Citation 1, Item 1 is classified as “Serious” and alleges that Respondent violated 29 C.F.R. § 1910.176(b), stating that “employees are exposed to struck-by hazards from unstable material storage.” A penalty of $10,864.00 is proposed for this item. For the reasons that follow, the Citation is AFFIRMED, and the proposed penalty is assessed.
The Accident
[redacted] is an employee of Respondent, at a distribution center. On February 25, 2017, she was struck on her head, shoulders and back by items (can of crescent rolls) that fell from a pallet. As a result of her accident, she suffered an injury to her spine. At the time of her accident, [redacted] was filling orders which required her to go up and down the aisles to remove items from the rack. Although she did not see the items fall, she later learned that a pallet was tipped by another employee causing the items on the pallet to fall.
Storage Racks
Respondent uses a “selective racking” system which is the industry standard. The selective racking system has two orange beams (front and back) that are load beams where the stored merchandise rests. The selective racking system includes several slots used to store merchandise to fill orders. The slots on the floor are called “10” slots, and just above are the “20” slots. The slots closer to the floor are more commonly referred to as “pick” slots. The upper slots in the selective racking system are called “T” slots. The tallest T-slot is approximately 40 to 50 feet high.
A hauler brings merchandise to storage racks on pallets and leaves them on the floor in the aisles. Then, a driver assigned to put the items away places them in the T-slots. Merchandise placed in the T-slots eventually gets moved down to the “pick” slots which are used to fill orders. Throughout the day, employees move through the aisles to place or move merchandise on the racks. Occasionally, the driver putting the merchandise away hits the adjacent pallet while attempting to push the pallet into its designated slot. Sometimes, the pallet does not fall completely; but rather, items fall off the pallet. Due to the design of the selective racking system, there is nothing to stop a pallet from sliding when it is bumped.
Once a pallet is empty, it is pulled and stored in with other empty pallets in a separate location.
Inspection
The Distribution Center #6096 was inspected on March 28, 2017, by OSHA based on a complaint concerning an employee injury and an unsafe condition. The CO began his inspection with an opening conference conducted with General Manager (GM) and other managers. As part of his inspection, the CO walked through the worksite, conducted employee interviews, took photographs, and held a closeout conference before leaving. Following his inspection, the CO recommended that a citation be issued for a violation of 29 C.F.R. §1910.176(b). Based on the information gathered during his inspection, the CO determined that the citation should be characterized as “serious” with a proposed penalty in the amount of $10, 864.00.
Secretary’s Burden of Proof
The Secretary has the burden of establishing that the employer violated the cited standard.
To prove a violation of an OSHA safety or health standard promulgated under § 5(a)(2) of the Act, the Secretary must establish, by a preponderance of the evidence, that:
(1) the cited standard applies,
(2) there was a failure to comply with the cited standard,
(3) employees had access to the violative condition, and
(4) the employer knew or could have known of the condition with the exercise of reasonable diligence.
A preponderance of the evidence is “that quantum of evidence which is sufficient to convince the trier of fact that the facts asserted by a proponent are more probably true than false.”
Discussion
29 C.F.R. §1910.176(b) states:
“Handling materials-general. Secure storage. Storage of materials 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.”
In this case, the Secretary alleges that on March 28, 2017, and at all times prior, employees were exposed to “struck by” hazards from unstable material storage.
Applicability
The language of 29 C.F.R. §1910.176(b) plainly states that it applies to “storage of materials” and requires them to be maintained secure and stable to prevent sliding or collapsing. The violation at issue, in this case, resulted from an accident at the Distribution Center, where pallets of inventory were stored on racks until used to fill orders. Specifically, a pallet slid, when bumped, causing its contents (cans of crescent rolls) to fall through the racking system and strike [redacted]. Respondent argues that the “material” that fell on [redacted] is not covered by this standard because it was in the process of being placed into storage. However, this contention is not supported by the evidence. On the contrary, the evidence reveals that [redacted] was in the process of removing materials from the racks to fill an order when a pallet of crescent rolls, already in place, was dislodged by another pallet being placed on (or removed from) an adjacent rack. Respondents argument is unconvincing given its concession that the crescent rolls fell through the rack before striking [redacted] which is a clear indication that they were on the rack before the accident. The cited standard applies.
Standard Violated
That the pallet holding the crescent rolls that struck [redacted] was tipped or pushed by another pallet being placed or removed by a lift driver on an adjacent aisle is undisputed. Instead, the dispute centers on what caused the rolls to fall. The CO testified that the pallet of crescent rolls was stacked/racked in an unstable manner because it was resting only on a front and back beam with no other support. By contrast, Respondent contends that the pallet was stable in the racking system and would have remained so but for being displaced by another pallet which was being moved on an adjacent rack. Previously, the Commission has held that stacked material must be stable and secure even when struck by forklifts. Here, the Respondent uses 46” pallets on a 42” (measured from front beam to back beam) span selective racking system. That means that a perfectly placed pallet only has 2” of overhang on each beam to keep it in place. The General Manager (GM) testified that merchandise occasionally falls from the racking system due to “operator error” that pushes a pallet on an adjacent rack and causes it to fall. Given 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 46” pallets resting on 42” span racks become unstable when struck by moving equipment. The evidence supports a finding that Respondent violated 29 C.F.R. § 1910.176(b).
Employee Access
The Commission has recognized that exposure may be established by showing “that it is reasonably predictable either by operational necessity or otherwise (including inadvertence), that employees have been, are, or will be in the zone of danger.” The zone of danger is “that area surrounding the violative condition that presents the danger to employees which the standard is intended to prevent.”
At the time of her accident, [redacted] was filling orders which required her to go up and down the aisles to remove items from the rack. Respondent’s investigation into the accident revealed that she entered the 20-foot zone while a lift driver was retrieving a pallet from the top level. The pallet was bumped and caused merchandise to fall inside the racking system where it ultimately struck [redacted]. The GM testified that [redacted] should not have been within 20 feet of the area where the accident occurred because there was a forklift operating on the adjacent aisle. Further, the GM testified that [redacted] should have recognized that a forklift was in the area by sight and by sound. According to [redacted], she didn’t hear the driver shout “20 feet”. She also testified that the 20-foot rule is not always followed. [redacted]’s contention is supported by the testimony of the CO that, during his inspection, he observed that employees were not adhering to the 20-foot rule. In fact, while the CO was walking around the distribution center with the GM, there was a moving piece of equipment in the adjacent aisle, and no one invoked the 20-foot rule. In sum, the facts clearly show that [redacted], and possibly others, was exposed to the “zone of danger” which, in this case, was an aisle between the racks where a piece of equipment was operating within 20 feet. The evidence supports a finding that [redacted] had access to the hazard and was within the zone of danger to perform her assigned task at the time of the accident.
Employer Knowledge
The knowledge requirement may be satisfied by proof either that the employer knew, or had constructive knowledge and “with the exercise of reasonable diligence, could have known of the presence of the violative condition.” Although the Secretary has the burden to establish employer knowledge of the violative conditions when a supervisory employee has actual or constructive knowledge of the violative conditions, that knowledge is imputed to the employer, and the Secretary satisfies his burden of proof without having to demonstrate any inadequacy or defect in the employer’s safety program.
According to [redacted], before her accident, items would fall 3-4 times during her work week (Friday, Saturday, and Sunday). [redacted] testified that she informed a couple of managers of her concerns regarding items falling off the T-slots. In particular, [redacted] recalled telling a manager who no longer works at the distribution center. However, [redacted] testified that her concerns were “brushed off.” The CO interviewed an unnamed male employee who told him that material falls through the racks frequently. The CO testified that the GM stated he was aware of material falling through the racks but had not received funding from the corporation to put “fixes” in place such as intermediate/perpendicular bars as seen in CX-4a. An Asset Protection Manager at this worksite testified that material falls off the reserve level of the particular racking system when hit by an associate thereby causing a pallet to tip. He further testified that pallets frequently tip but only fall a couple of times a month. The GM testified that merchandise occasionally falls from the racking when struck by a lift driver. Although he never saw a pallet fall, the GM stated that he received reports regarding tipped pallets and is aware that it happens at least a few times per month. The evidence supports a finding that Respondent’s managers had actual knowledge of the hazard and that knowledge may be imputed to Respondent. However, Respondent is still entitled to rebut a prima facie showing of supervisor knowledge and avoid the accusation of that knowledge by coming forward to show that it had work rules addressing the cited hazard that were adequately communicated to supervisors and effectively enforced. The work rule repeatedly referenced in relation to this violation is Respondent’s “20-foot” rule. However, the record reveals that the 20-foot rule was not always followed, nor was it effectively enforced. Employer knowledge is established.
Penalty Determination
The Commission, as the final arbiter of penalties, must give due consideration to the gravity of the violation and to the employer’s size, history, and good faith. These factors are not necessarily accorded equal weight, and gravity is generally the most important factor. The gravity of a violation depends upon such matters as the number of employees exposed, duration of exposure, precautions are taken against injury and the likelihood that an injury would result.
Serious Characterization
The penalty proposed in this case was based on a violation characterized as “serious.” To demonstrate that a violation was “serious” under section 17(d) of the Act, the Secretary must show that there is a substantial probability of death or serious physical harm that could result from the cited condition and that the employer knew or should have known of the violation. The Secretary need not show the likelihood of an accident occurring. Knowledge has already been established. So, the only determination left to make is whether death or serious physical harm could result from the cited condition. In this case, [redacted] was struck by cans of crescent rolls that fell from a pallet. The CO testified that the resulting injury was “bruising.” Respondent argues that this violation should be characterized as “other-than-serious” because “bruising” does not constitute serious physical harm. If bruising had been the extent of [redacted]’s injuries from the accident, Respondent would be correct that this violation should be characterized as “other-than-serious.” However, the evidence reveals that “bruises” were not the extent of [redacted]’s injuries. [redacted] gave uncontroverted testimony that, according to her doctor and chiropractor, she has spacing between her T3 and T4 spinal vertebrae and has lost curvature of the spine. In weighing the difference between the CO’s description and that of [redacted] regarding her injuries, the undersigned finds that the two are not inconsistent, but [redacted] offers a more detailed explanation of her condition after the accident. [redacted] further testified that, because of her injuries from the accident, she had to transfer to a different department. Interestingly, the CO’s testimony regarding the nature of [redacted]’s injuries seems to belie OSHA’s characterization of this violation as “serious.” However, [redacted] is clearly in the better position to know the true nature and extent of her injuries. Since the Secretary is not required to show that an accident did occur, an analysis of whether this violation is properly characterized as “serious” requires a look at not just the physical harm that occurred in this case, but also the physical harm that could occur. The evidence reflects that the T-slots where the pallets are stored are up to 40 or 50 feet high. The testimonial evidence and photographs show that the pallets at this worksite are loaded with various merchandise consisting of cans, jars, and boxes – some shrink-wrapped and others not. Given the height of the T-slots on Respondent’s racking system, the size of the pallets, and the bulk items stored on each pallet, it is reasonable to infer that death or serious injury would likely occur to an employee working in the adjacent aisle when a pallet is dislodged. The violation is properly characterized as “serious.”
Penalty Calculation
Regarding the proposed penalty for this violation, the CO testified that the gravity was rated as “medium to high” because there was an injury that wasn’t disabling. He further testified that probability was rated as “greater” because of the likelihood that this could happen again. No good faith adjustment was given because the CO never received a full safety and health plan to evaluate. Also, Counsel for Respondent stipulated that the company is not entitled to a good-faith adjustment. No evidence was adduced regarding the size; however, it is well-known that Respondent is a large company. In any case, Respondent only disputes the characterization of the violation, not the penalty calculation. The evidence supports a finding that the proposed penalty is appropriate.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Based on the preceding Findings of Fact and Conclusions of Law, it is ORDERED that:
Item 1 of Serious Citation 1, alleging a violation of 29 C.F.R. § 1910.176(b), is AFFIRMED, and a penalty of $10,864.00 is assessed.
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