Arkansas-Best Freight System, Inc. v. Occupational Safety and Health Review Com'n, ARKANSAS-BEST

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtBefore HEANEY, WEBSTER and HENLEY; HEANEY
Citation529 F.2d 649
Decision Date29 January 1976
Docket NumberARKANSAS-BEST,No. 75--1249
Parties, 3 O.S.H. Cas.(BNA) 1910, 1975-1976 O.S.H.D. ( 20,354 FREIGHT SYSTEMS, INC., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and the Secretary of Labor, Respondents.

Page 649

529 F.2d 649
39 A.L.R.Fed. 132, 3 O.S.H. Cas.(BNA) 1910,
1975-1976 O.S.H.D. ( 20,354
ARKANSAS-BEST FREIGHT SYSTEMS, INC., Petitioner,
v.
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and the
Secretary of Labor, Respondents.
No. 75--1249.
United States Court of Appeals,
Eighth Circuit.
Submitted Nov. 10, 1975.
Decided Jan. 29, 1976.

Page 651

S. Walton Maurras, Harper, Young & Smith, Fort Smith, Ark., for petitioner.

Marc R. Hillson, Atty., U.S. Dept. of Labor, Washington, D.C., for Secretary of Labor.

Before HEANEY, WEBSTER and HENLEY, Circuit Judges.

HEANEY, Circuit Judge.

Arkansas-Best Freight System, Inc., appeals from a final order of the Occupational Safety and Health Review Commission finding it guilty of a non-serious violation of an occupational safety standard promulgated by the Secretary of Labor pursuant to the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq., and upholding a penalty of thirty dollars for that violation. We affirm.

Arkansas-Best, an interstate motor freight common carrier, operates fifty-

Page 652

two terminals in nineteen states. On January 31, 1973, a representative of the Secretary of Labor inspected the company's Fletcher, North Carolina, freight terminal and maintenance shop. Following the inspection, Arkansas-Best was cited for an alleged failure to comply with an occupational safety standard relating to the wearing of protective equipment. 1 See 29 U.S.C. § 654(a) (2). The violation alleged was the failure of Arkansas-Best to require its employees who worked in heavy material handling areas, namely the freight dock and the maintenance shop, to wear safety-toe footwear. The standard promulgated by the Secretary of Labor, pursuant to 29 U.S.C. § 655, provides:

Protective equipment, including personal protective equipment for * * * extremities, protective clothing * * * shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment * * * or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through * * * physical contact.

29 C.F.R. § 1910.132(a).

Arkansas-Best contested the citation. It asked for and received a hearing pursuant to 29 U.S.C. § 659. The hearing officer found no violation. He reasoned that the existence of 'hazards of processes or environment' at the terminal necessitating the use of safety-toe footwear had been negated because there were only four toe injuries over a four-year period involving more than 500,000 man hours of work. He indicated in dicta that the standard was vague and ambiguous.

The Occupational Safety and Health Review Commission directed that the hearing examiner's decision be reviewed pursuant to 29 U.S.C. § 661(i). The Commission did so and held that: (1) the standard was not unconstitutionally vague; 2 (2) the standard required the freight dock and maintenance shop employees of Arkansas-Best to wear safety-toe footwear; and (3) it had no power to decide whether the standard is one that can properly be promulgated by the Secretary consistent with the Act.

I

Arkansas-Best appeals the decision of the Commission. It initially contends that the standard cannot be applied because compliance would be more economically burdensome to interstate commerce than would the costs flowing from tow injuries. 3 It relies on 29 U.S.C. § 651(a) to support its argument. That section provides:

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.

A.

The Act does not specifically provide for judicial review of the standards

Page 653

promulgated by the Secretary in enforcement proceedings. 4 It is clear from the legislative history, however, that judicial review during the enforcement stage is intended. See Senate Report No. 91--1282, 1970 U.S.Code Cong. & Admin.News p. 5184. See Brennan v. Occupational Safety & Health Rev. Com'n, 505 F.2d 869 (10th Cir. 1974); Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230 (5th Cir. 1974). Moreover, such review is consistent with the rule that judicial review is to be presumed. See Ratnayake v. Mack,499 F.2d 1207, 1209--1210 (8th Cir. 1974).

We review the issue of whether the standard is one that can properly be promulgated by the Secretary consistent with the Act under the arbitrary and capricious test rather than the substantial evidence test that applies in pre-enforcement review under 29 U.S.C. § 655(f). 5 We do this because the issue presents primarily questions of legislative policy that have been delegated to the Secretary under the Act. As stated in Industrial Union Department, AFL-CIO v. Hodgson, 162 U.S.App.D.C. 331, 499 F.2d 467, 474 (1974):

OSHA sets forth general policy objectives and establishes the basic procedural framework for the promulgation of standards, but the formulation of specific substantive provisions is left largely to the Secretary. The Secretary's task thus contains 'elements of both a legislative policy determination and an adjudicative resolution of disputed facts.' * * * Although in practice these elements may so intertwine as to be virtually inseparable, they are conceptually distinct and can only be regarded as such by a reviewing court. (Citation and footnotes omitted.)

See Brennan v. Occupational Safety & Health Review Com'n, 502 F.2d 946, 951 (3rd Cir. 1974); Brennan v. Occupational Safety & Health Review Com'n, 487 F.2d 438, 442 (8th Cir. 1973); 5 U.S.C. § 706(2)(A).

B.

In our view, the standard is within the legislative grant of power. It represents a determination of legislative policy delegated to the Secretary that is neither arbitrary nor capricious. The purpose of the Act is 'to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources'. 29 U.S.C. § 651(b). The Act is intended to prevent the first injury, including those of a non-serious nature. See Lee Way Motor Freight, Inc. v. Secretary of Labor, 511 F.2d 864, 870 (10th Cir. 1975); Brennan v. Occupational Safety & Health Rev. Com'n, 513 F.2d 1032, 1039 (2nd Cir. 1975); Ryder Truck Lines, Inc. v. Brennan, supra at 233; Brennan v. Occupational Safety & Health Review Com'n, 494 F.2d 460, 463 (8th Cir. 1974). The legislative decision has been made to protect the health of employees even though increased production costs may result. Industrial Union Department, AFL-CIO v. Hodgson, supra

Page 654

at 477. The Act does not attempt to balance as neatly as does Arkansas-Best the cost of compliance against the cost of employees' injuries. This is not to say that economic considerations are irrelevant under the Act. The statement of purpose embodied in 29 U.S.C. § 651(b) is qualified by the words 'so far as possible'. Moreover, the legislative history makes clear that the standards promulgated by the Secretary must be feasible. Senate Report No. 91--1282, 1970 U.S. Code Cong. & Admin.News p. 5183. See Industrial Union Department, AFL-CIO v. Hodgson, supra at 477--478; National Rlty. & C. Co., Inc. v. Occupational S. & H.R. Com'n, 160 U.S.App.D.C. 133, 489 F.2d 1257--1266 (1973).

Arkansas-Best does not, however, challenge the standard as it applies to all affected employers but only as it applies to it. 6 It asks this Court...

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