Petition for review of a Decision and Order of the Occupational Safety and Halth Review Commission, upholding a citation issued against American Airlines for violation of 29 C.F.R. § 1910.132. The Commission required American's cargo handlers to wear steel-toed safety shoes.
Kaufman, Chief Judge, Feinberg, Circuit Judge, and Werker, District Judge.*fn*
We are asked to decide whether the Occupational Safety and Health Review Commission, in construing its protective equipment regulation, correctly determined that American Airlines must require all its cargo handlers to wear steel-toed safety shoes to meet its responsibilities under that standard. We recognize that OSHA's efforts have contributed significantly to the health and welfare of our nation's work force. Moreover, we are not unmindful that deference should be accorded an agency's interpretation of its own regulations.*fn1 Nevertheless, we conclude that the Commission failed properly to consider whether the extensive precautions already undertaken by American adequately protected its workers in accordance with OSHA's regulation.
American Airlines operates a cargo terminal at Kennedy International Airport. This facility, constructed at a cost of $13 million in 1972, is extensively automated. Nevertheless, certain tasks are still manually performed by approximately 105 cargo handlers. These workers must load and unload igloo-shaped containers of freight, removing in the process doors weighing up to sixty pounds, lift heavy cargo in metal and wooden crates with the aid of forklifts, and maneuver crates weighing up to fifty pounds. American requires its cargo handlers to wear sturdy work shoes while on duty, and provides instruction how to lift and load the cargo safely. These precautions are augmented by a program permitting employees to purchase steel-toed shoes through a payroll deduction plan. Thirty-six employees have availed themselves of this plan.
The protective measures adopted by the airlines are consonant with the 1973 cargo terminal recommendations of the Industrial Safety and Health Committee of the Airtransport Association of America, and conform to present practice within the industry.*fn2 Moreover, these precautions seem to have been successful in keeping the incidence and severity of injuries occasioned by falling doors and freight at a minimum. Between 1971, the year before the construction of the new cargo facility and 1975, the year in which American was cited by OSHA for failure to comply with the regulation in question, only eleven injuries to the feet were reported. Several of these accidents, the record discloses, occurred because workers failed to comply with company rules and three occurred on aircraft outside the area giving rise to the violation in this case.
Against this background, the instant dispute took shape. On March 4, 1975, Arthur Lind, an OSHA compliance officer, inspected American's cargo terminal at Kennedy. Thereafter, he issued a number of citations for nonserious violations of OSHA's regulations. American contested only one citation, ordering American to require its cargo handlers to wear steel-toed safety shoes, and assessing a penalty of $45 for this alleged violation of its protective equipment regulation, 29 C.F.R. § 1910.132.*fn3
At the hearing on American's claim, OSHA sought to establish that American's cargo handlers were exposed to injury from falling cartons of freight and igloo doors. To support its contention, OSHA introduced into evidence the eleven accident reports relating to injuries to the feet, and presented testimony of American employees tending to establish the existence of a hazard. In particular, OSHA's case focused on the fact that igloo doors sometimes became "stuck", and were dropped by employees who had to exert additional pressure to dislodge them. OSHA also sought to demonstrate that the doors occasionally fell on an employee's foot when removed from the igloo container and improperly balanced. Finally, the testimony presented by OSHA suggested that cargo in metal or wooden crates could fall off forklifts or handcarts used by handlers.
American, OSHA argues, conceded the existence of these dangers and the efficacy of steel-toed shoes as an ameliorative measure when it instituted its payroll deduction plan and chose to display steel-toed shoes near the employee punch clock. OSHA asserted that American also encouraged those workers who had been injured on one occasion to buy the protective footwear.
American, in turn, urged that the protective equipment regulation was unconstitutionally vague. It also claimed that the safety measures then in effect were all that a reasonably prudent man, conversant with the circumstances of the industry, would require. Specifically, American objected to OSHA's attempt to use the precautionary measures adopted by American as a bootstrap to mandate the introduction of more stringent protection or as an admission by American that something more was necessary.
Administrative Law Judge Gold upheld the citation, finding that the safety measures taken by American should be judged solely on whether they were reasonable, apparently without considering prevailing industry standards. Applying this test, he held they fell short of the requirement. The Commission affirmed, relying heavily on the testimony indicating the existence of a hazard of foot injuries, and on the limited history of actual injuries.*fn4 This petition for review ensued.
OSHA argues that we need only consider whether there is substantial evidence on the record as a whole to support its determination. American, however, urges us to determine whether the application of the Commission's regulation constituted an abuse of discretion. Although it is well established that our powers to review the substantive determination of agencies are limited, see Atlantic & Gulf Stevedores, Inc. v. OSHRC, 534 F.2d 541, 551-52 (3d Cir. 1976), it is within the scope of our oversight responsibilities to ascertain whether the Commission applied ...