Brungart Equipment Company, Inc.

Plain-English summary

Brungart repaired forklifts, and an employee was injured when a customer's forklift tipped during a maintenance check drive. OSHA alleged that the truck had not been examined before being placed in service because its battery lacked a restraint. Judge Stephen J. Simko, Jr. vacated that item because the forklift remained out of service for repairs, and operating it as part of the repair process did not place it back in service. He separately found that the forklift's nameplate was not maintained in a legible condition. That other-than-serious violation was affirmed without a penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.178(a)(6) and 1910.178(q)(7).
• Outcome: Pre-service inspection item vacated; illegible-nameplate item affirmed without penalty.
• Key point: A forklift check drive performed during repair did not mean the truck had been placed back in service under the inspection standard.

Full text (OSHRC public release)

Secretary of Labor, :
Complainant, :
:
v. : OSHRC Docket No. 98-0882
:
Brungart Equipment Company, Inc., : EZ
Respondent. :

Appearances:

      Carla Gunnin, Esquire                                John J. Coleman, III, Esquire
          Office of the Solicitor                                       Jenelle R. Evans, Esquire
          U. S. Department of Labor                            Balch & Bingham, L.L.P.
          Birmingham, Alabama                                   Birmingham, Alabama
              For Complainant                                        For Respondent

Before: Administrative Law Judge Stephen J. Simko, Jr.

                                      DECISION AND ORDER

      Brungart Equipment Company, Inc. (Brungart), is a corporation engaged in the rental, sale,

and repair of forklifts. The Occupational Safety and Health Administration (OSHA) conducted an
inspection of respondent’s facility in Mobile, Alabama, from February 6, 1998, through May 8,
1998. As a result of this inspection, respondent was issued two citations. Respondent filed a
timely notice contesting these citations and the proposed penalty. A hearing was held pursuant to
the EZ trial procedures in Mobile, Alabama, on November 6, 1998. For the reasons that follow,
Citation No. 1, item 1, alleging a violation of 29 C.F.R. § 1910.178(q)(7) is vacated, and no penalty
is assessed. Citation No. 2, item 1, alleging a violation of 29 C.F.R. § 1910.178(a)(6) is affirmed.
No penalty was proposed for that item, and none is assessed.

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Background

   On January 21, 1998, respondent’s employee was repairing and inspecting a forklift. The

forklift turned over while the employee was operating it during a routine maintenance check. The
employee was injured. As a result of this incident and subsequent complaint, OSHA began its
inspection and investigation on February 6, 1998.

                                   Stipulation of Facts

   At the hearing, the parties read into the record a Joint Stipulation of Facts as follows:

   1.      Jimmy Rogers, who worked with Rodney Lynch on the forklift in
           issue on January 21, 1998, had more experience than Rodney
           Lynch. Rodney Lynch had completed training, but was still
           classified as an apprentice. Jimmy Rogers was not Rodney Lynch’s
           supervisor.
   2.     The accident precipitating the complaint that precipitated the
          inspection occurred January 21st, 1998.

   3.      Brungart did not own or lease the forklift in issue. Brungart only
           does repairs. Brungart, at all relevant times, had a rule providing
           that workers doing forklift check drives during repairs must not
           raise the forks more than 12 inches off the ground while the forklift
           is moving. Rodney Lynch was aware of this rule at all relevant
           times and was well trained for what he was doing.

           On January 21st, 1998, while doing a check drive during repairs of
           the E40B Hyster forklift in question, Rodney Lynch raised the forks
           to the maximum 187-inch height while the truck was moving and
           carrying a load.

   4.      The truck tipped when, while the truck was moving, he raised off
           his seat causing the emergency brake to catch, and the truck lurched
           forward. Mr. Lynch admits raising off the seat, but denies the truck
           was moving. All parties to this action, however, conclude from the
           circumstances that the truck was being driven, was moving, and
           tipped when the emergency brake was triggered. The weight load
           on the forks was certified as within the truck’s capacity. The weight
           of the battery was within manufacturer’s specifications. There was
           just under a two-inch clearance on each side of the battery.

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5. After the January 21, 1998, accident, Brungart placed a 2 x 4 in the
battery compartment. Nothing was available from the manufacturer
or on the market that would prevent the battery from moving
forward under these circumstances.

         When Brungart received the forklift that tipped from its customer,
         Morton Industries, for the purpose of doing repairs, the forklift did
         not have a restraining device on the battery.

  6.     The Secretary cannot prove, and indeed will not attempt to prove,
         that the movement of the battery caused the accident in this
         instance.

  7.     At all times relevant to this proceeding Jimmy Rogers, Kenny
         Alford and Dale Pitts were able to read the data plate on the forklift
         in issue, that is, the subject of the data plate citation. And further,
         that all three stated that they were able to read it because they were
         used to seeing it.


                                      Discussion

  The Secretary has the burden of proving the violation.
  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) 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. 90-1747, 1994).

                              Citation No. 1, Item 1
              Alleged Serious Violation of 29 C.F.R. § 1910.178(q)(7)

  The Secretary in Citation No. 1, item 1, alleges that:
  Industrial trucks were not examined before being placed in service:

  An inspection was not made of the Hyster Model E40B electric forklift prior to it
  [sic] being operated on or about January 21, 1998. The battery was not secured
  inside the battery compartment with shims or a battery restraint device to prevent
  the battery from moving.


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The threshold issue that must be resolved is the applicability of the standard. Section
1910.178(q) reads, in part, as follows:
(q) Maintenance of industrial trucks. (1) Any power-operated industrial truck not
in safe operating condition shall be removed from service. All repairs shall be
made by authorized personnel.

            (7) Industrial trucks shall be examined before being placed in
            service, and shall not be placed in service if the examination shows
            any condition adversely affecting the safety of the vehicle. Such
            examination shall be made at least daily.

    Subsection 1910.178(q)(7) must be read as part of § 1910.178(q). Subsection (q)(1)

requires unsafe forklifts to be removed from service and that repairs be made by authorized
persons. Subsection (q)(7) requires that forklifts be examined before they are placed in service.
Clearly, this forklift had been removed from service for repairs. The owner sent the industrial truck
to the respondent to perform the necessary repairs. On January 21, 1998, as part of this repair
work, respondent’s employee was checking the forklift drive. At that time, the forklift or
industrial truck had not been placed back into service, but rather was still out of service being
repaired. Respondent was, in fact, examining the forklift prior to returning it to its owner.
Operating the forklift as part of the repair work does not equate to placing the industrial
truck in service. Checking the forklift drive is an integral part of repairing the unit while it is out
of service. The standard does not envision that the forklift is in service during the period of time
that it is being repaired after being removed from service for that repair. No evidence was
presented by the Secretary that respondent or any other employer used this forklift for its ordinary
use. It was operated only as part of the repair work performed by respondent’s employees after it
was removed from service and before it was placed back in service. While 29 C.F.R. § 1910.178
is applicable to respondent’s operations, § 1910.178(q)(7) does not apply to this working condition.
Since the standard is inapplicable, no other elements of the Secretary’s burden or respondent’s
defenses need be discussed. The alleged violation of 29 C.F.R. § 1910.178(q)(7) is vacated.

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Citation No. 2, Item 1
Alleged “Other” Violation of 29 C.F.R. § 1910.178(a)(6)

   The Secretary in Citation No. 2, item 1, alleges that:

   Nameplates or markings for powered industrial trucks were not in place or
   maintained in a legible condition:

           Hyster forklift Model E40B, Serial #B108V07058 - The nameplate
           was not legible.

   The Secretary’s compliance officer testified that during his inspection, he observed the

nameplate on the Hyster forklift at respondent’s facility. He stated that he could not read the
information on the plate. He wiped the plate with a rag and still could not read it. The employee
injured on January 21, 1998, told him that he also could not read the information on the nameplate.
The compliance officer has over twenty-two years’ experience inspecting powered industrial trucks
like this forklift. The parties stipulated that some employees said they could read the data plate.
Those employees, however, could read the plate because they were used to seeing it. Having
observed the testimony and demeanor of the compliance officer, I find his testimony regarding the
legibility of this nameplate to be credible and convincing. I find that this nameplate was not
maintained by respondent in a legible condition.
Section 1910.178(a)(6) requires:
(6) The user shall see that all nameplates and markings are in place and are
maintained in a legible condition.

   This standard is applicable to the working conditions in respondent’s facility. Here the

respondent was the user of this forklift while it was in his shop for repairs. As discussed above,
the respondent did not comply with the requirements of the standard that the nameplate be legible.
Respondent’s employees worked on and with this forklift in this condition, and respondent’s
management knew this condition existed.
The compliance officer classified this violation as an “other” violation since some
information relating to the weight classification was stenciled on the lift mast. He testified that a
legible nameplate would have provided even more information. Respondent violated 29 C.F.R.
§ 1910.178(a)(6). This violation is classified as “other.”

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Penalty

   Under § 17(j) of the Act, in determining the appropriate penalty, the Commission must give

due consideration to the size of the employer’s business, the gravity of the violation, the good faith
of the employer, and the history of previous violations.
At the time of the inspection, Brungart employed twenty-four employees in its Mobile,
Alabama, repair facility. Some information required on the nameplate was found on the lift mast.
Respondent knew of the violative condition. Upon due consideration of these factors, it is
determined that a penalty of $.00, as proposed by the Secretary for Citation No. 2, item 1, is
appropriate.

                               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).

                                          ORDER

   Based upon the foregoing decision, it is ORDERED:
   1.      Citation No. 1, item 1, is vacated and no penalty is hereby assessed.
   2.      Citation No. 2, item 1, is affirmed, no penalty was proposed, and none is hereby

assessed.

                                           STEPHEN J. SIMKO, JR.
                                           Judge

Date: November 30, 1998

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