Lee Way Motor Freight, Inc. v. Secretary of Labor, No. 74--1236

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBefore BREITENSTEIN, McWILLIAMS and DOYLE; McWILLIAMS; BREITENSTEIN
Parties2 O.S.H. Cas.(BNA) 1609, 1974-1975 O.S.H.D. ( 19,320 LEE WAY MOTOR FREIGHT, INC., Petitioner, v. SECRETARY OF LABOR, Respondent.
Docket NumberNo. 74--1236
Decision Date19 February 1975

Page 864

511 F.2d 864
2 O.S.H. Cas.(BNA) 1609, 1974-1975 O.S.H.D. ( 19,320
LEE WAY MOTOR FREIGHT, INC., Petitioner,
v.
SECRETARY OF LABOR, Respondent.
No. 74--1236.
United States Court of Appeals,
Tenth Circuit.
Argued Nov. 15, 1974.
Decided Feb. 19, 1975.

Page 866

Ben L. Burdick, Oklahoma City, Okl. (Charles W. Mooney, Jr., and Crowe, Dunlevy, Thweatt, Swinford, Johnson & Burdick, Oklahoma City, Okl., with him on the brief), for petitioner.

Anthony J. Steinmeyer, Atty., Dept. of Justice (Carla A. Hills, Asst. Atty. Gen., New York City, Stephen F. Eilperin, Atty., Dept. of Justice, and William J. Kilberg, Sol. of Labor, Benjamin W. Mintz, Associated Sol. for Occupational Safety and Health, Michael H. Levin, Stephen C. Yohay, and Judith Burghardt, Attys., Dept. of Labor, of counsel, with him on the brief), for respondent.

Before BREITENSTEIN, McWILLIAMS and DOYLE, Circuit Judges.

McWILLIAMS, Circuit Judge.

This case arises under the Occupational Safety and Health Act of 1970, hereinafter referred to as the Act. 29 U.S.C. § 651 et seq. Lee Way Motor Freight filed in this court a petition to review an order of the Occupational Safety and Health Review Commission, which order held that Lee Way committed a nonserious violation of 29 U.S.C. § 654(a)(2) by violating the standard of 29 C.F.R. § 1910.22(c) (1972). Jurisdiction is based on 29 U.S.C. § 660. That statute provides, among other things, that the findings of the Commission with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive. Or, as was said in Brennan v. Occupational Safety & Health Comm'n, 501 F.2d 1196 (7th Cir. 1974), 'The Occupational Safety and Health Review Commission is presumed to have technical expertise and experience in the field of job safety (and) a court must, therefore, defer to the findings and analysis of the Commission unless such findings are without substantial basis in fact.'

The standard here involved states that 'covers and/or guardrails shall be provided to protect personnel from the hazards of open pits, tanks, vats, ditches, etc.' 29 C.F.R. § 1910.22(c) (1972). Our study of the instant record leads us to conclude that the finding of the Commission that Lee Way violated the aforesaid standard is supported by substantial evidence. And as a corollary of that finding, we also agree with the Commission that the standard in question does apply to Lee Way. Let us first examine the particular phase of Lee Way's operation to which the Commission applied the standard.

Lee Way is a large interstate motor carrier and employs about 150 persons at its freight and terminal facility in Oklahoma City, Oklahoma. The terminal consists of a trailer shop, a wash rack building, and an inbound service department where tractor-trailer maintenance work is performed. We are here concerned with this vehicle maintenance area.

The service building contains four parallel traffic lanes which are separated by building supports, heating and ventilation ducts, trash barrels, and circular parts-storage trays. Within each lane is a vehicle maintenance pit which is 31 inches wide, 4 feet deep, and 100 feet long and is sufficiently long to accommodate two tractor-trailer rigs simultaneously. The distance between the maintenance pits is 19 feet, 5 inches.

Lee Way's practice is for its drivers to park their incoming trucks about 100 feet from this service area, and for tractor mechanics to then drive the trucks into position over the maintenance pits. Men then enter the pits by stairways on either end. Service on each truck takes approximately 20 minutes and is performed by teams of three men who work both in the pit and alongside it. The service work consists primarily of visual

Page 867

inspection underneath the truck, brake adjustments, oil and grease work, and minor repairs.

The service area is in operation 24 hours a day and has been closed only one day in the two years since it opened. The number of trucks serviced averages between 100 to 120 per day. The maximum capacity of the four service pits is eight trucks but rarely are there as many as seven trucks in the area at one time. Occasionally one or more of the service pits has not been in use, and therefore has been completely uncovered, for as long as two hours.

The concrete floor of the service area is painted with a nonskid paint. Occasionally, however, grease and oil are spilled on the floor near the edge of the pits. And in bad weather, snow, ice, or rain frequently drop from the trucks after they have been driven over the pits. In addition, a few tools may also be lying on the floor near the pits. In the course of their work, Lee Way employees routinely step over the 31-inch pits rather than walk around them.

A compliance officer from the Department of Labor inspected Lee Way's terminal facility and as a result of such inspection cited Lee Way for 28 nonserious violations of the Act. One such citation was for not having covers or guardrails for the maintenance pits. The proposed penalty for this particular violation was $30. It should be noted that the Act provides for three grades of violations, depending upon the 'level of gravity' of the particular violation. Those gradations are de minimis violations, on the one hand, then nonserious violations, and finally serious violations. 29 U.S.C. § 666.

Lee Way did not contest 24 of these citations, claiming that it remedied these particular situations after receiving the citations therefor. However, Lee Way did contest the remaining four citations, including the one relating to the installation of covers or guardrails for the maintenance pits. In this proceeding we are concerned only with this one citation.

A hearing was held before an administrative law judge, who vacated the citation here in question on the ground that the Secretary of Labor had failed to show that Lee Way's open maintenance pits presented any safety hazard. On review, the Commission reversed the administrative law judge and reinstated the citation.

The Review Commission found that the standard in question did apply to Lee Way's vehicle maintenance area, and that Lee Way was in violation thereof. The Review Commission also held that the Secretary was not required to show that a hazard existed in order to show noncompliance with the standard, since 'the standard by its plain terms assumes the existence of a hazard with regard to open pits and does not require that a hazard be proven before noncompliance with its terms is established.' The Review Commission did find, however, that the violation in question had a direct and immediate relationship to occupational safety and health, since the lack of covers or guardrails exposed Lee Way's employees to the 'hazard' of tripping, slipping or falling into the open service pits. It was on this basis that the Review Commission determined that the violation was nonserious rather than de minimis. The vote of the Review Commission reversing the administrative law judge was two-to-one. The dissenting Commissioner, however, dissented on a ground that is not urged in this court.

As stated above, our study of the matter convinces us that the Review Commission was correct in its determination that the standard here involved did apply to Lee Way's vehicle maintenance pits, and that there was a nonserious violation of such standard. Before looking at the standard here sought to be invoked against Lee Way, let us examine briefly the overall purpose of the Act.

The declared purpose and policy of the Act is 'to assure so far as possible every working man...

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30 practice notes
  • St. Joe Minerals Corp. v. Occupational Safety and Health Review Com'n, No. 79-1873
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
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    ...would be contrary to the Act's goal of preventing even the first accident. See Lee Way Motor Freight, Inc. v. Secretary of Labor, 511 F.2d 864, 869-70 (10th Cir. 1975); Brennan v. OSHRC (Vy Lactos Laboratories), 494 F.2d 460, 463 (8th Cir. 8 An engineer with expertise in elevator safety tes......
  • Kiewit Power Constructors Co. v. Sec'y of Labor, No. 18-1282
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 15, 2020
    ...and similarly found Diebold, Inc. v. Marshall , 585 F.2d 1327 (6th Cir. 1978), and Lee Way Motor Freight, Inc. v. Secretary of Labor , 511 F.2d 864 (10th Cir. 1975), inapposite, see OSHRC Decision at 1454.In sum, the Commission vacated Kiewit's serious violation because § 1926.50(g) "was in......
  • Modern Drop Forge Co. v. Secretary of Labor, No. 81-1579
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    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 26, 1982
    ...proceeding. 17 Bunge Corp., 638 F.2d at 834; Greyhound Lines-West, 575 F.2d at 762; Lee Way Motor Freight, Inc. v. Secretary of Labor, 511 F.2d 864, 869 (10th Cir. 1975). In this case, the cited standard specifies "unintended operation" of the foot devices on the forging hammers as the haza......
  • Commissioner of Labor and Industry v. Bethlehem Steel Corp., No. 131
    • United States
    • Court of Appeals of Maryland
    • September 1, 1995
    ...employees." Others simply proscribe certain conditions, the hazard being presumed. Cf. Lee Way Motor Freight, Inc. v. Secretary of Labor, 511 F.2d 864, 869 (10th Cir.1975). 15 For example, 29 C.F.R. § 1926.500(d)(1), which requires that "[e]very open-sided floor or platform 6 feet or more a......
  • Request a trial to view additional results
30 cases
  • St. Joe Minerals Corp. v. Occupational Safety and Health Review Com'n, No. 79-1873
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • May 6, 1981
    ...would be contrary to the Act's goal of preventing even the first accident. See Lee Way Motor Freight, Inc. v. Secretary of Labor, 511 F.2d 864, 869-70 (10th Cir. 1975); Brennan v. OSHRC (Vy Lactos Laboratories), 494 F.2d 460, 463 (8th Cir. 8 An engineer with expertise in elevator safety tes......
  • Kiewit Power Constructors Co. v. Sec'y of Labor, No. 18-1282
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 15, 2020
    ...and similarly found Diebold, Inc. v. Marshall , 585 F.2d 1327 (6th Cir. 1978), and Lee Way Motor Freight, Inc. v. Secretary of Labor , 511 F.2d 864 (10th Cir. 1975), inapposite, see OSHRC Decision at 1454.In sum, the Commission vacated Kiewit's serious violation because § 1926.50(g) "was in......
  • Modern Drop Forge Co. v. Secretary of Labor, No. 81-1579
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 26, 1982
    ...proceeding. 17 Bunge Corp., 638 F.2d at 834; Greyhound Lines-West, 575 F.2d at 762; Lee Way Motor Freight, Inc. v. Secretary of Labor, 511 F.2d 864, 869 (10th Cir. 1975). In this case, the cited standard specifies "unintended operation" of the foot devices on the forging hammers as the haza......
  • Commissioner of Labor and Industry v. Bethlehem Steel Corp., No. 131
    • United States
    • Court of Appeals of Maryland
    • September 1, 1995
    ...employees." Others simply proscribe certain conditions, the hazard being presumed. Cf. Lee Way Motor Freight, Inc. v. Secretary of Labor, 511 F.2d 864, 869 (10th Cir.1975). 15 For example, 29 C.F.R. § 1926.500(d)(1), which requires that "[e]very open-sided floor or platform 6 feet or more a......
  • Request a trial to view additional results

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