ON PETITION FOR REVIEW OF THE DECISION OF THE OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION OSHRC DOCKET Nos. 199 & 215.
Adams, Rosenn and Weis, Circuit Judges.
The principal issue on this appeal is whether the Occupational Safety and Health Review Commission committed reversible error when it concluded that 29 C.F.R. § 1910.132(a),*fn1 a safety regulation promulgated by the Secretary of Labor pursuant to the Occupational Safety and Health Act,*fn2 does not mandate that employers bear the cost of protective footwear required by the regulation.
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 appeal*fn3 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.
On August 22, 1972, the examiner entered an order provisionally denying Budd's motion to withdraw its motice of contest and scheduled a hearing for September 13th on the question whether Budd's motion should be granted. The examiner stated:
14. Who shall be liable for the cost [of protective shoes is] not [a] proper subject for determination under the Act. [It is], rather [a] matter which must be privately resolved by the employer and his employees. . . .
15. It is improper therefore to impose on the employer's duty to provide safety shoes 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.
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.
The Commission, in an opinion announced March 4, 1974, decided that "subpart (a) [of 1910.132] imposes no duty on the employer to provide or pay for" the safety equipment at issue here. The Commission ruled that Budd had violated the standard by failing to see to it that Budd's employees wore safety shoes when required, but that the hearing examiner erred in refusing to allow Budd to withdraw its notice of contest on the understanding that Budd was not required by the regulation to pay for the shoes. The Commission offered the following rationale:
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. . . .*fn5 The question of cost allocation, on the other hand, is a question to be resolved between employer and employee. In our ...