ABF Freight System, Inc.

Plain-English summary

OSHA cited ABF Freight for loading and unloading uncoupled trailers without wheel blocks at its Houston terminal. The administrative law judge rejected the company's argument that modern spring-powered parking brakes made wheel chocks unnecessary and affirmed the serious item with a $3,150 penalty. After the case was directed for Commission review, the Secretary withdrew the citation, resolving all issues. The Commission approved the withdrawal and set aside the judge's decision to the extent it conflicted with that disposition.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.178(m)(7)
• Outcome: Serious wheel-blocking citation withdrawn and inconsistent portions of the judge's decision set aside
• Key point: The Secretary's withdrawal ended the case after review was directed, so the earlier affirmed citation did not remain in effect.

Full text (OSHRC public release)

                                               :

SECRETARY OF LABOR, :
Complainant, :
:
v. :
:
ABF FREIGHT SYSTEM, INC., : OSHRC Docket No. 00-0737
Respondent, :
:
and :
:
TEAMSTERS LOCAL UNION NO. 988, :
Authorized Employee :
Representative. :
:

                                        ORDER

    This matter is before the Commission on a Direction for Review entered by Chairman

Thomasina V. Rogers on January 3, 2001. The Secretary has now filed a Notice of Withdrawal
stating she withdraws Citation 1, Item 1, which had alleged a serious violation of 29 C.F.R. §
1910.178(m)(7), and that withdrawal of this item resolves all issues in this case.
In view of the withdrawal by the Secretary, we conclude that no further review by the
Commission is warranted. Accordingly, the Notice of Withdrawal is approved.

                                                                         2001 OSHRC No. 7

We incorporate the Notice of Withdrawal into this Order and we set aside the
Administrative Law Judge’s Decision and Order to the extent that it is inconsistent with the Notice
of Withdrawal. This is the final order of the Commission.

Date: April 27, 2001 /s/
Thomasina V. Rogers
Chairman

                                                /s/
                                                Ross Eisenbrey
                                                Commissioner

:
SECRETARY OF LABOR, :
Complainant, :
:
v. :
:
ABF FREIGHT SYSTEM, INC., : OSHRC Docket No. 00-0737
Respondent, :
:
and :
:
TEAMSTERS LOCAL UNION NO. 988, :
Authorized Employee :
Representative.* :
:

APPEARANCES:
For the Complainant:
Brian A. Duncan, Esq., Office of the Solicitor, U.S. Department of Labor, Dallas, Texas
For the Respondent:
Matthew S. Pape, Esq., Christopher C. Antone, Esq., Jackson Lewis Schnitzler & Krupman, Dallas,
Texas

Before: Administrative Law Judge: James H. Barkley

                                    DECISION AND ORDER
      This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C.

Section 651 et seq.; hereafter called the “Act”).
Respondent, ABF Freight System, Inc. (ABF), at all times relevant to this action maintained a
place of business at 5880 Kelly St., Houston, Texas, where it was engaged in trucking. Respondent
admits it is an employer engaged in a business affecting commerce and is subject to the requirements of
the Act.
On January 13-27, 2000 the Occupational Safety and Health Administration (OSHA) conducted
an inspection of ABF’s Houston work site. As a result of that inspection, ABF received citations
alleging violations of the Act together with proposed penalties. By filing a timely notice of contest ABF
brought this proceeding before the Occupational Safety and Health Review Commission (Commission).
On August 29, 2000, a hearing was held in Houston, Texas. The parties have submitted briefs
on the issues and this matter is ready for disposition.

      * The affected employees’ union was inadvertently omitted from the caption of the opinion originally mailed to
      the parties on October 26, 2000.

Alleged Violations
Serious citation 1, item 1 alleges:
29 CFR 1910.178(m)(7): Wheel(s) were not blocked to prevent movement of trailer(s) during loading
and unloading while the trailer is not coupled to a truck.

     (a) South Dock, Where employees were using power industrial trucks to load trailers.
     The cited standard provides:
     (m) Truck operations. . . .(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. Fixed jacks may be
     necessary to support a semitrailer during loading or unloading when the trailer is not coupled to
     a tractor. The flooring of trucks, trailers, and railroad cars shall be checked for breaks and
     weakness before they are driven onto.

Facts
On January 13, 2000, OSHA Compliance Officer (CO) Sanford Theirgood inspected ABF’s
Houston work site (Tr. 35). Theirgood observed ABF employees using forklifts to load and unload
trailers parked at a loading dock (Tr. 37; Exh. C-3). The wheels of the cited trailers were neither
chocked nor blocked (Tr. 35-36; Exh. C-4, C-5).
At the hearing ABF stipulated to facts as recited by CO Theirgood (Tr. 6, 8, 19).
Discussion
In order to prove a violation of section 5(a)(2) of the Act, the Secretary must show by a
preponderance of the evidence that (1) the cited standard applies, (2) there was a failure to comply with
the cited standard, (3) employees had access to the violative condition and (4) the cited employer either
knew or could have known of the condition with the exercise of reasonable diligence. See, e.g., Walker
Towing Corp., 14 BNA OSHC 2072, 2074, 1991-93 CCH OSHD ¶29239, p. 39,157 (No. 87-1359,
1991).
Respondent stipulates that ABF is engaged in truck operations, and that OSHA has jurisdiction
to regulate the cited activity (Tr. 51). As noted above, ABF stipulates that the conditions set forth in
the citation existed as stated therein. Respondent defends on the sole ground that the cited conditions
do not constitute a hazard. At the hearing ABF made an offer of proof, maintaining that, if permitted,
it would introduce testimony and documentary evidence showing that technological improvements in
spring-powered parking brakes eliminate the possibility of unintended trailer movement during loading
and unloading and, therefore, the need to chock truck trailers (Tr. 5, 7, 11, 29, 32, 47-53; Respondent’s
Brief at p. 2). ABF maintains that because there were no employees exposed to a hazard, it was not in
violation of the standard. ABF further argues that, should a violation be found, it must be classified as
de minimis.
The Violation. Respondent’s defense was rejected at the hearing. It is well settled that most
occupational safety and health standards include requirements or prohibitions that by their terms must
be observed whenever specified conditions, practices or procedures are encountered. Austin Bridge
Company, 7 BNA OSHC 1761, 1979 CCH OSHD ¶23,935 (76-93, 1979). When a standard prescribes
specific means of enhancing employee safety, a hazard is presumed to exist if the terms of the standard
are violated. Clifford B. Hannay & Son, Inc., 6 BNA OSHC 1335, 1978 CCH OSHD ¶22,525 (No.
15983, 1978). Where an employer questions the necessity of a standard, it may either challenge the
standard through the rule making process, or apply for a variance pursuant to section 6(d) of the Act.
Carabetta Enterprises, Inc., 15 BNA OSHC 1429, 1991-93 CCH OSHD ¶29,543 (No. 89-2007,
1992). The employer may not use the adjudicatory process to challenge the wisdom of a required
safety measure. See, Austin Engg. Co., 12 BNA OSHC 1187, 1188, 1984-85 CCH OSHD ¶27,189, p.
35,099 (No. 81-168, 1985).
In a recent decision, the Commission once again held that it cannot decline to enforce an OSHA
standard merely because an employer believes the standard imposes an unnecessary requirement. Trinity
Industries Inc. (Trinity), 15 BNA OSHC 1579, 1992 CCH OSHD ¶30,338 (Nos. 88-1545, 88-1547,
1992). In Trinity the employer’s believed that its own precautions rendered the cited OSHA standard
redundant. The Commission specifically held that the employer’s belief did not excuse it from
complying with the mandatory OSHA requirement. The Commission further stated that if the employer
wanted relief from its obligations under the standard in question, it should have applied for a variance.
Id. at 1588.
Respondent maintains that it would have been futile to apply for a variance in this case, stating
that OSHA would never have granted a variance as Respondent was fully capable of complying with the
cited standard (Respondent’s Brief at p. 8). This argument is not persuasive.
While it is true that under §6(a)(6) an employer may apply for a temporary variance based on its
inability to comply, §6(d) codified at 29 CFR 1905.11, states that an employer may also apply for a
permanent variance where;
. . .the conditions, practices, means, methods, operations, or processes used. . . would provide
employment and places of employment to employees which are as safe and healthful as those
required by the standard from which a variance is sought.

Respondent itself submitted a March 30, 2000 OSHA memorandum, that shows OSHA is already
investigating the efficacy of spring loaded air parking brakes on tractor trailers. Such memoranda
suggest that OSHA might well be receptive to an application for variance. Moreover, under
Commission precedent an employer may not be required to abate a violation while a variance
application is pending. See, Deemer Steel Casting Company, 5 BNA OSHC 1157 (No. 13,686 1977)
Ensign Electric Division, Harvey Hubbell, Inc., 1973-74 CCH OSHD ¶18,261 (No. 7638, 1974).
Under the circumstances, this judge cannot find that application for a variance would have been either
futile or inappropriate.
The Secretary has set forth a prima facie case in this matter. ABF has not raised a recognized
defense to the citation, and the citation will be affirmed.
 De minimis. This judge finds that in these circumstances, a de minimis finding is inappropriate.
Where a violation is found to be de minimis, no abatement order is entered. Thus, the de minimis
classification may have the effect of overriding the Secretary's rule making responsibility. St. Joe
Resources Co., 13 BNA OSHC 2193, 1987-90 CCH OSHD (No. 81-2267, 1989).
Respondent relies upon Phoenix Roofing, Inc. (Phoenix), 874 F.2d 1027 (5th Cir 1989), which it
claims supports its position. The ruling in Phoenix, however, affected a single temporary construction
project, which was long completed by the time the Phoenix decision was issued. A de minimis finding
in this case could affect trucking operations nationwide, setting a precedent which would, as noted
above, eviscerate the Secretary’s ability to enforce the regulation at §1910.178(m)(7). This judge
believes that a decision with such far reaching results should not be reached without the benefit of the
notice and comment provision provided for in the Act.
An employer’s request for a §6(d) variance must be accompanied by the employer’s certification
that his employees have been apprised of the application.1 Action on the request for a variance includes
publication in the FEDERAL REGISTER, including an invitation to interested persons to submit data,
views and arguments, and informing affected employers, employees and State agencies of any right to
request a hearing in the matter. See, 29 CFR 1905.14. This judge believes that neither ABF nor the
trucking industry in general should be relieved of their duty to provide the protections set forth in the
applicable OSHA regulations without first affording affected employees the opportunity to be heard.
ABF’s contention that the cited violation be classified as de minimis is rejected.

Penalty
CO Thiergood testified, without contradiction, that if a trailer was to move during loading,
employees could be thrown from, or crushed by a forklift (Tr. 36). Employees struck by a moving
trailer could also be seriously injured (Tr. 36). It is clear that should an accident occur, employees
could sustain serious injuries.
The parties stipulated that the proposed penalty of $3,150.00 was reasonable should the
violation be deemed “serious,” and that amount will be assessed.

                                                 ORDER

1. Citation 1, item 1, alleging violation of §29 CFR 1910.178(m)(7) is AFFIRMED, and a penalty
   of $3,150.00 is ASSESSED.

                                                                /s/
   
                                                        James H. Barkley
   
        1
            A variance application would be the appropriate forum for ABF to submit the agency memoranda and
   

   decisions from California and Oregon which address the efficacy of spring brakes, and which are included as
   Exhibits 1 through 5 as part of ABF’s offer of proof.
    Judge, OSHRC

Dated: November 28, 2000