OSHRC and Second Circuit argue scope of 1910.176(b)

This case is before the Commission on remand from the United States Court of Appeals for the Second Circuit. Administrative Law Judge Keith E. Bell affirmed a citation issued by the Occupational Safety and Health Administration, alleging that pallets of merchandise kept on racks at a distribution center were “stored in tiers” but not “blocked . . . so that they [were] stable and secure against sliding or collapse,” as required by 29 C.F.R. § 1910.176(b). The Commission vacated the citation on review, concluding that the cited provision did not apply because “stored in tiers,” as used in § 1910.176(b), is limited “to articles stacked one on top of another with nothing in between.”

On appeal, the Second Circuit reversed the Commission’s decision, concluding that “the plain language of [§ 1910.176(b)] appl[ies] to material arranged one above another vertically, including on shelves, not just materials stacked directly on top of another.” The court remanded the case for consideration of whether the Secretary established the remaining elements of the alleged violation.

For the following reasons, we conclude the Secretary has established that the facility failed to comply with § 1910.176(b), that it’s employees were exposed to the violative condition, and that the company had knowledge of that condition. Accordingly, we affirm the citation.

BACKGROUND

The distribution center processes between 45,000 and 50,000 pallets of merchandise per week to fill orders placed by its stores.
Pallets are stored on approximately 30-foot-high racks, with one pallet per rack level.
The racks are positioned back-to-back, such that pallets are accessible by forklift only from aisles at the fronts of the racks.
At each rack level, a 48-inch-long and 40-inch-wide pallet rests on the front and back beams of the rack, which are 42 inches apart.
- This means that each pallet, when properly placed, overhangs the beams by three inches at the front and back.
- Pallets on back-to-back racks are positioned about four to five inches from one another.
Each rack has seven (7) or eight (8) levels, the lowest of which is the “10 slot” on the distribution center floor, with the “20 slot” just above it.
- These two levels are also known as “pick slots,” from which employees retrieve items to fill merchandise orders.
- The 20-slot has an additional beam that runs front-to-back in the center and allows employees to remove empty pallets, each weighing more than 60 pounds, without them falling into the space between the front and back beams.
The upper levels, where pallets of excess merchandise are placed, are known as “T slots” or “reserve locations” and do not have additional front-to-back beams.
- When pallets in the pick slots run out of merchandise, they are removed by hand and replaced, via forklift, with stocked pallets from the T slots above.

On February 25, 2017, an order filler at the distribution center sustained neck and spinal injuries when she was struck by falling merchandise while retrieving items from a pick slot. A forklift was pulling a stocked pallet from the T slot of a rack immediately behind the rack from which they were filling orders when the pallet bumped another stocked pallet stored in a T slot in the aisle where they were working. The bumped pallet tipped into the space between the rack’s front and back beams, causing some items on the pallet to spill out into the aisle and strike the employee.

The Secretary alleges a violation of § 1910.176(b), which provides as follows:

Secure storage.

Storage of material shall not create a hazard. Bags, containers, bundles, etc., stored in tiers shall be stacked, blocked, interlocked and limited in height so that they are stable and secure against sliding or collapse.

The Secretary asserted in his post-hearing brief to the judge that the business failed to comply with the provision because

“there were no bumpers, barriers, or other devices to block a bumped pallet from sliding perpendicular to the beams and tipping,” and

“the thin beams and large gap between the beams [means that] a bumped pallet needed only to slide a matter of inches to slide off of one of the beams.”

The judge agreed with the Secretary, finding that “[g]iven the dynamic atmosphere of this distribution center where pallets and their contents are constantly being placed and pulled from the racks, it is clear to see why these . . . pallets . . . become unstable when struck by moving equipment.” The business contends that this was an error because the Secretary failed to prove the pallets are not “stable and secure against sliding or collapse,” given that their instability occurs only when they are dislodged by a forklift. 29 C.F.R. § 1910.176(b). The business further argues that the company’s racking system cannot be considered non-compliant with § 1910.176(b) because it is widely used in the warehousing industry.

To begin, § 1910.176(b) requires stored materials to withstand outside forces. The standard defines none of the following terms, but:

(1) “secure” means “free from danger” and “affording safety”;

(2) “slide” means “to change position or become dislocated”; and

(3) “collapse” includes in its definition to “fall into a jumbled or flattened mass through the force of external pressure.”

Webster’s Third New International Dictionary of the English Language Unabridged 443, 2053, 2142 (1971) (emphasis added). Putting these definitions together, a plain language reading of § 1910.176(b) DOES NOT limit an employer’s compliance obligation to simply ensuring that materials are stored such that they will not give way under their own weight.

Contrary to the business’s claims on review, this reading of § 1910.176(b) is consistent with two Commission cases in which violations of the provision were affirmed. In Pratt & Whitney Aircraft, 9 BNA OSHC 1653 (No. 13401, 1981), the Commission found noncompliance with § 1910.176(b) where “three pallets of metal barrels” could be toppled by “mechanical handling equipment used in the area.” The Commission stated that “the Secretary need not prove that the barrels could fall off by themselves”; rather, “[p]roof that the barrels were on pallets in areas used by mechanical handling equipment [was] sufficient.” Three years later in Clement Food Co., the Commission stated that § 1910.176(b) “is not limited by its words to stacks so unstable that they might collapse of their own weight,” and found noncompliance where three witnesses testified that “a tiered stack of boxes fifteen feet high” could be knocked over by “any shock or vibrations from forklift trucks and machinery in the area.” In each of these cases, the § 1910.176(b) violation was unquestionably based on the materials at issue potentially being dislodged by an outside force. Thus, business’s attempt to distinguish these cases based on the materials at issue being inherently unstable is unfounded.

Here, the outside force dislodging materials was not merely potential—the record shows that forklifts routinely tipped pallets stored on the distribution center’s racks, causing merchandise to fall to the floor from reserve locations as high as 30 feet. The injured worker testified that “[r]oughly, during my [three-day] work week,” items would fall from pallets after being dislodged “three to four times during that [time].” The OSHA compliance officer who inspected the distribution center testified that a facility employee told him that “material falling through the rack . . . was a problem and something that needs to be fixed to avoid somebody getting hurt.” According to the distribution center’s asset protection manager, “[w]e would have, probably, an incident in the racking, we call it a tipped pallet, because frequently it will tip, but not fall, maybe a couple of times a month.” Likewise, the distribution center’s general manager testified that items fall from pallets dislodged by forklifts “a few times a month.” We find this evidence shows that the way the business stored its pallets—overhanging the front and back rack beams by only 3 inches, with pallets on back-to-back racks only 4 to 5 inches apart—was not “stable and secure against sliding and collapse” caused by a known and frequently occurring outside force. 29 C.F.R. § 1910.176(b).

As to the business’s assertion that its racking is industry-standard, the company has provided no evidence to support this claim beyond a single statement made by its general manager that the center’s “selective racking [is] standard in the industry.” In fact, the business effectively concedes that this bare assertion stands alone in this regard, as the company notes only that the general manager’s testimony was uncontradicted at the hearing. Even if the business‘s racks are industry-standard, “[w]hatever the practice of an industry, . . . members of it are required to take into account all available, factual information relating to whether hazardous conditions exist, or reasonably could exist, where work is being performed.” As such, the undisputed awareness of two facility managers that pallets regularly tip and spill merchandise establishes a known hazard, regardless of any purported industry-standard practice. Therefore, the Secretary has established a failure to comply with § 1910.176(b).

Exposure

“To establish exposure, the Secretary must show that an employee was actuallyexposed to the cited condition or that access to the cited condition was reasonably predictable.” The judge found that the injured worker “had access to the hazard [of falling merchandise] and was within the zone of danger to perform her assigned task at the time of the [incident].” The business attempts to sidestep this incident, asserting that the injured employee’s exposure resulted from her having broken the company’s “twenty-foot work rule,” which requires employees to stay at least twenty feet from a forklift when its forks are raised. The business also argues, somewhat in the alternative, that the citation was not based on the injured worker’s exposure, but rather on that of employees at the distribution center, generally, and that the company’s work rule made it such that exposure was not reasonably predictable.

The business’s arguments are predicated on a misunderstanding of our exposure jurisprudence. As noted, “[e]xposure to a violative condition may be established either by showing actual exposure or that access to the hazard was reasonably predictable.” The business does not dispute that the injured worker was struck by falling merchandise at the distribution center, so actual exposure has been established regardless of whether the company’s twenty-foot rule was violated. Additionally, where a citation alleges hazards affecting multiple employees, the “[e]xposure of only a single employee to a zone of danger has been universally accepted by the courts and the Commission to satisfy the element. Therefore, we find the Secretary has established that employees were exposed to the violative condition here.

Knowledge

“Knowledge of the violative condition, either actual or constructive, is an element of the Secretary’s burden of proving a violation: the Secretary must prove either that the employer knew of the violative condition or that it could have known with the exercise of reasonable diligence.” “[K]nowledge can be imputed to the cited employer through its supervisory employee.” The judge found that the business had actual knowledge based on testimony from:

(1) the injured employee “that she personally informed a couple of managers of her concerns regarding items falling”;

(2) the distribution center’s general manager said “that merchandise occasionally falls from the racking when struck by a lift driver” and that “he received reports regarding tipped pallets and [was] aware that it happens at least a few times per month”; and

(3) the distribution center’s asset protection manager “that material falls off the reserve level of the selective racking system when hit by an associate, causing a pallet to tip.”

In the face of this evidence, the business‘s only response is that “[w]hile the testimony demonstrated that [the company] was aware that pallets were partially displaced from racking a few times per month, there was no indication that [the business] had knowledge that this was a violative condition.”

Again, this argument is premised on the business’s misapprehension of the law. “The knowledge element of a violation does not require a showing that the employer was actually aware it was in violation of an OSHA standard; rather, it is established if the record shows that the employer knew . . . of the conditions constituting a violation.” Here, the testimony relied upon by the judge shows that Walmart managers were aware the pallets stored on the racks were not blocked and therefore were not “stable and secure against sliding or collapse.” 29 C.F.R. § 1910.176(b). Their knowledge is properly imputed to the company.

For these reasons, we find that the Secretary has established employer knowledge, in addition to noncompliance and exposure, and therefore affirm Citation 1, Item 1.

CLICK HERE for the case file

Related Posts