Docket No. 76-900

LITTON SYSTEMS, INC., INGALLS SHIPBUILDING DIVISION

OSHRC Docket No. 76-900

Occupational Safety and Health Review Commission

November 23, 1981

[*1]

Before: CLEARY and COTTINE, Commissioners. *

* Chairman Rowland took no part in the decision of this case. Although a new Commissions possesses the legal authority to participate in pending cases, participation is discretionary and is not required for the agency to take official action. Perini Corp., 78 OSAHRC 43/C5, 6 BNA OSHC 1609, 1611, 1978 CCH OSHD P22,772 at p. 27, 494 (No. 13029, 1978) (Commissioner Cottine's separate opinion). See § 12(f) of the Act, 29 U.S.C. § 661(e). Commissioners Cleary and Cottine reached agreement on the disposition of this case prior to the assumption of office by Chairman Rowland. Participation by Chairman Rowland would have no effect on the outcome of the case and would delay the issuance of the decision. Accordingly, in the interest of efficient decision-making, Chairman Rowland elects not to participate in this case.

COUNSEL:

Office of the Solicitor, USDOL

George D. Palmer, Associate Reg. Sol., USDOL

George W. Williams, Jr., Legal Department, Ingalls Shipbuilding Corporation, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Judge John A. Carlson is before the Commission pursuant to section 12(j) of the Occupational Safety [*2] and Health Act of 1970, 29 U.S.C. § § 651-678 ("the Act"). Judge Carlson vacated a citation alleging Respondent ("Ingalls") had violated section 5(a)(1) of the Act n1 by allowing a straddle carrier with restricted visibility to operate on roadways in which employees routinely walked. The judge concluded that the twenty-five to thirty-foot "blind spot" in the front of the thirty-ton straddle carrier was not recognized as a hazard by either Ingalls or its industry. Chairman Cleary directed review on

Whether the Administrative Law Judge erred in concluding that the existence of a "recognized" hazard had not been shown with respect to the cab visibility on the 30-ton straddle carrier. n2

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n1 Section 5(a)(1), 29 U.S.C. § 654(a)(1), provides that "[e]ach employer . . . shall furnish to each of his employees employment and a place of employment which are free from recogized hazards that are causing or are likely to cause death or serious physical harm to his employees."

n2 The citation alleged a serious violation of section 5(a)(1) for:

Failure to provide employees a safe and healthful workplace at the Ingalls Shipbuilding West Bank facility at Pascagoula, Mississippi in that the 30-ton Model #121/12-8120 Clark and 50-ton Model #520/8249 Clark straddle carriers were being used in the work environment (streets and walkways) of several hundred employees while not maintained in a safe operating condition in that:

(a) Visibility of operator from cab was restrictive and the operator did not maintain a clear view of travel.

(b) The vehicles did not have effective continuously operating warning devices (flashing lights and horns) when in motion, and

(c) Maintenance of vehicles was inadequate in that cab glass was broken, ladder damaged, and vehicles were greasy and dirty.

Judge Carlson vacated the citation in its entirety. The Secretary only takes exception to his disposition of the charge that the vision of the 30-ton carrier's operator was restricted.

[*3]

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We reverse the judge's decision and affirm the citation.

Ingalls operates a shipbuilding and repair facility at Pascagoula, Mississippi. At this facility, Ingalls uses two massive load carrying vehicles known as "straddle carriers." The straddle carrier at issue has a capacity of 30 tons. The operating cab and engine of the vehicle are located on a deck high above the vehicle's four wheels. Below the deck is a large open bay or "belly" in which the loads are lifted.

Ingall's shipyard was inspected by a compliance officer of the Occupational Safety and Health Administration. n3 During the inspection, the compliance officer observed from the ground that the vision of the driver of the 30-ton straddle carrier was obstructed because of the configuration of the machine. The compliance officer estimated that the "blind spot" in froint of the straddle carrier was 25 to 30 feet. This estimate was corroborated by the driver of the carrier and a sales representative of the machine manufacturer.

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n3 The inspection was conducted after a fatal accident in which an employee was crushed beneath the straddle carrier. The facts of the accident make it clear, and both sides agree, that the accident was unrelated to the issue before us for review.

[*4]

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The 30-ton carrier was equipped with side mirrors that permitted the operator to see the ground along the sides and partly in the front of the machine. It was not, however, equipped with a mirror that would enable the operator to see within the "blind spot" in the front of the carrier. Subsequent to Ingalls' purchase of the carrier, the manufacturer began to equip similar carriers with front-mounted mirrors that reduced the extent of the "blind spot" to about 12 feet in front of the machine. There was, however, no evidence that Ingalls knew that the newer models of the 30-ton carrier were equipped with such mirrors.

Judge Carlson found the Secretary had failed to show that the 30-foot blind spot was a recognized hazard. In doing so, he said, "Under the facts of this case it seems to me impossible to rationally consider hazard recognition as a matter separate and apart from the suggested remedy namely -- the special front-mounted mirror." The judge stated the Secretary had put on no evidence of industry recognition of the hazard aside from evidence that the manufacturer now included a front-mounted [*5] mirror on its straddle carriers. Absent any evidence that this information was disseminated to the buyers of the carriers, Judge Carlson found the testimony insufficient to show industry recognition. The judge further found that Ingalls did not have actual knowledge of the hazard. He noted that the carrier was originally equipped with only side-mounted mirrors and that this "could easily have given rise to the belief that all that could reasonably 'be done with mirrors' had been done." Judge Carlson specifically disregarded testimony by a union official that he had apprised Ingalls of the problem months before the inspection.

The Secretary contends that the judge improperly confused the hazard with the means of abatement. He argues that, under section 5(a)(1), he must show that either Ingalls or the shipbuilding industry recognized the hazard of the 30-foot blind spot, not that industry agrees on how that hazard is best abated. It is sufficient if he shows that the means of abatement is feasible.

Furthermore, the Secretary claims he demonstrated the hazard of the 30-foot blind spot was recognized by the industry and by common sense. Industry recognition, the Secretary contends, [*6] can be inferred by the manufacturer placing front-mounted mirrors on the later models of straddle carriers. The Secretary also argues that with reasonable diligence Ingalls could have become aware of the hazard of which it now claims ignorance.

Ingalls argues to the Commission that Judge Carlson correctly interpreted the term "recognized hazard" and his decision should be upheld. Under National Realty and Construction Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973), Ingalls claims the Secretary must demonstrate that either Ingalls or the shipbuilding industry in general recognized the hazard of the 30-foot blind spot and that the Secretary produced no evidence to demonstrate recognition by Ingalls or the shipbuilding industry. Now, Ingalls claims, the Secretary is trying to interject a third, and much easier, test for a "recognized hazard," namely that common sense would indicate that a 30-foot blind spot is a hazard.

Furthermore, Ingalls argues the hazard could not be fully abated. Testimony at the hearing showed the 30-foot blind spot could only be reduced to a 10 to 12-foot blind spot by the use of a front-mounted mirror. Therefore, Ingalls could not render its workplace [*7] "free" of the hazard.

III

In order to establish a section 5(a)(1) violation, the Secretary must show that: (1) an employer failed to render its workplace free from a recognized hazard; (2) the occurrence of an incident was reasonably foreseeable; and (3) the likely consequence in the event of an incident was death or serious physical harm to its employees. Bomac Drilling, Division of TRG Drilling Corp., 81 OSAHRC 45/A2, 9 BNA OSHC 1681, 1691, 1981 CCH OSHD P25,363 at p. 31,547 (No. 76-450, 1981). The Secretary must also demonstrate that there were feasible means available to abate the hazard. Id.; National Realty and Construction Co. v. OSHRC, supra, 489 F.2d at 1268.

A recognized hazard is a condition or practice in the workplace that is known to be hazardous either by the industry in general or by the employer in particular. Beaird-Poulan, A Division of Emerson Electric Co., 79 OSAHRC 21/D11, 7 BNA OSHC 1225, 1979 CCH OSHD P23,493 (No. 12600, 1979); see Continental Oil Co. v. OSHRC, 630 F.2d 446, 448 (6th Cir. 1980), cert. denied, 101 S.Ct. 1481 (March 2, 1981); Empire Detroit Steel Division, Detroit Steel Corp. v. OSHRC, 579 F.2d 378, [*8] 383 (6th Cir. 1978). n4 Furthermore, it is the hazard, not a specific incident that resulted in injury, which is relevant in determining the existence of the recognized hazard. See Brennan v. OSHRC (Vy Lactos Laboratories, Inc.), 494 F.2d 460 (8th Cir. 1974); Boeing Co., Wichita Division, 77 OSAHRC 188/D13, 5 BNA OSHC 2014, 1977-78 CCH OSHD P22,266 (No. 12879, 1977).

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n4 The recognition element of an employer's duty under the general duty clause refers to knowledge of the hazard, not recognition of the means of abatement. General Dynamics Corp., Quincy Shipbuilding Div., 599 F.2d 453 (1st Cir. 1979). Required abatement is determined by feasibility and may involve practices of a higher standard than presently considered reasonable by an industry. Williams Enterprises, Inc., 79 OSAHRC 24/A2, 7 BNA OSHC 1247, 1979 CCH OSHD P23,478 (No. 4533, 1979), aff'd, No. 79-1559 (D.C. Cir., 1980); Continental Oil Co., 78 OSAHRC 63/E1, 6 BNA OSHC 1814, 1978 CCH OSHD P22,903 (No. 1829, 1978), aff'd, 630 F.2d 446 (6th Cir., 1980), cert. denied, 101 S.Ct. 1481 (March 2, 1981).

[*9]

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The hazard in this case is a large vehicle moving with obstructed vision through areas commonly used by employees. The danger presented by this type of machinery is a matter of common knowledge. The vehicle could, because of the 25 to 30-foot blind spot, strike an unseen employee crossing in front of the vehicle. Rcognition of the hazard can be inferred from the obvious nature of the hazard. See Eddy's Bakeries Co., 81 OSAHRC 79/F4, 9 BNA OSHC 2147, 1981 CCH OSHD P25,604 (No. 77-1084, 1981). Therefore, given all the circumstances of this case, the hazard of a large vehicle moving with obstructed vision through areas used as walkways by employees must be considered a recognized hazard.

Furthermore, we find that an incident involving this hazard was reasonably foreseeable n5 and the likely result of an incident would be death or serious injury. The areas in which the straddle carriers operated were also used as employee walkways. Such circumstances make an eventual incident in which the carrier might strike an unseen employee reasonably foreseeable. Given the massive size of the vehicle, [*10] the likely result of such an incident would be death or serious injury to the person struck by the carrier.

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n5 Commissioner Cleary believes that it is inappropriate to inquire into whether an incident is reasonably foreseeable in determining whether an employer violated § 5(a)(1). Bomac Drilling, supra (Cleary concurring). He would find a violation of section 5(a)(1) of the Act in this case without recourse to whether an incident is reasonably foreseeable. However, Commissioner Cleary agrees to follow that precedent for the purposes of deciding this case.

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We also find that a feasible means of abatement was available. Front-mounted mirrors are now standard equipment on straddle carriers. The means of abatement, unlike the hazard itself, does not have to be recognized by an employer or the employer's industry. Bomac Drilling, supra, 9 BNA OSHC at 1692-93, 1981 CCH OSHD at p. 31,549, and cases cited therein. The means of abatement must only be "feasible."

Ingall's argument that there was no means [*11] of complete abatement since the front-mounted mirrors would not completely eliminate the blind spot is unconvincing. The Secretary must only show that there was a means of abatement which would materially reduce the hazard. Whirlpool Corp., 79 OSAHRC 32/A14, 7 BNA OSHC 1356, 1979 CCH OSHD P23,552 (No. 9224, 1979), rev'd on other grounds, 645 F.2d 1096 (D.C. Cir. 1981). An employer is not excused from providing whatever protection is feasible simply because full protection cannot be achieved. Boonville Division of Ethan Allen, Inc., 78 OSAHRC 105/B4, 6 BNA OSHC 2169, 1978 CCH OSHD P23,219 (No. 76-2419, 1978). The Secretary has established that the front-mounted mirrors would reduce the blind spot by over 50 percent. Accordingly, he has satisfied his burden of proof.

Finally, Ingalls points to a standard at 29 C.F.R. § 1910.265(c)(30)(xi) which is applicable to sawmills and provides as follows:

§ 1910.265 Sawmills.

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(30) Vehicles -

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(xi) Carriers. (a) Carriers shall be so designed and constructed that the operator's field of vision shall not be unnecessarily restricted. [*12]

Ingalls contends that the shipbuilding industry should not be held to a greater standard of care than the sawmill industry and that "the sawmill standards should serve as a guideline for any similarly situated employer and for this Commission to follow. . . ."

Assuming that section 1910.265(c)(30)(xi) has any relevance to this case, it does not support Ingalls' argument. The standard instead supports the Secretary's theory of the case, indicating that it is hazardous for equipment such as straddle carriers to have restricted vision and that feasible precautions against unnecessarily restricted vision should be taken.

Judge Carlson's decision is reversed. The criteria for a section 5(a)(1) violation of the Act have been met. The citation is affirmed to the extent it requires Ingalls to install front-mounted mirrors on its 30-ton straddle carrier in order to reduce the hazard. Considering that this hazard was one part of the original multi-part citation for which the Secretary proposed a $1000 penalty, and considering Ingalls' size, good faith, and prior history, we assess a penalty of $200. SO ORDERED.