Docket No. 391

RYDER TRUCK LINES, INC.

OSHRC Docket No. 391

Occupational Safety and Health Review Commission

August 16, 1973

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: On October 31, 1972, Judge James D. Burroughs issued a decision in this case whereby he affirmed Complainant's citation. No penalty was assessed. Review of the Judge's decision was directed in accordance with the authority of section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq. ).

We have reviewed the record and find no prejudicial error therein.

Accordingly, it is ORDERED that the Judge's decision be and the same is hereby affirmed in all respects.

CONCURBY: CLEARY

CONCUR:

CLEARY, COMMISSIONER, concurring: I concur with Commissioner Van Namee in denying respondent's motion for reconsideration and in denying the motion to stay.

Furthermore, I concur in the discussion differentiating motions to stay payment of penalties and motions to stay abatement and agree that the latter should be granted only in the most unusual circumstances.

I am compelled to add, however, that it is inappropriate for the Commission to restate the bases of its prior holding in deciding the present motion. The merits of the case have been adequately discussed in the Judge's recommended decision and order that was adopted in all respects by the Commission.

I also note that the hearing and the Judge's decision were limited to whether the condition existing on respondent's loading dock was "hazardous" within the meaning of the standard and whether respondent required the use of safety shoes. Whether respondent "provided" safety shoes was not an issue in this case, and I specifically disassociate myself from that part of the decision purporting to define "provided" as used in the standard.

DISSENTBY: MORAN

MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: The objective of achieving safe and healthful workplaces for employees cannot be achieved so long as this Commission continues to uphold loosely-worded, ill-defined requirements like the occupational safety and health standard sustained in this decision. Employers are told by this standard that they must do something (provide personal protective equipment) wherever it is necessary by reasons of hazards of processes or environment. The most sincere safety-oriented employer in the country couldn't know when that is.

At the time this enforcement action was initiated, respondent, a corporation in business as a trucking company, was engaged in part in the pick up and delivery of freight. It was found in violation of the Act because of its failure to comply with the following (29 CFR 1910.132(a)):

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 typical of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.

The basis for said noncompliance according to the citation was that some of respondent's employees were not wearing "foot protection" while working "on the loading and unloading docks where foot hazardous material is frequently handled." During the hearing, complainant maintained that the absence of foot protection exposed respondent's employees to the dangers of freight being dropped on their feet or having their feet run over by the wheels on various types of mechanical equipment used at respondent's freight dock.

The language of section 1910.132(a) essential to the facts of this case mandates that respondent require that its employees wear "personal protective equipment for . . . extremities . . . wherever it is necessary by reason of hazards of . . . environment. . . ." Exactly what constitutes "personal protective equipment for . . . extremities" or "hazards of environment" is not explained anywhere. Terminology of such general nature does not lend itself to any precise or comprehensible definition measured by common understanding and practices. It certainly does nothing to advance the objectives sought by the enactment of this law. The fact that three-pages of the decision below were devoted to an explanation of the Judge's encounter with Webster's Dictionary is a clear demonstration of the problems created.

A representative of complainant who conducted the inspection upon which the citation was based stated at the hearing that the nature of respondent's offense was the failure of its employees to wear "safety shoes." That was strictly his opinion of the meaning of the term "personal protective equipment." To find an employer in violation of the law on the basis of such an opinion is contrary to our constitutional requirement of due process. Whether or not a law or regulation has been violated depends upon the wording of the law or regulation itself, rather than on an ad hoc appraisal of the subjective expectations of a particular safety inspector. Furthermore, neither the record of this case, nor the regulation allegedly violated, contains any definition of the term "safety shoes." Assuming that the term has some specific meaning and that complainant desires to require the use of same, he has the power under section 6 of the Act to do so. The regulation under which respondent has been cited in this case, however, contains no such requirement.

Any regulation or safety standard which necessitates research on the part of the employer in order to apprise himself of the meaning of ambiguous language is invalid because it does not implement the purposes for which this law was enacted. n1 The substance of the regulation must afford reasonable notice of the conduct which it requires or proscribes. Secretary of Labor v. J.A. Walder, Inc., Secretary of Labor v. Anaconda Service Station, Inc., The standard at issue in this case could not be fully understood even if each employer did extensive research on its meaning and there is no way anyone could know exactly what this standard requires and when whatever-it-is is to be used.

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n1 A regulation which operates to create a rule out of harmony with the statute is a mere nullity. Lynch v. Tilden Produce Co., 265 U.S. 315, 320-322; Miller v. U.S., 294 U.S. 435, 439-440.

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Moreover, to permit the enforcement of so vague a standard is to subject an employer to the unbridled discretion of the complainant's inspectors and other representatives in the determination of what constitutes compliance. One inspector could say that only shoes made of steel would meet the requirements of this occupational safety and health standard. Another could say only those of a specific type of plastic or leather or some other material would suffice. Still others could specify certain manufacturers or retailers of shoes. The possibilities are limitless when the requirement is as all-encompassing as "personal protective equipment for . . . extremities." Common sense requires that an enforceable regulation must contain an ascertainable standard of misconduct in order to circumscribe the discretion of the enforcement agents.

The instant case is a perfect example of the latitude which exists when obscure and hazy words are used in a regulation. Upon a brief study of respondent's log of injuries and illnesses and a 30-minute observation of its loading platform, a representative of complainant concluded that injuries to employees' feet were, in his view, a "hazard of . . . environment." This determination was partially based upon that log's entries which showed 41 lost days of work due to foot injuries between 1967 and 1972. There was no evidence, however, as to whether or not the workdays reportedly lost for foot injuries were, in fact, work-related injuries or injuries which "safety shoes" would have prevented. Permitting the input of subjective criteria thus places upon respondent the onerous task of attempting to comply with an unclear occupational safety and health standard as it happens to be interpreted in each case by an individual inspector or other representative of complainant. In Secretary of Labor v. California Stevedore and Ballast Company, This decision is a retreat from that sound principle.

The purposes of this Act require specificity in the wording of the regulation sought to be enforced against the employer. Secretary of Labor v. The Mountain States Telephone & Telegraph Company, If what is to be achieved is safe and healthful working conditions, employers must be presented with discernible standards by which they can guide their own conduct, and the requirements of such standards must be apparent upon a reading thereof by an ordinary prudent employer. Indeed, by definition in section 3(8) of the Act, an occupational safety and health standard is one that:

. . requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes reasonably necessary or appropriate to provide safe or healthful employment and places of employment.

29 CFR 1910.132(a) does not meet this test. While requiring the use of personal protective equipment, it fails to make explicit just what that equipment might be or the conditions which necessitate its use.

In my opinion, the standard at issue in this case suffers from the same ambiguousness as 29 CFR 1910.265(d)(4)(iii) which was held to be unenforceably vague for being open to different interpretations in Secretary of Labor v. Moser Lumber Company,

[The Judge's decision referred to herein follows]

BURROUGHS, JUDGE, OSAHRC: This is a proceeding under Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. 84 Stat. 1590 (hereinafter referred to as the Act), to review a citation issued by the Secretary of Labor (hereinafter referred to as the complainant) pursuant to Section 9(a) of the Act. The citation was issued to respondent on December 23, 1971, alleging that it was in violation of 5 safety standards promulgated pursuant to Section 6(a) of the Act. A notification of proposed penalty was issued on the same date but did not propose a penalty for any of the alleged violations.

On January 7, 1972 the respondent filed a notice of contest with respect to items 4 and 5 of the citation. These items pertain to foot protection and dust control. The notice of contest filed by the respondent on January 7, 1972 stated that items 1, 2 and 3 had been corrected prior to the abatement dates of January 4 and January 21, 1972 which were specified in the citation.

The complainant advised this Judge by letter, dated May 26, 1972, that air samples were not taken at the time of the inspection by the compliance officer. The letter further stated that air samples were taken subsequent to the inspection and that they did not reflect that inert or nuisance dust at that time exceeded the time weighted average limit given for that material in Table G-3 of 1910.93. Accordingly, complainant advised that it would offer no evidence with respect to Item 5. This position was reiterated at the hearing and the complainant's letter of May 26, 1972, was made, by consent of the parties, a part of the official record in this proceeding (Tr. 7-8). This left for determination the question of whether foot protection as set forth in Item 4 of the citation was required. The citation described the contested alleged violation of 29 CFR 1910.132(a) and (b) n1 as follows:

Foot protection was not universally used on the loading and unloading docks where foot hazardous material is frequently handled.

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n1 The citation refers to 29 CFR 1910.132 (b) and (g) Paragraph IV(4) of the complaint states that the use of subsection (g) was a typographical error and that reference was intended to subsection (a).

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The complainant advised the Occupational Safety and Health Review Commission of the notification of contest by respondent. The Commission assigned the case to this judge for hearing pursuant to the provisions of Section 10(c) of the Act. A hearing was held in Birmingham, Alabama on June 6, 1972. No additional parties desired to intervene in the proceeding.

On June 6, 1972, respondent filed a Motion to Dismiss based on several allegations that the Act is unconstitutional. In addition a demand was made for a jury trial. These motions were denied at the commencement of the hearing on June 6, 1972 (Tr. 3-6).

ISSUES

The primary issue for determination is whether foot protection was required on the loading and unloading docks pursuant to 29 CFR 1910.132 (a) and (b). If a violation did occur then a determination must be made as to whether no penalty should be asserted as proposed by the complainant.

FINDINGS OF FACT

The evidence of record has been carefully considered and evaluated in its entirety. The facts hereinafter set forth are specifically determined in resolving this proceeding.

Respondent is a corporation engaged in business as a common carrier of property by motor vehicle. It operates principally in the Eastern United States and has its home office in Jacksonville, Florida. Respondent has approximately 85 terminals, one of which is located at 1504 Apalachee Street, Birmingham, Alabama. At all times material hereto it was engaged in a business affecting commerce within the meaning of the Act (Complaint and Answer; Tr. 12).

Respondent employs approximately 260 persons in its Birmingham terminal, warehouse and maintenance operations. These employees, other than supervisors, are represented by Local 612, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Complaint and Answer; Tr. 13, 177-178). Respondent operates several shifts which vary in number of employees. The shifts overlap for peak periods. The highest number of dock employees working during a peak period is approximately 40 (Tr. 23-24, 34).

The Birmingham terminal is a one story building with the offices located in the front end of the building (Tr. 15). Directly behind the offices is a rectangular shaped freight platform which has 88 doors on three sides to accommodate trucks and trailers (Tr. 15-16). The doors are approximately 2 feet apart (Tr. 37). A total of 108 persons were on the seniority list at the time of the hearing. This includes both dock workers and pick up and delivery drivers (Tr. 16, 17, 155, 176). There were 117 persons on the seniority list in 1971 (Tr. 176).

The function of respondent's Birmingham operation is to pick up and deliver freight and to transfer freight for service to other terminals (Tr. 14). Freight arrives at the Birmingham terminal from all points in the eastern United States (Tr. 14-15). Generally, freight originates at, moves through or terminates at the Birmingham terminal. Respondent handles the freight by transferring it from one vehicle to another rather than storing it (Tr. 15).

Freight moved by respondent's employees comes in all sizes and shapes. It includes such things as tires, cardboard cartons, metal cylinders, an occasional piece of pipe, small motors, wooden boxes, electric motors, and automobile transmissions (Tr. 19, 21-22, 72-73). The weight of the freight handled and transported varies. There are no specific weight limitations for transporting freight, except it must be within the range capable of being handled by respondent's equipment (Tr. 22). The freight flow at the terminal is planned so that the vast majority of freight is moved only a relatively short distance within the terminal (Tr. 23).

The dock employees are the only ones normally involved in loading and unloading at the terminal (Tr. 31). The drivers of the trucks are involved in off premises loading and unloading (Tr. 30-31). The long distance drivers who drive between various cities are not involved in loading or unloading (Tr. 31). None of the drivers assist in loading and unloading at the docks (Tr. 32-33).

The function of the dock workers is to transfer freight from one vehicle to another or from the vehicle to the platform or from the platform to the vehicle. The freight is generally moved by the use of four wheel carts which are operated by hand and tow motors (Tr. 17). Freight is seldom hand carried by the dock workers. The cart is rolled into the trailer and the freight transferred from its fixed position to the cart which is then pushed to its destination (Tr. 18, 21). The interior of an average trailer is approximately 7 1/2 feet and freight is on occasions stacked to the top (Tr. 28). Most of the employees move freight by the wheel carts (Tr. 21). Usually the freight is transferred between trucks located at adjacent or nearby doors (Tr. 23).

The four wheel carts used in moving the freight have a base approximately 3' X 6' in size. At one end a vertical frame structure runs the full width of the cart from the base up to a height of approximately 3 1/2 feet (Tr. 18). The carts weigh approximately 120 pounds and have a capacity of several hundred pounds (Tr. 18, 24). The tires are solid rubber. The total diameter of tires and steel wheels is approximately 12 inches (Tr. 18-19, 24). The carts are used principally for the transfer of small package freight that can be physically placed on the cart by an employee. The heavier freight is moved by the tow motor (Tr. 19).

Three tow motor vehicles are available for use at the terminal (Tr. 17). The tow motors are gasoline operated vehicles that have a set of movable forks which protrude from the front of the vehicle. Tow motor operators are specifically trained for the job (Tr. 20). The operators ride on the tow motors (Tr. 25). Some of the freight handled by the tow motors are carried on pallets (Tr. 22). In these instances the forks of the truck fit under the pallet and lift it (Tr. 23).

On December 13, 1971, complainant, through one of his authorized compliance officers, conducted an inspection of respondent's Birmingham terminal (Tr. 42). During his inspection the compliance officer reviewed respondent's accident reports (Tr. 43). He particularly observed the frequency of accidents resulting in injuries to the feet (Tr. 44, 81). After reviewing the accident reports, the compliance officer conducted an inspection of the docks and observed employees loading and unloading freight from the trucks (Tr. 89-92).

During his inspection of the loading and unloading docks, the compliance officer concluded that the working conditions on the dock were hazardous to an employees feet (Tr. 45-46). He based this conclusion on the fact that freight could drop or accidentally fall on the feet and that space limitations in the trucks might prevent a physical reaction to pull the foot away (Tr. 46, 72, 118). He also was of the opinion that the wheel carts and tow motors might accidentally run over feet of employees (Tr. 72, 118).

During the inspection of the docks, the compliance officer observed that the dock employees wore various types of shoes which varied from substantial work shoes to lightly constructed dress shoes, slippers or loafers (Tr. 46-47, 93-94). He did not observe any employee wearing foot protection (Tr. 114, 116). He did not personally inspect any of the shoes but only visually observed them (Tr. 94).

Sometime prior to 1956, respondent instituted a program to make it convenient and easier for anyone desiring to purchase safety shoes. A uniform purchase plan was initiated which was simplified by use of a payroll deduction plan. Arrangements were made with manufacturers and wholesale outlets to furnish the shoes (Tr. 9, 11-12, 172). Respondent also agreed to pay part of the purchase price of the shoes (Tr. 172).

During the years 1967 to 1971, and including 1972 until the date of hearing, the respondent's dock and pick up and delivery employees had the following number of toe injuries with lost days as indicated: (Tr. 153-154, 156, 160-161)

	Number of
Year	foot injuries	Lost days
1967	2	4
1968	1	0
1969	3	16
1970	2	3
1971	2	18
1972 (to hearing date)	1	0

In addition to the toe injuries, employees of respondent also experienced other foot injuries during the years 1967 to 1972, inclusive (Tr. 163-164). The number of other foot injuries were approximately the same as the number of toe injuries (Tr. 164). Foot injuries have occurred with less frequency than some other types of injuries (Tr. 157).

LAW AND OPINION

Section 5(a)(2) of the Act provides that each employer shall comply with occupational safety and health standards promulgated under the Act. The standards allegedly violated by respondent are set forth at 29 CFR 1910.132(a) and (b) which provide as follows:

(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.

(b) Employee-owned equipment. Where employees provide their own protective equipment, the employer shall be responsible to assure its adequacy, including proper maintenance, and sanitation of such equipment.

Complainant contends that the standards were violated because of hazardous material frequently handled on the loading and unloading docks. The burden of proof is on the complainant. Respondent submits that complainant has failed to carry his burden with respect to the issue.

This case is not concerned with chemical hazards, radiological hazards or mechanical irritants. If a violation is determined it must be predicated on that part of section 1910.132(a) which requires protective equipment "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." The key words are "hazards of processes or environment."

The word "processes" is not defined by the Act or the regulations. Therefore, the meaning must accord with the approved usages of the language. When interpreted according to its ordinary usage, it is clear that the word "processes" has no applicability to the loading and unloading of freight. It implies, from a safety standpoint, essentially a transformation or conversion of material or things into a different state or form from that in which they existed; the actual operation incident to changing them into marketable products. As the Supreme Court stated in Cochrane v. Deener, 94 U.S. 780, 788 (1876):

A process is a mode of treatment of certain materials to produce a given result. It is an act, or a series of acts, performed upon the subject-matter to be transformed and reduced to a different state or thing.

Numerous commercially completed articles or products have to be further processed when they are used as intended. Examples of such processing are the slaughtering of livestock, the milling of grain and the spinning of cotton. Some significant change takes place in processing articles or goods and each process advances the articles or goods toward a completed article in a common and commercial sense. The loading and unloading of freight certainly does not come within the common and ordinary usage of the word "processes."

The next logical inquiry is as to the meaning of the word "environment." The common usage of this word refers to the surrounding conditions. See Websters Third New International Dictionary. This definition is so well known that it is undoubtedly recognized as such among those that are familiar with the word. Thus, in essence, section 1910.132(a) refers to "hazards of surrounding conditions."

Section 1910.132(a) does not enumerate what employment or jobs shall be classified as hazards of environment. It does not say that loading and unloading of freight is per se a hazardous occupation. Undoubtedly the general intent of the regulation was to make the actual work performed by an employee the test for determining the applicability of the standard in lieu of the nature of the employer's business.

The environment or surrounding conditions existing on respondents loading and unloading docks expose employees to freight of various dimensions and weights. Employees are also exposed to mechanical equipment such as carts and tow motors. The majority of the freight must be picked up manually and placed on the carts. The cart is then pushed to its destination within the warehouse or on the docks. Freight which is stacked on pallets and the more cumbersome and bulky freight is lifted and transported by the tow motors.

The crux of this issue is whether respondent's dock employees in carrying out their usual and ordinary duties are exposed to a hazard. It is recognized that the word "hazard" may be subject to many different interpretations, depending upon the facts and circumstances of each case. This makes it difficult for an employer to know whether he is complying with the law. The problem is further complicated by the fact that the compliance officer does not have any concrete criteria, either statutory or administrative, to guide him in finding a violation. This is the unfortunate result of standards providing only general requirements. The employer is placed in the position of having to guess which employees are exposed to hazards of environment.

The whole philosophy of the occupational safety and health standards presupposes some uniform standard of protection to employees. Yet in many instances the infinite variety of work situations which arise makes it impossible to fix definite standards for all conceivable situations. Such situations tend to place initial determinations, good or bad, wholly within any interpretation the complainant seeks to impose.

Where the standard is general in its intent, the Commission has a choice of rubber stamping the complainant's interpretation of the standard or imposing external and objective factors to ascertain whether the interpretation is reasonable. Since the function of the Commission is to conduct and render fair and impartial decisions in all cases which are brought before it, fairness and impartiality requires that an employer in such situations be judged as to what a reasonable person of ordinary prudence would do under the circumstances. In other words, would a reasonable person interpret section 1910.132(a) as requiring foot protection for dock employees who are engaged in the work of loading and unloading freight from trucks.

The surrounding conditions of employees working on respondents loading and unloading freight must constitute a hazard before section 1910.132(a) is deemed to be applicable. The word "hazard" is defined in the dictionary as "a thing or condition that might operate against success or safety: a possible source of peril, danger, duress or difficulty," "to take the risk of," "an event occurring without design, forethought, or direction: accident." See Websters Third New International Dictionary. The evidence is clear that a reasonable person would have recognized that a hazard existed for employees engaged in loading and unloading freight.

Respondent's dock workers are regularly exposed to the accidental dropping of freight being manually lifted or carried, the accidental falling of freight which has been stacked (sometimes from a height of over 7 feet) and to the possibility of the wheels of the carts and tow motors running over their feet. Past injury records further confirm that toe injuries have occurred which resulted in lost manhours. While the number of injuries and lost manhours have not been alarmingly high, this does not justify a determination that section 1910.132(a) is not applicable. The aim and purpose of the standard is to eliminate such injuries rather than reduce them to any specific rate of incidence.

The record also confirms that respondent at least tacitly recognized the importance of safety shoes by establishing a program making it easier for employees to obtain them. This program has been in existence for over 16 years. Under the program respondent defrays part of the purchase price and allows the employees to purchase under a payroll deduction plan. Respondent has not required the wearing of safety shoes and the program has met with little success (Tr. 181).

The hazards of falling freight and potential of foot injury from mechanized equipment is a permanent part of the dock workers job and they can not escape regular exposure to the hazards. Under such circumstances it is concluded that a reasonable person of ordinary prudence should have concluded that 29 CFR 1910.132(a) was applicable to dock workers engaged in loading and unloading freight.

Section 1910.132(b) by its own express provisions applies where employees provide their own protective equipment. The record does not show that any employees were wearing safety shoes on the date of inspection or that employees were required to provide such equipment. Under 1910.132(b) the respondent is only responsible to assure adequacy of protective equipment worn by employees. Since protective equipment was not required by the respondent and not worn by the employees, there can be no violation of 1910.132(b).

The complainant did not propose a penalty for the alleged violation of 29 CFR 1910.132(a). However, once a notice of contest is served, the authority to assess civil penalties under the Act resides exclusively with the Commission. The Commission, in section 10(c) of the Act, is charged with affirming, modifying or vacating citations issued by the Secretary under section 9(a) and notifications issued and penalties proposed by the Secretary under section 10(a) and 10(b). The Commission, by section 17(j) of the Act, is expressly required to find and give "due consideration" to the size of the employer's business, the gravity of the violation, the good faith of the employer and the history of previous violations in determining the assessment of an appropriate penalty. See Secretary of Labor v. Nacirema Operating Company, Inc., In Nacirema the Commission stated that the four criteria to be considered in assessing penalties cannot always be given equal weight. It is indicated that the principal factor to be considered in assessing an appropriate penalty for a violation is the gravity of the offense.

After due consideration of the four criteria provided by section 17(j) of the Act, it is concluded that no penalty should be asserted. The gravity of the violation was low, and the good faith of the respondent should not be impugned simply because it challenged the complainant's interpretation of the standard. The record is convincing that respondent was sincere in contesting this matter and honestly believed the standard was not applicable.

CONCLUSIONS OF LAW

1. The respondent was at all times material hereto engaged in a business affecting commerce within the meaning of section 3(5) of the Act.

2. The respondent was at all times material hereto subject to the requirements of the Act and the standards promulgated thereunder. The Commission has jurisdiction of the parties and of the subject matter herein.

3. Respondent was not in violation of 29 CFR 1910.93(e) or 29 CFR 1910.132(b).

4. Respondent was in violation of 29 CFR 1910.132(a). No penalty was proposed and none is asserted for the violation.

ORDER

Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record, it is

ORDERED:

1. That the respondent did not commit a violation of 29 CFR 1910.93(e) or 29 CFR 1910.132(b); and

2. That the respondent committed a violation of 29 CFR 1910.132(a) for which no penalty is applicable.

[Following the foregoing disposition respondent petitioned the Commission to stay its order pending review by the U.S. Court of Appeals, 5th Circuit. The Commission's decision on this petition follows.]

RYDER TRUCK LINES, INC.

September 27, 1973

Ruling on Respondent's Motion for Reconsideration and Alternative Motion for Stay of Commission's Order

VAN NAMEE, COMMISSIONER: On August 16, 1973, the Commission issued its decision in the captioned matter. We affirmed the decision of Judge James D. Burroughs finding that Respondent was in non-serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et. seq., hereinafter "the Act"), for violating a standard published at 1910.132(a) n1 in that Respondent failed to require that its dock workers wear foot, i.e., toe, protection to protect them from hazards of environment. We assessed no penalty.

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n1 The cited standard provides:

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 moved, on August 24, 1973, that we reconsider our decision and vacate the citation. The motion prayed, alternatively, that should we not vacate the citation, we stay our order pending review by the United States Court of Appeals for the Fifth Circuit. For reasons hereinafter stated, we deny both motions.

THE MOTION FOR RECONSIDERATION

The record before us establishes that Respondent's employees are exposed to hazards of foot (toe) injury from falling freight and from vehicle wheels. Either of these hazards may cause, and have caused, foot (toe) injuries. Thus, Respondent's own records established a history of toe injuries and lost man days as a result:

	Number of
Year	foot injuries	Lost days
1967	2	4
1968	1	0
1969	3	16
1970	2	3
1971	2	18
1972 (to hearing date)	1	0

As Judge Burroughs correctly observed:

While the number of injuries and lost manhours have not been alarmingly high, this does not justify a determination that section 1910.132(a) is not applicable. The aim and purpose of the standard is to eliminate such injuries rather than reduce them to any specific rate of incidence.

Respondent bases its motion for reconsideration, inter alia, on our decision in Secretary of Labor v. Grayson Lumber Company, That case is not controlling. In Grayson we vacated the citation because the only evidence introduced to support the citation was the opinion of the compliance officer that foot (toe) injuries were possible. Moreover, the record established that Respondent's employees had not incurred such injuries for nearly 20 years.

In the instant case, as noted above, the record establishes that injuries of the type contemplated by the standard have occurred. Furthermore, Respondent apparently recognized the hazard by establishing a program to make it easier for employees to obtain foot (toe) protection.

THE MOTION FOR A STAY

A stay may be directed to the abatement date, the payment of the penalty, or both. Where the question is whether to stay payment of the penalty, ordinarily no harm can be done by granting such a request. Indeed, ordinarily, it is probably administratively desirable that we do so. If a Respondent who ultimately prevails in the appellate courts were required to pay the penalty while his review petition is pending, we would place on the Secretary and the Department of the Treasury the administrative burden of processing a refund. Further, such Respondent would be deprived of the use of the funds in question. While it is true that if our order is affirmed and such Respondent must ultimately pay the penalty, he will have retained the use of the money in question, we think this does not interfere with the administration of the Act because the purpose of the penalty provisions is not to raise revenue. Rather, their purpose is to encourage compliance. Moreover, there is virtually no danger that a Respondent will seek appellate court review of an administrative order solely for the purpose of delaying payment of a penalty. The cost of so doing would far outweigh any advantage to be gained. Cf. Murray v. Kunzig (opinion on rehearing), 462 F.2d 871, 886 (C.A.D.C. 1972), cert. granted, U.S. , 93 S. Ct. 1942.

In the case before us, no penalty was assessed. Therefore, Respondent's motion asks only that we stay our abatement order. The goal of the Act's abatement requirements is prevention of occupational injuries and illnesses. It follows, therefore, that abatement should be achieved as rapidly as is reasonable under the circumstances.

The circumstances of the record before us indicate beyond doubt that Respondent's employees have suffered injuries of the type sought to be prevented by the cited standard. If Respondent complies with the requirements of the standard such injuries may be prevented in the future.

Moreover, we think Respondent's request for a stay may be based on a misunderstanding of the standard and our order. They require only that Respondent insure that toe protection equipment be used. Respondent is not ordered to bear the cost of the equipment.

The standard in question consists of three subparts. It must be construed as a whole.

Reasonably interpreted, we think subpart (a) imposes no duty on the employer to provide or pay for the equipment. We reach this conclusion because of the provisions of subparts (b) and (c). n2 Subpart (b) imposes a duty on an employer to insure that employee provided equipment is adequate, is maintained properly, and is sanitary. Subpart (c) requires that all personal protective equipment be of safe design and construction. Since subpart (b) contemplates the use of employee provided equipment, it would be anomalous for us to read subpart (a) as requiring that the employer provide the equipment. Were we to so construe subpart (a), we would render subpart (b) meaningless or superfluous. By so doing we would act in contravention of well settled principles of statutory construction. Cf. FPC v. Panhandle Eastern Pipe Line Co., 337 U.S. 498, 514 (1949); Great Northern Ry. Co. v. United States, 315 U.S. 262, 272 (1942); Montgomery Charter Serv., Inc. v. Met. A.T. Com'n, 325 F. 2d 230, 234 (C.A.D.C. 1963); Korte v. United States, 260 F.2d 633, 636 (9th Cir. 1959), cert. denied, 358 U.S. 925.

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n2 Subparts (b) and (c) provide:

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Construing the standard as a whole, we think subpart (a) means that where personal equipment is necessary, the employer shall insure that it is used. If he provides such equipment, he is responsible for insuring that it is "provided, used, and maintained in a sanitary and reliable condition."

Because subpart (a) does not demand that the employer provide the equipment, subpart (b) makes the employer responsible for insuring the adequacy, proper maintenance, and sanitation of employee provided equipment. Subpart (c) requires the employer to insure that all personal protective equipment, whether employer or employee provided, is of safe design and construction.

Our interpretation comports, not only with settled rules of statutory construction, but, also, with the basic objective of the Act. The purpose of the Act is "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions" (Act, sec. 2(b)). Unlike other labor statutes with essentially economic purposes (e.g. Fair Labor Standards Act), the Act is concerned solely with safety and health in the work situation. n3 Prescription of cost allocations is not essential to the effectuation of the Act's objectives. n4 It is irrelevant for purposes of the Act who provides and pays for the equipment. Either employer or employee provision is consistent with the purpose of the Act.

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n3 We are not unaware of the economic impact of job related injuries and illnesses. Our point is that the Act does not impose any obligations on the employer which directly affect employees' economic status.

n4 We do not imply that an employer is not obliged to bear the cost of things such as capital equipment which it is ordinarily his responsibility to assume. We are here considering the cost allocation of personal equipment. While there is other equipment used for foot (toe) protection, the most universally used is the steel-toed shoe. This is equipment which is uniquely personal and which the employee may use away from the job.

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The question of cost allocation, on the other hand, is a question to be resolved between employer and employee. In our judgment, it is an appropriate subject for collective bargaining. Cf. Fiberboard Paper Products Corp. v. NLRB (concurring opinion), 379 U.S. 212, 222 (1964); NLRB v. Miller Brewing Co., 408 F. 2d 12, 14 (9th Cir. 1969); NLRB v. Gulf Power Co., 384 F. 2d 822, 824-825 (5th Cir. 1967).

Under the circumstances of the case, Respondent will suffer no hardship while this matter pends in the Court of Appeals. Moreover, denial of the motion to stay will further the purposes of the Act since employees will receive safety protection.

Accordingly, it is ORDERED that Respondent's motion for reconsideration is denied. It is further ordered that Respondent's motion for a stay is denied.

MORAN, CHAIRMAN, dissenting: I would grant the stay.