Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
2d 201
2 O.S.H. Cas.(BNA) 1698, 1974-1975 O.S.H.D. ( 19,496
The BUDD COMPANY, Petitioner in No. 74-1256,
v.
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION,
Respondent.
INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE,
AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW)
and its Locals 813 and 92, Petitioners
in No. 74-1781,
v.
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION,
Respondent.
John C. Wright, Jr., Peter B. Broida, Philadelphia, Pa., for the Budd Co.;
Montgomery, McCracken, Walker & Rhoads, Stephen I. Schlossberg,
Gen. Counsel, UAW, Washington, D. C., M. Jay Whitman, Asst. Gen.
Counsel, UAW, Detroit, Mich., of counsel.
Anne M. Trebilcock, for UAW.
Carla A. Hills, Asst. Atty. Gen., Stephen F. Eilperin, Michael H. Stein,
App. Section, Civ. Div., Dept. of Justice, Washington, D. C., for
Occupational Safety and Health Review Commission.
Before ADAMS, ROSENN and WEIS, Circuit Judges.
OPINION OF THE COURT
PER CURIAM:
The principal issue on this appeal is whether the Occupational Safety and
In the autumn of 1971, compliance officers from the Occupational Safety and
Health Administration inspected two Budd Company plants. Budd, cited for
violating a series of the applicable safety standards issued by the Secretary,
contested several of the citations. After the Secretary filed complaints against
Budd with respect to the alleged violations, the cases regarding the two plants
were consolidated and referred to a hearing examiner.
The only citation relevant to the present appeal3 concerned the alleged violation
of 1910.132(a) on the ground that Budd failed to provide protective footwear
for certain of its employees. Before the hearing examiner, Budd moved to
withdraw its notice of contest relating to the use of foot protection "specifically
on condition that it is understood that the obligation to provide this foot
protection does not include the obligation to pay for the protection. . . . " The
Secretary did not object to Budd's motion but the union representing Budd's
employees did.
5 (W)ho shall be liable for the cost (of protective shoes is) not (a) proper subject
14.
for determination under the Act. (It is), rather (a) matter which must be privately
resolved by the employer and his employees. . . .
6 It is improper therefore to impose on the employer's duty to provide safety shoes
15.
whenever necessary under the standard at 29 C.F.R. 1910.132(a) and (b), the
condition that it is not his obligation to pay for such shoes.
7
On August 28, 1972, the examiner vacated his August 22nd order and replaced
it with a similar order denying Budd's motion to withdraw its notice of contest
and directing that a hearing on Budd's motion take place September 13, 1972.
The place of the hearing was changed, however, and the August 28th decision
deleted the sentence previously appearing in the August 22nd order which
referred to the cost of the shoes as a proper subject for private resolution.
The hearing previously scheduled for September 13th was finally held on
October 19, 1972. On November 1, 1972, the administrative law judge ruled
that 1910.132(a) "requires the employer to provide, require the use of and
maintain in a sanitary and reliable condition, protective equipment, in this case
safety shoes. . . . " The November 1st decision made no further reference to the
allocation of the cost of safety equipment, and denied Budd's conditional
motion to withdraw its notice of contest.
Budd sought and obtained discretionary review by the Occupational Safety and
Health Review Commission of the order of November 1st.
10
11
Unlike
other labor statutes with essentially economic purposes, the Act is concerned
solely with safety and health in the work situation. Prescription of cost allocations is
not essential to the effectuation of the Act's objectives. . . . 5 The question of cost
allocation, on the other hand, is a question to be resolved between employer and
employee. In our judgment, it is an appropriate subject for collective bargaining.
(additional footnotes omitted)
12
13We do not imply that an employer is not to bear the cost of things such as capital
5.
equipment which is ordinarily his responsibility to assume. We are here considering
the cost allocation of personal equipment. . . . (W)e note that the most universally
used foot protective equipment is the steel-toed shoe. Thus, the most universally
used type of protection is uniquely personal and may be used by the employee when
he is away from the job.
14
15
15
Jurisdiction.
16
17
Budd contends that this Court has no jurisdiction to consider the union's
objections to the Commission's decision. The August 22nd opinion (or
alternatively the August 28th opinion) of the hearing examiner, Budd asserts,
became a final order of the Commission when the Commission did not grant
review of that decision within 30 days.6 The examiner, according to Budd, had
no authority to amend his decision on November 1st, since after issuance of the
examiner's decision, modifications could be made only by the Commission.7
Commission review of the examiner's November 1st ruling, Budd continues,
was a nullity, since the examiner's August 22nd opinion had already, by
operation of law, became the final ruling of the Commission, inasmuch as the
Commission had not granted review of the August 22nd order within 30 days.
Since the August 22nd decision had not been appealed to a court of appeals
within 60 days of its becoming the final order of the Commission,8 Budd
concludes, this Court has no jurisdiction.
18
On the substance of the union's objection to the Commission's ruling, the scope
of this Court's review is limited. As we said in Brennan v. Occupational Safety
and Health Review Commission (Hanovia Lamp Div.):9
21
(A)side
from findings of fact it seems clear that we can set aside Commission
adjudicatory conclusions which we find to be "arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law."
22
23
When
faced with a problem of statutory construction, this Court shows great
deference to the interpretation given the statute by the officers or agency charged
with its administration. . . . "Particularly is this respect due when the administrative
practice at stake 'involves a contemporaneous construction of a statute by the men
charged with the responsibility of setting its machinery in motion; of making the
parts work efficiently and smoothly while they are yet untried or new.' " . . . When
the construction of an administrative regulation rather than a statute is in issue,
deference is even more clearly in order.
24
25
26
The Commission and the Secretary, through their day-to-day experience with
the subject matter, are cognizant of the existing industrial hazards, the prevalent
safety practices, and the economic and safety consequences of adopting the
accident-prevention measures available.13 The Commission and the
Occupational Safety and Health Administration were assigned the task of
administering the Act in order to take advantage of the expertise which only a
specialized agency can develop.14 The members of the Commission are
required to be specially qualified "by reason of previous training, education or
experience in the field."15 Therefore, the courts should yield to the Secretary
and the Commission a relatively broad discretion in interpreting the Act and the
Secretary's regulations. 16
27
At least with respect to the question who should pay the cost of protective
27
At least with respect to the question who should pay the cost of protective
footwear the issue here the Commission's interpretation of 29 C.F.R.
1910.132(a) is not unreasonable. We need not now decide whether the
Commission could reasonably conclude that the employer is not obligated to
bear the cost of other mandatory protective equipment.
28
The provisions of the Act itself do not conflict with the Commission's reading
of the Secretary's regulation. Congress did not explicitly require that the
employer pay the price of personal protective equipment and clothing, though
Congress has, both in this Act17 and in other job-safety legislation,18
specifically imposed on the employer certain expenditures promoting employee
health and safety.
29
30
31
32
Chairman Moran joined the majority opinion with respect to allocating the cost
of protective footwear, but dissented from the Commission's decision on the
required positioning of acetylene cylinders
See footnote 3
10
380 U.S. 1, 16, 85 S.Ct. 792, 801 (1965), quoting Unemployment Commission
v. Aragon, 329 U.S. 143, 153, 67 S.Ct. 245, 91 L.Ed. 136 (1946) and Power
Reactor Co. v. Electricians, 367 U.S. 396, 408, 81 S.Ct. 1529, 6 L.Ed.2d 924
(1961)
11
Roy Bryant Cattle Co. v. United States, 463 F.2d 418, 420 (5th Cir. 1972).
Accord, Udall, supra, at 16, 85 S.Ct. 792. See Griggs v. Duke Power Co., 401
U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1970); United States v. Chicago, 400
U.S. 8, 91 S.Ct. 18, 27 L.Ed.2d 9 (1970); Ostheimer v. United States, 264 F.2d
789 (3d Cir. 1959)
12
Because the Commission and the Secretary both agree that 1910.132(a) does
not impose on the employer the financial burden of the required safety shoes,
we need not address the question whether the court should afford greater
respect to the Commission's interpretation or to the Secretary's when the two
are unable to agree as to the proper construction of a safety standard. See, e. g.,
Dale M. Madden Construction Co. v. Hodgson, 502 F.2d 278 (9th Cir. 1974);
Brennan v. Southern Contractors Service, 492 F.2d 498 (5th Cir. 1974);
Brennan v. Occupational Safety & Health Review Comm'sn (Gerosa, Inc.), 491
F.2d 1340 (2d Cir. 1974); Brennan v. Gilles & Cotting, Inc., 504 F.2d 1255 (4th
Cir. 1974)
13
14
15
16
See Brennan v. Southern Contractors Service, 492 F.2d 498, 501 (5th Cir.
1974); Brennan v. Gilles & Cotting, Inc., 504 F.2d at 1261-62. But see Brennan
v. Occupational Safety and Health Review Commission (Gerosa, Inc.), 491
F.2d 1340 (2d Cir. 1974)
17
18
19
20
See 29 U.S.C. 651 (Supp.1974); S.Rep. 91-1282, 91st Cong., 2d Sess. (1970);
Legislative History, supra, at 1420166, 297; U.S.Code Cong. & Adm.News, p.
5177 (1970); Brennan v. Southern Contractors Service, 492 F.2d at 501
The Act was intended to obviate the catastrophic loss of wages which often
accompanies industrial accidents. This purpose, however, is not, as the union
argues, inconsistent with the employees paying for their own safety shoes, as a
result of collective bargaining. The expense of purchasing safety shoes is
spread among all the workers, while the loss of wages resulting from a jobrelated injury is often concentrated on the victim alone. Moreover, the cost of
the shoes may be compensated by other items in the collective bargaining
settlement.
21
22
23
The union offers the following argument as justification for setting aside the
Commission's decision: the wording of 1910.132(a) was taken verbatim from
41 C.F.R. 50-204.7, a regulation promulgated under the Walsh-Healey Public
Contractors Act (41 U.S.C. 35, 38 (1965)); the latter regulation, the union
continues, places the financial burden of such safety equipment on the
employer; therefore, the union concludes, 1910.132(a) should be interpreted as
imposing the cost on the employer. The union's position regarding 50-204.7
differs from Commissioner Cleary's interpretation of that regulation in his
dissenting opinion. Neither the union nor Commissioner Cleary cites any
authority for their respective interpretations. Aside from these considerations,
however, the relationship between 50-204.7 and 1910.132 is a matter properly
left to the Commission's resolution, and, in any event, does not provide a
sufficient basis for this Court to conclude that the Commission's interpretation
of 1910.132(a) is unreasonable
24