“SECRETARY OF LABOR, Complainant,v.CARPENTER TECHNOLOGY CORP., Respondent.OSHRC Docket No. 81-0647DECISIONBefore:\u00a0 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 and Health Act of1970, 29 U.S.C. ?? 651-678 (\”the Act\”).\u00a0 The Commission is anadjudicatory agency, independent of the Department of Labor and the Occupational Safetyand Health Administration.\u00a0 It was established to resolve disputes arising out ofenforcement actions brought by the Secretary of Labor under the Act and has no regulatoryfunctions.\u00a0 See section 10(c) of the Act, 29 U.S.C. ? 659(c).The Secretary of Labor (\”Secretary\”) has petitioned for review offormer Commission Judge Barbara L. Hassenfeld’s decision vacating a citation issued toCarpenter Technology Corporation (\”Car Tech\”) for violation of 29 C.F.R. ?1910.178(n)(6).[[1]] The citation concerns alleged visual constructions on a62,000-pound-capacity forklift truck owned by Car Tech.\u00a0 Car Tech used the forklifttruck to transport slag pots from the melt shop to the slag dumping area and back at itssteel manufacturing plant in Bridgeport, Connecticut.\u00a0 The forklift, which was drivenat about 5 miles per hour, traveled through areas of employee pedestrian traffic at times.\u00a0\u00a0 The driver’s vision toward the right forward side of the vehicle was reducedby certain of its structural parts, including the forklift mast, fork carriage andhydraulic lines.\u00a0 The slag pot also reduced vision in the same area.\u00a0 There wasconflicting testimony on whether the obstructions prevented a clear view of the path oftravel.The judge found that the cited standard does not apply to the citedconditions.\u00a0 She concluded that another standard, 29 C.F.R. ? 1910.178(a)(4),[[2]]appeared more applicable because Car Tech had modified the forklift by adding a gripperattachment it had made itself to hold the slag bucket in place.\u00a0 The judge did notorder that the citation be amended post-hearing to allege a violation of this standardbecause she found that the issues raised by such an amendment were not tried by theimplied or express consent of the parties.\u00a0 See Fed.R.Civ.P. 15(b).\u00a0 The judgetherefore 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 the obstructions on thetruck.\u00a0 He argues that the judge erred in finding section 1910.178(a)(4) moreapplicable because Car Tech’s modification to the truck at worst only exacerbated anexisting problem, and because the cited standard deals more specifically with theoperator’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 to visibility problemsinherent in the machinery, but instead governs driver conduct.\u00a0 It argues that itsmodification of the truck affected the truck’s hauling capacity and that section1910.178(a)(4) would be more specifically applicable to the problem alleged to exist.\u00a0\u00a0 Car Tech 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 totestimony that the truck could have been operated in reverse and that its horn could besounded at cross aisles.The two Commission members are divided on whether the judge’s decision shouldbe affirmed or reversed.[[4]]\u00a0 Chairman Buckley would affirm the judge’s conclusionthat the cited conditions do not constitute a violation of the cited standard.\u00a0 Thestandard places a duty on the employer to require the driver to look in the direction of,and keep a clear view of, the path of travel.\u00a0 This notifies the employer to requirecertain conduct of the driver.\u00a0 It does not pertain to inherent visual obstructionscaused by structural parts of industrial trucks as the Secretary contends. [[5]] Noprovision of subsection 178(n) mandates particular structural specifications for thevehicles.\u00a0 Basic structural specifications are addressed in section 178(a),including, among other things, the provision that trucks acquired and used after February15, 1972, must meet the relevant design and construction requirements of ANSI B 56.1-1969.Car Tech’s truck met those requirements.There is no evidence of misconduct on the driver’s part or of any short-comings in CarTech’s program for selecting and training its drivers.\u00a0 The evidence indicates thatCar Tech selects well-qualified, licensed drivers, trains them specifically in theoperation of its vehicles, instructs them to keep a proper lookout for pedestrians andtrucks and requires its drivers to keep a clear view of the path of travel as required bythe cited standard.\u00a0 The parties did not try, and there is no evidence of record tosupport, a violation of any other standard.\u00a0 Thus, Chairman Buckley would find thatCar Tech complied with the cited standard and would affirm the judge’s decision.Commissioner Cleary would find that the cited standard applies to the factsbecause Car Tech did not and could not require the driver to keep a clear view of the Pathof travel. [[6]] Car Tech assigned its drivers to drive the truck with knowledge ofunavoidable visual obstructions both front and rear.\u00a0 Thus, it failed to comply withthe standard.\u00a0 In Commissioner Cleary’s view, an employer may violate any of thetraveling rules of subsection 178(n) by having the driver work under conditions where thedriver 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.\u00a0 Section178(a)(4) requires the employer to gain the manufacturer’s prior written approval ofmodifications affecting capacity and safe operation of an industrial truck and to changethe relevant instruction plates, tags and decals accordingly. Arguably, Car Tech’smodification of the forklift carriage by adding a gripper mechanism of its own makingaffected the truck’s capacity or safe operation.\u00a0 But the requirement ofmanufacturer’s approval of structural changes does not preempt enforcement of the citedvisibility standard in Commissioner Cleary’s view.Commissioner Cleary also would reject Car Tech’s contention that section178(n)(4) is more specifically applicable.\u00a0 The testimony that there were visualobstructions to the rear of the forklift indicates the driver could not have kept a clearview of the path of travel in reverse.\u00a0 Commissioner Cleary reads sections 178(n)(4)and (n)(6) together to require a clear view of the path of travel in whichever directionthe vehicle is operated.\u00a0 Regulations are to be read as a harmonious whole wherepossible.\u00a0 E.g., Richards v. United States, 369 U.S. 1 (1962); NLRB v. Lion Oil Co.,352 U.S. 282 (1957).\u00a0 He also would conclude that the evidence demonstrates a seriousviolation of the cited standard.[[7]]To resolve their impasse on the merits of the citation and to permit theparties to conclude this litigation, Chairman Buckley and Commissioner Cleary have agreedto vacate the direction for review.\u00a0 E.g., Texaco, Inc., 80 OSAHRC 74\/B1, 8 BNA OSHC1758, 1980 CCH OSHD ? 24,634 (Nos. 77-3040 & 77-3542, 1980).\u00a0 The Commissionmembers have discretion under the Act and the Commission’s Rules of Procedure to directreview of a judge’s decision.\u00a0 Section 12(j), 29 U.S.C. ? 661(i); 29 C.F.R. ?2200.92.\u00a0 In the absence of a direction for review, the judge’s decision becomes afinal order of the Commission and can be appealed by an aggrieved party to a United Statescourt of appeals.\u00a0 Sections 10(c), 11(a) and (b) and 12(j), 29 U.S.C. ?? 659(c),660(a) and (b), 661(i).\u00a0 The judge’s decision in this case therefore becomes theappealable final order of the Commission but is accorded the precedential value of anunreviewed judge’s decision.FOR THE COMMISSIONRAY H. DARLING, JR. EXECUTIVE SECRETARY DATED:\u00a0 OCT 22 1984\u00a0The Administrative Law Judge decision in this matter is unavailable in thisformat.\u00a0 To obtain a copy of this document, please request one from our PublicInformation 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 a clear view of thepath of travel.[[2]] ? 1910.178(a)(4) provides:Modifications and additions which affectcapacity and safe operation shall not be performed by the customer or user withoutmanufacturers [sic] prior written approval.\u00a0 Capacity, operation, and maintenanceinstruction plates, tags, or decals shall be changed accordingly.[[3]] That standard provides:The driver shall be required to slow down andsound the horn at cross aisles and other locations where vision is obstructed.\u00a0 Ifthe load being carried obstructs forward view, the driver shall be required to travel withthe load trailing.[[4]] As established by the Act, the Commissionis composed of three members.\u00a0 Section 12(a), 29 U.S.C. ? 661(a).\u00a0 Undersection 12(f) of the Act, 29 U.S.C. ? 661(e), official action can be taken by theCommission with the affirmative vote of at least two members.\u00a0 Because there is avacancy, the Commission currently has only two members.[[5]] Moreover, the record does not establishthat a driver of the forklift could not keep a clear view of the path of travel.\u00a0 Thejudge made no finding with respect to this critical fact, concluding that the evidencesupported only a finding that an obstructed view existed to the right front of thevehicle.\u00a0 The breadth and depth of this obstruction was never credibly established.\u00a0 Various witnesses testified that a driver could overcome these obstructions by thesimple expedient of shifting positions.\u00a0 Although this inspection was precipitated bya fatal accident involving this machine, the Secretary disavowed any connection betweenthe accident and the alleged obstructed view to the right, successfully objecting to anyattempt by Car Tech to introduce evidence relating to how the accident occurred.\u00a0 There is no evidence of record, therefore, suggesting that the accident resultedfrom an obstruction, but an inference that it did not.[[6]] The judge found that \”the evidencepresented clearly demonstrates a serious and dangerous situation which should no longer betolerated,\” and that \”[t]he Respondent’s employees were in the zone of dangercreated by the Respondent’s use of the forklift.\” The evidence fully supports thosefindings, in Commissioner Cleary’s view.\u00a0 The photographs in evidence vividly depictserious obstructions to the vision of the driver to the extent that the machine wasinherently dangerous.\u00a0 The defense that the driver could see by moving around in hisseat is clear evidence of the obstructions.\u00a0 Also, the OSHA compliance officer whoinspected Car Tech’s workplace conducted a careful measurement to establish the extent ofthe obstructed view to the right front of the forklift. Sitting in the cab of the vehicle,he had a person of normal height walk directly forward from the right front tire.\u00a0 Hecould not see any part of the person until the person was 78 feet in front the vehicle, atwhich point the person’s head came into view.\u00a0 The vehicle’s driver, LaLiberte,testified that he did not disagree with the compliance officer’s measurements and Car Techdid not discredit the measurements.\u00a0 LaLiberte acknowledged that the obstructionsprevented a clear view of the path of travel.The driver could not leave the cab’s seat whendriving.\u00a0 LaLiberte testified that even if he moved around in his seat it would onlyaid vision a little bit — it would not eliminate the whole problem.\u00a0 The vehicle’sformer driver, Cave, did not not testify to the contrary. Both LaLiberte and Cavetestified that they had had at least one previous accident (not involving personal injury)resulting from the obstructions.\u00a0 None of Car Tech’s other witnesses had driven thevehicle and the judge properly noted at the hearing that little weight is due to theiropinions on the visibility issue.\u00a0 Commissioner Cleary would find that a clear viewof the path of travel could not be maintained.[[7]] In addition to finding that a clear viewof the path of travel could not be maintained (see n. 6 supra), Commissioner Cleary wouldfind that Car Tech employees regularly had access to the hazards and that those hazardswere extremely serious, as the great weight of the forklift indicates.\u00a0 Car Tech knewabout the obstructions because it had created them and its safety manager had warneddrivers about them.\u00a0 Thus, Car Tech had the requisite knowledge of a violation.\u00a0 E.g., Pretressed Systems Inc., 81 OSAHRC 43\/D5, 9 BNA OSHC 1864, 1981 CCH OSHD ?25,358 (No. 16147,1981).\u00a0 Also, contrary to Car Tech’s argument, the Secretary has noburden under specific standards to prove a feasible means of abatement, unless thestandard cited expressly creates such a burden of proof.\u00a0 E.g., Bratton FurnitureMfg. Co., 83 OSAHRC 30\/A2, 11 BNA OSHC 1434, 1983-84 CCH OSHD ? 26,538 (No. 81-799,1983).\u00a0 Even if there were such a burden, the Secretary met it here.\u00a0 For example, thejudge found that \”[a]ll witnesses agreed with the feasibility of using flagmenequipped with two-way radios to the operator as one method of abatement of theproblem.\”\u00a0 Thus, Commissioner Cleary would conclude that the Secretary has madeout a serious violation of the cited standard.”