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Sheheryar Kaoosji 601 S. Milliken, Ste. A Ontario, CA 91761
California Division of Occupational Safety and Health
Santa Ana Regional Office Peter Riley, Regional Manager 2000 E. McFadden Ave., Ste. 119 Santa Ana, CA 92705
Via Email and Courier
Wednesday, July 18, 2012 Dear Mr. Riley, I am writing to you on behalf of Limber Herrera, Adiel Marquez, Miguel Gonzalez, Rogelio Pineda, Jose Gonzalez, David Garcia, Joseph Muñoz, Ariel Agumouh, Salvador Flores, Scott Painter, Daniel Zaldivar, Carlos Manuel Martinez Jr, Ruben Valadez, Fabino Ortiz, Miguel Tinoko, and Julio Dimas, joint employees of Walmart Stores, Inc., National Distribution Centers of Delaware, Inc., SCI Companies, Inc. and Warestaff, LLC at 11888 Mission Blvd, Eastvale, California, and Trevor Hausen, an employee of Walmart Stores, Inc., Select Staffing and National Distribution Centers of Delaware, Inc. on the same site. This letter serves as a serious formal complaint against National Distribution Centers, and Warestaff pursuant to California Labor Code § 6309, with a request that Cal/OSHA conduct a wall-‐to-‐wall on-‐site inspection of this site. Please contact us in order to get in touch with the named complainants. Other workers whose issues are detailed below are available for conversations. Contact me to schedule these conversations. California Labor Code § 6134(d) stipulates that employees have the right to communicate privately with the inspector about health and safety concerns during the investigation, and may authorize a representative to be present at the inspection tour:
a representative authorized by his or her employees shall have an opportunity to accompany him or her on the tour of inspection. Any employee or employer, or their authorized representatives, shall have the right to discuss safety and health violations or safety and health problems with the inspector privately during the course of an investigation or inspection.
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If you believe you cannot comply with this request, I would greatly appreciate it if you would contact me so we can discuss it before the inspection and make arrangements to identify for you a mutually acceptable employee representative who may be at the jobsite and fulfill these obligations. I do not believe it would be appropriate to ask the employer or a manager to select an employee to represent the workers during the inspection. The detailed listing of unsafe conditions described below meet the criteria for “serious,” which is set forth in California Labor Code § 6309, which states: A complaint is deemed to allege a serious violation if the division determines that the complaint charges that 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 a place of employment. The unsafe conditions described below meet the criteria for “serious,” which is set forth in the California Labor Code. If, based on the information provided here, you do not believe this matter should be classified as a serious formal complaint, please contact me as soon as possible to discuss that determination. I am a representative of the worker named above as described by § 6309 and the attached authorization by the named complainants. (See attachment) designates our organization as his representative. Accordingly, the investigatory provisions of Section 6309 are triggered with the filing of this complaint. Finally, we ask that you route this complaint directly to the High Hazard unit, due to the fact that Warehousing and Distribution is a high hazard industry, with a 6.3 DART rate. In addition, we believe that it is important that this facility be investigated by the same unit that investigated the previous complaint against four National Distribution Centers, Inc., facilities in Chino, CA, that resulted in over 40 serious citations in January 2012. The fact that National Distribution Centers operates this facility as well and that we have identified some of the same hazards at both indicates that there may be potential for repeat, serious or willful violations. Background The facility in question is located at 11888 Mission Blvd in Eastvale, CA. The facility is operated by National Distribution Centers of Delaware, Inc. and is branded as NFI, a subsidiary. There is a staffing agency on site called Warestaff, LLC, which is the employer of most workers on site. The facility is one of two cross-‐docking operations on the site, located on the northern side of the property. The owner of the property, Swift Trucking, operates the other.
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Image 1: Map of 11888 Mission Blvd, Eastvale, CA. The operation is dedicated 100% to moving goods destined for outlets at Walmart Stores, Inc. The facility has two sections, one dedicated to goods destined for the Sam’s Club subsidiary of Walmart, referred to as the West Side, and one dedicated to moving goods for the Walmart stores, referred to as the East Side. Workers are assigned to one or the other side. The facility is a cross-‐dock operation, meaning goods are not stored on site, but rather are unloaded from shipping containers drayed from the ports of Los Angeles and Long Beach, as well as trailers from regional distributors or producers. Workers unload boxes and pallets from the trailers and containers, either manually or using industrial trucks. The goods are then conveyed on carts, electric pallet jacks or forklift industrial truck across the dock to a different door and placed outside trailers backed up to the facility. Workers referred to as loaders then load boxes into trailer by hand, stacking them from the back of the trailer to the front. The facility operates 24 hours a day, with reduced shifts on weekends. There are approximately 60 workers on site per shift. The bulk of workers are loaders and unloaders. Other workers drive forklifts. A small number of workers drive yard tractors, moving loaded and unloaded containers and trailers around the facility.
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Multiple Responsible Parties Workers believe that there is a significant amount of control over issues of health and safety coming from each of the levels of management in the operation. NFI does the bulk of the day-‐to-‐day management of workers including whatever health and safety training or “coaching” occurs with workers. Workers report accidents and injuries to NFI. Both Warestaff and NFI managers often tell floor workers to move faster and punish workers for not meeting their quotas. NFI appears to be responsible for the maintenance of the facility, industrial trucks and other equipment. The property itself is owned by Swift. Workers who report injuries are given workers’ compensation forms labeled with the name SCI Companies, a Professional Employer Association, a subsidiary of which, PEO Management Group of Lawrenceville, GA, is also named on workers’ paychecks. At the same time, a Walmart manager has been witnessed talking to the managers and workers about the facility’s production. Walmart manager David Brown is often onsite at the crossdock, and has a role including some oversight of workers, review of worker performance and other employment decisions.
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The following are the areas where workers have identified concerns around health and safety hazards.
§3228. Number of Emergency Exits.
There is only one exit open at all times, the main ramp on the south end of the dock near the NFI offices. The other emergency exits are regularly blocked by carts, lifts, stacks or pallets of goods, which workers must move before accessing doors. While the facility has open sides, there are usually trailers and containers up against the docks, making exit impossible. In addition, the dock is over five feet above the road, which makes it impossible to safely exit the facility without the emergency exits. §3272(b)-‐ Lack of egress from loaded shipping containers. Workers assigned with loading goods into trailers are routinely blocked by up to four loaded pallets of goods, which the workers must unstack in order to hand-‐load into the trailer. The workers are often blocked in the trailer by these pallets and boxes with less than 24 inches of egress in the trailer. Workers can be blocked inside the trailer for up to 30 minutes. § 3317. Insufficient Lighting There are not enough lights available for workers loading and unloading inside trailers and containers. When no light is available, workers must work in the dark, both in daytime and night. This also makes it more dangerous because he is unable to be seen by other workers driving forklifts into the containers and trailers. §3203-‐ Lack of Application of IIPP Workers are not apprised of health and safety procedures. The Injury and Illness Prevention Program, if it exists, is not applied. Training sessions are provided in English only, despite the fact that approximately 50%, but at least 10% of the workforce at all times are monolingual Spanish speakers. Workers are required to sign that they have received the training (before the training takes place) whether or not they understood the training. Injury-‐Related-‐ IIPP On July 12, 2012, Apolniar Rojas was backing a forklift loaded with goods out of a container. The ramp on which he was backing fell away, and the rear wheels of the lift fell off the dock. His back and neck percussed against the seat of the lift. The manager Daniel was passing by and immediately commanded him to continue unloading the pallet, and not to go to the office until he was finished. He then went
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to the office, where he filled out a workers’ compensation claim and was advised of the clinic where he was to go, Concentra at 1101 S. Milliken Ave, 2.4 miles from the crossdock. He told the office staff that he did not have a car, asked to use a phone to find a ride, and was not able to find a ride. He ended up walking in pain to Concentra Urgent Care Clinic, which turned out to be closed. Only after returning was he able to ask for a ride to a 24 hour Concentra. He was diagnosed with a lumbar strain, sprained neck and shoulder sprain.
§14001-‐ Recordkeeping.
Workers who are injured while working are regularly told to go home and come back when they feel better, with a doctor’s note. They are not informed of their right to examination and treatment paid by their workers’ compensation provider, or of the existence of the disability insurance system. In addition, workers who report injuries are often told by H.R. and management that they will be laid off if they “cannot be counted on” to work through the injury. Complainant Jose Gonzalez encountered this when injured at the crossdock. §3668. Lack of Training-‐ Industrial Trucks. Workers who drive industrial trucks are not required to take a driving test, instead are merely asked if they know how to drive a forklift. There is no hands-‐on training to allow supervisors or managers to determine whether or not the workers assigned to drive trucks are properly trained. Also, the employer does not require supervisors to provide the “refresher training” required when the employer is aware of either workers’ improper operations of trucks or actual accidents or near-‐misses. Injury-‐Related On June 26, crossdock worker Miguel Gonzalez was injured driving a forklift after not being trained. He refused to operate it, but the manager, Laura, told him to use it anyway. He was in an accident resulting in an injury report and a 3 day suspension.
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§ 3385-‐ Pay for protective equipment Workers are required to pay for personal protective equipment. The fee schedule for the equipment is attached. In addition, workers are required to wear and pay for steel-‐toed boots.
Image 2: Safety Item Price List
§3315. Hand Trucks.
Workers load boxes onto carts that they use to convey goods to the next door. These carts are often broken, making it difficult for worker to pull up to 800 feet to the next door. This has led to strained backs, arms and legs due to the difficulty of pulling carts with broken wheels, handles and bearings. Workers who have complained to managers are told if they don’t like the carts, they can carry the boxes by hand. If workers want carts fixed, they must bring them to the maintenance yard themselves, which takes 15-‐20 minutes. This cuts down their production and puts them in a position to not make their quota and be fired. Managers make no allowance for workers’ reduced performance (i.e. “downtime”) if workers follow these instructions.
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Thus, in addition to allowing unsafe carts in the first place, the managers -‐by putting the workers at risk of termination due to predictably reduced performance -‐ are essentially retaliating against workers who follow managers’ instructions once the workers complain about the bad condition of the carts.
Image 3: Broken Cart
Image 4: Broken Cart
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Image 5: Broken Cart §3650. Industrial Trucks. Due to time pressures imposed by leads and supervisors to meet production quotas, forklift drivers are often forced to operate their vehicle faster than a designated safe speed. Several pallet jacks are faulty, unable to lift, with bent forks that cannot lift or carry the loads they are supposed to handle based on their labels. Workers who speak up about them needing to be fixed are ignored. This leads to workers being forced to strain their bodies to move these goods up to 800 feet across the dock to their destinations.
§3653. Forklift Safety Equipment.
Problems include forklifts missing seat belts. Employer fails to properly maintain the functioning of tires, battery, brakes, and other maintenance issues. An employee described how even though they are required to report maintenance issues on forklifts; these issues frequently do not get addressed right away.
§3337. Dock Plates and Loading Ramps and §3336. Loading Dock Operations.
Dock plates and loading ramps are poorly maintained and shaky. They are not completely attached to the dock, and when workers use them, it leads to dangerous gaps and opportunities for trips and falls. A ramp recently fell, leading to an injury to
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a worker, Apolinar Rojas, who was backing a forklift out of a container. The attached photos detail the specific problems.
Image 6: Detail from Rojas accident-‐ fallen ramp.
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Image 7: Damaged Ramp Plate
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Image 8: Damaged Ramp Plate §3650 Industrial Truck Speed Limits While there are posted speed limits, workers are told to hurry as much as possible and the limits are not enforced. Workers report that forklift drivers are required to unload two containers per day, resulting in forklift drivers needing to drive as fast as possible. There is no forklift speed limit, and forklifts are required to move through the dock where workers are walking, pulling carts and pallet jacks. Drivers are threatened with demotion to lumper when they do not move quickly enough. § 5194. Lack of Hazard Communication Program Workers are constantly exposed to a thick black dust that exists across the floor, in the trailers and containers and leads to workers experiencing nosebleeds, vomiting and coughing blood. Workers are not familiarized with MSDS forms and do not know the nature or the hazards of this substance.
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§3363. Lack of Adequate Water Workers must furnish and fill their own bottles and keep them in the shipping container or trailer, because they do not have time to refill them except on breaks.
The water heats up quickly due to the heat in the containers and trailers in the summer months. Water coolers are dirty and water provided in breakroom is unsanitary. §3395. Outdoor heat The facility is outdoors. There are no walls on the facility and the workers spend most of their time in trailers and containers that are outside, backed up to the dock and are in the sun all day. Temperatures have reached above 95 degrees in the containers in the past week(see attached data log). Workers are not notified of their rights to extra breaks when the temperature is above 95 degrees. Workers are not encouraged to get more water when the temperature is high. New workers are not monitored for symptoms of heat exhaustion when the temperature is high. A fan was installed but is used for the leads in the middle of the building rather than in the containers.
Image 9: Water Cooler
Image 10: Water in Breakroom
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Electrical ‘There are not enough electrical circuits and some of them are out of order and hazardous if used. This also makes it difficult for all the lights in the containers to be operational. The hazards identified above are easily preventable if the employers take the necessary precautions. I strongly believe that the above hazards will continue to exist and place workers at risk of serious harm if no action is taken. If you have questions or concerns about this complaint, please contact me at 877-‐737-‐0727 or via e-‐mail at [email protected]. Please contact me about the Opening Conference, Exit Conference(s) and the Closing Conference for this investigation.