Forklift Safety: Georgia Pacific Corporation v. Occupational Safety and Health Administration

Date: Jan 01, 1995

On July 25, 1989, an Occupational Safety and Health Administration (OSHA) compliance officer issued a citation to Georgia Pacific Corporation (GP) after investigating an accident involving a forklift in which one GP employee was killed. The forklift operator was moving a load of plywood from the manufacturing area to the staging area for shipping. The employee who was killed was squatting near the aisle painting a column. The operator could not see the employee because the load, being 54 inches high, 51 inches from front to back and 99 inches wide, obstructed his view of the path of travel in front of the forklift. OSHA cited GP under the section of the standard on operation of Industrial Trucks that:

"If the load being carried obstructs forward view, the driver shall be required to travel with the load trailing." 29 C.F.R. 1910.178(n)(4).

GP argued before the Administrative Law Judge (ALJ) that (1) when driving in a forward direction with a typical load at the GP facility, a forklift operator's forward vision was not obstructed within the meaning of the standard, and (2) while driving with the load trailing in this operation, an operator's forward vision was more limited. Because an operator could see a person standing immediately in front of the load, GP said, the forward visibility was not obstructed. The ALJ concluded that the phrase "obstructs forward view" in the provision applies only when the operator cannot see "some part of an employee in an upright position. . . ," rejecting OSHA's argument that the phrase should be interpreted that "an obstructed view exists whenever the operator cannot see what is on the floor surface seven to ten feet in front of the forklift."

On appeal to the Occupational Safety and Health Review Commission (OSHRC), OSHA offered an alternative interpretation. It argued that the term "obstruct forward view" would include situations in which the load would prevent the operator from seeing a pedestrian kneeling, sitting, crouching, or bending over in front of the load. The OSHRC, while also rejecting OSHA's formulation of the standard, affirmed the violation, holding that:

"obstructs" means that the load being carried forward 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.

The Court held that OSHA's interpretation was unreasonable and unconstitutionally vague as applied. Even OSHA admitted to the ambiguity of the language at oral argument. The Court said that OSHA's inability to settle on a single definition "necessarily implicates the adequacy of notice to the regulated party," a constitutional concern. Even though the Court was obligated to defer to OSHA's interpretation if it was reasonable, when it found that OSHA's was not, it refused to amend the regulation through judicial interpretation. The Court admonished OSHA, saying the Agency "should remedy the situation by promulgating a clearer regulation rather than forcing the judiciary to press the limits of judicial construction."

This case puts OSHA on notice that courts will not abandon their obligations to subject the Agency's pronouncements to appropriate judicial scrutiny. Some observers, including many in OSHA, believed that the earlier Supreme Court case of Martin v. OSHRC required courts to honor without question OSHA's positions when a standard's language is unclear. Clearly, the court in this case was willing to look beyond OSHA's facile attempts to mould its interpretation to the specific facts and to assert its judicial authority, refusing to give OSHA carte blanche in its interpretations. Moreover, the case points to some issues that should give OSHA pause as it considers standards which contain more general language than historically has been the case.

For example, OSHA has proposals to issue standards for medical surveillance, written health and safety plans, exposure assessment, control of ergonomic hazards, and other areas implementing "good practices" in health and safety. Because these kinds of standards must apply broadly to many industries and employers, the specific implementation of the standards in each case must necessarily be indefinite. But the more broadly a standard is written, the more flexible its language, the more likely that any specific employer will have difficulty discerning the limits of his or her obligations. Good faith attempts notwithstanding, employers will be liable for penalties because the Agency's interpretation is obscure or because it changes substantially without notice to the regulated community.

This approach may not pass constitutional muster in these circumstances. Due process and fundamental fairness require that, when a statute allows monetary penalties against those who violate the law, the regulations implementing that statute them must provide fair warning of the conduct it prohibits or requires. The judicial standard which has been applied to OSHA in the past is that a regulation is considered unconstitutionally vague under the due process clause of the Fifth and Fourteenth Amendments if it "forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application." Many of the provisions of OSHA's more recent generic standards fail this test. Witness the increasing volume of OSHA memoranda, compliance instructions, and interpretive letters on hazard communication, lockout/tagout, confined spaces, and others.

The importance of this principle cannot be overstated. If nothing else, the government must be held to its own rules when it acts to impose duties on its citizens. To put it another way, the government must turn square corners. Using ambiguous language in the hopes of avoiding conflict or to encompass every possible consequence that might occur is a recipe for regulatory unfairness and ultimately failure. The most difficult part of the task before OSHA in drafting regulations is to be clear in its intentions so that conscientious employers can understand their duties under the Occupational Safety and Health Act.

This article appeared in Compliance Magazine (January/February 1995) and it is reprinted with permission of Compliance Magazine. Copyright © 2001 by IHS Publishing Group. All rights reserved.

For further information about this article, please contact David G. Sarvadi at 202-434-4249 or by e-mail at sarvadi@khlaw.com.