ARKANSAS-BEST FREIGHT SYSTEMS, INC.

OSHRC Docket No. 2375

Occupational Safety and Health Review Commission

February 21, 1975

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners.

OPINIONBY: CLEARY

OPINION:

CLEARY, COMMISSIONER: On November 20, 1973, Judge Paul L. Brady issued an order vacating a citation and proposed penalty in this case. On December 13, 1973, the Commission directed that the Judge's order be reviewed in accordance with section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter referred to as "the Act").

Review was directed on the sole question of whether "the evidence of record substantiate[s] a finding of a violation for failure to comply with 29 CFR 1910.132(a)." Both respondent and complainant filed briefs with the Commission subsequent to the direction for review. We have reviewed the record in its entirety, and reverse the Judge's decision and order in this case.

Respondent was cited on February 14, 1973, for five non-serious violations of the Act. The citation was amended on February 23, 1973, to eliminate item one of the original citation. The remaining items were renumbered. A $30 penalty was proposed for item four of the amended citation. No penalties were proposed for items one, two, and three.

On March 1, 1973, respondent [*2] filed a timely notice of contest to item four of the amended citation. The remaining items were not contested. Item four alleges failure to comply with the standard at 29 CFR 1910.132(a) which 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 physicial contact.

The citation alleges that respondent failed to comply with this standard by not requiring that its employees who worked "in heavy material handling areas, such as . . . [the] freight docks and . . . [the] shop area" use "[s]afety-toe footwear. . . ."

Respondent is an interstate motor freight carrier. At the time of the hearing it operated 52 freight terminals in 19 states. n1 The present case arose out of an inspection of [*3] respondent's freight terminal in Fletcher, North Carolina. n2

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n1 At the hearing a vice-president of respondent testified that the company had 52 terminals and operated in 19 states. Respondent's exhibit B, a system map, shows only 51 terminals in 18 states.

n2 This terminal is referred to occasionally as the Ashville terminal.

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Respondent's dock workers n3 load and unload the truck trailers. They handle all types of freight -- "anything from pillows to cast iron castings, pipes [and] 55-gallon drums." Some of the freight is moved by hand. Forklift trucks are also used. The freight dock where these employees work has over 45 parking spaces for trucks, and the compliance officer testified that it is the site of considerable activity, with forklift trucks constantly moving in and out of the trailers and up and down the dock.

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n3 City drivers also spend a substantial part of their time working on the freight dock. They will be considered dock workers when they are working on the freight dock.

[*4]

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The repair shop employees maintain and service the trucks and trailers. This requires them to move and work with heavy parts and tools. They also handle truck tires that range from 40 to 48 inches in height.

II.

Respondent admits that these employees were not using protective footwear at the time of the inspection. It contends, however, that this does not constitute a violation of the Act because section 1910.132(a) is unenforceably vague as applied to the present facts.

Any question concerning the Constitutional validity of section 1910.132(a) on the issue of vagueness is now well settled. Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230 (5th Cir. 1974); McLean Trucking Co. v. O.S.H.R.C. & Secretary of Labor, No. 73-2392 (4th Cir. September 4, 1974).

III.

We proceed to a determination of whether respondent was in violation of the standard. Respondent's dock workers handle heavy freight on a busy dock. They must also contend with the forklift trucks that are constantly moving about. The repair shop employees handle heavy parts and equipment. In Ryder Truck Lines, [*5] Inc. and McLean Trucking Co., the Commission held that virtually identical facts required toe protection. We hold that section 1910.132(a) requires toe protection in this case as well.

The fact that respondent's employees have suffered relatively few toe injuries during the past few years n4 is no defense. Ryder Truck Lines, Inc. v. Brennan, supra at 233. The work situation clearly presents a danger of injury. The fact that respondent's employees have been fortunate and suffered few actual injuries cannot negate the existence of a hazard.

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n4 No toe injuries were reported for these two categories of employees in 1969. In 1970, two toe injuries were recorded, one for shop employees and one for dock workers. No toe injuries were recorded in 1971. Two toe injuries were reported for shop employees in 1972.

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IV.

Respondent also contends that the application of section 1910.132(a) to the present situation is contrary to the purpose of the Act and beyond the authority granted by Congress. Respondent [*6] contends that the purpose of the Act is to relieve interstate commerce from the burden of work related illness and injury. This contention is based on section 2 of the Act which states:

The Congress finds that personal injuries and illnesses arising out of work situations impose a substantial burden upon, and are a hindrance to, interstate commerce in terms of lost production, wage loss, medical expenses, and disability compensation payments.

From this, respondent argues that Congress did not authorize a standard when the cost of compliance would exceed the employer's expenses resulting from job injuries.

This contention goes far beyond any constitutional vagueness issue and asks us to review the rulemaking action of the Secretary of Labor. The Commission is not empowered to do this. U.S. Steel (concurring opinion), Nos. 2975 & 4349 (November 14, 1974).

V.

The facts of this case show a violation of the Act. Respondent failed to comply with 29 CFR 1910.132(a) by not requiring that its dock workers and repair shop employees have toe protection. This clearly exposed respondent's employees to the danger of injuries.

The violation in non-serious, however, as [*7] there was not a "substantial probability that death or serious physical harm could result" from the failure to have toe protection. n5

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n5 The Act, 17(k) (1970).

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Examination of the statutory factors to be considered in assessing penalties n6 establishes that the $30 proposed penalty is appropriate. Respondent is a large business with more than 100 employees. The gravity of the violation is moderate. Respondent, however, has no history of prior violations, and has also displayed considerable good faith, expending substantial amounts of time, energy, and money in an effect to comply with the Act.

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n6 Section 17(j) of the Act provides:

The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.

[*8]

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Accordingly, it is ORDERED that the Judge's decision is vacated. The citation for non-serious violation and the proposed penalty are affirmed.

DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: The Commission summarily dismisses the vagueness question of 29 C.F.R. 1910.132(a) because of two recent circuit court opinions. n7 Contrary to my colleagues' assertion, two circuit court opinions do not settle this issue.

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n7 Ryder Truck Lines, Inc., v. Brennan, 497 F.2d 230 (5th Cir., 1974); McLean Trucking Co. v. OSAHRC & Secretary of Labor, 503 F.2d 8 (4th Cir., 1974).

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A standard is developed because of the existence of a condition hazardous to the safety or health or workers. The purpose of standards is to inform employers what must be done to eliminate, reduce or prevent hazardous conditions. See 29 U.S.C. 651(b)(1). It is essential, therefore, that a standard identify the hazard and specify what must be done to eliminate [*9] it. n8

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n8 For a general discussion of standards, see Moran, Occupational Safety and Health Standards: The Hazards of Haste, 15 Wm. & Mary L. Rev. 717 (1974).

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The Supreme Court held in Cramp v. Board of Public Instruction, 386 U.S. 278 (1961), that:

. . . a statute n9 which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates . . . due process of law . . . .

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n9 Standards promulgated by government agencies are subject to the same test of definiteness as statutes. Atwood's Transportation Lines, Inc., v. U.S. & I.C.C., 211 F. Supp. 168 (D.D.C. 1962).

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The circuit court in Ryder, supra, stated that 29 C.F.R. 1910.132(a) passed constitutional muster, even though it was

not . . . a model of perfect precision. . . [*10] .

I agree that this standard is not a model of perfect precision. I respectfully disagree, however, that the language therein is such that men of common intelligence do not necessarily have to guess at its meaning.

Congress mandated that occupational safety and health standards require

. . . conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe of healthful employment. . . . 29 U.S.C. 652(8).

To meet these requirements, we have held that the substance of a standard must afford reasonable notice, Secretary v. J.A. Walder, Inc., 2 OSAHRC 881 (1973), it must have clear language uncolored by subjective criteria, Secretary v. California Stevedoring Co., 1 OSAHRC 366 (1972), and it must contain sufficient specificity to put an employer on notice, Secretary v. McDowell-Purcell, Inc., 1 OSAHRC 1033 (1972).

I am unable to conclude that 29 C.F.R. 1910.132(a) meets any of these requirements.

As asked in Secretary v. Grayson Lumber Company, Inc., 3 OSAHRC 541 (1973), what "practices, means, methods, operations or processes" does this standard require? What [*11] does the terminology "personal protective equipment . . . for extremities" mean? Does "necessary by reasons of hazards of processes or environment" indicate when whatever equipment specified is required?

I am unable to ascertain the answers to these questions from the language of this standard or in light of any possible conduct to which it may be applied. See United States v. National Dairy Corporation, 372 U.S. 29 (1963).

A recent study by the Subcommittee on Environmental Problems Affecting Small Business n10 reported the following testimony from the Deputy Assistant Secretary of Labor, Howard J. Schulte:

[S]tandards [are] in many instances unclear and in some instances . . . contain . . . impractical aspects.

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n10 House Report No. 93-1608, 93d Congress, 2d Sess., dated December 17, 1974.

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The Subcommittee recommended that complainant formulate standards in clear and concise language so that employers can understand what is required by the regulations.

I feel that the language of 29 C.F.R. 1910.132(a) [*12] falls within the specific problem to which this report is directed. Penalizing this employer for not complying with a standard that falls short of the congressional mandate set forth in 652(8) violates due process of law and does not achieve the objectives at which this Act is aimed.

[The Judge's decision referred to herein follows]

BRADY, JUDGE: This proceeding is brought pursuant to Section 10 of the Occupational Safety and Health Act of 1970, 29 USC 651 et seq. (hereinafter referred to as the Act) to contest a citation issued by the Secretary of Labor (hereinafter referred to as the Secretary) pursuant to Section 9(a) of the Act. The amended citation which was issued February 23, 1973, alleges that as the result of an inspection of Respondent's workplace at U.S. Highway 25 N., Fletcher, North Carolina, respondent violated section 5(a)(2) of the Act by failing to comply with specific occupational safety and health standards promulgated by the Secretary pursuant to section 6 thereof. An amended notice of proposed penalty was issued with the citation.

The Secretary alleges that on January 31, 1973, Respondent violated the standard codified at 29 CFR 1910.132(a) [*13] which states as follows:

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 typical of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.

The alleged violation is described in the amended citation as:

Safety-toe footwear not being provided for or used by employees working in heavy material handling areas, such as on freight docks and in shop area.

At the hearing of the cause on May 22, 1973, in Asheville, North Carolina, the parties stipulated that Respondent is an employer engaged in a business affecting commerce within the meaning of the Act. Also, that an inspection took place on January 31, 1973, and no safety shoes were found to be in use, nor were they provided by Respondent at the facility in Fletcher, North Carolina.

The inspection of [*14] Respondent's workplace was conducted by Mr. Fletcher Roberts, Compliance Officer, who testified the walk-around was of the entire operation which included the freight dock and maintenance area. His testimony indicated that at the freight dock there was continuous material handling, including light and heavy items, often utilizing forklifts. He stated in reference to the need for safety equipment that what "really settled the need in my mind for this equipment was the fact that one of the first individuals I looked at had on a hush-puppy type shoe." He was unaware of the particular man's duties or responsibilities, but "he was from one end of the dock to the other." In the shop area general maintenance and servicing was performed on tractors and trailers. Approximately eight to ten employees were observed in this area, and six to eight on the dock.

At the conclusion of Complainant's case Respondent moved to dismiss the case on the grounds that, (1) there was a failure to make a prima facie showing that a serious injury resulted from the conditions described by the witness, (2) there was a failure to show that any injuries caused by the non-use of safety shoes constituted [*15] a burden on interstate commerce. Both motions were denied.

In view of the stipulation which provided that no safety shoes were being used at the workplace considerable latitude was allowed respondent in presenting evidence in its behalf. The main scope of the evidence attempted to show through cost studies an economic impact on interstate commerce, which will not be considered as bearing on the issue in this proceeding.

Mr. Roger Curtis, Respondent's vice president for customer service and safety, stated that the safety department has a safety director and five full-time safety engineers, and two part-time safety engineers. The engineers inspect each terminal at least once per month. Compliance with all O.S.H.A. standards is Respondent's intention, which includes providing all supervisors with OSHA manuals and familiarizing them with same.

Mr. Elmer Belcher, director of safety testified that shortly after OSHA regulations became effective Respondent commenced a study of the Act to determine those regulations applicable to its operations. As a result of such study it was believed that safety shoes were not required. However, following the inspection of the premises herein [*16] Respondent undertook studies with reference to instituting a safety shoe program.

The good faith of Respondent in attempting to comply with the Act is clear, also, that from reading the standard at 29 CFR 1910.132(a) the employer could reasonably assume such standard would not be applicable to the dock and maintenance operations as alleged herein.

The complainant's case is based solely on the opinion evidence of the compliance officer, as a result of his observations on the day of the inspection. There was no evidence of actual foot or toe injuries, except the compliance officer stated Respondent's records reflected that more than one such injury occurred, with no serious accidents, but "a lot of little old piddling things." There was no indication as to the circumstances under which the injuries occurred or whether they were work related.

The Respondent's evidence revealed the tonnage production for 1972, at the terminal to be 179,200,000 which amounts to 702,353 Lbs. per day (Exh. A). Also, there were no toe injuries sustained by the dock workers in 1972, while two such injuries were sustained by the shop employees (Exh. I). In 1970, one toe type injury was sustained [*17] by the dock workers, and one by shop employees. A total of 160,160 manhours were worked that year (Exh. H). In 1969 there were no such injuries sustained while working 158,080 manhours (Exh. G).

The foregoing evidence of Respondent must be held to negate the existence of "hazards of processes or environment" at the terminal which would be of such nature as to necessitate the use of "safety-too footwear" as alleged in violating the standard.

Although Respondent concedes that no safety shoes were provided at the facility herein, complainant does not offer to show what actually constitutes "safety-toe footwear," as alleged, or in what manner the footwear in use was defective, in view of the particular duties performed by specific employees at the workplace. A "hush puppy type shoe" may have been quite appropriate for the employee observed walking about the dock herein, depending upon the duties he performs.

In this case it must be held that respondent has not violated the standard at 29 CFR 1910.132(a). Complainant has failed to specify the particular type of protective equipment believed to be required by the standard. Also, there has been a failure to establish the necessity [*18] for such equipment based upon the "hazards of processes or environment" as provided under this regulation, in view of the facts in this case.

The standard under which Respondent has been charged is vague and ambiguous, which causes the legal enforcement thereof to be questionable, however, on the basis of the record in this case, the allegations regarding its violation cannot be sustained.

FINDINGS OF FACT

1. Arkansas-Best Freight Systems Inc., is a corporation doing business at Highway 25 N. Fletcher, North Carolina, where at all times hereinafter mentioned it was engaged in the operation of a freight terminal.

2. On January 31, 1973, an authorized representative of the Secretary conducted an inspection of Respondent's aforementioned worksite. As a result of such inspection a citation was issued on February 14, 1973, and on February 23, 1973, an amended citation was issued with notice of proposed penalty.

3. On March 1, 1973, Respondent filed a notive of contest with regard to item 4 of the amended citation, and the proposed penalty therefor, which relates to safety toe footwear.

4. Respondent's terminal operation included a freight dock area, and shop area where [*19] maintenance and servicing were performed. On January 31, 1973, approximately eight to ten employees were observed in the shop area and six to eight on the dock.

5. On January 31, 1973, no safety shoes were provided employees by the Respondent, nor were they found in use at the workplace, although there were some heavy material and parts being handled.

6. The record does not show the existence of "hazards of processes or environment" as required in order to find a violation of the standard herein.

CONCLUSIONS OF LAW

1. Arkansas-Best Freight Systems, Inc., at all times pertinent hereto, was an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970, and the Commission has jurisdiction of the parties and subject matter herein, pursuant to Section 10(c) of the Act.

2. Respondent is and at all times pertinent hereto required to comply with safety and health regulations promulgated by the Secretary pursuant to Section 6(a) of the Act.

3. Respondent was not in violation of the standard at 29 CFR 1910.132(a) as charged in the amended citation.

Upon the basis of the foregoing findings of fact [*20] and conclusions of law, and the entire record, it is ORDERED

1. That the amended citation and proposed penalty is hereby vacated.