Ryder Truck Lines, Inc. v. Brennan, 73-3341.

• Decision Date: 13 September 1974
• Docket Number: No. 73-3341.,73-3341.
• Citation: 497 F.2d 230
• Parties: RYDER TRUCK LINES, INC., Petitioner, v. Peter J. BRENNAN, Secretary of Labor, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

497 F.2d 230 (1974)

RYDER TRUCK LINES, INC., Petitioner, v. Peter J. BRENNAN, Secretary of Labor, Respondent.

No. 73-3341.

United States Court of Appeals, Fifth Circuit.

July 18, 1974.

Rehearing Denied September 13, 1974.

J. P. Jones, Allan P. Clark, Jacksonville, Fla., for petitioner.

William S. McLaughlin, Executive Sec., Occupational Safety & Rev. Comm., Washington, D. C., Norman H. Winston, Associate Regional Sol., U. S. Dept. Of Labor, Birmingham, Ala., Baruch A. Fellner, Counsel for Regional Litigation, U. S. Dept. of Labor, Stephen F. Eilperin, Karen K. Siegel, Attys., Dept. of Justice, Washington, D. C., for respondent.

Before DYER and MORGAN, Circuit Judges, and KRAFT, District Judge.

KRAFT, District Judge:

The employer, Ryder Truck Lines, Inc. (Ryder), has petitioned, pursuant to § 11(a) of the Occupational Safety & Health Act of 1970 (Act), 29 U.S.C. § 651 et seq., for review of a final order of the Occupational Safety & Health Review Commission (Commission), issued on August 16, 1973. The order determined that Ryder had committed a violation of 29 C.F.R. 1910.132(a) for which no penalty was applicable. Petition will be denied.

Ryder is an interstate common carrier, which operates 85 truck terminals and has more than 1000 employees. One of its terminals, in Birmingham, Alabama, is the site of the charged violation. Of the 260 employees at the Birmingham terminal, approximately 117 perform duties on the loading docks each week. As many as 40 workmen are employed there during the day shift. This terminal consists of a one-story building with offices in the front or east side. Behind the offices is a rectangular freight platform surrounded on three sides by 88 doors, each 9 feet wide and about 2 feet apart, and a continuous loading dock.

Basically the dock workers' job consists of transferring freight from one motor truck to another or from a designated dock area to a truck or vice versa. The freight handled by the workers is far from uniform; the size, shape, weight and packaging of the pieces varies widely. Motors, machinery and occasionally pipe are handled, in addition to packaged goods. The only weight restriction imposed by Ryder is that its men and equipment be able to move the shipment. Individual workmen, too, lift, carry and deposit whatever loads they can handle, at times as much as one hundred pounds apiece. Four wheeled pushcarts and tow motors (gasoline powered forklifts) are also utilized to facilitate freight transfer. The pushcarts are used to move the smaller packages, which are loaded and unloaded by hand, to trucks or to stacks approximately 7 feet high. The tow motors are employed to transfer palletized freight and/or freight which is too heavy to lift manually.

Pursuant to an employee's complaint an OSHA compliance officer inspected the Birmingham terminal on December 13, 1971. The inspection consisted of observation of the workers and their attire as they performed their normal tasks and an examination of Ryder's injury record, especially noting the foot and toe injuries.

The footwear worn by the workers on the dock ran the gamut from substantial workshoes to loafers, slippers and other footwear of soft, pliable materials. The injury log revealed that there had been as many as ten reported foot and toe injuries to dock workers in the five years preceding the inspection.

As a result of the detailed inspection, the Secretary of Labor, on December 23, 1971, cited the petitioner for a non-serious violation of § 5(a) (2) of the Act, because "foot protection was not universally used on the loading and unloading docks where foot hazardous material is frequently handled".¹

Ryder was not fined, but was ordered to abate, which imposed no financial burden. Ryder timely employed and exhausted the remedies available, without success, and this petition for review followed. We are persuaded that there is substantial evidence in the record to support the Commission's conclusion that the Act was violated, 29 U.S.C. § 660(a) and that Ryder's other contentions lack merit and so deny the petition.

The substantial evidence standard must be applied in any judicial review of decisions of an administrative agency under this Act. 29 U.S.C. § 660(a). The Supreme Court, in Universal Camera Corp. v. Labor Bd., 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951), has defined "substantial evidence", as follows:

"`Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\' . . . Accordingly, it `must do more than create a suspicion of the existence of the fact to be established . . .\'"

The record here reveals that: the work area, necessarily somewhat limited and cramped by the width of the loading docks or platforms, was a place of heavy traffic, with burdened workers, pushcarts and tow motors moving constantly in intricate patterns to and from their respective destinations; the duty of the dock workers was manually to lift, carry, load, unload, pile, deposit and transfer freight, some of which weighed as much as 100 pounds; the workers customarily wore footwear other than protective workshoes; Ryder was aware that many of its dock workers did not wear protective workshoes, but wore whatever their fancies dictated; the medical records of Ryder disclose that there had been at least 10 reported foot and toe injuries to dock workers in the five year period preceding the citation.

The applicable regulation requires protective equipment,

"Wherever it is necessary by reason of hazards of process or envionment . . . encountered in a manner capable of causing injury or impairment of the function of any part of the body through absorption, inhalation or physical contact." 29 C.F.R. 1910.132 (a).

The legislative history of the statute reveals that its declared purpose is "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions." 29 U.S. C. § 651(b). It is noteworthy that the Act does not establish as a sine qua non any specific number of accidents or any injury rate. Hence, Ryder's reliance on "only 10 injuries in five years" is misplaced....