Docket No. 2701

GETTER TRUCKING, INC.

OSHRC Docket No. 2701

Occupational Safety and Health Review Commission

April 29, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: CLEARY

OPINION:

CLEARY, COMMISSIONER: On January 17, 1974, Judge John J. Morris issued his decision and order in this case, vacating the citation for serious violation and notification of proposed penalty.

On February 19, 1974, I directed that the decision and order be reviewed by the Commission pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq. ).

Review was directed on the basis of complaint's petition for discretionary review which excepted to the Judge's asserted failure to consider material facts which render reliance upon National Realty & Constr. Co. v. O.S.H.R.C., 489 F.2d 1257 (D.C. Cir. 1973) prejudicial error. The Secretary has since requested that his petition be withdrawn because of the inability to meet the burden of proof required by National Realty, supra.

On the basis of this circumstance and our review of the entire record, including respondent's brief on review, it is ORDERED that the Judge's decision and order be affirmed.

[The Judge's decision referred to herein follows]

MORRIS, JUDGE, OSAHRC: This is a proceeding pursuant to Section [*2] 10 of the Occupational Safety and Health Act of 1970 (29 USC 651, et. seq., hereafter called the Act) contesting a certain Citation issued by the Complainant against the Respondent under the authority vested in Complainant by Section 9(a) of that Act.

The Citation alleges that Complainant inspected a workplace under the ownership, operation or control of Respondent located on Ulm Road, one mile west of Clearmont, Wyoming, described as "oil field and heavy hauling."

The contested Citation was issued on April 3, 1973, as the result of an inspection on February 21, 1973, and it is alleged that Section 5(a)(1) of the Act was violated. Immediate abatement was proposed

The description of the serious violation alleged in Citation Number 1 states as follow:

On Sunday, February 18, 1973, around 5:30 p.m., near Ulm Road and approximately one (1) mile west of Clearmont, Wyoming, Getter Trucking Incorporated failed to furnish its employees a place of employment which was free from recognized hazards that were causing or were likely to cause death or serious physical harm to its employees in that it failed to take adequate steps or precautions to insure that no employee would [*3] be in the vicinity of the wire rope cable while Getter winch truck No. 149 was taking up slack and applied tension to the wire rope cable attached to the derailed B & N diesel electric locomotive unit.

Section 5(a)(1) of the Act provides as follows:

Sec. 5(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.

Pursuant to the enforcement procedure as set forth in Section 10(a) of the Act, the Respondent was notified by letter dated April 3, 1973, from Vernon A. Strahm, Area Director for the Occupational Safety and Health Administration of the U.S. Department of Labor, said Area Director proposed to assess a penalty for the violation alleged in the amount of $550.

After Respondent contested this enforcement action, and a Complaint and an Answer having been filed by the parties, the case came on for a hearing in Gillette, Wyoming on July 26, 1973. No parties desired to intervene in the proceedings. Respondent has no authorized employee representatives, and the Notice of Hearing was duly posted (Tr. [*4] 3-4, 5).

STATEMENT OF JURISDICTION

Respondent, Getter Trucking, Inc., hereafter called "Getter," is a corporation of the State of Montana (Tr. 234), doing business in the States of Montana, Wyoming, and North Dakota under I.C.C. permits (Tr. 234). Getter had twelve employees at the jobsite (Tr. 164).

From the foregoing facts, it appears that Getter is an employer engaged in a business affecting commerce, and therefore the parties in this litigation are subject to the jurisdiction of the Occupational Safety and Health Review Commission.

STATEMENT OF THE EVIDENCE

The accident in this case occurred February 18, 1973 (Tr. 14), and the jobsite was the scene of a railroad derailment near Clearmont, Wyoming (Tr. 7, 36, 38), involving approximately 100 railroad cars, with all units except one off the railroad tracks (Tr. 36, 37).

The Burlington and Northern Railroad, hereafter called the "B & N," hired Getter by the hour (Tr. 149, 173-174, 175); involved were some six trucks that were attempting to slide a locomotive up-grade on railroad ties (Tr. 172). One locomotive had been returned to the tracks (Tr. 168). The locomotive, a diesel unit, weighs in excess of 200 tons (Tr. 36, 168). [*5]

The railroad tracks were elevated approximately twenty to thirty feet above the adjoining terrain (Tr. 32, 35-36, 38, 65). The plan was to skid the locomotive unit from its derailed position up a ramp closer to a locomotive crane so the unit could then be lifted onto a flat car (Tr. 11, 42-43, 149). This movement to the crane was to be accomplished by cables from the trucks pulling the diesel unit (Tr. 11). A ramp of greased railroad ties had been constructed up an incline to the track (Tr. 28, 32, 77; Resp. Ex. B). Because the railroad ties were bunching up, Respondent's foreman had requested the assistance of the B&N railroad to furnish its D-7 caterpillars (hereafter called D-7's) to help lift the locomotive skids with the D-7 winches (Tr. 23, 41-42, 68, 69, 154-155). The two D-7's were to winch up on the two front skids of the locomotive (Tr. 69, 74). The D-7's with a B&N foreman were put into action at the site at Getter's request to assist Getter (Tr. 22, 68, 71, 74). A D-7 is a caterpillar crawler-type tractor with a winch on the back and a bulldozer blade in front (Tr. 22).

There were three Getter truck units in position (Tr. 40, 85; Resp. Ex. A). The [*6] trucks were equipped with 1-1/8 inch cables, with a winch-type spool, and a frame hoist in the rear behind each truck cab (Tr. 40, 41, 111). When one of the D-7's circled into position, the cables were lying loose on the ground. The D-7 operator, B & N foreman and others noticed that the left track of the D-7 was on the cable which was connected to the middle truck (Tr. 24, 28, 55, 57, 61, 77, 79, 94-95). In an unsuccessful effort to move off of the cable, the D-7 operator moved forward two or three feet but in the process slipped off the ties; the D-7 operator then moved back and sat in almost the original position (Tr. 20, 25, 45, 46, 62, 86). There is conflicting testimony, some to the effect that the D-7 operator had stopped and was not attempting to move when the cable snapped out from under the tread (Tr. 25-26, 82); further, there is evidence the D-7 was stopped a minute or two before the truck cable started to tighten (Tr. 44, 58, 61-62, 63, 87, 88, 92, 95, 104). On the other hand, there is evidence indicating that the track on the D-7 was spinning, and when the D-7 settled to the right side, it raised enough for the line to snap out (Tr. 214-215) [this Judge [*7] finds that the evidence that the D-7 had stopped prior to the tightening of the cable is of more probative value than the contrary evidence]. The record is not clear as to whether the Getter trucks were above the D-7 (Tr. 64), or whether the area of the derailed engine, trucks and D-7's was level (Tr. 58, 94).

The middle Getter truck, some 75 feet away, started to tighten its winch (Tr. 45, 64), and the cable became taut (Tr. 45). The cable was observed as being tightened and pulled toward and over the bed of the middle truck (Tr. 60, 99, 135, 138).

At this point in time, the D-7 (nearest the railroad tracks) was connected to the locomotive (Tr. 154), and Getter's superintendent in charge of the trucks was behind the D-7 attempting to connect a line (Tr. 147-148, 155). Using a two-way radio, Getter's supervisor called the driver of the Getter truck and told him to take out the slack (Tr. 156). The driver replied that the line was caught under something (Tr. 156, 182). The Getter supervisor could see that the line was lying dormant where he was behind the cat (Tr. 156), so he ran around and saw the cable caught under the D-7 track (Tr. 157-158). He had told the truck to "hold" [*8] (Tr. 159, 182, 220). There was some speculation in the record as to the probability of the D-7 tightening the line in its movements (Tr. 160). There were no barricades at the scene (Tr. 27-28), and Getter's supervisor indicated that barricades would interfere with the movement (Tr. 186-187).

Getter employee Gunsch was working under the direct supervision of the Getter supervisor (Tr. 181). With Getter's supervisor, Gunsch and fellow employee Rogers had snugged up a line from behind one of the D-7's to the locomotive skids (Tr. 219, 220). Gunsch and Rogers then went back up on the railroad bank (Tr. 220). Gunsch had been told to be up near the other truck and to watch for directions from the supervisor (Tr. 162). The Getter supervisor saw Gunsch coming off the grade (Tr. 158). He was then in what Getter's supervisor described as a "dangerous position" where he could be struck; he was stopped, and Getter's supervisor hollered (as did a truck driver for Getter) for him to get back out of the way, but Gunsch took one more step forward (Tr. 158, 161-162, 166, 177, 187, 190, 193, 196). There was a considerable amount of noise from the diesels (Tr. 54, 55). When the [*9] Getter supervisor came out from behind the D-7, Gunsch was three freet from where he was struck (Tr. 83, 165), and after taking the next step, the cable went out under tension, striking Gunsch in the stomach and knocking him back four feet into the bank (Tr. 48, 49, 57, 84, 166). The cable tightening and cable popping occurred almost simultaneously (Tr. 88). A cable under tension will break or fly (Tr. 29). (This cable did not break) (Tr. 51). It was less than a minute from the "hold" command until the line snapped out (Tr. 192) from under the D-7 track, snapping like a bow string (Tr. 25, 198).

Immediately prior to the snapping of the line, employee Gunsch had been standing on the railroad tracks with fellow employee Rogers (Tr. 49, 208). Gunsch left this position, and Rogers called, telling him to come back (Tr. 109). To this, Gunsch merely turned and looked back (Tr. 114), and he was three feet from where he was struck (Tr. 25). Initially, it was not believed that Gunsch was seriously hurt (Tr. 167), but he died an hour or two after the accident (Tr. 56, 57).

All Getter employees are instructed not to get around taut cable lines, and the deceased had been specifically [*10] so instructed (Tr. 101-102, 168, 197). Further, Gunsch had been instructed to be on the embankment by the truck (Tr. 163). The Getter supervisor indicated that the Getter employees watch each other. If not, more people would be hurt (Tr. 169).

The inspection of this worksite occurred February 21, 1973 (Tr. 7, 14, 15), and the Citation was issued April 3, 1973 (Tr. 15). The Compliance Officer indicated the delay was due to the necessity to coordinate the case with the National Office, the Regional Administrator, the Solicitor, and other factors (Tr. 15-18). Respondent claimed no legal prejudice as a result of the delay (Tr. 16).

DEFENSES PRESENTED

Three basic defenses are raised by the Respondent, which are:

(1) That the Respondent is not responsible for the reason that the "place of employment" was furnished by the Burlington & Northern Railroad and not by the Respondent;

(2) That the place of employment was free from recognized hazards;

(3) That if a hazard existed, it was created by the employee due to his misconduct.

In the case of Secretary of Labor v. Allied Electric Company, OSAHRC Docket Number 433 (June 23, 1972), Judge James D. Burroughs had [*11] the occasion to consider the meaning of the term, "workplace." This term is nowhere defined in the Act, and a common sense definition of a workplace is a place where work is performed. As stated by Judge Burroughs (1.c. 11), the Act must be liberally construed so that it is applicable to various types of working arrangements. A narrow interpretation of the term "workplace" would not achieve the purpose for which the Act was created. In this case, there were three Getter truck units in position (Tr. 40, 85; Resp. Ex. A). There were a total of some six trucks involved in an effort to slide the locomotive up-grade on the railroad ties (Tr. 172), and there were some twelve Getter employees at the jobsite (Tr. 164). Ordinarily, when one considers factory work or work performed at a set location, this might well be considered an unusual worksite, but under the evidence, it was clearly a place where work was performed by Getter's employees for Getter. The Getter Safety Director indicated that its line of work was oil field trucking, but he also indicated that the particular work involved was not unusual (Tr. 225, 246). In this case, Getter was directing the activities of its employees, [*12] and the D-7's were brought in at Getter's request to be operated at its direction, and there was a direct relationship between the work being performed by Getter's employees for Getter. Getter was furnishing a place of employment for its employees under the terms of the Act. Respondent's view that the place of employment was furnished by the Burlington & Northern Railroad is rejected.

The second issue raised by Respondent is whether or not the place of employment was free from recognized hazards.

The instant case involves an alleged violation of the statutory general duty clause as provided in Section 5(a)(1) of the Act, which states as follows:

5(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.

In the case of National Realty and Construction, Inc., vs. Occupational Safety and Health Review Commission, et al. (decided December 13, 1973) (unreported), in discussing the general duty clause, the United States Court of Appeals for the District of Columbia ruled in part as follows:

Only [*13] by requiring the Secretary, at the hearing, to formulate and defend his own theory of what a cited defendant should have done can the Commission and the Courts insure even-handed enforcement of the general duty clause. Because employers have a general duty to do virtually everything possible to prevent and repress hazardous conduct by employees, violations exist almost everywhere, and the Secretary has an awesome broad discretion in selecting defendants and in proposing penalties. To assure the citations issue only upon careful deliberation, the Secretary must be constrained to specify the particular steps a cited employer should have taken to avoid citation and to demonstrate the feasibility and likely utility of those measures (Emphasis added).

Following the rationale of the Court of Appeals decision, this Judge notes that in this case there is a paucity of evidence as to what should have been done. The evidence indicates there were no barricades at the scene (Tr. 27-28). In the Respondent's case, there was testimony from Respondent's supervisor to the effect that a barricade would have interfered with the movement being undertaken (Tr. 186-187). The record fails to demonstrate [*14] what the Respondent should have done to have avoided this accident, and it further fails to demonstrate the feasibility and likely utility of such measures. Complainant failed to sustain his burden of proof in this regard, and it follows that the Citation and the proposed penalty therefor should be vacated.

Having determined that Complainant failed to establish a violation of Section 5(a)(1) of the Act, it is not necessary to consider Respondent's third point that the hazard (if any) was created by the employee's action.

FINDINGS OF FACT

(1) Respondent, Getter Trucking, Inc., is a corporation of the State of Montana, doing business under I.C.C. permits in the States of Montana, Wyoming and North Dakota (Tr. 234).

(2) Respondent had twelve employees at a jobsite near Clearmont, Wyoming on February 18, 1973 (Tr. 3, 36, 38).

(3) The jobsite was the scene of a railroad derailment of the Burlington & Northern Railroad, which had hired Respondent by the hour to attempt to slide a locomotive up-grade on some railroad ties (Tr. 36, 37, 149, 172, 173-174, 175).

(4) A Burlington & Northern D-7 caterpillar tractor circled into position, and the left track of the tractor was [*15] on a cable which was connected to a Getter truck (Tr. 24, 28, 55, 57, 61, 77, 79, 94-95).

(5) The D-7 caterpillar tractor operator moved forward and back in an attempt to move off the cable (Tr. 20, 25, 45, 46, 62, 86).

(6) The caterpillar tractor operator thereafter came to a stop (Tr. 25-26, 44, 58, 61-62, 63, 82, 87, 88, 92, 95, 104).

(7) After the D-7 caterpillar tractor stopped, the truck cable became taut when one of the Getter trucks tightened its winch (Tr. 45, 46, 60, 135, 138); the line thereafter went out under tension, striking employee Gunsch in the stomach and knocking him back four feet into a bank (Tr. 49, 57, 84, 166).

(8) Employee Gunsch had been specifically instructed to avoid taut cable lines (Tr. 101-102, 168, 197) and had been specifically instructed to be on the embankment by the truck (Tr. 163).

(9) There were no barricades at the jobsite (Tr. 27-28).

CONCLUSIONS OF LAW

(1) Respondent is, and was at all times relevant to the issues herein, engaged in a business affecting commerce within the meaning of Section 3 of the Occupational Safety and Health Act of 1970 (Facts, 1, 2, 3).

(2) Respondent is, and was at all times herein mentioned, an [*16] employer within the meaning of Section 3(5) of the Act, subject to its provisions under Section 4(a) and 5(a)(1) of the Act (Facts, 2, 3).

(3) The worksite, the scene of a railroad derailment, was a place of employment furnished by Respondent truck company to its employees (Facts, 2, 3).

(4) The mere failure of Respondent to place barricades at the jobsite does not demonstrate the feasibility and likely utility of such barricades (Facts, 9).

(5) Complainant did not specify the particular steps Respondent should have undertaken to have avoided this fatality and further failed to demonstrate the feasibility and likely utility of any such measures (Facts, 9; totality of record).

(6) In view of the finding in the conclusion in the preceding paragraph, the Citation herein and proposed civil penalty of $550 therefor should be vacated.

ORDER

Based on the foregoing findings of fact and conclusions of law, it is hereby ORDERED AND ADJUDGED:

(1) Citation Number 1, for the alleged serious violation of Section 5(a)(1) of the Occupational Safety and Health Act of 1970 is vacated.

(2) The proposed civil penalty of $550 for the violation alleged in the preceding paragraph is vacated.