LOMBARD BROTHERS, INC.
OSHRC Docket No. 13164
Occupational Safety and Health Review Commission
July 8, 1977
[*1]
Before BARNAKO, Chairman; and CLEARY, Commissioner.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Albert Ross, Regional Solicitor
Hugh F. Keefe, for the employer
OPINIONBY: CLEARY
OPINION:
DECISION
CLEARY, Commissioner:
Respondent, Lombard Brothers, Inc., is a motor common carrier operating a terminal and garage facility at Waterbury, Connecticut. The facility was inspected on April 8, 1975. On April 14, 1975, a citation was issued to respondent alleging seven violations of job safety regulations. Respondent contested all items, and the cause went to a hearing before Administrative Law Judge David J. Knight on August 29, 1975.
At the hearing respondent withdrew its contest to six of the seven items. The remaining item, item 3, alleged that contrary to the standard published at 29 CFR § 1910.132(a) [hereinafter the standard], respondent's 11 garage mechanics, 4 dock workers, and 20 combination men (drivers and dock workers) were not required by respondent to wear and did not wear safety footwear although they were exposed to the hazards of falling freight and truck parts. In his decision issued on March 1, 1976, Judge Knight vacated that part of item 3 relating to the garage mechanics [*2] on the ground that the Secretary failed to prove the existence of a hazard, but affirmed that part of item 3 relating to one dock workers and combination men.
Both parties petitioned for review, and both petitions were granted. Review was directed on the following issues: (1) whether the citation was issued with "reasonable promptness"; (2) whether section 4(b)(1) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. [hereinafter "the Act"], exempts respondent from complying with the standard; (3) whether the standard is unenforceably vague; (4) whether the failure of respondent to require its garage mechanics, dock workers, and combination men to wear safety footwear constitutes non-compliance with the standard. n1
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n1 If a violation is held to have occurred, respondent does not challenge the $40 penalty assessed by the Judge for item 3.
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The Commission has held that a citation may be vacated if it is proved both that the citation has not been issued with "reasonable promptness" and the [*3] employer has been prejudiced by the delay. See e.g., Par Construction Co., Inc., 4 BNA OSHC 1779, 1976-77 CCH OSHD para. 21,216 (No. 11092, 1976). Respondent has neither alleged nor proved prejudice and therefore has not in any event brought itself within the defense. n2 The issue therefore needs no further examination.
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n2 Chairman Barnako adds that the facts of the case do not establish that the delay in issuance was so unreasonable as to be unconscionable. See Jack Conie & Sons Corp., 4 BNA OSHC 1378, 1976-77 CCH OSHD para. 20,849 (No. 6794, 1976) (Barnako, Chairman, concurring).
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The second issue raised by the direction requires only brief comment. It is well settled that the nature of section 4(b)(1) is not jurisdictional but exemptory and that the affirmative defense permitted by the section cannot be raised beyond the hearing stage of the proceedings. American Airlines, Inc., 4 BNA OSHC 1630, 1976-77 CCH OSHD para. 21,036 (No. 6706, 1976) (citing cases). The affirmative defense must [*4] be raised before the Administrative Law Judge before it will be considered by the Commission. Crescent Wharf & Warehouse Co., 2 BNA OSHC 1623, 1974-75 CCH OSHD para. 19,327 (No. 1672, 1975). Inasmuch as the defense was presented for the first time in respondent's petition for discretionary review, it has been untimely raised, and will not be considered.
Further, respondent's claim that an industry-wide exemption has been triggered by a notice of proposed rulemaking by another federal agency (here, the Bureau of Motor Carrier Safety for the Department of Transportation) has been rejected repeatedly by both the Commission and the appellate courts. Any exemption under section 4(b)(1) is limited to the particular working conditions regulated by another federal agency. The exemption is not activated by agency action in the formative stages of rulemaking. Southern Pacific Transportation Company, 2 BNA OSHC 1313 n.5, 1974-75 CCH OSHD para. 19,054 (No. 1348, 1974), aff'd, 539 F.2d 386 (5th Cir. 1976), petition for cert. filed, 45 U.S.L.W. 3692 (U.S. April 11, 1977) (No. 76-1400); Penn Central Transportation Company, 4 BNA OSHC 1746, 1976-77 CCH OSHD para. 21,138 (No. [*5] 10111, 1976).
Respondent argues also that the standard does not give it fair notice and is therefore unenforceably vague. Respondent points to several crucial words of the standard that is considers ambiguous or imprecise, and argues that the alleged defects furnish sufficient grounds to hold the standard unenforceable. We disagree. Whether the standard provides fair notice to the employer cannot be determined solely from the face of the standard and without any reference to the concrete facts of a case. Brennan v. O.S.H.R.C. and Santa Fe Trail Transport Co., 505 F.2d 869 (10th Cir. 1974).
The facts can be stated briefly. Respondent's terminal and garage are separate structures located on an eight-acre tract. The terminal operates on a 24-hour basis except for weekends. Six employees (four dock workers and two combination men) work during each shift, of which there are four. Freight weighing a total of about 100,000 pounds is loaded and discharged daily from 25 to 30 trucks. The freight consists of items of various sizes, shapes, and weights, including cartons, bagged materials, barrels, wooden crates, bars, bundles of tubing, 55-gallon drums, and cast-iron pipes. [*6] Four fork-lift trucks, 35 hand trucks, and 100 carts are available to assist in moving freight. One-third of the freight is moved manually. This fraction includes objects weighing as much as 100 pounds. The average weight of items handled manually is between 30 and 50 pounds. During 1972 and 1973, several employees suffered foot injuries while moving freight, including injuries caused by freight falling from a mechanical device and from a worker's hands, and by a cart running over a worker's foot. Safety shoes are neither worn nor required.
In the garage area, eleven mechanics perform maintenance and repair work on about 500 vehicles. In the regular course of their work, mechanics are required to handle objects such as batteries, brakes, differentials, springs, wheels, wheel drums, radiators, generators, and body parts. Several mechanical devices are available to assist in the handling of the objects. Yet the mechanics regularly handle manually objects weighing between 20 and 100 pounds. The objects are frequently slippery because of surface grease. During 1974, one of respondent's mechanics suffered a work-related foot injury. Safety shoes are neither worn nor required. [*7]
We conclude, as did the Judge, that respondent's dock workers and combination men are exposed to the hazards of freight falling on their feet and mechanical devices running over their feet. We further conclude, as we have in similar cases, that in light of the facts, the text of the standard was sufficiently specific to give notice to respondent of its regulatory duty. See e.g., Lee Way Motor Freight, Inc., 3 BNA OSHC 1843, 1975-76 CCH OSHD para. 20,250 (No. 7674, 1975).
We reverse, however, Judge Knight's finding that respondent's mechanics are not exposed to a hazard. The facts prove that the foot hazard existed. The mechanics regularly carry truck parts weighing between 20 and 100 pounds, as do the dock workers. The likelihood of objects falling from employee's hands in the garage area is increased because the truck parts frequently are covered with grease. Although only one mechanic has suffered a foot injury during the past few years, this fortuity does not eliminate the need to respond to the clear hazard of foot injuries. Because a major purpose of the Act is to prevent injuries, including the first, the Secretary need not prove a history of accidents in [*8] order to show that a regulatory hazard exists. Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230 (5th Cir. 1974); Lee Way Motor Freight, Inc. v. Secretary of Labor, 511 F.2d 864, 870 (10th Cir. 1975). That respondent's employees have been fortunate not to have suffered many injuries does not negate the existence of the hazard. Arkansas-Best Freight Systems, Inc., 2 BNA OSHC 1620, 1974-75 CCH OSHD para. 19,326 (No. 2375), aff'd, 529 F.2d 649 (8th Cir. 1976).
Accordingly, item 3 and the $40 proposed penalty are affirmed.