Greyhound Lines-West v. Marshall, LINES-WEST
| Decision Date | 25 May 1978 |
| Docket Number | 76-3246,LINES-WEST,Nos. 76-2608,s. 76-2608 |
| Citation | 575 F.2d 759 |
| Parties | 6 O.S.H. Cas.(BNA) 1636, 1978 O.S.H.D. (CCH) P 22,814 GREYHOUND, and Greyhound Lines, Inc., Petitioners, v. Ray MARSHALL, Secretary of Labor, and Occupational Safety and Health Review Commission, Respondents. |
| Court | U.S. Court of Appeals — Ninth Circuit |
J. Thomas Rosch (argued), of McCutchen, Doyle, Brown & Enersen, San Francisco, Cal., for petitioners.
John A. Bryson (argued), of U.S. Dept. of Labor, Washington, D.C., for respondents.
On Consolidated Petitions to Review Orders of the Occupational Safety & Health Review Commission.
Before ELY and CARTER, Circuit Judges, and INGRAM, * District Judge.
Greyhound Lines-West and Greyhound Lines, Inc. (hereafter referred to collectively as "Greyhound") petition for review of an administrative determination that they violated the Occupational Safety and Health Act (OSHA), 29 U.S.C. §§ 651 et seq., by failing to provide safety railings or covers for their open bus service pits. Greyhound raises the following issues: (1) is 29 C.F.R. § 1910.22(c) applicable to Greyhound's bus maintenance pits? and if so, (2) did the Secretary of Labor carry his burden of proof in showing a violation?
These consolidated petitions for review involve two separate pits, one in Salt Lake City, Utah, and one in Billings, Montana. In both cities Greyhound operates bus maintenance garages housing open pits used to service its buses. When the pits are being used for maintenance they are completely covered by a bus, but when not in use they are open and unprotected by guardrails or covers. The Salt Lake City pit is outlined by a four-inch yellow stripe. The Billings pit is edged by a two-inch metal strip.
29 U.S.C. § 654(a)(2) provides that "Each employer shall comply with occupational safety and health standards promulgated under this chapter". The regulations at 29 C.F.R. § 1910.22 contain the following standard:
By its plain language this regulation applies to the bus maintenance pits operated by Greyhound. The pits are situated in a walking and working surface at a permanent place of employment and they are open as opposed to covered, except, of course, when there is a bus over them. In a very similar case the Tenth Circuit construed this section of the regulations to apply to vehicle maintenance pits. Lee Way Motor Freight, Inc. v. Secretary of Labor,511 F.2d 864 (10 Cir. 1975) ().
Greyhound makes a two-pronged attack on the applicability of § 1910.22(c) of the regulations to their bus maintenance pits. First, Greyhound contends the requirement that open pits be guarded or covered was intended to apply only to pits used for handling and storage of materials. § 1910.22(c) derives from 41 C.F.R. § 50-204.3 (1970) which was promulgated under the Walsh-Healy Act of 1936. That standard did fall under the general category of "material handling and storage". However, when authorized to formulate new standards for the OSHA, the Secretary of Labor was not limited to the scope of prior acts, but was charged with implementing the purpose of the OSHA which was in a principle part to "extend protection to many workers who had not been covered by previous standards." Lee Way Motor Freight, supra at 869. Under the new regulations the guardrail and cover requirement for open pits was extended beyond material handling and storage situations. It now applies to " walking and working surfaces" in "all permanent places of employment". See Lee Way Motor Freight, supra.
Second, Greyhound contends its pits are not "open" within the meaning of the regulatory scheme. Greyhound argues that the regulatory scheme presupposes three kinds of "pits". First, § 1910.22(c) defines pits which, says Greyhound, are always open. Second, § 1910.23(a)(5) applies to pits which are infrequently used, requiring them to be covered or constantly guarded or protected. 1 The third type of pit, according to the argument, is that which is frequently used, but not always open. These pits are not mentioned in the regulations and thus have not been subjected to any standards if Greyhound is correct.
Greyhound has cited no legislative or regulatory history, no case precedent, nor any other support for its interpretation of the regulatory scheme. It makes virtually no attempt to explain why the word "open" in the regulation should be construed to read "always open". Nor does it argue from policy that there is no reason to protect employees from pits which are sometimes closed by use.
Stripped of its attempt to suggest a three-fold approach to "pits" in the regulatory scheme by introducing the otherwise irrelevant provisions of § 1910.23(a)(5), Greyhound's contention is merely that its pits should not be called open pits because they are frequently covered by buses. We refuse to adopt such a restrictive construction of the regulation. The Secretary is not requiring that Greyhound protect its pits by covers or railings when they are in use. Rather he requires the pit, when it is open, to be safeguarded.
The OSHA itself provides the controlling standard of judicial review of the Commission's factual findings. Such findings are conclusive "if supported by substantial evidence on the record considered as a whole". 29 U.S.C. § 660(a). Greyhound contends the Secretary has failed this burden because he was required to prove that a reasonable person in the industry would have considered protective coverings or railings necessary for bus maintenance pits. This contention, however, is based on a...
To continue reading
Request your trial
-
Modern Drop Forge Co. v. Secretary of Labor
...violation, and proof of industry custom or practice is relevant to establish that element of a violation. See Greyhound Lines-West v. Marshall, 575 F.2d 759, 762 (9th Cir. 1978). With the standard cited in this case, however, the existence of a hazard is presumed, and industry practice is n......
-
Donovan v. Castle & Cooke Foods, a Div. of Castle and Cooke, Inc.
...where infeasibility is raised as an affirmative defense, the burden of proof does lie with the employer. See Greyhound Lines-West v. Marshall, 575 F.2d 759, 762 (9th Cir.1978); see also Nothstein, The Law of Occupational Safety and Health, 436 (1981). However, where the standard makes feasi......
-
PBR, Inc. v. Secretary of Labor
...The "greater hazard" defense is narrowly construed and the burden of proof lies with the employer. Greyhound Lines-West v. Marshall, 575 F.2d 759, 762 (9th Cir. 1978). OSHRC and the courts have placed a three-folded burden on employers seeking to invoke this affirmative defense: "(t)he empl......
-
Marshall v. Anaconda Co.
...United States Steel Co., supra, 5 O.S.H.C. at 1293 n.5.This court has not previously decided this question. In Greyhound Lines-West v. Marshall, 575 F.2d 759 (9th Cir. 1978), this court considered the Secretary's power to extend pre-existing federal standards through the adoption process of......