OLIN CORPORATION

OSHRC Docket No. 2913

Occupational Safety and Health Review Commission

July 3, 1975

[*1]

Before MORAN, Chairman; and CLEARY, Commissioner

OPINIONBY: CLEARY

OPINION:

CLEARY, COMMISSIONER: On January 7, 1974, Judge Joseph L. Chalk issued his decision in the present case, vacating items 1 and 21 of the Secretary's citation for non-serious violations and proposed penalties of $240.

On February 6, 1974, the Commission, in accordance with section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act"), directed that the decision of the Judge be reviewed.

The Commission has reviewed the entire record in this case, including the exhibits and briefs of the parties. We adopt the Judge's decision only to the extent that it is consistent with the following.

Respondent maintains an aluminum fabrication plant at route #7, Hannibal, Ohio. To facilitate its operations, a fleet of thirty-nine forklift trucks were dispersed throughout the plant, twelve of which were not provided with overhead guards. The rated capacity of these trucks varied from a minimum of 6,700 pounds to a maximum of 20,000 pounds. n1

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n1

Truck Number

Rated Capacity

15

6,700

17

6,700

19

6,700

20

7,000

21

7,000

22

6,700

26

10,000

27

10,000

48

10,000

56

15,000

62

20,000

[*2]

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Individual forklift trucks are generally used in specific areas of the plant. For a number of reasons, however, a specific truck might be used in any part of the plant at any time. Thus, truck breakdowns, equipment shortages, or production overloads may require shifting of trucks from one area of the plant to another. Apparently these truck transfers are made without regard to the appropriateness of sending a forklift without overhead protection into a hazardous area. Respondent was cited for failure to comply with the standard at 29 CFR 1910.178(m)(9) by improper use of 11 of the 12 unguarded trucks. n2

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n2 29 CFR 1910.178(m)(9): An overhead guard shall be used as protection against falling objects. It should be noted that an overhead guard is intended to offer protection from the impact of small packages, boxes, bagged material, etc., representative of the job application, but not to withstand the impact of a falling capacity load (emphasis added).

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Respondent's facility also contains two large cranes. The semigantry number 76 crane was manufactured to respondent's specifications. The bridge of the crane contains a retractable extension arm which, when extended, allows the crane's load to be deposited in the path of the adjacent parallel Cold Mill gantry crane. Although unique, the retractable arm of the number 76 crane serves a function analogous to a gantry crane with attached luffing boom. n3 When extended, the arm of number 76 crane protrudes into the path of the Cold Mill crane. This situation was the cause for numerous accidents over the five year period since the number 76 crane was installed. The record reveals that on numerous occasions the Cold Mill gantry crane would collide with the extended arm of the number 76 crane. This condition resulted in a citation for alleged non-compliance with 29 CFR 1910.179(b)(7), discussed infra.

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n3 Both luffing boom cranes and the number 76 crane are designed to move heavy loads beyond the perimeters of the crane's bridge. Thus, in the instant case, when the crane arm is extended the effective operating distance of the load block assembly is increased. The crane load may now be picked up or deposited in the path of a parallel crane or loaded onto or off of a truck, or other platform not directly below the crane bridge.

[*4]

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Pursuant to the complaint of respondent's employees' representative, a Department of Labor compliance officer on March 7, 1973, inspected the Hannibal Plant and on April 9 respondent was issued a citation for 22 alleged non-serious violations of the Act together with a notification of proposed penalties in total amount of $600. n4 On May 3 respondent filed a notice of contest to items 1 and 21 of the citation and the penalties proposed therefor.

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n4 On May 1 the Secretary amended the citation and notification of proposed penalty by deleting item 8 and its $40 proposed penalty.

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I. Non-compliance with 29 CFR 1910.178(m)(9)

The standard at 29 CFR 1910.178(m)(9), cited supra at note 2, requires an overheard guard to be used as protection against falling objects. The standard cautions that the purpose of the guard is not to protect the driver from the impact of a falling capacity load. It notes specifically, however, that [*5] the overhead protection must be able "to offer protection from small packages, boxes, bagged material, etc., representative of the job application" (emphasis added). The language "representative of the job application" is the crux of the standard. To read the standard in any other manner would be to limit so severely its application that it would be inapplicable to broad sections of the industrial community. It would be to read the standard incorrectly.

In his decision, Administrative Law Judge Chalk cites Hennis Freight Lines, Inc., No. 498 (April 13, 1973) as authority for his statement that:

First, the standard [29 CFR 1910.178(m)(9)] required overhead guards on a forklift truck only when there is danger to its operator from falling objects from a height above the top of the mast of the forklift . . . (emphasis added).

Judge Chalk's reliance is misplaced. Hennis was decided on the basis of a factual resolution against the Secretary. The Secretary failed to prove the possibility of "falling objects." That decision does not require proof of the possibility of falling objects from above the height of the mast of the forklift before non-compliance with 29 [*6] CFR 1910.178(m)(9) is established.

The standard must be read in light of the hazard that it is designed to eliminate. That hazard is the possibility of falling objects landing on forklift truck drivers. The height of the mast of the forklift is irrelevant to a determination of a hazard to the employee. What is relevant is the height of the employee on the truck relative to the height of materials stacked or to be stacked in the work area.

The hazard arises in two contexts: Part of the load when elevated, indeed all of the load, if it is not a capacity load, may fall back onto the driver; or material stacked in the work area above the height of the driver may be unstable or might become unstable if bumped by the forklift. If either of these two situations is present an overhead guard is required.

In the instant case, the record reveals no examples of small packages, boxes, or bagged material being stacked in a manner hazardous to forklift truck operators. Those items, however, are not representative of the job application. Respondent's business is that of aluminum fabrication. Its forklift trucks are capable of and required to carry very heavy loads. n5 Small packages [*7] or boxes are not present in the plant. Wooden pallets stacked 20 high and weighing 60 to 120 pounds each are present, create a hazard of the nature designed to be protected against by 29 CFR 1910.178(m)(9), and are representative of respondent's job application.

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n5 See note 1 supra.

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In addition to the stacked pallets, the record is replete with references to hazards representative of respondent's job application that should have been protected against by overhead guards on the forklift trucks. Fibre core weighing 30 to 40 pounds per core are stacked 10 to 12 feet high along the aisle way of the finishing department. Scrap coil ends weighing from 100 pounds to a maximum of 600 pounds are stacked on both sides of the aisle in between the scrap baler and battery shop to heights of 10 feet.

In addition to the nature of the violations, it is clear that employee exposure continues on a daily basis. Forklift trucks are highly mobile machines. Their primary function is to transport material of one kind or [*8] another throughout the plant. Employee testimony reveals that unguarded trucks are driven alongside of and between stacked material. A violation of the Act for failure to comply with 29 CFR 1910.178(m)(9), therefore, has been established.

II. No failure to comply with 29 CFR 1910.179(b)(7)

Safety standard 29 CFR 1910.179(b)(7) requires clearance to be maintained between the bridges of parallel cranes. n6 The key word in this standard is "bridges." A crane bridge is defined at 29 CFR 1910.179(a)(21) as "that part of a crane consisting of girders, trucks, end ties, footwalks, and drive mechanism which carries the trolley n7 or trolleys." As set out above, the facts herein do not establish that the extension arm of the number 76 gantry crane was part of the bridge within the meaning of 29 CFR 1910.179(b)(7). There cannot be, therefore, non-compliance with 29 CFR 1910.179(b)(7), and the decision of Judge Chalk on this issue is affirmed.

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n6 29 CFR 1910.179(b)(7) clearance between paralleled cranes. If the runways of two cranes are parallel, and there are no intervening walls or structure, there shall be adequate clearance provided and maintained between the two bridges.

n7 29 CFR 1910.179(a)(63) the "trolley" is the unit which travels on the bridge rails and carries the hoisting mechanism.

[*9]

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It should be noted, however, that a hazardous condition in the area between the number 76 gantry crane and the Cold Mill crane was established. Testimony clearly revealed that these two cranes collide and that they do so often, although the collisions do not involve the number 76 crane's bridge. This condition apparently is not covered by a specific standard and a violation of section 5(a)(1) of the Act, the "General Duty Clause" should have been alleged. It was not, nor was a section 5(a)(1) violation tried by either express or implied consent of the parties. The Commission is, under these circumstances, powerless to fashion a remedy suitable to eliminate this hazardous condition.

III. The Penalty

Section 17(j) of the Act provides that the Commission shall give due consideration to the size of the business, the gravity of the violation, the good faith of the employer, and the history of previous violations. Complainant has declined to present evidence on the issue of the amount of the penalty to be assessed, if any, against respondent. Rather, complainant offered Judge Chalk a stipulation which [*10] stated that if the contested items of the citation are affirmed, then the proposed complainant relies upon footnote 19 of Chairman Moran's dissenting opinion in American Smelting & Refining Co., No. 10 (August 17, 1973). n8 That case is distinguishable from the present case.

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n8 Footnote 19 reads: "There is, however, one point in this decision with which I am complete agreement. This decision states that 'Judge Brennan has correctly construed the law and has properly applied it to the facts of this case' with the exception of his action relative to issues of constitutionality. The Commission has therefore adopted the Judge's action on the penalty to be assessed, which was accomplished by the acceptance of a stipulation between the parties that if a violation were to be established the complainant's proposed amount of '$600 is reasonable and in conformity with Section 17(j).' I specifically join my colleagues in stating that the Judge correctly construed the law and properly applied the facts when he took this action on the penalty. I do so in order to form a unanimous position on this matter. The earlier decision which was opposite to this ruling was Secretary of Labor v. Thorleif Larsen & Son, Inc.,

[*11]

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In American Smelting & Refining Co., supra, n9 a pre-hearing conference was held at which the parties (employer, employee representative, and Secretary) agreed that the proposed penalty would be reasonable if any penalty was in order. n10 Judge William F. Brennan assessed the Secretary's proposed penalty, but in so doing noted that due consideration was given to the provisions of section 17(j) of the Act (Conclusion of Law 12).

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n9 Administrative Law Judge's decision.

n10 Finding of Fact 1(b) is: "The Respondent conceded at the pre-hearing conference that if any penalty is legal and proper, the amount proposed by the Secretary, $600 is reasonable and in conformity with section 17(j) of the Act" (emphasis added).

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The record presently before the Commission contains no evidence from which it may be concluded that had the Administrative Law Judge found a violation he would have been able to conclude, as Judge Brennan was able to [*12] conclude in American Smelting & Refining Co., that the elements of section 17(j) of the Act were considered in reaching the stipulated penalty.

Section 17(j) of the Act grants the Commission the authority to assess all civil penalties. It does not prohibit the Commission, however, from accepting a proposed stipulation as to the proper amount of the penalty. In Thorleif Larsen & Son of Indiana, Inc., No. 370 (October 11, 1974), the Commission noted that both the Administrative Procedure Act, 5 U.S.C. 554 et seq., and the Commission Rules of Procedure, 29 CFR 2200.100, expressly encourage settlement. It was stated that the Commission henceforth would refrain from exercising its right to make a de novo penalty assessment if:

(1) There is no objection to the agreed upon penalty from any party, authorized employee representative, or affected employee and (2) the amount of the agreed upon penalty is 'not clearly repugnant to the purposes of the Act.' Speilberg Manufacturing Company, 112 N.L.R.B. 1080, 1082 (1955).

Review of the record reveals no objection to the agreed upon proposed penalty. With respect to the second criteria, the amount of the proposed [*13] penalty and its relationship to the purposes of the Act, it should be noted that the citation was issued as non-serious. The gravity of the hazard to respondent's forklift truck drivers is moderate to high. It is probable that hospitalization would be required for an injury resulting from the absence of an overhead guard. We conclude that the amount of $200 agreed upon as reasonable for this violation is not "clearly repugnant to the purposes of the Act" and it is, therefore, affirmed.

Accordingly, it is ORDERED that the Judge's decision and order are modified to reflect respondent's violation of the Act for failure to comply with 29 CFR 1910.178(m)(9) and a penalty of $200 is assessed for said violation.

CONCURBY: MORAN

CONCUR:

MORAN, CHAIRMAN, concurring: I concur with the lead opinion except that I do not believe that it is proper or wise for Commission to attach conditions to the acceptance of a stipulated penalty assessment. My views on that matter have previously been expressed in Secretary v. Thorleif Larsen and Son, Inc., 2 OSAHRC 313, 317-18, 324-29 (1974). See also Dale M. Madden Construction, Inc. v. Hodgson, 502 F.2d 278 (9th Cir. 1974).

[The Judge's decision referred [*14] to herein follows]

CHALK, JUDGE: An inspection by a Department of Labor compliance officer on March 7, 1973, of Respondent's Hannibal, Ohio, aluminum fabrication plant led to the issuance on April 9, 1973 of both a Citation alleging twenty-two alleged nonserious violations of Section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq. ) and a Notification of Proposed Penalty. On May 3, 1973, Respondent filed a Notice of Contest to the following two items of the Citation and the penalties proposed therefor:

Item

Description of

Proposed

No.

Standard

Violation

Penalty

 1

29 CFR 1910.178(m)(9)

Failure to provide an overhead

$200.00

guard on Fork Lift Trucks #15,

17, 19, 20, 21, 22, 26, 27, 48,

56, and 62.

21

29 CFR 1910.179(b)(7)

Failure to provide and main-

$ 40.00

tain adequate clearance be-

tween the bridges of parallel

gantry cranes in Cold Rolling

area.

The two standards in issue provide the following:

29 CFR 1910.178(m)(9) An overhead guard shall be used as protection against falling objects. It should be noted that an overhead guard is intended to offer protection from the impact [*15] of small packages, boxes, bagged material, etc., representative of the job application, but not to withstand the impact of a falling capacity load.

29 CFR 1910.179(b)(7) Clearance between parallel cranes. If the runways of two cranes are parallel, and there are no intervening walls or structure, there shall be adequate clearance provided and maintained between the two bridges.

The two decisive issues raised by the record in this case are:

Whether the evidence of record supports the charge of noncompliance with 29 CFR 1910.178(m)(9).

and

Whether 29 CFR 1910.179(b)(7) is applicable to the particular gantry crane in question.

Both of these issues must be answered in the negative and thus resolved in Respondent's favor.

I

All essential jurisdictional facts were admitted in the Answer to the Complaint and were incorporated into the record of the proceedings in Pittsburgh, Pennsylvania, on September 20, 1973, by stipulation. Briefly, Respondent's Hannibal, Ohio aluminum fabrication plant employs about seven hundred employees and its products are shipped in interstate commerce.

The parties also stipulated that if the contested items of the Citation are affirmed, then [*16] the proposed penalties are deemed reasonable. On the basis of this stipulation, the Department of Labor trial attorney declined to present evidence on the Secretary's penalty proposals, specifically relying upon Secretary of Labor v. American Smelting and Refining Company, Docket Number 10, August 17, 1973, (see footnote 19 in Chairman Moran's dissent), which counsel claimed overruled the Commission decision in Secretary of Labor v. Thorleif Larsen and Son, Incorporated, Docket Number 370, January 17, 1973. My order in this case dispenses with any need to resolve this issue.

Forklift Charge

Several important basic rules are invoked by the Secretary's case in connection with this charge. First, the standard requires overhead guards on a forklift truck only when there is danger to its operator from falling objects from a height above the top of the mast of the forklift ( Secretary of Labor v. Hennis Freight Line Inc. of Nebraska, Docket No. 498, April 13, 1973). Second, according to the standard's provisions, the objects must be "small," as contrasted with a "capacity load." Third, as in all cases, the violation must have occurred within six months of the issuance of [*17] the Citation. As to the latter, the Complaint and Citation fix the violation date as March 7, 1973, the date of the inspection.

It is important to note next that the inspection and resulting enforcement action in this case were brought about by a complaint previously filed with the Secretary by an employee-union representative, Mr. David L. Brown, who appeared as a party on behalf of the union. During the hearing, the Secretary chose to rely entirely upon the testimony of Mr. Brown and another employee, also a union representative, as well as several exhibits, to support this charge, specifically declining to call as a witness the compliance officer who conducted the inspection. In this particular instance, this method of attempting to prove the charge is totally inadequate. n1

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n1 The converse is true with respect to the crane charge, for photographic exhibits adequately depict the crane and serve as a basis for resolving the legal issue raised by the charge.

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Respondent had thirty-nine forklift trucks, [*18] only twelve of which lacked overhead guards. Eleven of the twelve unguarded trucks were cited in the charge specifically by number. When called as a witness for Respondent, the compliance officer indirectly admitted that he did not observe a violation on the date charged, although he did observe both the unguarded trucks in operation and areas where stacked materials of various sorts could, in his opinion, present hazards to the operators of such trucks if operating in those areas. Aside from these somewhat nebulous observations. he "talk[ed] with the employee reps [sic] about the hazards and where the trucks go, and from that [he] felt that if [Respondent] filed a notice of contest, we would be able to, in talking to the employee reps, we would be able to determine that there was a hazard involved." While some of the stacked items he referred to weighed anywhere from six hundred pounds to eight or nine thousand pounds, he did see stacked pallets that weighed as little as fifty or sixty pounds and stacked, banded lumber that could have fallen. When asked if he had been informed that unguarded forklifts were used to stack the pallets and lumber, he replied that he "was told that [*19] they could be used for that purpose." In short, the compliance officer saw no violation on the date of the inspection, the date we are concerned with, but instead relied entirely upon information furnished by the employees in question.

I shall not attempt to summarize the testimony of the two employees on this charge, for it is voluminous, general in nature, largely nonspecific, and definitely difficult to follow. Basically, it is totally lacking in such essential details as to what forklift was used to do what, under what circumstances, on what date. In fact, for ought this record shows, a violation, if such occurred, may have occurred more than six months prior to the issuance of the Citation, and thus be completely outside the scope of this Commission's jurisdiction (see Sec. 9(c) of the Act. n2 In sum, the testimony of these two witnesses constituted nothing more than a general complaint that rightfully should have served as a basis for a thorough investigation and possible corrective action by the employer, but should not, without more, have been relied upon as a basis for issuance of the Citation.

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n2 On several occasions, Mr. Brown referred to incidents that occurred in excess of one year prior to the inspection.

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Primarily, these two employees, whose sincerity I do not doubt, were concerned over the possibility of injury to operators of unguarded forklifts by bumping the forklifts into stacked materials in various areas of the plant. Most of the materials they alluded to weighed anywhere from hundreds to thousands of pounds, materials that hardly fall within the ambit of the standard.

Totally lacking in basic elements of proof of the violation charged, the Secretary's case in this instance is not sustainable as a matter of law. Accordingly, item number 1 of the Citation and the penalty proposed therefor must and will be vacated.

Crane Charge

Photographic Exhibits J2, J3, and J4 adequately portray the two parallel semigantry cranes in question. Exhibits J3 and J4 show the crane on the left with its extension arms extended across the pathway of the crane on the right. Exhibit J2 shows the crane on the left with its extension arms retracted within the crane itself. This [*21] latter exhibit also shows that there is adequate clearance between the bridges of these two parallel cranes when the extension arms of the left crane are retracted.

The Secretary argues that the extension arms of the left crane, when extended, are a part of the bridge and that thus, Respondent was in violation of the standard. Respondent, on the other hand, argues that the extension arms are not a part of the bridge and that thus, it was not in violation of the standard. For the reasons that follow, I conclude that the extension arms in question are not a part of the bridge as contemplated by the standard and that item number 21 and the penalty proposed therefor must be vacated.

29 CFR 1910.179(b)(1) provides that the section applies to overhead and gantry cranes, including semigantry, cantilever gantry, wall cranes, storage bridge cranes, and "others having the same fundamental characteristics." A gantry crane is defined in the standard as a crane similar to an overhead crane except that the bridge for carrying the trolley or trolleys is "rigidly" supported on two or more legs running on fixed rails or other runway (29 CFR 1910.179(a)(6)). A bridge is defined in the [*22] standard as that part of a crane consisting of girders, trucks, end ties, footwalks, and drive mechanism which carries the trolley or trolleys (29 CFR 1910.179(a)(21)). A storage bridge crane is defined in the standard as a gantry type crane which may have one or more fixed or "hinged" cantilever ends (29 CFR 1910.179(a)(13)). According to a sketch contained in ANSI B30.2.0-1967 from which the standard in question is derived, a fixed cantilever is a rigid extension of the bridge, complete with footwalk, beyond the legs of the crane.

Neither ANSI B30.2.0-1967 nor the standard in question defines or depicts a hinged cantilever; however, Exhibit R1, page 11 of the Whiting Crane Handbook, pictures what is described as a luffing-boom gantry which has a hinged cantilever end described as a luffing-boom overhang. Therein, it is stated that the luffing-boom overhang, obviously hinged, can be raised to clear obstructions outside of the gantry leg during travel motion.

As the obvious and only purpose of the hinge on a hinged cantilever end of a gantry crane is to permit the end to be raised to clear obstructions when the crane is moved along its rails, and the standard in question at least [*23] pays lip service to a hinged cantilever end, it is clear to me that 29 CFR 1910.179(b)(7) was never intended to include a hinged cantilever end as a part of the bridge. Moreover, unlike the fixed cantilever type of extension, a hinged cantilever extension does not have the features or characteristics of a bridge as defined elsewhere in the standard. Accordingly, I conclude that the standard in question is inapplicable to a gantry crane with a hinged cantilever end with respect, of course, to the hinged cantilever end only.

It is well established on this record that the crane with the extension arms in this case is probably the only one of its kind, for it was specically designed and constructed for Respondent's operation. As its purpose -- to move objects to and from areas outside the legs of the crane -- is identical to that of a gantry crane with hinged cantilever end, I perceive no appreciable difference between the two with respect to the inapplicability of the standard.

III

CONCLUSIONS OF LAW

1. That this Commission has jurisdiction over the cause.

2. That at the time and place in question, Respondent was not in violation of Section 5(a)(2) of the Act by not [*24] complying with 29 CFR 1910.178(m)(9) and 29 CFR 1910.179(b)(7).

Items numbers 1 and 21 of the Citation and the penalties proposed therefor are vacated.

It is so ORDERED.