On October 3, 2016, a warehouse employee was seriously injured when seven crates containing 94-pound struts fell from a stack onto him as he was inventorying them. There were no witnesses to the accident, and the injured employee has no memory of the event. Following an inspection by OSHA, the Secretary concluded the cause of the incident was the instability of the stack of crates. The Secretary issued a citation alleging a serious violation of 29 C.F.R. § 1910.176(b) for failure to ensure the stack of crates was stable, for which he proposed a penalty of $9,234. The facility timely contested the citation bringing the matter before the Occupational Safety and Health Review Commission. The Facility contends the instability of the stack did not cause the accident, but, by the injured employee climbing on the crates, causing it to fall.
For the reasons discussed below, the citation is vacated.
Background
The Facility is a large defense contractor that produces a family of the wheeled military vehicle. The facility at issue is a warehouse for parts. At the Warehouse, it receives parts in its receiving department. These parts are taken to the floor of the warehouse where they are stacked and their location recorded by employees assigned to inventory control. Large parts arrive crated with various numbers on the crates, including part and serial number. When parts are ordered, the inventory control employees pick the parts from the stacks in the warehouse and take them to the shipping department.
The Facility stores parts at the Warehouse on shelves and the floor in stacked crates. Due to their size, many of the parts come individually crated. Large, individually crated parts are stacked one on top of the other. The Facility has requirements for these stacks of crated parts.
The crates must be suitable for stacking.
- Only like parts can be stacked on top of like parts to maintain the same footprint.
- Corners of the stacks must be square.
- The height of a stack cannot exceed 15 feet.
- Crates are to be stacked so that they do not move.
The Facility maintains a record of all the parts at the Warehouse. Employees assigned to inventory control routinely count and check that record with the parts stored in the warehouse as part of the facility’s inventory control process. At the beginning of their shifts, employees are given written lists of the parts they are to check. Some of the assignments are simple counts; some involve checking serial numbers of each item to be inventoried. Various types of equipment are available for employees to use when their task requires them to read labels on the top of stacks or to move the parts to read the labels. These include order selectors, stackers, forklifts, and ladders.
On October 3, 2016, a Materials Team Lead and the injured employee’s supervisor, assigned the injured employee to perform a “cycle count.” The Materials Team Lead provided the injured employee with a spreadsheet containing a list of parts designated by location and serial number that the injured employee was to count. The injured employee went to the “upper bulk” where large parts were located. The stack he was to inventory contained struts to the vehicle individually housed in wooden crates. A single crated strut weighs 94 pounds. Each container was labeled with the serial number of the strut. The stack was ten crates high or 11 feet, 4 inches. The injured employee was to read each serial number and check it off his list. The injured employee testified he had inventoried this stack several times before.
The injured employee worked alone. He testified he has no recollection of any of the events of the day after leaving home for work that morning. At some point seven of the crates containing the struts fell from the top of the stack onto the injured employee. He was found unconscious with the crates on top of him. There was no ladder or other equipment in the area. No one had witnessed the accident. The injured employee sustained severe injuries including a broken leg, injuries to his shoulder and face, and possible head trauma. He remained unable to work as of the date of the hearing.
The Facility notified OSHA of the accident. A CSHO was assigned to inspect the facility warehouse. Beginning October 11, 2016, the CSHO performed a walk around inspection of the Warehouse, including the area in which the accident happened. The CSHO interviewed employees who completed work similar to the injured employee and supervisory employees. He gathered documentation regarding the facility’s safety and health program. The CSHO obtained the facility’s job safety analysis for material handling and an “EHS” talk titled “Warehouse Operations Safety.” The EHS talk contained a direction to “[b]and or wrap all loose materials stored over 10 feet.” The CSHO noted the strut crates were not banded together and concluded the facility was not following its procedure. He testified all four employees he spoke with expressed the opinion the unbanded crates were unstable. The CSHO conceded he observed no stacks he considered unstable during his inspection. He concluded, based upon the failure of the facility to band crates together and the opinions expressed by the employees he interviewed, the crates containing struts were not stacked stably and recommended the facility be issued a citation for failure to comply with § 1910.176(b). The facility timely contested the citation.
The Citation
Item 1, Citation 1, alleges a violation of § 1910.176(b). The cited regulation is part of Subpart N Material Handling and Storage. It reads
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.
29 C.F.R. § 1910.176(b).
The alleged violation description states
“On or about 10/11/2016 – XXXXXXXX, XXXXXXXXXXXXX, an employee was struck by crates while performing inventory count of stored military vehicle parts.” The Secretary alleges the struts were stacked “at a height and in a manner that was hazardous to employees working in its warehouse on October 3, 2016.”
(Secretary’s Brief at p. 5) The Secretary argues the stack was hazardous because the stack was “at least 10 feet high” and “not interlocked.”
Discussion
The Secretary has the burden of establishing the employer violated the cited standard. To prove a violation of an OSHA standard, the Secretary must show by a preponderance of the evidence that
(1) the cited rule applies;
(2) the employer failed to comply with the terms of the cited standard;
(3) employees had access to the violative condition; and
(4) the cited employer either knew or could have identified with the exercise of reasonable diligence of the violative condition.
Applicability of the Standard
There is no dispute the standard applies to the cited conditions. The rule at § 1910.176(b) generally refers to all material in storage. Respondent does not dispute the crated struts were in storage. Nor is there any dispute the crated struts were “stored in tiers.” The common definition of a tier is “a layer of articles arranged one above another.” Webster’s New Collegiate Dictionary. The crates were stored one on top of the other or in tiers. The standard applies to the stack of crated struts.
Violation of the Standard
A threshold matter to be resolved is the Secretary’s burden to establish noncompliance with § 1910.176(b). Neither party squarely addressed this issue.
The hazard addressed in § 1910.176(b) is that posed by the sliding or collapse of material stored in tiers. Generally, a standard presumes a danger and the Secretary need only show the employer violated the terms of the standard. However, a risk is not assumed when the standard incorporates the threat as a violative element.
A reading of the standard as a whole leads to the conclusion § 1910.176(b) incorporates the hazard as a violative element the Secretary must establish to show the employer in violation. Although the standard reads as a specific requirement that stored material be “stacked, blocked, interlocked and limited in height” those requirements are imposed only to ensure stability and security of the material. In other words, failure to stack, block, interlock, and limit in height tiered material only constitutes a violation of the standard where it creates the hazard of sliding or collapse. It is well recognized that statutes must be read as a whole, “making every effort not to interpret a provision in a manner that renders other provisions of the same statute inconsistent, meaningless, or superfluous.” The last phrase of the cited standard incorporates an additional element of the Secretary’s prima facie case, i.e., establishing the lack of stability and security against sliding or collapse of the stored material. To interpret the regulation otherwise would render the final phrase – “so that they are stable and secure against sliding or collapse” – superfluous. To establish a violation of § 1910.176(b), the Secretary must show the stack of strut crates was not stable and secure against sliding or collapse.
The Secretary’s theory of violation has been a moving target throughout this case. The alleged violation description references only the fact of the October 3rd accident as the basis for finding the facility in violation of the standard. The CSHO initially testified he found the facility in violation of the standard because it had not enforced its procedure calling for banding of loose materials. When prompted, the CSHO suggested the height of the stack and the weight of the struts contributed to the stack’s instability. In his brief, the Secretary argued because the struts were stored 10 feet high and the crates were not interlocked they created a hazard. As proof of this hazard, the Secretary points to the accident.
To the extent the Secretary’s theory of violation relies on the facility’s failure to band the strut crates, the approach fails. The plain language of the standard does not require banding of material.
The standard does require material stored in tiers be interlocked. The term “interlock” is not defined in the standard. Nor has the Commission provided any guidance on interpretation of the term as used in the standard. The dictionary definition of the term “interlock” is “to lock together” or “to connect, so another constrains the motion or operation of any part.” Webster’s New Collegiate Dictionary. As evidenced in the photographs at Exhibits C-1, C-2, and R-11, nothing about the manner in which the crates are stored could reasonably be interpreted as being locked together or connected such that one crate constrains the motion of the other. The facility’s Section Manager in charge of the Warehouse testified the crates were stacked one on top of the other such that if the top of the stack were to “topple over, [the] whole stack would probably go.” The Secretary established the crates were not interlocked. The Secretary has also alleged the stack of crates was not “limited in height.” The Secretary’s burden is only met if the height of the stack, the failure to interlock the crates, or both rendered the stack unstable or not secure against sliding or collapse.
Neither the term “stable” nor “secure” is defined in the standard. The common understanding of the term stable is “placed to resist forces tending to cause motion or change.” Webster’s New Collegiate Dictionary. Secure is used to refer to something “free of danger” or “affording safety.” Webster’s New Collegiate Dictionary. To meet his burden, the Secretary must establish the crates were stacked so that they would be unable to resist a force tending to cause the stack to move in a manner that was unsafe or posed a danger. Under the specific terms of the standard, the movement to be prevented is sliding or collapse.
This interpretation of the Secretary’s burden is consistent with the Commission’s long-standing precedent in Clement Food Company, 11 BNA OSHC 2120 (No. 80-607, 1984).[6] The question in Clement Food was whether a stack of boxes was configured in a manner that rendered it unstable in violation of § 1910.176(b). The citation had alleged a 15-foot high, tiered stack of boxes was not interlocked or blocked, and the top tier was leaning. In affirming the alleged violation, the Administrative Law Judge relied on evidence the center mass of the stack was “so displaced that any shock or vibration…could cause the top tier to fall.” Id. On review, the employer argued the stack was not unstable because an outside force was needed to cause a slip or collapse. The Commission disagreed the standard required the Secretary to establish material stored in tiers is inherently unstable. The Commission held § 1910.176(b) “is not limited by its words to stacks so unstable that they might collapse of their weight.”
The Fifth Circuit upheld this interpretation of § 1910.176(b) in an unpublished decision in Sanderson Farms, Inc. v. OSHRC, 348 Fed. Appx. 53 (5th Cir. 2009). In Sanderson Farms, the Fifth Circuit upheld the ALJ’s finding of a violation of § 1910.176(b) holding, “although the entire structure was stable when undisturbed, the pallets and boxes became unstable when they were struck or disturbed.”
The record establishes the stack of crates that fell on the injured employee was not configured “to resist forces tending to cause motion or change.” Although the evidence in this record fails to establish what forces acted on the stack of crates, it is not necessary for the Secretary to make that showing. It is enough the record proves the stack was capable of sliding or collapsing when struck or disturbed.
The Facility’s contention the Secretary must establish the cause of the accident is rejected. In making this argument, Respondent relies on Koppers Company, Inc., 1 BNA OSHC 666 (No. 402, 1972) and Buckeye Fabricating Co., 14 BNA OSHC 2145 (Nos. 90-948 and 90-1013, 1991). Both are unreviewed ALJ decisions with no precedential value. Both are also inapposite. In Koppers Company, the ALJ vacated a citation alleging a violation of § 1910.176(b) finding the material that had fallen and injured an employee was not being stored. Therefore, the standard did not apply. Similarly, in Buckeye Fabricating, the ALJ found the standard did not apply because the material that had fallen and injured an employee was not stored in tiers. In both cases, the actions of the employees preceding the accident were dispositive of the issue of whether the standard applied. Here, the cause of the sliding of the crates is not dispositive of whether the facility violated the standard.
The record establishes the stack of strut crates slid while the injured employee was inventorying its contents. The crates were not interlocked such that the force that acted on the stack was capable of causing it to slide or collapse. It was not stable and secure within the meaning of the standard. The Secretary has established the facility violated § 1910.176(b).
Employee Exposure
To establish exposure, the Secretary must show that an employee was exposed to the cited condition or that access to the mentioned condition was reasonably predictable. As evidenced by accident, the injured employee was exposed to the hazard of being struck by the strut crates when the stack slid and fell on him. Other inventory control employees performing similar work would likewise be exposed. The Secretary has met his burden to establish employee exposure to the cited condition.
Employer Knowledge
To establish employer knowledge of a violation the Secretary must show the employer knew, or with the exercise of reasonable diligence could have known of a hazardous condition. To meet his burden, the Secretary must establish the facility was aware of the manner in which the crates were stacked rendered them unstable. I find he has not met that burden.
The stack that fell on the injured employee had been in the same location and condition since 2014. There was no evidence it had ever shifted or shown any signs of instability in the past. The injured employee had inventoried the stack on three prior occasions. He testified it had always been stable. He did not testify he complained about the condition of the stack on the day of the accident or any other time. The CSHO testified he observed no unstable stacks during his inspection. Except for the height, there is no difference between the manner in which the crates were stacked on the day of the accident and the day of the inspection. The Secretary identified nothing in any of the photographic evidence constituting a visible sign of a hazardous condition. The Secretary failed to establish the facility had actual knowledge of the stack that fell on the injured employee was unstable before the accident.
The Secretary relies on the testimony of the injured employee that he told the Materials Team Lead and another supervisor the stacks were “unsafe” and that “somebody is going to get hurt.” The Secretary presented evidence other employees similarly felt some of the stacks were unstable, but presented no evidence these employees ever notified supervisory employees of this concern. Nor is there any documentary evidence of employee complaints about unstable or unsafe stacks of crates. The record contains no evidence of any prior accidents involving a collapse or slipping of the stacked crates. There was no evidence the stacks have been subject to being struck by any of the various material handling equipment at the Warehouse. The evidence presented by the Secretary, that the injured employee told his supervisor about an unspecified unsafe stack at an unspecified time, is insufficient to establish management at the facility was put on notice of a hazardous condition associated with any specific stack of crates or, more importantly, the manner in which the facility stacked the crates generally.
To the extent the Secretary attempted to establish the facility had constructive knowledge the stacks were unstable, his evidence fails to do so. Valuable knowledge is shown where the Secretary determines the employer could have known of the cited condition with the exercise of reasonable diligence.
Whether an employer was reasonably diligent involves a consideration of several factors, including the employer’s obligation to have adequate work rules and training programs, to adequately supervise employees, to anticipate hazards to which employees may be exposed, and to take measures to prevent the occurrence of violations.
As previously noted, the Secretary posited no explanation as to the force that caused the stack to slide. Although the Secretary need not show the exact cause of the accident, he must show how the facility could have been aware the stack was unstable. In other words, the Secretary must show sliding or collapse of the stacks was a hazard a reasonably diligent employer would have anticipated under the circumstances. The record as a whole fails to do so.
The injured employee testified when orders are picked; employees don’t always stably restack the material. The injured employee testified that reporting unstable stacks to his supervisor was an almost daily occurrence. He testified his Materials Team Lead would likewise identify unstable stacks to him. When that happens, he testified his Materials Team Lead would require the stack to be fixed. The Materials Team Lead testified part of his job was to walk the warehouse to observe the condition of the stacked material. He testified he observed unstable stacks infrequently, but when he did, he had the inventory control employees restack and stabilize them. The injured employee corroborated the Materials Team Lead always had him fix a stack identified as unstable. The Secretary contends this evidence establishes the facility’s knowledge of the hazardous condition of the stacks at the Warehouse. I disagree this is the proper inference to be drawn from this evidence.
The Facility has a comprehensive safety and health program on which its employees are trained. The facility has standard procedures for stacking materials. These include maintaining the same footprint throughout the stack, limiting stacks to 15 feet, and ensuring the condition of the crates are suitable for stacking. The injured employee testified he was aware of these rules, including a rule that the stack “can’t be moving.” The Facility conducts both internal safety audits and third-party audits. The Facility’s Environmental Health and Safety Representative testified no auditor has ever identified the manner in which the facility stacks crates at the Warehouse as hazardous or otherwise non-compliant.
Although a storage facility, the facility’s warehouse is a dynamic environment. The material is received, moved to storage, ordered, pulled or picked, and shipped out. It is inevitable the condition of stacks will change. The evidence establishes the inventory control process results in frequent observation of the stacks by employees. The Secretary contends the process of restacking crates to ensure their stability was an almost daily occurrence. The record contains no evidence of prior falls, slips, or collapses of any stack due to instability. The CSHO testified he observed no unstable stacks during his inspection. Based upon the record as a whole, I cannot conclude the facility failed to exercise reasonable diligence to ensure the stability of the stacked parts at the Warner Warehouse.
Because the Secretary has failed to establish the facility knew or with the exercise of reasonable diligence could have known of the violative conditions of the stacked strut crates, the alleged violation of § 1910.176(b) is vacated.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The preceding decision constitutes the findings of fact and conclusions of law by the Rule 52(a) of the Federal Rules of Civil Procedure.
ORDER
Based upon the foregoing decision, it is ORDERED that:
Item 1, Citation 1, alleging a violation of 29 C.F.R. § 1910.176(b) is vacated.
Footnotes
[1] To the extent either party failed to raise any other arguments in its post-hearing brief, such arguments are deemed abandoned.
[2] The selector, stacker, and forklift used at the Facility warehouse are depicted in Exhibit R-11, pp. 11, 12, and 13, respectively (Tr. 173-77).
[3] CSHO Glasscock photographed the area where the accident occurred and the stack the injured employee had been counting (see Exhs. C-1, C-2 and C-3). The parties agree these photographs were not representative of conditions either immediately preceding or after the accident.
[4] The alleged violation description refers to conditions on October 11, 2016, the day of the inspection, rather than October 3, 2016, the day of the accident. This appears to be an error in drafting the citation. The citation describes events of October 3, 2016. Respondent’s defense focuses on conditions at the warehouse on October 3, 2016. Both post-hearing briefs refer to the October 3, 2016, events. The citation is hereby amended to reflect October 3, 2016, as the appropriate date of violation. Based on the evidence presented at hearing and all pleadings, the parties “squarely recognized” the citation was intended to refer to October 3, 2016. McWilliams Forge Co., 11 BNA OSHC 2128, 2129-30 (No. 80-5868, 1984). I find the parties have tried the amendment by consent.
[5] In holding the Secretary must show the failure to stack, block, interlock and limit in height creates a hazard, I find it is not necessary to reach The Facility’s argument regarding whether the word “and” as it is used in the standard should be read in the conjunctive or disjunctive. The Facility argues to interpret the word “and” in the conjunctive would result in a finding tiered material otherwise stable and secure, i.e. posing no hazard, could never be in compliance unless it meets all four criteria enumerated in the standard. Requiring the Secretary to establish the existence of the hazard of lack of stability or security against sliding or collapse of any material stored in tiers eliminates the concern raised by The Facility that interpreting the word “and” in the conjunctive would lead to this absurd result.
[6] Neither party addressed this apposite Commission precedent.
[7] The Commission declined review of the ALJ’s decision and the ALJ’s decision became a final order of the Commission.
[8] The Facility appears to be arguing the only force capable of causing the stack to slide is one it could not reasonably have foreseen being applied to the stack. It seems reasonable the standard was not intended to require employers to ensure stability against all outside forces no matter how great or unpredictable. I find this is an issue more appropriately addressed about the Secretary’s burden to establish employer knowledge of the violative condition.
[9] In so holding, I have placed no reliance on the testimony of CSHO Glasscock that four employees told him they believed the stacks were unstable (Tr. 59-60, 81-82). This testimony regarding the opinion of unnamed employees that certain unidentified stacks of crates were unstable, without any explanation as to the basis for the opinion is not probative evidence of a violation.
[10] In both Clement Foods and Sanderson Farms, cited herein, although the stacked material became unstable only when an outside force was applied, there were signs the stacks were susceptible to collapse under such circumstances. In Clement Foods, the photographic evidence showed the top tier of the stack was leaning. In Sanderson Farms, the racks upon which boxes were stacked were “dilapidated, and their legs were often twisted or broken,” and the tiers of boxes were leaning.
[11] There is some dispute in the record as to whether this second person was a supervisory level employee. It is not necessary to reach that issue.
[12] Jackie Waldron, the Director of Operations for The Facility in Anniston, testified if the material had fallen, a report would be required because, as a defense contractor, The Facility would have to make restitution for any damage (Tr. 102-03).
[13] The Secretary presented no evidence establishing The Facility’s rule allowing stacks up to 15 feet resulted in some stacks being unstable. Nor did he present any explanation why the height of the stack that fell, which was less than 15 feet, was hazardous.
[14] The injured employee testified about one or two incidents during which a stack fell when hit by a forklift (Tr. 29). The injured employee could not provide an approximate date of either occurrence. The Secretary provided no corroborating evidence of either incident. I give this testimony very little weight.