Graves Truck Lines, Inc.

Plain-English summary

Graves Truck Lines had 13 employees working on its inbound and outbound docks without steel-toe safety shoes during the inspection. Its records showed eight dock-area toe or foot injuries from falling objects over four years, and its safety supervisor believed steel-toe shoes would have prevented five of them. The company argued that the protective-equipment standard was too vague to enforce. The Commission rejected that argument because a reasonable person would recognize the foot hazard and the related foot-protection standard supplied specifications for safety shoes. It affirmed the citation and the stipulated $40 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.132(a)
• Outcome: Dock safety-footwear citation affirmed with a $40 penalty
• Key point: An employer has fair notice when its own injury history and safety assessment identify both the foot hazard and the protection that would prevent it.

Full text (OSHRC public release)

Docket No. 12682

GRAVES TRUCK LINES, INC.
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OSHRC Docket No. 12682

Occupational Safety and Health Review Commission

July 27, 1977

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Before BARNAKO, Chairman; and CLEARY, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

T. A. Housh, Jr., Regional Solicitor, U.S. Department of Labor

George P. Coughlin, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

On February 4, 1976, Administrative Law Judge Vernon Riehl issued a decision affirming a single violation of the Occupational Safety and Health Act of 1970, 29 U.S.C. �
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651 et seq. [hereinafter "the Act"], for failure to comply with the standard published at 29 CFR �
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1910.132(a). n1 A penalty of $40 was assessed. n2

• • • • • • • • • • • • • • • • • -Footnotes- - - - - - - - - - - - - - - - - -

n1 The cited standard reads as follows:

Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards or processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.

n2 The parties stipulated as to the reasonableness of the $40 proposed penalty.
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The Judge assessed the penalty as proposed, finding the amount to be reasonable.

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• • • • • • • • • • • • • • • • -End Footnotes- - - - - - - - - - - - - - - - -

On February 6, 1976, respondent filed a petition for discretionary review.
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The case was subsequently directed for review, and is before the Commission pursuant to section 12(j) of the Act.
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The sole argument advanced by respondent employer is that the standard at 29 CFR �
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1910.132(a) is ambiguous and unenforceably vague.

We affirm the Judge's decision in all respects.

It is well settled that a claim of vagueness of a standard must be examined in light of the particular circumstances of its application.
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Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230, 233 (5th Cir. 1974), citing United States v. National Dairy Corp., 372 U.S. 29, 36 (1963). The test to be applied to the standard attacked here, "is an external and objective test, namely, whether or not a reasonable person would recognize a hazard of foot injuries to dockmen. . . ." Ryder Truck Lines, Inc., supra; McLean Trucking Co. v. O.S.A.H.R.C., 503 F.2d 8, 10 (4th Cir. 1974); American Airlines, Inc., 4 BNA OSHC 1630, 1976-77 CCH OSHD para. 21,036 (No. 6706, 1976).

The case at hand was submitted to the Judge on stipulated [*3]
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facts. The stipulations relevant to the issue of vagueness are as follows:

7.
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At the time of Mr. Cave's inspection, there were nine employees working on the outbound dock and four employees working on the inbound dock, none of whom were wearing steel-toed safety shoes. During the week of this inspection, there were twenty-six employees working as regular dock workers, and there are approximately 103 of respondent's employees working at the aforesaid business who may at one time or another, bid into the dock area.

8.
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At the time of Mr. Cave's investigation, respondent's record of injuries contained in the OSHA Form 101 from the period 1971 through 1974, indicated eight injuries to the toe or foot on the dock area occurring from falling objects.
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On five of these injury reports, respondent's terminal safety supervisor, Lloyd Pendergrass had indicated that it was his opinion that steel-toed safety shoes would have prevented this injury.

On the basis of the stipulated facts, we conclude that a reasonable person would recognize a hazard of foot injuries to workers in the dock area.
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The rate of incidence of reported foot injuries on respondent's dock area and their cause is a sufficient [*4]
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predicate in itself for this conclusion.
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The rate of reported foot injuries is comparable to the reported injury rates in previous cases involving the same issue.
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See e.g., Ryder Truck Lines, Inc., supra (10 injuries in 5 years); McLean Trucking Co., supra (10 injuries in 3 years); American Airlines, Inc., supra (4 injuries in 3 years).
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Therefore, we hold that there was adequate notice that the conditions existing in the dock area presented a hazard cognizable under the cited standard.

Respondent also contends that the standard is vague in that it does not adequately apprise respondent of what is required of it.
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According to Paragraph 8 of the stipulation, it was respondent's safety supervisor's opinion that steel-toed safety shoes would have prevented five of the reported injuries.
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Also, the standard at 29 CFR �
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1910.136, located in the same subpart and captioned "Occupational Foot Protection," incorporates by reference the American National Standard for Men's Safety-Toe Footwear, Z41.1-1967, which sets out specifications and requirements for safety shoes. These circumstances were adequate to apprise respondent of what was required.
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McLean
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Trucking Co., supra.

Accordingly, the citation for violation of the Act for failure to comply with the standard at 29 CFR �
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1910.132(a) is affirmed.
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A penalty of $40 is assessed.
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