SAFEWAY STORES, INC. *

* [On 1-24-75 the Commission granted a joint motion for reconsideration of its order.   The decision resulting from this action will appear in a future volume of OSAHRC Reports -- Ed.]

OSHRC Docket Nos. 454; 723; 1070 (Consolidated)

Occupational Safety and Health Review Commission

December 26, 1974

  [*1]  

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

  VAN NAMEE, COMMISSIONER: These consolidated matters are before the Commission on Chairman Moran's order directing review of a decision of Judge David G. Oringer.   Judge Oringer in part affirmed and in part vacated Complainant's citations charging that, at each of three worksites, Respondent violated section 5(a)(2) n1 of the Occupational Safety and Health Act of 1970 (hereinafter "the Act"). n2 Complainant's proposed penalties totalling $110 were affirmed.

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n1 29 U.S.C. 654(a)(2).

n2 29 U.S.C. 651 et seq.

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We have reviewed the record.   Based on such review we adopt the Judge's decision to the extent it is consistent herewith. n3

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n3 Review was in part directed on the question whether the citation in Docket No. 1070 had been issued with reasonable promptness as required by section 9(a) of the Act.   The issue of reasonable promptness was not raised during the issue formulation stage of these proceedings nor was it raised before the Judge at any time thereafter.   Accordingly, we do not consider it.   Chicago Bridge and Iron Company,

  [*2]  

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The relevant facts may be briefly stated.   At one worksite (Tulsa, Oklahoma) the trailer of a highway truck which did not have chocks placed at its wheels was being unloaded. Motorized pallet trucks are used for loading and unloading highway trucks at this worksite. At the two other worksites (Denver and Kansas City) the compliance officers observed trailers being unloaded either by pallet trucks or by a forklift.   It is undisputed that wheel chocks are not normally used in loading and unloading operations at these worksites.

  On these facts Complainant charged as a single violation at each worksite that Respondent failed to comply with the standards published at both 29 C.F.R. 1910.178(k)(1) and 1910.178(m)(7).   Judge Oringer concluded that Respondent was in violation of subparagraph (m)(7) but that Complainant had failed to prove a violation of subparagraph (k)(1).   We affirm the Judge's decision with respect to subparagraph (m)(7).   We also affirm his vacation of the alleged violation of subparagraph (k)(1) but nor for the reasons given by the Judge.

Section 29 C.F.R. 1910.178(k)(1) requires [*3]   that "[t]he brakes of highway trucks shall be set and wheel chocks placed under the rear wheels to prevent the trucks from rolling while they are heaided with powered industrial trucks." Subparagraph (m)(7) provides as follows:

Brakes shall be set and wheel blocks shall be in place to prevent movement of trucks, trailers, or railroad cars while loading or unloading. Fixed jacks may be necessary to support a semitrailer is not coupled to a tractor.   The flooring of trucks, trailers, and railroad cars shall be checked for breaks and weakness before they are driven onto.

From the evidence of record it may reasonably be inferred that at all three worksites highway truck trailers did not have wheel chocks in place while being unloaded by powered industrial trucks. Moreover, Respondent admits that wheel chocks were not used.   Plainly the facts of this case are sufficient to establish that a condition existed at each worksite violative of both cited standards.   Indeed, Respondent does not contend that it is in compliance with the standards but rather defends on other unrelated grounds.

There is also no dispute that Respondent's employees at each worksite were affected by the violative [*4]   conditions.   Accordingly we would further find a violation of the Act for failure to comply with either standard without regard to whether Respondent actually created the violative condition or was otherwise responsible for its existence.   R.H. Bishop Company,   S. & H. Guide para. 17,930 (May 30, 1974). n4

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n4 It is possible on the facts to assert a defense based on section 4(b)(1) of the Act (29 U.S.C. 653(b)(1)).   However, such a defense was expressly waived at trial by Respondent's counsel.

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However, it is also apparent that on the facts of these cases both subparagraphs require precisely the same conduct by Respondent -- the use of wheel chocks on the trailers during loading or unloading operations with powered industrial trucks. Respondent's failure to comply with this requirement constitutes the substance of Complainant's citation of both standards as to each worksite. Complainant thus should have elected to proceed under either 29 C.F.R. 1910.178(k)(1)   [*5]   or 1910.178(m)(7).   Since the required conduct is the same, under the circumstances the portion of Complainant's citations alleging violation of subparagraph (k)(1) merges with the allegation of violation of subparagraph (m)(7) to constitute a single violation at each worksite of one standard for which a single penalty is appropriate.   For this reason we affirm the Judge's vacation of the portion of the citations alleging violation of subparagraph (k)(1).

Accordingly, it is ORDERED that the decision of the Judge is affirmed to the extent it is consistent herewith.  

CONCURBY: CLEARY (In Part); MORAN (In Part)

DISSENTBY: CLEARY (In Part); MORAN (In Part)

DISSENT:

  CLEARY, COMMISSIONER, concurring in part and dissenting in part: I concur with my colleague's opinion insofar as it affirms that part of Judge Oringer's decision wherein he found respondent to be in non-compliance with 29 CFR §   1910.178(m)(7).   I further find that respondent was in non-compliance with 29 CFR §   1910.178(k)(1).

The facts, as summarized in the lead opinion, clearly establish that respondent was in violation of both cited standards.   Although it is clear that both standards refer to the same factual situation, i.e., the use of [*6]   chocks and the setting of brakes when truck trailers are boarded with powered industrial trucks, the result is not duplicative.

  The standards at issue were promulgated by the Secretary of Labor under the power delegated to him in section 6 of the Act and their source is the Safety Standard for Powered Industrial Trucks, USAS B56.1-1969 published by the American National Standards Institute, Inc. (ANSI).   This ANSI standard is divided into three parts: Part I presents "General" information; Part II presents the standards "For the Manufacturer" of powered industrial trucks; and Part III presents the standards "For the User" of powered industrial trucks.

Part III of the standard is further broken down into sections 5, 6, and 7.   Section 5 deals with the "General Safety Practices" for the machinery, liquids, components, or procedures used tangentially with powered industrial trucks; section 6 furnishes the "Operating Safety Rules and Practices;" and section 7 deals with "Maintenance" of the vehicles.

The standard at (k)(1) is taken verbatim from subsection 513(A), section 5, Part III of the ANSI standard.   Subsection 513 is designed to control the operation of "Trucks [*7]   and Railroad Cars" when such are used in conjunction with powered industrial trucks. Paragraph 178(k) is likewise captioned "Trucks and Railroad Cars." The standard at (m)(7) is taken from subsection 603(G), section 6, Part III of the ANSI standard.   Subsection 603 furnishes "General" rules and practices for those responsible for the actual operation of powered industrial trucks. It sets forth regulations geared directly to the safe use of powered industrial trucks. Paragraph 178(m) is captioned "Truck Operations."

Each of the two subsections, (k)(1) and (m)(7), is designed to control the operation of a specific part of the common factual situation occurring in these cases.   Therein lies the distinction.   The standard at (k)(1) controls the operation of the truck trailer, requiring that it be secured by setting the brakes and placing chocks under the rear wheels to prevent its movement during the loading and unloading procedure.   The standard at (m)(7) controls the operation of the powered industrial truck, requiring that certain conditions exist before an employer permits   its operator to drive onto a trailer or railroad car.   The standard requires, among other things,   [*8]   that a vehicle's brakes have been set and wheel chocks have been placed under its rear wheels to prevent movement.

In this case the same respondent has dominion and control over both the truck trailer being unloaded and the pallet truck performing the unloading operation.   Therefore, respondent has failed to comply with subsections (k)(1) and (m)(7) of 29 CFR §   1910.178.   Each subsection of the regulations is a separate standard for the purpose of citation.   However, when the same factual situation constitutes a violation of more than one subsection or standard, it is appropriate to assess a single penalty.   Amoco Oil Co., No. 4804 (May 16, 1974) (Administrative Law Judge, review directed June 17, 1974).

Accordingly, I would find that respondent has violated section 5(a)(2) of the Act for failure to comply with the standards at 29 CFR §   1910.178(k)(1) and 29 CFR §   1910.178(m)(7).   I would further find that, since both standards involve the same factual situation, the assessment of one penalty for each of the three instances of violation, in the total amount of $110, is appropriate.

MORAN, CHAIRMAN, concurring in part, dissenting in part: I concur with the vacation of those   [*9]   portions of the citations which allege a failure to comply with 29 C.F.R. §   1910.178(k)(1).   I disagree, however, with the affirmance of the three charges alleging violations of the Act because of a failure to comply with the requirements of 29 C.F.R. §   1910.178(m)(7).

None of the citations were issued within 72 hours after the inspection as intended by Congress.   Therefore, the complainant did not comply with the reasonable promptness requirement of 29 U.S.C. §   658(a) which governs the issuance of citations.   My views on this matter are set forth in detail in Secretary v. Plastering, Incorporated, 8 OSAHRC 150 (1974), and Secretary v. Advanced Airconditioning, Inc., 7 OSAHRC 736 (1974). In the cases before us, the delay in Docket No. 1070 is   particularly reprehensible as there is a time lag of more than 90 days between the inspection and the issuance of the citation.

Additionally, I believe that the Commission errs in not addressing the question of whether our decision in Secretary v. Mushroom Transportation Co., 5 OSAHRC 64 (1973), requires reversal because lf lack of jurisdiction.

29 U.S.C. §   653(b)(1) provides in pertinent part that:

Nothing in this chapter [*10]   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.

Relying on that statutory provision, the Commission held in the Mushroom case that 29 C.F.R. §   1910.178(k)(1), an occupational safety standard requiring that trucks be immobilized by setting their brakes and placing wheel chocks under their rear wheels while being boarded with powered industrial trucks, was inapplicable to motor carriers because of 49 C.F.R. §   392.20, a Department of Transportation safety regulation requiring motor carriers to immobilize unattended motor vehicles.

The instant case is not significantly different from the Mushroom case.   This respondent is a private carrier to whom 49 C.F.R. §   392.20 is applicable.   49 U.S.C. § §   303(a)(17) and 304(a)(3); 49 C.F.R. § §   390.15 and 390.33.   The Judge found that it had failed to comply with 29 C.F.R. §   1910.178(m)(7) which requires trucks or trailers to use wheel blocks and set their brakes while loading or unloading. The Mushroom case involved an occupational safety standard [*11]   pertaining to the loading or unloading of vehicles by powered industrial trucks, but inherent in that decision was the determination that 49 C.F.R. §   392.20 applied to all loading and unloading operations by motor carriers.   The vehicles involved in the Mushroom case were trucks whereas trailers were involved in the instant case.   However, that also is an insignificant difference because the term "motor vehicle" as used in the Motor Carrier Safety Regulations of the Department of Transportation   includes trailers and semitrailers. 49 U.S.C. §   303(a)(13); 49 C.F.R. §   390.1.   Therefore, 49 C.F.R. §   392.20 applies to the trailers involved in this case.

In view of the precedent established in the Mushroom case, I believe that we are confronted with a matter of plain error which we ought not disregard.   See Secretary v. Puterbaugh Enterprises, Incorporated, 9 OSAHRC 718 (1974) (dissenting opinion).

In clear and unambiguous language, 29 U.S.C. §   653(b)(1) provides that the Secretary of Labor has no authority under the Occupational Safety and Health Act of 1970 if any other Federal agency exercises statutory authority to regulate in the field of occupational safety [*12]   or health.   In my opinion, when such authority is absent, there is a lack of jurisdiction.   This is consistent with prior Commission decision which have referred to section 653(b)(1) questions as jurisdictional issues.   Secretary v. California Stevedore & Ballast Co., 8 OSAHRC 811 (1974); Secretary v. Sigman Meat Company, 8 OSAHRC 216 (1974); Secretary v. Phoenix, Inc., 1 OSAHRC 355 (1972).

In footnote 4 of the lead opinion, the Commission disposes of the section 653(b)(1) question on the basis that it was expressly waived by the respondent's counsel.   However, it matters not that respondent's counsel attempted to waive the jurisdictional issue.   It has been a long-standing rule of law that jurisdiction cannot be conferred by a waiver or, for that matter, even by the consent of all party litigants.   Utah Fuel Co. v. National Bituminous Coal Commission, 101 F.2d 426, 428 (D.C. Cir. 1938); Davis v. City of Little Rock, Arkansas, 136 F. Supp. 725, 728 n.4 (E.D. Ark. 1955); Rice v. Sioux City Memorial Park Cemetery, 102 F. Supp. 658, 662 (N.D. Iowa 1952). Therefore if this respondent is not covered by the Act, this Commission cannot affirm a violation thereunder [*13]   even if the respondent, the complainant, and the whole world wants us to do so. See Secretary v. Phoenix, Inc., supra. Our ruling in a case beyond our jurisdiction is entitled to the same weight as a ruling by the judges of the Miss America beauty contest on this case.

  [The Judge's decision referred to herein follows]

ORINGER, JUDGE: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereafter called the Act) contesting Citations issued by the Complainant against the Respondent under the authority vested in Complainant by Section 9(a) of that Act.   The Citations alleged that as the result of inspections of workplaces under the ownership, operation or control of the Respondent, located at each of the following addresses:

(Docket #1070) 4477 South 70th East Avenue, Tulsa, Oklahoma 74145, described as distribution center;

(Docket #723) 1247 Argentine Boulevard, Kansas City, Kansas 66105, described as food warehousing and processing complex;

(Docket #454) 4600 East 46th Avenue, Denver, Colorado 80217, described as distribution center;

the Respondent has violated Section 5(a)(2) of the Act by failing [*14]   to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.

The Judge, by certification of the record to the full Commission on June 21, 1972, after motion being made by the parties, requested a waiver of the then rule on consolidation, so as to consolidate the cases.

On July 17, 1972, such authority was granted.   By order of this Judge on August 2, 1972, the cases were consolidated.

The Citations each contain allegations of multiple violations of a non-serious nature, however the Respondent solely and only contested one alleged violation on each Citation, of two sections of the standards, to wit, violations of 29 CFR 1910.178(k)(1) and 29 CFR 1910.178(m)(7), both of which standards were utilized for the same alleged violation, on each of the Citations.

The Citations, which were issued on June 16, 1972 (1070); March 23, 1972 (#723); December 27, 1971 (454), allege that the violations contested by the Respondent result from a failure   to comply with standards promulgated by the Secretary by publication in the Federal Register on May 29, 1971 (VOL 36 F.R. Page 10616, and codified in 29 CFR 1910.178(k)(1)   [*15]     and 1910.178(m)(7).

The description of the alleged violations contested by the Respondent, contained in the said Citations, as amended, state as follows:

(#1070) -- 29 CFR 1910.178(m)(7) and 29 CFR 1910.178(k)(1) -- Wheel blocks were not in place to prevent movement of semitrailer units while being loaded and unloaded at crate storage unloading and loading dock; i.e., trailer §   17-F spotted at door #1 with dock plate in place, trailers §   22-F and 8-F spotted at loading docks #2 and 3 respactively.

(#723) -- 29 CFR 1910.178(k)(1) and 29 CFR 1910.178(m)(7) -- Wheel blocks not in place to prevent movement of trucks and trailers while being loaded or unloaded. (Grocery, Milk, Produce).

(#454) -- 29 CFR 1910.178(k)(1) and 1910.178(m)(7).   (The originial Citation contained the legend 29 CFR 1910.178(i)(7) which was later amended to the aforementioned standards). -- Loading dock areas: Parked semi-trailers did not have wheels blocked or chocked.

The standards as promulgated by the Secretary provide as follows:

29 CFR 1910(k)(1) -- 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 [*16]   while they are boarded with powered industrial trucks.

29 CFR 1910.178(m)(7) -- Brakes shall be set and wheel blocks shall be in place to prevent movement of trucks, trailers, or railroad cars while loading or unloading. Fixed jacks may be necessary to support a semitrailer during loading or unloading when the trailer is not coupled to a tractor.   The flooring of trucks, trailers, and railroad cars shall be checked for breaks and weakness before they are driven onto.

Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, the Respondent was notified by letters, dated 4/16/72, Area Director of the Tulsa, Oklahoma area, (#1070) dated 3/23/72, Area Director of the Kansas City, Mo. area, (#723) dated 12/27/71, Area Director of the Lakewood, Colo. area, (#454) that the Occupational Safety and Health Administration of the U.S. Department of Labor proposed to   assess a penalty for the violation alleged in the amount of $30 (#1070); $50 (#723); $30 (#454).

After Respondent contested these enforcement actions, and a Complaint and an Answer had been filed by the parties, the case came on for hearing pursuant to notice at Denver, Colorado, on August 24, 1972,   [*17]   the Judge having granted a motion to consolidate the three above captioned cases, after receiving a waiver of the interim rules of procedure from the full Commission, as previously related herein.

Having heard the testimony and observed the demeanor of the witnesses, and having considered the same, together with the Citations, Notifications of Proposed Penalties, Notices of Contest, pleadings, representations and admissions of the parties, it is concluded that substantial evidence, on the record considered as a whole, supports the following

FINDINGS OF FACT

1.   The Respondent, Safeway Stores, Inc., is a Maryland corporation owning stores that are located and doing business in more than one state of the union (T. 6-7).   At the time of the trial of the action, the Respondent employed 79,663 employees in all of its workplaces (T. 9).

2.   At the workplace located in Denver, The Respondent employed an average daily number of 7,684 employees through April 7, 1972, and in excess of a few hundred in each of its Oklahoma and Kansas City installations (T. 9-10).

3.   The Respondent is engaged in the business of distribution of grocery and produce (Complaint and Answer).

4.   During an inspection [*18]   at the Tulsa, Oklahoma distribution center by a compliance officer of the Department of Labor, one Otto Medlin, which begar on the 8th of March, 1972 and ended on March 10, 1972, a semitrailer of the Respondent numbered F-17, was being unloaded, and was neither chocked nor blocked, nor equipped with sandshoes.

5.   Mr. Medlin did not observe any chocks or blocks anywhere   on the Safeway premises, and was advised by Mr. Jefferson, a spokesman for the Respondent, that Safeway was in the process of obtaining a variance so that it might use sandshoes in place of chocks or blocks (T. 38, 40).

6.   The Department's compliance officer considered the alleged violation, herein at issue, in his judgment, to be other than serious (Citation).

7.   The Secretary, by its compliance officer, Mr. Murray, inspected the Kansas City, Kansas premises of the Respondent on March 16, 1972 (T. 52, 59).

8.   On the day of the inspection, March 16, 1972, at the Kansas City workplace, the Respondent had semitrailers that were being loaded and unloaded that were neither chocked nor blocked (T. 56, 71, 73).

9.   During his inspection, the compliance officer was accompanied by a Mr. Smith, a representative [*19]   of the Respondent, who stated to the compliance officer on behalf of the Respondent that he was aware of the standard, however, the Respondent did not use chocks (T. 65-66, 56).

10.   The Department's compliance officer, Mr. Murray, considered the alleged violation, herein in issue, in his judgment to be other than serious.

11.   Commencing on the 13th of December, 1971 and ending on the 15th of December, 1971, one, Betz, a compliance officer of the Department of Labor, made an inspection at the Denver workplace of the Respondent (T. 74).

12.   The inspection of the Respondent's workplace in Denver, Colorado, revealed one trailer being unloaded that was neither chocked nor blocked (T. 80, 79, 78, 77).

13.   During the inspection the Secretary's compliance officer was accompanied by a Mr. Sherzer, a representative of the Respondent (T. 75).

14.   During the closing conference, a Mr. Delaney, a representative of the Respondent, stated that Safeway was in the process of replacing the dolly wheels with sandshoes (T. 78).

15.   The Department's compliance officer considered the   violation herein at issue, in his judgment, to be other than serious (Citation).

16.   The Complainant [*20]   failed to sustain the burden of proof insofar as a violation of 29 CFR 1910.178(k)(1) is concerned, in that there is a lack of proof that trucks (highway) were boarded with powered industrial trucks.

17.   The Respondent failed to sustain the burden of proof insofar as his affirmative defense was concerned.

DISCUSSION

The Secretary alleged in his Citation, complaint, and amendment at the time of trial, that the Respondent violated 29 CFR 1910.178(k)(1) which provided in essence that the brakes of highway trucks shall be set in wheel chocks placed under the rear wheels to prevent the trucks from rolling while they are boarded with power industrial trucks.

and of 29 CFR 1910.178(m)(7), which provides that brakes shall be set and wheel blocks shall be in place to prevent movement of trucks, trailers, or railroad cars, while loading or unloading . . .

The violations are alleged to have taken place in three of the workplaces of the Respondent, to wit, in Kansas City, Kansas; Tulsa, Oklahoma, and in Denver, Colorado.

The evidence discloses that at least one semitrailer or truck, without sandshoes in most cases, was being loaded or unloaded without blocks or chocks being utilized [*21]   in each of the three workplaces.

The Respondent as and for an affirmative defense, alleges that the method that it utilizes for safety is "safer than" that method prescribed by the Secretary's standards.   The Respondent's method is to use a sand shoe in lieu of a dolly wheel on the semitrailer and, it alleges, that the sandshoe is safer than chocking or blocking the rear wheels in any manner.

The Secretary of Labor vehemently argues that the affirmative defense is not properly before the Review Commission in   that in actuality the Respondent is attempting to obtain a variance by a means other than that prescribed in the statute.   Respondent, to the contrary, argues that this affirmative defense is properly before the Review Commission on the grounds that the Review Commission has all the rights of a court in determining an equitable defense, and to penalize one who has a method that is safer than that prescribed in the statute.   Respondent, to the contrary, argues that this affirmative defense is properly before the Review Commission on the grounds that the ReviewCommission has all the rights of a court in determining an equitable defense, and to penalize one who has a   [*22]   method that is safer than that prescribed in a standard, would conflict with the intent of Congress which was unequivocally set forth, stating that its declared purpose and policy was "to assure as far as possible every working man and woman in the nation safe and healthful working conditions and to preserve our human resources" (29 USC 651(b)).

This Judge finds this affirmative defense properly before the Occupational Safety and Health Review Commission at least so far as the penalty is concerned.   If, in fact, the Respondent's method was "safer than" that method prescribed by the Secretary in his standard, then, in such case, the gravity determinant would be a minus factor, and thus would result in a penalty of zero dollars.

In the case of Secretary of Labor v. W. C. Sivers Company,   under the Act.

The separate opinion of Commissioner Burch, while dissenting to the order of remand, agreed that the decision of the Judge was to be set aside on the grounds that the Respondent did raise "impossibility of compliance" as an affirmative defense,   and there was some question as to whether that standard was intended to be applied in all circumstances.   The Commission decision in that case disclosed that "impossibility of performance" appeared to be a viable affirmative defense, if proven to the satisfaction of the trier of the facts.

On October 5, 1970, the Honorable Harrison Williams, Chairman of the Senate Committee on Labor and Public Welfare, submitted in his report, the following, inter alia:

Judicial review of standards. -- Section 6(f) provides that any person who may be adversely affected by a standard may, within 60 days of its issuance, seek judicial review in an appropriate United States Court of Appeals.   While this would be the exclusive method for obtaining pre-enforcement judicial review of a standard, the provision does not foreclose an employer from challenging the validity of a standard during an enforcement proceeding. n1   [*24]   Unless otherwise ordered by the court, the filing of the petition would not operate as a stay of the standard.

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n1 Emphasis supplied.

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While it is true that this report was made prior to the Javits amendment of November 17, 1970, which created the Review Commission, there is nothing in the Senate or House Conference Reports disclosing any recession from that opinion expressed by Senator Williams on October 5th, 1970.   At the time the report was rendered, the Secretary would have passed on the administrative lay Judge's decision concerning the testing of a standard during an enforcement proceeding, just as he did upon the variance.   However, there is nothing in the statute or the legislative history that indicates that the Occupational Safety and Health Review Commission would have any less authority in an enforcement proceeding than the Secretary would have had.

In the case of the Joseph Bucheit and Sons Company, Review Commission Docket No. 295, which became a final order of the Commission on August 1, 1972, Judge [*25]   John Patton stated that the Occupational Safety and Health Review Commission does not have the authority to determine the wisdom and practicability of an Occupational Safety and Health standard, and   that determining the validity of a standard did not equate to passing upon the wisdom and practicability thereof.   This Judge fully concurs with that opinion.   A defense, such as the one in the instant cause, that the Respondent's method was "safer than" the Secretary's, constitutes a somewhat different question than that which was before Judge Patton in the above cited case.   The defense in this case of "safer than" the Secretary's standard certainly is a viable defense insofar as the penalty is concerned inasmuch as proof of a method that was safer than the Secretary's standard would reduce the gravity factor to less than zero, or a minus factor, and would result, if the burden of proof was carried, in a zero dollar penalty.

The question of whether the standard may be attacked by the affirmative defense of "safer than" the method prescribed in the Secretary's standard is not truly before this Judge inasmuch as the Respondent has failed to sustain the burden of proof of such [*26]   affirmative defense. Any holding on the viability of such defense to the Citation, in view of the Judge's finding on the merits of the defense in this cause, would only constitute obiter dicta herein.

In the instant cause, however, the Judge finds that the Respondent failed to sustain the burden of proof of the affirmative defense. The experiments appear to be of a cursory nature and are insufficient upon which to predicate a finding that the Respondent's method is in fact "safer than" that method prescribed by the Secretary.

The experiment itself patently appeared incomplete.   The tests were run on semitrailers with sandshoes on and the trailer air brakes applied, and with sandshoes alone.   An experiment was also run with sandshoes replaced by roller wheels, with air brakes applied.   An experiment was also run with roller wheels with chocks against the wheels with no brakes, and with roller wheels with neither chocks nor brakes. It seems to the trier of the facts that certainly one necessary experiment should have been made with roller wheels with air brakes applied, and with chocks, so that the resistance to friction of this condition should   have been contrasted [*27]   with sandshoes and air brakes. In addition thereto, there are so many variations of the few conditions utilized in the experiments, that certainly the experiment appears cursory at best and does not sustain that burden of proof necessary to support an affirmative defense that the Respondent's method was safer than that method prescribed in a standard properly promulgated by the Secretary.

The Judge would be more impressed by the good faith of the Respondent in searching for a method safer than the Secretary's method had he not conducted his tests on August 16, 1972, some six months after selecting sandshoes for use on its vehicles in lieu of chocks and blocks as prescribed by the Secretary.

Respondent's Exhibit L clearly discloses that on February 17, 1972, all trucking department managers were notified through their superiors and from their superiors that sandshoes were being utilized "to assure maximum safety" in a letter dated February 17, 1972.   The experiments intending to prove that sandshoes were "safer than "chocks or blocks were first made on August 16, 1972.   There was no literature before the Judge from the manufacturer of the equipment; and no other evidence whatsoever,   [*28]   that anyone considered or utilized sandshoes for safety purposes in loading and unloading, other than this Respondent.   The Judge also gave considerable weight to the testimony of the Secretary's rebuttal witness who testified that in the trucking industry, all trailers, whether bearing sandshoes or dolly wheels, were always chocked or blocked for safety purposes.

While the fact that the experiment utilized to show that sandshoes were safer than the standard was performed six months after the Respondent decided to use this method casts doubt upon the good faith of the Respondent in truly attempting to find a safer method, if, in fact, he could sustain the burden of proof that his method was safer than the Secretary's standard, then, of course, the penalty would be reduced to a zero dollar factor.   In the instant case, however, as previously related,   the Judge finds that the Respondent failed to sustain the necessary burden of proof.

The Respondent advances as another argument that the cost of complying with the standard would be $314,000 annually.   The legislative history reflects that Congress did not consider the economic cost of complying to the standard a defense in [*29]   an enforcement proceeding.

The Judge finds that in each of its workplaces, in Kansas City, Kansas, in Tulsa, Oklahoma and in Denver, Colorado, the Respondent had trailers that were being loaded or unloaded, at a loading dock, and were neither chocked nor blocked. It is clear, therefore, that on the dates of the inspections in question, the Respondent violated that standard contained in 29 CFR 1910.178(m)(7) which provides that "brakes shall be set and wheel blocks shall be in place to prevent movement of trucks, trailers, or railroad cars while loading or unloading . . . ." Evidence of semitrailers being boarded with powered industrial trucks is not sufficient and violations of 29 CFR 1910.178(k)(1) are not proven.   A violation of 29 CFR 1910.178(m)(7) however, was clearly shown at each of the worksites on the days in question.

Insofar as the penalty is concerned, the Judge finds the penalties as the chances of injury, according to the history of the Respondent, are not great.   In the event, however, that injury did occur, there would be heavy gravity for this violation, which in the opinion of the Secretary's compliance officer was non-serious, but which could result in serious [*30]   injury being sustained.

In accordance with the above considerations, the Judge affirms the Citations insofar as violations of 29 CFR 1910.178 (m)(7) are concerned and affirms the penalties as well.   The portions of the amended Citations, insofar as violations of 29 CFR 1910.178(k)(1) are concerned, are vacated.

CONCLUSIONS OF LAW

1.   At all the times herein mentioned the Respondent was,   and still is, engaged in a business affecting commerce, within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970.

2.   Pursuant to Section 6(a) of the Occupational Safety and Health Act, the Secretary of Labor on April 27, 1971, adopted 29 CFR 1910, to become effective generally on August 27, 1971.   The standard alleged to be violated in Complainant's Citations and Complaint, to wit, 29 CFR 1910.178(m)(7), was therefore in full force and effect as regards the Respondent and its workplaces on the days of the respective inspections at each of its worksites.

3.   The Respondent was, on the dates of the respective inspections at its worksites herein concerned and at all other times mentioned herein, an employer subject to the aforesaid safety and health regulations [*31]   promulgated as 29 CFR 1910, by the Secretary of Labor.

4.   The Respondent, at its workplace in Tulsa, Oklahoma, was, between the 8th day of March, 1972, and the 10th day of March, 1972, in violation of that standard found at 29 CFR 1910.178(m)(7) in that its employees were loading and/or unloading a truck or semitrailer, without chocking or blocking its wheels to prevent movement.

5.   The Respondent, on March 16, 1972, at its Kansas City, Kansas worksite, was in violation of that standard found at 29 CFR 1910.178(m)(7), in that its employees were loading and unloading trucks whose wheels were neither chocked nor blocked to prevent movement of the same.

6.   The Respondent, at its Denver worksite, between the 13th of December, 1971, and the 15th day of December, 1971, was in violation of that standard found at 29 CFR 1910.178(m)(7), in that its truck or trailer was being unloaded by its employees without its wheels being either chocked or blocked to prevent movement thereof.

7.   The aforesaid violations of 29 CFR 1910.178(m)(7), had a direct and immediate relationship to safety and health, but did not constitute a "serious" violation within the meaning and purview of the Act.

  [*32]   8.   The penalty proposed for each violation of 29 CFR 1910.178(m)(7), in each case, was appropriate.

9.   The alleged violations of 29 CFR 1910(k)(1) were not proven.

In view of the foregoing; having given due deliberation to the gravity of the violation, the size of the Respondent's business, the good faith of the Respondent, and its history; and good cause appearing therefor, it is ORDERED, that

1.   The citations issued and amended, alleging violations of that standard found at 29 CFR 1910.178(m)(7), at the Respondent's workplaces in Tulsa, Oklahoma, in Kansas City, Kansas, and in Denver, Colorado, are hereby and herewith affirmed.

2.   Those portions of the amended Citations alleging violations of that standard found at 29 CFR 1910.178(k)(1) are herewith and hereby vacated.

3.   The proposed penalties, for the violations affirmed in No. 1, above, in the sums of: $30 for the Tulsa, Oklahoma, worksite; $50 for the Kansas City, Kansas, worksite; and $30 for the Denver, Colorado, worksite, be, and the same, are hereby affirmed.