YELLOW FREIGHT SYSTEM, INC.
OSHRC Docket No. 2658
Occupational Safety and Health Review Commission
March 20, 1975
[*1]
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: VAN NAMEE
OPINION:
VAN NAMEE, COMMISSIONER: This is another of those cases n1 wherein an operator of a freight dock has been cited for a violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq. ) in that its employees handling freight on the dock and in trucks were not wearing toe protection in alleged contravention of 29 C.F.R. 1910.132(a). The hearing judge distinguished our decision in Ryder Truck Lines, Inc., supra. n.1, saying that here there was no record of relevant work loss. He went on to say that Labor had not proven the existence of a hazard which would require the use of toe protection, and he vacated. Accordingly, he did not decide other issues raised in defense. For the reasons given hereinafter, we reject his report and affirm the citation.
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n1 The lead cases are Ryder Truck Lines, Inc., Dkt. 391, BNA 1 O.S.H.C. 1290, 1326, CCH E.S.H.G. paras. 16,451, 16,669 (Rev. Com'n., 1973), pet. den., Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230 (5th Cir., 1974 McLean Trucking Co., Dkt. 2847 (ALJ, 1973), pet. den., sub nom., McLean Trucking Co. v. OSHRC, et al., 503 F.2d 8 (4th Cir., 1974).
[*2]
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The evidence is as follows: Respondent is an interstate hauler of freight and to that end operates a truck terminal in Tulsa, Oklahoma. Freight of various sizes and shapes and weighing up to 6,000 pounds is loaded and unloaded at the terminal dock. Usually the loading and unloading is accomplished with the use of various sized hand trucks and forklifts. However, items weighting about 30-50 pounds are often hand carried and stacked to heights of about seven feet. It is undisputed that freight falls frequently from stacks located in the trucks and on the dock. It is also undisputed that employees on numerous occasions have had their toes run over by forklifts. Nevertheless, the record shows a low incidence of toe injuries and no lost work time. Respondent's employees do not use toe protection as a rule although some have provided and use such protection on their own initiative.
As said above, the hearing judge distinguished our decision in Ryder because of the lack herein of a work-loss record. In our view the difference merely establishes Respondent's good fortune to date. The [*3] conditions existing herein are precisely those which did give rise to a lost work time record in Ryder. Thus here as there employees were exposed to possible crushing injuries from freight handling equipment.
Here as there freight fell from stacks and while being hand carried thereby exposing employees to possible impact injuries. In the circumstances, we conclude the Ryder controls and that Labor has shown the existence of a hazard.
In addition to arguing that Labor failed to prove the existence of a hazard, Respondent also defended saying (1) the standard is vague and unenforceable, (2) that the only employees shown affected by the hazard are subject to regulation by the Department of Transportation (DOT) and (3) application of the cited standard to require use of toe protection in Respondent's operation will impose a burden on interstate commerce.
We have considered each of these arguments and find them to be without merit. We determined that the standard was sufficiently precise to be enforceable in Ryder, and that view has been affirmed by two circuits. n2 As to the pre-emption issue, we determined in Southern Pacific Transportation Co., Dkt. 1348, BNA 2 O.S.H.C. [*4] 1313, CCH E.S.H.G. para. 19,054 (1974), that 29 U.S.C. 653(b)(1) creates an exemption when an agency having statutory authority to regulate employee safety and health conditions exercises the authority and that the burden is on Respondent to show such exercise. Respondent herein has not shown exercise by the DOT of its presumed authority; for example, Respondent does not point to any DOT regulation covering the conditions involved herein and we have not found any such regulation. Accordingly, the defense fails for not having been established. Finally, as to the commerce issue question is more appropriately directed to Labor's rule-making authority under 29 U.S.C. 655 since it is directed to whether Respondent's industry should be subject to regulation in the first instance.
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n2 See fn. 1.
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In view of the foregoing, we find Respondent in non-serious violation of 29 C.F.R. 1910.132(a). Accordingly, the hearing judge's report is rejected; Respondent is in non-serious violation of 29 U.S.C. 654(a)(2) for having [*5] violated 29 C.F.R. 1910.132(a) and the citation therefor is affirmed. It is so ORDERED.
DISSENTBY: MORAN
DISSENT:
MORAN, CHAIRMAN, dissenting: In view of the recent decision in Cape and Vineyard Division of the New Bedford Gas and Edison Light Company v. OSAHRC, F. 2d 74-1223 (1st Cir., 1975), I would affirm Judge Risteau's disposition of this case.
The facts in this case are significantly distinct from the facts in Ryder Truck Lines, Inc., supra. Here there were two reported foot injuries both of which occurred in spite of the use of "safety shoes," the personal protective equipment believed by the Secretary to be required under the vague and nebulous standard cited herein. Furthermore, unlike Ryder, the respondent's employees were lifting materials weighing only 30-40 pounds, not "up to 100 pounds" as in Ryder. Only by a stretch of the imagination can the cited standard be said to apply equally to the situation which existed in Ryder and the situation existing in respondent's workplace cited herein.
In Cape and Vineyard, supra, wherein the personal protective equipment standard was again at issue, the court stated:
We agree with the dissenting [*6] Commissioner that the language of the standard alleged to be violated affords little if any guidance . . . . (Slip op. p. 6).
Citing Ryder Truck Lines, Inc., supra, the court said further:
A regulation without ascertainable standards, like this one, does not provide constitutionally adequate warning to an employer unless read to penalize only conduct unacceptable in light of the common understanding and experience of those working in the industry. (Slip op. p. 6) (Emphasis added.)
Hence, an employer should not be penalized for exercising the judgment of a reasonable prudent man consonant with the custom and practice of the industry when his workplace may fall within the expansive purview of the standard cited herein. Accordingly, it is not enough to say that this respondent has violated the personal protective equipment standard because he conducts a business similar to Ryder Truck Lines. The Secretary must show that an employer did not act prudently ". . . in light of the common understanding and experience of those working in the industry . . . .", Cape and Vineyard, supra, as well as show what would have been prudent, National Realty & Construction [*7] Co. v. OSAHRC, 489 F. 2d 1257 (D.C. Cir., 1973), before an employer may be found to have violated 29 C.F.R. § 1910.132(a). Such cumbersome proofs, however, further point out the difficulty of trying to enforce this vague and ambiguous standard. Accordingly, I would affirm.
[The Judge's decision referred to herein follows]
RISTEAU, JUDGE: This is a proceeding pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970 [29 USC et seq., hereafter 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 an inspection on February 28, 1973, of a workplace under the ownership, operation or control of the Respondent, located at 2319 North Harvard, Tulsa, Oklahoma, and described as a "freight dock," the Respondent 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 March 13, 1973, alleges that the violations result from a failure to comply with certain standards [*8] promulgated by the Secretary by publication in the Federal Register, and codified in 29 CFR 1903 and 1910. The description of the alleged violations contained in said Citation states:
Item Number -- Standard or regulation allegedly violated -- Description of alleged violation 2 n1 -- 29 CFR 1910.132(a) -- Protective equipment consisting of personal protective equipment for the feet was not provided and used where necessary by reason of hazard; i.e., safety shoes were not worn by drivers, holsters, and checkers having exposure to foot injury.
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n1 Item 1 was not contested.
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Regulations promulgated by the Secretary provide as follows:
Item Number -- Standard
2 -- 29 CFR 1910.132 -- (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 conditon wherever it is necessary by reason of hazards [*9] 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.
Pursuant to the enforcement procedure set forth in Section 10(a) of the Act Respondent was notified by letter dated March 13, 1973, from Robert D. Griffin for J. T. Knorpp, Director of Area 4780, Occupational Safety and Health Administration, U.S. Department of Labor, that he propose to assess no penalty for Item 2 of the Citation.
After Respondent contested this enforcement action and a Complaint had been filed, the case came on for hearing at Tulsa, Oklahoma on July 31, 1973.
DISCUSSION
The outcome here must be governed by the decisions of this Commission in Secretary v. Ryder Truck Lines, Inc., In that case it was held that the employees of another employer, also an interstate motor carrier having dock facilities, must under 29 CFR 1910.132(9) wear safety (steel-toed) shoes while engaged in loading and unloading operations. [*10]
As appears particularly in the decision on the Motion for Reconsideration, Ryder was decided on the facts, with specific reference to a history of lost work days due to foot and toe injuries extending over a period of several years. The record here is in sharp contrast to this history, for there are no reported instances of relevant work loss, and the record refers to only two occasions when steel-toed shoes may have been a factor in employee safety.
The first of these occurred when the witness Fletcher was unloading a heavy pump from a truck in 1970 or 1972. He was wearing steel toed shoes by his own preference and not because of company policy at the time, and when the load slipped it rolled over the shoe and bruised his shin. The heavy load would normally have been handled by a forklift truck, but the only forklift on the scene was not in operation. Mr. Fletcher was seen in the clinic but apparently relied on home treatment and reported for work the next day.
The other episode involved the witness Shields, who testified that his foot had been run over by a tow-motor some six or eight years previously while he was wearing safety shoes (again by preference). [*11] Mr. Shields believes that he might have been injured if he had not been wearing the shoes.
This Judge cannot find that these facts constitute in themselves substantial evidence that a hazard exists in Respondent's workplace which would be alleviated by the mandatory wearing of safety shoes. The two episodes occurred over an extended period of time while the large majority of Respondent's dock employees were working unharmed even though their feet were protected only by work shoes. Such isolated instances do not establish a pattern of actual danger such as that discernible in Ryder. n2
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n2 One of the witnesses, Mr. Wylie, dropped an article on his foot and "smashed [a toe] real bad." The injury was painful but did not interfere with work and required no treatment. This type of injury does not appear serious enough to warrant application of the cited Regulation.
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Moreover, it would appear from the record as a whole that there exist adequate explanations for Respondent's ability to operate with minimal exposure [*12] to injury on the part of its employees. Its operations are largely mechanized, with a variety of equipment geared to loads of different sizes (R. Ex. 2-17). It is only the lighter items, weighing up to thirty to forty pounds that are lifted or stacked manually and the record is devoid of evidence showing that items of this weight, falling from any of the heights (7 feet to 101 inches) discussed in the testimony, would cause significant foot injury even though safety shoes may not be worn. Thus, while it is beyond dispute that these hand-carried items sometimes fall or are dropped on the dock, it has not been shown that this constitutes a hazard of the type which the Act is designed to eliminate. The evidence in support of the Citation therefore fails in a significant respect.
In view of the above considerations, which require a finding for Respondent, no detailed reference will be made herein to its other defenses except to state that the similarity between Respondent's business and that of Ryder, as well as Respondent's failure to contest Item 1 of the Citation, n3 indicate a basis for exercise of jurisdiction under the Act in the appropriate factual situation. [*13]
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n3 See footnote 3, Secretary v. Mushroom Transportation Co., Inc.,
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FINDINGS OF FACT
1. Respondent was on February 18, 1973, engaged in commerce and transportation among the several states.
2. On February 28, 1973, Respondent operated a freight terminal at 2319 North Harvard, Tulsa, Oklahoma; 23 dock workers and city drivers were employed at that workplace.
3. On February 28, 1973, none of Respondent's dock workers and city drivers wore safety (steel-toed) shoes.
4. On February 28, 1973, Respondent's dock workers and city drivers were not exposed to hazard by reason of their failure to wear steel-toes shoes.
5. There is no evidence of any of Respondent's employees, as referred to above, losing time from work by reason of their failure to wear steel-toes shoes.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in a business affecting commerce as defined in the Occupational Safety and Health Act [*14] of 1970; as such it is subject to the provisions of the Act.
2. The fact that Respondent may be subject to regulation by the Interstate Commerce Commission in some aspects of its operations does not relieve it from the requirement that it comply with the Occupational Safety and Health Act of 1970 in the absence of any showing that Commission has taken action on the particular working conditon involved, i.e., the loading and unloading of its vehicles.
3. On February 28, 1973, Respondent was not in violation of 29 CFR 1910.132(a), a Regulation promulgated pursuant to the Occupational Safety and Health Act of 1970.
ORDER
Based on the foregoing findings of fact, conclusions of law, and the entire record, it is ORDERED that Item 2 of the Citation issued herein on March 13, 1973, be, and the same is dismissed; no penalty can be assessed. n4
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n4 Item 1 is affirmed on the basis of Respondent's failure to contest.
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