Anchor Hocking Glass Company, Inc.

Plain-English summary

Anchor Hocking makes consumer glassware at a plant in Lancaster, Ohio. After a
reported fatality, an OSHA compliance officer inspected the plant's large pack-and-
ship department, where forklifts move up to 4,000 pallets a day through a wide
main aisle, and issued a citation with three serious items. The company contested,
and Judge Michael H. Schoenfeld heard the case with expert testimony on both
sides. One item, citing § 1910.178(l), was dismissed during the hearing.

The judge vacated both parts of item 1, which cited § 1910.176(a). On item 1(a),
he found the Secretary did not prove that pallets temporarily staged in the wide
aisle actually created a hazard, giving more weight to the company's expert than
to the compliance officer. On item 1(b), he held the aisle-marking standard does
not require separately marked pedestrian walkways once the forklift aisles are
marked with paint, and the constantly changing production layout would make any
"permanent" pedestrian aisle hard to identify. The judge affirmed item 3, under
§ 1910.178(n)(4), which requires operators to slow down and sound the horn at
intersections where vision is obstructed; the video showed drivers not doing so at
a T-intersection where four-foot pallets could block the view, and an overhead
mirror reduced but did not remove the obstruction. He rejected the company's
greater-hazard defense. Finding the violation serious but of moderate gravity for
a large employer with a good safety program and no prior violations, the judge cut
the proposed $7,000 penalty (the statutory maximum) to $2,100.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.176(a); 29 C.F.R. § 1910.178(n)(4)
• Outcome: Items 1(a) and 1(b) (§ 1910.176(a)) vacated; item 3 (§ 1910.178(n)(4)) affirmed serious, penalty reduced from $7,000 to $2,100; a separate § 1910.178(l) item was dismissed at the hearing
• Key point: An obstructed aisle violates the housekeeping standard only if a hazard is actually shown, and the materials-handling aisle-marking rule does not compel separate pedestrian-walkway markings, but a four-foot pallet at a T-intersection is a vision obstruction that triggers the slow-down-and-sound-horn duty even with an overhead mirror present.

Full text (OSHRC public release)

                                United States of America
        OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                          .
                          1 120 20thStreet, N.W., Ninth Floor
                              Washington, DC 20036-34 19

                                                    Phone: (202) 606-5 IO0
SECRETARY OF LABOR                                   Fax:(202)  606-5050
            Complainant,
      v.                                                        OSHRC DOCKET
                                                                NO. 94-0178
ANCHOR HOCKING GLASS CO.
            Respondent.


                     NOTICE OF DOCKETING
               OF ADMINISTRATIVE MW JUDGE’S DECISION
     The Administrative Law Judge’s Report in the above referenced case was
docketed with the Commission on January 19, 1996. The decision of the Judge
will become a final order of the Commission on February 20, 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.
An such etition should be received b the Executive Secretary on or before
Fe&uary ! 1996 in order to ermit sIlk c&t time for its review. See
Commissiob Rule’ 91, 29 CF. k .2200.91.
   All furber pleadings or communications regarding this case shall 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. DO%
                       Room S4004
                       200 Constitution Avenue, N.W.
                       Washington, DC. 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 nghts may contact the Commission’s Executive
Secretary or call (202) 606-5400.
                                          FOR THE COMMISSION


Date: January 19, 1996
DOCKET NO. 94-0178
NOTICE IS GIVEN TO THE FOLLOWING:



Benjamin T. Chinni
Associate Regional Solicitor
Office of the Solicitor, U.S. DOL
Federal Office Building, Room 881
1240 East Ninth Street
Cleveland, OH 44199



Thomas V. Williams, Esq.
William W. Ford, III, Esq.
Frost & Jacobs
One Columbus Suite 100
10 West Broad Street
Columbus, OH 43215



Michael H. Schoenfeld
Administrative Law Jud e
Occupational Safety an tf Health
 Review Commission
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419




00103341285:05
                                      UNITED STATES OF AMERICA
          OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                        One Lafayette Centfe
                                  1120 20th Street, N.W. - 9th Floor
                                     Washington, DC 2003M19


SECRETARY OF LABOR,
                    Complainant
                         IL                                            DOCKET NO. 94-O178
 ANCHOR HOCKING GLASS COMPANY,
 INC.,
                    Respondent.

Appearances:            Kenneth Walton, Esq.
                        Office of the Solicitor
                        United States Department of Labor
                                For Complainant

                        Thoks    V. Williams, Esq.
                                and
                        William W. Ford, III, Esq.
                        Frost and Jacobs
                                For Respondent

BEFORE: MICHAEL H. SCHOENFELD,
               Administrative Law Judge



                                  DECISION AND ORDER


Background and Procedural History


       This case arises under the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651 -
678 (1970) (“the Act”).
                                                  - 2-

           Having had its worksite inspected by a Compliance Officer of the Occupational Safety and
Health Administration, Anchor Hocking Glass Company, (“Respondent” or “Anchor”) was issued
one citation alleging three serious violations of the Act. A civil penalty of $7,000 for each of the
alleged violations was proposed.
           Respondent timely contested. Following the filing of a complaint and answer and pursuant
to a notice of hearing, the case came on to be heard on August 15 and 16, 1995. No affected
employees sought to assert party status. Both parties have filed post-hearing briefs.


Jurisdiction


           Complainant alleges and Respondent does not deny that it is an employer engaged in the
manufacture of consumer glassware. It is undisputed that at the time of this inspection Respondent
was engaged in such manufacturing activities at a plant in Lancaster, Ohio, which is the subject of
the inspection in this matter. Respondent does not deny that it uses tools, equipment and supplies
which have moved in interstate commerce. (Complaint and answer.) I find that Respondent is
engaged in a business affecting interstate commerce.
           Based on the above finding, I conclude that Respondent is an employer within the meaning
of § 3(5) of the Act.* Accordingly, the Commission has jurisdiction over the subject matter and the
parties.


Statement of Facts


           At its production facility in Lancaster, Ohio, Anchor manufactures a variety of consumer
glassware. The facility consists of an area for receiving raw materials, mixing the materials and
melting them down into molten glass. The liquid glass flows and slowly cools into “globs” of
malleable material which is dropped into molds to form each individual piece of glassware. The


* Title 29 U.S.C. § 652(5).
molds, on a continuous conveyor (“lehr”), pass through ovens which change the consistency of the
molded materials to the desired shape and form. There is a cooling down process after which the
glassware continues moving on the lehr to the pack and ship department where the glassware is
removed from the lehr, packed and placed on wooden skids for further movement to wrapping then
to shipment or storage. (Tr. 191-195)² There are as many as 14 separate production lines feeding
into the pack and ship department.       The last stage of each production line is not necessarily
configured in the same manner. Different types of tables, roller conveyors or work surfaces and
areas might be used depending upon the particular type of product being produced on a particular
line at a given time. The configuration of the production lines can change as frequently as twice per
shift. (Tr. 185, 206).
          As the finished glassware is removed from a line it is packed with the packages then being
stacked on wooden pallets which measure either 48” x 40” or 54” x 60”, depending on the nature of
the product. (Tr. 83, 211, 306). Each completed pallet is checked by a “checker”, a process
generally completed before a forklift operator picks up the pallet from the end of the production line
(lehr).    (Tr 241). Up to 4,000 pallets, 1,200 of finished goods and the remainder “auxiliary
materials,” are moved daily during the busy months. (Tr. 201). Each shift has one full time regular
checker. (Tr. 256). During a shift each forklift operator is assigned to specific production lines
(lehrs) from which he is to remove completed pallets and to whom he is to supply empty pallets (Tr.
204). Every completed pallet is moved by forklift to a shrink wrapping machine immediately
adjacent to an elevator which moves the wrapped pallets to a basement area for storage or shipment.
(Tr. 198). During its busy time of year (the second half of each calendar year) some pallets must
be “staged” temporarily to be checked before they are wrapped. (Tr. 202, 207-08, 252, 268.).         The
area used for such staging is located adjacent to the shrink wrap machine, directly across the main
aisle from the employee brake room. (Tr. 209-10, R-5 [marked with an ‘Y’]). The same area has
consistently been used for staging. (Tr. 87, 235).
          The pack and ship department is essentially a very large open room something on the order


2 References to the record of testimony in this case are as follows: Transcript of proceedings, Tr.
     References to Complainant’s, Respondent’s or Administrative Law Judge’s exhibits are as
follows: CX
of 200’ in width by approximately 300’ in length interspaced with columns (J-l). The lehrs extend
into the room along one of the longer walls    (J-l; R-5). Each lehr extends a somewhat different
length into the department depending upon the type of glassware being produced on that line and the
nature of the finishing process and packing process needed for that ware. Production lines, regardless
of configuration, did not extend into the main aisle. (Tr. 227). The “main aisle” for forklift traffic
extends almost the entire length of the department (Tr. 171, 283, R-5) near the side of the room
opposite the side where the lehrs enter the department. The width of the main aisle ( between
columns) was 18’4” (Tr. 83, 305). An employee “brake room” and bathrooms were located in a
cinder block structure contained within the department. A pedestrian walkway, approximately 3’
in width, had been painted along the side of the brake room structure along the main aisle (where
the bulletin board was located) and the side adjacent (perpendicular) to it which adjoined the main
aisle directly across from the shrink-wrap machine and elevator. (Tr. 155-57, 226-27, J-l, C-6 and
R-5). The pedestrian walkway did not extend much beyond the ends of the brake rooms structure
itself.
          As a result of a reported fatality, OSHA Compliance Officer Rex Blevins conducted a safety
inspection of the pack and ship department. He set up a stationery video camera which recorded the
activities near the staging area. He taped the activities for about four hours covering the later part
of the second shift and beginning of the third shift. (Tr. 58). In preparation for the hearing, the
Compliance Officer “edited” the tape to a length of approximately 24 minutes. During the hearing,
he played the tape and gave a description of the activities of the four forklifts shown.           His
descriptions included several instances of pallets being left in the aisles, employees conversing in
the middle of an aisleway, forklift operators entering a “blind” intersection without slowing down
and several instances of employees walking in the aisles. (Tr 29 - 41) OSHA, based on Blevins’
inspection, issued the citations to Anchor which are in issue in this matter.³


3 One item of the citation, alleging a violation of the standard at 29 C.F.R. § 1910.178(l), was
dismissed during the course of the hearing. (Tr. 128 - 41).
29 C.F.R. § 1910.176(a)⁴


       This   item of the citation charged that Anchor failed to comply with the cited standard in that;
                the employer did not ensure that the aisles were kept clear in that
                pallets of ware were left in the aisle where two way forklift traffic and
                pedestrians were present at the same time.

       The Compliance Officer pointed to several scenes during the video tape playback in which
a pallet was left in the aisle. On one occasion two pallets were protruding into the aisle. He was of
the opinion that the hazard of placing pallets in the aisle was that forklift operators had to operate
in closer proximity to one another and had less room to maneuver and that the view of a forklift
operator could be obstructed by the pallet of ware. (Tr. 43).
       The Secretary acknowledges that aisles need not be completely free of objects but that an
employer cannot obstruct aisles in such a manner as to create a hazard. Hughes Tool Co., 6 BNA
OSHC 1366 (No. 15086, 1978). Under the circumstances in this location, a high tc                area, the
hazards created, according to the Secretary, were the impossibility of two forklifts passing through
the area at the same time while simultaneously leaving enough room for a pedestrian to travel in the
pedestrian walkway and the problem of a checker, checking the pallet while standing in the aisle as
“other traffic goes by.”
        Respondent argues that even though pallets may have been temporarily staged in such a
manner as to protrude into an aisle, there was no violation of the cited standard because no hazard
existed. (R. Brief, p. 9). Citing an unreviewed judge’s decision in General Motors Corp., Packard
Electric Div., 7 BNA OSHC 1205 (No. 78-1368)(ALJ)(Digest), Respondent maintains that in order
to show a violation of this standard the Secretary must demonstrate that aisles were obstructed in
such a manner as to create a hazardous condition.

       According to Respondent, the fact that greater clearances (in inches) existed at Anchor due


4 The standard provides, in pertinent part;
              Aisles and passageways shall be kept clear and in good repair, with
              no obstruction across or in aisles that could create a hazard.
               Permanent aisles and passageway shall be appropriately marked.
to its “mammoth” main aisle, than were present at General Motors, there was no hazard. Respondent
also claims that the staging of ware in the aisles was not unexpected thus was not a hindrance or
surprise to operators.       Respondent notes that the forklifts were not, as the Compliance Officer
thought, traveling randomly in the department. They were assigned specific lehrs to service and
each had its own established traffic pattern to follow. (Tr. 50, 204). In addition, Respondent
maintains that its training program taught its operators to be “aware, courteous and cautious.”
Finally, Respondent looks to the opinion offered by its expert witness regarding his conclusion that
the conditions created by the staging of pallets in the aisles did not create a hazard under the cited
standard.
             The parties agree on the correct interpretation of the standard.     It does not forbid all
obstructions in aisles, but only those which create a hazard. Compliance Officer Blevins opined that
the manner in which the pallets were obstructing the aisle created a hazard. Mr. Vaughan opined just
the opposite.       I find that the greater weight of credible evidence demonstrates that there was no
particular     hazard created by the placement of pallets in the aisles as shown on the video tape and as
described by the Compliance Officer. In reaching this conclusion I accord more probative weight
to the opinion of Mr. Vaughan than that of Compliance Officer Begins. Mr. Vaughan’s experience
is far greater. He was specifically qualified as an expert witness. Mr. Vaughan carefully approached
the question, he seemed to know far more about Anchor’s operations generally and, more
importantly, was more familiar with the operations in the pack and ship department. He was careful
in taking measurements of the conditions at the department and comparing them to dimensions
discussed in other cases. He also had more thoroughly reviewed the video tapes. In addition he
more fully explained and justified his conclusions. Moreover, the Compliance Officer clearly relied
on some erroneous assumptions such as an asserted lack of planned traffic routes. Complainant’s
argument that Mr. Vaughan’s opinion is to be rejected because he did not consider certain factors⁶


5 Respondent identified and proffered Mr. Williams as an expert. At the hearing, he was found
to be qualified as an expert. (Tr. 300-01). While Compliance Officer Blevins was not so
proffered, he also offered opinion testimony of a type usually reserved for experts.

6 Secretary’s brief, n.3 at p. 6.
is rejected. Most importantly, Mr. Vaughan did consider pedestrian traffic. Secondly, he never said,
nor was he cross examined as to whether he failed to take into account the number of forklifts and
pallets involved.     Indeed, Mr. Vaughan reviewed the same videotape as that relied upon by the
Compliance Officer. It must be assumed that the same number of forklifts and pallets appear in each
copy of the tape.       In light of these factors, I find that the Secretary failed to show that the
obstructions in the aisles created hazards. Item 1(a) is VACATED.


Item 1(b)
29 C.F.R. § 1910.176(a)

        The Secretary alleged that “aisles and passageways, used by the employee pedestrians as a
means of egress and a passageway to the break area were [not] properly marked” as required by the
standard. See, footnote 4, supra.
        The Compliance Officer took the position that marked pedestrian walkways were required
throughout the department “wherever pedestrians may be walking.” (Tr. 113). The Secretary
correctly points out that specific pedestrian walkways were marked only in the area next to the brake
room and bathroom. He recounts an instance in which a forklift drove into an area reserved for
employee foot traffic⁷. He then relies on the Compliance Officer’s opinion that the failure to mark
pedestrian walkways in other areas presented “a hazard” and the fact that the incident which
precipitated the inspection apparently occurred in an area without a marked pedestrian walkway.
(Sec. brief, p. 6).
        Respondent argues that the standard does not apply because it is designed to protect forklift
operators not pedestrians. It also relies on its expert’s opinion that the standard does not require
pedestrian walkways (Tr. 311). Respondent points out that the materials handling standard cited
makes no mention of pedestrians at all, that aisles for forklift operation through out the pack and ship
department were, in fact, marked by paint (Tr. 108-09) and, perhaps, by columns. (Resp. brief, n. 12,
at p. 14).
            Respondent’s argument that employees other than forklift operators are not sought to be


’ Nobody was in the marked area at the time.
protected by the cited standard is rejected. Where, as here, operation of machinery or equipment
could endanger employees in the vicinity as well as the persons operating the equipment, it would
make little or no sense to interpret the standard so as to deny protection to one group and not the
other. Respondent’s reliance on the Commission decision in Love Box Company, 4 BNA OSHC
1138 (No. 6286, 1976) is not persuasive on this point. That decision merely states the proposition
that the standard cited there, 29 C.F.R. § 1910.22(b)(1), was not applicable to pedestrians.          It
provides neither binding precedent for interpretations of other standards nor does it provide
reasoning of any kind.⁸
       Having conceded that forklift aisles were marked by yellow paint along the edges (Tr. 108-
09) is fatal to Complainant’s case. The standard makes no distinction between aisles for forklifts
and walkways for pedestrians.      The Compliance Officer’s interpretation of the standard, while
perhaps laudatory in its intent, is not supported by the plain wording of the standard. The standard
nowhere defines the “aisles” and “passageways” to which it refers nor did the Secretary provide any
definition or specific rationale for his Compliance Officer’s broader interpretation. Finally, even if
the standard were held to require the marking of pedestrian walking areas as well as forklift
operating aisles, the unrebutted and credible evidence specific to this case as to the almost constantly
changing configuration of the lehrs (Tr. 221-23) would have to be taken into account by the
Secretary in identifying those “permanent” pedestrian aisles and pedestrian passageways which
should have been marked. No such attempt was made by the Compliance Officer. Accordingly, item
1(b) is VACATED.


Item 3
29 C.F.R. § 1910.178(n)(4)



        The cited standard requires that forklift operators “shall be required to slow down and sound
the horn at cross aisles and other locations where vision is obstructed.”



* The point was mentioned and specifically adhered to in Gulf Oil Corporation,                11 BNA
OSHC 1476, n.4 at 1478 (No. 76-5014, 1983).
                                                 -9-

       The Compliance Officer agreed that “there must be a blind intersection or an obstructed view
of the intersection” in order to initiate the slow down and horn blowing requirements. (Tr. 96). He
proceeded to try to demonstrate that the intersection of the main aisle and secondary aisle nearest
the corner of the brake room/bathroom structure immediately opposite to the shrink wrap machine,
was such an intersection (Tr. 105-06) and that operators, in fact, failed to slow down and sound their
horns when approaching or entering the particular intersection. The Compliance Officer alleged the
violation occurred only at the intersection immediately adjacent to which the forklift operators
placed the pallets of glassware to be shrink wrapped and put on the elevator. (Tr. 103-04).
       Ms. Homer, Superintendent of the department at the time of the inspection, testified that
because of the mirrors people could see (traffic in the main aisle) (Tr. 223-26).
       Complainant acknowledges the lack of a specific definition of “obstructed” in the standard
but argues that it must be read to mean that “a view is obstructed when the obstruction makes it
reasonably foreseeable that nearby workers might be hit.” (Sec. brief, p. 7)             He cites the
Commission decision in Georgia-Pacific Corp., 16 BNA OSHC 1171 (No. 89-2806, 1993).             In that
decision, the Commission, was called upon to resolve Respondent’s claim that the standard under
which it had been cited⁹ was unconstitutionally vague. The Commission defined obstructed view
as a condition in which something “‘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.” Georgia-Pacific Corp., supra, 16 BNA
OSHC at 1175. Complainant maintains that Respondent “does not seriously dispute that the
operators did not slow down and sound their horns....” (Sec. brief, pp. 8-9). The Secretary argues
that Respondent’s reliance on the presence of a mirror at the cross aisles is misplaced because the
presence of a mirror does not eliminate the obstruction. The Secretary implies that Respondent’s
reliance on its employees use of the mirror has been ineffective noting the Compliance Officer’s
testimony that the video tape shows that the operators did not, in fact, look at the overhead mirror
upon entering the intersection. He maintains that the standard requires that Respondent ensure that


g Georgia-Pacific Corp. had been cited under another sentence in 29 C.F.R. § 1910.178(n)(4)
which provides: “If the load being carried obstructs forward view, the driver shall be required to
travel with the load trailing.”
                                                 -10-

its drivers slow down and sound their horns.
        Respondent argues that it was in compliance with the standard. It also focuses solely on
forklift operators approaching the shrink wrap and elevator area from the aisle perpendicular to the
main aisle. First, Respondent argues that there was no obstructed vision at the intersection. Anchor
maintains that the “half-globe” mirror on the ceiling above the intersection, which was installed at
the request of the forklift operators, supplied sufficient unobstructed vision so as to meet the
requirements of the standard. Anchor also claims that the Compliance Officer conceded that the one
four-foot high load of ware on a pallet shown in the videotape was not an obstruction and that
without any evidence or support at all he claimed that pallets of greater height were somewhere in
a position so as to obstruct vision of the intersection. Respondent also argues that the Compliance
Officer failed to consider that any operator entering this intersection had three choices. He could
turn 90 degrees to either his right or left or he could go 22’ straight ahead across the main aisle to
the shrink wrap machine where he would have to stop. Respondent argues that in any of those
events a driver would be forced to slow down through the intersection.                Moreover, argues
Respondent, the Secretary presented no evidence whatsoever about the actual speed of the forklifts
other than the “vague assertions of the Compliance Officer” that travel was too fast.
        The intersection under consideration was in a “T” shape. It is clear that forklift drivers
approaching the intersection from either “arm” of the “T” had a clear view of conditions ahead.
Respondent ignores the fact that a driver in such a position would have difficulty seeing forklifts or
pedestrians approaching from the “base” of the “T” if materials were stacked near the corners of the
 intersection and if there were no overhead mirror.       Respondent’s position that there was no
 obstruction to vision is rejected. As a standard designed to protect all employees working in the
 area, whether they were on foot or driving another forklift, “obstruction” must be read to include
 pallets of material four feet high which could partially block an operator’s view of a person walking,
 standing, working or bending down behind the pallet.¹⁰ The degree of “obstruction” required to
 trigger the actions sought by the standard are also to be measured against the degree of difficulty in


 10 Given the duties of checkers, it is not unreasonable to believe that an employee      might   be in
 such a position in the performance of job duties.
                                                 -11-

compliance. In this case, it is a relatively simple matter to instruct and enforce a slow down and
sound the horn requirement at the one intersection specified by the Secretary. Thus, even accepting
Respondent’s argument that there were no pallets of sufficient height to totally obscure the vision
of the forklift operators at the intersection, the presence of the four foot high pallets constituted
vision obstructions sufficient to trigger the required actions ....slowing down and sounding the horn.
The fact that an overhead mirror was installed reduces but does not obviate the obstructed vision.
It lowers the degree of hazard but does not eliminate it. Respondent’s conclusion that its forklift
drivers traveled through the intersection “at reasonable, safe speeds” (Resp. brief, p. 17) is just as
speculative as the Compliance Officer’s asserted statement that they were traveling “too fast.” What
does matter is that the video tape confirms the charge that the operators did not slow down and sound
their horns upon approaching or entering the intersection.
        Respondent claims, as a matter of affirmative defense that if horns were used at that
intersection safety would decrease not increase. (Resp. brief, p. 17). Respondent’s position
amounts to a claim that requiring the use of forklift horns at the specified intersection would create
a greater hazard.
        In order to establish the “greater hazard” affirmative defense, an employer must demonstrate
by a preponderance of the evidence that (1) the hazards of compliance are greater than the hazards
of non-compliance, (2) alternative means of protection are unavailable, and (3) a variance was
unavailable or inappropriate. Spancrete Northeast, Inc., 15 BNA OSHC 1020 (No. 86-521, 1991).
In the absence of any claim or showing that a variance was unavailable or inappropriate, the defense
is rejected. Anchor takes the position that requiring the horns to be used at that intersection would
result in such frequent horn soundings that the intended warning effect would be eliminated.
Respondent’s argument amounts to challenging the requirement that the horn be used which is
specifically imposed    by the standard. The “wisdom” of the requirement is not subject to such
challenge in an enforcement proceeding.
        Respondent was thus in violation of the cited standard. Item 3 is AFFIRMED.
        The violation is serious as alleged. The results of an employee being hit by a forklift,
whether loaded or unloaded, even if traveling at a slow speed, clearly would likely be serious injury
or death. The penalty proposed by the Secretary, $7,000, which is the maximum allowable under
                                                  -12-

the Act, is not appropriate in this case.¹¹      Respondent is a large employer. The gravity of the
violation is moderate in that the hazardous condition frequently recurs during the course of a day
since the cited intersection is often used and there is a significant possibility that if an accident
occurs, it would result in severe injury or death. There is no evidence calling into question
Respondent’s good faith. It has a well developed safety program and it has apparently been fully
cooperative in the inspection. While there is a history of a fatal accident, there is, on this record, no
history of any prior violations under the Act. Considering the above factors, a penalty of $2,100
(33% of the maximum allowable amount) is appropriate.




                                        FINDINGS OF FACT


        All findings of fact necessary for a determination of all relevant issues have been made
above. Fed. R. Civ. P. 52(a). All proposed findings of fact and conclusions of law inconsistent with
this decision are hereby denied.




                                      CONCLUSIONS OF LAW


        1. Respondent was, at all times pertinent hereto, an employer within the meaning of § 3(5)
of the Occupational Safety and Health Act of 1970, 29 U. S. C. §§ 651 - 678 (1970).
        2. The Occupational Safety and Health Review Commission has jurisdiction over the parties
and the subject matter.
        3. Respondent was not in violation of the standard at 29 C.F.R. §§ 1910.176(a) as alleged
in item 1.




*I It is noted that no rationale whatsoever is even offered for the Area Director’s increasing the
proposed penalty for each of the three serious items from $5,000 to $7,000.
                                                      -13-

          4. Respondent was in violation of the standard at 29 C.F.R. § 1910.178(n)(4) as alleged in
Item 3.
          5. Respondent’s violation of the standard at 29 C.F.R. § 1910.178(n)(4) is a serious violation
of § 5(a)(2) of the Act for which a civil penalty of $2,100 is appropriate.


                                                 ORDER


          1. Items 1(a) and 1(b) of the citation issued to Respondent on or about December 17, 1993
are VACATED.
          2.   Item 3 of the citation issued to Respondent on or about December 17, 1993 is
AFFIRMED. A civil penalty of $2,100 is assessed therefor.




                                                 ,/          Michael H. Schoenfeld
                                                             Judge, OSHRC
Dated:            January 16, 1996
                  Washington, DC.