CONSOLIDATED FREIGHTWAYS CORPORATION

OSHRC Docket No. 10889

Occupational Safety and Health Review Commission

May 17, 1977

[*1]

Before BARNAKO, Chairman; CLEARY, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

T. A. Housh, Jr., Regional Solicitor, U.S. Department of Labor

Eberhard G. H. Schmoller, Consolidated Freightways Corp., for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

The decision of Administrative Law Judge Paul E. Dixon, dated September 17, 1975, is before the full Commission pursuant to an order issued under section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. [hereinafter "the Act"] granting a petition for discretionary review filed by respondent, Consolidated Freightways Corporation. Respondent argues that the Administrative Law Judge [hereinafter "ALJ"] erred in ruling that it was not exempt from the Act by operation of section 4(b)(1) of the Act. n1 Exception is also taken to the ALJ's affirmance of a violation of 29 CFR 1910.22(c). n2 To the extent that the ALJ's decision conforms with the following, we affirm.

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n1 Section 4(b)(1) states in pertinent part:

Nothing in this Act shall apply to working conditions of employees with respect to which other Federal agencies . . . exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.

n2 29 CFR 1910.22 General requirements

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(c) Covers and guardrails. Covers and/or guardrails shall be provided to protect personnel from the hazards of open pits, tanks, vats, ditches, etc.

[*2]

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This matter arose as the result of an inspection on October 22, 1974, of respondent's place of business at 8500 North Hall Street, St. Louis, Missouri, conducted by a compliance officer of the Occupational Safety and Health Administration (OSHA). The facility is a truck terminal maintenance shop where respondent employs approximately 300 workers. Respondent was cited for five nonserious violations with a total proposed penalty of $120. n3 Respondent timely contested the citation and notification of proposed penalty. Pursuant to section 10(c) of the Act, the matter was brought to a hearing before Judge Dixon. n4

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n3 Respondent was cited for nonserious violations of 29 CFR 1910.215(a)(2) & (4), 29 CFR 1910.22(c), 29 CFR 1910.252(a)(2)(ii)(b), 29 CFR 1910.244(a)(1)(ii), and 29 CFR 1910.309(a).

n4 At the commencement of the hearing, respondent stipulated that if in fact its workplace is subject to OSHA jurisdiction, all items of the citation, except the alleged violation of 29 CFR 1910.22(c), are correct and that the proposed penalties are reasonable.

[*3]

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Section 4(b)(1)

Respondent states that the Federal Highway Administration, through the Bureau of Motor Carrier Safety, has general supervisory authority over motor carriers under the Department of Transportation Act, 49 U.S.C. 1651 et seq. On July 3, 1975, the Director of that Bureau published in the Federal Register a notice stating that the Bureau of Motor Carrier Safety was currently exercising its authority to prescribe and enforce regulations affecting the occupational safety and health of employees of motor carriers. n5 Based upon this announcement, respondent would have us hold that it is exempt from the Act through section 4(b)(1). n6

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n5 40 Fed. Reg. 29729 (1975).

n6 In the notice, the Director stated that it was the Bureau's intention to remove all doubt of its full exercise of its authority. To this end, he proposed to amend Title 49 Code of Federal Regulations to specifically allow any practice not specifically prohibited by the Bureau or by applicable State or local law. The proposed amendment states:

Sect. 390.33 Applicability of regulations

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(d) Any common carrier, contract carrier, or private carrier of property, and its officers, agents, representatives, employees, and drivers may perform any act and engage in any practice not prohibited, and to the extent not restricted, by the rules in Parts 390-397 of this subchapter, or by applicable State or local laws, ordinances or regulations.

[*4]

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Section 4(b)(1) provides for displacement of OAHA standards covering "working conditions" with respect to which other agencies "exercise statutory authority." Pursuant to Congressional mandate ". . . to assure so far as possible every working man and woman in the Nation safe and healthful working conditions . . ." 29 U.S.C. 651(b), we have interpreted section 4(b)(1) to exempt from coverage of the Act only those working conditions that are actually subject to regulation by a sister agency pursuant to a statute designed to protect a class of persons that includes workers. See e.g., Texas Eastern Transmission Corp., BNA 3 OSHC 1601, 1975-76 CCH OSHD para. 20,092 (Nos. 4078 & 4091, 1975); Mushroom Transportation Co., Inc., BNA 1 OSHC 1390, 1973-74 CCH OSHD para. 16,881 (No. 1588, 1973); Fineberg Packing Company, Inc., BNA 1 OSHC 1598, 1973-74 CCH OSHD para. 17,518 (No. 61, 1974).

An examination of the Federal Motor Carrier Safety Regulations at Title 49, CFR Parts 390-398 indicates that the Bureau of Motor Carrier Safety has adopted no regulations concerning truck maintenance shop [*5] safety. Accordingly, no OSHA standards applicable to hazardous conditions at respondent's maintenance shop are displaced by section 4(b)(1).

This is not altered by the advanced notice of proposed rulemaking concerning 49 CFR 390.33. We have consistently held that an advance notice of proposed rulemaking by a sister agency is not a sufficient "exercise [of] statutory authority" under section 4(b)(1) of the Act to trigger displacement of OSHA standards. Indiana Harbor Belt R.R., No. 12420, January 18, 1977; Seaboard Coast Line R.R., BNA 3 OSHC 1767, 1975-76 CCH OSHD para. 20,185 (No. 11904, 1975); aff'd No. 75-2244 (D.C. Cir., Dec. 30, 1976).

29 CFR 1910.22(c)

The jobsite includes a service area containing seven truck maintenance pits. Trucks are parked over these pits to allow workmen to service them while standing. The facility is operated 24 hours a day, seven days a week. Respondent was cited for violation of 29 CFR 1910.22(c) when the compliance officer observed an employee walking along the sides and ends of the maintenance pits. Respondent urges five separate points in addition to the section 4(b)(1) issue in contending that the ALJ erred in affirming [*6] the violation.

Initially, respondent urges that it was in actual compliance with the standard. It claims that the evidence shows that it used trucks, tire racks, and an iron rail to protect personnel from the hazard presented by the open pits. n7 The record indicates that when a unit is parked over a pit for servicing, the pit is completely covered for the length of the unit. Therefore, there is no need for covers or guardrails under the standard while a unit is parked over that portion of the pit. Respondent states that the maintenance pits are in constant use and that the least used pit may be uncovered by a unit for not more than 30 minutes to one hour during any 24 hour period. Respondent would have us draw from this that the trucks themselves constitute adequate cover.

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n7 Respondent argues alternatively that the mere availability of covers satisfies the standard, citing Bouma Post Yards, BNA 2 OSHC 1301, 1971-73 CCH OSHD para. 15,505 (No. 1318, 1973) (judge's decision), aff'd BNA 2 OSHC 1299, 1974-75 CCH OSHD para. 18,868 (No. 1318, 1974). The ALJ therein held that 29 CFR 1910.22(c) only required that the covers be available and not that they be in place. On review, the ALJ's decision was affirmed. The lead opinion's affirmance relied exclusively on the fact that the Secretary, who had filed the petition for discretionary review, did not file a brief in response to the order directing review, even though he had previously stated that he intended to file such a brief. The merits of the case were not addressed. Therefore, the ALJ's decision is to be treated as an unreviewed decision with the consequence that it is not binding as precedent. Penn-Dixie Industries, BNA 4 OSHC 1209, 1976-77 CCH OSHD para. 20,703 (No. 8718, 1976).

[*7]

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The ALJ held that respondent violated the standard as to all seven pits. Specifically, he found that the "long pits", numbers four through seven, are used in sequence with pit number four receiving the most use and pit number seven the least. Under normal circumstances, pit number four will only be empty for the time needed for a serviceman to take a unit out, park it, and bring in the next one. Pits numbers five, six, and seven are open for longer periods of time, which can extend up to 30 minutes for pit number seven. On occasion, pit number seven will remain open for as long as an hour.

It is our opinion that the time span that pit number four is unoccupied by a unit is too short to require the guarding contemplated by the standard. By the time such guarding was erected, its utility would be negated by the arrival of another unit. Thus, as to pit number 4, we hold that the continual presence of a unit that covered the entire length and width of the pit constituted compliance with 29 CFR 1910.22(c).

We affirm the ALJ's finding of violations of 29 CFR 1910.22(c) as to the other six maintenance [*8] pits. We find respondent's contention that all seven pits were in "constant use" unpersuasive. Although the record is not clear as to the time lapse between the servicing of units, the record supports a finding that employees were exposed to the hazard of falling into the pits during this time interval and that the erection of covers or guardrails would have an effect of minimizing this hazard. These factors trigger the mandates of the standard. See Greyhound Lines, BNA 4 OSHC 1792, 1976-77 CCH OSHD para. 21,183 (No. 8228, 1976). Lee Way Motor Freight, Inc., BNA 1 OSHC 1689, 1973-74 CCH OSHD para. 17,693 (No. 1105, 1974), aff'd Lee Way Motor Freight, Inc. v. Secretary of Labor, 511 F.2d 864 (10th Cir. 1975).

Respondent raises a vagueness challenge to 1910.22(c) and claims that the standard is hortatory, not mandatory. Respondent points to the inclusion of the terms "etc." and "and/or" in the standard as being particularly inappropriate. In addition, it states that it is not at all obvious that the "pits" referred to in the standard encompass respondent's maintenance pits.

We reject respondent's vagueness claim. In Lee Way, a factually similar case, [*9] the Commission stated: "[ 1910.22(c)] clearly prescribes that covers or guardrails shall be provided to protect open pits." BNA 1 OSHC at 1691, 1973-74 CCH OSHD at 22,088. We also note that although 1910.22(c) is unquestionably broad, its requirements are clear. Its unequivocal phraseology is the opposite of vagueness. See Atlantic & Gulf Stevedores, Inc., BNA 3 OSHC 1003, 1009, 1974-75 CCH OSHD para. 19,526, 23,303, (Nos. 2818, 2862, 2998 & 2997, 1975) aff'd 534 F.2d 541 (3d Cir. 1976).

Respondent also argues (1) that the standard was not in effect on the date of enactment of the Act; (2) that the Secretary failed to make a prima facie showing that a hazard actually existed and that compliance with the standard materially reduces the hazard; and (3) that the violation was de minimis. The same arguments were earlier rejected in Lee Way. We are not persuaded to alter our opinion on these issues for the same reasons given in Lee Way.

We have examined the factors enumerated in section 17(j) of the Act and agree with Judge Dixon that a penalty of $55 is appropriate. Accordingly, it is ORDERED that the decision of Judge Dixon is affirmed in all respects except [*10] insofar as it affirms a violation of 29 CFR 1910.22(c) in regard to pit number four.