Carpenter Technology Corp.

Plain-English summary

Carpenter Technology used a large forklift to carry slag pots through parts of its steel plant where employees sometimes walked. OSHA cited the company under the powered-industrial-truck rule requiring a driver to keep a clear view of the path of travel. The judge vacated the citation after concluding that the cited rule governed driver conduct rather than structural obstructions and that a different forklift rule had not been tried by the parties. Chairman Buckley would have affirmed that ruling, while Commissioner Cleary would have found a serious violation because the driver could not maintain a clear view. The two Commissioners vacated the direction for review to resolve their deadlock. The judge's vacation of the citation therefore became the appealable final order, but retained only the precedential value of an unreviewed judge's decision.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.178(a)(4), 29 C.F.R. § 1910.178(n)(4), and 29 C.F.R. § 1910.178(n)(6)
• Outcome: Direction for review vacated; the judge's vacation of the forklift citation became the final order.
• Key point: The Commissioners' deadlock left the judge's ruling in place without creating Commission precedent on the merits.

Full text (OSHRC public release)

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 Commission
under 29 U.S.C. � 661(i), section 12(j) of the Occupational Safety and Health Act of
1970, 29 U.S.C. �� 651-678 ("the Act").  The Commission is an
adjudicatory agency, independent of the Department of Labor and the Occupational Safety
and Health Administration.  It was established to resolve disputes arising out of
enforcement actions brought by the Secretary of Labor under the Act and has no regulatory
functions.  See section 10(c) of the Act, 29 U.S.C. � 659(c).

The Secretary of Labor ("Secretary") has petitioned for review of
former Commission Judge Barbara L. Hassenfeld's decision vacating a citation issued to
Carpenter Technology Corporation ("Car Tech") for violation of 29 C.F.R. �
1910.178(n)(6).[[1]] The citation concerns alleged visual constructions on a
62,000-pound-capacity forklift truck owned by Car Tech.  Car Tech used the forklift
truck to transport slag pots from the melt shop to the slag dumping area and back at its
steel manufacturing plant in Bridgeport, Connecticut.  The forklift, which was driven
at about 5 miles per hour, traveled through areas of employee pedestrian traffic at times.
   The driver's vision toward the right forward side of the vehicle was reduced
by certain of its structural parts, including the forklift mast, fork carriage and
hydraulic lines.  The slag pot also reduced vision in the same area.  There was
conflicting testimony on whether the obstructions prevented a clear view of the path of
travel.

The judge found that the cited standard does not apply to the cited
conditions.  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 gripper
attachment it had made itself to hold the slag bucket in place.  The judge did not
order that the citation be amended post-hearing to allege a violation of this standard
because she found that the issues raised by such an amendment were not tried by the
implied or express consent of the parties.  See Fed.R.Civ.P. 15(b).  The judge
therefore vacated the citation.

The Secretary argues that the cited standard applies because the truck's
operator could not keep a clear view of the path of travel due to the obstructions on the
truck.  He argues that the judge erred in finding section 1910.178(a)(4) more
applicable because Car Tech's modification to the truck at worst only exacerbated an
existing problem, and because the cited standard deals more specifically with the
operator's view.

Car Tech argues that the judge properly vacated the citation because the
cited standard, like all of section 1910.178(n), does not apply to visibility problems
inherent in the machinery, but instead governs driver conduct.  It argues that its
modification of the truck affected the truck's hauling capacity and that section
1910.178(a)(4) would be more specifically applicable to the problem alleged to exist.
   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 to
testimony that the truck could have been operated in reverse and that its horn could be
sounded at cross aisles.

The two Commission members are divided on whether the judge's decision should
be affirmed or reversed.[[4]]  Chairman Buckley would affirm the judge's conclusion
that the cited conditions do not constitute a violation of the cited standard.  The
standard 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.  This notifies the employer to require
certain conduct of the driver.  It does not pertain to inherent visual obstructions
caused by structural parts of industrial trucks as the Secretary contends. [[5]] No
provision of subsection 178(n) mandates particular structural specifications for the
vehicles.  Basic structural specifications are addressed in section 178(a),
including, among other things, the provision that trucks acquired and used after February
15, 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 Car
Tech's program for selecting and training its drivers.  The evidence indicates that
Car Tech selects well-qualified, licensed drivers, trains them specifically in the
operation of its vehicles, instructs them to keep a proper lookout for pedestrians and
trucks and requires its drivers to keep a clear view of the path of travel as required by
the cited standard.  The parties did not try, and there is no evidence of record to
support, a violation of any other standard.  Thus, Chairman Buckley would find that
Car Tech complied with the cited standard and would affirm the judge's decision.

Commissioner Cleary would find that the cited standard applies to the facts
because Car Tech did not and could not require the driver to keep a clear view of the Path
of travel. [[6]] Car Tech assigned its drivers to drive the truck with knowledge of
unavoidable visual obstructions both front and rear.  Thus, it failed to comply with
the standard.  In Commissioner Cleary's view, an employer may violate any of the
traveling rules of subsection 178(n) by having the driver work under conditions where the
driver cannot do what is required under the relevant rule.

Commissioner Cleary disagrees with the judge's conclusion that section
1910.178(a)(4) "appears more applicable" than the cited standard.  Section
178(a)(4) requires the employer to gain the manufacturer's prior written approval of
modifications affecting capacity and safe operation of an industrial truck and to change
the relevant instruction plates, tags and decals accordingly. Arguably, Car Tech's
modification of the forklift carriage by adding a gripper mechanism of its own making
affected the truck's capacity or safe operation.  But the requirement of
manufacturer's approval of structural changes does not preempt enforcement of the cited
visibility standard in Commissioner Cleary's view.

Commissioner Cleary also would reject Car Tech's contention that section
178(n)(4) is more specifically applicable.  The testimony that there were visual
obstructions to the rear of the forklift indicates the driver could not have kept a clear
view of the path of travel in reverse.  Commissioner Cleary reads sections 178(n)(4)
and (n)(6) together to require a clear view of the path of travel in whichever direction
the vehicle is operated.  Regulations are to be read as a harmonious whole where
possible.  E.g., Richards v. United States, 369 U.S. 1 (1962); NLRB v. Lion Oil Co.,
352 U.S. 282 (1957).  He also would conclude that the evidence demonstrates a serious
violation of the cited standard.[[7]]

To resolve their impasse on the merits of the citation and to permit the
parties to conclude this litigation, Chairman Buckley and Commissioner Cleary 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 under the Act and the Commission's Rules of Procedure to direct
review of a judge'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 decision becomes a
final order of the Commission and can be appealed by an aggrieved 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 final order of the Commission but is accorded the precedential value of an
unreviewed judge's decision.

FOR THE COMMISSION

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED:  OCT 22 1984

The Administrative Law Judge decision in this matter is unavailable in this
format.  To obtain a copy of this document, please request one from our 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 a clear view of the
path of travel.

[[2]] � 1910.178(a)(4) provides:

Modifications and additions which affect
capacity and safe operation shall not be performed by the customer or user without
manufacturers [sic] prior written approval.  Capacity, operation, and maintenance
instruction 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 cross aisles and other locations where vision is obstructed.  If
the load being carried obstructs forward view, the driver shall be required to travel with
the load trailing.

[[4]] As established by the Act, the Commission
is composed of three members.  Section 12(a), 29 U.S.C. � 661(a).  Under
section 12(f) of the Act, 29 U.S.C. � 661(e), official action can be taken by the
Commission with the affirmative vote of at least two members.  Because there is a
vacancy, the Commission currently has only two members.

[[5]] Moreover, the record does not establish
that a driver of the forklift could not keep a clear view of the path of travel.  The
judge made no finding with respect to this critical fact, concluding that the evidence
supported only a finding that an obstructed view existed to the right front of the
vehicle.  The breadth and depth of this obstruction was never credibly established.
  Various witnesses testified that a driver could overcome these obstructions by the
simple expedient of shifting positions.  Although this inspection was precipitated by
a fatal accident involving this machine, the Secretary disavowed any connection between
the accident and the alleged obstructed view to the right, successfully objecting to any
attempt by Car Tech to introduce evidence relating to how the accident occurred.
  There is no evidence of record, therefore, suggesting that the accident resulted
from an obstruction, but an inference that it did not.

[[6]] The judge found that "the evidence
presented clearly demonstrates a serious and dangerous situation which should no longer be
tolerated," and that "[t]he Respondent's employees were in the zone of danger
created by the Respondent's use of the forklift." The evidence fully supports those
findings, in Commissioner Cleary's view.  The photographs in evidence vividly depict
serious obstructions to the vision of the driver to the extent that the machine was
inherently dangerous.  The defense that the driver could see by moving around in his
seat is clear evidence of the obstructions.  Also, the OSHA compliance officer who
inspected Car Tech's workplace conducted a careful measurement to establish the extent of
the 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.  He
could not see any part of the person until the person was 78 feet in front the vehicle, at
which point the person's head came into view.  The vehicle's driver, LaLiberte,
testified that he did not disagree with the compliance officer's measurements and Car Tech
did not discredit the measurements.  LaLiberte acknowledged that the obstructions
prevented a clear view of the path of travel.

The driver could not leave the cab's seat when
driving.  LaLiberte testified that even if he moved around in his seat it would only
aid vision a little bit -- it would not eliminate the whole problem.  The vehicle's
former driver, Cave, did not not testify to the contrary. Both LaLiberte and Cave
testified that they had had at least one previous accident (not involving personal injury)
resulting from the obstructions.  None of Car Tech's other witnesses had driven the
vehicle and the judge properly noted at the hearing that little weight is due to their
opinions on the visibility issue.  Commissioner Cleary would find that 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 travel could not be maintained (see n. 6 supra), Commissioner Cleary would
find that Car Tech employees regularly had access to the hazards and that those hazards
were extremely serious, as the great weight of the forklift indicates.  Car Tech knew
about the obstructions because it had created 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, the Secretary has no
burden under specific standards to prove a feasible means of abatement, unless the
standard cited expressly creates such a burden of proof.  E.g., Bratton Furniture
Mfg. Co., 83 OSAHRC 30/A2, 11 BNA OSHC 1434, 1983-84 CCH OSHD � 26,538 (No. 81-799,1983).
  Even if there were such a burden, the Secretary met it here.  For example, the
judge found that "[a]ll witnesses agreed with the feasibility of using flagmen
equipped with two-way radios to the operator as one method of abatement of the
problem."  Thus, Commissioner Cleary would conclude that the Secretary has made
out a serious violation of the cited standard.