Color Image, Inc.

Plain-English summary

Color Image used a stand-up forklift in its warehouse and allowed four employees to operate it. An employee who had experience only with a different type of forklift received a ten-minute oral demonstration in Vietnamese, was not tested, and was later seen operating unsafely several times. OSHA investigated after the employee was killed while operating the forklift. The judge held that the standard did not mandate a formal written program or a fixed training duration, but it did require meaningful safety training for an operator who was not known to be qualified and experienced. The violation was affirmed as serious, and a $2,500 penalty was assessed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.178(l)
• Outcome: The serious forklift-training item was affirmed, and a $2,500 penalty was assessed.
• Key point: Brief operating instructions and later corrections do not satisfy the training standard when an employee is not already known to be qualified on the particular type of forklift.

Full text (OSHRC public release)

                              United States of America
      OCCUPATIONAL SAFETYAND HElLTH REVIEW COMMISSION
                         1120 20th Street, N.W., Ninth Floor
                            Washington, DC 20036-3419



                                                                      Phone:(202)606-5400
                                                                       Fax:(202)606-5050

SECRETARY OF LABOR
complaiMn~
v. OSHRC DOCKET
NO. 96-1080
COLOR IMAGE, INC.
Respondent.

               * NOTICE OF DOCKETING
           OF ADMINISTlMTIVE LAW JUDGE’S DECISION
 The Administrative Law Judge’s Report in the above referenced case was

docketed with the Commission on November 22, 1996. The decision of the Judge
wiIl become a final order of the Commission on December 23, 1996 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
December 12, 1996 in order to permit sufkient time for its review. See
Commission Rule 91, 29 C.F.R. 2200.91.
All further pleadings or communications regarding this case shah be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOg_
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
havmg questions about review nghts may contact the Commission’s Executive
Secretary or call (202) 606-5400.

               ,
                                      FOR THE COM&ES$ION n
                                                                         .
                                                                       F/6”-

Date: November 22, 1996
DOCKET NO. 96-1080
NOTICE IS GIVEN TO THE FOLLOWING:

Jaylynn Fortney
Re ‘onal Soliator, U.S. DOL
13? 1 Peachtree St., N.E., Room 339
Atlanta, GA 30367

J. Larry Stine, Esquire
Wimberly & Lawson, P. C.
Lenox Towers, Suite 400
3400 Peachtree Road, N. E.
Atlanta, GA 30326

Nancy J. Spies
Admmistrative Law Jud e
Occupational Safety an (BHealth
ReMew Commission
1365 Peachtree St., N. E.
Suite 240
Atlanta, GA 30309 3119

00109300012:04
 United States of America
OCCUPATIONAL SAFETY AND EIEALTH REVIEW COMMISSION
1365 Peachtree Street, N.E., Suite 240
Atlanta, Georgia 30309-3 119

Phone: (404) 347-4197 Fax: (404) 347-0113

SECRETARY OF LABOR,
Complainan&
.
v. .. OSHRC Docket No. 964080

COLOR IMAGE, INC.,
Respondent. E-Z

Appearances:
Dorian West, Esquire J. Larry Stine, Esquire
Office of the Solicitor Wimberly and Lawson
U. S. Department of Labor Atlanta, Georgia
For Complainant For Respondent

Before: Administrative Law Judge Nancy J. Spies
DECISIONAliD ORDER
Color Image, Inc., contests a citation alleging a serious violation of 6 1910.178(l) for failure
to train an employee in the safe operation of a forklift. The Secretary issued the citation on July 16,
1996, based on an investigation conducted by Occupational Safety and Health Administration
(OSHA) compliance officer William Harrington. Harrington inspected Color Image’s warehouse
following an accident on April 12, 1996, in which an employee named Phan was killed while
operating the company’s forklift. A hearing was held in this case on October 7,1996. This case was
designated for E-Z Trial on August 29,1996, pursuant to Commission Rules 200-211.
Background
Color Image manuf&ctures toner for the printing and computer industries at its facilities in
Norcross, Georgia (Tr. 29,37). Color Image employs approximately 80 employees (Tr. 37). Four
employees worked in Color Image’s warehouse on a regular basis. Thai Nzuyen was the shipping
and receiving supervisor in the warehouse (Tr. 9). One forklift was used in the warehouse. Each
of the four warehouse employees operated the forklift at various times (Tr. 30). Phan operated the
forklift “once in awhile” (Tr. 19).
 Nzuyen (who, like Phan, was Vietnamese) had worked at Color Image for two years at the
time of the hearing (Tr. 9). He had a total of seven years experience in operating forklifts (Tr. 27).
While at Color Image, Nzuyen viewed a 12-minute videotape on the operation of forklifts provided
by the company (Tr. l&27,31-32). The videotape was in English (Tr. 33).’
Phan began working at Color Image six weeks to two months before his fatal accident
(Tr. 11,32-34). Nzuyen understood that Phan had some experience operating forkliRs when &an
started working at Color Image (Tr. 23,33). Nzuyen stated that Phan Gas ftiar with the operation
of forklifts in which the operator sits down and operates the forklift with a steering wheel. The
form used by Color Image is one in which the operator stands up and operates the forklil? with.a
handle (Exh. C-2; Tr. 23,33; 43).
Nzuyen showed Phan how to operate the company’s forklift. He testified, “I just showed him
the basics, Iike the gas pedal, the steering wheel and how to operate it pretty much” (Tr. 21). Nzuyen
also went over certain safety procedures (Tr. 14-15). Nzuyen testified consistently that the entire
training session lasted 10 minutes (Tr. 20-24).
Color Image had no written safety program or written rules regarding the operation of the
forkIS. Nzuyen did not use the forklift’s owner’s manual or a checkhst when instructing Phan in
the operation of the forklift. Phan did not view the videotape on the safe operation of forklEts.
Nzuyen did not test Phan tier the lo-minute instruction session. The session consisted only of
Nzuyen speaking to Phan in Vietnamese (Phan spoke Iittle English) for 10 minutes (Tr. 10-23).
Nzuyen testified that he observed Phan operating the forklift in an unsafe manner %vo or
three times” afier Nzuyen instructed him in the use of the form (Tr. 18). Nzuyen stated, “It seems
that he was safe but occasionally, two or three times, as I said before, that I saw him make a couple
of mistakes and I stopped him to straighten him out” (Tr. 26-27).

       ’ While Nmyen speaks and understands English, it is his second language. At the hearing, two

interpreters, Thomas Phan and Chicu Phung assisted in the questioning of Nzuyen (Tr. 7-8). At times Nmyen’s
testimonywas somewhat confusing (for example,regardinghow long Phan had been with Color Image at the time
of his accident). However, his testimony was clear and consistent regarding the issue presented in this case, i.e.,
the type of training Color Image provided to Phan.

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The Standard
The Secretary alleges that Color Image committed a serious violation of $1910.178(l), which
provides:
Only trained and authorized operators shall be permitted to operate a powered
industrial. truck. Methods shall be devised to train operators in the safe operation of
powered industrial trucks.

   The Secretary has the burden of proving his case by a preponderance of the evidence.
   In order to establish a violation of an occupational safety or health standard, the
   Secretary has the burden of proving: (a) the applicability of the cited standards (b) the
   employer’s noncompliance with the standard’s terms, (c) employee access to the
   violative conditions, and (d) the employer’s actual or constructive knowledge of the
   violation (i.e., the employer either knew or with the exercise of reasonable diligence
   could have known of the violative conditions).

Atlantic Battery Co., 16 BNA OSHC 2131,2138 (No. 9001747,1994).
The only element of the Secretary’s burden of proof tit Color Image disputes is the second
(the employer’s noncompliance with the standard’s terms). It is undisputed that 8 1910.178(I)
applies to the forklift in question, that Phan had access to the forklift in question, and that Color
Image, through its supervisor, Nzuyen, knew the extent of the training provided to Phan. The only
issue to be determined is whether Nzuyen’s training of Phan was sufficient to meet the requirement
of § 1910.178(l) that operators be trained “in the safe operation of powered industrial trunks.”
The Secretary argues that Color Image failed to meet this standard. It had no written rules
and no structured training program. Nzuyen did not useea checklist, the owner’s manual, the
videotape, or any other kind of documents or aids in his training of Phan. He did not test Phan on
what he had told him or require any demonstration of Phan’s forklift operating skills. The training
was, as the Secretary’s counsel characterized it, an “off-the-cuff type of instruction” (Tr. 54).
Color Image counters that standard does not require a written safety program or the use of
videotapes, owner’s manuals, checklists or any other kind of aid. Nor does the standard require that
the training session last a specific length of time. Color Image contends that the Secretary is basing
the citation solely on the amount of time spent on Phan’s training without regard to the content of
I
the training.

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Color Image is correct in pointing out that 5 1910.178(l) does not impose stringent
requirements for the safety training of forklift operators. However, if the standard is to have any
meaning at all, it must impose some minimal requirement on employers to train their employees.
Color Image failed to meet that minimal requirement.
The record establishes that Phan may have had some experience in operating a forklift (or
at the least that he said he had), but it was a different kind of forklift than the one used at Color
Image (Tr. 23). Compliance officer Hanington testified that the two types of forklifts “are like a day--
and night difference because of the fact that you have a steering wheel; and on this one, you have
a handle. The other one uses a gas pedal, and it’s just completely different to operate, and you don’t
learn how to run it in ten minutes” (Tr. 43).
Color Image cites a 1975 case, John K MGrath Corporation, 3 BNA OSHC 1092,
(No. 6019, 1975), in support of its argument that its training of Phan was sufficient to meet the
requirements of 0 1910.178(l). In that case, Administrative Law Judge Chodes stated (1975
WL 4744, p. 4):
In light of the fact that the respondent’s operators are qualified and experienced, it
would appear that the method utilized by the respondent to assure safety, namely,
safety meetings with feedback to the employees, and observation by supervisory
personnel with appropriate reprimand and corrective instruction, meets the
requirements of the standard. Under the circumstances existing in the instant case,
a formal training program for operators is not required.

    The difference between McGrath and the present case is that in McGrath, the employer’s

operators were “qualified and experienced.” Earlier in his decision, Judge Chodes detailed the
employer’s methods for hiring operators (Id):
All drivers were f’urnishedto the respondent f?om a list of experienced drivers under
an agreement with the International Longshoremen’s Association. Each driver is
identified with a Seniority Identification Care indicating that the possessor is a
qualified driver. Moreover, the drivers assigned to the respondent are known to
respondent’s supervisors as qualified drivers. Significantly, the compliance officer
who conducted the inspection of the respondent’s worksite did not inquire of the
drivers or anyone else regarding their training or experience.

    In the present case, Color Image had no reason to assume that Phan was a trained operator

of forklifts. After being hired, Phan reported to Nzuyen. Phan indicated to Nzuyen that he was

                                              4

familiar with a type of forklift different f?om that used by Color Image. Nzuyen did not know
whether Phan was actually trained in the operation of any type of forklift or whether he had any type
of safety insbwtions on the machine (Tr. 23,33). McGrath stands for the proposition that no
formal training program is required when an employer’s operators are known to be qualified and
experienced. Such was not the case here. Nzuyen showed Phan how to operate a potentially
dangerous piece of equipment in 10 minutes. He made no evaluation of Phan’s operating ski&. He
observed Phan operating the forklift in an unsa6e manner several times in the six weeks Phan worked
at Color Image. Ten minutes of oral demonstration was simply not enough to train someone on how
to operate a forklift and to cover basic safety procedures. Nor did the on-the-job reprimands for
specific de activities cure the defective training. Harrington testified that safety training could
not be given in only 10 minutes (Tr. 44). Color Image violated 5 1910.178(l) by failing to train Phan
in the safe operation of its forklift.
The Secretary asserts that the violation is serious. Section 17(k) of the Act states fhat a
violation is serious if it creates “a substantial probability that death or serious physical harm could
result.” Failure to train employees in the safe operation of forklifk creates a substantial probability
of death or serious physical harm. The violation is serious.
PENALTY DETERMINATION
Section 17(j) of the Act, requires that when assessing penalties, the Commission must give
“due consideration” to four criteria: the size of the employer’s business, the gravity of the violation,
good faith and prior history of violations. The gravity of the violation is the most significant factor
to be considered when assessing the penalty.
Color Image employs approximately 80 employees (Tr. 37). It has no history of previous
violations (Tr. 50). No evidence of bad ftith was presented at the hearing.
The gravity of the violation is high. Unsafe operation of a forklift can endanger the lives of
the operator and of other employees working near the forklift. A penalty of $2,500.00 is assessed.
FINDINGS OF FACT AND CONCLUSIONS OF LAW

    The foregoing decision constitutes the findings of fact and conclusions of law in accordance

with Federal Rule of Civil Procedure 52(a).

                                                5

.

                                         ORDER

   Based upon the foregoing decision, it is ORDERED that:
   Item 1 of Citation No. 1, alleging a violation of 0 1910.178(l), is afkned   and a penalty of

$2,500.00 is assessed.

                                                   NANCY J. SPIES
                                                   Judge

Date: November 13,1996. .

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