OSHRC Docket No. 81-0647


Before:  BUCKLEY, Chairman, and CLEARY, Commissioner.


This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act").  The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration.  It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions.  See section 10(c) of the Act, 29 U.S.C. 659(c).

The Secretary of Labor ("Secretary") has petitioned for review of former Commission Judge Barbara L. Hassenfeld's decision vacating a citation issued to Carpenter Technology Corporation ("Car Tech") for violation of 29 C.F.R. 1910.178(n)(6).[[1]] The citation concerns alleged visual constructions on a 62,000-pound-capacity forklift truck owned by Car Tech.  Car Tech used the forklift truck to transport slag pots from the melt shop to the slag dumping area and back at its steel manufacturing plant in Bridgeport, Connecticut.  The forklift, which was driven at about 5 miles per hour, traveled through areas of employee pedestrian traffic at times.    The driver's vision toward the right forward side of the vehicle was reduced by certain of its structural parts, including the forklift mast, fork carriage and hydraulic lines.  The slag pot also reduced vision in the same area.  There was conflicting testimony on whether the obstructions prevented a clear view of the path of travel.

The judge found that the cited standard does not apply to the cited conditions.  She concluded that another standard, 29 C.F.R. 1910.178(a)(4),[[2]] appeared more applicable because Car Tech had modified the forklift by adding a gripper attachment it had made itself to hold the slag bucket in place.  The judge did not order that the citation be amended post-hearing to allege a violation of this standard because she found that the issues raised by such an amendment were not tried by the implied or express consent of the parties.  See Fed.R.Civ.P. 15(b).  The judge therefore vacated the citation.

The Secretary argues that the cited standard applies because the truck's operator could not keep a clear view of the path of travel due to the obstructions on the truck.  He argues that the judge erred in finding section 1910.178(a)(4) more applicable because Car Tech's modification to the truck at worst only exacerbated an existing problem, and because the cited standard deals more specifically with the operator's view.

Car Tech argues that the judge properly vacated the citation because the cited standard, like all of section 1910.178(n), does not apply to visibility problems inherent in the machinery, but instead governs driver conduct.  It argues that its modification of the truck affected the truck's hauling capacity and that section 1910.178(a)(4) would be more specifically applicable to the problem alleged to exist.    Car Tech also argues that a third standard, 29 C.F.R. 1910.178(n)(4),[[3]] is more specifically applicable to the facts than the cited standard, pointing to testimony that the truck could have been operated in reverse and that its horn could be sounded at cross aisles.

The two Commission members are divided on whether the judge's decision should be affirmed or reversed.[[4]]  Chairman Buckley would affirm the judge's conclusion that the cited conditions do not constitute a violation of the cited standard.  The standard places a duty on the employer to require the driver to look in the direction of, and keep a clear view of, the path of travel.  This notifies the employer to require certain conduct of the driver.  It does not pertain to inherent visual obstructions caused by structural parts of industrial trucks as the Secretary contends. [[5]] No provision of subsection 178(n) mandates particular structural specifications for the vehicles.  Basic structural specifications are addressed in section 178(a), including, among other things, the provision that trucks acquired and used after February 15, 1972, must meet the relevant design and construction requirements of ANSI B 56.1-1969. Car Tech's truck met those requirements.

There is no evidence of misconduct on the driver's part or of any short-comings in Car Tech's program for selecting and training its drivers.  The evidence indicates that Car Tech selects well-qualified, licensed drivers, trains them specifically in the operation of its vehicles, instructs them to keep a proper lookout for pedestrians and trucks and requires its drivers to keep a clear view of the path of travel as required by the cited standard.  The parties did not try, and there is no evidence of record to support, a violation of any other standard.  Thus, Chairman Buckley would find that Car Tech complied with the cited standard and would affirm the judge's decision.

Commissioner Cleary would find that the cited standard applies to the facts because Car Tech did not and could not require the driver to keep a clear view of the Path of travel. [[6]] Car Tech assigned its drivers to drive the truck with knowledge of unavoidable visual obstructions both front and rear.  Thus, it failed to comply with the standard.  In Commissioner Cleary's view, an employer may violate any of the traveling rules of subsection 178(n) by having the driver work under conditions where the driver cannot do what is required under the relevant rule.

Commissioner Cleary disagrees with the judge's conclusion that section 1910.178(a)(4) "appears more applicable" than the cited standard.  Section 178(a)(4) requires the employer to gain the manufacturer's prior written approval of modifications affecting capacity and safe operation of an industrial truck and to change the relevant instruction plates, tags and decals accordingly. Arguably, Car Tech's modification of the forklift carriage by adding a gripper mechanism of its own making affected the truck's capacity or safe operation.  But the requirement of manufacturer's approval of structural changes does not preempt enforcement of the cited visibility standard in Commissioner Cleary's view.

Commissioner Cleary also would reject Car Tech's contention that section 178(n)(4) is more specifically applicable.  The testimony that there were visual obstructions to the rear of the forklift indicates the driver could not have kept a clear view of the path of travel in reverse.  Commissioner Cleary reads sections 178(n)(4) and (n)(6) together to require a clear view of the path of travel in whichever direction the vehicle is operated.  Regulations are to be read as a harmonious whole where possible.  E.g., Richards v. United States, 369 U.S. 1 (1962); NLRB v. Lion Oil Co., 352 U.S. 282 (1957).  He also would conclude that the evidence demonstrates a serious violation of the cited standard.[[7]]

To resolve their impasse on the merits of the citation and to permit the parties to conclude this litigation, Chairman Buckley and Commissioner Cleary have agreed to vacate the direction for review.  E.g., Texaco, Inc., 80 OSAHRC 74/B1, 8 BNA OSHC 1758, 1980 CCH OSHD 24,634 (Nos. 77-3040 & 77-3542, 1980).  The Commission members have discretion under the Act and the Commission's Rules of Procedure to direct review of a judge's decision.  Section 12(j), 29 U.S.C. 661(i); 29 C.F.R. 2200.92.  In the absence of a direction for review, the judge's decision becomes a final order of the Commission and can be appealed by an aggrieved party to a United States court of appeals.  Sections 10(c), 11(a) and (b) and 12(j), 29 U.S.C. 659(c), 660(a) and (b), 661(i).  The judge's decision in this case therefore becomes the appealable final order of the Commission but is accorded the precedential value of an unreviewed judge's decision.



DATED:  OCT 22 1984


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[[1]] 1910.178 Powered industrial trucks
* * *
(n) Traveling.
* * *

(6) The driver shall be required to look in the direction of, and keep a clear view of the path of travel.

[[2]] 1910.178(a)(4) provides:

Modifications and additions which affect capacity and safe operation shall not be performed by the customer or user without manufacturers [sic] prior written approval.  Capacity, operation, and maintenance instruction plates, tags, or decals shall be changed accordingly.

[[3]] That standard provides:

The driver shall be required to slow down and sound the horn at cross aisles and other locations where vision is obstructed.  If the load being carried obstructs forward view, the driver shall be required to travel with the load trailing.

[[4]] As established by the Act, the Commission is composed of three members.  Section 12(a), 29 U.S.C. 661(a).  Under section 12(f) of the Act, 29 U.S.C. 661(e), official action can be taken by the Commission with the affirmative vote of at least two members.  Because there is a vacancy, the Commission currently has only two members.

[[5]] Moreover, the record does not establish that a driver of the forklift could not keep a clear view of the path of travel.  The judge made no finding with respect to this critical fact, concluding that the evidence supported only a finding that an obstructed view existed to the right front of the vehicle.  The breadth and depth of this obstruction was never credibly established.   Various witnesses testified that a driver could overcome these obstructions by the simple expedient of shifting positions.  Although this inspection was precipitated by a fatal accident involving this machine, the Secretary disavowed any connection between the accident and the alleged obstructed view to the right, successfully objecting to any attempt by Car Tech to introduce evidence relating to how the accident occurred.   There is no evidence of record, therefore, suggesting that the accident resulted from an obstruction, but an inference that it did not.

[[6]] The judge found that "the evidence presented clearly demonstrates a serious and dangerous situation which should no longer be tolerated," and that "[t]he Respondent's employees were in the zone of danger created by the Respondent's use of the forklift." The evidence fully supports those findings, in Commissioner Cleary's view.  The photographs in evidence vividly depict serious obstructions to the vision of the driver to the extent that the machine was inherently dangerous.  The defense that the driver could see by moving around in his seat is clear evidence of the obstructions.  Also, the OSHA compliance officer who inspected Car Tech's workplace conducted a careful measurement to establish the extent of the obstructed view to the right front of the forklift. Sitting in the cab of the vehicle, he had a person of normal height walk directly forward from the right front tire.  He could not see any part of the person until the person was 78 feet in front the vehicle, at which point the person's head came into view.  The vehicle's driver, LaLiberte, testified that he did not disagree with the compliance officer's measurements and Car Tech did not discredit the measurements.  LaLiberte acknowledged that the obstructions prevented a clear view of the path of travel.

The driver could not leave the cab's seat when driving.  LaLiberte testified that even if he moved around in his seat it would only aid vision a little bit -- it would not eliminate the whole problem.  The vehicle's former driver, Cave, did not not testify to the contrary. Both LaLiberte and Cave testified that they had had at least one previous accident (not involving personal injury) resulting from the obstructions.  None of Car Tech's other witnesses had driven the vehicle and the judge properly noted at the hearing that little weight is due to their opinions on the visibility issue.  Commissioner Cleary would find that a clear view of the path of travel could not be maintained.

[[7]] In addition to finding that a clear view of the path of travel could not be maintained (see n. 6 supra), Commissioner Cleary would find that Car Tech employees regularly had access to the hazards and that those hazards were extremely serious, as the great weight of the forklift indicates.  Car Tech knew about the obstructions because it had created them and its safety manager had warned drivers about them.  Thus, Car Tech had the requisite knowledge of a violation.   E.g., Pretressed Systems Inc., 81 OSAHRC 43/D5, 9 BNA OSHC 1864, 1981 CCH OSHD 25,358 (No. 16147,1981).  Also, contrary to Car Tech's argument, the Secretary has no burden under specific standards to prove a feasible means of abatement, unless the standard cited expressly creates such a burden of proof.  E.g., Bratton Furniture Mfg. Co., 83 OSAHRC 30/A2, 11 BNA OSHC 1434, 1983-84 CCH OSHD 26,538 (No. 81-799,1983).   Even if there were such a burden, the Secretary met it here.  For example, the judge found that "[a]ll witnesses agreed with the feasibility of using flagmen equipped with two-way radios to the operator as one method of abatement of the problem."  Thus, Commissioner Cleary would conclude that the Secretary has made out a serious violation of the cited standard.