Piggly Wiggly Alabama Distribution Co., Inc.

Plain-English summary

Piggly Wiggly operated a large grocery distribution warehouse where a forklift operator was killed when a hostler moved a trailer away from the dock while the employee was still inside. OSHA's inspection produced serious, willful, and recordkeeping citation items. The judge affirmed the serious wheel-chock violation because the company used no wheel blocks and could not disregard the standard based on its belief that modern air brakes eliminated trailer creep. He assessed a $5,000 penalty for that item. The willful powered-industrial-truck training item was vacated because OSHA challenged the adequacy of the company's trailer-moving procedures, while the cited standard addressed whether operators were trained, and the record showed training on the existing procedures. The recordkeeping item was also vacated because OSHA did not prove that any temporary-worker injury had gone unrecorded by the applicable deadline. A separate powered-industrial-truck maintenance item was withdrawn by the Secretary.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.178(m)(7), § 1910.178(q)(7), § 1910.178(l), and § 1904.2(a)
• Outcome: The wheel-chock item was affirmed with a $5,000 penalty, one item was withdrawn, and the training and recordkeeping items were vacated.
• Key point: An employer cannot ignore a prescriptive wheel-chock rule because it believes newer equipment removes the hazard, but OSHA must prove the elements of the particular training or recordkeeping standard it cites.

Full text (OSHRC public release)

Secretary of Labor,
Complainant,
OSHRC Docket No. 00-0187
v.

Piggly Wiggly Alabama Distribution
Company, Inc.,
Respondent.

APPEARANCES

               Carla J. Gunnin, Esq.                            J. Larry Stine, Esq.
               Office of the Solicitor                          Wimberly, Lawson , Steckel, Nelson & Schneider,

P.C.
U. S. Department of Labor Atlanta, Georgia
Birmingham, Alabama For Respondent
For Complainant

Before: Administrative Law Judge Ken S. Welsch

                                         DECISION AND ORDER
     Piggly Wiggly Alabama Distribution Co., Inc. (Piggly Wiggly), operates a grocery

distribution warehouse in Bessemer, Alabama. On July 29, 1999, an employee was killed when
the forklift he was on fell from the back of a trailer as a yard mule driver (a hostler) was moving
the trailer away from the dock. Occupational Safety and Health Administration (OSHA)
compliance officer Phyllis Battle conducted an inspection of the facility from July 30 to August 4,
1999. As a result of her inspection, the Secretary issued three citations to Piggly Wiggly.
Item 1 of citation no. 1 alleges a serious violation of 29 C.F.R. § 1910.178(m)(7) for
failing to ensure that a trailer’s brakes were set and its rear wheels chocked during loading and
unloading.1 A penalty of $5,000 is proposed. Item 1 of citation no. 2 alleges a willful violation
of 29 C.F.R. § 1910.178(l) for failing to train operators in the safe operation of powered

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        The Secretary originally cited item 1 as a violation of 29 C.F.R. § 1910.178(k)(1). She moved at the hearing to

amend item 1 to allege a violation of 29 C.F.R. § 1910.178(m)(7). Piggly Wiggly did not object and the court granted the
Secretary’s motion. The Secretary also moved to withdraw item 2 of citation no. 1, which alleged a serious violation of 29
C.F.R. § 910.178(q)(7). The court granted the Secretary’s motion (Tr. 7-9).

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industrial trucks. A penalty of $70,000 is proposed. Item 1 of citation no. 3 alleges an other-
than-serious violation of 29 C.F.R. § 1904.2(a) for failing to complete the OSHA No. 200 forms
with the required details. No penalty is proposed.
The parties stipulated to coverage and jurisdiction (Tr. 6). Piggly Wiggly denies the
allegations. This case was heard on April 25 and 26, 2000, in Birmingham, Alabama. The parties
have filed post-hearing briefs.
For the reasons set out below, the willful citation and the other-than-serious citation are
vacated. The serious citation for failing to use wheel chocks is affirmed.

                                        Background
   Piggly Wiggly operates a large grocery distribution center in Bessemer, Alabama, that

serves Piggly Wiggly and other grocery stores throughout the region (Tr. 405). The center
operates 24 hours a day, 7 days a week, and employs approximately 500 employees, plus an
additional 60 to 70 temporary employees from Perform Staffing, a staffing agency (Tr. 239, 405).
The distribution center is a large warehouse that has a loading dock approximately 1,000
feet long with 142 doors along one side (Tr. 332-333). Different doors and sections of the
interior are devoted to grocery, produce, frozen foods, and non-food items such as health and
beauty aids (Tr. 332, 341). The loading dock faces a large paved yard that inclines slightly from
the center toward the dock (Tr. 383). Tractor-trailers are parked at the docks for delivery and
loading (Tr. 333).
Each door of the loading dock is equipped with a dock plate that is moved into position
when the trailer docks to facilitate the movement of forklifts and pallet jacks into and out of the
trailer (Tr. 68, 234). The dock plate is raised when a trailer is ready to be moved away from the
dock. If a trailer pulls away from the dock before the dock plate has been removed, it falls,
making a loud noise, approximately 115 decibels (Tr. 232-233, 382).
To move a trailer, the hostler, also known as the yard mule operator, backs a vehicle
called a yard mule up underneath the front end of the trailer, making a connection with the yard
mule’s fifth wheel. Next, the hostler connects the air hose from the trailer to the tractor to raise it
and release the brakes (Tr. 230-231). The trailer is then ready to be moved.

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Starting each day at approximately 4:00 a.m., vendors begin making deliveries of produce,
frozen foods, groceries, and other merchandise (Tr. 210, 406). Employees use forklifts and pallet
jacks to unload the merchandise (Tr. 165). This shift ends at approximately 12:30 p.m. (Tr. 210).
Starting about 2:00 p.m., employees called “pullers” start selecting items from the
warehouse to fill orders for the stores. Employees load the merchandise into empty trailers
backed up to the loading dock, according to the “wave sheet,” which is a master schedule for
loading. The employees continue to load the trailers throughout the night (Tr. 212-213). Once
the trailers are loaded, the drivers deliver the trailers to the grocery stores, help unload the
merchandise, and return to the distribution center (Tr. 310). Piggly Wiggly ships 60 to 70 tractor-
trailer deliveries out of the center each day (Tr. 378).
The period between the time the merchandise has been delivered and the trailers’ return to
the distribution center and the time when the night shift employees arrive to begin loading is
known as set-up (Tr. 211, 218). During set-up, the hostler moves the empty trailers around the
yard into position for loading. The hostler moves the trailers according to the wave sheet so that
they will be in the proper order for loading (Tr. 227, 335). Also during the set-up period,
cleaners (or trailer strippers) enter the trailers to clean them and remove damaged or returned
merchandise and freezer boxes (Tr. 165-167).
On July 29, 1999, hostler Michael Akers was in the process of moving a trailer from door
142, the last door on the loading dock. Akers testified that he had backed the yard mule up to the
trailer and connected the air hose to release the brakes. Akers sounded his horn and slowly pulled
away. When he was approximately 105 feet away from the dock, a forklift on which employee
Miles Blackman was sitting fell out of the back of the trailer. Blackman was killed in the fall
(Tr. 301-302).

                                        Citation No. 1
    The Secretary has the burden of proving her case by a preponderance of the evidence.
    In order to establish a violation of an occupational safety or health standard, the
    Secretary has the burden of proving: (a) the applicability of the cited standard, (b)
    the employer’s noncompliance with the standard’s terms, (c) employee access to
    the violative conditions, and (d) the employer’s actual or constructive knowledge


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of the violation (i.e., the employer either knew or, with the exercise of reasonable
diligence could have known, of the violative conditions).

Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).

           Item 1: Alleged Serious Violation of 29 C.F.R. § 1910.178(m)(7)
   The Secretary alleges that Piggly Wiggly committed a serious violation of 29 C.F.R.

§ 1910.178(m)(7), which provides in pertinent part:
Brakes shall be set and wheel blocks shall be in place to prevent movement of
trucks, trailers, or railroad cars while loading or unloading.

   Piggly Wiggly acknowledges that the Secretary established three of the four elements of

the alleged violation. The standard applies to the cited conditions. Piggly Wiggly did not have
any wheel blocks available for use (Tr. 27). It was a management decision by Piggly Wiggly not
to use wheel blocks. Piggly Wiggly argues, however, that the Secretary failed to establish
employee exposure to a hazard because, the company asserts, there is no hazard.
Battle testified that the standard is designed to prevent “trailer creep,” which occurs when
the movements of powered industrial trucks entering and exiting the trailer during loading or
unloading cause the trailer to move away from the dock, leaving a gap between it and the dock
floor. The operator of the powered industrial truck may be unaware that the trailer has crept
forward and fall into the gap (Tr. 29).
Piggly Wiggly argues that improved brake technology has eliminated the hazard of trailer
creep. Director of operations Dale Reynolds testified that trailers now in use are equipped with
air brakes which are run off hoses powered by the tractor engine. When a trailer is disconnected
from the air hose, the trailer sinks, the brakes lock, and the trailer does not move until the air hose
is reattached. Piggly Wiggly also argues that there is a slight upward incline moving away from
the dock which would prevent the trailer from rolling away (Tr. 236-238).
Piggly Wiggly’s argument is rejected. Once the Secretary promulgates a standard, the
standard presupposes the existence of a hazard when its terms are not met. Del-Cook Lumber
Company, 6 BNA OSHC 1362, 1365 (No. 16093, 1978). An employer is not free to disregard
the requirements of a standard because it believes the standard is unnecessary. Piggly Wiggly

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adduced the testimony of its director of operations and its director of human resources in support
of its position that trailer creep could not occur in its facility. These witnesses are not experts in
brake technology and, as management personnel for Piggly Wiggly, they are biased. Piggly
Wiggly is asking the court to question the wisdom of the standard, which the court will not do.
The Secretary has established that Piggly Wiggly violated 29 C.F.R. § 1910.178(m)(7).
The violation is alleged as serious. Piggly Wiggly argues that if a violation is found, it should be
classified as other-than-serious.
In order to establish that a violation is “serious” under § 17(k) of the Act, the Secretary
must establish that there is a substantial probability of death or serious physical harm that could
result from the cited condition. In determining substantial probability, the Secretary must show
that an accident is possible and the result of the accident would likely be death or serious physical
harm. The likelihood of the accident is not an issue. Spancrete Northeast, Inc., 15 BNA OSHC
1020, 1024 (No. 86-521, 1991).
In its brief, Piggly Wiggly states, “[I]mproved brake technology effectively eliminated the
hazard of trailers moving during loading and unloading” (Piggly Wiggly’s brief, p.11).
Approximately one month before Blackman’s death in the instant case, a forklift operator working
at a distribution center in Florida was crushed to death when his forklift fell into the gap created
when the trailer he was unloading crept forward. The truck and trailer were conventional models.
Michaels Stores, Inc., OSHRC Docket No. 99-1322 (ALJ Spies, July 17, 2000). The facts differ
in that the trailer in Michaels was still attached to the truck, but it remains an example of a trailer
equipped with a modern braking system that crept forward during unloading. An accident
resulting from trailer creep is a possibility, and the likely result of such an accident is death by
crushing. The violation is properly classified as serious.

                                        Citation No. 2
              Item 1: Alleged Willful Violation of 29 C.F.R. § 1910.178(l)




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The Secretary alleges that Piggly Wiggly committed a willful violation of 29 C.F.R.
§ 1910.178(l), which provides:
Only trained and authorized operators shall be permitted to operate a powered
industrial truck. Methods shall be devised to train operators in the safe operation
of powered industrial trucks.

   The citation states:
   On or about 7/29/99 the employer did not devise methods to insure that employees
   operating powered industrial trucks, such as yard mules and forklifts, were trained
   in safe operating methods. Employees were exposed to [sic] struck by and
   crushing hazards while operating fork trucks inside a container trailer that was
   subject to being moved with little or no notice to workers. Yard mule operators
   routinely move container trailers without checking to insure that other employees
   have finished fork truck activities within the trailer.

   Although the standard addresses training, the Secretary attempted to establish her case by

proving Piggly Wiggly’s safety procedures were inadequate. In her brief she states, “It is the
Secretary’s position that there was not a safe operating procedure in place related to the
movement of the yard mule while employees who were operating powered industrial trucks were
loading and unloading the trailers” (Secretary’s brief, p.5).
Until approximately two months before the accident, the hostler would prepare to move a
trailer by backing the yard mule up under the trailer and connecting the trailer to the fifth wheel of
the yard mule. The hostler would connect the air hose to raise the trailer and release the brakes.
The hostler would then pull away from the dock and move the trailer to another location.
In May of 1999, Piggly Wiggly added two new steps to the procedure. Now after the
hostler connected the air hose, he would honk his horn, wait a few seconds, and then pull away
slowly. He was also to listen for the sound of the dock plate falling. Honking the horn was meant
to alert any employee still in the trailer that it would be moving in a few seconds. Listening for
the dock plate to drop was meant to alert the hostler that someone might still be in the trailer as it
was moving away from the dock (Tr. 244-245).
The Secretary argues that these procedures were insufficient to ensure that an employee
was not in the trailer as it pulled away. Honking was inadequate because the compressor running
in the refrigerated trucks effectively drowned out the sound of the horn for anyone who was

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inside the trailer. Having the hostler listen for the dock plate to drop was inadequate because the
center is so loud there is no guarantee that the hostler would hear it. In fact, the dock plate had
not been raised when Akers pulled away with the trailer that Blackman was in. The dock plate
fell to the yard floor, but Akers failed to hear it.
The problem for the Secretary is that the cited standard addresses training, yet her
evidence and argument focus on the adequacy of procedures. She states in her brief (p. 5):
In order to comply with this standard, the first thing that is necessary is that there
is an effective safe procedure in place regarding operation of the powered
industrial trucks. Part of the safe operation of the powered industrial trucks is the
movement of these trucks without anyone being injured in the process.

    The court disagrees. The issue of whether Piggly Wiggly had adequate safe procedures is

a separate issue from whether Piggly Wiggly trained its employees in these procedures. The
record establishes that the hostler was trained to sound the horn and listen for the dock plate, and
the forklift drivers were trained to listen for the horn (Tr. 314, 318, 437-438).
The cited training standard does not apply to the cited conditions. Item 1 is vacated.

                                         Citation No. 3
        Item 1: Alleged Other-than-Serious Violation of 29 C.F.R. § 1904.2(a)
    The Secretary alleges that Piggly Wiggly committed an other-than-serious violation of 29

C.F.R. § 1904.2(a), which provides:
Each employer shall, except as provided in paragraph (b) of this section, (1)
maintain in each establishment a log and summary of all recordable occupational
injuries and illnesses for that establishment; and (2) enter each recordable injury
and illness on the log and summary as early as practicable but no later than 6
working days after receiving information that a recordable injury or illness has
occurred.

    Battle reviewed Piggly Wiggly’s OSHA 200 logs for 1997, 1998, and 1999, and

determined that there was no listing of any of the Power Staffing temporary employees (Exh. C-2;
Tr. 59-60). Piggly Wiggly does not dispute that no temporary employees are listed, but argues
that it is Power Staffing’s responsibility to record its employees’ illnesses and injuries in its own
OSHA 200 logs.

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The Secretary has failed to prove a violation of the cited standard. She presented no
evidence that any temporary employee actually suffered a recordable injury or illness during the
three years she reviewed. The only temporary employee the record establishes as being injured
during that time is the decedent, Miles Blackman. Blackman was killed on Thursday, July 29,
1999. Battle began her investigation of the fatality on July 30 and ended it on August 4, 1999.
Piggly Wiggly had 6 working days, until August 5, to record the fatality in its OSHA 200 log.
The failure to record Blackman’s death cannot be the basis for the cited item. The Secretary has
failed to adduce evidence of any other injury or illness of a temporary employee. Item 1 is
vacated.

                                   Penalty Determination
   The Commission is the final arbiter of penalties in all contested cases. In determining an

appropriate penalty, the Commission is required to consider the size of the employer’s business,
history of previous violations, the employer’s good faith, and the gravity of the violation. Gravity
is the principal factor to be considered.
Piggly Wiggly employs approximately 500 employees. The Secretary presented no
evidence regarding Piggly Wiggly’s OSHA history or its good faith (Tr. 31).
The gravity of item 1 of citation no. 1 is high. The failure to ensure that a trailer’s wheels
are blocked increases the likelihood that an accident will occur. The results of a powered
industrial truck falling between a moving trailer and the dock are almost always severe. A penalty
of $5,000.00 is appropriate.

                                FINDINGS OF FACT AND
                                CONCLUSIONS OF LAW
   The foregoing decision constitutes the findings of fact and conclusions of law in

accordance with Rule 52(a) of the Federal Rules of Civil Procedure.

                                          ORDER
   Based upon the foregoing decision, it is ORDERED that:


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1. Item 1 of citation no. 1, alleging a serious violation of 29 C.F.R. §
1910.178(m)(7), is affirmed and a penalty of $5,000.00 is assessed;
2. Item 2 of citation no. 1, alleging a serious violation of 29 C.F.R. § 1910.178(q)(7),
is withdrawn by the Secretary;
3. Item 1 of citation no. 2, alleging a willful violation of 29 C.F.R. § 1910.178(l), is
vacated; and
4. Item 1 of citation no. 3, alleging an other-than-serious violation of 29 C.F.R.
§ 1904.2(a), is vacated.

/s/
KEN S. WELSCH
Judge

Date: October 5, 2000

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