Maher Terminals, Inc.

Read the official release (oshrc.gov)

Plain-English summary

Maher Terminals operates a marine terminal at Port Elizabeth, New Jersey,
loading and unloading ocean-going ships. On November 15, 1992, a gang
foreman was standing on the raised blades of a forklift to remove wooden
boards from a shipping flat when a blade separated from the truck; he fell
about nine to ten feet and died. OSHA issued one serious citation with
three items; the Secretary later withdrew item 1, leaving two items and a
$7,650 proposed penalty. Administrative Law Judge John H. Frye, III found
the forklift was not maintained in safe working order because a retaining
lip on the blade was missing and rusted before the accident, a condition a
routine inspection should have caught. He also found the company violated
the standard barring employees from being lifted on forklift blades without
a secured platform, and rejected its unforeseeable-misconduct defense
because Maher had no work rule communicated or enforced against riding the
blades even though a supervisor engaged in the practice. Both items were
affirmed as serious, for a total penalty of $7,650.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1917.43(c)(5) (marine-terminal powered industrial trucks kept in safe working order); 29 C.F.R. § 1917.43(e)(6) (employees elevated by forklift only on a secured platform).
• Outcome: Affirmed. Citation 1 items 2 and 3 upheld as serious; penalties of $3,150 and $4,500 assessed, total $7,650. (Item 1 had been withdrawn by the Secretary before decision.)
• Key point: Where a supervisor commits the violation, the employer must prove it communicated and enforced a rule against the unsafe practice; absent that, the unforeseeable-employee-misconduct defense fails.

Full text (OSHRC public release)

```text
UNl7ED STAES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One LafayetteCmtfe
11202OthStmt,N.W.-9thRoor
Washington,DC 200364419

SECRETARY OF LABOR
Complainant OSHRC DOCKET
v. NO; 93-0508
MAHER TERMINAL!& INC.
Respondent,

               Authorized Employee
               Representative.


                 NOTICE OF DOCKETNG
           OF ADMINISTIKITVE UW JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was

docketed with the Commission on November 17,1994. The decision of the Judge
will become a final order of the Commission on December 19,1994 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETTI’ION FOR DISCRETIONARY REVIEW.
Any such petition should be received by the Executive Secretary on or before
December 7 1994 in order to rmit sufficicienttime for its review. See
Commission’R~e 91,29 C.F~ZOO.91.
All further plead@ or ~~mmtications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Rmew Commission
1nO 20th St. N.W., Suite 980
Washingtoq D.C. 200363419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti tion
Office of the Solicitor, U.S. DO?t
Room 554004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
DOCKET NO. 93-0508

If a Direction for Review is issued by the Commission, then the Counsel for
Re@onal Trial Litigation will represent the Department of Labor. Any party
hamng questions about review nghts may contact the Commission’s Executive
Secretary or call (202) 6064400.

Date: November 17, 1994 ~~~~/~~
 DOCKET NO. 93-0508
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mi& Esq.
Counsel for Regional Trial Iiti ation
Of&e of the Solicitor, U.S. DOc
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Patricia Rodenha=n, Esq 0
Re ‘onal Solicitor
e off ce of the Solicitor, U.S. DOL
201 Varic~ Room 707
New York, NY 10014

kL Patrick McCloskey, Es-e
James M. Kenny, Esquire
Kenn~&Stearns
26 Broadwa
New York, &Y looo4 1882

Joseph LeoaH, Safety Director
International Longshoremen’s
Assocbtion - Local 1233
17 Batte Place
New Yor1 NY 10004 1261

John IX Frye, III
Administrative Law Ju e
Occupational Safety an2 Health
Review commission
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washingtoq DC 20036 3419

00109038646:02

lMTED STA- OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One LafayetteCentfe
$
z.I 11202OthStreet,N.W.--9thfloor
Washington,DC 2-19

SECRETARY OF LABOR,
.
Complainant l

                                                 l
                                                 .




               v.                                                      Docket 93-0508

MAHER TERMINALS, INC., 0
.

Respondent                                       0
                                                 .




               and
                                                 ..

I-LA l
.

         Authorized Employee                     ..
         Representative.

APPEARANCES

         William G. Staton, Esq.                 James M. I&my, Esq.
                Office of the Solicitor                 M. Patrick McClos~, Esq.
                U.S. Departmat of Labor                 Kenng---
                New York, New York                      Newark
                                                         I       New Jersey

                       For Complainant                          For Respondent

                                         JosephLeonard
                                         safety Director

                                         New York, New York

                                                 For Intenmor

BEFORE: ADMINISTIUTIVE LAur JUDGE JOHN H FRYE, III
 DECISION AND ORDER

                              L INTRODU~ON

  As a fesuultof an accident investigation by a representative of the Occupational Safety

and Health Administration (hereinafter OSHA) at respondent’s marine terminal facility,

respondent was issued one serious citation alleging three violations of the Occupational

Safety and Health Act (hereinafter the Act) and a notification of proposed penalty in the

total amount of $12,150 for the alleged violations. Respondent timely contested the citation

and proposed penalty. The Secretary thereafter sled his complaint in which he withdrew

item 1 of the citation and, accordingly, reduced the total proposed penalty to $7,650 for

Items 2 and 3. Respondent answered, and these contested matters were the subject of a

hearing on September 21,1993.

                               IL BACKGROUND

   Respondent operates a marine terminal at Port Elizabeth, New Jersey, where it is

engaged in the loading and unloading of ocean-going vessels ur. 15-17). On Sunday,

November 15,1992, a “gang” of respondent’s employees were engaged in the unloading of

a ship (Tr. 126). The gang foreman, or %atch boss,” was Jasper Gore (Tr, 22,68). Shortly

before 1l:OOa.m., a cargo container was off-loaded and placed on the dock (Tr. 25). A

shipping flat was then off-loaded and was placed on top of the container so that it could be

removed from the area with a straddle carrier QYr.25). Several wooden four-by-fours were

nailed to the shipping fla& however, and had to be removed before the flat could be moved

(Tr. 25).

                                       -   2 -

A membr of the gang, Curtis Braswell,’ took it upon himself to obtain one of

respondent’s forklift trucks which he drove to the area of the off-loaded container for

purpose of dislodging the four-by-fours fkom the shipping flat (Tr. 25-26, 41-42). When

Braswell returned with the forklift, Jasper Gore stepped onto the blades and directed

Braswell to elevate him to the top of the container so that Gore could remove the four-by-

fours (Tr. 26). Braswell elevated Gore to a height of 9 to 10 feet above ground, whereupon

Gore removed the four-b-fours fkom the shipping flat and rode the blades of the forklift

back down to ground level (Tr. 26, 111, 136).

   A second shipping flat was off-loaded a short time later which also had wooden four-

by-fours nailed to it (Tr. 25-26, 110-111). Gore again directed Braswell to elevate him on

the blades of the forklift so that he (Gore) could remove the four-by-fours pr. 26,110). As

Braswell elevated Gore on the blades of the forklift, the left blade apparently became caught

on either the underside of the flat or on the cuntainer itself (Tr. 26-27, 110-111). As the

blade pulled free, the blade sepparated &om the forkHt and was prop&xi up in t& & (Tr.

26-27,52,100-111). Gore fell to the ground (Tr. 26-27) and died as a result of the injuries

he sustained in the f&ll (Tr. 124-25).

lMr. Braswell was the first witness for the Secretary. Respondent qwstions his wedibility, noting that on
direct he denied having xeceved any training fkom kkherwith regard to the safe operation of the forklift and
having at&ukd saf6zq meetings prior to November l&l992 (Tr. 28). These denials were shown to be
inwrrect on v tion (See Exhibit R-l; Tr. 35,36). Both Mr. Braswell and ML Gore were shown
to ham attended a meeting in which they were shown slides depicting the proper way in which to ride on
forklift blades, k, with the use of a manlift basket (Tr. l&t), and to have received a copy of the Maher
‘Docbide Personnel safety M&W (Exhibit R-2; Tr. 39). While Respondent has demonssated that
Mr. Braswell’s testimony was in error on the speciiic points dkussed above, his testimony regarding the
circumstances of the accident and the condition of the f&klift from which Mr. Gore f&Alhas not been
contradicted, but is wrrokxatexi by the accountsof others. In this latter regard, I find Mr. B-ll’s
testimony to be reliable

                                             -   3 -

IIL DISCUSSION

A CITATION 1, ITEM 2: ALLEGED VIOLATION OF 29 CF’R 0 1917.43(c)(5) -
FAILURE TO MAINTAIN FORKLIFI:TRUCK IN SAFE WORKING ORDEZR.

    Following the accident, the forklift truck was examined by Braswell, by the Port

Authority Police who impounded it, and by OSHA Compliance Officer Mlliam DuComb2

who was dispatched by his office the next day, Monday, November 16, to investigate the

incident (Tr. 59-60,124-26,131.32). The forklift blade was normally held in a channel on

the truck apparently by two “lips” (Tr. 52, 5940, 130-32, 202-03). One of the lips -

“sheared right oiY’according to Braswell, and Braswell, the police, and DuComb observed

that the area around the lip was rusted (Tr. 52,60,130-32).
A
Based on the rust condition

around the lip, Mr. DuComb concluded that the lip had been missing prior to the accident

(Tr. 130). Braswell similarly concluded that the lip “did not break off [at the time of the

accident]” Q’r. 52). Braswell was not a-e of any defects on the forkWt mck prior to the

accident (Tr. 32,50)?

2Respondent attacks Mr. Docomb’s crediiiility on a number of groun& These inclwie that his field notes

1. did not mention a broken fork lift blade as a contributing caw to the accident, 2 did not mention the
   uavailabiliq of manlift baskets, and 3. found that Respondent’s training program was not adequate despite
   the fact that he had been told that it inch&xi instruction on the use of man’liftbaskets. None of these charges
   seriously impugn Mr. Dutimb’s credibility.

%e Secretary also presented the testimony of gang member Wade Foster who was operating a crane on
November l5 and did not obsem Gore’s accident vr. 7042). Foster test&d that after the accident oaxured
he came down to the do& exam&d the f6rUift m. 7849), and reaqnizd that it was the one that he had
been operating on the dock earlier in the week vr. 79). F&ter stated that the leti blade had a tendenq to
“drop right off (‘IY.81) and Yame off three times in less than ten min~tes~ m. 81). Foster stated that he
reportedthisdefeatothestevedoreondnty~.Sl)andwasinstrpaedtoparlttheforkliftbyabathroom
(Tr. 81). Foster indicated that he was not instructed to place any sip on the @rklB stating that it was o’zlt
of sewice Q’r. 81-82) md that he absented the same fMIift in use later in the week prior to Gore’s accident
m m*
The difficaltywith Mr. Foster’s testimony, as Respondent pointi out, is that made no mention of the
defective blade on the fbrklift in his November 19,1992, statement to OSHA QY. 86). Further, he claimed
at the hearing to have discovered the defective blade sometime around the 12th or 13th of November, 1992,
(czontinued-)

                                               -4.

Respondent’s employees called as witnesses by the Secretary, Braswell and Charles

Edward~,~testiiied that they were not aware of any regular maintenance of forklift trucks

at the facility (Tr. 32,115). However, Respondent introduced the maintenance records for

the forklift involved in the accident, #8083, which indicate that it was seticed four times in

the four months preceding the accident (Exhibit R-6): Respondent also produced a

Purchase Requisition @hibit R-7) showing that new blades were ordered for #8083 on

August 14 and were picked up on September 1 (‘I?. 170). The maintenance records indicate

that the blades were not replaced until November 20, five days after the accident6

Respondent argues that the lack of any notation in the maintenance records prior to

November 20 indicates that no defects in the blades were absented on earlier seticings

(Respondent’s brief, p.6). However, the last seticing was done on September 28, over a

month and a half prior to the accident, so fhat the defect could well have come into

existence after that time.

    Respondent maintains that the Seaetaxy failed to prove that the forklift blade was

defective at the time of the accident. First, Respondent attacks claim that the area from

a mere week be&e he gave his statment to OSHA (Tr. 99). It seems highly unlikely that Mr. Foster would
have neglec&edto inform Mr. DuComb of this significantinhnation w&m he was intervid by the latter
and gave his statement. There&m, I tid that it is not c&ible, and do not relyon it. This result makes moot
Respondent’s argument with respect to the &crews Bilure to d&&se Mr. Foster’s statements in response
to discuwy. See Respondent% brief, pp. 16;11&

4Respondent attacks Mr. Edwards credibility for the same reasons advance with respect to I& BrasweU. See
Reqxmdent%brief, pp. 26-m,footnote $ As in the case of Mr. Braswell, the fad that Mr. Edwards may have
been mistaken with regard to training received does not affbct his crediiiMy with respect to other mattem

‘The dates and itenrssewiaxi we: T/14 - ~cpreventivemabtenan~}, check rollers;”&24 --es, ho- h@
fitting, grease mast, km&,” 9/24 - 76lters;” and 9/28 - “replace t&s.”

%rhiiiit R4. The November 20 record idates ‘%~tmcti~ns/Remark Replacz blad&inspect carriage
check mast roll@-”

                                              -5.

which the lip had broken was rusted. In support of his claim of rust, the Secretary relies on

the testimony of Messrs. .Braswell and DuComb both of whom observed that the area

around the lip was rusted (Tr. 52, 60, 130-32). In addition, Mr. DuComb relied on

information to the same eff6ct obtained Tom the Port Authority Police and reflected in their

report (Tr. 13(F35 15647).
A

   Respondent points out that the Secretary did not offer the police report into evidence

at the hearing even though he could have done so given the document’s classcation as a

business record, and that Mr. DuComb, despite the fact that he had a camera, failed to

record this condition in a photograph, a deviation from his usual procedure (Tr. 153).

Respondent argues that Mr. DuComb’s inaction can only be explained by his determination

that the rust was either not signif%ant or not presenL,

   Both Mr. DuComb and Mr. Braswell test&xi that the rust was present Respondent

has given no compelling reason to doubt their testimony. While the police report was not

offered, it was amble and used by Respondent’s counsel to cross examine ML DuComb,

who paraphrased the reference to the rusted area around the missing lip (‘I?*15657). This

corroborates ML Braswell’s observation that the rust was present immediately after the

accident. In these circumstances, the lack of a photograph does not cast sufficient doubt on

the veracity of these witnesses to reject their testimony on this point.

    Respondent also argues that the Secretary failed to prove the significance, if any, of

the rusted condition, which Mr. DuComb relied on in concluding that the I@ had been

missing prior to the accident (Tr. 130). Respondent believes that the Secretary should have

offered errpert testimony on how quickly the rust could have formed if he is to sustain his

                                        -60

burden of showing that the lip was missing fkom the blade before the accident. Respondent

would place too heavy a burden on the Secretary. Given that the rust was present shortly

following the accident, it is reasonable to assume that the lip was missing prior to the

accide&

   Respondent also argues that any damage to the blade was more probably caused

during the events immediately preceding Mr. Gore’s death,’ pointing out that prior to the

accident the forklift functioned properly, elevating Mr. Gore on the blades immediately prior

to the
. accident without incident. Only when the blade was subjected to the stress of being
caught on a container or flat did it break loose from its mounting.g Thus, Respondent

infers that the blade was not defective but rather became disengaged from the forklift as a

result of the exertion of force immediately prior to the accidenL However, the Compliance

Officer’s uncontradicted testimony was that the broken lip ?.. would permit the blade to

come off 2 (Tr. 133). In light of this fact and the f&t that the blade was rusted in the area

where the lip had been, the inference that the lip was missing prior to the accident and its

absence permitted the blade to disengage when caught on the container or flat is more

compelling I so f&L

‘CJ s&naq? tt,4, Bauntgmbter Cronstnrctionhe, 16 BNA OSHC 1995,1998 (Rev. Corn, 1994), where the
Commission rejected respondent’s argument that the Secretary had not shown that it had constructive notice
of a cut electrical cord because the Secretary did not show that the cut had existed for a &Went period of
time daring which it could be observe& The CO testified that he did not believe that the cut had ocaured
recently because there was discoloration on the inner lining of the cord and the cut did not othenvise look
like one that had happened recently?’

‘Respondent asserts that the secretary’s witnesses admitted this at the hearing, citingTr. 54,110. me
transcript does not support th& assertion

%fr. Braswell state& u[@ became so much pressare on that blade from that flat, it slippeaout frommc&
the flat, and it jnst flew up in the air.” (‘lk 54.)

                                             -7.

Because the dropping of a blade fkom a forklift could cause serious injury to anyone

in the vicinity pr. 133), this finding leads to the conclusion that the forklift was not ti...

maintained in safe worling order? The question remains whether Respondent knew or

reasonably should have known of this condition. The forklifts are routinely stored on the

stringpiece, an outside area on the dock, where the mechanics refuel them. Mr. DuComb’s

uncontradicted testimony was that a defkct in a blade of a forklift could be easily observed

on visual inspection or by pushing the blade (Tr. 130-31). I find that the defect in the left

blade of forklift HO83 should have been revealed to Respondent by just such an inspection

conducted incident to refueling. The Secretary has established that Respondent committed

a serious violation of 5 1917.43(c)(5).

B0 ALLEGED VIOLATION OF 29 CFR 0 1917.43(E)(6) - ELEVATING EMPIDYEE
STANDING ON THE FORKLJFI’ BLADES WITHOUT USING LIFITNG
PLATFORM

   Curtis Braswell testi&d that he has obse~eci the practice of elevating personnel on

the blades of a forklift truck both on the docks and in the hold of ships, and had elevated

personnel himself prior to the day of Gore’s accident (Tr. 29). Charles Edwards had also

observed this practice “every once in a while” and had himself been elevated on the blades

of a forklift (Tr. 112). Braswell also testified that man-baskets are not always available when

they are needed (Tr. 3457-58). Braswell test&d that at the time of Gore’s accident, “there

‘029 CFOR 9 1917.43(c)(s).

                                       -80

was hot a man-basket in the area that I knew of’ (Tr. 57.58)? .

   Respondent’s emp@yees testied that management representatives had to be awe

of the practice of elevating personnel on the blades of forklifts by virtue of their presence

on the docks pr. 30-31,113). l2 Respondent’s manager of corporate safety, Joseph Farley,

had no company record of anyone ever being disciplined for riding the blades of a forklift

(Tr. 213).

    Respondent argues that the Secretary bears the burden of proof with respezt to every

element of an alleged violation of the Act, citing Pqhati Power & Light Companyv.

Secreta?y, 737 F.2d 350, 11 BNA OSHC 1985 (3rd Cir. 1984).= Respondent notes that it

raised the defense of unforeseeable employee misconduct. Respondent urges that, should

the Secretary allege the inadequacy of Respondent’s safety programs in rebuttal, the burden

of proof
L is clearly on the Secretary to prove that the programs are in f&t inadequate.

    The Secretary points out that, in the context of alleged violations committed by

supervisory personnel, the Review Commission has held=

            In order to establish a violation of section 5(a)(2) of the Act, the Secretary
            must prove, among other things, that the cited employer either knew or coul&

llRespondent attacks the Secretary for hiling to disclose that there ms a photograph of a manlift basket in
the imestigative file See Respondent’s brief,pp. llM0. Although the Secretaq neweralleged that the
absexm of spdh baskets was r&wantto the chargesbrought, Respondent somehow elevates this failure into
an assertion that it 5. was prejadicea at the hearing dpe to the krpriseg charge of umdable manlift
baskets.” Respondent’s brie& p. 20. The presence or absence of manlB baskets is not relevant to this citation.
Respondent sufkexi no prejndicxon this armnnt.

?he management personnel on the dockwere identified as the superintendent, the stewedore and the gang
foreman(Tr.34-35). Whenmultiple gan@areinvolved inunloading a ship, there may be two superintendents
and two stevedores present (Tr. 69-70).

Uqxmient also re lies onSeaetmy v. CWwcfk~Li#t& Pawer Chpvty, 13 BNAOSHC2214 (Rev. &IL
1989). This case inmImi an alleged violation of Q S(a)(l) of the Act. Therefore its holding is not applicable
here,

                                               -9,

with the exercise of reasonable diligence, have known of the presence of the
violative conditions. Generally, the actions and knowledge of supervisory
employees are imputed to the employer and the employer is respon&le for
violations committed by their supenisors. Accordingly, the Secretary
est%blishesa prima facie showing of knowledge by proving as he did in this
case, that a supewisory employee was responsl%le for the violation. However,
the employer can rebut this showing by aflirmatively demonstrating that the
supeMsory employee’s conduct could not have been prevented. In particular,
the employer must establish that it effectively communicated work rules to
employees and that its rules were effectively enforced through supewision
adequate to detect failures to comply with rules and discipline sufficient to
discourage violations [citations omitted].

Secretary v. H.E. Wme Inc. and I- Ektrkal Cosftuction Co., BNA 10 OSHC 1499,

1505 (R.C. 1982), affiimed wb mm, Donovan v. H.E. Wiese; Inc., 705 F.2d 449 (5th Cir.

1983)>4 Consequently, the Secretary takes the position that Gore’s lmowledge and actions

on November 15 are presumptively imputed to the Respondent, and a prima facie violation

of the cited standard has been established.

    The Secretary, noting P~hmiiz                   Power & L&k           Co. v. OS.HRc            stpm,

acknowkdges that several courts disagree with the Review Commission with respect to the

allocation of the burden of proof regarding the unforeseeable employee misconduct defense. *

The Secretary maintains that, even under the Respondent’s view, he still prevails?

l%e secretary afS0 cites &crztmy Y. Aide CM W& Sk&e, BNA I.5 OSHC 1809 (R.C 1992); Secrermy V.
Trnprr shjpp& lirc, sqzrq m x cbtdMaf FMays Cbp., BNA 15 OSHC 1317 (KC 1991).

‘SEust, he arees that the testimony &om Respondent’s employees established that the practie of riding
forklift blades was prevalent on the do& and that management officials were aware of the pracxicz
Aamdingly, he believes Respondent had knowledge of these activities through other management officials.

     Second, he potits out that there is no evidence that any safety rule regarding the unsafe practice was

edorced, and argues that this compels a finding that Respondent’s safety program m inadequate and that
the violation on November 15 was f&seeable and prevent&l& He believes that, nnder either view of the
allocation of the risk of nonpersuasion, employer howledge has been established.
The Secmayviews the evicienastoo hvorably. While Messrs. Braswell and Edwards testified that
the practice occmed, when pressed neither stated that it was prevalent, and neither speciiically connected
(~ntinued-)

                                              -   10 -

Both the Secretary and the Respondent read the Pennryhrania Power& Light holding

too expansively. In that case, the court pointed out that it was addressing a standard which

was general in nature. In that circumstance, the court did not believe T.. that the mere

inability of PP&L to anticipate precisely the Secretary’s interpretation of [the standard]

should scuttle the company’s claim that [an employee’s] death could not have been foreseen

and prevented through the exercise of reasonable diligence? In that circumstance, it held

that the Secretary bore the risk of nonpersuasion with respect to the foreseeability of the

supervisor’s miscondu&

   In Pennsylvania Power& Light, the general nature of the standard meant that, despite

a reasonable approach to its enforcement by the employer, tie poss~%ilityexisted that a

supervisor could nonetheless take action which resulted in an accident which the standard

was designed to prevent. It seems clear that the court was concerned that the !Secretary

must show not simply that a supervisor had been involved in the conduct leading to the

accident, but also that the employer should have anticipated that the supervisor might act

as he did. Accepting the supervisor’s participation as suflicient by itself to show employer

knowledge requires an employer, when implementing a general standard, to anticipate every

possible situation which might result in an accident, no matter how bizarre that situation

might be. Consequen@, the court required the Secretary to show more than the

participation of the supeMsor in order to show that the employer knew of the conduct, or

supervisory personnel to it otherthanto saythattheywexepreseskt
01lthe dockin the usual cmme of the
workday. Thus the prevalence of thepradicxad the Respondent3 ams~ or aaual kucmbdge of it is
questionably

I611 BNA OSHC at 1990.

                                        - 11 -

in the exercise of reasonable diligence should have anticipated it.

   Here, the employer is not faced with the difficulty of anticipating OSHA’s

interpretation of a general standard. The standard in this case is specific. It states:

           Employees may be elevated by forklift trucks only when a platform is secured
           to the lifting carriage or forks?’

Indeed, it is hard to imagine how the standard could be more specilic & prohibiting the

conduct in which the supervisor, Mr. Gore, engaged. In this circumstance, it is both

reasonable and in accord with Pqlimib Power& Light to place the risk of nonpersuasion

on the Respondent.

    Respondent fafted to establish that it had taken steps to effectively communicate and

enforce its work rule implementing this standard and that Mr. Gore’s actions were

unfores-ble and idiosyncratic. Respondent established that the gang bosses, including Mr.

Gore, attended monthly meetings held to troubleshoot potential safety problems and

generally review safety performance at Maher, although the minutes of those meetings .

introduced in evidence do not reflect that the subject of riding forklift blades was discus&

(‘I?. 188, 195; Exhibit R-13). Additionally, Respondent established that on May 18, 1992,

approximately six months prior to the accident, Mr. Gore attended a safety meeting with the

rest of his gang where slides illustrated the proper use of a manlift basket to go aloft (See

Exhibit 1; Tr. 183-8S)?8

1729CF.R 8 1917.43(e)(6). The standard goes on to providespecifications
for the lifting platformrt

Yhe compliance Officer agreed on S - that Respondent% employees,incladingJasperGore,
aon
were instructed to use manlift baskets when lifting individuals by means of a f6rkiift (‘lk 147-148).
In its brie& Respondent attacks the Secretary tir Wing to disclose in reqmse to disamq that he
was asserting that the lack of employee trailing was an element of its claim Respondent asse& that the
Secretary introduced evidence on the la& of emplayee training which was a surprise and unfkirly p~$&icial
(ContinuedD..)
- 12 -
 At the same meeting, Respondent’s “Dockside Personnel Safety ‘Manual” was

distributed, read, and illustrated with slides (Tr. 182). While Respondent takes the position

that the manual clear& proscriis the practice of riding on the blades without the utilization

of a manlift basket, it does not go that far. Rather, it states the procedure to be followed

when utilizing a manlift basket.lg Indeed, while the Manual states many specific

prohibitions (such as Section 1, f 8: “When portable ladders are used, they shall be held or

secured to prevent movement”), there is no prohibition on riding the blades of a forklift

contained in the ManuaI.

        Respondent asserts that its policy of utilizing manlift baskets while riding on forklift

blades was enforced, pointing to a May 6,1992, letter reprimanding a gang boss (See Exhibit

R-D, Tr. 193). However, this letter did not concern the practice of riding the forklift blades,

but rather an injury received when an employee “... slipped climbing down from a straddle

l **, ” The letter pointed out that a man lift basket should have been used.

        Respondent failed to meet its burden of persuasion with respect to its unforeseeable

employee misconduct defense. There is no evidence that Respondent communicated or

in light of the discovery response. See Respomlent’s brief, pp.15-16; Tr. 6245.
Respondent3 position is not well taI~n. Fmt, as pointed out by the secretary’s counsel at the
hearing,the interrogatoryasked whether the Smetary asserted a lack of training as a part of his claim He
did not so claim at the hearing, but sought to introduce evidence as to training to refute Respondent’s defense
of unfoxseeable employee miscondtuz Seam&‘1 have found as a Ehctthat Respondent’s employees received
the instruction which Respondent claims they did, so that, in any event, Respondent is not prejudiced.

l%he Manual states in pertinent partz

               ForlMs and manIB baskets - check that &Mift operates properly and that
               manlift baskets are chained to the forkI& Ensure front safety chain is used
               after entering the basket

See Respondent% exhiiiit 2, Section Three, Page One.

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enforced a work rule to supervisors and/or employees prohibiting the practice of riding

forklift blades. I conclude that the Secretary has shown a serious violation of 5 1917.43(e)(6)

which is properly chargeable to the Respondent.

C0 APPROPRIATE PENALTIES

   With respect to Item 2 of the Citation, Mr. DuComb testified that he derived a

penalty of $3500 Tom the OSHA Field Operations Manual based on the exposure of

employees to the condition and the seriousness of any resulting injury should an accident

occur. He reduced this figure by ten percent because of the Respondent’s favorable history,

but gave no credit for good faith, because he believed that Respondent did not have an

effective safety program, or size, because Respondent has more than 250 employees. This

yielded a net penalty of $3150. Mr. DuComb derived a penalty of $5000 for item 3, the

highest level for a serious yiolation. He applied the same adjustment, ten percent for

history, and computed a M penalty of $4500. Respondent did not attack W. DuComb’s

penalty calculations either at the hearing or in his brief They are assessed,

                           IV. CONCLUSIONS OF l[,A’W

   A       Respondent utilizes and/or processes tools, equipment, machinery, materials,

goods and supplies which have originated in whole or in part from locations outside the

State of New Jersey and is therefore engaged in business affecting commerce and is subject

to the requirements of the Occupational safety and Health Act of 1970,29 U.S.C. 0 652(5).

   B0      Respondent is an employer within the meaning of the Act and is therefore


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subject to its requirements.

     Ca    Respondent was in serious violation of the terms of 29 C.F.R. 0 1917.43(c)(5).

A penalty of $3150.00 for Citation 1, Item & is appropriate.

     Da    Respondent was in serious violation of the terms of 29 C.F.R. 5 1917.43(e)(6).

A of penalty of $4500.00 for Citation 1, item 3, is appropriate.

Iv ORDER

     Citation 1, Items 2 and 3 are affirmed as serious violations of the Act. A total

penalty of $7650.00 is assessed.

 . It is so ORDERED.

Dated:
iVasliington, -DC u

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