MUSHROOM TRANSPORTATION COMPANY, INC.  

OSHRC Docket No. 1588

Occupational Safety and Health Review Commission

November 7, 1973

 

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: CLEARY

OPINION:

  CLEARY, COMMISSIONER: On April 3, 1973, Judge Joseph L. Chalk issued his recommended decision and order in this case vacating item No. 1 of a citation issued to respondent on September 29, 1972. n1 This item alleged that respondent had failed to comply with the standard at 29 CFR 1910.178(k)(1). n2 The Judge held that section 4(b)(1) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq., 84 Stat. 1590, hereinafter referred to as "the Act"), rendered the provisions of the Act inapplicable to the working conditions for which respondent was cited.

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n1 The citation alleged five non-serious violations.   Respondent contested only item No. 1.   Thus, only this one alleged violation is before the Commission.

n2 See note, 4 infra.

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On April 18, 1973, former Commissioner Alan F. Burch directed that the recommended decision and order be reviewed by the Commission pursuant to section 12(j) of the Act.

We have reviewed the entire record including all filings by the parties and authorized intervenor.   Based upon such review we adopt the Judge's recommended decision and order insofar as they are consistent with the following determination.

The issue before us is whether the working conditions for which respondent was cited, are not subject to the Act because another Federal agency has taken action that is cognizable under section 4(b)(1) of the Act.

  Congress declared its purpose in enacting the Act in section 2(b);

. . . [T]o assure so far as possible every working man and woman in the Nation safe and healthful working conditions . . .

Section 4(b)(1) states,

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.

Clearly, section 4(b)(1) is intended to avoid a duplication in the enforcement efforts of Federal agencies, the action of which provides job safety and health protection to employees.   By the same token, there is perforce an intent to have no hiatus in the protection of employees.

Respondent asserts affirmatively that the Act is inapplicable to working conditions in its terminal facilities relative to the immobilization of trucks while unloading. It is these working conditions which were the subject of the item of the citation at issue here. n3 Respondent contends that the Motor Carrier Safety Regulations (49 CFR Parts 390-397) of the Department of Transportation n4 provide for the occupational safety and health of its employees under the working conditions for which it has been cited.   Thus, it argues, the   Act is inapplicable to these working conditions.   Respondent points to three specific Motor Carrier Safety Regulations asserting that singly, or in combination, they provide for the immobilization of trucks while unloading is in progress.   Respondent directs our attention to the following regulation:

49 CFR 392.20 Unattended Vehicles; precautions. No motor vehicle shall be left unattended until the parking brake has been securely set and all reasonable precautions have been taken to prevent the movement of such vehicle.

Respondent also cites 49 CFR 393.40 and 49 CFR 393.41.   These regulations detail the nature and capabilities of brake systems with which vehicles must be   equipped. n5

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n3 Respondent was cited for failure to comply with 29 CFR 1910.178(k)(1) which provides;

(k) Trucks and Railroad Cars (1) the brakes of highway trucks shall be set and wheel chocks placed under the rear wheels to prevent the trucks from rolling while they are boarded with powered industrial trucks.

n4 Section 204(a)(1) of the Interstate Commerce Act gave the duty to regulate the safety of motor vehicle common carriers to the Interstate Commerce Commission.   These duties were transferred to the Department of Transportation on April 1, 1967, pursuant to 49 U.S.C. 1655(e)(6)(c).

n5 These regulations provide as follows:

49 CFR 393.40 Required brake systems.   (a) General.   A bus, truck, truck tractor, or a combination of motor vehicles must have brakes adequate to control the movement of, and to stop and hold, the vehicle or combination of vehicles.

49 CFR 393.41 Parking brake system.   (a) Every singly driven motor vehicle and every combination of motor vehicles shall at all times be equipped with a parking brake system adequate to hold the vehicle or combination on any grade on which it is operated under any condition of loading on a surface free from ice or snow.

 

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The specific working condition to which the cited OSHA standard (29 CFR 1910.178(k)(1)) addresses itself is the non-movement of a truck while it is being loaded or unloaded with powered industrial trucks. Clearly, the purpose of the standard is to protect freight handlers, especially industrial truck operators, and other terminal employees from the hazard of unexpected, uncontrolled movement of trucks in the terminal while being loaded or unloaded. Thus, what is needed in order for section 4(b)(1) to apply is regulation by another Federal agency that insures non-movement of the truck during loading and unloading.

  Once another Federal agency exercises its authority over specific working conditions, OSHA cannot enforce its own regulations covering the same conditions. n6 Section 4(b)(1) does not require that another agency exercise its authority in the same manner or in an equally stringent manner.

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n6 See, S. Rept. No. 91-1282, 91st Cong. 2d sess., p. 22 (1970).

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Sections 393.40 and 393.41 of the Motor Carrier Safety Regulations detail the nature and capability of the brake system to be installed and neither requires that parking brakes be set during loading or unloading by powered industrial trucks. Neither section is meant to afford safety protection to forklift operators and terminal employees under the facts of this case and neither of these regulations brings the 4(b)(1) exception into play. n7

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n7 We note that upon the Judge's reliance the phrase "under any condition of loading" (49 CFR 393.41) is misplaced.   It is clear from the record before us that this phrase refers to the weight of the vehicle and the word "loading" is not used as a verb.

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The problem in this case reduces itself to the issue of whether, 49 CFR 392.20, supra., is applicable to the vehicles being loaded or unloaded by powered industrial trucks at respondent's terminal.

Respondent argues that the holding of the Interstate Commerce Commission that,

. . . our safety rules apply to vehicles operated in connection with transportation conducted under our certificates and permits whether the vehicles are on or off the highways . . . (Joe D. Hughes, Inc., Contract Carrier Application, 23 M.C.C. 563, 565 (1940)).

is determinative of the instant issue.

The Commission, based upon its examination of the Motor Carrier Safety Regulations, supra, n8 as a whole   and the Interstate Commerce Commission's interpretation of those regulations finds that the regulation in question (49 CFR 392.20) is applicable to vehicles being loaded or unloaded by powered industrial trucks at respondent's terminal. We, therefore, hold that by virtue of section 4(b)(1), the provisions of the Act and the OSHA regulations promulgated thereunder are not applicable to the specific working conditions for which respondent was cited.

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n8 See, especially, 49 CFR 390.33, applicability of Regulations.

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Accordingly, it is ORDERED that the proposed decision and order are hereby affirmed.  

CONCURBY: MORAN

CONCUR:

  MORAN,   CHAIRMAN, concurring: I concur for the reasons set forth in the decision of the Judge.

[The Judge's decision referred to herein follows]

CHALK, JUDGE, OSAHRC: On September 29, 1972, a Citation, accompanied by a Notification of Proposed Penalty, was issued against Respondent, a motor carrier engaged in interstate commerce, for five alleged non-serious violations of the Occupational Safety and Health Act of 1970.   The Citation resulted from an inspection on August 16, 1972, of Respondent's truck terminal at McKees Rocks, Pennsylvania.   On October 13, 1972, Respondent contested item 1 of said Citation and its proposed penalty of $40.00.   That item, as amended in the Complaint of the Secretary, alleges a violation of 29 CFR 1910.178(k)(1) in the following manner:

. . . requiring that the brakes of highway trucks be set and wheel chocks be placed under the rear wheels to prevent the trucks from rolling when boarded by powered industrial trucks. The said standard was violated in that the employer failed to use chocks substituting wooden blocks which are inadequate.

In its Answer to the Complaint, Respondent, relying   on Section 4(b)(1) of the Act, asserted that it was not subject to "the jurisdiction" of the Act because the Secretary of Transportation had exercised his statutory duty to prescribe regulations affecting the safe operation of motor vehicles of common carriers engaged in interstate commerce by promulgating the Motor Carrier Safety Regulations (49 CFR 390 to 397). n1

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n1 Interstate Commerce Act, Chap. 8, Part II, as amended (49 U.S.C. 304). Certain responsibilities under the act were transferred on April 1, 1967, from the Interstate Commerce Commission to the Department of Transportation (49 U.S.C. 1655(e)(6)(C)).

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In due course, this Commission assigned a hearing date of February 20, 1973, and thereafter assigned the case to me for appropriate disposition.   By Order dated February 14, 1973, I cancelled the hearing upon the request of the parties.   They expressed the desire that I resolve the legal issue raised on briefs, without a hearing.   They also filed a signed stipulation that will enable me to dispose of the case on its merits with finality, should the legal issue be resolved adversely to Respondent.   This Decision, therefore, is based upon the case file, as well as the excellent and informative briefs of the parties.

Section 4(b)(1) of the Act provides in pertinent part that:

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.

The parties are in agreement that Respondent is an interstate motor carrier subject to the Motor Carrier Safety Regulations statutorily promulgated by the Secretary of Transportation. Complainant, however, denies that Respondent is entitled to the exemption afforded by Section 4(d)(1).

  In interpreting Section 4(b)(1), various Judges of this Commission appear to agree that the exemption is limited to specific working conditions of employees over which another Federal agency has exercised its statutory authority to regulate safety and health (see Secretary of Labor v. Fineberg Packing Company, Inc., Docket No. 61, August 11, 1972; Secretary of Labor v. Sigman Meat Company, Inc., Docket No. 251, November 10, 1972; Secretary    of Labor v. Southern Pacific Transportation Company, Docket No. 1348, January 8, 1973; and Secretary of Labor v. Penn Central Transportation Company, Docket No. 738, January 29, 1973). n2 Thus, these Judges affirmed charges only where the other Federal agency did not so regulate the particular working condition involved in the violation of the Act, specifically rejecting any notion that a particular industry or class of enterprise is entitled to a blanket exemption simply because it is statutorily regulated by another agency (id). Respondent does not place the limited-exemption ruling of these cases in issue, however, for its position is that the Secretary of Transportation has exercised his statutory authority to so regulate the particular working condition in question and that the invocation of the exemption is thus automatic. n3

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n2 All of these cases have been ordered up for review by the Commission.

n3 By not contesting the other three items in the Citation, Respondent apparently agrees with the limited-exemption concept.

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This, then, is the question on which the parties join issue, for Complainant takes the opposite position, postulating that the Secretary of Transportation has not statutorily spoken by way of regulation in this particular area.

The basic standard involved, 29 CFR 1910.178, is   entitled "Powered industrial trucks;" and its preamble provides:

(a) General requirements.   (1) The requirements of this section apply to fire protection for fork trucks, tractors, platform lift trucks, motorized hand trucks and other specialized industrial trucks powered by electric motors or internal combustion engines.   These fire protection requirements do not apply to compressed air or nonflammable compressed gas-operated industrial trucks, nor to farm vehicles, nor automotive vehicles for highway use.

The specific subparagraph of 29 CFR 1910.178 involved in the charge provides:

(k) Trucks and railroad cars.   (1) The brakes of highway trucks shall be set and wheel chocks placed under the rear wheels to prevent the trucks from rolling while they are boarded with powered industrial trucks.

According to Respondent, the specific working condition to which subparagraph (k)(1)   addresses itself is the "nonmovement of a truck while it is being boarded with powered industrial trucks" (Respondent's brief, page 4).   Next, Respondent invites my attention to the fact that the Secretary of Transportation is and was aware of the need, from a safety standpoint, for the nonmovement of a truck temporarily stopped "in transit or in the terminal for purposes of maintenance, loading, unloading or whatever" (id). In support of this last statement, Respondent cites § §   392.20, 393.40, and 393.41 of the Department of Transportation Motor Carrier Safety Regulations. Those subparts in turn provide:

§   392.20 Unattended vehicles; precautions. No motor vehicle shall be left unattended until the parking brake has been securely set and all reasonable precautions have been taken to prevent the movement of such vehicle (Emphasis added).

§   393.40 Required brake systems.   (a) General.   A bus, truck, truck tractor, or a combination of motor vehicles must have brakes adequate to control the movement of, and to stop and hold, the vehicle or combination of vehicles.

  §   393.41 Parking brake system.   (a) Every singly driven motor vehicle and every combination of motor vehicles shall at all times be equipped with a parking brake system adequate to hold the vehicle or combination on any grade on which it is operated under any condition of loading on a surface free from ice or snow (Emphasis added).

To the above-cited subparts I would add the following from §   393.40:

(b) Specific systems required. (1) A bus, truck, truck tractor, or combination of motor vehicles must have -

(ii) A parking brake system that conforms to the requirements of §   393.41.

Complainant, on the other hand, argues that the sole purpose of § §   393.40 and 41 is to require certain forms of brake systems to insure safe highway operation.   On the contrary, continues the argument, these regulations "simply require" that highway trucks be equipped with parking brakes capable of controlling a truck's movement on the highway, that they do not require that parking brakes be set during loading and unloading when such is accomplished by the use of powered industrial trucks, that they are not intended to provide safe working conditions for forklift operators and terminal employees, and that they thus do not address themselves to the working condition in question (Complainant's brief, page 11).   In further support of his argument, Complainant invites my attention to the following regulation of the Secretary of Transportation, limited to the transportation of hazardous materials, which Complainant avers would regulate the specific working condition, if this case were concerned with hazardous materials:

§   177.834(e) (incorrectly cited by Complainant as §   177.833(e)) Handbrake set while loading and unloading. No hazardous materials shall be loaded into or unloaded from, any motor vehicle unless the handbrake be securely set and all other reasonable   precautions be taken to prevent motion of the motor vehicle during such loading or unloading.

Complainant's admission concerning §   177.834(e) patently demonstrates the weakness of his argument on the proper interpretation to be placed upon § §   392.20, n4 393.40, and 393.41 of the Motor Carrier Safety Regulations, for even a casual comparison of those regulations with §   177.834(e) reveals that any material difference between them is more imaginary than real.   Common to both, for example, are the requirements to "securely set" the handbrakes and to take all "reasonable precautions" to prevent movement of the truck during loading. While some may argue that § §   392.20, 393.40 and 393.41 are, to some extent, less precise than §   177.834(e), or that the former are confusing because their requirements are spread throughout three regulations, such factors, if true, would not necessarily dictate my disposition of the issue.   Rather, it is my function to take the other agency's regulations as I find them and reach a determination whether they are designed to regulate and control a particular situation, without regard to my judgment as to their quality or effectiveness.   I am, of course, guided in this determination by the rules of construction applicable to statutes (see cited in Secretary of Labor v. Carpenter Rigging and Construction Corporation,   One of the primary objectives of those rules is to avoid an interpretation that would reach an absurd result, completely out of harmony with the regulation's purpose.

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n4 Complainant did not allude to this regulation in his written submission.

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While it is true, as Complainant argues, that the Labor Department standard in this instance, according to its title, relates in general to powered industrial   trucks, and the Transportation Department regulations do not, the fact is inescapable that the two sets of regulations merge if not virtually collide.   The merger or collision occurs where the former purports to regulate the nonmovement of a highway truck under a specified loading condition, and the latter, requiring a particular kind of braking system and the taking of other "reasonable precautions" to insure the nonmovement of a truck, purports to regulate the same thing, "under any condition of loading." n5 A label, therefore, may not always be said to accurately describe that which particular portions of the regulation are designed to regulate. n6 Moreover, as Respondent postulates in his brief, the driver in this case apparently believed that the Transportation regulation covered the particular working condition in question, for he took the added precaution of placing blocks under the truck's rear wheels. n7 Finally, I am not disposed to retreat from my ultimate conclusion because of the differing objectives prevailing between the two agencies' regulations, the failure of the Transportation regulations to mention "unloading" in conjunction with "loading" (§   393.41), or the use in the latter regulations, without definition, of the word "unattended" (§   392.20).

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n5 The phrase "under any condition of loading" covers everything from the use of manpower or animal power to the use of mechanical power of every variety.

n6 "What's in a name? that which we call a rose By any other name would smell as sweet" (William Shakespeare, 1564-1616).

n7 The distinction, if any, between blocking and chocking is of no consequence in this setting.

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While one of the principal objectives of the Motor Carrier Safety Regulations is to insure the safety of the public on the highways of the Nation ( Commercial Standard Insurance Company v. Robertson, 159 F2d   405 (6th Cir., 1947)), it would be fallacious to hold that the same regulations, or at least some of them, do not at the same time have the positive effect of providing a safe workplace for employees, one of the principal objectives of the Safety and Health Act.   Thus, since the Transportation regulations in this case are designed to protect the public from the dangers inherent in the movement of a truck during any loading or unloading process, they necessarily must be considered to have the simultaneous effect of providing a safe workplace for all employees engaged in that process, whether they be forklift operators or "manhandlers." Similarly, it woud be equally fallacious to conclude that §   393.41 does not also include the unloading process, n8 for common sense dictates that safety regulations for either the loading or unloading process would necessarily be the same.   Additionally, it would be an absurd result, completely out of context with the objectives of the Motor Carrier Safety Regulations, to conclude that the Secretary of Transportation is indifferent to the hazards inherent in the unloading process that are essentially identical to those in the loading process to which he paid great deference.   The meaning of the word "unattended," too, should not be distorted beyond reason, but should be interpreted to include the situation where the driver parks his truck for loading or unloading and dismounts the cab to participate in the process or just to observe it, as well as to depart the immediate area. n9 Thus, I construe this word, as used in the regulation   (§   392.20), to include any situation where the driver is unable to take immediate action to prevent the movement of the vehicle that he would be able to take if he were behind the wheel and reasonably alert to any situation that may arise.

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n8 Item number 1 of the Citation included the word "unloading" in the description of the violation; however, the Complaint amended the description by deleting the word.   Moreover, Complainant has raised no issue concerning the absence of the word from the Transportation regulation.

n9 Complainant has raised no issue concerning the meaning to be placed upon the word as it appears in the Transportation regulation.

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Under the circumstances of this case, and for the reasons stated, Respondent, as a matter of law, was, at all times in question, entitled to the exemption afforded by Section 4(b)(1) of the Act, with regard to item number 1 of the Citation, because Respondent was subject to the regulations statutorily promulgated and enforced by the Secretary of Transportation. Accordingly, that part of the Citation and the proposed penalty of $40.00 should not have been issued by the Secretary of Labor ( Secretary of Labor v. Legore Quarries Division-Phoenix, Inc.,

Item number 1 of the Citation, as amended, and the proposed penalty of $40.00 are vacated. n10

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n10 On the date this decision was to be published, March 22, 1973, the Professional Drivers' Council for Safety and Health, through its attorney, Arthur L. Fox, II, Esquire, filed a petition for leave to intervene.   After being satisfied that Petitioner had a legitimate interest in the subject matter of the proceedings and that the untimeliness of its petition was excusable, I granted the petition, stayed publication of the decision, and granted Petitioner eight days in which to file a brief.   Petitioner's brief has now been filed.

Petitioner's principal argument is centered around the contention that the Transportation Department regulations do not cover semi-trailers when not connected to tractors, that the latter are usually disconnected from the former during the loading and unloading process, and that "Respondent has not come forward with evidence that the vehicle in question was not a semitrailer [sic]."

I reject this argument for the reason that the evidence, including not only the stipulation signed by the parties but the Citation and Complaint authored by Complainant, clearly establishes to my complete satisfaction that the subject matter of the charge in this case was a truck, as distinguished from a semi-trailer.   Moreover, if the evidence were deficient as Petitioner claims, then it would appear that the same problem would exist regarding the Labor Department standard, for it, too, appears to limit itself to "highway trucks" (29 CFR 1910.178(k)(1)).

Otherwise, Petitioner adopts some of the arguments advanced by Complainant, arguments that have been adequately dealt with in the body of this decision.

 

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It is so ORDERED.