McLean Trucking Co. v. Occupational Safety and Health Review Com'n, No. 73-2392

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: Before CRAVEN, RUSSELL and FIELD; FIELD
• Citation: 503 F.2d 8
• Parties: 2 O.S.H. Cas.(BNA) 1165, 1974-1975 O.S.H.D. ( 18,573 McLEAN TRUCKING COMPANY, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, and Secretary of Labor, Respondents.
• Docket Number: No. 73-2392
• Decision Date: 04 September 1974

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503 F.2d 8 2 O.S.H. Cas.(BNA) 1165, 1974-1975 O.S.H.D. ( 18,573 McLEAN TRUCKING COMPANY, Petitioner,
v.
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, and
Secretary of Labor, Respondents. No. 73-2392. United States Court of Appeals, Fourth Circuit. Argued June 4, 1974.
Decided Sept. 4, 1974.

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Wayne H. Foushee, for petitioner.

Karen K. Siegel, Atty., U.S. Dept. of Justice (William J. Kilberg, Sol. of Labor, Benjamin W. Mintz, Associate Sol., for Occupational Safety and Health, Michael H. Levin, Washington, D.C., for Appellate Litigation, Helen Schuitmaker, Atty., U.S. Dept. of Labor, Carla A. Hills, Asst. Atty. Gen., and Stephen F. Eilperin, Atty., U.S. Dept. of Justice, on brief, for respondents.

Before CRAVEN, RUSSELL and FIELD, Circuit Judges.

FIELD, Circuit Judge:

McLean Trucking Company (McLean) has petitioned pursuant to Section 11(a) of the Occupational Safety and Health Act of 1970 (Act), 29 U.S.C. 651 et seq., for review of a final order of the Occupational Safety and Health Review Commission (Commission) which became final on October 31, 1973. This court has jurisdiction under 29 U.S.C. 660(a).

The order determined that McLean had violated Section 5(a)(2) of the Act by its non-compliance with 29 C.F.R. 1910.132(a) ¹ in failing to furnish protective foot equipment to its dock employees and require them to wear the same while working. The order held that a penalty was inappropriate under the circumstances of the case and enlarged the period of abatement to include ninety days from the date of the final order of the Commission. McLean is a motor vehicle common carrier which operates over one hundred terminals throughout the United States, one of which is located in Richmond, Virginia. At the Richmond terminal the dock workers transfer freight between waiting trucks or between designated dock areas and trucks. The freight handled on the dock is a melange of sizes and shapes and the weight of the items varies from ten pounds to fifteen hundred pounds. Approximately seventy per cent of the containers are moved by hand or dollies and the remaining thirty per cent of the freight is moved by forklift trucks.

On April 6, 1973, a compliance officer of the Department of Labor conducted an inspection of the Richmond terminal, during the course of which he observed the loading dock operations and learned that McLean did not require its dock employees to wear safety shoes or other means of foot protection. The dockmen wore all types of footwear from tennis shoes and sandals to substantial work shoes. The officer noted that the freight being carried by the employees or placed on the dollies or forklifts could drop or fall on an employee's foot and learned that, in fact, ten foot injuries had been reported in the three years

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prior to his inspection. The compliance officer concluded that the dock operation was conducive to foot injuries and that protective foot equipment should be worn and, accordingly, on April 19, 1973, the Secretary cited McLean for a non-serious violation of Section 5(a)(2). McLean timely contested the citation pursuant to 29 U.S.C. 659(c), whereupon the Secretary filed a formal complaint before the Commission. Upon McLean's answer the case was heard by an administrative law judge of the Commission, and upon the evidence adduced the judge determined that McLean had violated the Act. This decision of the administrative law judge became the final order of the Commission pursuant to 29 U.S.C. 661(i) and McLean's petition for review of this order followed. ²

Primarily, McLean challenges the Commission's order on the ground that the standard of conduct of 29 C.F.R. 1910.132(a) is so vague that men of common intelligence must necessarily guess at its meaning and, accordingly, it is constitutionally impermissible. In rejecting McLean's contention on this point the administrative law judge relied upon the Commission's...