Docket No. 141

ARNOLD HANSEN, d/b/a HANSEN BROTHERS LOGGING

OSHRC Docket No. 141

Occupational Safety and Health Review Commission

October 13, 1972

[*1]

Before MORAN Chairman; VAN NAMEE and BURCH, Commissioners

OPINIONBY: BURCH

OPINION:

BURCH, COMMISSIONER: On June 12, 1972, Judge Harold A. Kennedy issued his decision in this case affirming the Secretary's citation for serious violation together with its proposed penalty.

Thereafter, on July 5, 1972, I directed that the Judge's report in this case be reviewed by the Commission in accordance with section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq., 84 Stat. 1590, hereinafter referred to as "the Act").

The Commission has considered the brief filed by the Secretary and has reviewed the entire record. We do not adopt the Judge's conclusions of law for the reasons set forth below. We adopt the Judge's findings of fact to the extent that they are consistent with the following.

Respondent is a sole proprietorship, engaged in a seasonal logging business. It cuts and supplies logs to businesses engaged in interstate commerce, and employs approximately five employees. Respondent is thus an employer within the meaning of section 3(5) of the Act.

On July 23, 1971, one of respondent's employees was fatally injured. As a result of the fatal accident, an OSHA [*2] compliance officer inspected respondent's worksite on July 28, 1971. Thereafter, on August 13, 1971, respondent was issued a citation alleging a serious violation of section 5(a)(1) of the Act, the "general duty clause," together with a proposed penalty in the amount of $500. The citation alleged:

An unimpaired clearance of not less than 3 feet was not maintained between swinging and moving parts of machines and fixed objects. In addition accessible areas within the swing radius of a crane were not barricaded or safeguarded in such a manner as to prevent an employee from being struck or crushed by the crane, constituting a recognized hazard that is causing or likely to cause death or serious physical harm to employees.

At the time of the accident, respondent's owner was operating a P&H log loader, placing logs on a truck. He described the loading operation as follows:

The P&H log loader is a power shovel which moves on tracks and has a 360 degrees rotating cab and crane. It is especially equipped with a grapple in place of a bucket for the purpose of grasping cut logs. While the loader was grasping and loading logs, the cab rotated on its center pin. When actually [*3] placing a log onto the truck trailer, the front of the cab faced the truck. The counterweight extended considerably farther from the axis of rotation than did the front end, and thus, when the cab turned 180 degrees to grasp a log, the counterweight would sweep through an arc of greater radius then that of the grapple.

After each log was loaded, the truck driver was signaled to move the truck forward as the loader was rotated to lift a log, thus allowing clearance between the counterweight and the trailer.

At the time of the fatal accident, the loader was turning to pick up a log when the operator was signaled by the truck driver to stop. The body of the deceased employee was lying on the ground between the trailer and the counterweight.

Section 5(a)(1) provides that each employer:

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.

It is acknowledged by all parties that permitting personnel within the swing radius of the loader while it is in operation is a recognized hazard ". . . causing or likely to cause death [*4] or serious physical harm . . ." This is evident from respondent's owner's repeated instructions to his employees to stay clear of the loading area while the loader was in operation and the tragic fact that an employee was killed when he failed to do so. The Judge concluded that respondent owner ". . . could have determined that the hazardous area was clear and safe . . ." before swinging the loader. However, the record is void of any evidence from which to conclude that even if the area had been clear when he began to move the loader, this would have prevented the occurrence of the accident. No one saw the accident or the decedent until after the accident. He had no reason to be in the area while the loader was in motion and had been warned to stay clear.

Since final responsibility for compliance with the Act lies with the employer, n1 the question presented is whether respondent had taken reasonable precautions to prevent its employees from coming within the admittedly hazardous area while the loader was in operation.

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n1 S. Rep. No. 91-1282, 91st Cong., 2nd Sess. 11 (1970).

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The record shows that respondent's owner gave specific oral instructions to its employees to stay clear of the loading area while the equipment was in motion. The hazard was obvious. Respondent's employees were repeatedly reminded of the danger involved and were told to stay out unless they were instructed to approach the area after the machinery had been stopped. There is nothing in the record to show that respondent's owner knew or reasonably should have known that the deceased employee would disobey these instructions. In the presence of these conditions, and because of the nature of the operation, to require respondent to provide one-on-one supervision of its employees would place respondent under the unreasonably burdensome duty of having to establish the whereabouts of each of its employees prior to every operation of its equipment. It is the opinion of the Commission that under the circumstances herein, practicality and reason dictate that the respondent's obligation has been met within the requirements of section 5(a)(1) of the Act.

Accordingly, it is ORDERED that the Judge's order is set aside. [*6] The citation for serious violation together with the proposed penalty are vacated.

[The Judge's decision referred to herein follows]

KENNEDY, JUDGE, OSAHRC: A Citation dated August 13, 1971, was issued by the Secretary of Labor charging Respondent Hansen Logging Company, a single proprietorship owned by Arnold Hansen of Glide, Oregon, with committing a "serious violation" of the "general duty clause" of the Williams-Steiger Occupational Safety and Health Act (Section 5(a)(1) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq. ).

Section 5(a)(1), the general duty clause, provides that each employer:

Section 17(k) of the Act provides that:

. . . a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in [*7] such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

Paragraph 30, Section 9, Chapter 16 (16-9-30) of the Oregon Safety Code for Places of Employment (Logging) provides:

Au unimpaired clearance of not less than three feet shall be maintained from swinging or moving parts of machines where such swinging or moving parts create a hazard to personnel. If this clearance cannot be maintained, suitable barricades or safeguards shall be installed to isolate the hazardous area.

The citation charged that the general duty clause was violated at a logging site in the Glide area as follows:

Au unimpaired clearance of not less than three feet was not maintained between swinging and moving parts of machines and fixed objects. In addition accessible areas within the swing radius of the rear of a crane were not barricaded or safeguarded in such a manner as to prevent an employee from being struck or crushed by the crane, constituting a recognized hazard that is causing or is likely to cause death or serious physical harm to employees.

A Notification of Proposed Penalty, assessing a penalty of $500, [*8] was issued on August 17, 1971. Respondent submitted a Notice of Contest to the citation and proposed penalty under date of August 25, 1971. No further pleadings were filed as the case was received by the Review Commission prior to the effective date of the Commission's Rules of Procedure published in the Federal Register on August 31, 1971.

The case came on for hearing, after due notice, in Roseburg, Oregon, on February 23, 1972. The Secretary called as witnesses: Respondent Arnold Hansen; two representatives of the State of Oregon Workmen's Compensation Board, Fred Schroeder and Robert Kennedy; and two representatives of the United States Department of Labor, James J. Dworak III and Luther Thomas Ashcraft. The case was argued orally by counsel at the hearing at the conclusion of the evidence. The Secretary has also submitted a supporting brief.

Respondent's employees are not organized, and none sought to participate in the proceedings.

At the outset of the hearing counsel stipulated that Respondent's customers, the companies to whom logs or wood products are supplied by Respondent, "are themselves engaged in interstate commerce" (Tr. 11-12).

Hansen Logging Company [*9] is an individual proprietorship of Arnold Hansen (Tr. 130). Mr. Hansen testified that he was the only active owner of Hansen Logging Company (although it has been once registered as Hansen Brothers Logging) when it closed down on September 1, 1971 (Tr. 13-14). Mr. Hansen is 50 years old (Tr. 115) and has been in the logging business, a seasonal business (Tr. 46), virtually all of his life ("since I have been 11 years old") (Tr. 14).

Mr. Hansen's testimony related primarily to the logging operation that he was performing on United States Forestry Service property near Glide, Oregon for United States Plywood Corporation on July 23, 1971, the day his 20 year-old stepson, Gordon M. Hall, was fatally injured. United States Plywood had purchased the timber from the federal government, and Mr. Hansen had agreed to cut and transport the timber for U.S. Plywood.

Mr. Hansen has, or at least at that time had, a truck shop or garage in Glide. He had five employees, including Kenny Lexander, a son, Terry Hansen, Bruce Hall and the decedent, Gordon Hall. He was operating with a "P & H" log-loader shovel, a caterpillar and three trucks. (A picture of the log loader used by [*10] Respondent is in evidence as Secretary's Exhibit 1.) A log-loader is, in reality, a power shovel which has had its bucket (a 1 1/4 yard bucket in this case) replaced with a grapple. The grapple is operated by a cable and "picks up the logs and heels it to the shovel and then you open the grapple and then the log sets down on the truck" (Tr. 25). The cab or enclosed part of the shovel sits on a base or platform which turns on a pivot, in either direction, a full 360 degree circle like a turntable. The operator sits on the right side and cannot see on the left side. (There are no mirrors, Tr. 31.) The distance from the pivot to the back, referred to as the "counterweight," is greater than the distance from the pivot to the front ("the back . . . sticks out . . . practically twice as far," Tr. 41). Thus, the front needs less room to clear and swing free than the counterweight, except that the counterweight may swing a foot or so above the end of a trailer-truck (Tr. 60, 118) or "reach" -- the steel tube or pole which runs from the rear of the trailer to the front and hooks the trailer to the truck (Tr. 22; Secy's Ex. 1). n1

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n1 The reach normally sticks out to the rear beyond the end of the logs (Tr. 118).

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Mr. Hansen explained how he loaded the logs. With the shovel facing a pile of logs, the shovel would pick up a log and then swing in a left, counter-clockwise direction and drop the log on the truck. The truck would move back and forth for the loading of each log (Tr. 54; 116). He would signal for the truck to go forward (one "beep" on the horn, two to reverse, Tr. 36-7). He would leave it to the truck driver to determine how far to go and stop with enough clearance for the operation of the shovel (Tr. 59, 62).

Mr. Hansen testified that each load of timber taken from the United States Forest Service land must bear a "U.S." tag on the end of a log on each load. On the day of the accident Gordon Hall had been tagging the load with the aid of a staple gun. In addition, he was given other duties to perform, such as trimming and branding of logs (Tr. 121-3). Mr. Hansen explained his practice of tagging a log as follows (Tr. 30):

Either I would tell him what log was going to [*12] go on the load before we started loading, so he would tag it on the ground, or he would wait until the truck was completely loaded and then the truck moved out and then he would tag it.

Mr. Hansen recalled that five or ten minutes before the accident occurred he asked the decedent to hook up a trailer to a truck (Tr. 42). Mr. Hansen, operating the shovel himself, then loaded two logs on to the trailer. He signaled the truck driver, Kenny Alexander, to move forward so the shovel could be swung around to pick up another log. Mr. Hansen began his swing toward the pile of logs while the truck was moving. There was room for the front end of the shovel to swing by the end of the trailer (i.e., the reach), but there was not sufficient clearance for the counterweight (Tr. 58-64). The shovel did not make the 180 degree swing back to pick up the third log (Tr. 59, 67). Mr. Hansen agreed that it must have been in the last 90 degrees of the swing from the trailer to the log pile that "Mr. Hall was crushed by this swinging counterweight and pinned between the counterweight and the reach" (Tr. 62). In Mr. Hansen's words (Tr. 21):

. . . I started to swing the shovel around and I [*13] signaled for the truck to go ahead, but as I swung around, I didn't know where Gordon was at then. I never seen Gordon at all. But as I swung the shovel around and I picked up the log behind, and the truck driver came and signaled to me that Gordon had got between the truck and the shovel.

Mr. Hansen testified that no one saw the accident or heard anything at the time. Kenny was in the truck; Bruce and Terry were 300 to 400 feet away (Tr. 21; 121). Mr. Hansen had thought there was sufficient clearance between the shovel and the trailer even before the truck moved (Tr. 60, 118). On seeing the driver's signal that something was wrong, Mr. Hansen got down off of the shovel and saw his stepson's body on the ground between the truck and the counterweight with a staple gun nearby (Tr. 27-8, 42, 60, 68). Gordon died almost immediately (Tr. 18).

Mr. Hansen said Gordon should not have been attempting to tag any log as the truck was not yet loaded, and, in any event, Gordon and all employees had been instructed not to be near the shovel during loading operations (Tr. 29-32; 116-119). n2 According to Mr. Hansen, the employees were told to be at least 40 feet from the loading operation, [*14] either in front of the truck or at a distance in the rear (Tr. 115).

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n2 There were to be three logs on the truck that was being loaded when the accident occurred although an average load is 12 logs or more (Tr. 117).

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Mr. Hansen testified that he did not conduct safety meetings as such, but he did give oral instructions and made available to his employees safety literature that was received from the State of Oregon and from logging associations (Tr. 14; 32-3). He said he was familiar with "most" of the Oregon logging code, including the provision that refers to a three-foot clearance and use of barricades (Tr. 32-5). According to Mr. Hansen, logs cannot be loaded with the use of barricades (Tr. 34, 124). Also, that a three-foot clearance cannot always be maintained between a shovel and a truck in loading logs, especially if the logs are 34 feet long, the length of the logs being loaded that day, or if they are very short (Tr. 34-39; 49-50). He explained that logs are grabbed in the middle and one end [*15] placed on the truck and then the other end is laid down onto the trailer (Tr. 38). "If you were grabbing a big log . . . right on the end, you are going to tip your shovel over or break something," he pointed out. And, "the further you grab the log into the middle the further the truck has to come back . . ." (Tr. 51-2). He pointed out that "sometimes you have to have that truck come clear back against the shovel to load that log . . ." (Tr. 38).

Mr. Hansen did concede that a shovel operator could signal the truck driver to move up and not swing the shovel until the truck had moved completely out of the way and had come to a complete stop (Tr. 55-58; 61). He stated that in this instance the shovel was swung before the truck had come to a stop, and there was not three feet clearance between the trailer truck and the counterweight (Tr. 58-64).

Mr. Hall was not an experienced logging worker, but he was not a "green hand" (Tr. 46). He had been released from the army two weeks previous to the fatal accident but had worked for Mr. Hansen several months over the preceding three years.

Mr. Schroeder testified that he was called by Respondent after the fatal accident and that on [*16] July 29, 1971, he made an inspection and report thereon for his employer, the Workmen's Compensation Board of the State of Oregon (Tr. 70-84). According to the report, Respondent allegedly violated Section 16-9-30 as well as other provisions of the Oregon Code (Secy's Ex. 4). The report, in part, calls for Respondent to make the following corrections:

Maintain an unimpaired clearance of not less than three feet between the shovel loader counterweight and any substantial objects. 16-9-30

When signalling a log truck being loaded to move ahead to clear the swing of the loader make sure it has moved far enough to provide the three feet of counterweight clearance before swinging the loading machine. 16-9-30

Permit no workman to approach the danger area around trucks being loaded until communication has been established with the loading machine operator and the area determined to be safe. (Area must be safe and loading machine idle before attaching load tags to the rear of log loads or wait until loads are loaded, bound, and have pulled clear of the danger area).

Mr. Schroeder expressed the expert opinion that based on the facts supplied to him by Respondent the primary [*17] cause of the accident was "mostly lack of waiting until the truck got far enough ahead to provide clearance of everything" (Tr. 83). Another inspection report of the witness covering an operation of Respondent east of Toketee (Oregon) on March 26, 1969, was introduced. That report, signed by the loader operator, Kenneth J. Roe (Tr. 34), alleges failure to "maintain at least three feet clearance between the loader counterweight and any solid object" (Secy's Ex. 3).

The other Oregon safety officer, Robert Kennedy, testified concerning an inspection he made on February 26, 1970 of Respondent's operation in Lane County, Oregon, again with Mr. Roe in charge (Tr. 84-91; Secy's Ex. 7). Mr. Kennedy on cross-examination agreed that log trucks do "back right up against the bumper on the loader" during loading operations, a practice which he neither considers "unsafe? nor a violation of the Oregon Code (Tr. 91).

Compliance Officer Dworak testified that on July 28, 1971, after the fatal accident, he went to a logging site where Respondent was engaged in logging operations and observed Respondent's "son going behind the loader, when the loader was in operation, to tag the [*18] load" (Tr. 95). He took photographs of Respondent's shovel and one of his truck trailers that was at the site and thereafter submitted a report to his then superior Acting Area Director Ashcraft (Tr. 97-8, Secy's Exs. 1 and 2). Mr. Dworak said he recommended issuance of a citation for a "serious" violation because a three-foot clearance between the counterweight and the reach of the truck had not been maintained and there had been a fatality (Tr. 99). He explained that the proposed penalty of $500 reflected credit of 20% for "good faith," 20% for "history" (there being "no past federal records," Tr. 100), and 10% for "size" (there being 10 or less employees). Mr. Dworak agreed on cross-examination that the "simple failure to maintain a three-foot clearance" is not a violation of law (Tr.102).

Mr. Ashcraft testified that he approved Mr. Dworak's recommendation as to the issuance of the citation charging violation of the general duty clause "primarily" due to "the failure to maintain a clearance of the three feet between the crane and the truck or barricades, or some method to prevent the type of an accident that did occur" (Tr. 104). He also approved of Mr. Dworak's recommendation [*19] as to the proposed penalty. He also agreed that the failure to maintain a three-foot clearance alone did not constitute a violation of law (Tr. 109). Mr. Ashcraft indicated that in Respondent's situation he would have used saw horses and ropes with warning signs along each side of the truck and the loader (Tr. 111).

There is no real question about jurisdiction in the case. Respondent's customers, that is, the persons to whom he supplies wood products, are admittedly in commerce. He has employees, and his business affects commerce. See National Labor Relations Board v. Marbro Food Service, Inc., 366 F.2d 477 (10th Cir. 1966), cert. den. 386 U.S. 912; also National Labor Relations Board v. Townsend, 185 F.2d 378, 382-3 (9th Cir. 1950), Cert. den. 341 U.S. 909.

Respondent testified, with considerable persuasion, that as a practical matter that he, and presumably anyone else, could not conduct a logging business if a three feet clearance must always be maintained between the loader and the truck. State as well as federal safety officials testified that the failure to maintain the three-foot clearance did not, of itself, result in a violation. [*20] The officials did not, however, make clear exactly what had to be established to prove a violation. It is noted that Paragraph 30 of Section 9 of the Oregon Safety Code (Chapter 16) contains this escape provision:

. . . If this clearance cannot be maintained, suitable barricades or safeguards shall be installed to isolate the hazardous area.

Admittedly, Respondent used no barricade or other means to isolate the "hazardous area" between the loader and the rear of the truck. Barricades apparently are not practical with the loader having to swing and the truck having to move back and forth for the loading of each log (Tr. 110-12; 136-137).

Respondent's counsel pointed out "that the statute must, to make any sense, refer to a clearance between the moving parts and personnel" (Tr. 132). He noted that the law could not mean, as the citation recites, that a three-foot clearance must be maintained between "moving parts of machines and fixed objects" or no logging operation could be performed (See Tr. 107-9; also Tr. 133-4).

There is, again as Respondent's counsel points out (Tr. 133), another important escape clause contained in 16-9-30. The first sentence reads:

An unimpaired [*21] clearance of not less than three feet shall be maintained from swinging or moving parts of machines where such swinging or moving parts create a hazard to personnel. (italic added).

The italicised words make it clear that the three feet clearance is mandatory only if the swinging and moving machinery "create a hazard" to workmen. But here the moving machinery did create a definite hazard to Respondent's employees, particularly Gordon Hall.

The undersigned agrees with Respondent's counsel that in enacting the logging code the State legislature undoubtedly intended that logging should be allowed "on a reasonable basis" (Tr. 133). It is, of course, a hazardous business, and the fact that a fatality occurred does not mean, inexorably, that there was a violation of law. But the undersigned is persuaded, after careful review of the whole record, that Respondent could have done more, and the law required him to do more, in the circumstances to assure safe employment at his logging site on July 23, 1971. It is true that Respondent had cautioned all employees to stay clear of loading dperations. Also, it is apparent that the decedent took it upon himself to go between [*22] the shovel and the truck reach, the hazardous area, to tag the load prematurely, again in disregard of instructions given by Respondent. But Respondent's failure to check and control the hazard created by the moving machinery, in this judge's opinion, resulted in a violation of the Occupational Safety and Health Act of 1970.

Respondent was in overall control of the work site. He operated the shovel himself, and he had control of the operation of the truck by means of audible signalling. He should not have undertaken to swing the shovel until the truck had moved completely out of the way and come to a stop. There was a means of communicating with Kenny Alexander, the truck driver, and it could have been determined that the hazardous area was clear and safe before swinging the shovel.

While the Oregon logging code contains several provisions (e.g., 16-9-68, 16-10-5) relevant to the hazard and the accident involved here, the provision relied on by the Secretary (10-9-30) does establish the existence of a "recognized hazard" from which Respondent's employees were not sufficiently protected. The hazard, involving a limited clearance for moving machinery where there is a risk to [*23] workmen, is recognized in the Oregon Code, and Respondent himself expressed familiarity with it (Tr. 33-4). Thus, a violation of Section 5(a)(1) of the Occupational Safety and Health Act of 1970 was thus established. The citation was not artfully drawn, but Respondent was sufficiently apprised of the nature of the violation charged.

Little need be said about the seriousness of the violation or the penalty. As Acting Area Director Ashcraft testified, there was "the potential of a serious disabling injury" or fatality (Tr. 105). The violation did involve "a substantial probability that death or serious physical harm could result" (Section 17(k) and, in fact, the death of Gordon Hall did result).

The penalty proposed by the Secretary is not unreasonable, especially when the "gravity" of the violation is considered (the primary factor in assessing the penalty here, Hodgson v. Nacirema Operating Company, Inc., In assessing the penalty, the Secretary appears to have been somewhat severe in evaluating the "size" aspect of Respondent's business but more charitable in evaluating Respondent's safety program (i.e., Respondent's [*24] "good faith"). n3 The record does indicate that this is the first accident of this kind in Respondent's history. And Respondent has no past record or "history" of any violation under the Occupational Safety and Health Act. Regardless of the method used by the Secretary in arriving at the penalty, it does appear that the $500 penalty assessment is reasonable and appropriate under the Act. n4

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n3 No doubt the penalty was determined in accord with administrative guidelines of the Secretary then in effect, but Respondent's small size should ordinarily warrant a substantial reduction in the penalty. On the other hand, Respondent was given full 20% credit for good faith even though an employee was observed "tagging the load" behind the shovel after the fatal accident.

n4 Section 17(j) of the Act gives the Commission authority to assess civil penalties, "giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations."

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Based upon the foregoing findings, and the whole record, the following findings of law are entered:

1. Jurisdiction of this proceeding is conferred by Section 10(c) of the Occupational Safety and Health Act of 1970.

2. Respondent is an "employer" and "a person engaged in business affecting commerce who has employees" within the meaning of Section 3(5) of the Act.

3. Respondent violated Section 5(a)(1) of the Act by failing adequately to protect employees from the hazard that arose when the shovel swung within three feet or less of a trailer truck and, thus, failed to furnish his employees with employment and a place of employment free from recognized hazards that could cause or likely cause death or serious physical harm to employees.

4. Such violation was a "serious violation" within the meaning of Section 17(k) of the Act as there was a substantial probability that death or serious physical harm could have resulted.

Upon the basis of the foregoing, it is ORDERED that the citation issued herein on August 13, 1971, and the proposed penalty assessed thereon be, and the same are, AFFIRMED.