Implications of Recent OSHRC Decision Regarding Storage of Materials

OSHRC Blog Post by Russell P. Bailey: After a Walmart, Inc. employee was struck by a falling object while retrieving items for an order, the Occupational Safety and Health Administration issued a citation to Walmart for violation of 29 C.F.R. § 1910.176(b), which requires that “storage of material shall not create a hazard.”  The standard also requires that “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).  Following a hearing, the OSHA citation and $10,864 penalty was affirmed.  OSHA successfully argued that while pallets of merchandise kept on racks in the Walmart distribution center were safely “stored in tiers,” they were not blocked or prevented from sliding or collapse.  However, on December 31, 2020, the Occupational Safety and Health Review Commission overturned the ruling because the pallets of merchandise were not, in fact, “stored in tiers.”

What led to OSHA’s citation against the distribution center?
The Walmart distribution center utilized an industry-standard “selective racking” system, with one pallet per rack level and racks positioned back-to-back, such that pallets were accessible by forklift only from the aisles at the fronts of the racks.  Despite using this widely-accepted system, an employee was struck by merchandise when a forklift bumped a pallet and caused items to fall into the area between the racks and the aisle where the employee was working. 

Why did the Commission overturn the OSHA citation?
To prove a violation, the Secretary of Labor must first establish that the cited standard applies.  Due to a plain language interpretation, the Commission refused to read the standard broadly and clarified that it only applies to the storage of materials that are “stored in tiers.”  Because the standard does not define “tier,” the Commission looked to Webster’s Dictionary and noted that tier means “a row, rank, or layer of articles,” and “one of two or more rows arranged one above another.”  Upon further analysis, the Commission narrowed “tier” to specifically apply to material stacked directly one upon another.  While the racking levels were arranged one above another, each rack held one pallet that was clearly distanced from other pallets.  Because Walmart’s pallets were not stacked directly one upon another, the pallets were not tiered.  Therefore, the Commission determined that the cited standard did not apply and no violation occurred.  

How can employers avoid a similar citation?
The Commission noted that if the pallets had been stored in tiers or in a tower formation, the cited standard would have applied.  Thus, if materials are stored in tiers, they must 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).  One Commissioner offered a hearty dissent in which she argued that Walmart’s rack levels that hold the pallets of merchandise are arranged “one above another” and are therefore “tiers” that are subject to the cited standard.  While this interpretation did not prevail, this decision puts employers on notice.  Walmart’s successful appeal solely occurred due to the Commission’s attention to the text and structure of the cited standard. 

While the Commission decision holds that the cited standard does not apply to materials stored on industry-standard selective racking, so long as the materials are not stacked directly one upon another, the Commission did not discuss whether storing materials with dunnage or other spacers placed between them is considered a “tier,” which would make the standard applicable.  As a best practice, and to avoid potential compliance issues, employers should ensure that materials (bags, containers, bundles, etc.) are appropriately stacked, blocked, interlocked, and limited in height if they are stacked directly one upon another (even with dunnage or spacers).  Employers should also be aware of other standards applicable to industrial storage racks, such as ANSI MH 16.1 (Specification for the Design, Testing and Utilization of Industrial Steel Storage Racks).  OSHA has specifically referenced ANSI MH 16.1 in citations alleging violations of the General Duty Clause (Section 5(a)(1)) where employees were exposed to hazards of being struck by falling steel storage racks, components of the storage racks, or materials stored on the racks.

For more information, please contact Russell P. Bailey at or 501-377-0387.