STRICKLAND TRANSPORTATION CO., INC.  

OSHRC Docket No. 13245

Occupational Safety and Health Review Commission

July 21, 1977

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Before BARNAKO, Chairman; CLEARY, Commissioner.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Ronald M. Gaswirth, Regional Solicitor, U.S. Department of Labor

Leroy Hollman, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

This matter is before us by former Commissioner Moran's order directing that Administrative Law Judge Henry F. Martin's decision be reviewed "for error" pursuant to 29 U.S.C. §   661(i) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §   651 et seq. [hereinafter "the Act"].

Judge Martin affirmed a citation for "nonserious" violation of the standard published at 29 CFR §   1910.132(a). n1 Respondent employer asked that its petition for review and supporting reasons be considered its brief.   The Secretary relies upon his brief before the Administrative Law Judge.

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n1 Section 1910.132(a) reads as follows:

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 . . . encountered in a manner capable of causing injury or impairment in the function of any part of the body through . . . physical contact.

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Respondent, an interstate motor carrier, operates a 140'-by-50' loading dock having 38 truck bays at its Shreveport, Louisiana freight terminal. On April 21, 1975 an OSHA compliance officer inspected the premises and charged respondent with a violation of §   1910.132(a) because "hostlers, checkers, dockmen, city drivers and forklift operators" were not required to wear safety shoes. No penalty was proposed by the Secretary.

On the day of the inspection respondent had from 12 to 15 employees working on the loading dock. The employees were engaged in loading and unloading various types of freight. Many items weighed more than 50 pounds and were moved manually by the employees, often with the assistance of two and four-wheeled carts, dollies, and forklifts. The evidence indicates that freight of up to 50 pounds had to be lifted manually and that instances of its being dropped by employees had previously been recorded.   None of respondent's employees were wearing safety-toed shoes.   Although one employee had sustained foot injuries as a result of dropping freight, no lost time because of foot injuries [*3]   had resulted since 1971.

Judge Martin affirmed the citation, finding that the lack of safety shoes exposed respondent's employees to possible injury if freight were dropped on their feet.   The Judge rejected respondent's assertion that the absence of lost work-time established that employees were not exposed to hazardous conditions.   The Judge concluded that factual proof of an actual injury was unnecessary to show non-compliance.   The Judge further found that the standard was not vague, relying upon Ryder Truck Lines v. Brennan, 497 F.2d 230, 233 (5th Cir. 1974) and McLean Trucking Co. v. OSAHRC, 503 F.2d 8, 10-11 (4th Cir. 1974).

In its petition for discretionary review respondent asserted that the evidence does not support a finding that a hazard existed at the workplace requiring the use of safety shoes. The petition averred that the standard was vague, denying respondent due process of law.   Respondent further contended that placing a specific meaning on the standard and applying it to all members of the freight handling industry without regard to the specific facts of the case was an abuse of discretion and denied respondent due process.

We reject respondent's contentions [*4]   and affirm Judge Martin's decision.   Respondent's employees were continuously engaged in the handling of freight, some of which had to be lifted manually and weighed up to 50 pounds. The evidence indicates that this freight was often bulky and sometimes slippery, and that employees had dropped freight in the past.   The mere fact that no foot injuries resulting in lost work-time had occurred does not negate the existence of a hazard. Yellow Freight System, Inc., 2 BNA OSHC 1690, 1691, 1974-75 CCH OSHD para. 19,439 (No. 2658, 1975), aff'd, 530 F.2d 1095 (D.C. Cir. 1976). An employee of respondent testified that a toe injury he had sustained would have been prevented by the use of safety shoes. This testimony and other evidence of record support Judge Martin's conclusion that a hazard existed which could have been prevented by the use of safety shoes.

Respondent's due process arguments are without merit.   The standard has repeatedly been held to be valid, enforceable and not vague. Lee Way Motor Freight, Inc., 3 BNA OSHC 1843, 1845, 1975-76 CCH OSHD para. 20,250 (No. 7674, 1975); Yellow Freight, supra, 2 BNA OSHC at 1691; Ryder, supra at 233; McLean   [*5]    Trucking, supra at 10-11. Respondent's contention that the Secretary is applying a general standard to the freight industry without regard to the specific facts in the case finds no support in the record.   Employees handled freight which was heavy and slippery and which occasionally was dropped, thus establishing the presence of a hazard at respondent's terminal.

Accordingly, it is ORDERED that Judge Martin's decision be affirmed.