WILSON FREIGHT CO.
OSHRC Docket No. 13030
Occupational Safety and Health Review Commission
August 1, 1977
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Before BARNAKO, Chairman; CLEARY, Commissioner
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Albert Ross, Regional Solicitor
Hugh F. Keefe, for the employer
OPINIONBY: BARNAKO
OPINION:
DECISION
BARNAKO, Chairman:
A February 19, 1976 decision of Administrative Law Judge Abraham Gold is before this Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970. n1 Judge Gold affirmed item 2 of a nonserious citation alleging Respondent's failure to comply with 29 C.F.R. 1910.132(a) n2 at its terminal in Stratford, Connecticut. He assessed a penalty of $35. The issues on review are whether the ALJ erred in concluding: (1) that Respondent is not exempt from compliance with the standard due to section 4(b)(1) of the Act; (2) that the citation was issued with reasonable promptness; (3) that 1910.132(a) is not too vague to be enforceable; and (4) that the evidence supports a finding of violation of 1910.132(a). For the following reasons we affirm Judge Gold's decision.
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n1 29 U.S.C. 651 et seq., hereinafter "the Act."
n2 29 C.F.R. 1910.132 provides:
(a) Application. Protective equipment including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.
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Respondent is a corporation engaged in the trucking business. It operates 47 motor freight terminals in various states. The Stratford terminal handles about 80 million pounds of freight per year. About 52 million pounds of this is unloaded at the terminal, broken down, and then loaded for redelivery. The rest does not move across the dock. Instead, a consignee unloads it either with or witnout the assistance of Respondent's employees. The terminal operates 24 hours a day, five days a week. About 24 workers are available on all shifts to handle freight. These employees are dockmen who load and unload at the dock, city drivers who drive trailers and either pick up or deliver freight, and combination men who drive as well as work at the dock. A driver spends about 50% of his time performing loading and unloading functions similar to those at the dock.
Mechanical apparatus is available at the terminal for employees to use in moving freight. There is a hand truck for each worker, two fork-lifts, two dollies, two side trucks, two barrel trucks, one boom for the towmotor, two jay bars, and a number [*3] of roto conveyors. Although the company encourages its employees to use this equipment, workers sometimes lift or move by hand, objects weighing up to 50 lbs. In the last five years one freight-handling employee has suffered lost work time from a toe injury.
Respondent does not require its employees to wear safety shoes with a steel insert to protect their toes. Although it permits its workmen to wear these shoes if they wish, Respondent believes they are unnecessary. Instead it has an "affirmative hard leather shoe program," by which it requires employees to wear leather shoes as opposed to sneakers or other soft shoes. Only two out of twenty-four employees regularly wear safety-toe shoes.
Respondent first argues on review that it is exempt from compliance with the Act due to section 4(b)(1). n3 Respondent claims that, as an interstate trucking company, the Department of Transportation has exclusive authority to regulate safety in its operations. We reject this contention. Section 4(b)(1) provides an exemption for only those specific working conditions over which another Federal agency has actually exercised its statutory authority to regulate employee health and safety. [*4] Southern Pacific Transportation Co., 13 OSAHRC 258, 2 OSHC 1313, 1974-75 OSHD para. 19,054 (1974), aff'd, 539 F.2d 386 (5th Cir. 1976). In this case, Respondent claims that the Department of Transportation has exercised this authority by virtue of the fact that on July 3, 1975, the Bureau of Motor Carrier Safety, Federal Highway Administration, issued a notice of proposed rulemaking expressing the Department of Transportation's intent to regulate the entire field of motor carrier safety. 40 Fed. Reg. 29729 (July 15, 1975). Such an advance notice of proposed rulemaking, however, does not constitute an "exercise" of statutory authority within the meaning of Section 4(b)(1). Seaboard Coast Line Railroad Co., 75 OSAHRC 11/E14, 3 OSHC 1767, 1974-75 OSHD 19,806 (1975), aff'd, No. 75-2244 (D.C. Cir. 1976); Southern Pacific Transportation Co. v. Usery, 539 F.2d 386 (5th Cir. 1976); Southern Railroad Co. v. OSHRC, 539 F.2d 335 (4th Cir. 1976), cert. denied, 97 S.Ct. 525 (1976).
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n3 Section 4(b)(1) provides 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. 29 U.S.C. 652(b)(1).
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Respondent next alleges that the citation was not issued with responable promptness. n4 The evidence shows that the citation was issued only three days after the date of the alleged violation. This delay in issuance of the citation was minimal and, under any possible test, the citation was issued with reasonable promptness. See Brennan v. Chicago Bridge & Iron Co., 514 F.2d 1082 (7th Cir. 1975).
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n4 Sec. 9(a) of the Act requires that a citation be issued with "reasonable promptness."
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Respondent further contends that 1910.132(a) is unconstitutionally vague. We have determined, however, that the standard is sufficiently precise to be enforceable. Ryder Truck Lines v. Brennan, 4 OSAHRC 419, 1 OSHC 1290, 1973-74 OSHD para. 16,451 (1973), aff'd 497 F.2d 230 (5th Cir. 1974). See also: McLean Trucking Co. v. OSHRC, 503 F.2d 8 (4th Cir. 1974); Yellow Freight System, Inc., 16 OSAHRC 214, 2 OSHC 1690, 1974-75 OSHD [*6] para. 19,439 (1975), aff'd, No. 75-1483 (D.C. Cir. 1976), cert. enied, 97 S.Ct. 79 (1976). In circumstances similar to those of this case, we have concluded that a reasonable person would recognize a hazard of toe injuries to dockmen. Indeed, Respondent recognizes the existence of a hazard as evidenced by its direction that employees not wear soft shoes.
Respondent urges that the standard fails to state what type of safety shoe is required and what type of injuries are to be prevented. However, the court in McLean Trucking Co., supra, noted that 29 C.F.R. 1910.136, entitled "Occupational Foot Protection", incorporates by reference the requirements and specifications of the American National Standard for Men's Safety-Toe Footwear, Z41.1-1967. Thus, the Secretary's standards establish the type of protection required.
Finally, Respondent alleges that the evidence fails to establish a violation of 1910.132(a). We agree with the Judge's finding of a violation. The facts here are similar to those of previous cases in which we have found a violation of the standard. See: Arkansas Best Freight Systems, Inc., 15 OSAHRC 663, 2 OSHC 1620, 1974-75 OSHD para. 19,326 (1975), [*7] aff'd, 529 F.2d 649 (8th Cir., 1976); Ryder Truck Lines v. Brennan, supra; McLean Trucking Co. v. OSHRC, supra; Yellow Freight System, Inc., supra. Respondent urges that the above cases are factually distinguishable because they involve a higher injury rate, considerable lost time, and more congested working conditions. This argument is without merit. The fact that Respondent's employees have suffered relatively few toe injuries does not establish the absence of an injury-producing hazard. Arkansas Best Freight Systems, Inc., supra. The factors to which Respondent refers are relevant to the gravity of the hazard, but not its existence.
Accordingly, the Judge's decision is affirmed. It is so ordered.