UNITED PARCEL SERVICE OF OHIO, INC

OSHRC Docket No. 76-3621

Occupational Safety and Health Review Commission

August 24, 1979

[*1]

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

T. A. Housh, Jr., Regional Solicitor, U.S. Department of Labor

David W. Welch, for the employer

OPINIONBY: BARNAKO

OPINION:

ORDER

BARNAKO, Commissioner:

This case is before the Commission on remand from the United States Court of Appeals for the Eighth Circuit. United Parcel Service of Ohio, Inc. v. OSHRC, 570 F.2d 806 (8th Cir. 1978). Administrative Law Judge Paul E. Dixon had affirmed the Secretary of Labor's citation alleging a violation of the standard at 29 C.F.R. 1910.132(a) in that United Parcel Service (UPS) employees working as unloaders and sorters at UPS's Bridgeton, Missouri facility were not protected by safety shoes in areas where they were exposed to foot injuries from falling packages. The judge concluded that all such employees must be required to wear steel-toed shoes. He relied on precedent, including a prior case involving another UPS package-handling facility, wherein the Commission held that 1910.132(a) requires the use of safety-toed shoes or their equivalent in the same or similiar circumstances as presented here, E.g., United Parcel Service, Inc., [*2] 76 OSAHRC 74/D2, 4 BNA OSHC 1421, 1976-77 CCH OSHD para. 20,847 (No. 6344, 1976), aff'd, No. 76-2030 (6th Cir. May 5, 1978); Cotter and Co., 77 OSAHRC 191/D6, 5 BNA OSHC 2046, 1977-78 CCH OSHD para. 22,295 (No. 76-3857, 1977), petition for review filed, No. 77-3312 (5th Cir. Nov. 21, 1977). After Judge Dixon's decision became final without Commission review, UPS petitioned for review in the Eight Circuit.

The court vacated the Commission's order, concluding that in view of the size of UPS's business, the small size of the vast majority of parcels handled, the extremely low incidence of injuries resulting from falling parcels, and the high turnover rate among the affected employees, it was unreasonable and an abuse of discretion to require that all the unloaders and sorters be equipped with steel-toed safety shoes. Although the court concluded that UPS did violate the standard, it remanded to us to give consideration to less rigorous abatement requirements. The court directed us to consider whether the employees should be required to wear substantial work shoes other than steel-toed shoes or whether only some employees should wear steel-toed shoes. To the extent that our decision [*3] on remand would require some UPS employees to wear safety-toed shoes, the court directed us to specify the kinds that would be appropriate, considering the substantial variations in price, design, and style of such footwear. We are also required to consider whether our abatement order should be directed at the occurrence of the hazard of falling parcels rather than protection of employees from the hazard.

In view of the fact that the parties did not focus on all of these issues at the initial hearing before Judge Dixon, we think it appropriate to afford them an opportunity to address the issues raised by the court and to present additional evidence if they so desire. We therefore remand the case to the judge, who shall afford the parties an opportunity for a further hearing on the question of an appropriate abatement order. We note that the court's order precludes the Commission from entering the same order on remand as it did initially, that is, an order requiring that all of UPS's unloaders and sorters wear safety-toed shoes. Accordingly, the parties and the Judge should focus on the less rigorous alternatives mentioned by the court.

The case is remanded for further proceedings [*4] consistent with this decision. n1

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n1 We take note that the court stated that some of the affected employees are represented by a "strong union [Teamsters Local 688] that is well able to bargain on [their behalf]." 570 F.2d at 811. Because of the complex and varied issues in light of the court's decision which the judge must consider in fashioning an abatement order, we instruct the judge to afford the Teamsters Union an opportunity to participate as a party pursuant to Commission Rule of Procedure 20, 29 C.F.R. 2200.20.

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CONCURBY: COTTINE

CONCUR:

COTTINE, Commissioner, concurring:

I concur with the Commission order issued in this case.

The Commission correctly notes that the decision of the United States Court of Appeals for the Eighth Circuit precludes the administrative law judge from entering an abatement order identical with the one entered initially. 570 F.2d at 812-813. With this single exception, the Commission retains the full authority to direct all appropriate relief necessary to accomplish abatement of the underlying [*5] violation. 29 U.S.C. 659(c). n2

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n2 Section 10(c) of the Act, 29 U.S.C. 659(c), includes the following provisions:

If an employer notifies the Secretary that he intends to contest . . . or if . . . any employee or representative of employees files a notice with the Secretary . . . the Secretary shall immediately advise the Commission of such notification, and the Commission shall afford an opportunity or a hearing. . . . The Commission shall thereafter issue an order, based on findings of fact, affirming, modifying or vacating the Secretary's citation or proposed penalty, or directing other appropriate relief. . . . (emphasis added).

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As stated by the majority, the court of appeals suggested several possible forms of appropriate relief in this case. 570 F.2d at 812-813. However, the court's suggestions were not intended to be an exhaustive identification of the appropriate relief to be considered on remand. Rather, the court contemplates an abatement order that is responsive to the specific working [*6] conditions at this United Parcel Service facility. In addition, the court noted that some of the affected employees are represented by "a strong union that is well able to bargain on [their behalf]." 570 F.2d at 810-811. Thus, the court by clear implication directs the Commission to give careful consideration to this fact in providing appropriate relief. The Commission majority instructs the administrative law judge to afford the union an opportunity to participate as a party pursuant to Commission Rule 20, 29 C.F.R. 2200.20. This instruction is incomplete when measured against the court's specific reference to the authorized employee representative in the context of abatement. 570 F.2d at 810-813. Therefore, in performing his statutory responsibilities under section 10(c) of the Act, the judge should also consider issuing a preliminary order directing United Parcel Service to consult with the authorized employee representative on the development of a proposed abatement order to be submitted to the judge for consideration. n3

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n3 This does not preclude the parties from submitting a jointly proposed abatement order in the form of a settlement agreement, provided that the requirements for approval are otherwise satisfied. Dawson Brothers, Mechanical Contractors, 72 OSAHRC 5/B8, 1 BNA OSHC 1024, 1971-73 CCH OSHD P15,039 (No. 12, 1972): Reynolds Metals Co., 79 OSAHRC    , 7 BNA OSHC 1042, 1979 CCH OSHD P23,295 (No. 78-2485, 1979).

[*7]

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A similar order was entered by the Commission in General Electric Co., 75 OSAHRC 50/A2 at B3, 3 BNA OSHC 1031 at 1048-49, 1974-75 CCH OSHD P19.567 at pp. 23,373-74 (No. 2739, 1975), rev'd in part on other grounds, 540 F.2d 67 (2d Cir. 1976). n4 The Commission held that section 10(c) of the Act authorizes the Commission to direct consultation between an employer and an authorized employee representative with respect to hazards arising from violations of the Act and its standards. However, this consultation is not a substitute for a specific order directing the abatement of a workplace hazard. The Occupational Safety and Health Act affords employees a federal right to a safe and healthful workplace, 29 U.S.C. 651(b), 654(a), that is independent of any employee right created by a collective bargaining relationship. Cf. Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) (employee cause of action under Title VII of the Civil Rights Act of 1964 independent from remedy under grievance-arbitration clause of collective bargaining agreement). Nonetheless, consultation may be an appropriate [*8] component in the development or implementation of an order to provide for the effective abatement of a hazard. Cf. Trbovich v. United Mine Workers of America, 404 U.S. 528, 537 at n. 8 (1972) (union member-intervenor invited to assist court "in fashioning a suitable remedial order" for violation of a statute enforced by the Secretary of Labor).

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n4 The order entered in General Electric Co. was a final order that directed the employer to consult with its authorized employee representative on "matters found in violation [of the Act] in this proceeding." Though the General Electric order was part of the final abatement order issued by the Commission, it nonetheless anticipated consultation on the specific implementation of abatement. The preliminary order suggested in this case anticipates the same consultation concerning the abatement of the cited hazard.

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A preliminary consultation order may be a uniquely appropriate form of relief in this case. First, abatement may require some or all of the employees [*9] to wear specific forms of foot protection. However, there may be a variety of styles and models that would provide adequate protection. The final selection or alternative listing of particular styles and models as well as related implementation considerations directly affecting the employees may be appropriately resolved through consultation. Second, consultation may limit the areas of dispute with respect to specific implementation details, thereby assisting the Commission in fulfilling its obligation to enter an appropriate abatement order. For these reasons the administrative law judge should determine the appropriateness of a preliminary consultation order as an aid in developing a final abatement order. Consistent with the broad remedial authorization granted the Commission under section 10(c) of the Act, the administrative law judge should develop a full and complete record on all forms of appropriate relief.