When OSHA uses its General Duty Clause (GDC) to issue a fine, one of the things it must show is that there is a feasible way to eliminate or significantly reduce the hazard. That issue comes up in this case involving forklifts and unloading materials.
On Dec. 29, 2011, an employee of CSA Equipment Co. in Mobile, AL, was struck by a forklift and later died from his injuries.
CSA is a stevedoring company that handles cargo at the Port of Mobile. CSA’s work includes unloading cargo from vessels, as well as checking and transferring large steel coils.
The employee who was killed was checking one of those coils at the moment when he was struck by the forklift.
Here was the process CSA used: The coils were unloaded from a vessel. Then a forklift delivered the coils to the doors of a CSA warehouse where an employee/checker was stationed. The employee would inspect the coil and then signal for a forklift to come and move it to a location in the warehouse.
The serious GDC citation OSHA issued to CSA said the company “failed to provide a clear view of the designated path of travel for the powered industrial trucks, exposing employees to crushing hazards while materials are checked into the warehouse.”
OSHA listed three possible abatement methods in its citation. CSA appealed the citation, and the case was heard by an administrative law judge (ALJ) of the Occupational Safety and Health Review Commission (OSHRC).
The ALJ affirmed the $6,300 fine against CSA. (The maximum serious fine is $7,000; a 10% reduction was applied because CSA qualified as a small company.) She found the third abatement method proposed by OSHA (setting up a separate safe area where employees could check coils free from forklift struck-by hazards) was feasible because CSA had already implemented it. The ALJ hadn’t considered the other two methods in her ruling.
CSA admitted it had adopted this abatement method but said it was doing so “reluctantly.” The reason: This solution created new hazards the workers would be exposed to.
If a proposed abatement method creates additional hazards rather than reducing or eliminating the alleged hazard, the citation must be vacated for failure to prove feasibility. That’s what CSA was arguing in this case.
After the ALJ’s ruling, CSA took its case to the entire OSHRC. In a recent ruling, the commission vacated the ALJ’s ruling and sent the case back for reconsideration of two things:
- that CSA’s argument that the third proposed abatement method isn’t feasible, and
- whether the other two proposed abatement methods OSHA proposed are feasible.
We’ll keep you posted on the outcome of this case.
(Secretary of Labor v. CSA Equipment Co. LLC, OSHRC Docket No. 12-1287, 3/26/14)
