O'BOYLE TANK LINES, INC.
OSHRC Docket Nos. 76-358; 76-1704
Occupational Safety and Health Review Commission
June 30, 1981
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Before: CLEARY and COTTINE, Commissioners.
COUNSEL:
Office of the Solicitor, USDOL
Kenneth Hellman, Office of the Solicitor-US Dept. of Labor
Herbert Alan Dubin, for the employer
OPINION:
DECISION
BY THE COMMISSION:
A decision of Administrative Law Judge Joseph Chodes is before the Commission under section 12(j), 29 U.S.C. § 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. § § 651-678 ("the Act"). Judge Chodes affirmed two citations issued to the Respondent, O'Boyle Tank Lines, Inc. ("O'Boyle"), by the Secretary of Labor ("the Secretary"). O'Boyle petitioned for review of the judge's decision and Commissioner Cleary granted the petition. The issues on review are:
(1) Whether, under the facts of this case, the exemption under section 4(b)(1) n1 of the Act applies.
(2) Whether the cited conditions constitute "construction work" as defined at 29 CFR § 1910.12(b). n2
The Department of Transportation ("DOT") and the American Trucking Association, Inc. have filed briefs amicus curiae.
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n1 Section 4(b)(1), 29 U.S.C. § 653(b)(1), provides:
Nothing in this Act shall apply to working conditions of employees with respect to which other Federal agencies, and State agencies acting under section 274 of the Atomic Energy Act of 1954, as amended (42 U.S.C. 2021), exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.
n2 Section 1910.12 provides in part:
§ 1910.12 Construction work.
(a) Standards. The standards prescribed in Part 1926 of this chapter are adopted as occupational safety and health standards under section 6 of the Act and shall apply, according to the provisions thereof, to every employment and place of employment of every employee engaged in construction work. Each employer shall protect the employment and places of employment of each of his employees engaged in construction work by complying with the appropriate standards prescribed in this paragraph.
(b) Definition. For purpose of this section, "construction work" means work for construction, alteration, and/or repair, including painting and decorating. See discussion of these terms in § 1926.13 of this title.
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The facts are undisputed. The Secretary's citation, as amended, alleged that O'Boyle violated the construction safety standards at 29 C.F.R. § 1926.601(b)(4)(i) or (ii). n3
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n3 Section 1926.601(b)(4) provides:
§ 1926.601 Motor Vehicles.
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(b) General requirements.
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(4) No employer shall use any motor vehicle equipment having an obstructed view to the rear unless:
(i) The vehicle has a reverse signal alarm audible above the surrounding noise level or:
(ii) The vehicle is backed up only when an observer signals that it is safe to do so.
We note that the standard does not mandate that back-up alarms be installed on all trucks subject to its requirements. There are alternative means of compliance. A truck without an alarm complies with the standard if its movement in reverse is directed by a signalman.
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The cycloblowers were mounted less than 7 feet off the ground, and the driver of one of the tankers was observed within 5 feet of the unguarded pulley while the cycloblower was operating. A citation was issued alleging that O'Boyle had failed to comply with the construction safety standard at 29 C.F.R. § 1926.300(b)(2). n4
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n4 That standard provides:
§ 1926.300 General Requirements
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(b) Guarding
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(2) Belts, gears, shafts, pulleys, sprockets, spindles, drums, fly wheels, chains, or other reciprocating, rotating or moving parts of equipment shall be guarded if such parts are exposed to contact by employees or otherwise create a hazard. Guarding shall meet the requirements as set forth in American National Standards Institute, B15.1-1953 (R1958), Safety Code for Mechanical Power-Transmission Apparatus.
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O'Boyle moved to vacate both citations on the ground that the Secretary of Labor was precluded from exercising authority over tractor-trailer units used in interstate commerce by an interstate trucking company because DOT had exercised its statutory authority to regulate the working conditions in question.
Judge Chodes affirmed both citations. Relying on A.A. Will Sand & Gravel Corp., 76 OSAHRC 81/G2, 4 BNA OSHC 1442, 1976-77 CCH OSHD P20,864 (No. 5139, 1976), he concluded that "[d]elivery and unloading of cement at a construction site are held to be an integral part of construction activities." With respect to the section 1926.601(b)(4) citation, the judge held that an employer on a construction site is responsible for violations he creates whether his own employees are exposed to them or not, if other employees are exposed, citing Grossman Steel & Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD P20,691 (No. 12,775, 1976).
The judge rejected O'Boyle's argument that the working conditions were exempt under section 4(b)(1) of the Act. The judge held that the exemption provided [*5] by section 4(b)(1) applies only when another federal agency has the statutory authority to regulate the working condition in question had has exercised this authority. He concluded that DOT's Federal Highway Administration ("FHWA") had no authority on construction sites and also that its regulations were oriented toward the safety of the drivers and the general public while the motor vehicles are on the public highways. He found that the FHWA's standards and OSHA's standards address different hazards and have different objectives, since OSHA's construction standards are specifically designed to protect construction workers on construction sites. We affirm the judge's decision except to the limited extent that his reasoning is inconsistent with that set forth below.
We agree with the judge's conclusion that the construction standards in Part 1926 are applicable. In addition to the judge's discussion, we note that O'Boyle's trucks operated on construction sites, delivered and unloaded materials that are vital to the work of construction, created hazards to which the construction workers on those sites were exposed (whether O'Boyle's drivers were exposed or not), and created conditions [*6] on the construction sites that Part 1926 was designed to regulate. Unlike the judge, however, we do not consider the Federal Highway Administration's name as indicating that FHWA lacks statutory authority to regulate off-highway conditions. Cf. Mushroom Transportation Co., 73 OSAHRC 51/E10, 1 BNA OSHC 1390, 1973-74 CCH OSHD P16,881 (No. 1588, 1973) (DOT regulations apply off-highway). Moreover, the Secretary did not challenge the general statutory authority of the FHWA. Accordingly, we examine the specific working conditions involved in this case.
We are of the opinion that no exemption has been proved under section 4(b)(1) because DOT had not regulated the cited working conditions: a truck operating in reverse on a construction site; and an unguarded pulley. Under our recent decisions on section 4(b)(1), n5 the FHWA regulations cited to us do not demonstrate either that FHWA has regulated the working conditions here, or has adopted such a comprehensive scheme of regulation that we could infer from the omission of regulations addressing the cited working conditions that FHWA had made a deliberate determination that these conditions should go unregulated. While FHWA [*7] regulations require horns, rearview mirrors, lights, brakes, rear bumpers, windshield wipers and defrosters, among other equipment and practices generally applicable to the operation of vehicles, none of them addresses the hazards created by the particular working conditions here. In fact, DOT acknowledges that "operation of a vehicle on a construction site may present unusual or in some cases unique problems." The hazard of unguarded pulleys is also unlike any hazard regulated by the FHWA. While the FHWA regulations are broad, we are unable to say that they were drafted to regulate or deliberately leave unregulated the conditions here. Moreover, DOT does not represent that the FHWA considered these special conditions and decided that they should go unregulated. See generally Consolidated Rail Corp., 81 OSAHRC , 9 BNA OSHC 1258, 1260-61, 1981 CCH OSHD P25,172, pp. 31,079-80 (Nos. 78-3100, 78-4881 & 78-5805, 1981); Allegheny Airlines, Inc., 81 OSAHRC , 9 BNA OSHC 1623, 1627-1629, 1981 CCH OSHD P25,339, pp. 31,443-44 (Nos. 14291 & 14345, 1981), appeal filed, No. 81-1528 (4th Cir. June 19, 1981). Instead, it maintains that FHWA regulations should exclusively [*8] control all operations of trucks in interstate commerce. It is well-settled that all working conditions in an industry are not exempt under section 4(b)(1) merely because another federal agency has adopted standards or regulations covering some working conditions in the industry. See Lee Way Motor Freight, Inc., 77 OSAHRC 7/D13, 4 BNA OSHC 1968, 1976-77 CCH OSHD P21,464 (No. 10699, 1977), and cases cited. Accordingly, the working conditions here were not shown to be exempt under section 4(b)(1).
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n5 Allegheny Airlines, Inc., 81 OSAHRC , 9 BNA OSHC 1623, 1627-1629, 1981 CCH OSHD P25,339, pp. 31,443-44 (Nos. 14291 & 14345, 1981). See also Northwest Airlines, Inc., 80 OSAHRC 87/B5, 8 BNA OSHC 1982, 1980 CCH OSHD P24,751 (No. 13649, 1980), pets. for review dismissed, Nos. 80-4218 & 80-4222 (2d Cir. Feb. 18, Mar. 13, 1981).
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Finally, we reject O'Boyle's reliance on new regulations proposed by FHWA. See Indiana Harbor Belt Railroad Co., 77 OSAHRC 13/A2, 4 BNA OSHC 2006, 1976-77 CCH [*9] OSHD P21,473 (No. 12,420, 1977).
Accordingly, we affirm the judge's decision.
SO ORDERED.