LEE WAY MOTOR FREIGHT, INC.

OSHRC Docket No. 1932

Occupational Safety and Health Review Commission

April 7, 1975

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter presents the questions whether on the record Respondent, an operator of a freight terminal, was in non-serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act") because its employees were not provided with or using toe protection (29 C.F.R. 1910.132(a)) and because overhead guards were not used on forklift trucks (29 C.F.R. 1910.178(e)(1)). The parties agreed that toe protection was not provided and not used. Respondent (Lee Way) defended saying that the cited standard did not require it to provide toe protection, and the administrative law judge vacated the citation on this basis. As to the overhead guard allegation, the parties agreed that the guards were not provided, and there is no question that a hazard of falling objects was presented. Respondent defended on the basis that operating conditions did not permit the use of overhead guards, and the administrative law judge vacated on this basis.

We have reviewed the record. For the reasons given hereinafter we affirm the citations [*2] and assess the proposed penalties.

The Toe Protection Issue

The gravamen of the complaint is that Lee Way's employees working in trucks and on a loading dock were exposed to hazards which could cause toe injuries and were not using toe protection contrary to the requirements of 29 C.F.R. 1910.132(a). n1

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n1 In pertinent part the standard provides as follows:

Protective equipment, including personal protective equipment for . . . extremities, protective clothing . . ., shall be provided, used and maintained . . . wherever it is necessary by reason of hazards of processes or environment . . . encountered in a manner capable of causing injury or impairment in the function of any part of the body through . . . physical contact.

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The evidence is that Lee Way's employees are exposed to impact and crushing injuries to the toes while working on the dock and in the trucks. Freight handling carts and forklifts are operated on the dock and in the trucks so as to routinely expose the exployees to crushing injuries; [*3] the employees also manually move both light and heavy freight of various sizes and shapes such that it might be dropped and thereby cause injury by impact. In the eight months preceding the hearing Lee Way's employees incurred toe injuries on 16 occasions and foot injuries on 28 occasions.

It is evidence from the foregoing that this case fits squarely within our prior decisions in Ryder Truck Lines, Inc., Dkt. 391, BNA 1 O.S.H.C. 1290, 1 O.S.H.C. 1326, CCH E.S.H.G. paras, 16,451 and 16,669 (1973), aff'd. sub nom. Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230 (5th Cir., 1974); McLean Trucking Co., Dkt. 2847 (ALJ, 1973), aff'd. sub nom, McLean Trucking Co. v. OSHRC et al, 503 F.2d 8 (4th Cir., 1974). Accordingly, we affirm the citation.

A penalty of $140 was proposed. We have no reason to question Lee Way's good faith, and have considered its history of prior violations. Lee Way handles large volumes of freight and employs about 270 dock workers; it is a medium to large employer. Finally, most if not all of its dock workers are exposed to the hazard presented, and injuries although not necessarily disabling are routinely incurred. In the circumstances, [*4] the proposed penalty is appropriate.

The Overhead Guard Issue

As indicated, Lee Way operates forklifts without overhead guards on the loading dock and in over the road trucks. The forklifts when first obtained by Lee Way were equipped with overhead guards. It was undisputed that forklifts provided with the guards could operate inside the over the road trucks. However, Lee Way removed the guards because it could not use guard equipped trucks inside city trucks, canvas top trucks, and some over the road equipment operated by lines other than Lee Way's (interlines) in view of the low entry clearances for such vehicles.

The Secretary cited Lee Way for a violation of 29 C.F.R. 1910.178(e)(1) n2 as to the failure to use guard equipped trucks on the dock and in over the road trucks. Lee Way argues that operating conditions do not permit the use of guard equipped forklifts because the forklifts are used interchangeably in over the road trucks and the canvas top and city trucks.

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n2 The standard provides as follows:

High Lift Rider trucks shall be fitted with an overhead guard manufactured in accordance with paragraph (a)(2) of this section, unless operating conditions do not permit.

[*5]

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The evidence is that approximately 244 over the road trucks are loaded and unloaded at the north end of the dock during a 24-hour period. During the same period approximately 33 canvas top trucks and 8 independent truck-trailers are also loaded and unloaded at the north end while 84 city trucks are loaded and unloaded at the south end of the dock. Freight is usually moved by conveyor or cart between the north and south ends of the dock, and forklifts operating on the north end are used only on a very seldom basis to transfer freight to city trucks at the south end.

Forklift operators spend about half their time on the dock and the great portion of the remainder is spent in the over the road trucks. Finally, the record shows that (1) hinged guards capable of being folded out of the way are used in the industry (2) freight can be moved by a guarded forklift to a low clearance truck and there be transferred to an unguarded forklift, and (3) a guard can be removed in a matter of minutes to thereby adapt a guarded forklift for use in a low clearance truck.

In these circumstances we believe [*6] the operating conditions as to the dock and the over the road trucks are such as to permit the use of overhead guards. We note that the forklifts are mostly used on the dock and in the over the road trucks, and there is no question that the guards can be installed for such use. This finding is of greater significance when the city trucks are excluded from a ratio involving low clearance trucks (41) to over the road trucks (244) since in actual operation city trucks are excluded. In this regard, the record also shows that for the two weeks preceding the hearing Lee Way maintained one unguarded forklift for use exclusively with the city trucks. We see no reason why the other 41 low clearance trucks cannot be assigned a specific loading and unloading area on the dock and be assigned their own forklift. It was Lee Way's own testimony that freight could be transferred from a guarded forklift to an unguarded one. Thus, if all low clearance vehicles are segregated as are the city trucks and if unguarded forklifts are used for their loading, then clearly the operating conditions which Labor cited do permit the use of overhead guards.

Lee Way's defense then comes to this, its operating [*7] conditions do not permit the use of overhead guards merely because Lee Way does not want to change its operations to permit compliance. n3 The weakness of the defense is further pointed up by the fact that the record clearly demonstrates compliance by other employers in Lee Way's industry.

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n3 The facts of this case are quite different from those shown in United States Gypsum Co., Dkt. 1751 (ALJ 1973), a case we did not direct for review. In that case, forklifts had to operate in buildings having low overhead arches, beams, piping, and the like. Moreover, that Respondent did use guards wherever the conditions permitted.

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In the circumstances, we find that Lee Way violated the standard. Labor proposed a penalty of $70. Having considered the factors of size, good faith, and prior violations as previously discussed, and further considering that fewer employees are exposed to the hazards presented by these violative circumstances, we consider the proposed penalty appropriate.

Accordingly, the administrative [*8] law judge's finding of jurisdiction is affirmed for the reasons he assigned and the remainder of his report is rejected; the citations are affirmed and an aggregate penalty of $210 is assessed. It is so ORDERED.

CONCURBY: CLEARY

CONCUR:

CLEARY, COMMISSIONER, concurring: I concur in Commissioner Van Namee's conclusion that Lee Way Motor Freight, Inc., violated section 5(a)(2) of the Act for non-compliance with the requirements of 29 CFR 1910.132(a) and 1910.178(e)(1).

Commissioner Van Namee has chosen to characterize the gravamen of the Secretary of Labor's complaint in terms of Lee Way's employees' exposure to hazards that could cause "toe injuries." The gravamen of the Secretary's complaint as I read the citation applies to the entire foot area of Lee Way's employees. Thus, the citation charges Lee Way with a failure to provide:

Protective footwear . . . for the checkers and forklift operators where necessary by reason of hazard; . . . (emphasis added).

The compliance officer's testimony on the question of the extent of protection required fluctuates from safety-toed shoes for the forklift drivers to safety-toed shoes only or safety-toed shoes with some type of metatarsal protection [*9] for the checkers. The testimony of Lee Way's employees who work as checkers, however, establishes that at a minimum both toe and metatarsal areas of their feet require protection. n4 On facts nearly identical to those presented in this case, both the Ryder and McLean Courts of Appeals decisions, cited in the lead opinion, affirmed findings of non-compliance with 29 CFR 1910.132(a) for activity that created hazards to the feet of employees. This decision falls short to the extent that the metatarsal area of the feet of Lee Way's checkers remains unprotected.

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n4 Protection of feet was clearly established to be "reasonably forseeable." Cf. Cape & Vineyard Div. of the New Bedford Gas & Edison Light Co., v. O.S.H.R.C., No. 74-1223 (1st Cir., March 3, 1975) (slip op. at 8).

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DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: Judge Winfrey's disposition of this case was correct and should be affirmed.

I am unable to understand how this Commission can affirm a violation of 29 C.F.R. 1910.132(a) when no [*10] one with authority to do so has been able to tell the respondent what type of foot-wear must be worn by its employees. Neither the standard, the citation, nor the complaint provides that information, and it was not furnished at the hearing. As noted in the concurring opinion, the testimony of the complainant's inspector displays an uncertainty concerning the extent of protection that must be provided for the employees' feet. n5 This same uncertainty is found in the lead and concurring opinions which are not in agreement as to what is required. I believe that these circumstances clearly establish that the standard is unenforceably vague, not only on its face, but also "in light of the conduct to which it is applied" in this case. United States v. National Dairy Products Corp., 372 U.S. 29, 36 (1973).

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n5 He also admitted that his area director might not agree with his opinion.

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Additionally, the Judge's disposition is correct because the respondent is not subject to the jurisdiction of the Occupational Safety [*11] and Health Act of 1970 (OSHA), 29 U.S.C. 651 et seq., by virtue of 29 U.S.C. 653(b)(1) which provides in pertinent part that:

Nothing in this chapter 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.

The respondent is a corporation whose only business is that of a motor common carrier engaged in the transportation of freight in interstate commerce. The alleged violations were detected during an inspection of one of its terminal facilities. The employees who were alleged to have been exposed to the alleged unsafe conditions were freight loaders.

There is no doubt that the Department of Transportation has exercised authority under part II of the Interstate Commerce Act, n6 49 U.S.C. 301 et seq., in prescribing regulations which affect the occupational safety and health of workers employed in the motor carrier industry. Secretary v. Mushroom Transportation Company, 5 OSAHRC 64 (1973); see, e.g., 49 C.F.R. 392.20, 393.84, 393.100. Although the Department of Transportation has [*12] apparently not regulated the particular working conditions involved in this case, its authority to do so seems clear. See Levinson v. Spector Motor Service, 330 U.S. 649 (1947); Walling v. Huber & Huber Motor Express, Inc., 67 F. Supp. 855 (1946).

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n6 This authority was initially vested in the Interstate Commerce Commission. 49 U.S.C. 304(a). On April 1, 1967, the authority was transferred to the Secretary to Transportation. 49 U.S.C. 1655(e)(6)(C). Accordingly, the Secretary of Transportation is empowered to regulate the safety of operation and equipment of motor carriers engaged in interstate commerce, including the facilities connected therewith. 49 C.F.R. 302(a), 303(a)(19), and 304(a).

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I have previously expressed the opinion that an exemption is created for an entire industry under 29 C.F.R. 653(b)(1) when another Federal agency, pursuant to statutory authority to regulate occupational safety or health within a particular industry, prescribes or enforces any standard or regulation [*13] which affects occupational safety or health in that industry. E.g., Secretary v. Penn Central Transportation, 13 OSAHRC 604, 606 (1974); Secretary v. Southern Pacific Transportation Company, 13 OSAHRC 258, 270 (1974). In those cases, I concluded that Congress intended to give primacy to existing laws and to subordinate OSHA's coverage to existing laws. I expressed in some detail there why this conclusion is dictated by the clear language of 29 U.S.C. 653(b)(1), the legislative history of OSHA, and sound practical reasons. Although I consider it unnecessary to repeat my entire rationale in the earlier cases, I do consider it appropriate to amplify it.

As I have previously indicated, the legislative history shows that the members of Congress referred again and again to an industry exemption when discussing section 653(b)(1). Moreover, the following legislative colloquy concerning Section 22(b) of H.R. 16785, n7 which with only slight changes in wording, not meaning, became section 653(b)(1), leaves no doubt that an industrywide exemption was intended:

MR. PODELL. [A]s my distinguished colleague knows, the U.S. Bureau of Mines of the Department of the Interior [*14] now has jurisdiction over the health and safety conditions of many mining industries pursuant to the Federal Metal and Non-Metallic Mine Safety Act of 1966. Does section 22(b) provide for a transfer of this jurisdiction to the Secretary of Labor?

MR. DANIELS of New Jersey. [T]he answer is "No." Section 22(b) would only allow the Secretary of Labor to assert jurisdiction over health and safety conditions within the mining industries now subject to the Federal Metal and Non-Metallic Mine Safety Act when the Secretary of Interior has failed to exercise his statutory authority to set health and safety standards or otherwise declines to assert any jurisdiction over the mining industries under that act. In other words, only when the Secretary of Interior completely abrogates his responsibilities under the Federal Metal and Non-Metallic Mine Safety Act would the Secretary of Labor be allowed to invoke section 22(b) and set standards for the mining industries now subject to the Mine Safety Act. n8

Of course, the same would be true where other Federal agencies have jurisdiction to regulate occupational safety or health in other industries.

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n7 Staff of the Senate Comm. on Labor and Public Welfare, 92d Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970, at 975 (Comm. Print 1971).

n8 Id. at 1037 (emphasis added).

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Employers in the motor carrier industry must be familiar with all Department of Transportation motor carrier safety regulations. The "working conditions" concept adopted by the Commission in its previous decisions places an intolerable burden on those employers who are also responsible for determining whether gaps in the motor carrier safe regulations are covered by the massive OSHA regulations. It has recently been reported that when the initial OSHA regulations were "stacked one on top of another, they created a pile 6 feet high." n9 The stack is even higher today. To read all regulations would take days. To understand their full meaning and applicability is probably an impossible task.

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n9 Subcommittee on Environmental Problems Affecting Small Business of the Permanent Select Committee on Small Business, The Effects of the Administration of the Occupational Safety and Health Act on Small Business, H.R. Rep. No. 93-1608, 93d Cong., 2d Sess. at 3 (1974).

[*16]

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Furthermore, an additional dilemma is created for employers when OSHA regulations conflict with those promulgated by another agency. A congressional subcommittee has commented on that situation in the following manner:

The problem of competing jurisdictions and conflicting regulations was also raised by many of the witnesses. For example, the Bureau of Mines may have jurisdiction over certain excavations, and in somes [sic] instances, its regulations directly conflict with those of OSHA which apply to excavations. The Department of the Treasury has jurisdiction over explosives, and its requirements are, in some cases, not the same as OSHA's. The Department of Agriculture and the Food and Drug Administration have standards applying to packing-houses which conflict with OSHA's general regulations. In these cases, an employer is caught in the middle in that he may be fined by OSHA for doing what he is required to do by another governmental agency.

One witness testified that he solved this problem by having a two-way radio which he would use to notify the foreman of which agency was coming [*17] and then instruct him to make the appropriate changes. But this is not a realistic solution for a problem as serious as this. n10

I do not believe that Congress intended a result that could lead to such absurdities.

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n10 Id. at 20.

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In my view, Congress envisioned a comprehensive program for employee safety under which the Department of Labor would have jurisdiction over those industries not under the regulatory authority of some other Federal agency. There is nothing in the legislative history which gives any reason why Congress would take jurisdiction from one agency with longstanding expertise in a particular industry and give it to another agency which had none. If that had been the congressional intention, it would have been clearly stated.

To the contrary, however, 29 U.S.C. 653(b)(4) amplifies the meaning of section 653(b)(1) by providing in pertinent part that:

Nothing in this chapter shall be construed . . . to enlarge or diminish . . . the . . . statutory rights, duties or liabilities [*18] of employers . . . under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment. (Emphasis added.)

Thus, it is clear that Congress intended for section 653(b)(1) to establish an industrywide exemption.

[The Judge's decision referred to herein follows]

WINFREY, JUDGE: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 [29 USC 651 et seq., hereinafter called the Act], contesting a citation issued by the Complainant against the Respondent under the authority vested in Complainant by Section 9(a) of that Act. The citation alleges that as the result of the inspection of a workplace under the ownership, operation or control of the Respondent located at 3000 West Reno, Oklahoma City, Oklahoma, and described as a freight handling terminal, the Respondent has violated Section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 thereof. The citation which was issued on December 5, 1972, alleges that the violations result from a failure to comply with standards promulgated [*19] by the Secretary by publication in the Federal Register and codified in 29 CFR 1910.132(a) and 29 CFR 1910.178(e)(1). The descriptions of the alleged violations contained on said citation state:

Item No. -- Standard or regulation allegedly violated -- Description of alleged violation -- Date on which alleged violation must be corrected

1 -- 29 CFR 1910.132(a) -- Protective footwear was not provided for the checkers and forklift operators where necessary by reason of hazard; i.e., checkers and forklift operators exposed to injury from freight and vehicles. -- January 5, 1973

2 -- 29 CFR 1910.178(e)(1) -- An overhead guard was not provided as protection against falling objects on the five (5) forklift trucks operating on the dock when used to unload or load over-the-road trailers and in dock operations with elevated loads; i.e., (1) Yale forklift number 66, (2) Yale forklift number 67. (3) Hyster forklift number 52, (4) White forklift number 43, and (5) Baker forklift number 73 (or number 225). -- January 19, 1973

The standards as promulgated by the Secretary provide as follows: 29 CFR 1910.132(a) provides that: "Protective equipment, including personal protective equipment [*20] 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." 29 CFR 1910.178(e)(1) provides that: "High Lift Rider trucks shall be fitted with an overhead guard manufactured in accordance with paragraph (a)(2) of this section, unless operating conditions do not permit."

Pursuant to the enforcement procedures set forth in Section 10(a) of the Act, the Respondent was notified by letter dated December 5, 1972, from Robert A. Griffin for Area Director J. T. Knorpp, U.S. Department of Labor, Occupational Safety and Health Administration, Tulsa, Oklahoma, that it was proposed to assess a penalty for the violations alleged in the amount of $210.00, which are specifically set forth as follows:

No. -- Description -- Proposed Penalty

1 -- Protective footwear [*21] not provided. -- $140.00

2 -- Overhead guard not provided on forklift trucks. -- 70.00

After Respondent contested this enforcement action and a complaint and an answer had been filed by the parties, the case came on for hearing at Oklahoma City, Oklahoma on March 28, 1973.

The Complainant was represented by the Honorable Scott H. Strickler, Office of the Regional Solicitor, and the Respondent was represented by Ben L. Burdick and Leonard Court, Attorneys at Law. The Complainant's exhibits 1 through 21 were duly admitted into evidence except for exhibits offered numbered C-22, C-23, C-24 and C-25, which were not admitted, however, they were received as a Bill of Exception or as rejected documents. Respondent's exhibits 1 through 20-3 were duly received into evidence.

As the hearing commenced, the Respondent filed a Plea to the Jurisdiction, and contended in effect that the Department of Transportation has statutory authority to provide prescribed safety regulations for motor carriers. A ruling upon such Plea was deferred and subsequent to the hearing conducted, the Respondent filed a brief, proposed findings of fact, and proposed conclusions of law. The Complainant [*22] likewise filed suggested findings of fact, conclusions of law, proposed order, and a reply brief concerning the jurisdictional Plea.

PLEA TO THE JURISDICTION

The Respondent, in its brief, contends that it is exempt from coverage and is not subject to the jurisdiction of the Occupational Safety and Health Act by reason of Section 4(b)(1) of the Act [29 U.S.C. 653(b)(1)], in that the Respondent is an interstate motor carrier subject to the Motor Carrier Safety Regulations, which are promulgated or may be promulgated by the Secretary of Transportation. The Complainant contends that no other agency has authority to promulgate safety and health standards applicable to the working conditions which necessitate the use of protective footwear by dock workers, and the use of overhead guarding on forklifts, and even if such authority exists, it has not been exercised. A careful consideration of the briefs and arguments of the parties, together with a careful study of the law and the regulations persuade the undersigned that this matter is properly before the Occupational Safety and Health Review Commission, and the Plea to the Jurisdiction levied by the Respondent is hereby overruled.

ISSUE [*23]

The issue thus presented in this matter is whether the Respondent has violated Section 5(a)(2) of the Act. Resolution of this issue will depend upon whether the Respondent violated the standards above set forth.

DISCUSSION OF ITEM NUMBER 1

As hereinabove set forth, the Respondent was cited for violating 29 CFR 1910.132(a) by not providing protective footwear for the checkers and forklift operators where necessary by reason of hazards; i.e., checkers and forklift operators were exposed to injury from freight and vehicles.

The standard as promulgated by the Secretary provides as follows:

(a) Application. Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.

The Respondent admitted [*24] in its answer that it did not provide safety-toed shoes or other protective footwear for its checkers and forklift operations. It is Respondent's position that the standard does not require it to furnish safety-toed shoes to such personnel, and that such a requirement is an unreasonable application of the standard as it applies to this Respondent. The undersigned agrees with such contention.

The credible evidence, briefly stated as pertinent, discloses that Fred McKenzie, Compliance Safety and Health Officer of the Occupational Safety and Health Administration, testified that he had examined the terminal dock at the Oklahoma City terminal of Respondent; that it was an elevated dock, approximately four feet high, of concrete-type structure, with an underfloor conveyor system pulling carts around the dock; that there were approximately eighty over-the-road vehicles on the east and the west sides of the dock, and that there were forklift operators entering the trucks and loading and unloading the same; that he observed the lifting of small parts, and observed some drums in the 450-pound category; that he believed there was a possibility that the forklift could run over the employee's [*25] feet; that some of the smaller, heavier items could be dropped on the feet; and that there was a possibility of the forklift or the cart running over the employee's feet in the unloading process.

Mr. McKenzie further testified that some of the employees were wearing safety-toed shoes, but that the majority did not have foot protection. Upon cross examination he testified that, as a minimum, hard-toed shoes would have to be provided to all employees on the dock who worked on the three 8-hour shifts; that the safety shoe would have to be one which would cover the toes with a protective material which would withstand a 300-pound object dropped from a height of one foot as required by ANSI.

Paul A. Harper, Lee Way employee, then testified that as a checker and forklift driver he had run over some toes on the dock, but fortunately he had never broken any; that the checkers had to lift all types of material, such as pipe and big valves; that occasionally he had dropped some materials as a checker; that he had never received any foot injuries; that it was sometimes necessary for the forklift driver to get off to help someone.

Harvey Leo Hess, Lee Way checker, testified that [*26] as a checker he would get an empty cart and push it in the trailer and take freight off the truck and put it on the cart and pull it out and put it on the conveyor line; that he had occasionally dropped some of the materials he was working with, and had occasionally knocked over some materials while working as a checker; that he had had five injuries to his feet while working for Lee Way, and that one of them required going to a doctor for medical attention; that one of those injuries occurred from a steel flange rolling off a cart into his foot, cracking his toe; that the others involved a broken foot from falling, a broken heel from falling, and getting his foot between the cart and the dock.

On cross examination Mr. Hess testified that he had had some twenty-one injuries since 1963, and only one of those was a toe injury.

Jerry T. Force, Lee Way yard hostler, testified that occasionally a checker had to be in a trailer when there was a forklift in the trailer, and occasionally a forklift operator had to get down from the forklift to adjust the forks or change certain types of materials to a forklift so that it could be moved.

William K. Blood, Lee Way Director of Personnel, [*27] testified that at one time they had allowed a mobile shoe service to come onto the Lee Way premises to that the employees could purchase shoes and have them deducted out of their payroll if they desired; that this program was instituted by him.

Robert A. Griffin, OSHA Senior Compliance Officer, reviewed the conditions previously testified to, and discussed the method of computation of the penalty. He also identified a copy of Standard B56.1 for powered industrial trucks, which is referred to in 29 CFR 1910.178(a)(2), which was introduced in evidence. Pages 47, 48, 49, and 37 through 39 were introduced by Complainant, and pages 40 and 41 were introduced by Respondent. Mr. Griffin testified that, when an employer expressed some reservations about correction of the hazard, there was a reduction made in the ten percent credit for good faith which would increase the amount of the penalty.

The following stipulation was entered into between the parties:

This is a stipulation as to what the records of Lee Way Motor Freight, Inc., for their dock operations at the establishment in question since July 1, 1971 through the present time. This stipulation is as to what those records [*28] show.

They show a total of 304 occupational injuries. They show that of these injuries, a total of 44 injuries were injuries to the foot and toe. This is further broken down into 16 injuries to the toe, 28 injuries to the foot. Breaking these down further, the record would show that 12 injuries to the toe were caused by materials dropped on the toe. It further shows that there were four injuries to the foot caused by being run over or struck by a forklift, that there were two injuries to the toe caused by this same problem, being run over or struck by a forklift. It shows further that there are 12 injuries to the foot caused by the foot being run over by a cart. That there were two injuries to the toe caused by being run over by a cart.

But I would add to it at this point that these injuries do not necessarily mean lost-time injuries or treatment-by-a-doctor injuries. Some of them are first-aid injuries. It's all reported injuries. It doesn't necessarily mean lost-time or treatment-by-a-doctor injuries.

James W. Evans, Lee Way Operations Manager, then testified with reference to the citation for safety shoes as follows: That it was necessary to hire "casual" labor, dependent [*29] upon the amount of freight coming in, which would be multiplied by three for a full day; that there was no guarantee from the company or the union as to how long casual labor was going to work; that after getting a pair of safety shoes, a casual laborer could be let off within a week or could quit within the week.

Jack D. Wilson, Lee Way forklift operator, testified that the weight of the forklift truck was something over 10,000 pounds, and that a steel-toed shoe would not hold that much weight; that the carts being pulled around on the dock were not supposed to have more than 2,000 pounds on them, but that a lot of them had 2,000 pounds on them.

Carl Wilson, Lee Way forklift driver, testified that he had been a forklift driver and a checker and suffered a foot injury on March 11, 1972; that it occurred by reason of a forklift hitting a crate and pushing him up against the front of the trailer; that if he had had on a safety shoe with a steel cap, this particular accident would have cut his toes off by reason of the way his foot was positioned.

Based upon all of the evidence, the undersigned is convinced that the standard hereinabove set forth and upon which the Respondent [*30] was cited in Item 1 was not intended to require the furnishing of safety shoes as is contended by the Complainant. The standard is not specifically directed at safety-toed shoes and the evidence does not show that the wearing of such shoes would materially reduce the hazard inherent in Respondent's dock operations. To hold otherwise would require an unreasonable interpretation of the cited standard.

The undersigned has carefully considered all of the evidence, the briefs and argument of counsel, and is constrained to conclude that the failure to provide protective shoes is not a violation of the standard herein cited. The undersigned is constrained to conclude that a sound judicial interpretation of the standard cited cannot possibly require that an employer provide protective devices such as has been recommended in this case.

DISCUSSION OF ITEM NUMBER 2

Citation No. 2 alleges that Respondent violated standards as promulgated by the Secretary and contained in 29 CFR 1910.178(e)(1), by not providing overhead guards as protection against falling objects on the five forklift trucks operating on the dock when used to unload or load over-the-road trailers, and in dock operations [*31] with elevated loads.

The standards as promulgated by the Secretary provide as follows:

(e) Safety guards. (1) High Lift Rider trucks shall be fitted with an overhead guard manufactured in accordance with paragraph (a)(2) of this section, unless operating conditions do not permit.

The provisions of paragraph (a)(2) provide:

(a) General Requirement. (2) All new powered industrial trucks acquired after the effective date of this subpart shall meet the design specifications established in the "American National Standard for Powered Industrial Trucks, Part II, ANSI B56.1-1969," except for vehicles intended primarily for earth moving or over-the-road hauling.

The Respondent has five forklift trucks which are necessary to unload the over-the-road trailers, the city trailers, the rag tops, and the various interline trailers. The Respondent contends that approximately one-third of the type of trucks or trailers unloaded will not allow the entry of a forklift truck with a standard overhead guard provided by the manufacturer. The Respondent further contends that since the forklift trucks are used interchangeably around the docks between the various sized vehicles, this [*32] operation reasonably fits within the exception of "unless operating conditions do not permit."

The Respondent concedes that the five forklift trucks did not have overhead guarding on them at the time of the inspections, and that such guarding was not used because operating conditions would not permit such use in the dock operations.

Mr. McKenzie, OSHA, testified that the forklift trucks used by Respondent could not enter city-wide trucks if they had overhead guarding of the standard type. It was proposed by the Occupational Safety and Health Administration that the overhead guards be modified either: (a) by hinging, so that the canopy would swing back; (b) by means of a hydraulic mast which would raise and lower, a new method on the market; (c) by a mechanical-type mast that could be raised and lowered; or, (d) by removing the canopy.

Upon cross examination, Mr. McKenzie admitted that ANSI 56.1 contained a recommendation of 39 inches as to the vertical clearance from the point of maximum depression of the seat under the operator to the under side of the section of the guard above the operator's head. He further testified that he had not seen the hydraulic-type canopy [*33] that could be raised and lowered, because it was relatively new on the market.

Paul A. Harper, a checker for Respondent, testified that he carried materials from one truck to another; that on an 8-hour shift he would spend approximately fifty percent of his time working on the dock as a forklift operator and another fifty percent of his time working inside the trucks as a forklift operator. Mr. Harper testified that one of the crates had come back on him and hit him on the head causing injury, but he further testified that that was the only instance he knew of where a piece of freight had fallen from a forklift and struck the driver.

Harvey Leo Hess, a checker for Respondent, testified that he had driven a forklift for Respondent, and that in his opinion, the operating conditions which existed at Respondent's dock prevented the use of overhead guarding on the forklifts, using the overhead guards (canopies) that they now had. He further testified that Respondent's employees would be limited in working with the rag tops, and admitted that overhead guarding would interfere with working on both the rag tops and the city trucks.

James W. Evans, Operations Manager for Respondent testified [*34] at length concerning operating conditions on Respondent's loading dock. Mr. Evans described the inconvenience and difficulties of entering a rag top trailer with an overhead guard on a forklift; that it would be necessary to strip the canvas top back as far as necessary to go inside the truck to get the freight off, and that after doing this it would be necessary to take the trailer to the shop in order to get the canvas top back on properly; that the chances of a man being injured in putting back the top and the headache bar were large. He further testified that Respondent had had only one injury in twenty-one years from objects falling from forklift trucks.

As stated above, the Occupational Safety and Health Administration has proposed modification of the overhead guards. The Respondent contends that if the overhead guards are modified by hydraulically or mechanically raising and lowering the overhead guard to various heights, such modification would place Respondent in violation of the ANSI Standard concerning vertical clearance as aforestated, and that the standard for this vertical clearance must have basis in safety reasons which could include visibility and maneuverability. [*35] The Respondent further contends that application of the reasonable-man rule places Respondent within the exception in the standard for operating conditions under the peculiar circumstances present which do not permit the use of overhead guards on Respondent's forklift trucks.

The undersigned agrees with such contention and is convinced that it is unreasonable to require the Respondent to install overhead guarding upon forklifts operating on its loading dock. It seems clear that operating conditions do not permit such guarding and the hazard to employees in its absence does not appear to be significant.

FINDINGS OF FACT

The entire record in this cause has been considered, and based thereupon, the following findings of specific fact are hereby made:

1. On and before November 9 and November 28, 1972, Lee Way Motor Freight, Inc., hereinafter referred to as Respondent, was an employer engaged in a business affecting commerce.

2. On and before November 9 and November 28, 1972, Respondent employed persons in a workplace, hereinafter referred to as Respondent's workplace, located at 3000 West Reno, Oklahoma City, Oklahoma, where it was engaged in the operation of an interstate motor [*36] freight terminal, and is subject to the provisions of the Occupational Safety and Health Act of 1970.

3. Respondent's workplace is the home office and central terminal for its intrastate and interstate operations.

4. During 1972, Respondent handled at its workplace 760,538,854 pounds of freight. Of this freight, 113,814,985 pounds originated in Oklahoma City; 216,869,869 pounds terminated there; and 429,854,000 pounds were transferred at this point from one vehicle to another.

5. Respondent, in its dock operations, regularly employed three shifts of 90 employees each. Of these employees, approximately 200 were regular employees and 70 were casuals. In 1972, total manhours utilized were 2,017,392 for regular employees, and 456,497 for casual employees.

6. On November 9 and November 28, 1972, Respondent was inspected by a Compliance Safety and Health Officer of the Occupational Safety and Health Administration, and cited on December 5, 1972, for two alleged violations of standards promulgated by the Secretary and codified in 29 CFR 1910.132(a) and 29 CFR 1910.178(e)(1).

7. That the failure of Respondent to provide employees with safety-toed shoes did not subject [*37] such employees to significant hazard of injury or impairment in the function of any part of the body.

8. That the operating conditions did not permit Respondent to install overhead guards on the forklift trucks operating on its loading dock.

CONCLUSIONS OF LAW AND ORDER

It is concluded as a matter of law that:

1. The Occupational Safety and Health Review Commission has jurisdiction of this cause.

2. The Respondent was not in violation of Section 5(a)(2) of the Act as the Respondent's failure to provide employees with safety-toed shoes was not a violation of 29 CFR 1910.132(a), and the Respondent's failure to install overhead guards on its forklifts was not a violation of 29 CFR 1910.178(e)(1).

It is ORDERED, adjudged and decreed that the citation issued December 5, 1972, by the Complainant, together with the penalties proposed in Items 1 and 2, and the dates upon which the alleged violations must be corrected, be, and each of them is hereby vacated and held for naught.