Safeway Stores, Inc.

Plain-English summary

Safeway received multiple nonserious citations for failing to block or chock truck wheels while powered industrial trucks boarded them. Safeway had raised but then waived a defense that Department of Transportation regulation displaced OSHA authority over the working conditions. After the Commission's earlier decision, both parties agreed that Commission precedent supported the defense and jointly sought reconsideration. The Commission treated their agreement as a settlement, vacated its prior decision, and vacated the citations and proposed penalties.

Decision snapshot

• Cited standard(s): None identified in the official text.
• Outcome: The prior Commission decision, citations, and proposed penalties were vacated on the parties' joint motion.
• Key point: The Commission may vacate citations when both parties agree that another federal agency's exercised authority removes the working conditions from OSHA coverage.

Full text (OSHRC public release)

Docket Nos. 454; 723; 1070 (Consolidated)

SAFEWAY STORES, INC.
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OSHRC Docket Nos. 454; 723; 1070 (Consolidated)

Occupational Safety and Health Review Commission

April 25, 1975

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Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

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VAN NAMEE, COMMISSIONER: This matter is before us on the joint motion of the parties to reconsider our decision of December 26, 1974. *

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

• [See 14 OSAHRC 402 -
  Ed.
  ]

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Respondent who among other things is an interstate carrier of goods received multiple citations for non-serious violations of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651,
et seq.
) because it failed to block or chock the wheels of trucks while they were being boarded by powered industrial trucks. The Secretary alleged that the said conditions were violative of his regulations.

Respondent defended affirmatively and among other things said that it was not obligated to comply with the Secretary's standards in view of 29 U.S.C. 653(b)(1) because it said its activities are regulated by the Department of Transportation (DOT).
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It expressly waived the defense at trial, and therefor we did not consider it when deciding this case (slip op. at note 4).

The
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[*2]
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petition for reconsideration indicated that both parties thought that Respondent's waived defense is meritorious as to the citations in this case in view of our decision in
Mushroom Transportation Co.,
5 OSAHRC 64, BNA 1 OSHC 1390, CCH E.S.H.G. para. 16,881 (1973).
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They agreed that there is no evidence of record on the issue (which isn't surprising in view of the waiver), and they agreed that the matter could be remanded in order that evidence could be adduced.

On reconsideration the parties say that a remand is unnecessary because the
Mushroom Transportation
decision controls.
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They ask that we vacate the citations.
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Because it appears that the parties agree that violations did not occur, they have essentially
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settled the case, and vacation is in order.
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Dale M. Madden Const. Inc.
v.
OSHRC et al.,
502 F.2d 278 (9th Cir., 1974).

Accordingly, our decision of December 26, 1974 is vacated; the citations and notices of proposed penalties are vacated, and it is so ORDERED.
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CONCURBY: MORAN; CLEARY

CONCUR:

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MORAN, CHAIRMAN, concurring: I agree with the disposition in this case.

CLEARY, COMMISSIONER, concurring: I concur in the result.
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By way of clarification, however,
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I note that the respondent pleaded the Secretary's lack of authority
in its answer
as an affirmative defense, but expressly waived it at the hearing.

The lead opinion does not state whether section 4(b)(1) is jurisdictional in nature, or must be pleaded affirmatively as a defense.
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This is proper because the resolution of this issue is unnecessary to the result.
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I too hesitate to use the term "jurisdiction" because, as Justice Frankfurter observed, "it is a verbal coat of too many colors."
United States
v.
L.A. Tucker Truck Lines,
344 U.S. 33, 39 (1952) (dissenting opinion).

I cannot concur, however, with the lead opinion's conclusion that
"[b]ecause
it appears that the parties agree that violations did not occur, they have essentially settled the case, and vacation is in order" (emphasis added).
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The reasoning implicit in this holding may be inconsistent with our dispositions in
International Terminal Operating Co., Inc.,
No. 2340 (August 8, 1974) and
Brown and Kerr, Inc.,
No. 3055 (August 20, 1973).
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I note, however, that granting the joint motion would be proper inasmuch as
Mushroom Transport. Co., Inc.,
No. 1588 (November 7, 1973) would seem to support [*4]
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vacation. Indeed, the Secretary's instructions to his Assistant Regional Directors reflects a considered policy judgment in this area which I would not disturb in the absence of good cause.
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See
Field Information Memorandum No. 75-25 (March 17, 1975), CCH Employ. S. & H. Guide para. 9732.
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Also, the joint motion may be treated as a stipulation of dismissal pursuant to F.R.C.P. 41(a), but I need not rest my concurrence on this ground.

Accordingly, I concur.
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