McLean Trucking Co. v. Occupational Safety and Health Review Com'n, 73-2392
| Decision Date | 04 September 1974 |
| Docket Number | No. 73-2392,73-2392 |
| 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. |
| Court | U.S. Court of Appeals — Fourth Circuit |
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.
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 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 decision in Ryder Truck Lines v. Brennan, 1 OSHC 1290, OSHRC No. 391 (1973). In that case Ryder was cited for non-compliance with the subject regulation by its failure to require foot protection for its employees on its loading dock, and like McLean in the present case, challenged the validity of the regulatory standard. The Commission (Moran, Chairman, dissenting) rejected Ryder's contention. Subsequent to the oral argument in the present case the Fifth Circuit affirmed the action of the Commission and denied Ryder's petition for review. Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230 (5 Cir., 1974). In rejecting Ryder's claim of vagueness that Court noted that the regulation implements remedial civil legislation in contradistinction to criminal legislation, and since the rights guaranteed by the First Amendment are not even remotely involved, the regulation should be considered in the light of its application rather than on its face, citing United States v. National Dairy Corp., 372 U.S. 29, 36, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963).
In addition to the foregoing 'two critical factors,' we agree with the observation in Ryder that 'the regulation appears to have been drafted with as much exactitude as possible in light of the myriad conceivable situations which could arise and which would be capable of causing injury,' and that inherent in the regulatory standard 'is an external and objective test, namely, whether or not a reasonable person would recognize a hazard of foot injuries to dockmen, * * *.' This appraisal of the subject regulation accords with the Congressional purpose as reflected in the general duty statute that an employer must
'furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.' 29 U.S.C. 654(a)(1).
The language employed in the foregoing statute is certainly no more definitive than that of the subject regulation, 2 and we note that in its consideration of this legislation the Senate committee recognized 'that precise standards to cover every conceivable situation will not always exist' /3/ and with respect to the general duty standard stated:
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