UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 76-3857

COTTER & COMPANY,

 

                                              Respondent.

 

 

October 26, 1977

DECISION

BEFORE: CLEARY, Chairman; and BARNAKO, Commissioner.

BY THE COMMISSION:

            A decision of Review Commission Judge John S. Patton, dated March 21, 1977, is before this Commission for review pursuant to 29 U.S.C. § 661(i). That decision found that Cotter was in violation of the standard codified at 29 C.F.R. § 1910.132(a)[1] because it did not require its employees who worked on the shipping and receiving docks at the inspected worksite to wear safety-toed shoes. The Commission agrees with the decision of the Judge and adopts his decision.

            Cotter is a hardware wholesaler that supplies merchandise exclusively to True Value Hardware Stores. The violation occurred at Cotter’s warehouse and distribution center in Jonesboro, Georgia. Merchandise shipped to this center is distributed to stores throughout the southeastern United States.

            Approximately 25 employees work on the shipping and receiving docks at this facility where they load and unload an average of about 250,000 pounds of freight each day. Packages are moved manually and on hand trucks and forklifts. While the average package carried by an employee weighs considerably less, the employees sometimes carry articles weighing up to at least 40 pounds. Also, they lift articles weighing up to 150 pounds onto pallets and forklifts. Heavier articles which can weigh up to 260 pounds are picked up by forklifts or other mechanical equipment.[2] Over the preceding two years, only one employee had suffered a lost-time injury that would have been mitigated or prevented by the wearing of safety-toed shoes. There were also two other foot injuries during this time.

            Cotter requires its employees to wear ‘only shoes that fully cover and protect the feet’ and prohibits the wearing of sandals and tennis shoes. It does not, however, require the wearing of safety-toed shoes. Nevertheless, Cotter has a program in its plant through which employees who wish to do so can buy steel-toed shoes. About half of the employees have purchased steel-toed shoes through this program. Cotter presented evidence that indicates that it is not the practice in the warehouse and distribution industries for employers to require the wearing of such shoes.

            Cotter contends on review that the citation should be vacated for numerous reasons. Since Judge Patton’s decision is consistent with Commission precedent,[3] this decision will address the respondent’s essential contentions that attempt to distinguish this case from that precedent.

            Judge Patton held that although the wearing of safety shoes was not customary in the warehousing and distribution industries, a violation of 29 C.F.R. § 1910.132(a) was established because the evidence showed that the hazard of packages falling and injuring the feet was sufficiently great to necessitate that employees wear safety-toed shoes or alternate equivalent protection. In reaching this conclusion, he relied on McLean Trucking Co. v. OSHRC, 503 F.2d 8 (4th Cir. 1974), and Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230 (5th Cir. 1974), cases which involve employers in the trucking and freight industries. Those cases held that the test to be applied to determine whether 29 C.F.R. § 1910.132(a) has been violated is whether a reasonable person would recognize that the work environment posed hazards that warranted the wearing of the personal protective equipment suggested by the Secretary. Judge Patton concluded that while the risk of injury in this case was somewhat less than in either Ryder or McLean, the weight of packages being handled by Cotter’s employees made the hazard sufficiently severe to make a man of reasonable prudence recognize the need for the use of safety-toed shoes.

            The Commission agrees with this conclusion. While the weight of freight handled manually by Cotter’s employees, as well as the incidence and severity of injuries, may be less than in either Ryder or McLean, the situation here is substantially similar to the circumstances in more recent cases where the Commission has found a violation of the standard for lack of safety shoes. Wilson Freight Co., 77 OSAHRC 150/C10, 5 BNA OSHC 1692, 1977 78 CCH OSHD para. 22,041 (No. 13030, 1977); Sunbeam Corp., 76 OSAHRC 79/D3, 4 BNA OSHC 1412 (No. 3664, 1976). Moreover, the fact that respondent’s employees have suffered relatively few toe injuries does not establish the absence of an injury-producing hazard. Wilson Freight Co., supra; Arkansas-Best Freight Systems, Inc., 75 OSAHRC 35/D6, 2 BNA OSHC 1620, 1974 75 CCH OSHD para. 19,326 (No. 2375, 1975), aff’d, 529 F.2d 649 (8th Cir. 1976).

            Cotter argues on review that the Judge, by relying on Ryder and McLean, erroneously applied the standard of knowledge and care in the trucking and freight industries to a member of the warehouse and distribution industry. Cotter maintains that reliance on these cases was improper because the evidence in this case shows that it is not customary in the warehouse and distribution industry for employees to wear safety shoes.

            Although industry custom and practice is one factor to be considered in determining whether a hazard within the meaning of the standard exists, an employer’s own knowledge that a hazard exists is also relevant. Cape and Vineyard Division v. OSHRC, 512 F.2d 1148, 1152 (1st Cir. 1975). Here, the evidence shows that Cotter had actual knowledge of the hazard of toe injuries. It not only required that its employees wear ‘shoes that fully cover and protect the feet,’ but instituted a program through which half of its employees bought steel-toed shoes. Cotter’s argument regarding its lack of knowledge as to the need for such protection is therefore unconvincing.

            Cotter’s objection to reliance on cases involving trucking and freight companies is also unpersuasive because the environment in which its employees work and the types of hazards to which its employees are exposed are very similar to those that were present in Ryder and McLean. Like the employees in those cases, Cotter’s employees work in an environment where large numbers of packages are moved manually and by mechanical means. Just as the employees were in Ryder and McLean, Cotter’s employees were exposed to the risk of injuring their toes from falling packages. Moreover, although most of the Commission decisions requiring protective footwear under 29 C.F.R. § 1910.132(a) have involved freight and trucking companies, the Commission decisions requiring such protection have not been limited exclusively to freight and trucking companies. See United Parcel Service, Inc., 76 OSAHRC 74/D2, 4 BNA OSHC 1421, 1976 77 CCH OSHD para. 20,847 (No. 6344, 1976); Sunbeam Corp., supra.

Relying on 29 C.F.R. § 1910.132(d),[4] Cotter also contends that the shoes which it required its employees to wear, that is ‘shoes that fully cover and protect the feet,’ were sufficient to satisfy the requirements of 29 C.F.R. § 1910.132(a), in view of the relatively light weight of average packages carried by its employees. Cotter asserts that the Judge has in effect erroneously construed the standard to mean that safety-toed shoes are the only shoes that can ever qualify as protective footwear under the standard.

            Cotter’s interpretation of the Judge’s decision is incorrect. The Judge did not hold that only safety-toed shoes or their equivalent constituted protective footwear within the meaning of the standard. Rather, he held that the standard required Cotter’s employees to wear such shoes because of the risks of injury to which they were exposed. That holding is supported by the evidence. The respondent’s employees handled some articles weighing up to 150 pounds. They were also subject to crushing injuries from the respondent’s forklifts. Moreover, as previously indicated, the respondent’s program for the purchasing of steel-toed shoes by its employees demonstrates recognition of the need for such protection.

            Accordingly, the Judge’s decision is affirmed.

FOR THE COMMISSION

 

William S. McLaughlin

Executive Secretary

DATED: OCT 26, 1977

 

 

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 76-3857

COTTER & COMPANY,

 

                                              Respondent.

 

 

March 21, 1977

DECISION AND ORDER

APPEARANCES

Edwin A. Hernandez, Esquire, Office of the Solicitor, U. S. Department of Labor, Atlanta, Georgia, on behalf of complainant

 

Joseph Szczecko, Esquire, Decatur, Georgia, on behalf of respondent

 

STATEMENT OF THE CASE

Patton, Judge:

            This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651, et seq., 84 Stat. 1590, hereinafter referred to as the Act) contesting a citation issued by the complainant against the respondent under the authority vested in complainant by section 9(a) of the Act.

            The citation alleges that as a result of the inspection of a workplace under the ownership, operation, or control of the respondent located at Jonesboro, Georgia, the respondent has violated section 5(a)(2) of the Act by failing to comply with Occupational Safety and Health Standard 29 C.F.R. 1910.132(a). A hearing was held in Decatur, Georgia, on January 10, 1977. Both parties appeared and submitted evidence. Both complainant and respondent have filed written briefs. There was no motion to intervene.

LAW AND ISSUES OF THE CASE

            It is alleged that the respondent failed to provide safety-toe shoes for its employees working on its delivery and receiving dock, in violation of standard 29 C.F.R. 1910.132(a). It is necessary to determine whether the employees were subjected to such hazard as to cause a reasonably prudent man to furnish its employees with safety-toed shoes to protect their feet.

EVIDENCE IN THE CASE

            The Answer of the respondent admitted that respondent has a place of business and does business, among other places, at 7600 Jonesboro Road, Jonesboro, Georgia, where it is engaged as a general hardware wholesale distributor. It was admitted that respondent is and, at all times relevant to this cause, has been an employer engaged in a business affecting commerce within the meaning of the Act, and that respondent maintains an office in Chicago, Illinois, and does work in the State of Georgia, and respondent receives goods and materials distributed originally outside the State of Georgia.

            The respondent sells hardware, paint, and related items and distributes merchandise to True Value Hardware Stores only (Tr. 121). The respondent has 12 warehouses in other cities (Tr. 122). The respondent unloads railroad cars and common carrier trailers. The merchandise is sent out on trailers (Tr. 122). The administrative offices of the respondent are at the Jonesboro facility (Tr. 123). Respondent maintains a shipping and receiving department (Tr. 137–138). With the exception of line changes, the products are the same all of the time (Tr. 138). The employees are familiar with the products and know how to handle them. The company carries 23,000 items. The smallest is a lock washer. The respondent carries bathtub rubber washers which weigh approximately two-tenths of a pound. The heaviest items are fireplaces weighing 263 pounds (Tr. 138–139). The average weight of merchandise received is approximately 22 pounds and the average weight of merchandise shipped is approximately 18 pounds (Tr. 138–139).

            Some cartons of oil are picked up with a forklift as is true of heavy articles such as a fireplace (Tr. 140–141). The average carton that is shipped which is unloaded manually with a hand truck would be more than 22 pounds. The average article loaded or unloaded by hand weighs 15 pounds or less (Tr. 141). The dock is approximately the same height as the trailer. They have tried to put non-skid-type surfaces on the floor (Tr. 143). The total weight of merchandise shipped in 1975 was 28,750,849 pounds. The first ten months of 1976 it was 30,028,737 pounds (Tr. 144). The man-hours worked by respondent were 159,941.25 hours.

 

It was stipulated that the alleged violation relates solely to the shipping and receiving docks and shipping and receiving employees (Tr. 8). The respondent averages loading outbound approximately six or seven trailers a day, and employees probably load an average of 5 or 6,000 cartons a day. There have been days when they unloaded 1 truck and days when they unloaded 15 or 20 (Tr. 9). The total volume of business is $32 million dollars a year (Tr. 9). They unloaded an average of 146,000 pounds of freight at the receiving dock a day and load 110,000 pounds a day. Freight loaded consists of cutlery, gifts, electrical supplies, plumbing, heating supplies, automotive supplies, portable appliances, tools, sporting goods, variety hardware, and lawnmowers, with the weight varying between .2 of a pound and 260 pounds (Tr. 10).

            At the time of inspection, respondent’s employees were in the process of preparing different types of merchandise for shipping to load on trucks, loading on trucks, unloading trucks, and breaking down the items which they had to take back into the warehouse (Tr. 23). Most of the items were relatively small and lightweight, and one person could handle them by himself (Tr. 23). Motor oil, which they loaded, weighed about 40 pounds (Tr. 23). Some of the freight was transported on dollies. They would pick the freight up and put it on dollies. The respondent used forklifts, dollies, flatbeds, trucks, and so forth (Tr. 27). One of the dollies weighed several thousand pounds (Tr. 27). The carts were fourwheeled flatbeds (Tr. 27). The distance moved to load them onto the flatbeds, dollies, and so forth, would be only from a foot to six feet (Tr. 27). They were loaded over a concrete floor (Tr. 28). An employee, according to the compliance officer, could get run over by a forklift or relatively light truck or drop something on his foot (Tr. 46). A hand truck would be taken up the ramp from the dock, and the merchandise would be placed on the truck by hand; the hand truck would be rolled back out, and the merchandise would be taken to a conveyor belt (Tr. 67–68). Forklifts were also used for this purpose. The compliance officer recommended a citation issue because he saw employees lifting items that weighed in excess of 35 or 40 pounds.

            A man who told Mr. Lloyd Black, compliance officer, that he did not have on safety shoes was seen moving a case of oil weighing approximately 42 to 45 pounds. He picked it up with his hands and moved it approximately five or six feet from the float or dolly and placed it on the floor, apparently breaking the load down (Tr. 82).

            Mr. Kimsey Harmon, who worked in the shipping department, testified that the merchandise stacked on the float is pulled inside the trailer and then is unloaded. He stated the farthest it would be carried would be three feet to be stacked on the floor (Tr. 115). Mr. Harmon testified that the average item he would handle would be 30 pounds (Tr. 118). If it was a 200 pound article, a forklift would be used (Tr. 118–119).

            Mr. Homer Clark, operating manager, testified that the heaviest item an employee would pick up would be a roto-tiller, weighing approximately 150 pounds. He stated that plumbing supplies were unloaded by forklift (Tr. 151–153). The employee would use a forklift to pick up the roto-tiller (Tr. 143). Approximately 95 percent of what is handled and put on pallets is under 22 pounds (Tr. 155).

            The heaviest item handled waist high would be 35 to 40 pounds (Tr. 155).

            It is optional with the employees whether they wear steel-toed shoes (Tr. 12). If an employee wears them, he has to buy them himself (Tr. 12–13). Mr. Jack Bellah, compliance officer, noticed some employees working in the shipping and receiving area who did not have on safety-toe footwear. They did not have on any similar type of protection (Tr. 22). There were 10 to 15 people in the general area (Tr. 22). One man who had on ordinary leather shoes was asked if they were safety shoes, and he replied they were not. Mr. Bellah stated that he considered safety-toe footwear a minimaltype protection against damage to feet because it really protects the toes (Tr. 46). Some employees made it a practice of wearing safety shoes and some did not (Tr. 70). Mr. Clark stated that approximately 50 percent of his employees were wearing safety shoes (Tr. 79). He admitted they were not required by the company. It was strictly up to the employees as to whether they wanted to wear safety shoes (Tr. 107, 110–111). Respondent does not allow any open sandals or tennis shoes to be worn but requires full-type covered shoes, and if the employees want steel-toed shoes, they have the service available whereby they can be ordered (Tr. 126).

            Mr. Clark was of the opinion that some employees felt they might need the protection of steel-toed shoes, and he believed they had a right to wear them. He stated that on the other hand, he did not believe the particular business hazards were enough to cause the employer to make employees wear them. (Tr. 151).

            Respondent has no safety program as to safety-toed shoes (Tr. 168).

            The respondent’s evidence established that there had only been three injuries involving a foot or toe during the last two years. Only one of these injuries would have been mitigated or prevented by the wearing of steel-toed shoes. Most of the time lost by respondent’s employees was as a result of that injury. The injury resulted because employees were throwing merchandise which was definitely contrary to the respondent’s rules. Reprimands were issued for this conduct (Tr. 14–15, 83, 130). Total time lost for all injuries was 25 days (Tr. 146). Percentage of total man-hours lost from foot injuries was .04 percent.

EVALUATION OF THE EVIDENCE

            There is substantial precedent to the effect that employees receiving and loading freight in a trucking company should be required to wear safety shoes. In the cases of Ryder Truck Lines v. Brennan, 497 F.2d 230 (5th Cir. 1974), and McLean Trucking Co. v. OSAHRC & Sec. of Labor, 503 F.2d 8 (4th Cir. 1974), it was held that the standard is not void for vagueness, and that the test is whether a reasonable prudent man should have foreseen that there is a hazard which should be protected by safety shoes. In said cases, it was found that the hazard was sufficient to justify such a conclusion. In the Ryder Truck Lines case, there had been ten accidents in five years involving the feet of the employees, and a somewhat similar number of accidents was found in the McLean Trucking Company case.

            It is maintained by the respondent, however, that the situation in the respondent’s business is not analogous to that of a freight line. Respondent makes the point that the employees handle substantially the same types of freight all the time, whereas there is a greater diversity of freight handled by a freight line. The respondent argues that employees handling the same type of freight on a repeated basis are better able to handle it, and the risk of being injured is less. There is some merit to the argument that the hazard is not as great under such circumstances. The risk of injury would be somewhat reduced by a familiarity with the freight handled. The evidence in this case also establishes that freight handled by respondent without a forklift is of less weight than freight handled in either the Ryder or McLean cases. This fact also would reduce the hazard somewhat. The question remains as to whether the hazard at the respondent’s place of business is of sufficient severity to suggest that precautionary measures be taken. The prior accident records of the respondent do not reflect numerous or serious injuries to the feet of respondent’s employees. It will be noted that there were only three instances in the last two years of foot injuries and two of them were to parts of the foot other than the toes. The remaining injury was as a result of the employees violating company instructions and throwing merchandise rather than handing it to each other. The fact that merchandise happened to hit a part of the foot other than the toe does not mean that there was no risk on such occasions of the freight falling at such an angle as to strike the toe. The toes are certainly as exposed, if not more so, as other parts of the foot. It simply happened in these instances that the accidents were such that other parts of the employees’ feet were injured. Respondent’s attorney dropped a 27 pound box on his foot three times so as to demonstrate that no harm would result. This demonstration was impressive, but other evidence in the case was to the effect that if a package had been dropped in such a fashion that the corner or edge of the package had struck the foot, a broken bone could have resulted. The average package handled by hand is only 18 to 22 pounds in weight. There was evidence, however, that employees lifted cartons of oil which weighed between 40 and 46 pounds. A 46 pound article falling and striking the foot could cause injury. The issue is not what is the average size of the package, but what is the weight of the packages which on occasion might be lifted and possibly fall on an employee’s foot. Much heavier articles were lifted by forklift. It is therefore concluded that while the hazard is not so great as to constitute a serious violation, there is a hazard to the employees’ feet if the employees are not wearing safety shoes. This hazard would not be removed but would be somewhat reduced if safety-toed shoes were worn.

            The employees apparently have different opinions as to the necessity of safety shoes. The union business agent testified that employees did not like wearing the shoes because of the fact that they were uncomfortable and cold to the feet. Similar testimony was introduced from employees. On the other hand, the respondent has an optional program, and some employees do wear safety shoes, indicating that these employees at least feel that it is necessary for their safety for them to do so. The testimony of the compliance officer was to the effect that the employees’ feet would be adequately protected if the respondent required them to put a metal covering over the toe of the shoe, which he stated is on the market and used by some employees. There was no evidence in the record to indicate that the same objections could legitimately be raised as to a metal plate on top of the shoes that were raised to the wearing of the shoes. The metal would certainly not be cold to the foot as the shoe would be between the foot and metal, and the evidence does not establish the fact that it would be uncomfortable to wear such a protection. The comfort or lack of comfort simply is not established. The evidence does establish that the metal on top of the shoe would be an adequate protection. It is therefore held that a non-serious violation has occurred, but this violation may be abated by requiring the employees to either wear safety-toed shoes or wear shoes with metal affixed over the shoes, such as described in the evidence. The respondent’s position that it is adequate for the respondent to require a heavy-type of shoe which is not normally considered a safety shoe cannot be sustained.

            It appears that notwithstanding the fact the evidence establishes wearing of safety shoes is not customary in the industry, the fact that the employees were handling freight of sufficient weight that it could have resulted in injury to the employees’ feet was known and apparent to the respondent. The reasonable prudent man test, therefore, has been met. The risk is not great, the injury would probably not be devastating, but enough risk is present to justify the requirement that safety shoes be worn.

            The respondent has a good overall safety record and safety program. The issue involved in this case, under the evidence, is a close one. It appears that the respondent was acting in good faith belief that the problem incident to the wearing of safety shoes outweighed the likelihood of injury from not doing so. Even if this may be true, the wearing of a metal cover to the toe of the shoe is not established to cause problems which would outweigh the risk of injury involved. In view of the fact that the evidence establishes that the respondent is safety-minded, a penalty should not, in this case, be assessed.

FINDINGS OF FACT

            1. Respondent is a corporation having a place of business in Jonesboro, Georgia, where it is engaged as a general wholesale hardware distributor.

            2. Respondent, at all times relevant to this cause, has been engaged in a business affecting interstate commerce within the meaning of the Act.

            3. Certain of respondent’s employees were engaged in the receipt and loading of freight at respondent’s dock at said location.

            4. Said employees manually lifted packages averaging 18 to 22 pounds each, including packages weighing up to at least 46 pounds.

            5. Freight weighing a substantially greater number of pounds was lifted by forklift.

            6. Respondent’s employees were required by the company rules to wear heavy-duty shoes which were not, however, safety shoes.

            7. Respondent had had three instances of injury to its employees’ feet in the previous two years; two of said instances being injuries to parts of the feet other than the toes, and the other injury being as a result of violation of company rules in the throwing of packages.

            8. Wearing of safety-toed shoes was optional and not required by the respondent. Some of respondent’s employees wore said shoes and some did not.

            9. A substantial number of respondent’s employees did not wear said shoes because they felt they were uncomfortable and because said employees did not deem it necessary.

            10. Respondent’s employees would have been adequately protected had they worn a metal covering over the toes of their shoes.

            11. The evidence does not establish that the wearing of a metal protection over the ?? of the shoes would have caused discomfort.

            12. The employees were subjected to some hazard to their feet by being permitted to wear shoes which did not have extra protection to the toe.

            13. Respondent could in the exercise of reasonable care have known that there was some risk involved in not wearing safety-toed shoes or having a metal plate over the toes of the shoes.

CONCLUSIONS OF LAW

            1. Respondent is engaged in a business affecting interstate commerce and is within the jurisdiction of the Act.

            2. Respondent, on or about August 5, 1976, was in violation of standard 29 C.F.R. 1910.132(a) in permitting its employees to work on its shipping and receiving docks without adequate protection to the employees’ feet.

ORDER

            It is therefore ORDERED that:

            Respondent was, on August 5, 1976, in violation of standard 29 C.F.R. 1910.132(a) in failing to require its employees to wear either safety-toed shoes or shoes with a metal safety plate over the toes. No penalty is assessed for this violation. Respondent shall abate this violation within two weeks of the date of this decision becoming a final order.

 

Dated this 21st day of March 1977.

 

JOHN S. PATTON

Judge

 


[1] That standard provides that:

Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.

[2] Chairman Cleary notes that the respondent’s chief administrative officer testified that the respondent’s ‘employees are close to that cargo.’

[3] See, e.g., Wilson Freight Co., 77 OSAHRC 150/C10, 5 BNA OSHC 1692, 1977 78 CCH OSHD para. 22,041 (No. 13030, 1977), and the cases cited therein; United Parcel Service, Inc., 76 OSAHRC 74/D2, 4 BNA OSHC 1421, 1976 77 CCH OSHD para. 20,847 (No. 6334, 1976); Sunbeam Corp., 76 OSAHRC 79/D3, 4 BNA OSHC 1412 (No. 3664, 1976).

[4] That standard provides that:

All personal protective equipment shall be of safe design and construction for the work to be performed.