ANHEUSER-BUSCH, INC.

OSHRC Docket No. 2441

Occupational Safety and Health Review Commission

December 24, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: A decision of Review Commission Judge George W. Otto in an action brought under the Occupational Safety and Health Act of 1970 n1 is before this Commission for review pursuant to 29 U.S.C. 661(i).

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n1 29 U.S.C. 651 et seq., 84 Stat. 1590.

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Having examined the record in its entirety, the Commission finds no prejudicial error therein. Accordingly, the Judge's decision is hereby affirmed.

DISSENTBY: CLEARY

DISSENT:

CLEARY, COMMISSIONER, dissenting: I cannot concur with my colleagues in their affirmance of Judge Otto in vacating the citation at issue in this case.

Respondent was cited for an alleged other than serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et. seq., hereinafter referred to as "the Act"). The citation alleged, among other things, n2 that respondent failed to comply with the standard at 29 CFR 1910.178(m)(9) [hereinafter 178(m)(9)]. This standard provides: [*2]

1910.178 Powered Industrial trucks

(m) Truck operations

(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.

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n2 The citation alleged 16 other than serious violations for failure to comply with various standards. Respondent, however, contested only that item of the citation alleging its non-compliance with 178(m)(9).

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The citation was issued to respondent following an inspection of its Columbus, Ohio brewery. The contested item of the citation related to certain powered industrial forklift trucks operated by respondent in its packaging and shipping departments.

The forklift trucks were used to move palletized loads of stacked cans, bottles, and empty pallets. The aisles along which these trucks were operated were approximately ten feet [*3] wide. The sides of the aisles were approximately fifteen feet high consisting of stacks of kegs, bottles, and cans. The stacks forming the aisles were well above the forklift operators' heads. Seventeen of the forklift trucks were not equipped with overhead guards. Respondent has a rule restricting the loads that these trucks could carry. The Secretary alleged that these seventeen trucks did not meet the requirements of section 1910.178(m)(9).

While the Secretary generally conceded that the back rests on the forklifts were high enough to prevent any part of the load from falling back on the operator, he did not concede that the operators were not exposed to a hazard from falling objects. Rather, the Secretary contended that the hazard derived from the fact that the unguarded trucks were operated in confined spaces bordered by stacks of goods extending above the operators' heads.

As a defense, the respondent showed that there were no reported accidents traceable to the hazard the Secretary alleged. In addition, respondent maintained that the criss-cross stacking method employed in its departments added stability to the stacks.

In vacating the citation, Judge Otto stated that [*4] the main hazard as perceived by the compliance officer was the "bumping into palletized stacks not on lift trucks and having them fall on the driver." He found that ". . . there was no foreseeable danger that anything extraneous to his own load might fall upon the operator of any such truck." The Judge concluded that the lack of industrial injuries as a result of the alleged hazard ". . . is strongly indicative of loading, stabilizing and stacking procedures sufficient to protect the forklift operator from falling objects."

The unrebutted testimony of Wilson Bobo and Lawrence Perrin, two forklift operators, clearly establishes that truck operators often bumped into stacked goods along the aisle while maneuvering their forkilft trucks n3 and that there was a danger from falling objects. n4

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n3 There was also testimony that there were several collisions between forklift trucks at intersecting aisle points. The record, however, does not indicate whether those collisions pose any danger of falling overhead objects to the operators of the colliding vehicles.

n4 While both operators agreed that goods fell upon impact with the stacks, they disagreed as to the frequency of this occurrence.

[*5]

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Section 1910.178(m)(9) plainly requires that overhead guards be used on industrial trucks when there is a danger of falling objects. That the respondent had a work rule that was intended to restrict the loading limits on trucks without overhead guards is not relevant to show compliance with the standard for two reasons. First, the standard is not addressed only to objects on the truckload itself. It is addressed to protection from falling objects without limitation. Secondly, it requires a physical form of protection for the truck operator. It does not permit an alternative use of a course of conduct that would reduce, but not eliminate, the need for the physical guard.

I am constrained to observe, however, that the standard could be clearer and indicate this with more precision. The- type of protection to be afforded would perhaps better be set forth in a separate typographical unit rather than being lumped with the statement of the general requirement that an overhead guard be used.

I would find Judge Otto's interpretation and application of 178(m)(9) incorrect as a matter of law. [*6] The Judge vacated the citation because he found no foreseeable danger of falling objects. The Commission, however, has held that 178(m)(9) requires overhead guarding whenever there is a possibility of falling objects. In Hennis Freight Lines, Inc., No. 498 (April 13, 1973), the Commission, in interpreting the wording of 178(m)(9), stated:

This phrasing indicates rather plainly that if there is no possibility of falling objects, there is no requirement for an overhead guard (emphasis added).

Applying this "possibility" test to the facts of this case, I would find that a violation was established.

Respondent's proof as to its prior history of no accidents and its criss-cross stacking procedures does not negate the clear evidence of the physical possibility of falling objects. Such evidence bears only on the probability of an accident occurring. Thus, respondent's "defenses" relate to the gravity of the violation and should be considered only in assessing a penalty under section 17(j) of the Act. Baltz Bros. Packing Co., No. 91 (February 8, 1973) (Burch, Commissioner, concurring).

Accordingly, I must dissent from the holding in this case.

[The Judge's decision [*7] referred to herein follows]

OTTO, JUDGE: This is a proceeding under Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq. hereafter called the Act) contesting a Citation issued by the Complainant against the Respondent under authority vested in Complainant by Section 9(a) of that Act. The Citation alleges that as a result of inspection of Respondent's brewery in Columbus, Ohio, the Respondent has violated Section 5(a)(2) of the Act by failing to comply with 16 stated occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.

The Citation and Notification of Proposed Penalties were issued on February 16, 1973. Respondent did not contest Citation items 2 through 16 and related abatement dates and penalties, and the Citation and the assessment as proposed for the 15 uncontested items shall be deemed a final order of the Commission and not subject to review by any court or agency, by authority of Section 10(a) of the Act. Also the abatement date and proposed penalty for item no. 1 is not in contest.

The only matter in issue is the question of alleged violation of the standard established [*8] in 29 CFR Section 1910.178(m)(9), item 1 of Citation.

1910.178 Powered industrial trucks. (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.

Following a Notice of Contest with regard to item no. 1, Complaint and Answer were duly filed, the case assigned, and heard at Columbus, Ohio, on August 14, 1973.

The alleged violation was described in the above Citation and Complaint as failure to provide overhead guards on powered industrial trucks as protection against falling objects; particularly trucks nos. 1, 2, 3, 4, 5, 6, 7, 9, 11, 13, 14, 15, 16, 17, 20, 21 and 22 were observed with no overhead guards.

The Respondent used powered industrial forklift trucks in the packaging and shipping departments primarily (T-62). * Fifteen trucks out of about 35 had overhead guards. Seven new fork trucks with overhead guards were delivered to the plant around May 1973 (T-63); eight trucks had overhead guards at time of inspection. [*9]

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* "T" refers to transcript

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The forklift truck carried a load on a wooden pallet raised a few inches from the floor (T-98), the back rest extending beyond the load about 4 inches (T-72) and moved to the appropriate location and stacked either two-pallet high or three-pallet high, depending upon the load items. There were intersecting aisles about 8 to 10 feet wide (T-34, 47). The forklift was about 3-feet wide (T-52). There were 25 30-inch concave mirrors at intersecting aisles (T-91).

The two-high stacking was done by unguarded trucks and the three-high by trucks with overhead guards. All of the pallets and packages were stacked by an alternative pattern on each layer (T-72). Loads of empty pallets, metal kegs or empty cans were stacked three-high. The empty cans were strapped with plastic binding straps with a flat piece of plywood on top to make them secure (T-82). In the cool room a sign was posted stating that only forks with overhead guards should be used (T-71). This area contained kegs.

Each [*10] driver was required to go through a training course and instructed in the proper way of driving and material handling (T-69, 94). The operator usually drove backwards along the aisles (T-53), the aisles were wide enough to turn the trucks (T-102).

The space between stacks which was entered by the truck to stack the load was narrow (T-47, 103).

FINDINGS OF FACT

1. Respondent at all times relevant was engaged in a business affecting commerce and was and remains an employer within the meaning of Section 3(5) of the Act.

2. A Citation was issued on February 16, 1973, pursuant to Section 9(a) of the Act alleging 16 violations of standards and regulations, with a stated abatement date and proposed penalty for each item of violation.

3. Citation item 1 charges Respondent with violation of standard 29 CFR 1910.178(m)(9) for failure to provide overhead guards on powered industrial trucks as protection against falling objects, particularly identifying 17 trucks.

4. Respondent restricted the use of its trucks without overhead guards to operations where there was no foreseeable danger that anything extraneous to his own load might fall upon the operator of any such truck.

[*11] 5. Considering methods and practices of loading, moving and stacking, the use of powered industrial trucks without overhead guards did not expose Respondent employees to falling objects.

DISCUSSION

Complainant states the issue as whether or not there is a hazard from overhead objects falling on the lift truck operators. There is no contention that an overhead guard is required to protect the operator from a falling capacity load. The standard does not require it.

It is the position of Respondent that the failure of an employer to provide overhead guards on its forklift trucks is not a per se violation of the subject standard and cites Secretary of Labor v. Hennis Freightlines, Inc., In Secretary of Labor v. Pullman Brick Company, Inc., In Secretary of Labor v. Navajo Freightlines, Inc., [*12] Secretary of Labor v. Page Industries of Oklahoma, Inc.,

Whether the operator of the unguarded truck required protection from falling objects depends upon the extent, if any, of exposure to falling objects.

James Napoleone, Compliance Officer, testitied that he was not as concerned with the load falling back as he was with the high stacking in warehouse areas where it could be bumped (T-19), that the back rest was high enough to prevent anything from falling on the driver (T-27), that loads on the fork could conceivably fall on another passing driver (T-27), that there could have been a collision (T-27), that this main concern was bumping into palletized stacks not on lift trucks and having them fall on the driver (T-28). There is nothing in the record to support such conceptions as productive of falling objects requiring overhead guards.

Wilson Bobo, Respondent employee, operated a lift truck [*13] and testified he has known stacked goods to fall (T-36), that he bumped into stacked products with the truck, bumped into bottles and they have fallen (T-36), that you have to jump off and get out of the way of pallets or cans (T-36), that at least once a day a product hits the floor (T-37), that a pallet came down and hit him on the side of the head (T-38).

Another employee, Lawrence Perrin, testified that he knew wooden pallets to break usually in the middle (T-48, 49), stacked goods have fallen and he has bumped into stacked goods (T-50), that at least once a week products stacked criss-cross have fallen (T-51). He stated there were several collisions at intersecting aisles points (T-55), with collision or contact between moving forklifts, the loads dislodged or knocked off or part of them knocked off (T-56). He did not know of any case where a case of beer fell off above the operator's head and hit him (T-57).

John Dickason, who was familiar with the powered industrial truck operation and had served as Area Foreman, accounted for the injury to Mr. Bobo by stating that the employee placed 19 empty pallets on his forklift but should not have loaded more than 14, and as a result [*14] some of the pallets extended over the top of the back rest (T-74-75). He knew of no other injuries occurring during the five years he has been at the plant involving fork trucks without overhead guards (T-75). Respondent Exhibits 18, 19 and 20 are pictures showing damage caused by forklift trucks. It does not follow that such damage results in exposure of the truck operator to falling objects. The loads are moved with the forklift 2 or 3 inches above the floor level, and the Complainant does not contend and the evidence does not establish exposure from the truck operator's own load. Any contact with a truck moving in the opposite direction might cause a shifting of a load, but an overhead guard would not prevent injury in that event since the object would move from the side rather than from overhead (T-55-56).

There has been only one industrial injury to a forklift operator of an unguarded truck, but that trauma was caused by the operator attempting to load 19 instead of 14 pallets on the forklift. Complainant is correct in stating (Brief page 4) "The argument of assumption of risk has absolutely no place in a proceeding under the Occupational Safety and Health Act." [*15] Reference was made to the industrial injury suffered by Mr. Bobo. It does not appear that Respondent made any such contention. The common law defenses of assumption of risk, contributory negligence and fellow servant doctrine were eliminated with the advant of workman's compensation acts. These so-called defenses also play no part in proceeding under Section 12 of the Act. However, if Section 2(b)(2) and Section 5(b) have any significance, it would seem the employer should not be prejudiced by the failure of the experienced operator to comply with established loading limits.

It has been repeatedly observed in recent decisions that it is not necessary for an accident to take place before a standard violation becomes manifest. However, the lack of industrial injuries over a period of more than five years, with the one explained exception caused by the failure of the operator to observe loading limits, is strongly indicative of loading, stablizing and stacking procedures sufficient to protect the forklift operator from falling objects.

The fact the unguarded trucks are being phased out does not establish a conclusion that they have been unsatisfactory from the safety standpoint. [*16] They are liquid propane operated and are being phased out because of maintenance and repair costs and replaced with electric trucks, all of which are made with overhead guards (T-64).

The narrow space in the stacking area precludes rapid truck movement. It is difficult to visualize how a falling object caused by the forklift striking a part of a stacked load to either side or ahead and resulting in a falling object creating any overhead peril as far as the operator is concerned.

CONCLUSIONS OF LAW

1. At all times relevant Respondent was an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Act.

2. Respondent furnished employment to its employees within said business at a workplace located at 700 East Schrock Road, Columbus, Ohio.

3. Respondent was not in violation of 29 CFR 1910.178(m)(9) and is not subject to the abatement date and penalty proposed for item 1 of the Citation issued February 16, 1973.

ORDER

Item 1 of the Citation issued February 16, 1973, charging Respondent with violation of standard 29 CFR 1910.178(m)(9) is hereby vacated.