The section 5(a)(1) claim avers further that “one feasible and acceptable method of abatement to correct the hazard” would be as follows:

Comply with the JCB Operators Manual for the 512-56 Telehandler which states:

“The danger zone is any zone within and/or around the machinery in which a person is subject to a risk to their health or safety . . . [including] the area into which debris, from use of an attachment or working tool, could be projected and any area into which debris could fall from the machine.  During the operation of the machine, keep all persons out of the danger zone.  Persons in the danger zone could be injured."

"Worksites can be hazardous.  Examine the site before working on it.  You could be killed or injured if the ground gives way under your machine or if piled material collapses onto it.["]

Methods of positioning the spotter outside the danger zone of the stacking operation include:

• Have the signal employee communicate with the operator using hand signals or a radio, or;

• Have the signal employee use a stand-off device such as a drone for visual examination of the stacking operation and having direct communications with the rough terrain forklift operator.

In addition to the alleged violation of section 5(a)(1), C&S is alleged to have violated 29 C.F.R. § 1910.178(l)(6) for failing to maintain written certification that the performance of a powered industrial truck operator has been satisfactorily evaluated within the preceding three years.

The parties have zealously advocated for their respective positions in their post-hearing briefs.  Upon a review of the arguments and the whole of the record, two salient issues emerge:  

• Does a preponderance of the evidence show that the spotter for the telehandler operator was ever positioned within any employer or industry recognized “danger zone” of the telehandler’s stacking operations?  [Citation 1, item 1, as amended; OSH Act sec. 5(a)(1)].  

Decision:  No.  

• Was it a “serious” violation under section 17(k) of the Act for C&S to have failed to maintain written certification that the performance of the telehandler operator had been evaluated in the preceding three years? [Citation 1, Item 2; § 1910.178(l)(6)]. 

Decision:  Yes.  

As set forth below, the alleged violation of section 5(a)(1) is vacated.  The alleged serious violation of § 1910.178(l)(6) is affirmed, and a penalty of $5,461 is assessed.

FINDINGS OF FACT

Except where the following numbered paragraphs expressly state that evidence respecting a matter of fact was not presented or was not preponderant, the following facts were established by at least a preponderance of the evidence:

1. 1.C&S maintains its principal office in Syracuse, New York, and is engaged in the business of offering multiple disciplines relating to planning and designing construction projects.  (T. 12). 

Section 5(a)(1) Claim

Section 1910.178(l)(6) Claim
(Written Certification of Triennial Evaluation of Operator Performance)

DISCUSSION

The Commission obtained jurisdiction under section 10(c) of the Act upon the Secretary’s forwarding to the Commission C&S’s timely filed notice of intent to contest.  (T. 12).  29 U.S.C. § 659(c); 29 C.F.R. §§ 1903.17(a) & 2200.33.  C&S is an “employer” as defined in section 3(5) of the Act and is thus subject to the compliance provisions of section 5(a).  29 U.S.C. §§ 652(5) & 654(a).  (T. 12-13).

Amended Citation 1, Item 1
[Section 5(a)(1) claim]

Preemption of Section 5(a)(1) Claim by a Specific Standard

(o) Loading.  (1) Only stable or safely arranged loads shall be handled.  Caution shall be exercised when handling off-center loads which cannot be centered.

* * * *

(6) Extreme care shall be used when tilting the load forward or backward, particularly when high tiering.  Tilting forward with load engaging means elevated shall be prohibited except to pick up a load.  An elevated load shall not be tilted forward except when the load is in a deposit position over a rack or stack.  When stacking or tiering, only enough backward tilt to stabilize the load shall be used.

(Ex. C-46 at 10).  The other warning in the operator’s manual on which the Secretary relies (and which the Secretary also quotes in part in the section 5(a)(1) claim) is as follows:

Worksites

(Ex. C-46 at 13 of 19; T. 381-86).  

These excerpts from the operator’s manual are probative evidence on the matter of whether the employer or its industry recognized the alleged hazard.  K.E.R. Enters., Inc., 23 BNA OSHC 2241, 2242 (No. 08-1225, 2013) (“Manufacturers’ instructions and voluntary industry standards that contain explicit safety warnings regarding compliance may be probative evidence in establishing a general duty clause violation”).

The CO, upon being asked to explain his “understanding of [what] the danger zone in this forklift operation … consisted of,” testified:

[O]n these specific conditions, [the danger zone] would have been anywhere in the fall shadow of the material, which was elevated and stacked in a manner that could become unstable, and so we can anticipate a direction of travel for this material, and it fell in much the same way as one might have anticipated, and the danger zone would have been anywhere in that -- anywhere you could be struck by that material.

(T. 122).  The CO was not offered or qualified to provide expert opinion testimony, but his testimony as to his view of the “danger zone” is probative on that issue of fact.  Cf. Falcon Steel Co., 16 BNA OSHC 1179, 1191 (No. 89-2883, 1993) (consolidated) (noting that an “experienced compliance officer’s reasonable suggestion” on a technical matter may be sufficient for the Secretary to make out a prima facie case without having to present expert testimony on the matter).

The Secretary also relies on the testimony of another OSHA employee who is a registered professional engineer (RPE) and who was qualified to provide expert opinion testimony in the field of “civil engineering with a specialization in structural engineering and material collapse.”  (T. 288-89, 298-99).  The RPE testified to the following two opinions from his written report:

(1)         C&S’s forklift operation, which involved dropping a pole on top of unsecured poles, created an obvious instability hazard of unplanned movement of the poles on the surface of the flatbed where the victim was standing.

(2)         It was essential to keep employees out of the danger zone especially considering the obvious instability hazard introduced by C&S’s forklift operation and the configuration of the poles on the flatbed.

(Ex. C-41 at 8; T. 286-87).  

The RPE reliably and credibly testified that the unsecured front stack was susceptible to moving because the pole on the top of the stack exerted horizontal force against the two poles on the bottom, creating the “obvious instability hazard” that he referred to in his two formally expressed opinions.  (T. 337).  The RPE regarded the area around the front stack to be a “danger zone” regardless of whether any stacking operation was in progress, “because the poles are not in a stable condition” and “the top poles always exerts … [horizontal] force on the bottom poles.”  (T. 340-41).  In other words, the RPE opined that the stack on the front half of the flatbed was a hazard in and of itself.

The RPE was not qualified as an expert as to safe practices in forklift operation.  While some of his work at OSHA relates to the operation of forklifts, the RPE allowed that “the safety aspects of the forklift usually is done by the [OSHA] area office.”  (T. 319-320).  Nevertheless, his view of the danger zone of the telehandler’s stacking operation aligned with the CO’s view that the danger zone was anywhere in the “fall shadow” of the unsecured stack of cylindrical-shaped (dodecagon) pole segments on the front half of the flatbed.  The RPE testified that “to me, standing near the pole [on the front half of the] flatbed trailer is within the danger zone,” because “there the pole can fall down or the pole can move … unless it is very secured on the trailer.”  (T. 314-15).  

In contrast to evidence relied on by the Secretary, C&S presented the testimony of a witness who was qualified to provide expert opinion testimony as a “construction safety expert.”  (T. 349).  This witness had worked as a safety professional for OSHA for 26 years, the final eleven years as the director of an OSHA area office.  In his work as an OSHA CO, the witness had conducted inspections and investigations involving forklift accidents.  In his work as both an assistant area director and then as an area director for OSHA, he reviewed the results of investigations and inspections involving forklift accidents.  (T. 347).  After retiring from OSHA in 2013, he personally trained over 100 workers on rough terrain forklifts.  (T. 346-48).  

This safety expert testified that the “common industry practice” is that a forklift’s “danger zone” is regarded to be ten feet from the machine.  The safety expert testified that when he trains workers in the operation of rough terrain forklifts, he describes the danger zone in those terms.  He recognized, however, there is potential for elasticity in the physical extent of the danger zone, and he noted that at least one large company identifies the danger zone to be less than ten feet.  (T. 345, 351-52, 364-65; Ex. R-1).  

Applying this described industry recognized understanding of the telehandler’s danger zone, the expert testified that the Spotter had not been positioned within the danger zone of the telehandler’s stacking operation.  (T. 345, 351-52; Ex. R-1).  The witness explained that the only stacking operation in progress when both stacks collapsed was the stacking of the pole segments on the back half of the flatbed, and that the stacking operation respecting the front stack had been completed.  (T. 356, 367-70).  The expert ventured no opinion on whether the Spotter’s position near the front stack was within any recognized danger zone other than the industry recognized danger zone of the telehandler’s stacking operation on the back stack.  (T. 356, 367-70).  

Employer Recognition of the Hazard

The preponderant evidence fails to establish that either C&S or its industry recognized that the position of the Spotter was within the danger zone of the telehandler’s stacking operation and thus the evidence fails to establish an element of the alleged section 5(a)(1) claim.  Citation 1, Item 1, as amended to allege that claim, must therefore be vacated.

Citation 1, Item 2
[§ 1910.178(l)(6]

Item 2 of the Citation, which the second amended complaint adopts, alleges a serious violation of § 1910.178(l), which prescribes training requirements for operators of powered industrial trucks.  The Secretary alleges that C&S violated subparagraph (6) of that training standard, which provides as follows:

Certification.  The employer shall certify that each operator has been trained and evaluated as required by this paragraph (l).  The certification shall include the name of the operator, the date of the training, the date of the evaluation, and the identity of the person(s) performing the training or evaluation.

One of the “evaluations” required by paragraph (l) is prescribed in its subparagraph (4)(iii), which provides: “An evaluation of each powered industrial truck operator's performance shall be conducted at least once every three years.”  The citation item specifically alleges C&S to have violated § 1910.178(l)(6) for having failed to certify that this triennial evaluation had been performed for the Operator:

On or about 11/5/2020, a foreman used a JCB 512-56 Tele handler all-terrain forklift to stack twenty-foot sections of decommissioned monopole towers, each weighing approximately 8,000 lbs., in tiers onto a flatbed trailer in preparation for transport the following day.  The employer did not certify that the foreman’s performance operating the forklift was evaluated at least once every three years.

To establish liability for the alleged violation of a specific OSHA standard such as alleged here, the preponderant evidence must show: (1) the standard applies; (2) there was noncompliance with its terms; (3) employees were exposed to, or had access to, the violative condition; and (4) the cited employer had actual or constructive knowledge of the violative condition.  Donahue Indus. Inc., 20 BNA OSHC 1346, 1348 (No. 99-0191, 2003); D.A. Collins Constr. Co. v. Sec’y of Labor, 117 F.3d 691, 694 (2d Cir. 1997).

All elements of the alleged violation of § 1910.178(l)(6) have been plainly established, and C&S advances no argument to the contrary.  The telehandler that the Operator was operating is a type of powered industrial truck covered by the standard, and so the standard applies.  See Powered Industrial Truck Operator Training (Final Rule), 63 Fed. Reg. 66238, 66241 (to be codified at 29 C.F.R. parts 1910, 1915, 1917, 1918 and 1926) (describing “rough terrain forklift trucks” as a type of industrial truck to which training requirements of § 1910.178(l) apply).  C&S did not comply with the standard because it had not maintained a written record of the Operator’s performance having been evaluated in the manner required by § 1910.178(l)(4)(iii) within the preceding three years.  The Operator and Spotter were exposed to this violation in that the Operator was operating the telehandler in the absence of a written record that the formal triennial evaluation had been conducted.  C&S had actual knowledge that it had not maintained a written record of the Operator’s performance having been formally evaluated in the preceding three years.  See Lane Constr. Corp., 23 BNA OSHC 1097 (No. 09-0348, 2009) (ALJ) (“As the employer, Lane had actual knowledge of its training program”).  

While C&S does not dispute having violated the standard, it disputes the Secretary’s characterization of the violation as “serious,” asserting rather that the violation is de minimus.

A violation is de minimis if it has “no direct or immediate relationship to safety or health.”  29 U.S.C. § 658(a); Star Brite Constr. Co., 19 BNA OSHC 1687, 1691 (No. 95-0343, 2001).  A de minimus classification “is limited to situations in which the hazard is so trifling that an abatement order would not significantly promote the objectives of the Act.”  Dover Elevator Co., 15 BNA OSHC 1378, 1382 (No. 88-1642, 1991).

C&S’s failure to maintain a written certification of the required triennial evaluation of an operator’s performance is not de minimus.  Compliance with the written certification requirement has a direct and immediate relationship to safety in that the failure to conform with the requirement heightens the risk that the required evaluation would be overlooked and not properly conducted, thereby increasing the risk of serious injury or death in the operation of a powered industrial truck by an operator who was no longer qualified.  See 63 Fed. Reg. at 66261 (stating that OSHA “believes that the final rule's certification requirements will provide the assurance necessary that the operator has been trained and evaluated, as required by the standard”).  

Section 17(k) of the Act defines a “serious” violation to be one for which “a substantial probability that death or serious physical harm could result from a [violative] condition which exists, or from one or more [violative] practices, means, methods, operations, or processes which have been adopted or are in use.”  29 U.S.C. § 666(k); Mosser Constr. Inc., 23 BNA OSHC 1044, 1046 (No. 08-0631, 2010).  It need not be shown that there is a substantial probability death or serious physical harm would be the consequence of a violation, but rather that death or serious physical harm could result from non-compliance.  Mosser Constr.; Wal-Mart Stores, Inc., v. Sec’y of Labor, 406 F.3d 731, 735 (D.C. Cir. 2005).

As previously noted, the standard requires employers to maintain a certification record of the required triennial operator evaluation in order to “provide the assurance necessary that the operator has been … evaluated” in the manner required by the standard.  63 Fed. Reg. at 66261.  “The required evaluation does not have to be a formal, structured exercise,” and could be as simple as having a person with the requisite skills, knowledge, and experience observe the operator performing several typical operations to ensure that the powered industrial truck is being operated safely and asking the operator a few questions related to the safe operation of the vehicle.”  Id. at 66260.  

The violation here is “serious” for the same reason that it is not de minimus: the failure to comply with the written certification requirement heightened the risk that the required evaluations would be overlooked and not properly conducted, which increases the risk of serious injury or death from an unqualified employee operating a forklift.  Cf. Home Rubber Co., LP, No. 17-0138, 2021 WL 3929735, at *8 (OSHRC, Aug. 26, 2021) (stating that the triennial evaluation required by § 1910.178(l)(4)(iii) “clearly contemplates an intentional and specifically directed evaluation of a forklift operator's performance that is in addition to the ongoing, casual observations that occur in most workplaces”).  Moreover, the absence of any evidence that the Operator’s performance had been formally evaluated within the preceding three years suggests that no such evaluation had been conducted.  In contending that the violation was de minimus and not serious, C&S could reasonably have been expected to present evidence that the required formal evaluation had been conducted but simply had not been documented in the manner that the cited standard requires.  Cf. Pharmasol Corp., No. 16-1172, 2018 WL 5013447, at *29 (OSHRC ALJ, Sept. 4, 2018) (finding violation of § 1910.178(l)(6) to be other-than-serious where the employer had presented evidence that the required training had been provided but had failed to document the training in the manner that § 1910.178(l)(6) requires).  

Penalty

The Commission is the final arbiter of penalties.  Hern Iron Works, Inc., 16 BNA OSHC 1619, 1622, (No. 88-1962, 1994); see Valdak Corp., 17 BNA OSHC 1135, 1138 (No. 93-0239, 1995) (“The [OSH] Act places limits for penalty amounts but places no restrictions on the Commission’s authority to raise or lower penalties within those limits”), aff’d, 73 F.3d 1466 (8th Cir. 1996).  

“[T]he Commission has the authority to ensure that a penalty is not unduly burdensome or excessive by evaluating the penalty assessment criteria set forth in the Act and determining a reasonable and appropriate penalty based on that evaluation.”  S.A. Healy Co., 17 BNA OSHC 1145, 1151 (No. 89-1508, 1995), aff’d on other grounds, 138 F.3d 686 (7th Cir. 1998).  Section 17(j) of the Act requires the Commission, in assessing an appropriate penalty, to give “due consideration” to the “gravity of the violation,” the “size of the business of the employer,” the “good faith of the employer,” and the employer’s “history of previous violations.”  29 U.S.C. § 666(j).  Of these factors, gravity is the principal factor “and is based on the number of employees exposed, duration of exposure, likelihood of injury, and precautions taken against injury.”  Siemens Energy and Automation, Inc., 20 BNA OSHC 2196, 2201 (No. 00-1052, 2005).  

The maximum penalty for the serious violation proven here is $13,653.  29 C.F.R. § 1903.15(d)(3) (2021).  The Secretary has proposed that this maximum penalty be assessed.  The Secretary considered the violation to have been of “high” gravity on the rationale that the Operator “hadn’t been evaluated by his employer for well over 20 years” and that the death of the Spotter was “associated” with this perceived failure to evaluate.  (T. 134-35).  This articulated rationale in support of the maximum permissible penalty conflates the proven violation (failure to maintain a written certification of the required triennial evaluation) with the requirement § 1910.178(l)(4)(iii) to perform the triennial evaluation.  There is no positive evidence that the Operator’s performance either had or had not been evaluated within the preceding three years.  Rather, the record is silent on that issue of fact.  The Secretary’s proposed maximum penalty is thus grounded in the presumption that the Respondent had failed to comply with a standard that C&S was neither alleged nor proven to have violated.

The violative conduct proven was that C&S failed to maintain a written certification of the required triennial performance evaluation of the Operator.  This records violation is low gravity, not high gravity as the CO assessed.