Georgia-Pacific Corporation (Commission decision, April 27, 1993)

Read the official release (oshrc.gov)

Plain-English summary

A Georgia-Pacific forklift carrying a 54-inch-high plywood load forward struck and fatally injured an employee who was crouched near a column in a heavily traveled plant aisle. The ALJ vacated the citation after interpreting the powered-industrial-truck standard to require a totally obstructed view of an upright pedestrian. The Commission reversed, holding that a load obstructs forward view when it blocks the operator's sight enough that the operator could reasonably fail to see and strike employees working in the travel path, including workers who are crouching or kneeling. It also rejected the company's vagueness argument and greater-hazard defense, finding no proof that alternatives or a variance were unavailable. The violation was affirmed as serious with a $480 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.178(n)(4)
• Outcome: The ALJ's vacation was reversed, and one serious powered-industrial-truck violation was affirmed with a $480 penalty.
• Key point: When a forklift load obstructs the operator's forward view enough to hide workers in the travel path, the driver must travel with the load trailing; the standard protects employees in all working positions, not only upright pedestrians.

Full text (OSHRC public release)

UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 1825 K STREET N.W.
4TH FLOOR
WASHINGTON D.C. 20006-l 246

FAX. cofvl (2021 634-4008
Rs 634 - 4008
..

SECRETARY OF LABOR,
..

Complainant,
. l

v.
.
.

• OSHRC Docket No. 89-2806
  .
  GEORGLA-PACIFIC CORPORATION, ;

Respondent.

DECISION
I

.

BEFORE: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.
BY THE COMMISSION:
Following an investigation by the Occupational Safety and Health Administration (“OSHX’) at the plywood manufacturing facility of Georgia-Pacific Corporation (“G-P”) in Talladega, Alabama, the Secretary of Labor (“Secretary”) issued to G-P one citation alleging a serious violation of 29 C.F.R. 6 1910.178(n)(4), which provides:
0 1910.178 Powered industrial trucks.
0 l 0 0

(n) Truveling. l 0 l l

(9
If the load being carried obstructs forward view, the driver shall be
requ&h
to travel with the load trailing.
The citation charged that on July 22, 1989, in the “[alisleway between number 1 press and skinner saw bins,” the operator of a forklift used to haul plywood was traveling in a forward direction while his view was obstructed by the load. The issues on review are whether the
Review Commission Administrative
Law Judge erred in rejecting G-P’s claim that the
standard was unenforceably
vague, and in concluding that the Secretary did not meet his
burden of proving that the load in question “obstruct[ed] forward view.” 2

I. Back~tw-td
G-P manufactures paper and wood products and has its principal ofice in Atlanta,
Georgia. In the “press area” of the Talladega plywood manufacturing plant, on July 22,
1989, a forklift truck transporting a load of plywood that measured 54 inches high (carried about 6 inches off the ground), 51 inches deep, and 99 inches wide, accidentally struck and killed a G-P employee who was crouched down while painting the lower part of a column.
The deceased employee, who did not regularly work in the press area, did touch-up painting at different locations around the plant.
The press area, which is located in the finishing and shipping departments,
includes
the intersection of two aisleways, one running past Presses No. 1 and No. 2 and the other running from the plant’s rail car line to the stacking area. At each of the two presses, sheets of wood are compressed to form plywood measuring four feet by eight feet across and of varying thicknesses. The plywood sheets are then unloaded from the press onto platforms,
or racks, awaiting removal by forklifts.
.

Once there are two loads, or “charges,” of plywood from a press on a platform, a forklift driver loads the two charges, which together measure 54 inches high, onto the forklift, and, carrying the plywood about 6 inches off the floor, transports the double load to the stacking area. During an &hour shift, forklifts make approximately 70 trips from one or the other press to the stacking area. When carrying a load of plywood, the forklifts travel about 25 to 50 feet from the presses, turn left into the heavily traveled aisleway, and then
proceed approximately 40 feet to the stacking area. A distance of approximately 50 feet
separated press no. 1 and the column where the forklift made the left turn to go in the direction of the stacking area. At this turn, the forklift struck the crouched employee who
was painting the column. The forklift at issue was a Caterpillar T-80D model, which is
substantially the same as the other forklifts in the area.
II. Testimolry and Judge’s Decision

A. Testimolty of G-P Employees
Donald Garrett, who was driving the forklift at the time of the accident, had operated forklifts in G-P’s Press Area for about six years and had been a forklift driver for at least five years before that. He testified as to what he saw at the time as follows:

-. -. . _ - . _ . . - .,.. ,..-- - --- .-----e
--..ww- 1 cw-^‘--‘- ---- ---...me----a --. - - --we -. _ .._... ---.- - -.e-c
--- - -T --c r.---,----,------r---rrr--~----- -w- ----mFJ
 3

Q: Mr. Garrett, as the operator of that forklift [on July 22, 19891 carrying that ‘D [SCinch high] load [about 6 inches off the ground], in your opinion, was your forward view obstructed by the load?
A: Yeah, I guess it was.
(Emphasis added.) When Garrett was asked on cross-examination if his view was “partially obstructed or totally obstructed,” he answered “[plartially” without further explanation of the extent of the obstruction being requested or given.
Garrett testified that “this accident was a terrible thing, but I still think it’s safer to go forward with it.” Garrett considered travel in reverse, or with the load trailing, to be less safe than going forward because he would have to look over his shoulder and thereby have a blind spot, and he would lose sight of the load and therefore lose assurance that he could make clearances. Although Garrett testified that he had been trained generally in how to operate a forklift, he answered in the negative when then asked if he had been trained in operating a forklift in reverse.
John D. Smith worked daily in the press area and was there on the day of the accident. His general job duties included assuring that the presses unloaded onto the racks properly. He testified that the double load at issue, measuring 54 inches high, was “one of the larger loads that we have,” and that for the larger size of plywood, only l-l/2 loads are carried on the forklift. Based on his daily observations, he testified that it was unsafe to operate the forklifts in a forward manner there because it was “congested” with “lots of traffic,” “a lot of people,” and “the loads are high.” Charles Jackson, Industrial Relations Manager and safety consultant at the Talladega
plant, acknowledged that G-P has a rule, discussed in its training videotape in evidence, that the forklift is not to move until all persons are clear. He testified that he had “no idea” if it had been followed on the date of the accident. When asked what precautions G-P had taken to protect pedestrians, Jackson responded that all the forklifts have strobe lights on top and, consistent with the first sentence of the cited standard,’ drivers are instructed to

‘The first sentence of section 1910.178(n)(4) provides:

The driver shall be required to slow down and sound the horn at cross aisles and other i locations where vision is obstructed.
 4

sound their horns when rounding blind comers. We note that there is no evidence in the record concerning the operation of the lights and horn on the particular forklift on the day of the accident. Jackson also testified that, later in the day on which the accident occurred, G-P instructed the forklift operators in the press area carrying the size of load at issue, 54 inches high, about 6 inches off the ground, to drive in reverse, with the load trailing.
B. Testimony by the Experts and the Compliance officer The issues in this case revolve around the phrase “obstructs forward view.” . An expert witness for each party testified, as did the compliance officer, on their interpretations of this phrase, and exhibits were introduced into the record. A large portion of the expert testimony concerned hypothetical situations and opinion as to whether it was generally safer to travel with the load forward rather than trailing. As discussed inpa, such testimony is not relevant to this case.
1. Secretary’s Expert Wtness and the Compliance Oficer Jimmy Lee Sloop, who had driven forklifts and managed forklift operators for many
years, as well as developed forklift training programs for various companies, opined that the forklift driver under the cited conditions should have trailed the load because his forward view was obstructed by the load. After noting that Webster’s dictionary defines “obstructs” as “blocks a path,” he testified that an operator’s view is obstructed if the operator could not see what was ‘7to 10 feet ahead, which .is the distance that it would take a forklift truck to stop in one second when it is going 5 to 10 miles per hour. He stated that he recommends this unwritten rule in his oral instructional presentation to forklift drivers. Sloop, who did not visit the Talladega plant, based his opinions on the photographic exhibits and the line-of-sight diagram that was prepared by OSHA and entered into evidence.
William Powers, Jr., the compliance officer who conducted the investigation at the plant, testified that, based on his observations and photographs of the plant, he concluded that forklift operator Garrett should have trailed the load because his forward view was obstructed by the load. According to Powers, a forklift operator’s view is obstructed if he or she could not see the floor ahead. More specifically, when the compliance officer, who was 6 feet tall, was sitting in the seat of the forklift during a demonstration at the plant, he could not see a person kneeling by the column from 14 feet away or less. 5

2. G-P’s Expert FWness
G-P’s expert witness was R. Kevin Smith, a registered ‘professional
engineer and
engineering safety consultant. He visited the plant and operated the forklift, which he was told was the one involved in the accident, in the area where the accident occurred. He also took measurements and photographs to show the view of safety manager Jackson while he was in the operator’s seat.2 He testified that the operator’s view of the crouching employee was not “obstructed” by the load because the cited OSHA standard, like its source standard,

ANSI B-56.1-1969, Safety Standard for Powered Ihdustial Trucks,” is “directed toward
operators in looking out for pedestrians.” He prepared a line of sight drawing to show that the operator’s view of standing pedestrians was not obstructed. He opined that an operator’s view is “obstructed” “’if you have a blockage so large that you can’t see any part

of a pedestrian, then you’d better go in reverse.” (Emphases added.) Acknowledging that the standard is not limited to his interpretation, he explained that his opinion was not based on any written
4 material, but rather on (1) what he termed a “realistic design standpoint,”
(2) the fact that probably most employees in the area were pedestrians walking or otherwise upright, and (3) the need for “some kind of reasonableness” because not all situations can be covered, such as an employee bending down to tie his shoe behind the forklift! He testified that the key is to assure that pedestrians do not place themselves in high traffic areas.
C. Judge’s Conclusions
At the hearing, the judge denied G-P’s motion to dismiss, which G-P based on the
alleged unenforceable vagueness of the standard. In his decision, the judge concluded that the Secretary had not met his burden of proving that the load “obstructs forward view”

2G-P’sexpert used Jackson, who was 5 feet 9 inches tall when standing, as his model because he was told that Garrett was about that height or maybe slightly taller. It was not established that Garrett’s height while sitting, or the length of the trunk of his body, was the same as Jackson’s.

3See 29 C.F.R. 5 1910.189. ANSI BS6.1-1969 was revised in 1975, but the section that corresponds to the standard here (section 604&&D.“)was not changed then or otherwise since 1969. G-P’s expert has been a member of the ANSI B56.1 Committee since 1983.

4G-P’s expert took issue with Sloop’s 7- to IO-foot rule, noting that the standard load for rating forklifts is 48 inches, which by his computations would not satisfy Sloop’s rule. 6

because, as G-P’s expert testified, that can occur only when the load prevents the dri”er from seeing any part of “pedestrians walking or standing in an upright position.” In addition, the judge discussed testimony that it was safer to travel with the load forward, and he concluded that “G-P clearly established that traveling forward with the [54-inch] load is safer than trailing the load.”
D. Issues on Review
The first issue on review is whether, as G-P argues, the cited standard is
unenforceably vague because the word “obstructs” is too general and fails to provide employers with fair notice of what the standard requires. The second issue is whether, as the Secretary contends, the judge erred in finding that in this case the Secretary had not established that the operator’s view was obstructed by the load?
III. Whether the Standard Provides Fair Notice An employer generally cannot be held in violation of the Act if it fails to receive prior
fair notice of the conduct required of it. E.g., Cardinal lkdusties, 14 BNA OSHC 1008, iOl1, 1987-90 CCH OSHD 128,510, p. 37,801 (No. 82-427, 1989), citing Diebold, Inc. v. Marshall, 585 F.2d 1327, 1335-39 (6th Cir. 1978). Neither section 1910.178(n) nor its source standard, ANSI B56.1.1969, Safety Standard for Powered Iiulustrial7iucks, see supra note 3, defines the term “obstructs.” The Secretary asserts that a load can render an operator’s view “obstructed” if the operator cannot see employees in a bending, kneeling, or sitting position.
A. G-P’s Arguments
G-P contends that the standard is unconstitutionally vague because it fails to provide
employers with fair notice of what conduct the standard requires, citing, among other cases, Diamond Roofing Co. v. OSHRC, 528 F.2d 645, 649 (5th Cir. 1976). It asserts that there is no source, such as industry custom or practice, that would permit G-P to determine the definition of “obstruct.” Nevertheless, G-P acknowledges that many OSHA standards are broad because the industry standards adopted by OSHA were merely advisory. G-P contends that, even if the standard at issue here is not unenforceably vague, the Secretary’s admitted arbitrary application of the standard violates due process, citing Bopp Foee Co.

5G-P filed a motion for oral argument, which the Commission denied by its order of November 13, l!B2. 7

v. Secretary, 657 F.2d 119, 122-23 (7th Cir. 1981) (OSHA cannot use enforcement action to define general hearing conservation standard); L.R WZlllkon& Sons, Inc. v. Donovan, 685 F.2d 664, 675 (D.C. Cir. 1982) (OSHA cannot interpret regulations to mean what was intended but not adequately expressed). Finally, G-P contends that the vagueness and arbitrariness of the Secretary’s application of the standard is shown by the divergent views expressed by the compliance officer’s “see the floor in front” rule, Sloop’s 7- to 10 feet ahead rule, and the Secretary’s assertion on review that the operator’s view is “obstructed” when employees kneeling, sitting, or bending over in front of a forklift cannot be seen because of the load. G-P contends that the last interpretation would require operators always to travel in reverse.

B. Discussion
The Commission evaluates an unconstitutional vagueness claim by viewing the words of the standard in context, not in isolation, and by judging the alleged vagueness not from the face of the standard, but from its application to the facts of the case. .Onnet Cop., 14 BNA OSHC 2134, 2135, 1991 CCH OSHD ll 29,254, p. 39,200 (No. 85-531, 1991), cited in CBI Services, ‘Inc., 15 BNA OSHC 2046, 2048, 1992 CCH OSHD II 29,924, p. 40,859 (No.

90-1719, 1992); Cargill, Inc., 15 BNA OSHC 2149, 2152, 1993 CCH OSHD ll 29,941, p. 40,912 (No. 90-3191, 1993). To provide fair notice, standards are not required to be drafted with mathematical precision or impossible specificity. Cargill, I&, 15 BNA OSHC at 2152, 1993 CCH OSHD at p. 40,912; Omret, 14 BNA OSHC at 2135, 1991 CCH OSHD at p. 39,200; see Diebold’, Inc. v. Marshall, 585 F.2d at 1336; Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230, 233 (5th Cir. 1974). Furthermore, a standard is not vague just because it requires the exercise of judgment to apply it. Allis-Chalmers Cop. v. OSHRC, 542 F.2d 27, 30 (7th Cir. 1976); Dravo Cop., 7 BNA OSHC 2095, 2098, 1980 CCH OSHD ll 24,158, p.

29,367 (No. 16317, 1980).
We must determine whether the meaning of the word “obstructs,” as it is used in the cited standard, can reasonably be determined based on the language and purpose of the standard and the physical conditions to which it applies. See Omet, 14 BNA OSHC at 2136, 1991 CCH OSHD at p. 39,200. The purpose of the standard is to prevent a forklift operator 8

from hitting an employee working in the path of a forklift when the operator cannot see the employee due to the size of the load being carried forward. The dictionary definitions of “obstruct” support this view. One dictionary defines “obstruct” as meaning “to block from sight; to be or come in the way of (a view, passage, etc.).” Random House Dictionary 995 (unabridged 1971). Another defines “obstruct” as “to cut off from sight: shut out.” Webster3 l7aird NW International Dictionary 1559 (unabridged 1986). Based on the above, we conclude that, as used in the cited standard and applied to the physical conditions of G-P’s press area, “obstructs” means that the load being carried forward blocks the operator’s view such that it is reasonably foreseeable that the forklift operator could not see and could therefore hit employees working in the area, thus endangering employees that the standard seeks to protect.6 See Onnet Corp., 14 BNA OSHC at 2136, 1991 CCH OSHD at p. 39,200 (“near” in 29 C.F.R. 5 1910.179(n)(3)( XIl
) means “close enough to the path of travel that it
is reasonably foreseeable that [employees] could be hit by the load [of a crane] if the load should fall”). See also Cleveland Consolidated, Inc. 13 BNA OSHC 1114, 1116-17, 1986-87 CCH OSHD lf 27,829, p. 36,428 (No. 84-696, 1987) (“proximity” in 29 C.F.R. 5 1926.400(c)(l) defined by standard’s reference to proximity to electric power circuit such that employee may contact it in the course of work). We recognize that, in applying this definition, the results will vary depending on such factors as the size of the load, the speed at which the forklift is traveling, and the number and positions of employees working in or near the aisles of the press area. See Omzet, 14 BNA OSHC at 2136, 1991 CCH OSHD at p. 39,200.
G-P mentions that industry custom and practice may be referred to in determining
the meaning of a vague term. However, there is no evidence in the record from either party on industry custom, and the Secretary is not required to introduce such evidence where a specific standard, such as section 19 10.178(n), is at issue. See Cleveland Consolidated, 13

6By comparison,the types of standards that have been found unenforceably vague are quite different than the standard at issue here, for example: Kropp Forge V. Secretary, 657 F.2d at 122 (fi 1910.95(b)(3) required only “a continuing effective hearing conservation program shall be administered,” while the citation listed six rather specific testing, referral, and training considerations); and Diamond Roofing v. OSHRC, 528 F.2d at 648 (0 1926SOO(d)( l), requiring guardrails around “open-sided floors,” does not apply to open-sided roofs, based on various definitions and headings in that subpart).
-
9

BNA OSHC at 1117 n. 3, 1986-87 CCH OSHD at pp. 36,428.29 (because
section 1926.4OO(c)(1) is a specific standard, not necessary to refer to industry practice for meaning of “proximity”).’
For the reasons above, we conclude that section 1910.178(n)(4) provides fair notice of what the standard requires. The next question is whether the Secretary has met his burden of proof.
IV. Whether the Secretary Proved that the Opcrutw ‘s View Was Obstructed To establish a violation, the Secretary must prove, by a preponderance
of the
evidence, that the cited standard applies, employees were exposed to a hazard, the standard was violated, and employer had knowledge. E.g., Astra Plramaceutical Prod&, 9 BNA OSHC 2126, 2129, 1981 CCH OSHD II 25,578, pp. 31,899.90 (No. 78-6247, 1981), aff’d inpetinent part, 681 F.2d 69 (1st Cir. 1982). The only element at issue here is whether the standard was

violated. _To prove that the Secretary must establish that the forklift driver’s forward
view

was “obstructed” by the load.
A. Jdgk’s Decisiou
The judge found, relying on the testimony of G-P’s expert, that the Secretary had not
proven that the driver’s view was obstructed. He found that, in order to establish a violation of this standard, the operator’s view of “pedestrians,” defined by the judge as “employees working and walking in the area,” must be totally obstructed. The judge concluded that the testimony of G-P’s expert should be accorded greater weight than Sloop’s. He labelled Sloop’s lO-foot rule as “arbitrary and without a reasonable basis.“’
The judge stated that the cited standard’s requirement to trail the load when forward
view is obstructed by the load is- consistent with the requirement in 29 C.F.R. 5 1910.178(n)(6) that the operator must “keep a clear view of the path of travel.” The judge further noted the first sentence (G-P was cited under the second sentence) of section

‘In Cleveland, the Commission considered relevant precedent of the Eleventh Circuit. See 13 BNA OSHC at 1117 n.3, 1986-87 CCH OSHD at p. 36,428 n.3. Like Cleveland, this case may be appealed to the Eleventh Circuit because G-P’s principal office is in Georgia and the cited condition is in Alabama.

8He particularly relied on a rather confusing interchange of hypothetical questions and answers that Sloop had with G-P’s counsel concerning one’s view while driving an automobile at 60 miles an hour. 10

1910.178(n)(4), see supra note 1, shows that the standard contemplates forward operation of the forklift even while the view is obstructed. He concluded:
If the pertinent provisions in this case were intended to apply to partial obstruction, it would appear that the standard would have referred to its applicability to partial or limited obstruction. In the absence of such limiting words, it must be assumed that the reference is to a total “obstructed view.” . . . 0
The words “obstructs forward view,” as used in 6 1910.178(n)(4) are directed toward protecting employees moving around in the area from being struck by a forklift. It is intended to apply to pedesrrians waking or standing in an upright position where the operator’s view is totally obstructed of the person. If the operator will at all times have a clear view of some part of an employee in an upright position, the operator can proceed in a forward direction. The line-of-sight drawings prepared by both parties clearly show that employees in an upright position in the press room or in the aisleways are always partially visible. The alleged violation is vacated.
(Emphases added). He stated, as G-P’s expert opined, that it was necessary to have rules to keep employees working in the area out of the paths of forklifts. He also mentioned that G-P had a “good training program” for its forklift operators, which the compliance officer did not find deficient.
B. Discussion
We find that the Secretary’s prima facie showing that the standard was violated was
established by the testimony of forklift operator Garrett. As noted above, when Garrett was asked if his forward view were “obstructed by the load” on July 22, 1989, he replied, “Yeah, I guess it was.” He later clarified that the obstruction was partial, but he did not waiver in his position that his view was obstructed by the load or ask for a definition of “obstruct” before answering those questions. While the issue before the Commission is not what caused the accident, but rather whether the cited OSHA standard was violated, the circumstances of an accident may provide probative, or even dispositive, evidence of whether a standard was violated. See, e.g., Cleveland Consolidated, Inc., 13 BNA OSHC at 1116 n. 1, 1986-87 CCH OSHD at p. 36,427 n.1 and cases cited therein. Although Garrett’s testimony is fairly minimal, it does establish a prima facie showing that the standard was violat.ed. See Regina Constr., 15 BNA OSHC 1044, 1049, 1991 CCH OSHD ll 29,354, p. 39,469 (No. 870 1309, 1991); see also Astra Phamaceutical Prods. v. OSHRC, 681 F.2d 69, 73 n.9 (1st Cir. 11

1982). Moreover, there is other testimony pertinent to a finding that Garrett’s view was obstructed.
The compliance officer and expert Sloop both testified that, in their opinions, based
on the evidence, operator Garrett’s view was obstructed on the day in question and he should have trailed the load.’ General support can be found in the testimony of John Smith, the employee who performed general duties in the press area, that it was one of the largest loads carried and that it was unsafe to go forward with it in that congested area.
G-P did not rebut Garrett’s testimony that his view was obstructed by the load, albeit
partially, thereby permitting the Secretary to prove his case by a preponderance of the evidence despite his fairly minimal showing. See Regina Constr., 15 BNA OSHC at 1049, 1991 CCH OSHD at p. 39,469. Instead, it introduced considerable testimony about the general hazards of traveling in reverse with the load trailing and studies done by G-P’s expert Smith and G-P’s safety manager Jackson, which theorized about operators in general and their lines of sight. This evidence was not related to the specific circumstance at issue, that being operator Garrett’s view on the day in question.
The judge’s reliance on the “upright pedestrian” interpretation of G-P’s expert is misplaced, because, first of all, that expert himself admitted that section 1910.178(n)(4) does not limit application to his interpretation of “obstructed.” Moreover, as the Secretary notes, the standard does not mention the word “pedestrian,” much less define the term or draw a distinction between standing pedestrians and pedestrians in some other attitude such as crouching, kneeling, or sitting. See Daniel Consn:, 10 BNA OSHC 1549, 1554, 1982 CCH

‘These factual circumstances are all that are at issue here. The answers that Sloop and the compliance officer gave to hypothetical questions are of no significance to the issue at hand. As the Commission stated in Dravo, 7 BNA OSHC at 2098 n. 10, 1980 CCH OSHD at p. 29,367 n.lO:

There can be no assurance that two people, even those with expertise, always will agree on the application of a standard that cannot be applied with mathematical precision. Individual views necessarily influence a person’s judgment. Thus, it is not surprising that the Secretary’s witnesses did not agree on the application of the ventilation standard to a few spaces hypothesized by Dravo’s counsel at the hearing. Nor is the disagreement grounds for concluding that the ventilation standard is vague. The relevant inquiry is whether reasonable persons would agree as to the application of the ventilation standard to the circumstances of this case. As noted previously, there was no disagreement among the Secretary’s witnesses as to this issue.
 12

OSHD ll 26,027, p. 32,674 (No. 16265, 1982) (eye protection standard at 29 C.F.R. 8 1926.102(a)( 1) covers “employees”-- does not distinguish between welders and welders’ assistants); and R Zoppo Co., 9 BNA OSHC 1392, 1395, 1981 CCH OSHD lI 25,230, p. 31,183 (No. 14884, 1981) (definition of term “magazine” in explosives standard at 29 C.F.R.

5 1926.900(n) does not distinguish between permanent and temporary storage). Employees kneeling or crouching while performing a certain task will often be less mobile and therefore less able to get out of the truck’s path in a hurry. C’ Dowvan v. A. Amorello & Sons, 761 F.2d 61,64 (1st Cir. 1985), rev’g 11 BNA OSHC 2044, 1984-85 CCH OSHD lI 26,940 (No. 79-4703, 1984) (29 C.F.R. 0 1926.609(a)(9)( ii ), re q uiring reverse signal alarm before moving earthmoving equipment in reverse where obstructed view to rear; “driver’s visibility is even more limited, of course, with respect to someone sitting or bending over his tools”). “Standards are intended to protect against injury resulting from an instance of inattention or bad judgment as well as from risks arising from the operation of a machine.” Trinity Ihdw., Inc., 15 BNA OSHC 1579, 1593-94, 1992 CCH OSHD ll 29,662, p. 40,196 (No. 88. 1545, 1992 (consolidated)).
Furthermore, the judge was mistaken in giving dispositive weight to the . personal
opinion of G-P’s expert regarding ANSI B56.1.1969, apparently at least in part on the basis of his membership on the ANSI B-56.1 subcommittee. G-P’s expert joined that subcommit- tee in 1984, which was 15 years after issuance of the 1969 ANSI B56.1, the source of the OSHA standard at issue here, which has not been changed since it was first promulgated. Also, he never stated that his opinion was in fact that of the subcommittee, but instead qualified it as his own opinion. See Anoplate Corp., 12 BNA OSHC at 1678, 1683 n.6, 19860 87 CCH OSHD ll27,519, p. 35,682 n.6 (No. 80-4109, 1986) (affidavit not probative of intent of drafters of ANSI 29.1 (open-surface tanks) because affiant did not serve on source standard committee).
As the Secretary notes, just as the standard does not include the term “partially,” neither does it include the term “totally.” It appears that the judge’s reliance on the first sentence of section 1910.178(n)(4) is misplaced because, as the Secretary maintains, the obstructions referred to in the first sentence are external to the forklift and its load, such as 13

columns, which would obstruct the operator’s view no matter whether travel was forward or in reverse, or whether any load was being carried.
Moreover, we find no basis for the reliance of G-P’s expert on “a realistic design
standpoint” and “the probability” that only walking pedestrians could be in the path of the forklift. He acknowledged that there would be “a problem” if someone enters the area in front of the truck “either kneeling or something.” The cited situation does not involve an employee suddenly entering the operator’s blind spot, for the forklift path at issue involved turning from one aisle into another, and the employee could be in place in the second aisle
before the forklift turns the corner?
G-P’s argument that an operator would always be
able to see part of a standing or walking pedestrian assumes the basis upon which their studies were done, that employees are all an “average height” of 5 feet 9 inches or taller and that pedestrians never have occasion to lower their heads to look down and decrease their vertical height.
Lastly, we note that, as the judge found, the evidence showed that G-P had a good
training program in general for forklift operators. For example, Terry Williams, G-P millwright and local union president, testified that in the past he had provided on-the-job training for forklift operators on the night shift, and that included training on trailing the load as well as forward travel. However, operator Garrett testified that he had not been trained to travel in reverse. Garrett’s testimony was not specifically rebutted by any of G-P’s evidence. Therefore, we find that, with regard to this particular forklift operator, G-P’s training of Garrett was questionable.
Based on the evidence noted above specific to the July 22,1989, incident and the lack of direct rebuttal by G-P, we conclude that the Secretary established, by a preponderance of the evidence, that G-P violated the standard because forklift operator Garrett’s view was obstructed by the forward load.

“Moreover, G-P’s reliance on the opinion of one Commissioner in the split decision in Capenter Technology, 12 BNA OSHC 1035, 1984-85 CCH OSHD II 27,087 (No. 81-647, 1984) is misplaced because it has no premdential value, involved a different standard, and concerned obstructions that were primarily the structural parts of the forklift itself. 14

V. Judge’s Other Finding
In its answer, G-P raised the affirmative defense that it would be a greater hazard for
an operator to travel with this size of load trailing than to travel with it in a forward direction. The Commission has recognized that a cited employer can establish a greater hazard defense by showing: (1) the hazards created by compliance with the standard are greater than the hazards of noncompliance; (2) alternative means of protecting employees from the hazards are not available; and (3) a variance is not available or application for a variance is inappropriate. E.g., Seibel Modem Makfactwing & Welding Corp., 15 BNA OSHC 1218, 1225, 1991 CCH OSHD ll 29,442, p. 39,681 (No. 88-821, 1991); see Waker Towing, 14 BNA OSHC 2072, 2078 & n. 10, 1991 CCH OSHD ll 29,239, pi 39,161. & n. 10 (No. 87-1359, 1991).
*After his rejection of the Secretary’s assertion that the driver’s view was obstructed within the meaning of the standard, the judge concluded that “G-P clearly established that traveling forward with the load is safer than trailing the load,” noting that “employees were determined to be in a more hazardous position” if the load was trailed.
Therefore, he essentially found that G-P had established the affirmative defense of greater hazard without discussing any of its specific elements.”
We agree with the Secretary that G-P did not establish that to travel in reverse with
this particular load trailing would be a greater hazard than to go forward with it. Even assuming that G-P established the first element,” G-P did not prove that it applied for a

“In Dole v. Williams Entepiw, Inc., 876 F.2d 186, 188 & n.2 (D.C. Cir. 1989), the court applied the “now infamous ‘duck test,’ ”

WHEREAS it looks like a duck, and WHEREAS it walks like a duck, and WHEREAS
it
quacks like a duck, WE THEREFORE HOLD that it is a duck.

Under that test, the court determined that, in his effort to afford some equitable relief, the judge disposed of the case on a greater hazard theory without considering whether the specific elements of that defense had been established. As did the judge in Wkmzs, the judge in this case also made what sounds like a greater hazard finding without discussing whether that affirmative defense’s elements were proven.

12G-P presented considerable testimony and exhibits concerning its “studied determination,” based on complaints received from forklift drivers in the press area regarding the post-accident rule, that trailing the load was more hazardous than going forward with it. Williams, G-P millwright and union president, testified that in his opinion, going forward with the load is safer because he can see better. He stated that the union itself has not taken a position on this issue. Testimony opposing that of G-P’s witnesses included the - (continued...)
-
15

variance or that a variance application would have been inappropriate,
nor did it establish that alternative means of protecting employees were not available.
Moreover, we note that the Secretary does not have the burden of proving that it is safer to operate a forklift in reverse with the load trailing when forward view is obstructed, because section 1910.178(n)(4) is a specific standard that presumes a hazard if its terms are not met. See, e.g., Trinity Ikdus., Inc., 15 BNA OSHC
1481, 1486, 1992 CCH OSHD ll 29,582, p. 40,037 (No. 88-2691, 1992).
The judge’s statements that the Secretary’s interpretation would lead to forklift
operation that is neither “efficient” nor safe have very little, if any, bearing on the resolution of this case. Both G-P and the judge appear to exaggerate the difficulties in forklift operation allegedly posed by the standard. We-note that safety manager Jackson testified that, at the time of the hearing, G-P had been trailing loads for nine months without any loss in production compared to when the loads were carried forward. Furthermore, G-P did not raise the affirmative
. defenses of infeasibility and unpreventable employee misconduct.
We conclude that the judge erred in essentially finding that G-P had proven the greater hazard defense. We note that his finding was not dispositive of the case.
VI. Characteniation and Penalty
We characterize the violation as serious because there was a substantial probability that death or serious physical harm could result from the violative condition. See section 17(k) of the Act, 29 U.S.C. 5 666(k).
The Secretary proposed a penalty of only $480 for the violation, primarily in light
of G-P’s good faith efforts in assisting the compliance officer during the investigation and in instituting rules after the accident requiring forklift drivers of the size of load in question to travel in reverse. Having independently considered the factors in section 17(j) of the Act, 29 U.S.C. 0 666(j), especially the good faith factor, we assess a penalty of $480.

Secretary’s expert Sloop, who stated that there are no more dangers in trailing the load than in going forward because the forklift can be operated just as sharply either way. 16

It is so ordered.

Edwin G. Foulke, Jr.
Chairman

Commissioner

Velma Montoya
Commissioner
Dated: April 27, 1993
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET NW
4TH FLOOR
WASHINGTON, DC 20006-l 246

FAX :
COM (202) 634-4008
FTS (202) 634-4006

..
SECRETARY OF LABOR, ..

Complainant,

v. Docket No. 89-2806

GEORGIA-PACIFIC
..
CORPORATION,
..

Respondent.
..

NOTICE OF COMMISSION
DECISION

The attached decision by the Occupational Safety and Health Review Commission was issued on April 27,1993. ANY PERSON ADVERSELY AFFECTED OR AGGRIEVED WHO WISHES TO OBTAIN REVIEW OF THIS DECISION MUST FILE A NOTICE OF APPEAL WITH THE APPROPRIATE FEDERAL COURT OF APPEALS WITHIN 60 DAYS OF THE DATE OF THIS DECISION. See Section 11 of the Occupational Safety and Health Act of 1970, 29 U.S.C. $ 660.

FOR THE COMMISSION

April 27, 1993
Date
c
/ I-f Darling, Jr.
Rdy
Executive Secretarv #
Docket No. 89-2806

NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N-W.
Washington, D.C. 20210

George Palmer, Esq.
Associate Regional Solicitor
Office of the Solicitor, U.S. DOL
Suite 201
2015 2nd Avenue North
Birmingham, AL 35203

Charles H. Morgan, Esquire
Alston & Bird
One Atlantic Center
1201 West Peachtree Street
Atlanta, GA 30309-3424

James D. Burroughs
.
Administrative Law Judge
Occupational Safety and Health
Review Commission
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309-3119
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825
K STREET N.W.
4TH FLOOR
WASHINGTON DC. 20006-l 246

FAX
COM 1202) 624 - ::,‘1;,7

Secretary of Labor, . t=T-S 634 - 4008

Complainant,
I
*
V. .
Docket No. 89-2806

Georgia-Pacific Corporation, :
Respondent.
:

NOTICE OF DOCKETING

The Administrative Law Judge’s Report in the above referenced case was docketed with the Commission on July 10, 1991. The decision of the Judge will become a final order of the Commission on August 9, 1991 unless a Commission member directs review of the decision on or before that date. ANY PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW. Any such petition should be received by the Executive Secretary on or before July 30, 1991 in order to permit sufficient time for its review. See Commission Rule 91 s 29 C.F.R. § 2200.91.

All further pleadings or communications reaardina this case shall be addressed to: u u

Executive Secretary
Occupational Safety and Health
Review Commission
1825 K St., N.W., Room 401
Washington, D. C. 20006-l 246

Petitioning parties shall also mail a copy to:

Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210

If a Direction for Review is issued by the Commission, then the Counsel for Regional Trial Litigation will represent the Department of Labor. Any party having questions about review rights may contact the Commission’s Executive Secretary or call (202) 634-7950.

FOR THE COMMISSION
g& #! Ag&&$$
Julv 10, 1991
Date
Ray H. Darling, Jr.
Executive Secretary
Docket No. 89-2806

NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

George Palmer, Esq.
Associate Regional Solicitor
Office of the Solicitor, U.S. DOL
Suite 201
2015 2nd Avenue North
Birmingham, AL 35203

Charles H. Morgan, Esquire
Alston & Bird
One Atlantic Center
1201 West Peachtree Street
Atlanta, GA 430309-3424

James D. Burroughs
Administrative Law Judge
Occupational Safety and Health
Review Commission
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309-3119
 UNITED STATES OF AMERICA
OCCUPAT IONAL SAFETY AND HEALTH REV IEW COMMISSION
1365 PEACHTREE STREET, N-E.. SUITE : 240 ATLANTA, GEORGIA 30309-31 I g

PHONE: FCX
COM (404) 347-4197
COM 14G4) 347-01'3
FE 257-4086
mS 257-0113

SECRETARY OF LABOR,
1
1
Complainant,
1
1
v. 1 OSHRC Docket No. 89-2806 _
1
GEORGIA-PACIFIC CORPORATION, 1
1
Respondent.
1

APPEARANCES:

.
Cynthia Welch-Brown, Esquire, Office of the Solicitor, U. S. Department of Labor, Birmingham, Alabama, on behalf of complainant

Robert H. Buckler, Esquire, and Charles H. Morgan, Esquire, Atlanta, Georgia, on behalf of respondent

DECISION AND ORDER

                 Burroughs,              Judge:                 The         Georgia-Pacific              Corporation
    (*'G-P"), a                   paper         and     wood          products            manufacturer       based        in

Atlanta, Georgia, contests a serious citation emanating from an

   accident             occurring                at    its Talladega,                    Alabama,    facilities          on
   July          22,      1 989     l           Compliance                Officer         William    Powers,         Jr.,
   conducted             an        investigation                 at G-P's               facilities   in Talladega,

Alabama, on July 25, 1989.
The accident involved the operation
of a forklift truck transporting plywood within the plant. An
employee was accidentally struck and killed.
 As a result of the investigation, G-P was issued a

citation on August 14, 1989, alleging a serious violation of 5

1910.178(n)(4) in that:

[ItsI industrial truck driver(s) were not required to travel with a load trailing whenever the load obstructed forward view.

G-P defends on two grounds: (1) the standard is unenforceably

vague under the Fifth and Sixth Amendments of the Constitution,

and (2) the load of plywood carried by the forklift was not SO

obstructive as to require the operator to travel with the load b trailing.

  The       Talladega         plant        manufactures           plywood               which      is

transported within the facility by forklift trucks. The

citation describes the area of the alleged violation as the

VUaisleway between number one press and skinner saw bin&L This particular area includes an intersection at the end of the

aisleway between the No. 1 and No. 2 presses and theD 0areas

marked Qtorage" and %pecialty saw" (Jt 0 Ex l
1 )
0 The area

around this intersection is referred to as the "press area" and

is in the finishing and shipping departments of the Talladega

facility.

  There      are two plywood presses                   in the press area.                     After

sheets of wood are compressed to form the plywood, it is stacked on platforms to be removed by the forklifts. The platforms are located in the aisleway between the presses and

the specialty saw (Jt. Ex. 1).
After two loads or "chargeS" of

2
plywood from a press have. accumulated, a forklift operator

loads the two charges of plywood and carries them to the

stacking area. There are a number of persons who work in the

press area and are exposed to the forklifts (Tr. 10).

Approximately 70 trips are made by the forklifts from the

presses to the stacking area during one eight-hour shift at the

facility (Ex. R-2). Forklifts and pedestrians also travel

extensively along the aisleway running from the stacking area to the rail car line (Ex. R-2). When carrying a load of plywood from the presses to the stacking area, the forklifts

travel approximately
25 to 50 feet, depending upon which.press

the operators travel from, enter the heavily traveled aisleway

running from the stacking area, and travel approximate&y 40 feet to the stacking area (Tr. 34, 39; Ex. R-2). G-P operates several forklifts in its facility, but all are substantially

similar to each other. The particular forklift which is the
subject of the citation at issue is a Caterpillar Model .T-80D

lift truck (Tr. 38).

    The    loads     of plywood         carried    by the        forklifts      from the

presses are of roughly uniform size. The presses produce plywood four feet by eight feet across and of varying thickness

(Tr0 11 I 46) 0 The two Vhargesll which are picked up by a
forklift from the press platform range from approximately 50
inches to 54 inches high (Tr. 14, 138). After the forklift
operator loads the two Vharges/@ the operator transports the load approximately six inches above the floor (Tr. 12, 25). ,

3
 Subsequent to the accident and prior to the investigation,

G-P instituted a rule requiring forklift operators who remove the plywood from the press area to the stacking area to travel

with their load trailing (Tr. 43-44, 90-91). Shortly after the practice was instituted, the management of the Talladega

facility began receiving complaints from the forklift operators

and the union that trailing the load created a more hazardous

environment than when traveling in a forward direction (Tr. 900

91) l As a result of the complaints and G-P's own

investigation regarding the safety of trailing the load, it

decided to contest the citation. The investigation of the
complaints convinced
G-P that traveling in reverse in Ahe
press area with a load 54 inches in height was more dangerous

than traveling in a forward direction
(Tr. 90-94).

The particular load carried on July 22, 1989, for which

respondent was cited was 54 inches high, 51 inches deep and 99

inches wide (Tr. 39; Ex. R-21). The load was being carried

six inches above the floor in a forward direction from the

presses to the stacking area (Tr. 12: Ex. R-2l)l.

The driver operating the forklift which was the subject of
the citation is approximately
5 feet 9 inches tall (Tr. 135).

An individual of that height sitting in the operator% seat of

1

Any further reference to the load hereinafter refers to the same measurements as those of the July 22, 1989, load, ,i.e., the plywood was carried at a total height of 60 inches.

4
-

1 the forklift in question has an eye level height of 73 inches

(EX l R-21). Under the circumstances, the forklift operator's forward view of a s-foot g-inch tall pedestrian could never be totally obstructed by a 600inch high load (Tr. 83-84, 138, 159;

Ex l R-9 thru 11, 14-21). Even when an average height pedestrian2 (5 feet 9 inches) is standing directly in front of a 600inch high load, a forklift operator can see at least nine inches of the pedestrian's body (Tr. 138; Ex. R-11, 20-21).

David Garrett, who was operating the forklift involved in the accident, when asked if his forward view was obstructed by
the load, stated (Tr. 25): "Yeah, I guess it was" (Tr. 24-25).

Garrett testified
that prior to the accident on July 22, 1989,

G-P had left the decision to the forklift operator to determine
whether it was safer under the circumstances faced by the
operator to travel forward or in reverse. Prior to the

accident, he operated the forklift in a forward direction (Tr.

26) 0 Garrett agrees with G-P that traveling forward with the load is safer than traveling in reverse.
Compliance Officer William W. Powers, Jr., testified that

he believed it to be hazardous to operate the forklifts with
the cited load in a forward direction; however, in explaining his decision, it was evident that Powers gave no consideration to the hazards of trailing the load (Tr. 42). He admitted on

           2

   The word **pedestrian** is                        used    to    refer    to   employees

working
.)r and walking in the area.
5
 -

cross-examination that he had no training in forklift

operations, that he had never operated a forklift, and had

made no study as to the specific traffic patterns of the press

area (Tr l 46-47). When he arrived at the site, G-P was
already trailing the load.
The fact that G-P was trailing the

load may have influenced his opinion since his recommendation

was consistent with the practice
G-P had already instituted

(Tr0 43) I but later determined to be more hazardous than proceeding in a forward direction.

Powers measured
the size of the load transported by the

forklift at the time of the accident and the forward line of

sight of an operator of a forklift with the same load. Based
on these measurements
and his observations, he concluded it to

be hazardous to travel forward in a forklift with the load (Tr. 38-40, 42) 0 There is no evidence that, in reaching his conclusion, Powers took into consideration the difficulties of
traveling in reverse. While opining that traveling forward
with the load of that size is hazardous, Powers admitted he

could make no determination as to what point a load becomes so
large that it is hazardous to travel forward with the load (Tr.

50-51, 58). He acknowledged that his determination that the
forklift operator had an obstructed view was a totally
subjective determination
(Tr. 51).

   Jimmy         Lee    Sloop,        an    expert      in    the    field      of     powered

industrial truck operations
(Tr. 64), testified that a forklift

operator's forward view would be obstructed by a load 54 inches

6
Y

high. Although tendered            as an expert to                 testify       regarding
G-P’S     forklift       operations      and           the       alleged    violation       of   5

1910.178(n)(4), sloop acknowledged                        that he had         never visited

the     Talladega       facility      nor         made       a    request     to    visit     the

facility,      had     no idea of the amount of traffic                           in the press

area,    had    no     discussion     with         any    employees         who    operate    the

forklifts in question, and had never operated a forklift with a

540inch load carried six inches above the floor in a forward or

rearward manner (Tr. 72-74).
I~
G-P contends that a forklift carrying a load 54 inches in c-

height    and     six    inches      above        the    floor      does     not    present      an
**obstructed view" under             5 1910.178(n)(4).                 In support of its
position,      G-P presented         testimony           from Charles J. Jackson,                G-

P's industrial relations manager at Talladega; Terry Williams,
president of the local union: and R. Kevin Smith, a mechanical
engineer and forklift safety expert.

        Jackson        has    been    employed            for       seven    years     as     the

industrial relations manager for the Talladega facility and is

responsible       for safety         at the        facility.          His duties        include

preparing and interpreting safety rules and regulations for the
plant (Tr. 87-88). After the accident of July 22, 1989, and

subsequent        to    G-P   voluntarily              instituting         a rule    requiring

forklift operators to travel in reverse in the press area when
carrying a 540inch load, Jackson, along with the plant manager
and the supervisors of the forklift operators, began receiving
complaints from the operators and the union that the new rule

7
created a more hazardous environment (Tr. 90-91). Jackson

explained that the concern of the employees was that driving in reverse with such a load created a greater obstruction to their

view than traveling forward (Tr. 106). As a result of the

complaints, Jackson conducted a time and motion study of the

forklift and pedestrian traffic in the press area of the facility (Tr. 91-92). He observed the press area for an entire eight-hour morning shift that was comparable to the other two shifts at the facility and recorded the pattern of the fo.rklift

and pedestrian traffic (Tr. 92).
Based upon his knowledge of safe operations and conduct in G-P% Talladega plant, discussions with the forklift operators, and the study of the work performed and the traffic patterns of the press area, he agreed with the operators that it was safer to operate a forklift in a forward direction when carrying a
540inch load six inches above the floor (Tr. 93-94). He

concurred with the operators* claim that their vision was .

limited when traveling in reverse, particularly their

peripheral vision (Tr. 106). He based his concurrence on the

time and motion study conducted by him (Tr. 93). His study

showed that the operators had to back into a high traffic aisleway and when backing the load, the operators looked towards the turn in order to negotiate the corner (Tr. 91, 93). The majority of the traffic in this area, however, comes from the opposite direction; thus, the operator's view of a large amount of traffic is obstructed when traveling in reverse (Tr. 91, 93).
The president of the union, Terry W. Williams, testified

that he also believed it to be safer to travel forward in a

forklift while carrying the load of plywood. Williams has been

employed at the Talladega facility for almost fourteen years,

was a forklift operator in the press area of the facility for
approximately four months, and presently operates a forklift on
an occasional basis (Tr. 112).
According to Williams, he spoke

to all but one of the forklift operators working in the press
area and stated that they w&e unanimous in preferring the
forward operation of the forklift in the press area when carrying the 540inch load (Tr. 115-120). Williams further stated that, based on his personal experience, it is safer to operate a forklift with the load in a forward direction (Tr. 115).

. Kevin Smith testified as an expert on behalf of G-P. Smith has extensive experience and education in the areas of

mechanical engineering and safety and has particular expertise

with regard to safety in the design and operation of powered

industrial I. .ift trucks.- He has a Bachelor of Science degree in mechanical engineering from the Illinois Institute of Technology in Chicago and has completed the majority of course work required for a master's degree in mechanical engineering from that same institution (Tr. 124). He is a registered professional engineer and has been employed for nine years as a

9
mechanical engineering safety consultant by Triodyne, Inc.; a

mechanical engineering safety Consulting firm SpeCia~izhg in

design, testing and investigations relating to mechanical

engineering safety (Tr. 121-122). His particular specialty is

the safety of material handling equipment, including powered

industrial lift trucks, cranes, conveyors and packaging

machinery (Tr. 122).

   Smith    acts      as a safety consultant                       to the         Institute       for

Advanced Safety Studies, a non-profit corporation which

conducts safety research for the National Institute of
.--
Occupational Safety and Health, the Federal government and private organizations (Tr. 123). Prior to becoming employed

with Triodyne,
.
Smith was employed for three years as a design

and test engineer in the manufacture of forklift trucks for

Allis-Chalmers Industrial Truck Division (Tr. 123). He belongs

to the Illinois and National Societies of Professional Engineers, the American Society of Safety Engineers, and the .

American Society of Mechanical Engineers (Tr l 125). Smith

presently serves on the American National Standards Institute

B-56.1 subcommittee of the American Society of Mechanical

Engineers and was invited to apply to become a member of this
subcommittee because of his specialization and expertise in

forklift safety (Tr. 125).
The B-56.1 subcommittee writes the

American National Safety Institute standard for lift trucks,

ANSI B56.P1969,
and it is this standard upon which the OSHA

10
-

standard at issue, 29 C.F.R. 5 1910.178(n)(4), is based (Tr.

125; see 29 C.F.R. 5 1910.189).
In preparation for rendering an opinion on the issue in
dispute, Smith visited the press area of the Talladega plant

for approximately an hour and a half.
He moved around the area
to get a feel for the forklift operation (Tr. 127). Using a
540inch height load raised six inches off the floor, he

observed the operation from the eye level of the driver of the

forklift (Tr. 128). He sat in the driver's seat and observed

the area (Tr. 130) and drove the forklift with the load intact

(Tr 0 130, 139)e He took the forklift to an open area outside

and made a line-of-sight drawing (Tr. 134). The forklift and load used were the same as involved in the accident (Tr. 134).

He measured the position of the operator from the seat of the

forklift. in relation to his forward view (Tr. 134). He
reviewed ANSI Standard B-56.1 and OSHA standard 5
1910.178(n)(4) and concluded that the operator's view was not - obstructed (Tr. 142-143).

The parties disagree as to what constitutes an **obstructed

view. IfiSloop indicated that an obstructed view exists whenever

you cannot see the floor from the operator *s seat within ten
feet of the forklift (Tr. 66068).~ Smith disputed the rule

3

Sloop defines an Vbstructed view as follows: "[I]f you cannot see what is in the immediate area, you have an obstructed view, and defined seeing the **immediate area"' as being able to see the floor seven to ten feet in front of the forklift (Tr. 67-68, 71). He based the seven- to ten-feet rule

11
-

advocated by Sloop.
He has not seen such a rule in writing and

states that such a rule would be contradictory to the standard. According to Smith, the standard load used for rating forklifts is 48 inches. He expressed the opinion that a 480inch load would not satisfy the requirement that the operator be able to see the floor within ten feet of the forklift. He computed the

floor visibility for a 480inch load to be 14 feet (Tr. 145.

146).
Smith testified that 5 1910.178(n)(4) was taken from the
ANSI standard and that, in his opinion, the standard was
directed to operators to look -out for pedestrians (Tr 0 150). If the concern is pedestrians, then the standard should be construed in a manner to accomplish its intent. If one
--
considers the words 'obstructs forward view" are directed toward insuring the safety of pedestrians, it seems clear that the standard is directed toward the total obstruction of vision of employees in the area. Smith supports Pthis
interpretation.
He testified (Tr. 150, lines 8-10):

But the intent of the code is that, in my opinion, is if you have a blockage so large that you can't see any part of a pedestrian, then you'd better go in reverse.
The operators of the forklifts have some visibility of

pedestrians in the area at all times. As reflected by the

line-of-sight drawing prepared by Smith (Ex. R-21), the amount

on his apparent opinion that, given that the forklift travels
fiveto ten miles per hour, in order to come to a complete stop
within one second, the forklift travels seven to ten feet (Tr.
75-76).

12
, of the body of the pedestrian that is visible at any given time
may vary, but there is always some part that is visible.

Stated in the converse, the operator's forward view will always be obstructed to some degree by the. load, and the operator can never have a completely clear view of the path of travel. As a practical matter, the operator need only to have a clear vision of part of the body of a pedestrian to know his position.
Sloop's rule is arbitrary and without a reasonable basis.

He admitted that there is nothing in any workplace standard which requires an unobstructed view of the floor within seven L- to ten feet of the vehicle, admitted that there is nothing'in 5 1910.178(n)(4) which defines an obstructed view, admitted that
his rule is merely a verbal recommendation used by him in
training drivers, admitted that such a rule would make the
forward view of the driver of an automobile traveling 60 miles per hour to be obstructed and, significantly, admitted that his rule 'isan arbitrary one chosen by him (Tr. 74-76, 80-81, .86).
Smith% testimony must be given greater weight than

Sloop's. Smith's testimony is based on a better investigative

foundation which      affords   him     the   opportunity        to   base his

opinions on first-hand perceptions. He visited the press area
at the Talladega plant, observed the traffic floor pin the area, made a number of measurements, observed a forklift with a 54-
inch load, and sat in the operator%
seat on the forklift and
drove the forklift forward and in reverse with a %-inch load carried six inches off the floor (Tr. 138-139). He prepared a

13 line-of-sight scale drawing of the forklift involved in the accident carrying a 540inch load six inches off the floor (EX.

R-21; Tr. 121). His thorough investigation aligned with his

participation in the ANSI standard and knowledge of the subject matter enhance the credibility of his testimony.

  The   applicability         of the standard           is triggered whenever

"the load being carried obstructs forward view." The focus is
on the words l'obstructs forward view."
It seems clear that

the words "obstructs forward view," as used in the standard, were used to indicate their applicability when the operator does not have a,clear view of the path of travel in the forward direction. This is consistent with 5 1910.178(n)(6) which requires the driver to "keep a clear view of the path. of traveLgV The standard also recognizes that there will be some

obstruction encountered in forklift operations. The first
sentence of Q 1910.178(n)(4) states:
The driver shall be required to slow down and sound the horn at cross aisles and other locations where vision is obstructed.

The language of the first sentence of the standard is

instructive. It obviously recognizes that forklifts will at

sometimes be operated with obstructed vision. If the pertinent
provisions in this case were intended to apply to partial
obstruction, it would appear that the standard would have referred to its applicability to partial or limited obstruction. In the absence of such limiting words, it must be

assumed that the reference is to a total I*obstructedview."
b
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    Generally speaking,                the    word       llobstruct," as          used        in    5

1910.178(n)(4), is applicable
to anything that comes in the way

of or cuts off the sight of a person
or object at the site.

Cf 0 Hubbard Construction Companv, 90 OSAHRC 5/D3, 14 BNA OSHC

1478, 1991 CCH OSHD 5 28,788 (NO 0 89-888, 1991). An

llobstructed view" exists whenever the operator does not have a

clear and uninterrupted view of the forward path of the

forklift. An obstruction can be strategically located and of

such a size that it totally obliterates the operator's forward

view or it can be limited and only partially obstruct the

operator's view. There can be no argument over what is

expected if a total obstruction of the forward view existed.

A novice to the field of safety would comprehend the fact that

one does not move forward without some view of what is in

front.

    The     words         "obstructs         forward         view,"       as     used     in        9   -

1910.178(n)(4), are directed toward protecting employees moving

around in the area from being struck by a forklift. It is

intended to apply to pedestrians walking or standing in an

upright position where the operator's view is totally
obstructed of the person. If the operator will at all times

have a clear view of some part of an employee in an upright

position, the operator can proceed in a forward direction. The line-of-sight drawings prepared by both parties clearly show

that employees in an upright position in the press room or in h 15
the aisleways are always .partially visible. The alleged

violation is vacated.
The Secretary raises the issue of visibility of persons in

a crouched position that could be totally obstructed, whereas

they are only partially obstructed in a standing position.

Smith makes it clear that the standard is aimed at people walking and that further limitations on the operator is not the

way to protect persons in a crouched position. If someone

wants to lay in front of a forklift and obstruct the

operator's view, there is little that the operator can do about

it (Tr. 150).
If the forklift operator has the added burden of

having to have visibility of crouched persons, the role of a

forklift in handling materials would be quite limited. -Most
loads carried by forklifts would have some obstruction of
vision of persons in crouched positions or hidden behind
structures in the plant. The standard cannot be construed to

specifically cover such persons and allow for the efficient

utilization of the capacity of a forklift to handle a medium to

large load. If the standard were applicable in such

circumstances, there would be a possibility of a total

obstruction everytime a load of any size were transported.
This would mean that all loads would have to be trailed.
Obviously, the standard never contemplated trailing all loads.
Smith recognized the problem. He testified (Tr. 151):

A0 No Because if I have to start now dealing with people who are possibly hidden behind things, structures in the plant, or are approaching very close to, say, the back of

16 the forklift and leaning down to tie their shoe -- which is a case that I was involved with -- right behind the forklift the man stopped to tie his shoe and thenwas backed over -- you cannot do anything with the forklift truck.

You are so limited. You have some limitations as to how much you can see. I can't place the operator 10 feet above the truck, which would give him a very good line of sight, but would be nonfunctional.
so there has to be some kind of reasonableness involved. And we can't design as engineers designing a forklift or as an employer trying to keep people from being hit -- the way to handle that is-not visibility, if they're going to be laying on the ground or getting up close or hiding behind obstructions.-‘ The key there is to get the pedestrians to make sure that thev don't put themselves into these Dositions in a high traffic area. (Emphasis added) .'
The Secretary is superimposing factual situations under the

ambit of the standard that it was not designed to protect. As

pointed out by Smith, the crouched or hidden person situations

can be alleviated or controlled by rules directed to the employees.

G-P has provided adequate means to protect its employees.

There is no dispute over the fact that G-P has a good training

program for the forklift operators. Powers noted no

deficiencies in the program (Tr0 48) l Operators receive

extensive training in the safe operation of forklifts when they initially begin work with the company and on a regular basis thereafter. Trainees receive on-the-job training from an

experienced operator (Tr. 88, 95).

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 A trainee may operate the forklift alone only after the

experienced
operator and the trainee's supervisor certify that

the trainee is qualified to safely operate the forklift (Tr.

88) 0 G-P also requires all employees to view annually a

videotape
of approximately
0 twenty minutes regarding the safe

operation of forklifts in a plywood plant (Ex. R-1; Tr. 88).

It conducts safety committee meetings twice a month in which

various safety rules and regulations are discussed and the

results of these discussions are communicated to each employee

by their shift representative
(?r. 89-90).

       G-P has             also made       every    effort   to     utilize        mechanical

devices to alert people on foot in the area as to the presence

of forklifts.
It uses strobe warning lights, installed on top

of the forklift, to insure that pedestrians are aware of

forklifts in their area (Tr. 90). It also requires operators

to use their warning horns when rounding blind corners (Tr0

90) l

       The       standard       is also      not directed       toward       fixed objects

that might be in the path of travel and is not something on

which the decision to go forward or trail should be determined.

Smith explains this situation as follows (Tr. 151452):

Q0 Well, aside from pedestrians in positions other than standing, what about objects that may be in the path of travel? In your opinion, is that something to consider in making the decision as to whether to go forward or to trail?

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 A0 Well, sure. AS with this truck, you can see that as long as you are in this case, this exact case, you could see to the ground all the way. When you first pulled out of the press, you could see any fixed object, such as a beam or a post. They don't move. You know that once you saw that post 50 feet ago that that post didn't move. It's still there. So, you can deal with fixed obstructions in the workplace.
It's the moving ones that you want the visibility for.
In this case, there were supporting posts along the aisleway.
The operator knows the posts are there in a line and extend to
the ceiling.. The posts are stationary, and the operator should have no doubt as to their local&on. Any employees in the area may be moving. The operator must know his location in
traversing the area with the forklift.
The operator cannot
assume the employee is always at a fixed location nor can he
assume there are no other persons in the area.

Although the load was not an llobstructed view" within the meaning of the term as used in 5 1910.178(n)(4), G-P clearly 0
established that traveling forward with the load is safer than trailing the load. It is to be commended for its investigation and desire to reverse the decision to trail since employees were determined to be in a more hazardous position. Smith was clear in his opinion that the safer way to operate the forklift with a load of 54 inches would be in a forward direction (Tr. 143). He stated his reasons for his opinion as follows (Tr. 143-144):

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A0 Well, first of all, as long as you do have the forward visibility, YOU want to operate the forklift forward because that's the direction the operator is facing when he's operating the controls, and, therefore, has constant vigilance of, not only his load and the clearances, but he also happens to be facing in the direction of travel at the same time. So, he doesn't have to divide his time as he would travelling in reverse between checking clearances and looking over both shoulders -- trying to look over both shoulders.
He'd have that 1800degree, or almost 1800 degree view, forward all the time.
Secondly, the maneuverability of a forklift truck, because of the rear steering,. is much greater when travelling forward than in reverse. Very similar situation as to when you parallel park your car, you back it in because you have then, in essence, rear steering there and it allows you to make turns around corners accurately.
. Whereas with a forklift truck, that's why
. they put the steering at the other end of the load. So that you're not swinging the load, trying to get it to clear; you'd be swinging the back end of the forklift.

Also, comparing the driving in the rear, where it is possible for an operator to turn sideways in the seat and put his head looking directly back and try to simulate the same view reverse as he has forward, he then compromises and puts a lot of strain from a human factor's viewpoint on himself on a regular basis. And, therefore, in reality they do not do that. They have to have their feet on the pedals: they have a clutch; they have a brake; they have an accelerator; the steering wheel; they have their controls that they will only really look over their shoulders.
And, in fact, in my watching the operations there, that, in fact, was exactly what was occurring. The operators were not turning completely around when travelling in reverse because of, in my opinion, the strain that it puts on a [sic] operator.

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Therefore, your visibility, in essence, is cut down. And the cross-traffic that's occurring in this area is coming from an opposite direction than a
[sic] operator would normally be looking. TGake a turn from the press to the stacking area, the normal way would be to look over his right shoulder. He could look over his left shoulder and back again and back again, but then he% dividing his time up and therefore the hazard of having a collision is increased.

Smith's reasons for preferring that the operator go in a

forward direction are logical and generally well recognized. The forklift is designed for forward direction and is better
utilized and controlled
in a forward direction. Powers and
Sloop, though opining that the forward view of a forklift with
a 540inch load is obstructed,
failed to compare the forward
view of the forklift with the rear view and, therefore, had no

basis to assert that it is safer to travel in reverse while

trailing the load.
.
FINDINGS OF FACT AND
CONCLUSIONS OF LAW

The findings of fact and conclusions
of law contained in

this opinion are incorporated herein in accordance with Rule
52(a) of the Federal Rules of Civil Procedure.

ORDER

Based upon the foregoing findings of fact and conclusions of law, it is

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 ORDERED: That the alleged serious violation of 3

1910.178(n)(4) and proposed penalty are vacated.

Date: July 2, 1991

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