“SECRETARY OF LABOR,Complainant,v.CARPENTER TECHNOLOGY CORP.,Respondent.OSHRC Docket No. 81-0647_DECISION_Before: BUCKLEY, Chairman, and CLEARY, Commissioner.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration. It was established toresolve disputes arising out of enforcement actions brought by theSecretary of Labor under the Act and has no regulatory functions. Seesection 10(c) of the Act, 29 U.S.C. ? 659(c).The Secretary of Labor (\”Secretary\”) has petitioned for review of formerCommission Judge Barbara L. Hassenfeld’s decision vacating a citationissued to Carpenter Technology Corporation (\”Car Tech\”) for violation of29 C.F.R. ? 1910.178(n)(6).[[1]] The citation concerns alleged visualconstructions on a 62,000-pound-capacity forklift truck owned by CarTech. Car Tech used the forklift truck to transport slag pots from themelt shop to the slag dumping area and back at its steel manufacturingplant in Bridgeport, Connecticut. The forklift, which was driven atabout 5 miles per hour, traveled through areas of employee pedestriantraffic at times. The driver’s vision toward the right forward sideof the vehicle was reduced by certain of its structural parts, includingthe forklift mast, fork carriage and hydraulic lines. The slag pot alsoreduced vision in the same area. There was conflicting testimony onwhether the obstructions prevented a clear view of the path of travel.The judge found that the cited standard does not apply to the citedconditions. She concluded that another standard, 29 C.F.R. ?1910.178(a)(4),[[2]] appeared more applicable because Car Tech hadmodified the forklift by adding a gripper attachment it had made itselfto hold the slag bucket in place. The judge did not order that thecitation be amended post-hearing to allege a violation of this standardbecause she found that the issues raised by such an amendment were nottried by the implied or express consent of the parties. SeeFed.R.Civ.P. 15(b). The judge therefore vacated the citation.The Secretary argues that the cited standard applies because the truck’soperator could not keep a clear view of the path of travel due to theobstructions on the truck. He argues that the judge erred in findingsection 1910.178(a)(4) more applicable because Car Tech’s modificationto the truck at worst only exacerbated an existing problem, and becausethe cited standard deals more specifically with the operator’s view.Car Tech argues that the judge properly vacated the citation because thecited standard, like all of section 1910.178(n), does not apply tovisibility problems inherent in the machinery, but instead governsdriver conduct. It argues that its modification of the truck affectedthe truck’s hauling capacity and that section 1910.178(a)(4) would bemore specifically applicable to the problem alleged to exist. CarTech 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 reverseand that its horn could be sounded at cross aisles.The two Commission members are divided on whether the judge’s decisionshould be affirmed or reversed.[[4]] Chairman Buckley would affirm thejudge’s conclusion that the cited conditions do not constitute aviolation of the cited standard. The standard places a duty on theemployer to require the driver to look in the direction of, and keep aclear view of, the path of travel. This notifies the employer torequire certain conduct of the driver. It does not pertain to inherentvisual obstructions caused by structural parts of industrial trucks asthe Secretary contends. [[5]] No provision of subsection 178(n) mandatesparticular structural specifications for the vehicles. Basic structuralspecifications are addressed in section 178(a), including, among otherthings, the provision that trucks acquired and used after February 15,1972, must meet the relevant design and construction requirements ofANSI B 56.1-1969. Car Tech’s truck met those requirements.There is no evidence of misconduct on the driver’s part or of anyshort-comings in Car Tech’s program for selecting and training itsdrivers. The evidence indicates that Car Tech selects well-qualified,licensed drivers, trains them specifically in the operation of itsvehicles, instructs them to keep a proper lookout for pedestrians andtrucks and requires its drivers to keep a clear view of the path oftravel as required by the cited standard. The parties did not try, andthere is no evidence of record to support, a violation of any otherstandard. Thus, Chairman Buckley would find that Car Tech complied withthe cited standard and would affirm the judge’s decision.Commissioner Cleary would find that the cited standard applies to thefacts because Car Tech did not and could not require the driver to keepa clear view of the Path of travel. [[6]] Car Tech assigned its driversto drive the truck with knowledge of unavoidable visual obstructionsboth front and rear. Thus, it failed to comply with the standard. InCommissioner Cleary’s view, an employer may violate any of the travelingrules of subsection 178(n) by having the driver work under conditionswhere the driver cannot do what is required under the relevant rule.Commissioner Cleary disagrees with the judge’s conclusion that section1910.178(a)(4) \”appears more applicable\” than the cited standard. Section 178(a)(4) requires the employer to gain the manufacturer’s priorwritten approval of modifications affecting capacity and safe operationof an industrial truck and to change the relevant instruction plates,tags and decals accordingly. Arguably, Car Tech’s modification of theforklift carriage by adding a gripper mechanism of its own makingaffected the truck’s capacity or safe operation. But the requirement ofmanufacturer’s approval of structural changes does not preemptenforcement of the cited visibility standard in Commissioner Cleary’s view.Commissioner Cleary also would reject Car Tech’s contention that section178(n)(4) is more specifically applicable. The testimony that therewere visual obstructions to the rear of the forklift indicates thedriver could not have kept a clear view of the path of travel inreverse. Commissioner Cleary reads sections 178(n)(4) and (n)(6)together to require a clear view of the path of travel in whicheverdirection the vehicle is operated. Regulations are to be read as aharmonious whole where possible. E.g., Richards v. United States, 369U.S. 1 (1962); NLRB v. Lion Oil Co., 352 U.S. 282 (1957). He also wouldconclude that the evidence demonstrates a serious violation of the citedstandard.[[7]]To resolve their impasse on the merits of the citation and to permit theparties to conclude this litigation, Chairman Buckley and CommissionerCleary 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 underthe Act and the Commission’s Rules of Procedure to direct review of ajudge’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 decisionbecomes a final order of the Commission and can be appealed by anaggrieved 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 finalorder of the Commission but is accorded the precedential value of anunreviewed judge’s decision.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: OCT 22 1984 ————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[1]] ? 1910.178 Powered industrial trucks* * *(n) Traveling.* * *(6) The driver shall be required to look in the direction of, and keep aclear view of the path of travel.[[2]] ? 1910.178(a)(4) provides:Modifications and additions which affect capacity and safe operationshall not be performed by the customer or user without manufacturers[sic] prior written approval. Capacity, operation, and maintenanceinstruction 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 crossaisles and other locations where vision is obstructed. If the loadbeing carried obstructs forward view, the driver shall be required totravel with the load trailing.[[4]] As established by the Act, the Commission is composed of threemembers. Section 12(a), 29 U.S.C. ? 661(a). Under section 12(f) of theAct, 29 U.S.C. ? 661(e), official action can be taken by the Commissionwith the affirmative vote of at least two members. Because there is avacancy, the Commission currently has only two members.[[5]] Moreover, the record does not establish that a driver of theforklift could not keep a clear view of the path of travel. The judgemade no finding with respect to this critical fact, concluding that theevidence supported only a finding that an obstructed view existed to theright front of the vehicle. The breadth and depth of this obstructionwas never credibly established. Various witnesses testified that adriver could overcome these obstructions by the simple expedient ofshifting positions. Although this inspection was precipitated by afatal accident involving this machine, the Secretary disavowed anyconnection between the accident and the alleged obstructed view to theright, successfully objecting to any attempt by Car Tech to introduceevidence relating to how the accident occurred. There is no evidenceof record, therefore, suggesting that the accident resulted from anobstruction, but an inference that it did not.[[6]] The judge found that \”the evidence presented clearly demonstratesa serious and dangerous situation which should no longer be tolerated,\”and that \”[t]he Respondent’s employees were in the zone of dangercreated by the Respondent’s use of the forklift.\” The evidence fullysupports those findings, in Commissioner Cleary’s view. The photographsin evidence vividly depict serious obstructions to the vision of thedriver to the extent that the machine was inherently dangerous. Thedefense that the driver could see by moving around in his seat is clearevidence of the obstructions. Also, the OSHA compliance officer whoinspected Car Tech’s workplace conducted a careful measurement toestablish the extent of the obstructed view to the right front of theforklift. Sitting in the cab of the vehicle, he had a person of normalheight walk directly forward from the right front tire. He could notsee any part of the person until the person was 78 feet in front thevehicle, at which point the person’s head came into view. The vehicle’sdriver, LaLiberte, testified that he did not disagree with thecompliance officer’s measurements and Car Tech did not discredit themeasurements. LaLiberte acknowledged that the obstructions prevented aclear view of the path of travel.The driver could not leave the cab’s seat when driving. LaLibertetestified that even if he moved around in his seat it would only aidvision a little bit — it would not eliminate the whole problem. Thevehicle’s former driver, Cave, did not not testify to the contrary. BothLaLiberte and Cave testified that they had had at least one previousaccident (not involving personal injury) resulting from theobstructions. None of Car Tech’s other witnesses had driven the vehicleand the judge properly noted at the hearing that little weight is due totheir opinions on the visibility issue. Commissioner Cleary would findthat 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 travelcould not be maintained (see n. 6 supra), Commissioner Cleary would findthat Car Tech employees regularly had access to the hazards and thatthose hazards were extremely serious, as the great weight of theforklift indicates. Car Tech knew about the obstructions because it hadcreated 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, theSecretary has no burden under specific standards to prove a feasiblemeans of abatement, unless the standard cited expressly creates such aburden of proof. E.g., Bratton Furniture Mfg. Co., 83 OSAHRC 30\/A2, 11BNA OSHC 1434, 1983-84 CCH OSHD ? 26,538 (No. 81-799,1983). Even ifthere were such a burden, the Secretary met it here. For example, thejudge found that \”[a]ll witnesses agreed with the feasibility of usingflagmen equipped with two-way radios to the operator as one method ofabatement of the problem.\” Thus, Commissioner Cleary would concludethat the Secretary has made out a serious violation of the cited standard.”