United Parcel Service of Ohio, Inc. v. Occupational Safety and Health Review Com'n

• Decision Date: 17 February 1978
• Docket Number: No. 77-1762,77-1762
• Citation: 570 F.2d 806
• Parties: 6 O.S.H. Cas.(BNA) 1347, 1978 O.S.H.D. (CCH) P 22,556 UNITED PARCEL SERVICE OF OHIO, INC., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Ray Marshall, Secretary of Labor, United States Department of Labor, Respondents.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 806

570 F.2d 806

6 O.S.H. Cas.(BNA) 1347, 1978 O.S.H.D. (CCH) P 22,556

UNITED PARCEL SERVICE OF OHIO, INC., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Ray Marshall, Secretary of Labor, United States Department of Labor, Respondents.

No. 77-1762.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 13, 1978.

Decided Feb. 17, 1978.

David W. Welch, Moller, Talent, Kuelthau, Dowell & Fisher, St. Louis, Mo., for petitioner.

Carin A. Clauss, Sol. of Labor, Benjamin W. Mintz, Associate Sol. for Occupational Safety and Health, Allen H. Feldman, Acting Counsel for Appellate Litigation, and Diane E. Burkley, Atty., U. S. Dept. of Labor, Washington, D. C., on brief, for respondents.

Before BRIGHT and HENLEY, Circuit Judges, and SMITH, Senior District Judge. ^*

HENLEY, Circuit Judge.

In this original proceeding petitioner, United Parcel Service of Ohio, Inc. (UPS), seeks judicial review of an adverse order of the Occupational Safety and Health Review Commission (OSHRC), an adjudicatory agency of the United States established by the Occupational Safety & Health Act of 1970, 29 U.S.C. §§ 651 et seq. We have jurisdiction by virtue of 29 U.S.C. § 660(a), and in the exercise of that jurisdiction we are required to accept the factual findings of the agency if supported by substantial evidence on the record as a whole.

The Act, which is comprehensive and highly remedial, is administered by the Secretary of Labor through the Occupational Safety and Health Administration (OSHA). One of the functions of OSHRC is to review actions taken by OSHA in the field of occupational health and safety, and final decisions of the Commission are subject to limited review in the respective courts of appeals. ¹

In the instant case the Commission, adopting the findings, conclusions and order of one of its administrative law judges, upheld a citation issued by OSHA charging the petitioner with a non-serious violation of § 5(a)(2) of the Act, 29 U.S.C. § 654(a)(2). The charge was that in connection with the operation of its facility at Bridgeton (Earth City), Missouri, petitioner had permitted certain of its employees to engage in the unloading and sorting of parcels and packages without requiring that they wear safety shoes to protect their feet and toes from injury from falling parcels. This conduct on the part of petitioner was said to be in violation of a general safety standard promulgated by the Secretary which appears as 29 C.F.R. § 1910.132(a). ²

Although the Commission did not impose a pecuniary penalty on petitioner, petitioner is required, if the order is upheld, to abate the violation, and if it fails to do so, it is subject to a civil penalty of up to $1,000.00 for each day of unabated violation. 29 U.S.C. § 666(d).

We are of the opinion that the regulation that has been cited is a valid one as applied to the business of handling and delivering parcels or packages, and while we are also of the opinion that the Commission's finding of a violation of the Act based on a violation of the regulation is supported by substantial evidence, nevertheless, we are of the opinion that the remedy prescribed by the Commission was overbroad and amounted to an abuse of administrative discretion which we may hold to be invalid and set aside. 5 U.S.C. § 706(2)(A). Accordingly, we vacate the Commission's order and remand the case to the agency for further consideration and proceedings not inconsistent with this opinion.

We state, first, some background facts and the procedural history of the case.

UPS is engaged in the business of receiving, handling, transporting and delivering in interstate commerce parcels and packages of up to fifty pounds in weight and having maximum outside dimensions of one hundred eight inches. It is the largest private package handling and delivery service in the United States.

UPS maintains a number of establishments throughout the country at which establishments parcels are received in trucks, unloaded, sorted and dispatched for ultimate delivery in smaller trucks to the consignees of the packages. The establishment or facility with which we are concerned employs about 850 people, 375 of whom are classified as unloaders and sorters, and they physically unload and sort the packages received at the facility.

The record reflects that petitioner is interested in the occupational safety of its employees and has consistently maintained a comprehensive safety program. However, petitioner has never provided its unloaders and sorters with safety shoes or required them to provide such shoes for themselves. And occasionally employees sustain injuries to their feet or toes resulting from dropped or falling parcels; the incidence of such injuries seems to have been quite low.

On June 22, 1976 a compliance officer of OSHA made an inspection of the Bridgeton facility which involved conferences with plant officials, an examination of accident reports, and two "walk arounds" of the facility in the course of which he observed unloaders and sorters at work and the conditions under which they performed their work. The compliance officer noted what he considered to be a number of non-serious violations of prescribed safety standards, including the absence of safety shoes on the feet of the unloaders and sorters, and he reported his observations to his superiors.

On July 27, 1976 the Regional Director of OSHA, acting pursuant to 29 U.S.C. § 658(a), issued a citation against petitioner charging petitioner with other than serious violations of § 5(a)(2) of the Act, 29 U.S.C. § 654(a)(2), based on violations of safety standards prescribed by the Secretary including the standard imposed by 29 C.F.R. § 1910.132(a). Two violations of that standard were charged, but we are concerned here only with the alleged violation of the standard by petitioner in not furnishing or requiring employees to furnish safety shoes. The citation was amended to some extent on August 9, 1976, and the compliance date was extended from August 27, 1976 to September 20 of that year.

Petitioner did not contest two of the three violations charged by OSHA and petitioner paid the small penalty or penalties suggested by that agency. However, petitioner did protest the charge that it had violated the Act in the matter of safety shoes, and that protest brought the matter before the Review Commission, 29 U.S.C. § 659(c).

In due course, the Secretary filed his complaint against petitioner with the Commission, and the controversy between the parties was assigned to an administrative law judge. Overruling motions of petitioner to dismiss the complaint, the administrative law judge heard the case on the merits and found against petitioner. He ruled that the absence of steel-toed safety shoes constituted a violation of the prescribed standard and, therefore, of the Act, and he sustained the citation. He did not recommend any pecuniary penalty in addition to that or those already paid by petitioner.

The Commission denied an application of petitioner to reopen the record for the purpose of receiving additional evidence as to the extent of the injury received in the fall of 1975 by a particular employee, Adam Thomas, and the Commission also refused to grant discretionary review of the findings, conclusion and proposed order of the administrative law judge. The action last mentioned constituted the adoption by the Commission as its own the findings, conclusion and order of the judge.

Petition for review was timely filed in this court. In support of the petition UPS contends:

1. That the safety and health standard set out in 29 C.F.R. § 1910.132(a) is invalid because:

(a) It requires a practice or means not reasonably necessary or appropriate to provide safe employment for the unloaders and sorters.

(b) It is void for vagueness as applied to the parcel handling industry.

2. That the citation should have been dismissed as untimely filed.

3. That when the Commission refused to reopen the record to consider evidence as to the precise extent of the injury received by employee Adam Thomas, it denied petitioner a fair hearing.

4. That in any event the order of the Commission is not sustained by substantial evidence.

We will consider those contentions, but not in the order stated.

We reject as insubstantial petitioner's claim based on the refusal of the Commission to reopen the record in connection with the injury sustained by Thomas.

We find that the citation and amended citation were timely filed, and we do not accept petitioner's contention to the contrary which is based on a "legislative history" argument that was expressly rejected in Brennan v. Chicago Bridge & Iron Co., 514 F.2d 1082 (7th Cir. 1975).

29 U.S.C. § 658(a) provides that a citation is to be issued with reasonable promptness after a violation is discovered by OSHA, and § 658(c) provides that no citation may be issued after the expiration of six months following the date of a violation. Here, it does not appear that the relatively short time lapse between the discovery of the alleged violation and the issuance of the citation was improperly motivated or was prejudicial to petitioner in any way. Both the original and amended citations were filed well within the six months period permitted by § 658(c). On this phase of the case we are in full agreement with the result reached in Todd Shipbuilding Corp. v. Secretary of Labor and OSHRC, 566 F.2d 1327 (9th Cir. 1977). ³

Nor can we agree with petitioner that as applied to the parcel handling industry the standard prescribed by 29 C.F.R. § 1910.132(a) is void for vagueness or that the safety shoe requirement is necessarily unreasonable or inappropriate when imposed upon an employer engaged in that industry. ⁴

The attacks on the standard that have been made in this case are similar to those that were launched against it in Arkansas-Best Freight Systems, Inc. v. OSHRC, 529 F.2d 649 (8th Cir. 1976). In that case we upheld...