Eagle Food Centers, Inc.

Plain-English summary

Eagle Food Centers ran a large food distribution warehouse in Milan, Illinois. In January 1998 a pallet jack operator was struck and killed by a highlift when the two vehicles met at an automatic plastic door between the freezer department and the loading dock. OSHA cited Eagle under the powered-industrial-truck standard for not requiring drivers to slow down and sound the horn where vision was obstructed, pointing to the door's dirty, cloudy panels. The main question was whether the door was a "location where vision is obstructed." Judge Spies rejected Eagle's argument that the standard was too vague and agreed that a fast-closing door can obstruct vision, but she found the Secretary did not prove that the panels actually blocked the operators' view. Inspection video showed pedestrians were visible through the closed door from many feet away, and operators testified they could see vehicles coming. Because the Secretary failed to show the standard applied, the judge vacated the citation.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.178(n)(4)
• Outcome: Citation vacated. The Secretary did not prove vision was obstructed at the doorway, so the standard did not apply.
• Key point: To apply the "slow down and sound the horn" rule, OSHA must prove vision was actually obstructed. Dirty but see-through doors that still let operators spot oncoming traffic are not enough.

Full text (OSHRC public release)

Secretary of Labor,
Complainant,

              v.                                   OSHRC Docket No. 98-0543

Eagle Food Centers, Inc.,
Respondent.

Appearances:

      Helen Schuitmaker, Esq.                      Brent I. Clark, Esq.
              U. S. Department of Labor                     Seyfarth, Shaw, Fairweather & Geraldson
              Office of the Solicitor                       Chicago, Illinois
              Chicago, Illinois                                      For Respondent
                       For Complainant

Before: Administrative Law Judge Nancy J. Spies

                                    DECISION AND ORDER
      Eagle Food Centers Inc. (Eagle), a food distribution company, contests a serious citation

issued to it on March 6, 1998. The citation followed a fatal accident at its distribution warehouse
on January 29, 1998. Occupational Safety and Health Administration (OSHA) Compliance
Officer Dennis Springhart conducted the investigation from January 29 through February 26,
1998.
The citation states that Eagle violated § 1910.178(n)(4) when "operators of powered
industrial trucks were not required to slow down and sound the horn when approaching the east
doorway to the freezer department." This was required, the Secretary asserts, because the east
doorway was a location where "vision was obstructed." Eagle denies the existence of anything
which constitutes an obstruction of the operator’s vision at the east doorway. In addition, Eagle
asserts the affirmative defense of unpreventable employee misconduct.
A hearing was held in this matter in Rock Island, Illinois. The parties have submitted
post-hearing briefs. For the reasons set out below, Eagle’s position is correct that the vision at
the east doorway was not obstructed within the meaning of the standard.
Background

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     Eagle maintains a large food distribution warehouse in Milan, Illinois. The facility has

both a perishable food section and a "grocery" nonperishable section. The perishable section
contains four departments: the dairy, meat, produce, and freezer departments (Tr. 705). The
freezer department is a large refrigerated room used to prevent food spoilage. The layout of the
department contains storage racks, aisles, and cross aisles. The freezer department is adjacent on
the east side to the dock, which is also a large room with truck bays at one end. The dock area is
not refrigerated (Exh. C-8; Tr. 620).
Approximately two years before OSHA’s investigation, Eagle installed a vertical panel
plastic door between the refrigerated freezer department and the dock (the east freezer door), as
well as at other locations in the facility. The plastic material was relatively clear, and employees
could see through it. The east door opening was 8 feet wide and 9 feet long. A red heatlight was
installed at the top of the door to help prevent the formation of floor ice on the freezer side of the
doorway (Tr. 301-302). The heatlight cast a slight shade of red at the top of the door (Exh. R-65,
p. 10-13, 15; Tr. 484). Eagle did not clean the plastic panels for the two years. By that time,
employees described the panels as "cloudy" and "pretty dirty" (Tr. 41, 108).
The plastic door was constructed of four panels which split between the middle two.
Pedestrians regularly passed through the plastic door by separating the two middle panels by
hand and walking through the gap. However, the plastic door operated automatically with the
panels moving to the side and folding like bifold doors whenever one of Eagle’s powered trucks
depressed a magnetic trip mechanism embedded in the concrete floor. For the east freezer door,
the mechanism tripped 15 feet from the door to the freezer and 8 feet from the door into the dock.
The door automatically closed after a lapse of 5 to 6 seconds (Tr. 303, 475, 510). When closed,
the two middle plastic panels overlapped each other for 16 inches at the center of the door (Exh.
R-66).1 The overlap provided a loose seal between the two centermost plastic panels. The
overlap further clouded visibility since employees looked through two plastic strips rather than
one (Exhs. C-9, R-40).

1
Since the Secretary did not report an objection to inclusion of the sketch into the record post hearing, and since the
measurements appear to be correct, the sketch with measurements appended to the deposition of Steven James
Biddle (Exh. R-65) is accepted into evidence as respondent’s exhibit, R-66.

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   Operators of motorized vehicles passed through the door 50 to 100 times per shift,

approaching from either side of the door (Tr. 73, 540). Only one motorized vehicle passed
though the door at a time. As Eagle’s long-term employee, Steven Lingafelter explained the
process (Tr. 537-538):
Alls I can say is it’s just like a one-lane bridge going down a road. If somebody is
on that bridge before you, you wait your turn to cross it . . . . There’s an electronic
device on the floor that the machine -- when the machine runs over it, it opens up
real quick. I mean, it pops wide open. And, then, as you go through the door, it
shuts. . . . And it shuts a lot slower than it opens.

Pedestrians were expected to step out of the way when motorized vehicles approached (Tr 622).
Among other types of powered equipment, Eagle utilized a motorized "pallet jack" to
take goods from the stacks to the trucks at the loading docks and an older vehicle, a "highlift," to
stock the storage stacks (Tr. 475, 503). While operators of both types of vehicle stood to operate
the machines, the pallet jack operator was particularly exposed standing at the front on the
machine’s apron-like platform.
During the night shift of January 29, 1998, highlift operator Rick Jones approached the
east plastic doorway from the dock at the same time that pallet jack operator James Ackerson
arrived at the doorway from the freezer side. Both were experienced truck operators. When
Jones tripped the east door, the operators were 4 to 5 feet apart and saw each other at the same
moment. Within seconds, Jones turned the highlift hard to the right, and Ackerson jumped off
his pallet jack and ran to his left. Tragically, the highlift hit Mr. Ackerson and pinned him
against the pole located 2 feet inside of the freezer department (Tr. 40, 95, 301). He was
transported to the hospital but died shortly afterwards as a result of his injuries.
Argument
The Secretary asserts that Eagle failed to require its highlift and pallet jack drivers to
slow down and sound a horn at the freezer department’s automatic east doorway in violation of
§1910.178(n)(4). The standard requires:
Traveling. (4) 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. (Emphasis added)

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    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 standard, (b)
    the employer’s noncompliance with the standard’s terms, (c) employees access to
    the violative conditions, and (d) the employer’s actual or constructive knowledge
    of the violation.

Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1741, 1994).

    The parties primarily dispute whether the Secretary established the first element of her

burden of proof, application of the standard.2 The standard applies to Eagle’s operation of
powered industrial trucks if the east plastic doorway was a "location where vision is obstructed."
The threshold issue is the definition of "is obstructed." The standard does not define the term.
The Secretary’s Position
In her brief, the Secretary clarified her position to assert that the only part of the plastic
door she considered to "obstruct vision" on January 29 - 30 was the 16-inch overlap along the
center of the closed door. Further, the Secretary does not contend that the panel overlap always
obstructed vision, but only that it did so when the panels were as dirty as they were on those
dates. The Secretary defines the word "obstruct" as (Webster’s Dictionary. ed. 1953): "to come
in the way of, to impede, retard, as clouds obstruct light; to cut off the sight of an object" (Tr.
439). The Secretary asserts that at the time of the accident the plastic door effectively "cut off
the sight of" oncoming vehicles due to its dirty and cloudy condition.
Eagle’s Position
Relying on Georgia Pacific v. Occupational Safety and Health Review Com’n., 25 F.3d
999 (11th Cir. 1994), Eagle argues that the word "obstructed" has been found to be
unconstitutionally vague in the cited standard and that, in any event, the Secretary’s definition of
"obstructed" in this case is as defective as the one the Eleventh Circuit disapproved of in Georgia
Pacific. Alternatively, Eagle contends that the whole vehicle could be seen as soon as the doors

2
Although Eagle contends that the Secretary failed to meet any of the four elements of her burden of proof, there
can be little dispute as to the existence of the other three elements. Eagle’s industrial truck operators did not
regularly sound a horn at the east doorway, nor did operators "slow down" to the extent required by the standard,
facts of which Eagle was well aware (Tr. 42, 89, 154, 529).

                                                     4

popped open and that some part of the vehicle, or presumably a pedestrian, was always visible to
vehicle operators even while the doors were closed.
Analysis
Not void for vagueness
First to be considered is Eagle’s argument that the standard is unconstitutionally vague.
Georgia Pacific interpreted "obstructs" in the second sentence of § 1910.178(n)(4) in the context
of trailing a load. In that case, Administrative Law Judge James Burroughs rejected Georgia
Pacific’s argument that the standard was impermissibly vague, since he considered the purpose
of the standard to apply to protect the upright pedestrian from being hit by a forklift. He
concluded that the forward view was not obstructed "if the [forklift] operator will at all times
have a clear view of some part of an employee in an upright position," and finding that the
operator did, he vacated the citation. 1991 OSAHRC Lexis 201, p. 19 (89-2806, 1991). Judge
Burroughs stated his concern that if the Secretary interpreted "obstructs" to protect crouching
pedestrians, forklifts would always be operated with loads trailing.
The Review Commission reversed. It recognized that "obstructs" should be interpreted
within the context of the specific facts, such as "the size of the load, the speed at which the
forklift is traveling, the number and positions of employees working in or near the aisles of the
press area." Georgia Pacific, 16 BNA OSHC 1171, 1175 (1993). It defined "obstructs" in the
second sentence of .178(n)(4) as follows (Id.):
"[O]bstructs" 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.

   The Commission concluded that it was reasonably foreseeable that Georgia Pacific’s

employees would crouch as well as stand in the way of forklift traffic and that the standard
should be interpreted accordingly. It further concluded that the ALJ impermissibly challenged
the wisdom of the standard when he gave weight to testimony of the relative dangers of trailing
the load. It affirmed the violation.
On appeal, the United States Court of Appeals for the Eleventh Circuit reversed the
Commission and vacated the citation. The court determined that it was unreasonable to expect

                                              5

an employer to anticipate the Secretary’s varying interpretations of the word "obstructs" and,
thus, that the standard was void for vagueness. Underlying the court’s decision was its concern
that the Secretary ignored the potential dangers inherent when forklifts always trail their loads.
The court did not conclude that the standard would be unenforceably vague in all circumstances,
but only those of the case.
A broad term is interpreted "in the light of the conduct to which it is being applied; and
external, objective criteria, including the knowledge and perceptions of a reasonable person, may
be used to give meaning to such a regulation in a particular situation." J.A. Jones, 15 BNA
OSHC 2201, 2205-06 (No. 87-2059, 1993). While Georgia Pacific interpreted the second
sentence of the standard, this case concerns the first sentence. In dictum, the Commission in
Georgia Pacific defined "obstructs" in the first sentence as "external to the forklift and its load,
such as columns, which would obstruct the operator’s view. . ." 16 BNA OSHC 1177. Although
the degree of transparency was disputed, the overlapped panel may be analogized to a semi-
transparent column running down the middle of the door for 16 inches.
An employer might reasonably anticipate that the "see through" panels in a dusty
warehouse would become opaque over time, unless they were cleaned, especially where the
panels overlapped. Vision need not be completely blocked before it may be defined as
"obstructed." The definition of the word is not strained by including conditions which impair
vision sufficiently to affect safety. Based on the language and purpose of the standard and the
physical conditions of the warehouse, over time grime and dust could be expected to block or to
significantly impair an operator’s vision through the door. Nor do the facts here result in the
unanticipated consequences the Eleventh Circuit disapproved of in Georgia Pacific. As applied
to the east plastic door, Eagle had fair notice of what the standard required of it. The standard is
not impermissibly vague.
Quick Opening Door Can Present An Obstruction
Eagle next argues that automated doors cannot constitute an obstruction since operators
unquestionably have a clear vision at the point the doors open and before they proceed through it.
If the door actually constituted an obstruction, removing it only 8 to 15 feet before operators

                                              6

drove through it would not resolve the problem. When asked how far Mr. Ackerson’s vehicle
was from his as the doors opened, Jones replied (Tr. 42):
I would say we were both within a couple of feet of it; three feet, maybe. Two to
four feet, I guess, probably. I don’t know, something of that nature. We were
both moving at the time, so the distance was being covered gradually at that point
because there is not but 6 feet or so, maybe eight, when you trip the mechanism,
and we both literally met at the doorway. When the doors opened, it seemed to
me that we were right at each other at that point.

    Implicit in the standard is a recognition that operators must have a reasonable time within

which to react to the sight of another vehicle or a pedestrian. If an operator cannot safely stop, it
would do little good to be able to see the collision. Contrary to Eagle’s argument, quick opening
doors can "obstruct vision" within the meaning of the cited standard.
Condition of Plastic Door Did Not Obstruct Vision Within Meaning of the Standard
The remaining question is whether the physical condition of the overlapped panels
actually obstructed vision on January 29-30, 1998. The term "obstructed" is examined in the
factual circumstances of the cited area. The warehouse area was brightly lit. The highlift and
pallet jack were large pieces of equipment, even when seen from a distance. They filled up half
of the space of the doorway (Tr. 339). When approaching the east door from the freezer,
operators proceeded down a long, straight aisle where the nearest cross-aisle was 40 feet from the
door. From either side of the door, it "was a straight shot in" (Tr. 159). The physical layout
afforded ample space to observe oncoming traffic.
The warehouse operation was fairly fast-paced, with vehicles and pedestrians continually
passing through the doors to stock shelves, to pull orders, and to transport foodstuffs.3 At such a
workplace, there would be no time to study the east door to see whether an image was present.
Visibility must be sufficiently clear to permit operators quickly and easily to identify that a
vehicle or a pedestrian was present on the other side of the door, even if the finer details of the
images could not be recognized.

3
The Secretary suggested that a so-called "100% production memorandum" sped the employees’ work in the
freezer department. At the time of the inspection, however, Eagle had not implemented the policy or increased
production requirements in that department (Tr. 188,227, 751).

                                                    7
     As stated, employees described the door panels as dirty and cloudy (Tr. 41).4 They also

described them as "foggy and discolored" (Tr. 162). "The doors were never in the condition that
you couldn’t see through them [but] you couldn’t discern like facial features" (Tr. 217).
Although the operators could "see images coming" (Tr. 137), the panels caused objects to appear
somewhat "shadowy" (Tr. 224).
As employee Larry Fuller described looking through the east door at the time (Tr. 198):
You would know something is there. It would be clouded. I assumed it was a
vehicle, a pallet jack. As I came up to the doors, you wouldn’t actually know
exactly what it was until the doors opened.

    Witnesses’ testimony and Springhart’s videotape of the inspection were insufficient to

establish that the overlapped portion of the panels was so cloudy that it impeded the operator’s
line of sight. The operators reported that they could see images of vehicles through the door.
The testimony did not distinguish how the overlapped portion of the door may have affected their
vision. Further, a careful review of Springhart’s videotape revealed that pedestrians could be
seen for some distance through the plastic door. (Unfortunately, Springhart did not videotape
vehicles which had crossed the door.) Videotaping from the dock through the closed east door, a
pedestrian could be clearly distinguished walking down an aisleway estimated to be 70 to 80 feet
into the freezer department (Exh. C-9; Tr. 645-646). Also shown were individuals walking in the
freezer area some 35 feet, and later 120 feet, through the east freezer door (Exh. C-9; Tr. 647).
Likewise, pedestrians could be seen as one looked through the closed doors from the freezer to
the dock. An operator’s line of sight, even through the 16 inches of overlapped panel, was
sufficiently clear to negate the contention that the east door "obstructed vision." Accordingly,
the Secretary failed to establish that the standard applied to the east doorway. The citation is
vacated.

4
How dirty the plastic door had become was evident after the accident when Eagle cleaned the panels of the east
door. The improvement in visibility was dramatic, and the doors were then crystal clear. As Jones described the
"very visible difference," "it was more like looking through a window than trying to see through the cloudiness of
the doors" (Tr. 48, 224). However, the Secretary must show more than the fact that the operators’ sight was
needlessly diminished because Eagle failed to clean the door. She must establish that sight was obstructed.

                                                     8
              FINDINGS OF FACT AND CONCLUSIONS OF LAW
   The foregoing decision constitutes the findings of fact and conclusions of law in

accordance with Rule 52(a), Fed. R. Civ.P.
ORDER
It is, therefore, ORDERED that the alleged violation of § 1910.178(n)(4) is vacated.

                                                NANCY J. SPIES
                                                Judge

Date: January 28, 2000

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