BARKER BROTHERS, INC.
OSHRC Docket No. 12964
Occupational Safety and Health Review Commission
January 16, 1978
[*1]
Before CLEARY, Chairman; and BARNAKO, Commissioner.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Henry Mahlman, Associate Regional Solicitor, U.S. Department of Labor
Tom C. Toner, for the employer
OPINIONBY: BARNAKO
OPINION:
DECISION
BARNAKO, Commissioner:
Barker Brothers, Inc. was issued a serious citation, alleging it violated Section 5(a)(1) of the Act, n1 after an accident in which an employee was killed while helping load a track loader vehicle onto the bed of a dump truck. Judge John J. Morris affirmed the citation, and he assessed a $300 penalty. We affirm his decision.
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n1 The Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. Section 5(a)(1) of the Act reads:
(a) Each employer -- (1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.
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Two employees of Barker Brothers were attempting to move the track loader onto the dump truck. While one [*2] of them backed the loader onto the truck bed from an earth ramp, the other got into the truck bed for some unknown reason. After the track loader had proceeded about three feet into the truck bed, the truck jolted forward and the track loader crashed to the ground; the truck bed tipped and the employee who had been standing on it was thrown off. He landed between the truck bed and frame, and was fatally injured.
The record establishes that the truck would not have moved if its maxi-brake had been set or if its wheels had been chocked. Chains and boomers, which would have prevented the truck bed from tipping, were available at the site. The employee who was driving the loader when the accident occurred testified that Barker Brothers had never instructed him to use wheel chocks. He stated that he was told to use chains to secure the truck bed, but that it was left to his discretion when to use them. Barker Brothers' general manager testified that the company had no written safety instructions concerning how a loader should be moved onto a dump truck, but employees were told "to use all the safety devices that's necessary to make a safe operation."
The citation and complaint [*3] n2 filed by the Secretary of Labor allege that Barker Brothers violated Section 5(a)(1) by allowing the track loader to be loaded onto the dump truck "without providing a positive means to prevent forward movement of the dump truck" and "without providing a positive means of preventing the bed of the truck from tipping." Barker Brothers contended at the hearing that it did not violate the Act in the manner alleged because it provided the equipment necessary to prevent the truck from moving and tipping. Judge Morris affirmed, however, because he concluded that Barker Brothers did not instruct its employees in the use of the equipment.
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n2 The pertinent portion of the citation reads:
. . . the employer failed to furnish to his employees a place of employment which was free from recognized hazards that were causing or likely to cause death or serious physical harm to his employees, in that the employer allowed a Caterpiller 955 D Traxcavator to be loaded onto a Ford dump truck without providing a positive means to prevent forward movement of the dump truck; without providing a positive means of preventing the bed of the truck from tipping . . . without providing jacks to stabilize the bed of the dump truck; and without providing deadman anchorage of the dump truck.
[*4]
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Barker Brothers contends on review that "the (judge's) decision was made upon an allegation and a set of facts which was not properly before the judge at the hearing." It contends that the judge's finding of a violation based on the company's failure to instruct is outside the scope of the citation and complaint.
We reject the argument. Although the pleadings spoke in terms of Barker Brothers' failure to "provide" certain equipment, it is clear that the essence of the Secretary's charge was that Barker Brothers failed to take appropriate action to require the use of the equipment. The question then is whether Barker Brothers had adequate notice that this was the crux of the alleged violation, and thus had a fair opportunity to try the issue. n3 National Realty and Construction Co. v. OSHRC, 489 F.2d 1257, 1264 (D.C. Cir. 1973).
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n3 The issue in this case differs from those cases in which an employer is cited under a standard requiring that certain equipment be "provided." In such a case, the issue is whether the standard by its terms imposes a "use" requirement. See Kennecott Copper Co., 76 OSAHRC 81/A2, 4 BNA OSHC 1400, 1976-77 CCH OSHD para. 20,860 (No. 5958, 1976), pet. for review filed, No. 76-1735 (10th Cir., August 13, 1976). The inquiry here is whether Barker Brothers had fair notice of the charge against it. Compare P & M Sales, Inc., 76 OSAHRC 52/A2, 4 BNA OSHC 1158, 1975-76 CCH OSHD para. 20,673 (No. 3443, 1976) with Turnbull Millwork Company, 77 OSAHRC 6 BNA OSHC 1148, 1977-78 CCH OSHD para. (No. 15047, 1977).
[*5]
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The record contains evidence establishing that the necessary equipment was not in fact used. There is also evidence concerning the instructions Barker Brothers gave its employees relative to using the equipment. Barker Brothers did not object to the introduction of this evidence, thus indicating it understood that the evidence was relevant to the charge against it. Accordingly, it appears that Barker Brothers did have fair notice that the true basis of the charge was its failure to take appropriate action to require the use of the equipment. Broadway Warehouses, Inc., 77 OSAHRC 10/D4, 4 BNA OSHC 1986, 1976-77 CCH OSHD para. 21,467 (No. 10560, 1977).
We agree with the judge's conclusion that the instructions given were inadequate. An employer must do more than give generalized instructions to its employees to work safely; it must specifically instruct its employees when and how to take necessary safety precautions. Brennan v. Butler Lime and Cement Co., 520 F.2d 1011 (7th Cir. 1975); Iowa Southern Utilities Co., 77 OSAHRC 32/C10, 5 BNA OSHC 1138, 1977-78 CCH OSHD para. 21,612 (No. 9295, [*6] 1977). It is not sufficient for the employer to leave the decision to use protective devices to the discretion of employees, as Barker Brothers did. B & B Insulation, Inc., 77 OSAHRC 49/A2, 5 BNA OSHC 1265, 1977-78 CCH OSHD para. 21,747 (No. 9985, 1977).
Barker Brothers does not argue that it gave adequate instructions. Citing National Realty, however, it claims that the evidence is insufficient to support the Judge's affirmance of the citation because the record does not demonstrate the feasibility and likely utility of "a warning or training program." This case is distinguishable from National Realty. In National Realty, there was no suggestion that the hazard there could have been prevented by equipment or devices. Here, Barker Brothers had the devices and equipment that could have been used to protect its employees by preventing the hazard. Of course, to provide adequate protection for its employees, Barker Brothers' first step should have been to instruct them on how and when to use those devices. The feasibility and likely utility of such instruction is obvious, and we infer it from the record. Mercer Well Service, Inc., 77 OSAHRC 178/C6, 5 BNA OSHC [*7] 1893, 1977-78 CCH OSHD para. 22,210 (No. 76-2337, 1977). See Champlin Petroleum Co., 77 OSAHRC 137/A2, 5 BNA OSHC 1601, 1977-78 CCH OSHD para. 21,951 (No. 13081, 1977).
We affirm the citation on the basis that Barker Brothers failed to instruct and train its employees on the use of appropriate safety devices. We have considered the penalty assessment factors set forth in Section 17(j) of the Act and conclude that the $300 penalty assessed by the Judge is appropriate.
Accordingly, the Judge's decision is affirmed.