from which it can be determined that wheel chocks were not being used at the time the accident [*5] occurred.

While acknowledging that circumstantial evidence may establish facts that are asserted, the judge emphasized that inferences drawn from such evidence "must be reasonable." He found that the compliance officer's opinion testimony, "based on statements made to him by persons who were not present when the accident occurred," did not establish that Respondent had failed to use chocks. In addition, the judge found that "[t]he inference that wheel chocks had not been used, as required by the standard, based on Fleming's inability to find something . . . to raise the forklift off Young is rejected as unreasonable and unjustified under the circumstances." The judge emphasized that the accident scene had changed physically by the time Fleming arrived and that Fleming did not know if anything had been moved from the area by then. The judge concluded that the Secretary failed to carry his burden of proof because "[h]is reliance upon mere conjecture is insufficient to prove the existence of a violation." He added that the Secretary's "proof must be clear and convincing. It cannot be presumed or inferred."

III

The Secretary contends that he proved the violation by a preponderance [*6] of the evidence because unrebutted testimony establishes that it was more likely than not that the trailer wheels were not blocked with wheel chocks when the forklift fell. He specifically argues that the judge improperly ignored probative evidence in reaching the findings of fact on which he based dismissal of the citation. First, according to the Secretary, the compliance officer's unrebutted testimony establishes that the momentum of the forklift caused the trailer to move, contrary to the judge's first finding. Alternatively, the Secretary urges that the cause of the trailer's movement is irrelevant because the issue is whether the trailer wheels were properly blocked. Second, the Secretary contends in effect that Fleming's testimony establishes that there were no materials at the accident scene that could have been used as wheel chocks and thus further establishes circumstantially that wheel chocks were not used, contrary to the judge's second finding of fact. This circumstantial evidence, the Secretary continues, is supported by the compliance officer's opinion testimony that, if the wheels had been properly blocked, movement of the trailer would have been impossible and [*7] the accident could not have occurred. Consequently, the Secretary urges, he met his burden of proving the alleged violation by a preponderance of the evidence.

IV

We disagree with the judge's conclusion that the Secretary failed to establish the alleged violation. To prove a violation of section 5(a)(2) of the Act, 29 U.S.C. 654(a)(2), the Secretary must show by a preponderance of the evidence that, among other things, the cited employer failed to comply with a standard at its workplace. Olin Construction Co. v. OSHRC, 525 F.2d 464 (2d Cir. 1975). Under Astra Pharmaceutical Products, Inc., 81 OSAHRC 79/D10, 9 BNA OSHC 2126, 2131 n.17, 1981 CCH OSHD P25,578 at p. 31,901 n.17 (No. 78-6247, 1981), appeal filed, No. 81-1672 (1st Cir. Sept. 23, 1981), a "preponderance of the evidence" is "that quantum of evidence which is sufficient to convince the trier of fact that the facts asserted by a proponent are more probably true than false." Initially, we find the judge in error to the extent that he applied a more stringent standard in formulating the Secretary's burden of proof, i.e., that the Secretary's "proof must be clear and convincing" and that "[i]t cannot be [*8] presumed or inferred."

We also conclude that the judge erred by failing to enter a finding based on the Secretary's evidence that Respondent had failed to comply with the cited standard. The Secretary satisfies his burden of proof if the record, when considered as a whole, contains preponderating evidence in support of his allegations. See Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951). In addition to direct evidence, circumstantial and hearsay evidence are admissible in Commission proceedings and this evidence may be probative. E.g., Chicago Bridge & Iron Co., 74 OSAHRC 92/A2, 2 BNA OSHC 1413, 1973-74 CCH OSHD P15,416 (No. 224, 1974), aff'd, 535 F.2d 371 (7th Cir. 1974) (circumstantial evidence admissible); Hurlock Roofing Co., 79 OSAHRC 93/A2, 7 BNA OSHC 1867, 1979 CCH OSHD P24,006 (No. 14907, 1979) (hearsay evidence admissible). For example, in Okland Construction Co., 76 OSAHRC 30/F4, 3 BNA OSHC 2023, 1975-76 CCH OSHD P20,441 (No. 3395, 1976), the Commission concluded that a judge properly entered findings that the Secretary established a violation based on inferences drawn by the judge from circumstantial evidence: noneyewitness testimony [*9] creating the reasonable inference that an employee fell from an unguarded beam. See generally 1 Jones on Evidence 1.3 at 4 (6th ed. 1972) (drawing reasonable inferences from circumstantial evidence).

Since circumstantial and hearsay evidence are admissible in our proceedings, we look beyond the characterization of the Secretary's evidence to determine if that evidence is sufficient to establish the alleged violation. In this case, the compliance officer testified that the injured employee told him that the trailer moved when he backed the forklift from the trailer. In addition, customs officer Fleming concluded that chocks were unavailable because shortly after the accident he saw no material at the scene that could be used to raise the forklift off Young. The judge erred in concluding that this unrebutted evidence was not probative. Indeed, we conclude that the Secretary's evidence on trailer movement and on the unavailability of material to raise the forklift immediately after the accident supports the reasonable inference that Respondent failed to block the wheels of a trailer as required by section 1910.178(m)(7). This inference is strengthened by the corroborative [*10] opinion testimony of the compliance officer who investigated the accident. Based on his investigation, he concluded that the momentum of the forklift backing off the trailer caused the trailer to move away from the dock and that that movement could not have occurred if the wheels of the trailer had been chocked. Accordingly, we conclude that the Secretary's evidence, which was not contradicted by any evidence indicating that the wheels were blocked, establishes that it was more likely than not that Respondent failed to comply with 29 C.F.R. 1910.178(m)(7). n2

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n2 In reaching this decision, we reject the judge's findings of fact and substitute our own findings based on the record. The Commission is ultimately responsible for findings of fact. E.g., Accu-Namics, Inc. v. OSHRC, 515 F.2d 828 (5th Cir. 1975), cert. denied, 425 U.S. 903 (1976). Furthermore, the Commission is authorized to develop its own principles for determining the sufficiency of evidence, which principles can be used to overrule the decision of a judge who applies conflicting rules. A.E. Burgess Leather Co. v. OSHRC, 576 F.2d 948, 951 (1st Cir. 1978).

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Based on the employee's injury -- a broken back -- and the compliance officer's uncontradicted testimony on the substantial probability of death or serious injury if an accident occurred, we also conclude that the Secretary properly characterized the violation as serious. We further find that the proposed $720 penalty is reasonable and appropriate under the statutory penalty criteria at section 17(j) of the Act, 29 U.S.C. 666(i).

Accordingly, we reverse the judge's decision, affirm the citation for a serious violation of the Act for Respondent's failure to comply with section 1910.178(m)(7), and assess a penalty of $720.

DISSENTBY: ROWLAND

DISSENT:

ROWLAND, Chairman, dissenting:

I dissent from the majority decision. I would affirm the judge's decision that the Secretary did not establish that Respondent failed to comply with 29 C.F.R. 1910.178(m)(7). In my view, the judge applied the correct evidentiary standard and properly found that no probative evidence establishes that Respondent failed to use wheel chocks when the accident occurred.

As the majority notes, the Secretary must prove by a preponderance of the [*12] evidence that an employer failed to comply with a standard at its workplace. Contrary to the majority view, however, the judge did not place upon the Secretary a more stringent burden of proof. It is clear that the judge's statements found objectionable by the majority are directed to the probative value or the weight of the Secretary's evidence. For example, the judge found the Secretary's evidence conjectural, creating only "a suspicion of the existence of a fact to be established." His statement on "clear and convincing" proof and his refusal to "infer or presume" facts similarly refer to weaknesses in the Secretary's evidence here and do not set forth a more stringent burden of proof. Indeed, the judge expressly stated that "[t]he Secretary has failed to carry his burden of proving noncompliance with the cited standard by a preponderance of the credible evidence as required by law" and he further stated that he was entering his findings of fact on the basis of "the preponderance of the credible evidence."

The judge also properly weighed the evidence and concluded that the Secretary's evidence lacked probative value. Based on conversations with mostly unidentified persons [*13] at Respondent's worksite, the compliance officer surmised that the accident occurred when the rear wheel of the forklift made contact with the dock, causing the trailer to move forward because its wheels were not chocked. However, the compliance officer admitted that nobody had told him that the accident occurred in this way. Indeed, none of the people interviewed by the compliance officer, other than the injured employee, had witnessed the accident as it occurred. Neither the injured employee, Young, nor his foreman confirmed to the compliance officer that chocks were not in place. n1 The compliance officer in fact admitted that during his investigation he could not determine whether chocks were available, and it is clear that his conclusion that they were not was based solely on his opinion that the trailer could not have moved had chocks been in place.

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n1 As the majority opinion notes, Young merely described the movement of the trailer. He made no statement to the compliance officer regarding the presence or absence of chocks. The foreman specifically told the compliance officer that he did not know whether or not chocks were in place. Other than the injured employee and his foreman, the compliance officer did not identify any of the individuals with whom he had spoken.

[*14]

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In my view, the majority errs in according probative weight to this opinion since the compliance officer stated no basis for his conclusion that the fact that the trailer moved necessarily meant that its wheels were not chocked. Nor does the record reveal any other basis on which the Commission can evaluate the validity of this opinion.

The record also shows that the compliance officer was not qualified to offer an opinion. Although he had conducted many inspections, only four of his investigations concerned forklifts. None involved "troubles between a trailer and a forklift." Opinion testimony that lacks an adequate foundation is properly discounted. [*15] 77-1133, 1981) (dissenting opinion). Consequently, the judge correctly concluded that the compliance officer's testimony does not support a finding that the trailer wheels were not blocked.

The only other basis for such a finding is the testimony of customs officer Fleming, who assumed that Respondent had failed to use chocks based on his inability to find materials to elevate the forklift. However, when Fleming arrived at the scene, the truck driver had already moved the trailer. Fleming admitted that he did not know what else had been moved in the area. Fleming also acknowledged that, during his nine-month assignment at Respondent's warehouse, Respondent had used wooden pallets as chocks. The judge interpreted Fleming's ambiguous testimony as establishing merely that, after the accident scene had been physically changed, no material was available to lift the forklift off Young. This interpretation is reasonable and supported by the record. Moreover, the judge correctly concluded that "[t]he inference that wheel chocks had not been used . . . based on Fleming's inability to find something . . . to raise the forklift off Young is . . . unreasonable and unjustified under the [*16] circumstances."

In this case, the judge fairly considered the record and he explained the basis of his evaluation of the testimony. I conclude that the judge did not err in his consideration of the record evidence, in his assessment of the probative weight of the Secretary's evidence, or in his conclusion that the Secretary failed to establish the alleged violation by a preponderance of the evidence. Consequently, the judge's decision should have been affirmed.