Docket No. 3374

GOODYEAR TIRE AND RUBBER COMPANY

OSHRC Docket No. 3374

Occupational Safety and Health Review Commission

April 28, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Herman Grant, Regional Solicitor, U.S. Department of Labor, Office of the Solicitor

Dale R. Martin, The Goodyear Tire & Rubber Co., Law Department, for the employer

Addison Jackson, President, Local Union #1, URCLPWA, for the employees

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

The June 3, 1974 decision of Administrative Law Judge George W. Otto is before the Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. [hereinafter cited as "the Act"]. The Judge found respondent in violation of section 5(a)(2) of the Act for failure to comply with the safety standards at 29 CFR § 1910.178(o)(2) n1 and § 1910.132(a). n2 Penalties of $60 and $30 were assessed respectively.

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n1 Respondent was found to have overloaded powered industrial trucks.

n2 Respondent was held in violation for failure to provide safety shoes for employees handling large tires.

The original citation alleged a failure to comply with 29 CFR § 1910.132(c), which sets out the specifications for protective equipment. Finding that the issue of whether safety shoes were provided was fully tried by the parties, the Judge, pursuant to Fed. R. Civ. P. 15(b), amended the citation to allege a violation of § 1910.132(a) and affirmed the item as amended.

[*2]

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The order for review was issued sua sponte by Commissioner Moran on the following issues:

(1) Whether evidence of record supports the Judge's finding that respondent violated 29 U.S.C. § 654(a)(2) for failure to comply with the occupational safety and health standards published at 29 C.F.R. § § 1910.178(0)(2) and 1910.132(a).

(2) (a) Whether the said standards are sufficient to qualify as occupational safety and health standards in accordance with the provisions of 29 U.S.C. § 652(8).

(b) Whether they provided fair warning of the conduct prohibited or required.

(3) Whether the Judge's determination under the § 1910.178(o)(2) charge that the "rated capacity of the truck" is to be determined by the manufacturer thereof was (a) proper, or (b) constitutes an illegal delegation of legislative or judicial power to a private party.

Neither party filed an exception to the Judge's decision, or otherwise raised these issues. Further, respondent has not briefed the issues on review, and complainant has [*3] indicated that he will rely on his post hearing brief and the Judge's decision as to the first issue. He declined to brief the remaining issues noting that they were not raised by either party.

In these circumstances, and in the absence of compelling public interest, we decline to pass upon the above-listed issues. See Abbott-Sommer, Inc., 1975-1976 CCH OSHD para. BNA 3 OSHC (No. 9507, 1976).

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

The citation in this case should be vacated for several various reasons which are discussed below. However, at the outset, I consider it most important to again register my view that the majority err in not addressing the directed issues on the asserted grounds that the direction for review was issued sua sponte n3 and the issues specified therein have not been briefed by the respondent. n4

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661(i) to direct review of a Judge's decision is not qualified by any requirement that the parties involved request such review. Furthermore, the Barnako-Cleary sua sponte rule applies only when there is a Moran direction for review. The two of them together have issued more than two hundred such directions for review but not a single one has ever been treated in the manner applied in this case. Their consistency on this matter, in the words of John Randolph, "shines and stinks like rotten mackerel by moonlight."

n4 Three circuit courts have refused to adopt the theory that a respondent's failure to file a brief constitutes a waiver of appellate review. Brennan v. Smoke-Craft, Inc., No. 74-2359 (9th Cir., February 13, 1976) at n.6: Brennan v. OSAHRC and Santa Fe Trail Transport Company, 505 F.2d 869, 871 (5th Cir. 1974); Brennan v. OSAHRC and Hanovia Lamp Division, Canrad Precision Industries, 502 F.2d 946, 948 (3d Cir. 1974).

[*4]

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Both regulations here in issue are unenforceable. The occupational safety and health standard codified at 29 C.F.R. § It is therefore null and void. Similarly, 29 C.F.R. § 1910.178(o)(2) is also null and void because it illegally bestows upon private manufacturers the authority to establish safety standards.

Section 1910.178(o)(2) provides in regard to the loading of powered industrial trucks that "[o]nlyloads within the rated capacity of the truck shall be handled." (Emphasis added.) However, the Secretary of Labor's regulations do not specify and rated lift capacities for powered industrial trucks. Therefore, the Secretary relies on the rated lifting capacities prescribed by the manufacturers of such trucks to establish noncompliance with the standard. The effect of relying on specifications established by manufacturers of these vehicles is to delegate to these manufacturers the authority to prescribe safety standards. [*5] For the reasons expressed in my dissenting opinions in Secretary v. Bay Martina, Inc., 15 OSAHRC 313 (1975), n5 and Secretary v. Martin Iron Works, Inc., 15 OSAHRC 33 (1975), such a delegation exceeds the authority conferred on the Secretary by Congress to promulgate regulations. See also Carter v. Carter Coal Co., 298 U.S. 238 (1936).

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n5 As in the instant case, this case involved a standard whose source was a national consensus standard.

n6 Although this case involved an established Federal standard rather than a national consensus standard as in the instant case, the rationale expressed there is similarly applicable here.

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This case well illustrates the adverse effects that such standards can have on worker safety. Respondent's forklift truck displayed a plate which indicated that 3,000 pounds at a 24-inch load center n7 was its maximum lifting capacity. Subsequent to an inquiry, the manufacturer, Otis Elevator, wrote a letter advising respondent that the capacity of the truck was 3,700 pounds [*6] at a 24 inch load center for a lift anywhere below 156 inches. From 156 inches to 174 inches, only 3,000 pounds was permissible. Nevertheless, when an employee attempted to lift a tire allegedly weighing 3,406 pounds, the forklift had barely lifted the tire off the floor before the back end of the truck raised up. Thus, there can be no assurance that the manufacturer's designated weight capacity of the truck is established with workers' safety in mind.

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n7 Load center is defined as the distance from the face of the fork to the center of gravity of the load being carried.

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Furthermore, assuming arguendo that the standard is valid, no finding of a violation should be affirmed. A review of the evidence of record establishes that complainant has failed to carry his burden of proof with respect to this item of the citation. Respondent is charged with having lifted tires weighing more than the permissible capacity of the forklift truck. Nowhere in the record is the exact weight of any of these tires established. Moreover, [*7] while testimony regarding weights of various new tires was offered, the record is clear that many of the tires lifted by the truck were used tires which, after tread wear, can weigh up to 2,000 pounds less than their original weight. Where a standard, such as the one involved here, requires adherence with specific figures, proof of noncompliance can be established only with specific figures. Speculation and estimates as to weights of tires lifted by the truck do not constitute a sufficient basis for establishing a violation.

The Judge's finding is based in part upon the fact that the back end of the truck came off the ground while its lifting mechanism was straining to pick up a tire. This evidence is not conclusive of a violation. Indeed even on its face this does not constitute a violation. The tire supposedly weighed 3,406 pounds and, at the height to which it was lifted, the manufacturer claims the truck is capable of lifting 3,700 pounds. Although that lift exceeded the capacity indicated on the truck's plate, nothing in the regulation requires that the figure contained in the truck plate be the operative figure for rated capacity where other evidence is available.

The [*8] Judge also relies in his findings on the fact that respondent's employees were neither instructed as to the meaning of load centers nor given information regarding the weight of the tires being lifted. While this may constitute a violation of some other standard, section 1910.178(o)(2) does not require such instruction. The standard very simply prohibits the lifting of loads above the rated capacity of the truck. Employee instruction is not a requirement thereof.

Since the majority does not address any of the matters covered in Judge Otto's decision, it is attached hereto as Appendix A.

APPENDIX A

DECISION AND ORDER

Beverly B. Lord and Edward J. Moran, for complainant

Dale R. Martin, for respondent

Addison Jackson and Larry Buchholz for Local Union No. 1, United Rubber Workers, Participant

George W. Otto, Judge, OSHRC

This is a proceeding under the Act to determine the issues related to contested items 1 and 19 of a citation issued April 30, 1973. Respondent raises no penalty issue. Hearings were held in Chicago, Illinois on October 1, 1973 and January 22, 1974.

Citation item 1 alleges violation of 29 CFR 1910.178(o)(2) for "Failure to restrict loads to within the rated [*9] load capacity of powered industrial truck. (Load lifted is in excess of 3700 pounds whereas the Baker Model FMD-050 has a capacity, 24 inches load center, at height below 156 inches, of 3700 pounds.)." The date by which alleged violation must be corrected was stated at June 14, 1973.

Citation item 19 alleges violation of 29 CFR 1910.132(c) for "Failure to provide personal protective equipment which is of a safe design and construction for the work to be performed. For example: no protective footwear where accident records indicate need for safety shoes for employees handling large size tires." The date by which the alleged violation must be corrected was stated as July 14, 1973.

Both the Complainant and the participating employees object to the admission of Respondent's Exhibit 4, a deposition of Harold Flick made November 14, 1973 upon application of the Respondent and pursuant to an order authorizing such deposition issued by the undersigned Judge on November 7, 1973. The testimony of the deponent Flick was confined to citation item 1. The Complainant and the Union are not prejudiced considering the nature of the testimony set forth in the deposition, were supplied with copies [*10] thereof and the hearing of January 22, 1974 was scheduled specifically to include testimony in rebuttal of that set forth in the deposition, and the parties utilized the opportunity to do so. Respondent's Exhibit 4, the deposition of November 14, 1973, pp. 5 to 15 both inclusive, is received and made part of the record herein.

Citation item 1.

29 CFR 1910.178(o)(2) provides "only loads within the rated capacity of the truck shall be handled."

The place of employment was confined to a building of about 200,000 square feet at EIK Grove Village, Illinois where tires were warehoused and distributed. The violation alleged involves tire handling by one specific forklift truck, a Baker Model FMD-050, Serial No. 43731, about nine years old, equipped with an Atlas tire handling clamp. A plate on the front of the forklift stated 3,000 pounds at a 24-inch load center to a height of 174 inches (Tr. 70, Respondent's Exhibit 4 p. 13).

The term "load center" identifies the distance from the face of the fork to the center of gravity of the load being carried (Respondent's Exhibit 4 pp. 10, 11). The Baker fork truck had a basic capacity of 5,000 pounds at 24-inch load center, but because of [*11] the lift height over 13 feet and also because of the Atlas tire clamp which caused added weight, the capacities were reduced as follows:

Capacity	Load Center
3700 lbs.	24" Any height up to 156"
3000 lbs.	24" From 156" to 174"
3200 lbs.	30" Any height up to 156"
2600 lbs.	30" From 156" to 174"

This information as to capacity and load center was stated in a letter of March 7, 1973 to the Respondent from Otis Elevator Company, manufacturer of the Baker truck (Respondent Exhibit 2). However, it was unknown to the truck operator beyond the information contained in the plate nor was it known to the supervisory or management personnel before the March 7 letter.

Larry Buchholz testified that he operated the truck in question practically daily from 1965 to about six months prior to October 1973, and since then has operated it in the handling of giant earth-mover tires just about every day (Tr. 65). He also testified that "load center" had not been mentioned, he did not know what a load center was nor had he been instructed by the employer and was not able to secure a definition from management (Tr. 104). Mr. Buchholz secured the definition by calling the Otis Elevator Company. [*12] The tire weight was not marked on the tire (Tr. 82), and the operator testified the only way he could tell the weight was by asking the foreman and sometimes the weight was not known for a few days (Tr. 82).

The truck was used in handling earth-mover tires which ranged in size up to about 7-foot diameter and in weight from 1,325 to 3,000 pounds (Tr. 66, 111). For forklift movement of tires, this truck was the only one capable of transporting or stacking the larger tires due to the Atlas tire attachment and the fork expansion (Tr. 72). Mr. Buchholz testified there were tires that weighed up to 4,200 and 4,300 pounds (Tr. 66), that at times stacks go to about 15 feet and the only way to stack the tires was by use of the lift truck, that he saw tiras stacked about eight high probably up to 18 or 19 feet (Tr. 67, 69).

Robert Saffle, warehouse superintendent, testified the highest he saw earth-mover tires stacked would be about 10-1/2 feet (Tr. 123), that some tires have a 36 inch width, that since February 22, 1973 there has been only one tire in excess of 3,700 pounds (Tr. 128), that some tires could have exceeded 3,000 pounds (Tr. 132).

James Coheley, Respondent zone distribution [*13] center manager since December 1968, testified that the company records show three tires received exceeding 3,700 pounds during the period of 1972 until about July 1973. One tire came in May and out in July 1972 and weighed 4,253 pounds, one was received in December 1972 and is still in the warehouse and one came in on July 7, 1972 and went out around July 13 or 14 with the weight 4,253 pounds (Tr. 163), that there were tires over 3,000 pounds but he checked only those over 3,700 pounds, that as small as 1,224 pounds is considered an earth-mover tire (Tr. 171). He testified there is a purchase order for a new bigger forklift because larger equipment is needed since the earth-mover tires are getting larger (Tr. 170). He did not say this jeep would not be adequate (Tr. 170).

Addison Jackson, an employee and at times operator of the Baker forklift, testified to the weights of four tires and in his calculations used the figures especially regarding load centers included in the testimony of the deponent Harold Flick. The excess weights were 411, 1,545, 253 and 785 pounds, respectively. The first tire was stacked 66 inches off the floor, and there was no equipment other than this particular [*14] lift truck that could lift the tire into this position. The second tire was stacked 31 inches above the floor. The tires in the service department were used rather than new, and the four mentioned tires were located in the service department. Each tire was not specifically weighed. Tread use would reduce tire weight depending upon the amount of tread removed.

Larry Buchholz testified that upon lifting these giant tires about six feet in the air an inspector would get under the tire for from two or three minutes to possibly ten minutes for inspection with the tire suspended (Tr. 74, 75); on occasion on attempting to lift these large tires the back end of the jeep raised up from the floor (Tr. 80). He testified Robert Saffle, warehouse superintendent, told him the jeep capacity was 5,000 pounds and that it could lift a tire up to 5,000 pounds, the operator said this was impossible and on March 1, 1973 demonstrated the lifting of a tire weighing 3,406 pounds. Mr. Buchholz spread the forks out, got up under the tire and he testified the jeep would just barely lift the tire off the floor and in so doing the back end of the jeep raised off the floor (Tr. 81).

Respondent refers to [*15] Chapter 10, Section (c) of the Compliance Operation Manual issued by the Occupational Safety and Health Administration (Respondent Exhibit 1). This manual cannot and does not restrict the Secretary in its administration of the Act; there is no provision in the Act or in the Compliance Operation Manual specifically limiting the Secretary to the citing of violations actually observed.

The truck operator did not understand the term "load center" and it was not explained, if understood, by supervisory personnel. The plate on the front of the forklift contained insufficient information for load capacity purposes; the truck operators were not supplied with sufficient knowledge and information to handle all tires within the rated capacity of the truck; tire loads were handled beyond the rated truck capacity as evidenced by the weights of tires in excess of 3,000 pounds handled by only this truck and also on occasion the handling of a tire load beyond the rated capacity of the truck as evidenced by the movement including lifting of the back of the truck. Unsafe working conditions resulted from the tipping or tilting of the truck and from the inspection location beneath the raised tire. [*16]

Abatement would appear to require the specific instruction of all the operators of this truck in the meaning of the terms necessary for consideration in determining the load capacity for a given tire. Unless the approximate weight of the tire and the load center were known to the operator, he would have difficulty in handling the load within the rated capacity of the truck.

Citation item 19.

29 CFR 1910.132(c):

"Design. All personal protective equipment shall be of safe design and construction for the work to be performed."

Complainant filed a motion on March 25, 1974 to amend the citation to allege that in the alternative of violation of 29 CFR 1910.132(c), Respondent violated 29 CFR 1910.132(c) and 29 CFR 1910.132(a), and that in the alternative of violation of 29 CFR 1910.132(c), Respondent violated 29 CFR 1910.132(a). Among other contentions, Complainant recites that to allow amendment would not prejudice the Respondent in any way and that Respondent never at any time raised the defense that the wrong standard had been cited. On the last point it is of consequence that the Respondent has no duty or responsibility to identify any standard allegedly violated. The Respondent [*17] cannot assume Complainant's burden. As a matter of fact the Respondent has raised the defense that the wrong standard has been cited in that Respondent contends that no standard was violated at all.

The record includes 11 injury reports involving accidental injury to the foot or toe, six occurring in 1972 and five in 1973. The employees handled tires of various sizes and no reported injury resulted in any instance from a tire falling on the employee's foot. However, the work activity in which the employee was engaged at time of injury was associated with the warehousing and distribution of tires because that was the sole function of the Respondent's operation at this place of employment.

There was no personal protective equipment required or in use at time of inspection and prior thereto. Employees wore street shoes and in some instances gym shoes but not safety shoes. There was a sufficient incidence of foot and toe injury to constitute an unsafe working condition. There was a violation of 29 CFR 1910.132(a) which provides:

"Application. Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory [*18] devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact."

Review Commission Rule of Procedure 29 CFR 2201.2(b) provides: "In the absence of a specific provision, procedure shall be in accordance with the Federal Rules of Civil Procedure." There is no specific Commission rule dispositive of Complainant's motion.

Federal Rule of Civil Procedure 15(b) provides: "Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of [*19] these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to erable the objecting party to meet such evidence."

Both the citation issued April 30, 1973 and the complaint thereafter describe the alleged violation as "Failure to provide personal protective equipment which is of a safe design and construction for work to be performed. For example: no protective footwear where accident records indicate need for safety shoes for employees handling large size tires."

29 CFR 1910.132(c), standing alone, does not set forth a standard an employer could respond to nor does it describe an employer's duty under Section 654(a)(2) of the Act. It cannot serve as a compliance yardstick in the absence of protective equipment; there is nothing to measure. The description of the alleged violation [*20] as stated in citation item no. 19 and in the complaint, paragraph IV(a)(3), identifies safety shoes as the protective equipment required and spells out the alleged violation in the failure to provide such equipment. In The Budd Company, nos. 199 and 215, March 8, 1974, the Commission declared that 29 CFR 1910.132 consists of three subparts and "It must be construed as a whole;" that subpart (a) imposes no duty on the employer to provide or pay for the equipment (majority decision), that subpart (b) imposes a duty on the employer to insure that employee provided equipment is adequate, is maintained properly and is sanitary, n1 that subpart (c) requires that all personal protective equipment be of safe design and construction.

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n1 29 CFR 1910.132(b) Employee owned equipment. Where employees provide their own protective equipment, the employer shall be responsible to assure its adequacy, including proper maintenance, and sanitation of such equipment.

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Respondent points out in its brief, p. 11, that the citation under [*21] 29 CFR 1910.132(c) was improper and that the employer should have been cited under 29 CFR 1910.132(a). Subsection (c) appears to relate to equipment in use, and it is impossible to evaluate the safety of design and construction where there is no personal protective equipment at all.

Respondent contends that where the employer is cited under an improper standard the citation must be vacated. However, in this case the correct standard was described although not specifically identified by number.

The stated limitation of the need for safety shoes to employees handling large size tires is not necessarily limited to employees handling earth-mover tires or tires handled only by the forklift truck involved in citation item 1. The issue under 29 CFR 1910.132(a) was litigated by the parties and Complainant's motion is granted.

FINDINGS OF FACT

1. At all times relevant Respondent has been and remains an employer engaged in a business affecting commerce between states.

2. On or before April 11, 1973 Respondent employees in the performance of their assigned duties operated a Baker Model FMD-050 forklift truck in lifting and stacking tires.

3. The operators of this truck were not [*22] given sufficient instruction or information to determine the load center and weight of the tires moved by this truck.

4. On or before April 11, 1973 tire loads beyond the rated capacity of the truck were handled.

5. Respondent failed to provide protective equipment by failing to require employees handling large size tires to use safety shoes.

6. The parties litigated the issue of alleged violation of 29 CFR 1910.132(a).

7. In the absence of personal protective equipment, factors of safe design and construction for the work to be performed could not be resolved.

8. The protective equipment required was specifically identified without ambiguity and the required use of such equipment was well within the Respondent's capacity to enforce.

CONCLUSIONS OF LAW

1. Respondent is an employer under the Act within the meaning of 29 USC § 652(5).

2. Respondent violated 29 USC § 654(2) by failure to comply with occupational safety and health standard 29 CFR 1910.170(o)(2). A penalty of $60 is assessed.

3. Respondent violated 29 USC § 654(2) by failure to comply with occupational safety and health standard 29 CFR 1910.132(a). A penalty of $30 is assessed.

4. There was no [*23] failure to comply with occupational safety and health standard 29 CFR 1910.132(c).

ORDER

In the absence of further proceedings within 30 days after the date of this decision, the Respondent shall pay as civil penalty the sum of $90 to the Secretary for deposit into the Treasury of the United States pursuant to 29 USC § 666(k).

George W. Otto, Judge, OSHRC

Dated: Jun. 3, 1974