CHIEF FREIGHT LINES, INC.

OSHRC Docket No. 6483

Occupational Safety and Health Review Commission

March 8, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Ronald M. Gaswirth, Reg. Sol., USDOL

Mr. Sam Roberts, for the employer

OPINION:

DECISION

BY THE COMMISSION:

The decision of Administrative Law Judge John S. Patton of September 16, 1974, is before the full Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. [hereinafter "the Act"]. Judge Patton held that the respondent employer, Chief Freight Lines, Inc., had violated section 5(a)(2) of the Act for not complying with safety standard 29 CFR 1910.132(a). The Judge concluded that respondent had failed to require employees working on a dock in Tulsa, Oklahoma, to wear safety shoes. He assessed against respondent the $30 penalty proposed by the Secretary.

Commissioner Moran directed review on October 9, 1974, of the following issues:

(1) Is there sufficient evidence of record to substantiate the Judge's disposition that respondent violated the Act as alleged?

(2) Did the Judge rule correctly on respondent's defense that the occupational safety and health standard published as 29 C.F.R. 1910.132(a) was unenforceably vague?

(3) Did the Judge rule [*2] correctly on the Motion of respondent's safety director, Ralph Southard, to be excused as a witness?

Then on October 22, 1974, Commissioner Moran directed review on the following additional issue:

Whether 29 C.F.R. 1910.132(a) was duly promulgated by the Secretary in accordance with the Act?

The Secretary addressed the issues directed by Commissioner Moran. He asks, in essence, that the decision of Administrative Law Judge Patton be affirmed. Respondent addressed only issues numbered (1) and (2) of Commissioner Moran's October 9, 1974, order. Respondent has asserted several objections raising other issues requiring resolution. Respondent argues additionally that the citation was infirm in that the Area Director admittedly failed to consider the cost of abatement, and that section 4(b)(1) of the Act n1 removes this case from the Commission's jurisdiction. n2

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n1 Section 4(b)(1) of the Act provides in pertinent part as follows:

(b)(1) Nothing in this Act 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.

n2 In stressing its section 4(b)(1) position respondent cites as an example of safety regulations adopted by another Agency, Title 49 Code of Federal Regulations $393.93 part 2. That section requires seat belt assemblies for the drivers of trucks and their passengers.

[*3]

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Respondent also argues that one of Judge Patton's rulings on the admissibility of evidence proffered by respondent was in error. Respondent argues that a petition signed by fifty-four employees that they did not want to wear safety-toed shoes was admissible. Additionally, respondent asserts that the Judge failed to consider "testimony of vital significance to the case." Respondent asserts that the stipulated testimony of some of its employees that they thought safety shoes were colder than ordinary shoes, were heavier, cumbersome, hot and inflexible was vital. Respondent argues that the failure of the Judge to mention this testimony in his decision, should be equated with his failure to consider it.

The facts of this case, as they relate to the issues that were contested, and those raised by respondent are largely undisputed. Respondent, a motor carrier, operates a freight terminal in Tulsa, Oklahoma. As the result of an inspection of respondent's terminal, respondent was issued a citation. As amended, the citation contained seven items one of which alleged non-compliance with safety standard [*4] 29 CFR. 1910.132(a). Respondent timely contested this allegation and its attendant $30 proposed penalty.

The case was set for a hearing before Judge Patton on June 20, 1974. Three of respondent's employees gave testimony relevant to issue (1) of the October 1974 order. Mr. Ralph Southard, respondent's Safety Director testified that freight is received at the Tulsa terminal every morning. It is unloaded using forklift trucks, four wheel carts, two wheel carts, and by hand. The forklifts weigh approximately eight thousand pounds and move on rubber tires. The four and two wheel carts move on solid rubber tires. While there is no fixed rule on employees lifting freight by hand, generally items in excess of 100 pounds will be lifted and moved mechanically.

The Tulsa terminal receives and dispatches freight of every imaginable shape, size, and weight. Examples of this freight include boxes of Jello weighing approximately 20 pounds, drums weighing approximately 350 pounds, automobile parts, oil field equipment, and lengths of pipe. The freight is stacked on the loading dock following the basic rule of light objects to the top of the pile.

Close to eighty employees work on respondent's [*5] Tulsa dock. Of necessity, they work in proximity to stacked freight. In addition, individual items of freight are dropped from time to time. Within the year before the hearing date, an employee's toe was injured when a piece of pipe fell on it. A second employee received a foot injury when some freight slipped from a two wheel cart and struck his left foot. In total, Mr. Southard testified to toe and foot injuries to five employees during 1972 and 1973. Finally, Mr. Southard testified that safety-toe shoes could prevent toe injuries of the type resulting from the nature of some of respondent's activities.

Mr. Jack Churchwell, an "extra man" employed by respondent on the loading dock of the Tulsa terminal, testified to a toe injury received during 1973. Mr. Churchwell was trying to move an oil pipe with a two wheel cart when the cart slipped and fell on the toe of his left foot. As the result of this accident, Mr. Churchwell could not work for about two days. It was a month before he was capable of putting all of his weight on his left foot. He was not wearing safety-toed shoes at the time. He did testify that respondent's terminal manager told him after the accident that [*6] he was supposed to wear safety shoes. Finally, Mr. Churchwell testified that most employees of respondent wear cowboy or hunting-type boots or regular shoes without safety toes and that, but for the post-accident statement of respondent's terminal manager, no one had ever told him that he must wear safety-toed shoes.

Respondent's witness, Claude Remington, a union steward testified that he had received a toe injury some ten or eleven years ago. When asked on cross-examination about the probability of a toe injury during the course of twenty years of employment as a freight handler, he testified as follows:

Well, . . ., if they're working they're going to get hurt sometime or another and you're going to mash a toe or it might not be a toe, it might be a finger; but evidently if you're doing anything you're going to get hurt.

DISCUSSION

We have reviewed the decision of Administrative Law Judge Patton in light of the issues argued by the parties. We consider respondent's failure to brief certain of the issues raised sua sponte by Commissioner Moran and the Secretary's support of the Judge's decision as an indication that the parties are satisfied with those parts of [*7] the Judge's decision. With respect to the litigated issues we conclude that the Judge's decision is without prejudicial error.

The record contains overwhelming evidence that respondent failed to require the use of toe protection by its dock workers and freight handlers. n3 Indeed, the evidence respondent alleges that the Judge failed to consider clearly establishes the ultimate fact of this case. n4 In addition to the ample evidence described above, it should be noted that respondent's answer admits that its dock workers and freight handlers were not required to wear toe protection. Moreover, both the union steward called by respondent and the employee called by the Secretary, testified to receiving injuries of the type designed to be protected against by the standard.

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n3 In addition to requiring its employees to use toe protection, Commissioner Cleary would read the language of the standard to require respondent to make such protection reasonably available at the workplace.

n4 We note that the matters raised in respondent's employees' petition and in the stipulated testimony are more properly addressed to a rulemaking procedure under section 6(b) of the Act.

[*8]

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With respect to the question of the vagueness of safety standard 29 CFR 1910.132(a) we need only note that respondent's position has been rejected by this Commission as well as by the two Courts of Appeals that have ruled on the issue. n5 Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230 (5th Cir. 1974); McLean Trucking Co. v. O.S.H.R.C., 503 F.2d 8 (4th Cir. 1974). Cf., Clarkson Construction Co. v. O.S.H.R.C. & Secretary of Labor, No. 75-1070 (10th Cir., January 21, 1976).

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n5 Commissioner Cleary, for the reasons set forth in Noblecraft Industries, Inc., No. 3367, BNA 3 OSHC 1727, CCH E.S.H.G. para. 20,168 (November 21, 1975) and U.S. Steel, Nos. 2975 & 4349, BNA 2 OSHC 1343, CCH E.S.H.G. para. 19,047 (November 14, 1974) (concurring opinion), would not reach the issue of the vagueness of the standard.

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Respondent's position that a citation must be infirm because the Area Director admittedly refused to consider the [*9] cost of abatement in determining whether a violation of the Act existed lacks merit. We have reviewed the record in light of respondent's position. We conclude that respondent's position is frivolous. Respondent's costs have not been shown on this record to bar prompt and practical abatement.

We turn to respondent's section 4(b)(1) of the Act argument. Respondent asserts that the Department of Transportation has issued safety regulations applicable to drivers for Motor Common Carriers engaged in interstate commerce. Respondent further asserts that inasmuch as all of its dock workers may and do, at one time or another, drive respondent's trucks, they must be covered at all times by Department of Transportation regulations. Respondent concludes that such coverage precludes, pursuant to section 4(b)(1) of the Act, jurisdiction in the Department of Labor to regulate employee safety on its dock.

The argument is resourceful, but unconvincing. The record is devoid of evidence that the Department of Transportation has issued regulations relating to the working conditions on respondent's dock. In Mushroom Transportation Co., Inc., No. 1588, 5 OSAHRC 64, BNA 1 OSHC 1390, CCH E.S.H.G. [*10] para. 16,881 (1975) we held that:

Once another Federal agency exercises its authority over specific working conditions, OSHA cannot enforce its own regulations covering the same conditions. Section 4(b)(1) does not require that another agency exercise its authority in the same manner or in an equally stringent manner (emphasis added).

In the absence of such regulation by the Department of Transportation, respondent's section 4(b)(1) argument must fail.

Accordingly, it is ORDERED that the decision of Administrative Law Judge John S. Patton is affirmed.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

The citation in this case should be vacated for two reasons. First, the motor carrier industry, of which respondent is a part, is excluded from the jurisdiction of the Occupational Safety and Health Act of 1970 by virtue of 29 U.S.C. 653(b)(1). Secondly, the occupational safety and health standard codified at 29 C.F.R. 1910.132(a) was invalidly promulgated.

An exemption for an entire industry is created by 29 U.S.C. 653(b)(1) when another Federal agency, pursuant to statutory authority, prescribes or enforces any standard or regulation which affects occupational safety or health [*11] in that industry. The reasons for this conclusion are set out in my separate opinion in Secretary v. Belt Railway Company of Chicago, 20 OSAHRC 568 (1975).

It is clear that the Department of Transportation has the statutory authority to establish regulations for the safety of employees working in the motor carrier industry, including the facilities connected therewith. 49 U.S.C. 302(a), 303(a)(19), and 304(a). It is also clear that the Department of Transportation has prescribed several such regulations. See e.g., 49 C.F.R. 392.20, 393.84, and 393.100. Therefore, that industry is not subject to the jurisdiction of the Occupational Safety and Health Act of 1970.

The standard here in issue, 29 C.F.R. 1910.132(a), was promulgated as an occupational safety and health standard under 29 U.S.C. 655(a) which gave the Secretary of Labor authority to adopt "any established Federal standard" as an interim occupational safety and health standard for a period of two years from the effective date of the Act. These interim standards could be adopted without public scrutiny and without observing the procedural safeguards afforded by the Administrative Procedure Act, [*12] 5 U.S.C. 553.

The original source of 29 C.F.R. 1910.132(a) is identified as 41 C.F.R. 50-204.7 at 29 C.F.R. 1910.139. Following compliance with the rulemaking procedures required by the Aministrative Procedure Act, the source standard was initially promulgated at 34 Fed. Reg. 7948 (1969) under the Walsh-Healey Public Contracts Act, 41 U.S.C. 35 et seq. As so promulgated, it provided in pertinent part 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 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 function of any part of the body through absorption, inhalation or physical contact." (Emphasis added.)

Subsequently, this standard was amended by adding the word "used" after the word "provided" in the above-emphasized phrase. 35 Fed. Reg. 1015 (1970). This amendment was preceded by the following explanation: [*13]

"Typographical or clerical corrections and other minor changes are made in Part 50-204 of Title 41, Code of Federal Regulations (as revised on May 20, 1969, 34 F.R. 7946-7954) in the manner indicated below. To the extent that substantive rules may be made in 50-204.7 and 50-204.10, notice and public procedure is found unnecessary because only minor amendments are involved."

The amended version was what was subsequently adopted as an occupational safety and health standard codified at 29 C.F.R. 1910.132(a).

The addition of the word "used" in 41 C.F.R. 50-204.7 constituted more than a minor amendment as it created an entirely new requirement with which employers must comply. In effect, a new standard is established by the amendment. Therefore, the amendment constituted a significant substantive change. Prior to the promulgation of such a change, interested persons are entitled to notice thereof and a hearing thereon. 5 U.S.C. 553(b) and (c). Failure to so provide rendered the standard invalid.

Congress has defined the term "established Federal standard" to mean:

"any operative occupational safety and health standard established by an agency of the United States [*14] and presently in effect . . . ." (Emphasis added.)

29 U.S.C. 652(10). The amended version of 41 C.F.R. 50-204.7 was neither "operative" nor "in effect" at the time of its adoption by the Secretary of Labor because it had not been properly promulgated. The fact that Congress intended that only validly promulgated standards could be adopted under 29 U.S.C. 655(a) is further supported by the Act's legislative history which refers to established Federal standards as those standards "which have already been subjected to procedural scrutiny mandated by . . . law." n6

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n6 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 146 (Comm. Print 1971).

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If the Secretary of Labor desires to enforce 29 U.S.C. 1910.132(a) in its present form, he must provide notice of that fact to the public, and allow them to submit written objections thereto and to participate in a public hearing thereon. 5 U.S.C. 553; 29 U.S.C. [*15] 655(b). Since those procedures have not been followed, 29 C.F.R. 1910.132(a) is invalid in its present form because of improper promulgation. See Florida Peach Growers Association, Inc. v. United States Department of Labor, 489 F.2d 120 (5th Cir. 1974); Secretary v. Oberhelman-Ritter Foundry, Inc., 3 OSAHRC 1212 (1973).

Since this decision does not deal with all matters covered in Judge Patton's decision, the same is attached hereto as Appendix A.

APPENDIX A

DECISION AND ORDER

This case is before the undersigned Judge on the complaint of the Secretary of Labor, United States Department of Labor, hereinafter referred to as complainant, versus The Chief Freight Lines, Inc., hereinafter referred to as respondent, alleging that respondent has violated section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq.) hereinafter referred to as the Act and Occupational Safety and Health standard 29 CFR 1910.132(a) by failing to require its employees to wear safety shoes. Hearing was held before the undersigned Judge in Tulsa Oklahoma, on June 20, 1974. Mr. Alan L. Prince appeared as attorney for the complainant and Mr. Sam Roberts [*16] of the Law Firm of Church and Roberts, appeared as attorney for respondent. There was no motion to intervene.

LAW AND ISSUES OF THE CASE

It is the position of the respondent that the Department of Transportation has been given jurisdiction of enforcement of safety for motor carriers including respondent and that the respondent, therefore, is not governed by the Occupational Safety and Health Act. The first issue for determination therefore is whether the Occupational Safety and Health Review Commission has jurisdiction of this case.

It is further the contention of the respondent that standard 29 CFR 1910.132(a) is too vague in its language to inform respondent of what is required under said standard and that therefore said standard constitutes an invalid standard.

It is the position of the respondent that the respondent's employees were not subjected to any substantial possibility of injury by the failure to wear safety shoes and that therefore safety shoes were not required.

Standard 29 CFR 1910.132(a) reads as follows:

1910.132 General requirements.

"(a) Application. Protective equipment, including personal protective equipment for eyes, face, head, and extremities, [*17] 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 Occupational Safety and Health Act provides as follows:

"Nothing in this chapter shall apply to working conditions of employees with respect to which other Federal agencies and State agencies acting under section 2021, Title 42, exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health." 29 U.S.C. 653(b)(1).

EVIDENCE IN THE CASE

The answer of the respondent admitted that respondent is a corporation having its principal place of business in Tulsa, Oklahoma, where it is engaged in the business of being a motor freight carrier and that it is and at all times relevant to this cause was an employer engaged in a business affecting commerce who has employees within the meaning [*18] of section 3(5) of the Act. Mr. Ralph Southard who has been safety director for the company for a number of years and has been employed by the respondent for 20 years (TR 34) and also is in charge of personnel and labor relations matters (TR 44) stated that respondent is a motor carrier having an operation stock which is typical of stocks in the motor carrier industry. He stated that freight comes in every morning and is unloaded. Employees use four wheel carts and forklifts and the freight is loaded into pick-up trucks to be delivered around town (TR 34). He stated that freight is constantly transferred across the docks for shipment by airlines who pick up the freight. He stated that pick-up trucks pick up freight all over the city and bring it into the terminal, unloading it and reloading it on same trucks. He stated that trailers are also loaded and at times a trailer is loaded at the shipper's dock (TR 45). He stated that some of the freight is handled by respondent's own employees and it is also handled by Cartage Company coming to respondent's terminal (TR 45). If the freight is heavy a forklift will be used to load it from the dock to the truck (TR 46). He stated the [*19] forklifts weighed about 8,000 pounds each and are rubber tired vehciles. The respondent also uses four wheel carts which have wheels of hard rubber (TR 46, 47). The employees load small carts with their hands without the necessity of equipment. The only restriction to employees on lifting by hand is that employees get help if they need it (TR 48, 49). They are instructed to lift using their legs and keeping their backs straight (TR 50). The kinds of freight they may have are candy, drugs, oil field equipment, clothing, automobile parts, engine blocks, transmissions, rear end axels, etc. (TR 50). Jello, candy, some automobile parts, as well as oil field equipment come in cartons. The cartons are made of cardboard (TR 51). The company uses drum wheelers to handle drums. He stated that five gallon drums are the largest (TR 51). The drums weigh about 350 pounds. At times an employee will have to tilt or maneuver them by hand (TR 52). It is rare that an accident will happen from a broken carton, but it happens (TR 54). It has happened only once in the last few years (TR 55). He stated that it is possible for there to be toe or foot hazards for inexperienced employees such [*20] as college students who work there during the summer (TR 60, 61). He stated, however, they have not hired college students in Tulsa in the last few years and they have no inexperienced employees at the present time (TR 61). He has seen numerous broken cartons come off the trialer. Some cartons fall when the trailer doors open. The cartons may also fall from stacks which creates a hazard at times (TR 61, 62). They try to pack the lightest freight on top such as cartons of jello which weigh about 20 pounds (TR 62). He stated that he was not testifying that experienced people do not have injuries. Injuries will occur from other employees handling. A pipe has been dropped injuring an employee (TR 64). It is also possible for a man to load a two wheeler too high and a carton to fall off. He stated that they would not consider it unreasonable for a man to carry 100 pounds which he felt would be approximately the maximum that could be carried without using equipment (TR 91, 92). They avoided stacking things too high on the dock (TR 96). The company employed in excess of 70 employees on the dock plus a foreman. These included loaders, checkers of freight, forklift operators, [*21] truck drivers and hostlers. He stated that the employees from time to time performed each of the various duties. The hostlers hook up tractors to trailers and back them up to the dock and to trucks and when they are not there they work on the dock (TR 97, 98). All of these employees come into proximity of stacked freight which might fall (TR 98). All of the men both drive and work on the dock (TR 175, 176). None of the employees wear safety shoes (TR 95, 96). It was conceded that safety shoes having metal in the toes to protect the toes do prevent injuries to toes (TR 93, 94). Safety shoes are easy to acquire and cost about $20 (TR 97).

Evidence as to prior foot injuries was testified to by Mr. Southard as well as several of the employees. Mr. Southard stated there had been five toe injuries during part of 1972 and part of 1973 (TR 74). The testimony of both Mr. Southard and Mr. Jack Churchwell was to the effect that Mr. Churchwell suffered a fracture of the first joint of the great toe of the left foot when freight slipped off a two wheeler and struck his left foot (TR 77, 78, 111, 112). Mr. Churchwell stated that it occurred when he was trying to get under something to [*22] hook up an oil pipe. He tried to get underneath it with a two wheeler, the two wheeler slipped and came down on his left toe (TR 111). He was not able to put all of his weight on his left foot for approximately a month after the accident and he had a badly swollen foot. His ability was reduced to 70 to 80 per cent of normal (TR 112, 113, 114, 115). He stated that Mr. Ayers the terminal manager told him he could not wear tennis shoes and that "you know are supposed to have safety toed shoes on anyway" (TR 116). He stated no one had previously told him he was to wear safety shoes (TR 116). He stated some people wear them but he did not know how many (TR 116, 117). After the accident he secured a safety toed device for the injured foot but not for the other one (TR 118, 119). Mr. Southard also testified that there had been an injury to Mr. Larry Ailshie who suffered a cracked bone and toe when a shaft fell out of a crate. He was away from work for two days (TR 76, 77). Mr. Southard stated that toe injuries have occurred when employees were jumping on and off the dock (TR 66). There was one toe injury from a dropped pipe the previous year (TR 69). He stated that prior to getting [*23] present equipment they had a number of toe injuries (TR 69). A man had a bruised foot and was off one day (TR 71). There were about five accident reports a year of something falling in proximity of the toes (TR 88, 89). There was an injury to Mr. Normal L. McClaine when he was unloading a trailer. His foot slipped and some steel bruised his left foot (TR 90).

Mr. Claude Remington, Union Steward for the respondent, who is also a truck driver stated that he had tried safety shoes but did not wear them. He stated that the steel became cold in the winter and his foot could freeze (TR 171, 172). He described the dock as a cold place to work (TR 172). He stated he had been in the trucking industry for 21 years; that he had two pair of safety shoes and never wore either one of them enough to wear them out (TR 172). He stated all other freight handlers do not wear them; that in addition to being cold they are heavy (TR 175). Mr. James Knorpp, Area Director for the respondent, stated he has a bachelor of science degree and an industrial engineering degree from Texas Tech University. He has been employed as a safety engineer at a number of locations. He stated that a safety shoe [*24] is required to meet the American National Standards Institute standard for safety toed shoe wear; that they are supposed to protect without dangering the feet of people working in the terminals. It is a reasonably substantial hard material shoe or boot that has a good upper on it or a good portion above the sole, a heavy portion that has a substantial sole on it. Over the toes there is a steel cap or protector. He stated that in his opinion nearly all hazards would be minimized by the use of safety shoes. He felt that the only hazard remaining would be hazards that would be primarily to the whole foot when there would be a crushing action (TR 137, 138). He stated that the unadjusted penalty was $100 and the adjusted penalty was $30 in the proposal made by the complainant (TR 138).

EVALUATION OF THE EVIDENCE

The first question for determination is whether the respondent is governed by the Occupational Safety and Health Act. The Occupational Safety and Health Act provides as follows:

"Nothing in this chapter shall apply to working conditions of employees with respect to which other Federal agencies and State agencies acting under section 2021 of Title 42 exercise statutory [*25] authority to prescribe or enforce standards or regulations affecting occupational safety or health." 29 U.S.C. 653(b)(1).

The Interstate Commerce Commission is given the following powers by Title 49 U.S.C. 304(a)(1):

Section 304. Powers and duties of Commission. Powers and duties generally.

(a) It shall be the duty of the Commission . . . (1) to regulate common carriers by motor vehicle as provided in this chapter and to that end the Commission may establish reasonable requirements with respect to continuous and adequate service, transportation of baggage and express, uniform systems of accounts, records and reports, preservation of records, qualification and maximum hours of service of employees and safety of operations and equipment." Emphasis supplied.

Certain of the powers of the Interstate Commerce Commission are transferred to the Department of Transportation by Title 49, U.S. Code 1655(e)(6)(a), (b) and (c), which states in part:

"Interstate Commerce Commission functions, powers and duties relating to safety appliances and equipment on railroad engines and cars, protection of employees and travelers, hours of service, medals for heroism, explosives and other [*26] dangerous articles, standard time zones and daylight saving time, safety of operation and equipment. (e) There are hereby transferred to and vested in the Secretary all functions, powers and duties of the Interstate Commerce Commission and of the Chairman, members, and offices thereof under . . . (6) The following provisions of Interstate Commerce Act as amended (A) relating generally to safety appliances methods and systems: section 25(49 U.S.C. 26). (B) Relating generally to investigation of motor vehicles sizes, weights and services of employees: Section 226 (49 U.S.C. 329). (C) Relating generally to qualifications and maximum hours of service of employees and safety of operation of equipment: Section 204(a)(1)(2) to the extent that they relate to qualifications and maximum hours of service of employees and safety of operation and equipment; and Sections 204(a)(3) and (5) (49 U.S.C. 304)."

The respondent does not contend that the Department of Transportation had implemented this authority by establishing standards or rules governing persons working on the docks of motor carriers at the time of the alleged violation in this case. The respondent cites in Appendix to its brief [*27] that in Volume 39 of the Federal Register, page 17863, published May 21, 1974, the Department of Transportation proposes rules governing safety of drivers. The issue for determination as to jurisdiction is whether a power given to an agency other than the Occupational Safety and Health Administration but not exercised by said agency divests the Occupational Safety and Health Administration of jurisdiction to pass standards affecting said industry. As above stated no regulation in effect at the time of the occurrence of the alleged violations is cited. In the opinion of this Judge, the printing in the Federal Register of proposed new rules governing safety of drivers does not substitute for a rule actually in effect on the date the violation is alleged to have occurred. No new rule could be given an ex post facto effect. No rules subsequently adopted by the Department of Transportation could have placed any duties on the respondent on the date alleged in the complaint. If the Occupational Safety and Health Act is not applicable as of said date there is no law governing safety as to the motor carrier's employees as of said date. The new rules of the Department of Transportation [*28] proposed in the Federal Register relate to drivers. The fact that dock hands working for the respondent at times drove and would be covered by regulations of the Department of Transportation as to drivers when driving still would leave them unprotected by safety rules when working on the docks.

The issue, therefore, remains of whether Congress by conferring upon the Department of Transportation the authority to enact rules relating to safety of persons in the motor carrier industry divested the Occupational Safety and Health Administration from power to enact such rules even though the Department of Transportation did not implement its power by exercising it. There have been several cases before the Occupational Safety and Health Review Commission relating to this issue. In the case of Secretary of Labor v. Ruan Transport Corporation, Docket No. 1873, 1 OSHC 3009, Judge Alan Weinman, it was alleged that the respondent had failed to report a fatal accident. The Department of Transportation 49 CFR 394.7 had issued a rule requiring reporting of accidents. The accident resulted to a driver. Said case is distinguishable from the case at bar because there was in existence [*29] a regulation of the Department of Transportation covering the particular type of conduct which was the subject of the Department of Labor's complaint. In said case Judge Weinman said:

"Our conclusion that section 4(b)(1) of the Act applies to the instant fact situation to divest the Secretary of Labor of jurisdiction to require reporting of the accident is not intended as recognition of any industrywide exemption of all activities of interstate motor carriers from the operation of the Act. One can easily conceive of non-driver employees performing work under conditions which might be the subject of OSHA regulations but such is not our case."

The issue again recurred in the case of Secretary of Labor v. Southern Terminal & Transport Company, OSHRC 1979, 1 OSHC 3206, which case was decided by Judge J. Marker Dern. Said case related to the issue of whether employees working on repairing a boat in dock were covered by the Coast Guard. Judge Dern held that regulations of the Coast Guard only covered the personnel of the boat itself and not persons working on the boat. Judge Dern said:

"Failure of the Secretary of Labor to issue regulations applicable to such employees would [*30] leave them without the declared purpose enunciated by the Congress in the Occupational Safety and Health Act to assure so far as possible every working man and woman in the nation safe and healthful working conditions."

He further stated:

"Therefore, assuming the Coast Guard had promulgated safety regulations such regulations would preempt the Secretary of Labor's jurisdiction of the subject matter of this case. The failure to exercise authority or to take affirmative action within its regulations would not permit the Secretary of Labor to assume jurisdiction."

Of course, in the case at bar it is not shown that there were any regulations issued by the Department of Transportation and we are not faced with a question of whether the Department of Transportation failed to proceed against respondent under a regulation but rather whether there was any regulation in the first instance. A case more on point to the case at bar is the case of Secretary of Labor v. Lee Way Motor Freight, OSHRC 2696, 1 OSHC 3197. It was alleged in said case that the respondent violated standard 29 CFR 1910.151(b) in that respondent failed to have anyone present at its workplace who was adequately [*31] trained in First Aid although no clinic was located in near proximity to the workplace. The defense was raised that the Department of Transportation had jurisdiction. The respondent alleged that the Department of Transportation had issued some regulations in the safety field but did not offer any evidence nor contend that said department had issued regulations covering the particular working conditions at issue in said case. Judge Burchmore in the decision in this case said:

"Moreover section 4 expressly exempts only working conditions with respect to which other agencies 'exercise' authority, that Congress intended to embrace dormant, unexercised authority it could have said so; it is of controling importance that it did not. Accordingly, since there is no evidence that the Department of Transportation or any other agency has in fact exercised authority over the working conditions at issue here, the respondent's motion was denied at the hearing and that ruling is hereby affirmed."

The respondent in its brief, however, maintained that these decisions of the Judges of the Occupational Safety and Health Review Commission run counter to several decisions of the Supreme Court of [*32] the United States. The respondent cites Southland Gasoline Company v. Bayley, 319 U.S. 44, 63 S. Ct. 917, where it was held under section 13(b)(1) of the Fair Labor Standards Act that the Interstate Commerce Commission's mere possession of the power to act, whether exercised or not, necessarily excluded all employees with respect to whom the power existed from the benefits of the Fair Labor Standards Act. To the same effect the respondent cited the cases of Morris v. McComb, 332 U.S. 422 and Levinson v. Spector Motor Service, 330, U.S. 649. It must be noted, however, that there is an important distinction in the provisions of the Fair Labor Standards Act and the provisions of the Occupational Safety and Health Act. Title 29 section 213(b)(1) of the United States Code which is a part of the Fair Labor Standards Act provides as follows:

"The provisions of section 207 of this Title shall not apply with respect to (1) any employee with respect to whom the Interstate Commerce Commission has power to establish qualifications and maximum hours of service pursuant to the provisions of section 304 of Title 49." Emphasis supplied.

Said decisions of the United [*33] States Supreme Court are based upon said section 213(b)(1) of Title 29, U.S.C.A. In the case of Southland Gasoline Company, supra, the court said:

"These cases turn upon the interpretation to be given the exemption that section 13(d)(1) of the Fair Labor Standards Act of employees 'with respect to whom the Interstate Commerce Commission has power to establish qualifications and maximum hours of service pursuant to the provisions of section 204 of the Motor Carrier Act of 1935.'"

In each of said cases the Supreme Court of the United States held that the mere granting of the power was adequate to divest the Department of Labor of jurisdiction. It will be noted however, that said statute provides "with respect to whom the Interstate Commerce Commission has power to establish." The Occupational Safety and Health Act, however, does not provide an exclusion if the other agency has power to act but provides that the Occupational Safety and Health Act shall not apply where another agency "exercise statutory authority to prescribe or enforce." Emphasis supplied. The one statute provides exclusion of jurisdiction if another agency has the power and the other statute provides [*34] exclusion of jurisdiction if the other agency exercises the power. Said word "exercise" in the Occupational Safety and Health Act is the basis upon which Judge Burchmore found jurisdiction of the Department of Labor in the case of Lee Way Motor Freight Company, supra. This difference in language in the statute must be for a purpose and it would seem the logical conclusion is that the use of the word "exercise" by Congress in the Occupational Safety and Health Act evidences an intent by Congress that the Department of Labor should retain jurisdiction to issue standards unless another agency having the power to issue standards has actually exercised that power. The defense of lack of jurisdiction because of alleged jurisdiction of the Department of Transportation therefore cannot be sustained.

The question then arises as to whether a valid standard of the Occupational Safety and Health Administration has been violated. The respondent takes the position that standard 29 CFR 1910.132(a) does not specify the exact type of clothing which must be worn and is too general to put a respondent on notice of what is required of a respondent. It is further the position of respondent [*35] that the facts establish that toe accidents are so seldom and so minor as to not be within the contemplation of the Secretary of Labor in enacting said standard and are too seldom and minor to put respondent on notice that safety shoes should be provided. Standard 29 CFR 1910.132(a) 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."

Said defenses of respondent are ably and convincingly argued in its brief. This contention of the respondent, however, has been determined adversely to the respondent's position both by the Occupational Safety and Health Review Commission and the United States Court of Appeals for the Fifth Circuit in the case of Ryder Truck Lines, Inc. v. [*36] Secretary of Labor, CA 73-3341. In said case the complaint alleged that the respondent, an interstate motor carrier, had violated standard 29 CFR 1910.132(a) by failing to require its employees to wear safety shoes. The court stated:

"Ryder was aware that many of its dock workers did not wear protective work shoes, but wore whatever their fancies dictated; the medical records of Ryder disclosed that there had been at least 10 reported foot and toe injuries to dock workers in the five year period preceeding the citation. . . . The legislative history of the statute reveals that its declared purpose is 'to assure so far as possible every working man and woman in the nation safe and healthful working conditions, 29 U.S.C. 651(b). It is noteworthy that the Act does not establish as a sine qua non any specific number of accidents or any injury rate. Hence, Ryder's reliance on 'only 10 injuries in five years' is misplaced. Moreover, the Act specifically encompasses nonserious violations, i.e., violations which do not create a substantial probability of serious physical harm. 29 U.S.C. 666(g)(j). Avoidance of minor injuries as well as major ones was intended to be within [*37] the purview of this liberal Act. . . . Ryder also claims that 29 CFR 1910.132(a) is constitutionally void for vagueness because it sets up no ascertainable standard of conduct consonant with due process of law. Although the regulation may not be a model of perfect precision, we do not believe that its imprecision renders it constitutionally infirm.

"In considering the claimed vagueness of the regulation we are mindful of two critical factors: first, this regulation involves remedial civil legislation in contra distinction to criminal legislation; secondly the rights guaranteed by the first amendment are not remotely related to this case. Hence we must consider the statute 'not only in terms of the statute on its face but also in light of the conduct to which it is applied.' The regulation appears to have been drafted with as much exactitude as possible in light of the myrial conceivable situations which could arise and which would be capable of causing injuries. Moreover, we think inherent in that standard is an external and objective test, mainly whether or not a reasonable person would recognize the hazard of foot injuries to dock men in a somewhat confined space from falling [*38] freight and the rapid movement of heavy mechanical and motorized equipment which would warrant protective footwear. So long as the mandate affords a reasonable warping of the prescribed conduct in light of common understanding and practices it will pass constitutional muster. In addition, the Commission when considering the case did apply the 'reasonable man' test, although that standard is one of the most nebulously defined concepts of the law it has been and in all probability will remain one of the rudimentary precepts of our law. We find unconvincing Ryder's argument that it did not and could not know what was required for the Act in light of the history of foot and toe injuries compiled in this log and the safety shoe program it had initiatated sua sponte."

In the case at bar it is shown that the respondent had between three and five foot injuries in the two years preceeding the date of hearing. It will be noted that in the Ryder case the respondent had ten foot injuries in a period of five years. It would, therefore, appear that the injuries per year were approximately the same for respondent in this case and for Ryder Truck Company. In the case at bar, employees [*39] handled without equipment, weights as high as 100 pounds. The employees handled cartons which occasionally broke, the cartons might be four feet by four feet in size. The only restriction on lifting by the respondent was that the employee get help if he needed it. Heavy objects were lifted by equipment such as engine blocks, transmission, rear end axles, etc. The employees at times had to tilt drums weighing up to 350 pounds, cartons would at times fall when a trailer door was opened and cartons would at times fall when stacked. It certainly would appear from the above that there is a possibility of injury to an employee's toes and it was conceded that safety shoes were of some assistance in preventing injury. The facts of this case are remarkably analogous to the facts of the Ryder case and the issue both as to definitness of the standard and the extent of the hazard has been passed upon not only by the Review Commission but also by the United States Court of Appeals for the Fifth Circuit. The allegations of the complaint therefore have been sustained.

The accidents to toes have been extremely rare and of a relatively minor nature. No sizable penalty, therefore, would [*40] be justified. The proposed penalty of only $30, however, appears to this Judge to take into consideration these factors. It would therefore appear that the penalty should be sustained.

FINDINGS OF FACT

1. Respondent is a corporation having a place of business in Tulsa, Oklahoma, where it is engaged in the business of motor freight carrier and at all times relevant to this case was engaged in a business affecting interstate commerce.

2. Respondent, on or about November 16, 1973, was not requiring its employees working on its dock to wear safety shoes.

3. Respondent had over 70 employees who at some times worked on its dock and lifted many heavy articles which could have fallen upon the employees' feet.

4. Heavy articles did at times fall from stacks and fall out of broken cartons as they were taken from trailers.

5. The respondent had between three and five injuries to toes of its employees during the two years immediately preceeding the hearing.

6. The Department of Transportation had not at the time of the alleged violations issued any regulations governing safety to dock workers working for motor carriers.

7. The Department of Transportation on May 21, 1974, [*41] issued proposed rules in Vol. 19, page 17863 of the Federal Register.

CONCLUSIONS OF LAW

1. Respondent is engaged in a business affecting interstate commerce and, therefore, was within the jurisdiction of the Occupational Safety and Health Act.

2. The Department of Transportation has been given authority to issue regulations relating to safety of employees of motor carriers.

3. The proposed rules of the Department of Transportation published in the Federal Register on May 21, 1974, cannot be given an ex post facto application and did not exclude the Occupational Safety and Health Administration from jurisdiction on or about November 16, 1973, the date of the alleged violations.

4. The Occupational Safety and Health Administration is excluded from jurisdiction only if another agency has exercised its power to issue regulations governing employees and the Occupational Safety and Health Administration is not excluded from jurisdiction by the mere conferring of power upon another agency which power is not exercised by said other agency.

5. The respondent was not on the date of the alleged violations of this cause, excluded from jurisdiction of the Occupational Safety and [*42] Health Act by jurisdiction conferred upon the Department of Transportation.

6. Standard 29 CFR 1910.132(a) is not too vague to be a valid standard and, therefore, is a valid and enforceable standard.

7. Respondent on or about November 16, 1973, was by failure to require its employees working on its dock at Tulsa, Oklahoma, to wear safety shoes, in violation of section 5(a)(2) of the Act and standard 29 CFR 1910.132(a).

ORDER

It is therefore Ordered that:

Respondent is hereby found to have been on or about November 16, 1973, in violation of section 5(a)(2) of the Act and standard 29 CFR 1910.132(a). A penalty in the amount of $30 is assessed for said violation. The abatement date of February 15, 1974, is affirmed.

Dated this 16th day of September, 1974.

JOHN S. PATTON, Judge, OSHRC