Secretary of Labor v. 84 Lumber Company shows the importance and need to have proper Work Rules in place that are adequately communicated to and known by employees for their safety and the safety of others, in the loading/unloading of building materials. Despite the tragic outcome and death of a truck-driver on November 19, 2019 during the loading of lumber bundles on a trailer-bed, the ALJ in this Texas case, found that the no OSHA safety standard was violated in this instance where the lumber company had in place proper work rules that had been communicated to its employees to never allow people to work under elevated loads or pass under the elevated loads of forklifts given the substantial evidence of employee training and the facts in this matter.
The Respondent, 84 Lumber Company (“84 Lumber”) was a vendor of building materials, primarily lumber, to contractors for construction projects, with multiple stores nationwide. 84 Lumber’s store (the “store”) in Houston, Texas, contracted with BLS Trucking (“BLS”) for the delivery of this store’s customer orders to respective jobsites. The same BLS drivers, approximately, seven to ten, generally were assigned to work at store. 84 Lumber had a “Work Rule” in place that instructed and communicated to its employees to not let anyone ever work under the elevated loads or pass under the elevated loads of forklifts.
84 Lumber employees would prepare and assemble the order into different bundles/loads of lumber. The next phase would involve an employee known as the dispatcher who would operate a forklift to load the lumber bundles onto the BLS trailer. At the time of the accident, BLS’s drivers were instructed to remain at the side of the truck, away from the operating path of the forklift, while the dispatcher operated the forklift and thus well outside the 180-degree radius comprising the “zone of danger” of an active forklift. Once a bundle was loaded onto the dispatcher’s forklift, the dispatcher would approach the BLS truck trailer and lower the bundle down to approximately four inches above the truck bed. At this point, the dispatcher would put the forklift in “neutral” and activate the safety brake. Following this, either the dispatcher, or the dispatcher with the assistance of the BLS driver, would, if necessary, place wooden dryers (to make it easier to insert the forks of the forklift under the bundle) under the slightly elevated bundle. The workers placed the dryers while standing on the ground to the side of the truck bed by sliding them under the slightly elevated bundle. Given the location of the bundle over the bed of the truck trailer, the workers passed behind the stationary forklift to place the dryers on either side of the bundle. Thus, at no point would the placement of dryers cause the dispatcher or the BLS driver to pass under either the forks of the forklift or the slightly elevated bundle (of about four inches) over the truck bed.
The circumstances leading to the underlying accident involved a BLS driver who after waiting between the semi-truck and the truck’s trailer while bundles were being loaded, approached the dispatcher and asked him if he could move a bundle to the other side of the truck bed so that the “strap c[ould] match up.” At this point in time, the BLS driver was standing in front of the front wheel of the trailer. The dispatcher obliged and loaded the requested bundle onto the forklift and then began to back away from the trailer. As the forklift was about two to three feet from the trailer the BLS driver “out of nowhere” ran underneath the forks of the forklift and the elevated bundle and told the dispatcher to get another “bite” on the load. The dispatcher yelled at the driver at least three to four times get out from underneath the elevated bundle and also honked the horn, but the driver did not listen and instead kept telling the dispatcher to back-up. The dispatcher continued backing up fearing that an abrupt stop would cause the bundle to fall or forklift to topple. After a matter of seconds, the bundle fell off the forklift onto the BLS driver, killing him. OSHA investigated and issued a citation based on the belief that 84 Lumber did not have a process in place to inspect or enforce its Work Rule. During the proceeding, BLS’s supervisor acknowledged that BLS trained its drivers to never work under a forklift’s forks or suspended loads and both BLS’s supervisor and 84 Lumber’s manager stated this Work Rule was common in the industry because of the obvious dangers.
Given the Work Rule in place and circumstances, there was no explicit permission for the BLS’s driver to have stood under the elevated load. However, the Secretary argued the practice of placing dryers under elevated loads as evidence of 84 Lumber’s implicit permission to walk under them. The ALJ disagreed as the evidence showed that the policy in place was that BLS drivers had to wait outside the zone of danger for an active forklift and dryers were only placed under the load when it had already been lowered three to four inches from the truck bed and from standing on either side of the now inactive forklift, and not on top or below the elevated load. Although workers were close, in proximity, to the load they were not implicitly permitted to be under it. Following the accident, BLS also instituted a new policy requiring drivers to now stand in a designated “muster area”, further away from the loading area.
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