HENNIS FREIGHT LINES, INC.
OSHRC Docket No. 498
Occupational Safety and Health Review Commission
April 13, 1973
Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners.
OPINIONBY: MORAN
OPINION:
MORAN, CHAIRMAN: On July 7, 1972, Review Commission Judge Alan M. Wienman issued a decision in this case holding that the respondent had violated Section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., 84 Stat. 1590, hereinafter referred to as the Act) for failure to comply with an occupational safety and health standard relating to overhead guards on forklift trucks. n1 He assessed a penalty of $187.50. Thereafter, pursuant to Section 12(j) of the Act, I directed that the decision be reviewed by the Commission.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 The term "forklift" truck is used interchangeably with the term "powered industrial" truck in this case.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The Commission has reviewed the record and complainant's brief. Respondent chose not to submit a brief. On the basis of such review, the Commission finds that the Judge erred in holding that respondent violated Section 5(a)(2) as charged.
This case was initiated by complainant, pursuant to Section 9(a) of the Act on January 18, 1972, when he caused a citation containing four items to be issued against respondent. The respondent contested only one of them. That item alleged a failure to comply with the occupational safety and health standard published at 29 C.F.R. Section 1910.178(m)(9). A description of what constituted this alleged violation was contained on the citation in the following words:
"Powered industrial truck is not equipped with an overhead guard."
29 C.F.R. 1910.178 applies to "Powered industrial trucks." Subsection (m)(9) states that
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, bag material, etc., representative of the job application, but not to withstand the impact of a falling capacity load.
This phrasing indicates rather plainly that if there is no possibility of falling objects, there is no requirement for an overhead guard. That is precisely the respondent's contention in this case. We agree with that contention and we also find that the evidence is insufficient to sustain Judge Wienman's finding that the respondent's powered industrial truck had to have an overhead guard in order to comply with this standard.
Complainant's witness, DiSilvestro, who conducted the inspection of respondent's premises prior to issuance of this citation, testified that the only storage he found that might have involved using a forklift to raise freight over an operator's head was in the office area. He said this place had a storage area "well over ten feet off the ground" and that although he saw a number of boxes there, he did not inspect them. Respondent's terminal manager, Phingston, testified that this storage area was used for empty boxes and company records. He further claimed that respondent had never used the forklift to raise things into that storage area. That testimony was not only uncontradicted but was substantiated by the testimony of Ackerman, a mechanic in respondent's employ, who also testified that he had measured the reach of the forklift and that its maximum reach was eight feet.
The only other evidence tending to establish a possibility of falling objects was given by one Earlywine, a former employee of respondent, who testified that he had "double-decked" freight when he worked for the respondent. Arguably, this practice could create a possibility of injury from falling objects. However, the record is silent as to the height objects had to be lifted to accomplish this "double-decking," when it occurred. This claim, without further information, is not enough to sustain complainant's burden of proving that there was such a danger of falling objects as to require an overhead guard for this forklift truck.
For the foregoing reasons, the Commission finds that respondent was not in violation of the Act as charged. The decision of the Judge is reversed.
DISSENTBY: BURCH
DISSENT:
BURCH, COMMISSIONER, dissenting: The majority decision in this case rests entirely with the untenable proposition that there is no possibility that freight of any kind could ever fall on the forklift operator from above. Such an assumption is unrealistic. The evidence of record, while arguable demonstrating that in the usual course of business freight is not stacked at heights above the level of the operator, also demonstrates that the machine is capable of operation with a load in just such a position. If the lift was equipped with a device which would prevent the raising of the load to such heights, I might agree with the majority on this point.
In order to reach this conclusion, the majority ignores the shifting burden of proof that occurs under circumstances such as are presented here. In this case, respondent admits that the standard was duly promulgated and that the lift was operated without an overhead guard. As I stated in Secretary of Labor v. Mountain States Telephone and Telegraph Co.,
. . . mere noncompliance with a standard establishes a prima facie non-serious violation -- nothing more.
Thus, I am of the opinion that in this case the Secretary had presented a prima facie case and that the burden of proof then shifted to respondent in order to establish its asserted affirmative defense.
Respondent's position, adopted by the majority, is that:
Complainant failed to show that there was a need for such overhead guards on powered industrial trucks in the motor carrier industry and specifically, in the day to day work carried on by the respondent.
The majority thus agrees with respondent in its claim that the Secretary must demonstrate that the likelihood of an injury exists where a respondent is admittedly not in compliance with a duly promulgated standard.
In Mountain States, supra, the majority opinion stated:
The Act is a broad scale effort to prevent "personal injuries and illnesses arising out of work situations." (Footnote omitted, emphasis in original.)
However, in this case it appears that the majority, by its reliance upon testimony to the effect that freight had never before fallen on an operator, would prefer to wait until an accident does occur before believing that the possibility of injury exists. n2 In order to further the goal of preventing accidents a citation such as this one must be upheld.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n2 It is both ironic and instructive to read the following testimony from this case;
Q. . . . has there ever been a fire in the Hennis Terminal that you're working at?
A. A fire in the Hennis Terminal I'm working in -- not to my knowledge.
Q. Is there fire protection available?
A. There is.
Q. So you can have the necessity for protection without actually having the occurrence that you're guarding against occur?
A. That's true.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
I think it is equally clear that the question of the degree of possibility of objects falling upon the operator of this unguarded forklift goes to the issue of gravity and is thus a consideration in the assessment of an appropriate penalty. n3 It is not, however, part of the gravamen of this alleged violation.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n3 Secretary of Labor v. National Realty and Construction Co., Inc., See, Secretary of Labor v. Nacirema Operating Co.,
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
One other point warrants discussion. In response to respondent's argument, the Judge specifically ruled that the standard in question is "reasonable and proper." This holding is specious. Neither the Commission nor its Judges may appropriately rule on the "wisdom" of a duly promulgated standard.
So long as they [Legislative rules] are confined within the limits of the statutory delegation, their force will be recognized by the courts even though the courts may consider them illiberal, inequitable or not conducive to the best results. Seattle -- First National Bank v. United States, 44 F. Supp. 603, 607 (P. Wash. 1942). n4
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n4 See also, Radio Corporation of America v. United States, 341 U.S. 412 (1951); Federal Security Administrator v. Quaker Oats Co., 318 U.S. 218 (1443) Cray v. Powell, 314 U.S. 402 (1942).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Accordingly, I would affirm the result reached by the Judge but would not adopt that portion of his decision speaking to the reasonableness of the standard.
[The Judge's decision referred to herein follows]
WEINMAN, JUDGE, OSAHRC: This is a proceeding under Section 10(c) of the Occupational Safety and Health Act of 1970 (29 USC 651, et. seq.) to review Item Number 3 of a citation and proposed assessment of penalties thereon issued January 8, 1972 by the Secretary of Labor against the respondent, Hennis Freight Lines, Inc. of Nebraska.
The citation alleged that the respondent violated the following Occupational Safety standards at its workplace at 4684 Leavenworth Street, Omaha, Nebraska:
(1) 29 CFR 1910.30(a)(2) which requires that bridge plates at terminal doorways be equipped with a device to prevent their slipping when in place;
(2) 29 CFR 1910.178(p)(1) which requires operable emergency brakes on powered industrial trucks;
(3) 29 CFR 1910.178(m)(9) which requires that powered industrial trucks be equipped with an overhead guard; and
(4) 29 CFR 1910.151(b) which requires that the terminal have a person trained or qualified to render first aid.
The respondent on February 1, 1972 mailed a certified check in the amount of $278.00 in payment of proposed penalties for Items 1, 2 and 4 but indicated that it omitted payment with respect to the alleged violation of 29 CFR 1910.178(m)(9), electing to contest said charge. As a result of respondent's failure to contest, Items Number 1, 2 and 4 of the citation and proposed penalties for each became the final order of the Commission. The Secretary's complaint relative to Item Number 3 was filed with the Commission February 14, 1972, and the respondent's answer on March 13, 1972.
Upon appropriate notice, the case was heard at Omaha, Nebraska on May 23, 1972 with complainant and respondent represented by counsel. Mr. Claude Warren, Business Agent of Teamsters Local Union 554 appeared on behalf of the employees and participated in the hearing, conducting some cross examination of certain witnesses although presenting no witnesses on behalf of the employees.
THE ISSUE
In its answer respondent admitted that it was a corporation with a place of business at 4684 Leavenworth Street, Omaha, Nebraska where it was engaged in the operation of a terminal for the storage and trucking of freight; that it employed approximately 34 persons at its said place of business where it shipped and received goods in interstate commerce and was engaged in a business affecting commerce; that it was an employer within the meaning of the Act; and that jurisdiction of the proceedings was conferred upon the Occupational Safety and Health Review Commission by Section 10(c) of the Act.
Respondent further admitted that on January 11, 1972 one powered industrial truck was in use at its place of business and said truck was not equipped with an overhead guard, but denied that this constituted a violation of 29 CFR 1910.178(m)(9). Respondent further answered that overhead guards on powered industrial trucks are not feasible in the industry for the reason that they would prevent entry and exit to some of the motor vehicles owned by respondent and that the cost of attaching the overhead guards to the equipment presently owned by the respondent would be prohibitive in comparison to benefit which would be realized as a safety feature and that overhead guards were not necessary on this type of equipment for the reason that loose traffic was never stacked to such a height for the overhead guard to protect the employee driver should the traffic fall.
The sole issue for resolution is whether the admitted absence of an overhead guard on the powered industrial truck in use at the respondent's place of business on January 11, 1972 constituted a violation of the safety standards set forth in 29 CFR 1910.178(m)(9), to wit:
"(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, bag material, etc., representative of the job application, but not to withstand the impact of a falling capacity load."
SUMMARY OF THE EVIDENCE
Oscar F. DiSilvestro, Occupational Safety and Health Administration compliance officer, testified that on January 11, 1972 he observed one industrial fork lift truck at respondent's premises which was not equipped with an overhead guard. The vehicle was not in use during the course of his inspection but he stated that it had been used for moving material. He also testified that the respondent had no safety program as such, that it had no safety committees and no formal safety training for its employees.
Warren Wright, OSHA Area Director, testified that he prepared a "penalty assessment worksheet" in connection with the alleged violation (Exhibit G-3). He first determined an "unadjusted penalty" based on the gravity of the violation, i.e. the probability of potential injury and the seriousness of the potential injury. Violation of standard 1910.178(m)(9) was classified as a "C" or "More Serious" injury, and the unadjusted penalty was fixed at $500.00. Mr. Wright then applied reductions for the factors of "good faith," "size," and "history." For "good faith" the respondent was given a 10% reduction although there had been no effective safety program and no training of employees in safe work methods. A 5% reduction was allowed for "size" since the employer had between 20 and 29 employees. A 20% reduction was allowed for "history" since this was the first inspection of the employer. After the $500.00 unadjusted penalty was reduced by a total of $35%, a 50% abatement credit was applied, and the final proposed penalty was $165.00.
On cross examination Mr. Wright stated that he knew of a case where fatality had occurred from lack of an overhead guard on a forklift truck when a 500 pound bale fell on the operator.
Four witnesses for the respondent all testified as to the difficulty the increased height of the overhead guard created in connection with entry to certain trailers and trucks owned by the respondent. Each witness also testified that he had no personal knowledge of injuries to forklift operators from falling material.
Jack Phingston, terminal manager, testified that the overhead guard was installed on the forklift truck within two or three days of the OSHA inspection.
Keith C. Earlywine, a former employee of respondent called as a rebuttal witness by complainant, stated the he knew of other truck lines in the area which had overhead guards on their forklift trucks.
DISCUSSION
Respondent admits the ownership and operation of a forklift truck which was not equipped with an overhead guard in violation of 29 CFR 1910.178(m)(9) on the day of the OSHA inspection. The violation of the standard is clear, and the respondent's contention that installation of the overhead guards on forklift trucks is not feasible in the trucking industry, is not supported in the record. The critical evidence on this question, contained in the testimony of the rebuttal witness Keith C. Earlywine, indicates that other truck lines do operate properly guarded forklift trucks at their docking areas. In his brief the Secretary of Labor contends that the Occupational Safety and Health Review Commission is not empowered by any section of the Act to review the reasonableness or efficacy of standards. We do not agree with this position, but nevertheless find that the standard in question is reasonable and properly applies to the docking areas of truck lines.
The testimony contains a detailed discussion of the method by which the OSHA Area Director arrived at a proposed penalty of $165.00 for the violation. His classification of the violation as a "C" or "More Serious" type appears reasonable. He appears, however, to have been overly generous in awarding respondent a 10% penalty reduction factor for "good faith" in view of the fact that the company had no safety program or safety training for its employees. The testimony in this regard was undisputed by company personnel. A more appropriate assessment of a penalty in this instance is arrived at by applying a total reduction factor of 25% for good faith, size and history prior to the 50% abatement credit. This would result in a penalty of $187.50 for a violation of 29 CFR 1910.178(m)(9).
FINDINGS OF FACT
1. Hennis Freight Lines, Inc. of Nebraska, a corporation with a place of business at 4684 Leavenworth Street, Omaha, Nebraska on January 11, 1972 was engaged in the operation of a terminal for the storage and trucking of freight.
2. Hennis Freight Lines, Inc. of Nebraska on January 11, 1972 employed approximately 34 truck drivers, warehousemen and office employees in its aforesaid place of business where it shipped and received goods in interstate commerce.
3. On January 11, 1972 one powered industrial truck was in use at Hennis Freight Lines, Inc. of Nebraska's place of business and said truck was not equipped with an overhead guard as protection against falling objects as required by the provisions of Occupational Safety and Health Standards 29 CFR 1910.178(m)(9).
CONCLUSIONS OF LAW
1. Respondent is, and at all material times was, an employer within the meaning of Section 5(a), as defined in Section 3(3) and Section 3(5) of the Act.
2. Jurisdiction of this proceeding is conferred upon the Commission by Section 10(c) of the Act.
3. Respondent has violated section 5(a)(2) of the Act by violating 29 CFR 1910.178(m)(9) by its failure to provide the overhead guard required therein.
4. Respondent's challenges to the reasonableness of 29 CFR 1910.178(m)(9) are not supported in the record; rather, the operation of a fork lift vehicle without an overhead guard in a motor carrier docking area creates a sufficiently substantial probability of injury to the operator to support the regulation.
5. Compliance with 29 CFR 1910.178(m)(9) by members of the motor carrier industry is not "unworkable," "unnecessary," or "prohibitive" because of economic or administrative factors.
6. A penalty in the amount of $187.50 is appropriate for this violation giving due consideration to the size of the business of the employer, the gravity of the violation, the good faith of the employer, the employer's history of no previous violations and his prompt action to abate the situation.
ORDER
Based on the above findings of fact and conclusions of law, it is ordered that item number 3 of the citation issued respondent on January 19, 1972 is hereby affirmed and a penalty of $187.50 is hereby assessed for violation of Occupational Safety and Health Standard 29 CFR 1910.178(m)(9).