MODERN AUTOMOTIVE SERVICES, INC.
OSHRC Docket No. 1541
Occupational Safety and Health Review Commission
February 27, 1974
[*1]
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: VAN NAMEE
OPINION:
VAN NAMEE, COMMISSIONER: This matter is before us on an order directing review of a decision made by Judge John S. Patton. The Judge concluded that Respondent had violated the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereinafter "the Act") because it had violated the requirements of 29 C.F.R. 1910.132(a) n1 and 1910.151(b). n2 He assessed a penalty of $100 for the violation of 29 C.F.R. 1910.151(b).
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n1 The standard provides:
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.
n2 The standard provides:
In the absence of an infirmary, clinic, or hospital in near proximity to the workplace which is used for the treatment of all injured employees, a person or persons shall be adequately trained to render first aid. First aid supplies approved by the consulting physician shall be readily available.
[*2]
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After Judge Patton rendered his decision the American Trucking Associations, Inc., (ATA) petitioned to intervene and requested review on the question of whether 29 C.F.R. 1910.151(b) (the first aid standard) is unenforceable for being vague. The ATA was granted permission to brief the issue as amicus curiae. Among other things, our direction for review asked the same question with respect to 29 C.F.R. 1910.132(a) (the protective equipment standard).
We have reviewed the record. n3 For the reasons given hereinafter we reverse as to the first aid standard and affirm as to the protective equipment standard.
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n3 Complaint indicated an intent to file a brief on review. He has not done so, and he has not otherwise indicated his position on the issues.
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FIRST AID
We have held the first aid standard to be unenforceable because it is unreasonable on the ground of vagueness. Santa Fe Trail Transportation Company, OSHRC Docket [*3] No. 331, BNA 1 O.S.H.R. 1457, CCH Employ. S. & H. Guide para. 17,029 (Rev. Com'n 1973). Santa Fe Trail controls here, and we will vacate the citation to the extent it alleges a violation of 29 C.F.R. 1910.151(b).
PROTECTIVE EQUIPMENT
The Santa Fe Trail case also controls our disposition with regard to the question of whether the protective equipment standard is vague. We conclude that it is not vague, and it is therefore enforceable.
As we have said in Santa Fe Trail broad terms "may acquire meaning when read in the light of other regulations . . . or other codes . . ." (1 O.S.H.R. at 1458). We also said that standards employing broad terms are reasonable and enforceable if the terms have a technical meaning or a customary meaning among those to whom they apply (ibid).
The protective equipment standard is stated in broad terms. It requires that protective equipment be used "whenever it is necessary by reasons 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 [*4] physical contact." If the words "whenever it is necessary by reasons of hazards" had to stand alone then we might be persuaded to find the standard vague. They do not stand alone. Other regulations and workplace customs may be used to define the parameters of the protective equipment standard.
For example, Subpart I of Part 1910 is entitled Personal Protective Equipment. It prescribes regulations relating to eye, respiratory, head, toe, and electrical shock protection. Other regulations which relate to hazards for which personal protective equipment may be required are prescribed in Subpart G of Part 1910. Furthermore, Complainant promulgated standards which in the main had originally been adopted by the American National Standards Institute (ANSI). The ANSI standards predate the Act. It can be concluded, therefore, that the hazards covered by Complainant's standards were known hazards for which protective measures had been designed.
Moreover, it is customary to use personal protective equipment in the face of certain occupational safety and health hazards. Indeed, the equipment must be used in order to accomplish some jobs. It is axiomatic that ionizing radiation can be [*5] lethal and that protective devices such as lead shields must be employed to protect workers from the effects of such radiation. Similarly, the hazards involved in the production of wet storage batteries have been long known and the industry has used personal protective measures for years. See Steiner v. Mitchell, 350 U.S. 247 at 249-51 (1956). There are many more customary practices, but the examples given are sufficient for our purposes.
Since other regulations and customs indicate the kinds of hazards for which protective equipment may be necessary we conclude under the rules announced in Santa Fe Trail that such regulations and customs limit the scope of application of 29 C.F.R. 1910.132(a). As limited, the standard is reasonable and enforceable.
We turn now to the merits of Complainant's citation. Respondent was alleged to have violated the protective equipment standard because its employees were not using foot (toe) protection.
We find no error in Judge Patton's findings of fact Respondent's employees manually carry and handle tools, parts, and materials of various weights up to and including 60 pounds. Respondent has a five year history of toe [*6] injuries and some of the injuries have resulted in lost time. Respondent is a subsidiary of McLean Trucking Company. McLean's director of safety has responsibility for Respondent's safety program, and he admitted that toe protection would have prevented injuries Respondent's employees suffered.
On these facts, we find this case indistinguishable from Ryder Truck Lines, Inc., S & H Guide para. 16, 451 (Rev. Com'n. 1973), app. dkted. No. 73-3341 (5th Cir. October 4, 1973). Accordingly, we affirm Judge Patton's disposition of this violation.
Chairman Moran concurs in the disposition of the first aid allegation. Commissioner Cleary concurs in the disposition of the protective equipment allegation.
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 Commissioner Van Namee's opinion affirming the Judge's decision insofar as it relates to the respondent's violation of section 1910.132(a) of Title 29, Code of Federal Regulations, the personal protective equipment standard. Ryder Truck Lines, Inc., is controlling here. [*7]
I respectfully dissent from the view of my colleagues concerning the application of section 1910.151(b), the "first-aid" standard. The reasons for my dissent are those set forth fully in my dissenting opinion in Santa Fe Trail Transportation Co. Whatever doubtfulness in meaning that may be said to exist in the standard continues only because of the Commission's reluctance to resolve it. However, I would assess no penalty. I would assign overriding consideration to the good faith factor under section 17(j) because of the unsuccessful efforts of the employer to obtain an advisory interpretation of the standard from the Secretary of Labor.
MORAN, CHAIRMAN, concurring in part and dissenting in part: I agree that the occupational safety and health standard codified at 29 C.F.R. § 1910.151(b) is unenforceable. It satisfies neither the due process criteria of the Constitution, the purposes of the Act, nor the definition of an occupational safety and health standard contained therein 29 U.S.C. § 652(8). I commented upon these points in Secretary v. Santa Fe Trail Transportation Company, supra, and I reaffirm the same as part of this case.
The foregoing comments apply [*8] a fortiorari to the occupational safety and health standard codified at 29 C.F.R. § 1910.132(a). Consequently, I dissent to its enforcement in this case. The proposition advanced in this decision to sustain the validity of this standard (that is vague terms may acquire meaning when read in the light of other regulations or other codes) is unclear and unrealistic.
A 1973 U.S. Government Printing Office loose-leaf publication of occupational safety and health standards covers some 1,362 pages. Many of these standards incorporate by reference the text of private safety standards such as those developed under the auspices of the National Fire Protection Association, the American National Standards Institute and others. This encompasses more than 20,000 standards. They would completely fill a five foot bookshelf, would cost hundreds of dollars to purchase, many months to read and a lifetime to comprehend. To say that this must be done so that the standard here under review may "acquire meaning" is utter nonsense.
Furthermore, it is quite misleading to conclude that people should know what such a vaguely-worded regulation means because "the ANSI standards predate the [*9] Act." Many of the ANSI standards are also indefinite. They have no general application and aren't even "standards" in the sense that the term is used in this Act. ANSI's managing director made this point in a recent magazine article:
In the days before OSHA, when standards were developed as advisories, not laws, the committees sometimes tended to incorporate some lofty goals, knowing they would never be held accountable if they didn't achieve them. n4
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n4 "The Power Press Flap" Occupational Hazards October 1973, page 108.
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This Commission itself has held that it is not necessary for an employer to obtain meaning from a standard by resorting to clarifications found elsewhere in the Federal Register, n5 that subsections of standards must be considered as "independent requirements" in the absence of either a clear indication to the contrary or an obviously impractical result not intended by the Act, n6 and that an employer is entitled to rely on the clear language of a standard, uncolored by "additional" [*10] or "subjective criteria." n7
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n5 Secretary v. J. A. Walder,
n6 Secretary v. Tilo Company, Inc.,
n7 Secretary v. California Stevedoring Company,
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This decision contravenes each of these sensible rules by stating that an employer must acquire his knowledge of what he is required to do -- not simply from the regulation he allegedly has violated -- but from "other regulations" and "other codes" and from "customs." None of these general terms are defined in this decision nor is any explanation offered as to exactly what is contained therein which gives specific meaning to the occupational safety and health standard under review in this case.
Decisions such as this delay the day when job safety and health regulations will be written in clear and concise language so that all employers will be able to understand and observe them. Only then will it be at all possible for progress to [*11] be made toward achievement of the Congressional purpose of assuring safe and healthful employment for every working man and woman 29 U.S.C. § 651(b). For unless the regulation specifies the safety protections needed to safeguard employees from hazards, the employer won't know what to do and the employee's exposure to danger will continue unabated.
An occupational safety and health standard is developed and promulgated because of the existence or potential existence of a condition which is hazardous to the safety or health of workers. The purpose of such a standard is to tell employers what they must do to eliminate, reduce, or prevent the hazardous condition. 29 U.S.C. § 652(8) provides that:
The term "occupational safety and health standard" means a standard which 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.
To meet this definition it is essential that a standard, using clear and comprehensible language, identify the hazard and specify what must be done to prevent its occurrence.
Section 1910.132(a) [*12] does not do this. It doesn't specify any "conditions" necessary or appropriate for achieving "safe or healthful employment" nor does it list any "practices, means, methods, operations, or processes" for accomplishing the same. It thus fails to meet the requirements of an occupational safety and health standard under 29 U.S.C. § 652(8). As Judge Cardozo pointed out long ago, "A prohibition so indefinite as to be unintelligible is not a prohibition by which conduct can be governed. It is not a rule at all; it is merely exhortation and entreaty." n8
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n8 Standard Chemicals & Metals Corp. v. Waugh Chemical Corp., 231 N.Y. 51, 131 N.E. 566, 567 (1921).
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The language of the regulation pertinent to the facts of this case provides that respondent require its employees to wear "personal protective equipment for . . . extremities . . . wherever it is necessary by reason of hazards of . . . environment . . . ." From this all-encompassing verbiage, respondent is expected to divine that safety shoes and other kinds of [*13] foot protection are necessary because automotive parts may be dropped on employees' feet. n9
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n9 Were one to examine all the safety regulations, codes and customs, as this decision suggests, he would discover that there are many different varieties of personal protective equipment including many different types of "safety shoes." If one were indeed able to follow the rule set down in this decision he would lack any guidance to assist him in making the proper selection from the various kinds of safety shoes provided for in the various regulations, codes and customs.
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Yet the standard fails to describe the extent of the injury to be prevented, though it may range anywhere from bone fractures to the slightest contusions. Nor does it offer any indication of the kind of protective equipment required (see footnote 9). Should the danger be limited to fractures or injuries equally as serious, then obviously only those employees exposed to the danger of falling auto parts above a certain weight should be required [*14] to wear equipment protecting the entire foot. If the standard protects against any abrasion whatsoever, then all workers handling auto parts of any weight should be required to wear shoes with impervious uppers at the very least.
Absent specificity, the identity of a hazard and the requisite protective equipment is left to the subjective determination of the employer. That determination remains viable (even though in the opinion of some it may not provide adequate employee safety) until such time as it confronts the differing subjective determination of one of the complainant's safety inspectors, often made upon brief inspection and frequently from the vantage point of hindsight. For nothing in this regulation provides any ascertainable standard of conduct to guide the employer or to circumscribe the discretion of the enforcing authorities.
The instant case is a clear example of the latitude of judgment afforded to all parties in the interpretation of a standard. It is complainant's and the Commission's conclusion that the nature of the work performed and the condition of respondent's workplace necessitate employee foot protection. On the other hand, the safety director of [*15] McLean Trucking Company, respondent's parent corporation, testified that he believed respondent did not need to require foot protection because their injury record did not indicate that such protection was necessary. He admitted that the 10 injuries which occurred over a period of 5 years could have been avoided with the use of protective equipment. Nevertheless, when asked whether in retrospect he believed respondent could maintain a good, stable, sound safety program without the necessity of safety shoes, he answered in the affirmative. Respondent has a well established safety program, and this is a witness which the Judge felt qualified as an expert in safety.
Had the standard set forth explicitly the protective equipment required and the circumstances under which it was to be worn, there would have been no question as to what respondent was mandated to do. It would have been unlikely that an experienced safety officer would conclude that foot protection was not required. There would have been no room for the inspector's judgment that safety shoes be worn by all employees who carry auto parts no matter how light or small the same may be. Only if that had happened [*16] could § 1910.132(a) qualify as an occupational safety and health standard, employees receive appropriate protection from hazard, and employers receive the fair notice required by both this Act and the Constitution.
This decision results in the enforcement of a regulation which not only fails to meet the basic requirements of an occupational safety and health standard, but fails to afford the respondent its right to due process of law. Where regulations are subject to civil or criminal sanctions, parties against whom such regulations are enforced are entitled to receive fair warning of the conduct required or proscribed. Fleuti v. Rosenberg, 302 F.2d 652 (9th Cir. 1962); Jordan v. De George, 341 U.S. 223 (1951). They are further entitled to be free from the arbitrary application of regulations which are capable of multiple interpretations. Bouie v. City of Columbia, 378 U.S. 347 (1964).
ORDER
For the reasons given Complainant's citations is vacated insofar as it alleged a violation of 29 C.F.R. 1910.151(b) and it is affirmed insofar as it alleges a violation of 29 C.F.R. 1910.132(a). No penalty is assessed. It is so ORDERED.
[The Judge's [*17] decision referred to herein follows]
PATTON, JUDGE, OSAHRC: This case is before the Occupational Safety and Health Review Commission on the complaint of James D. Hodgson, Secretary of Labor, United States Department of Labor, hereinafter referred to as complainant versus Modern Automative Services, Inc., hereinafter referred to as respondent, alleging violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970, and Occupational Safety and Health Standards 29 C.F.R. 1910.132(a) and 29 C.F.R. 1910.151(b). Hearing was held in this cause on January 24, 1973, in Winston-Salem, North Carolina, before John S. Patton, the undersigned Administrative Law Judge.
LAW AND ISSUES OF THE CASE
Standard 29 C.F.R. 1910.132(a) is 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 [*18] capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.
Standard 29 C.F.R. 1910.151(b) is as follows:
(b) In the absence of an infirmary, clinic, or hospital in near proximity to the workplace which is used for the treatment of all injured employees, a person or persons shall be adequately trained to render first aid. First aid supplies approved by the consulting physician shall be readily available.
The issues for determination, therefore, are as follows:
1. Does Standard 29 C.F.R. 1910.132 require respondent's employees to wear safety shoes. Involved in this issue is the question of whether the nature of the work performed by said employees is of sufficient hazard to require the wearing of protective shoes under the terminology of said standard.
2. Did the respondent have anyone qualified to render first aid in his place of business.
3. Was a hospital within reasonable proximity of the respondent's place of business.
EVIDENCE IN THE CASE
The complainant made certain requests for admissions and in response thereto the respondent admitted that it is engaged in the business of servicing, maintaining [*19] and repairing truck tractors, trailers and other vehicles operated by McLean Trucking Company, east of the Mississippi River, and that respondent employed approximately 157 employees. It was also admitted that employees of respondent were engaged in moving, servicing, repairing, removing, installing and working on or otherwise handling castings, engines, gears, wheels, tires and other automotive parts of and for truck tractors or trailers and in and out of storage on floors and bends or on shelves. The respondent did not admit that the testings and automobile parts could properly be described as "heavy" and it was denied that respondent's employees were required to handle any heavy equipment of any type. It was admitted that many of respondent's employees engaged in handling automotive parts did not wear safety shoes or any other form of foot protection. It was further admitted that respondent had issued no written or oral instruction, order or directive requiring its employees to wear safety shoes or any other form of foot protection and it was further admitted that respondent did not provide safety shoes or any other form of foot protection for such employees. It [*20] was admitted that respondent had no arrangement or understanding with any manufacturer of safety shoes for the purpose of facilitating the availability of safety shoes to its employees. It was further admitted that respondent had no arrangement or understanding with any shoe store or salesman of safety shoes for the purpose of facilitating the availability of safety shoes.
The respondent denied in his answer to request for admissions that respondent had no first aid room, clinic, infirmary or other facility at its place of business where its employees could be taken and given treatment. It was admitted that during the day shifts, injured employees were sent to a doctor located approximately four miles from the place of business. It was admitted that respondent sent injured employees to the emergency room of either Forsyth Memorial Hospital located approximately six miles away or Baptist Hospital located approximately four miles away. It was admitted that none of the alleged violations have been abated because the respondent desired to contest the citations and have them determined by the Occupational Safety and Health Review Commission. It was further stated that the [*21] respondent has no intention of providing safety shoes or other foot protection for its employees unless it is ordered to do so after exhausting its legal and administrative remedies. Respondent denied that it had no one in its employ adequately trained to render first aid. Respondent admitted that certain of its employees are represented by Local Union No. 391, Chauffers and Helpers Union, International Brotherhood of Teamsters the intervenor herein.
At the hearing of this cause, the following evidence was presented and received. Mr. Floyd L. Morris called to the stand under Rule 43(b) of the Federal Rules of Civil Procedure as an adverse witness testified that respondent is a wholly owned subsidiary of McLean Trucking Company, and the Mr. Morris is General Manager responsible for over-all operations of respondent. Respondent has eight production departments, an automobile department, unit building, parts, body trailer, tire, service line and paint department (Tr. 12). The automotive department is primarily responsible for general repair of power-type equipment, primarily trailers. It is also known as the trailer shop (Tr. 12-13). The unit rebuild department builds components [*22] such as engines, transmissions, differentials, alternators and starters.
The parts department supplies all of the departments with parts. The body department is responsible primarily for sheet metal work on power units, accident work and reconditioning. The trailer department is responsible for all trailer work, accidents and running-type maintenance. The paint department is responsible for painting and has no other responsibility. The tire capping plant is responsible for repair and recap of the company's own tires. The service lane department is responsible for inbound-type maintenance (Tr. 13). The warehouse is actually a part of the parts department. The unit rebuilding department is sometimes referred to as the motor room. Engines are rebuilt in said department (Tr. 13, 14). The tractor shop is also called the general repair shop.
The breakdown of number of employees by department is as follows: Parts department has 17 employees on the first shift with the exception of two on the second and two on the third. The unit rebuilding department has 13 employees all on the day shift. The general repair or tractor shop has 20 employees on the day shift, 16 on the [*23] second and 16 on the third. The trailer shop has 46 employees, 18 of them are on the first shift, the other two shifts being evenly split with 14 on each shift. The service department has 33 people total, 13 on the first shift, 10 on each of the other two. The tire department has 22 people all on one shift. The body department has seven employees, all on the daytime shift. The paint department has one or two employees, the witness was not certain which, both of whom work on the day shift. The day shift for tire department starts at 7:00 a.m. and ends at 3:30 p.m. The day shift for the service lane starts at 8:00 a.m. and ends at 4:00 p.m. All the other day shifts start at 7:30 a.m. and end at 4:00 p.m. The second shift starts at 4:00 p.m. and runs through 12:30 a.m. The third shift overlaps starting at 11:00 p.m. and running until 7:30 a.m. The variation between departments in carried over into the second and third shift, each shift totaling eight hours (Tr. 14, 15, 16).
The employees in the tractor department accomplish any in-frame repair of the power equipment, plus removing and replacing any major assembly such as engine, transmission and differential. They will take the [*24] transmission out of the tractor and take it to the unit repair (Tr. 16, 17). They will dismantel the transmission taking it out of the tractor and putting the new transmission back in the tractor. The employees in the general repair tractor shop do in-frame repair work meaning generally any repair work they can do on the vehicle itself. They go to the parts department and get the parts and bring them back to the tractor and put them on. In the case of transmission, engine, differential, they would normally be delivered by fork-lift. Generally the part is delivered from the warehouse, the unit repair department or the parts department on a pallet or a stand and delivered to the area where the people are working on it. Occasionally the employees in the tractor department secure it themselves. The old part would generally be picked up the same way. The parts department and unit rebuild departments are adjoining and the parts are delivered over a counter from the parts department of the unit rebuild on the other side. Generally parts such as universal joints, bolts, net nuts, gadgets, radiator hoses, tachometers, speedometers, etc., are secured. Brake shoes, already [*25] lined are also secured (Tr. 17, 18). Brake drums normally weigh about 60 pounds (Tr. 19). Parts are generally put in grocery store-type shopping baskets although the employees do also carry them. The employees take them out of the basket and assemble them on a unit (Tr. 19). The weight of a universal joint is generally about one and one-half pounds. Other than assemblies which are handled on forklifts and on a pallet, the average weight of parts probably runs in the area of less than ten pounds. Alternators, generators, brake drums, and brake shoes weigh more.
The unit rebuild department rebuilds all components that have rebuildable value such as engines, transmissions, differentials, windshield wiper motors, starters or anything that would normally be rebuilt or have a core value (Tr. 21). The company also manufactures drive shafts. The employees handle all the component parts that go to making or rebuilding one of those units. A heavier item would be carried in the basket and a smaller one would be carried without the basket. The unit rebuilding department or motor department rebuilds all components that have rebuildable value such as engines, transmissions, [*26] differentials, windshield wiper motors, starters or anything that would normally be rebuilt. Transmission housing is secured from the warehouse. It is normally delivered by fork-lift or pallet. The same is true for engine blocks (Tr. 21, 22). These items are set inside a unit rebuild where they have an overhead crane which picks them up off the pallet and moves them to the rebuild stand. They are bolted on the stand (Tr. 22). Employees in the unit rebuild department actually handle considerable heavy parts. Heavy items are carried in the transmission rebuild department. Engine blocks or diesel engine blocks probably weigh 300 pounds. Transmission cases weigh 150 pounds, differential cases weigh 90 pounds (Tr. 22, 23). Transmissions run in weight approximately 180 pounds to 550 pounds. Main shaft in the transmission is 35 pounds. The bearings are less than one pound. The transmission ranges from 8 to 15 pounds. Two-inch gears weigh approximately 19 ounces. Eleven-inch gears weigh up to 5 pounds. Drive shafts are composed of three components. Complete assembly weighs about 20 pounds.
The company also rebuilds starters, the armature in the starter weighs about 10 pounds. [*27] When the unit is rebuilt a mechanic normally goes to the parts department or warehouse and manually handles parts. Parts department men secure the parts either off the floor storage or out of a bin (Tr. 26, 27). Trailers are generally made of aluminum. The under construction, however, is cast iron. The wheel assembly is generally pulled off on a dolly. The aluminum sheets going to a trailer are 4" by 8" sheets and probably weigh between 15 and 25 pounds. The sheets are held in place manually while they are riveted (Tr. 28, 29). In the tire shop, tires are mounted and demounted from the rim. This is done manually. The men actually handle the rims that are removed from the tire casing and these rims weigh about 60 pounds (Tr. 29, 30). In the body department men do sheet metal work on the tractors, repairing accident damage, straightening out kinks, replacing panels, replacing frames, etc. Most of the tools are air tools, air hammers. They also put steel forms behind the fender when they hammer out dents in it (Tr. 29, 30). The hammers weigh 5 to 10 pounds. The pieces of iron weigh 2 to 3 pounds (Tr. 30, 31). It was testified that although the company has a [*28] good housekeeping procedure and they cover oil with a substance to keep it from being slick and provide towels for men to wipe their hands on, there is, by necessity of the operation, some oil and grease on the floor and at times the men's hands will get oil on them and become slippery. The floors can get slippery and cause a man to fall (Tr. 31, 32).
It was testified by Mr. Morris that foot shoes would be some protection but that they would only protect the end of the foot, they would not be completely protected (Tr. 33, 34). The Safety Director, Mr. Howard T. Walton testified that he felt any foot protection should be more than safety shoes, it should be something that would fit over the safety shoes that covers the arch as well as the foot. He admitted, however, that safety shoes would save some injuries that they had over the previous five years. He stated they had had some toe injuries. In 1968, they had one injury to a toe, the employee having six day lost from work; in 1969, there were two toe injuries with no lost time; in 1970, there were five injuries, one case a man fractured the left big toe and was out 13 days, in another there was a contusion of the left [*29] middle toe, no days lost; there was a contusion of the left big toe, no days lost; abrasion and contusion of the left foot hematoma of left fourth and fifth toes, six days lost, contusion of left little toe, with five days lost; in 1971, there was one injury, a contusion of the right toe but no days lost; in 1972, one injury was a contusion of the right big toe, no time lost and two other instances of foot injuries but safety shoes, according to the safety director, would not have helped because of the area of the foot protected (Tr. 60, 61).
Mr. Walton testified that the Baptist Hospital is five and one-half miles from the plant. He stated that he had timed it and it would take 11 minutes and 31 seconds to get to the Baptist Hospital. He stated there were nine traffic lights involved. Mr. Morris estimated it would take 9 to 10 minutes to get from the plant to the Baptist Hospital. He was of the opinion it would take two or three minutes longer to get to Forsyth Hospital. Mr. Walton testified however, that it was only three and eight-tenths miles to Forsyth Hospital and it took only eight minutes, nineteen seconds when he clocked it. He stated there were 19 traffic lights, [*30] that they were caught by five lights and they complied with all speed limits. He pointed out an ambulance would not be held to the same traffic speed limits and could make better time (Tr. 38, 58). Mr. Walton stated that his tests were taken at 11:30 a.m. and around noon. Mr. Morris testified that he thought facilities were near enough that someone familiar with first aid was not required (Tr. 38). He admitted that it would take 25 to 30 minutes to arrive at the plant and then take the employee to the hospital. Mr. Walton stated that he traveled Highway I-40 part of the way and stated that it is the busiest interstate of North Carolina. He stated that at times the ambulance is in very close proximity but most of them are at the airport. It takes about 15 minutes for an ambulance to come from the airport to the plant. He pointed out, however, that the ambulance had qualified first aid attendants (Tr. 71, 72). He stated that if an ambulance was at Waughtown Street, which was near the plant, it would only take about five minutes, possibly ten (Tr. 72). It would take longer around 4:30 p.m. to 6:00 p.m. in the afternoon when people are going home from work and traffic [*31] conditions are more congested. He stated that around 5:00 p.m. to 5:05 p.m. would be when the plant employees are going home and it is very congested and a policeman is made available to help people out of the parking lot. He stated, however, that in the event an ambulance was seeking to get out, the police would be available to stop traffic and help the ambulance get out, provided it occurred around 5:00 p.m. Mr. Morris stated he knows how to use the first aid kits to a degree (Tr. 47). Mr. Walton testified that he had made repeated efforts to get an interpretation of the term "near proximity" from the Department of Labor but had been unsuccessful in doing so.
EVALUATION OF THE EVIDENCE
Section 29 C.F.R. 1910.132(a) does not specifically require use of safety shoes but provides that 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 whenever it is necessary by reason of hazard of processor or environment, etc. The question for determination, therefore, is whether there [*32] were hazards of sufficient severity to require the wearing of some foot protection. It appears to the undersigned that such hazards did exist. It is conceded that no foot protection was worn. It is true that transmissions, engines and differentials are normally delivered by fork-lift. Brake drums, however, normally weigh about 60 pounds. Aluminum sheets going to the trailer are 4 by 8 feet and probably weigh between 15 and 25 pounds. Sheets are held in place manually while they are riveted. Tires are mounted and dismounted from the rim in the tire shop manually. It was testified that the tire casings and rims weigh about 60 pounds. Drive shafts weigh about 20 pounds. It is apparent that notwithstanding the fact that the very heaviest item which could crush a man's foot are handled by fork lifts, there are objects handled of sufficient weight to cause foot injury if they should strike an employee's foot. It was testified that although the respondent does a very good job of "housekeeping" the nature of the work causes oil at times to be on the floor which could cause employees to slip and the employees will have greasy hands which would make it possible for a heavy object [*33] to slip out of their grasp. It will further be noted that there have been foot injuries, it being testified by a company official that there was one foot injury in 1968; two toe injuries in 1969; five foot injuries in 1970, including a foot fracture; there was one injury in 1971 and three in 1972. Mr. Morris admitted that foot shoes would be some protection and the only point he made in that regard was that they would not protect the entire foot but only part of the foot. Mr. Walton, the respondent's Safety Director testified that any foot protection should be more than safety shoes to cover the arch as well as the foot. He conceded the fact that such person was available. He stated, however, that at the time of inspection, he knew of no one with first aid knowledge and that he did not require any first aider to be on the premises. It will be noted that the company worked three shifts and the evidence indicated that at best there was only one person with first aid training who would have worked one shift. He stated that the company had first aid kits in the various departments but that these were primarily for superficial injuries. He stated that he knew how to use [*34] first aid kits to a degree. However, the safety director, Mr. Walton testified that he did not know of anyone qualified for first aid working for the company. He stated that he, with the management of the company, made a decision they would not provide trained first aid personnel until they obtained an interpretation from the American Trucking Association as to what "near proximity" as stated in the standards meant. He stated the American Trucking Association was trying to get this information from Washington and that the respondent had also requested an interpretation from the Department of Labor. It would, therefore, appear that the weight of the evidence is to the effect that no one was available at the time of inspection to provide first aid and that even as of this date, there is no adequately trained person prepared to render first aid.
It will be noted that the standard only requires someone trained in first aid available in the event that there is no hospital infirmary or clinic in "near proximity" to the workplace. The question for determination, therefore, remains as to whether such facilities were in near proximity of the respondent's place of business. The testimony [*35] of Mr. Walton was that the Baptist Hospital was five and one-half miles from the plant and that he had timed it and found that it would take 11 minutes, 31 seconds to get from the company's plant to the hospital. Mr. Morris estimated 9 to 10 minutes to get to the hospital. Mr. Walton stated that the Forsyth Hospital was three and three-tenths miles from the respondent's plant and that it took 8 minutes, 19 seconds to reach it. Mr. Morris was of the opinion that it would take slightly longer and suggested that an ambulance which would have the right-of-way probably could arrive sooner. It will be noted, however, that the testimony was to the effect that although on occasions an ambulance was within five minutes of the plant in most instances, the ambulance had been secured from the airport and that the ambulances were approximately 15 minutes away from the plant. The evidence established that the ambulances contain people who have knowledge of first aid. The issue would be how close first aid was to an injured person. The time that it would take an ambulance to arrive from the airport would be the time that an injured employee would have to survive without the benefits [*36] of first aid. This would be fifteen minutes rather than the eight minutes that it would take to drive to the hospital. It is true that the time after the arrival of the ambulance and before the employee arrives at the hospital would not be a period of time in which the employee would be deprived of first aid because the ambulance would have an attendant to administer first aid. It will further be noted that the testimony was that the above-quoted minutes required for arrival of aid or for trip to the hospital were in the non-busy times of day. It was conceded that it would take considerably longer if it was near 5:00 p.m. when people would be leaving work and going home from their various places of activity. To travel to the nearest hospital would require travel over Highway I-40 which the testimony established was the busiest Interstate highway in the State of North Carolina. Allowing time to make the call for an ambulance and the 15 minutes for the ambulance to arrive and a few minutes for the person in the ambulance to stop the ambulance and reach the injured employee, it would appear that help could not arrive for an injured employee in less than 20 to 25 minutes [*37] after the injury occurred, even if the injury occurred at a time of day when traffic was not heavy. The time would be extended if traffic was heavy. If the time for transportation from the plant to the hospital is added, an additional 10 or 12 minutes would be required. This Judge is of the opinion that many emergencies could arise in which an injured person would die before first aid attention could be administered or before he could be transported to the hospital. He is of the opinion that this is true whether the time is computed on the basis of arrival of the ambulance or of the time it would take for the ambulance to leave the plant and arrive at the hospital. It therefore would appear that first aid treatment was not abailable and it would appear that the hospitals are not in near proximity as contemplated by the statutes. This Judge is of the opinion that Congress intended the term "near proximity" to mean that under the circumstances a hospital is within such distance as to enable a critically injured person to receive treatment within such a short period of time that he would have a reasonably good chance of survival. No penalty was requested in the complaint. This [*38] Judge is of the opinion, however, that while the violation may correctly be termed a non-serious violation within the definition of said term by the section, the violation is of sufficient importance to justify assessment of some penalty. This Judge is of the opinion that a penalty in the amount of $100.00 should be assessed.
FINDINGS OF FACT
1. The respondent, Modern Automotive Service, Inc., is a corporation engaged in the business of servicing, maintaining and repairing truck tractors, trailers and other vehicles operated by McLean Trucking Company.
2. The respondent employs approximately 157 employees. Employees of respondent engage in the handling of heavy automotive parts, those being manually handled weighing up to 60 pounds and those weighing over 60 pounds handled by forklifts.
3. The nature of the work of respondent makes it impossible to avoid some grease being on the floor which may become slippery and the employees having some grease on their hands which could cause parts to slip from their hands.
4. Respondent's employees wore only normal shoes and did not wear any foot protection.
5. There have been at least 12 foot injuries in respondent's plant [*39] since 1968, said injuries being of a relatively minor nature.
6. There is danger of heavy parts or material falling on the feet of employees and thereby causing employee injuries.
7. The respondent does not have any qualified persons trained in first aid working in its employ at said plant in Winston-Salem, North Carolina.
8. The nearest hospital or other medical facility to the respondent is the Forsyth Hospital which is located three and three-tenths miles from said plant. The Baptist Hospital is located five and one-half miles from the plant.
9. It requires 9 to 10 minutes to travel from the plant to the Baptist Hospital and 8 minutes, 19 seconds to travel from the plant to the Forsyth Hospital. It usually requires 15 minutes for an ambulance to come from the airport (where most of the ambulances may be secured) to the plant.
10. In busy times of day, the time required would be lengthened.
11. The ambulances have persons on the ambulance trained in first aid care.
CONCLUSIONS OF LAW
1. The respondent is engaged in a business affecting interstate commerce and is governed by the Occupational Safety and Health Act.
2. The respondent on September 19, 1972, [*40] was in violation of section 5(a)(2) of the Act and Occupational Safety and Health Standard 29 C.F.R. 1910.132(a).
3. The respondent on September 19, 1972, was in violation of section 5(a)(2) of the Act and standard 29 C.F.R. 1910.151(b).
ORDER
It is therefore Ordered that respondent be and hereby is found to be in violation of section 5(a)(2) of the Act and Occupational Safety and Health Standard 29 C.F.R. 1910.132(a). No penalty is assessed for the violation of the standard. The abatement date is affirmed.
It is further Ordered that respondent be and hereby is found to be in violation of standard 29 C.F.R. 1910.151(b). A penalty is assessed for the violation in the amount of $100.00. The abatement date is affirmed.