GEORGIA HIGHWAY EXPRESS, INC.  

OSHRC Docket No. 76-4146

Occupational Safety and Health Review Commission

July 18, 1980

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Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

George D. Palmer, Assoc. Reg. Sol., USDOL

Alexander E. Wilson, III and David A. Rammelkamp, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Paul L. Brady is before the Commission for review pursuant to section 12(j), 29 U.S.C. §   661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   Judge Brady found that Respondent, Georgia Highway Express, Inc., violated section 5(a)(2) of the Act, 29 U.S.C. §   654(a)(2), by failing to comply with the standard at 29 C.F.R. §   1910.132(a). n1 The judge did not assess a penalty.   We affirm the judge's decision.

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n1 This standard provides:

§   1910.132 General requirements.

(a) Application. Protective equipment, including personal protective equipment for eyes, face, head, and extremeties, 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.

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Respondent operates a freight terminal in Montgomery, Alabama, in which trucks are loaded and unloaded.   Respondent's employees move freight through the terminal using hand trucks, referred to as "floats," and a forklift. The forklift is used to move palletized loads weighing up to 2000 pounds. The floats are used to move smaller items, which typically weigh from 25 to 50 pounds. Because a number of these items are usually moved together, the total load on a float may be as high as 700 pounds. Respondent's employees did not wear safety-toed shoes while working in the terminal.

During the period from 1971 through 1976, Respondent's employees worked over 210,000 hours in the terminal. Respondent's records reveal that, during this period, its employees had received two foot and toe injuries as a result of freight handling activities.   One injury resulted in two lost workdays and the other did not result in any lost time.

Respondent argued before Judge Brady that these facts did not show a hazard of process or environment within the meaning of section 1910.132(a).   The judge rejected this argument,   [*3]   finding that Respondent's employees "were subject to possible foot injuries due to the hazards of falling freight, and of moving mechanical devices used in transporting freight." The judge also noted that Commission and court decisions had held that safety-toed shoes are required on freight docks similar to that in this case, citing Arkansas-Best Freight System, Inc. v. OSHRC, 529 F.2d 649 (8th Cir. 1976), aff'g 75 OSAHRC 35/D6, 2 BNA OSHC 1620, 1974-75 CCH OSHD P19,326 (No. 2375, 1975); McLean Trucking Co. v. OSHRC, 503 F.2d 8 (4th Cir. 1974), aff'g 73 OSAHRC 49/F14, 1 BNA OSHC 3214, 1973-74 CCH OSHD P16,697 (No. 2847, 1973) (ALJ); Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230 (5th Cir. 1974), aff'g 73 OSAHRC 36/E9, 1 BNA OSHC 1290, 1973-74 CCH OSHD P16,451 (No. 391, 1973); and Lombard Brothers, Inc., 77 OSAHRC 155/B2, 5 BNA OSHC 1716, 1977-78 CCH OSHD P22,051 (No. 13164, 1977).

On review, Respondent continues to maintain that a hazard within the meaning of the cited standard was not proven, making substantially the same arguments it made before the judge. n2 We conclude that the judge properly resolved the issue for the reasons he assigned and correctly [*4]   concluded that Respondent failed to comply with section 1910.132(a).   Gulf Oil Co., 77 OSAHRC 216/B10, 6 BNA OSHC 1240, 1978 CCH OSHD P22,737 (No. 14281, 1977).

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n2 Respondent faults the evidentiary record because the Secretary's compliance officer did not actually observe freight being handled at the terminal. It is not necessary for the Secretary to establish through the observations of the compliance officer that the employees were actually exposed to the cited hazard during the inspection.   Circle Indus. Corp., 76 OSAHRC 121/F4, 4 BNA OSHC 1724, 1976-77 CCH OSHD P21,119 (No. 4356, 1976).   In this case Respondent's foreman, Mr. Cook, testified as to the methods used by Respondent in handling freight and to the nature of the freight handled. Thus, the record contains sufficient evidence to support the judge's findings even in the absence of direct observations of the alleged violative conditions by the compliance officer.   See Smith Masonry Contractors, Inc., 78 OSAHRC 1/D2, 6 BNA OSHC 1271, 1977-78 CCH OSHD P22,471 (No. 13746, 1978).

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Accordingly, the judge's decision is affirmed.   SO ORDERED.