Smith's Transfer Corporation

Plain-English summary

Smith's Transfer was cited for failing to chock the rear wheels of trucks or trailers while powered industrial trucks boarded them at a Pittsburgh facility. The company moved to dismiss on the ground that Department of Transportation regulations displaced OSHA authority over the working conditions. The judge granted the motion summarily without a formal opinion, apparently based on a mistaken belief that no timely response had been filed. The Commission held that the motion had to be evaluated under the applicable Federal Rules of Civil Procedure and remanded the case for further proceedings.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.178(k)(1); 29 C.F.R. § 1910.178(m)(7)
• Outcome: The summary dismissal was set aside and the case was remanded.
• Key point: A motion relying on matters beyond the pleadings must be handled under the applicable federal procedural rules with a fair opportunity for the parties to present relevant material.

Full text (OSHRC public release)

Smith's Transfer Corporation, OSHRC DOCKET No. 5786 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant,

v.
OSHRC DOCKET NO. 5786

SMITH’S TRANSFER CORPORATION,

Respondent.

April 18, 1975
CLEARY, Commissioner:
        This case is before us pursuant to my direction for review issued under section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. Sec. 651 et seq. , hereinafter “the Act”) on the question of whether the Administrative Law Judge erred in granting respondent’s motion to dismiss.  After reviewing the entire record, we remand this case for the reasons indicated below.  
        As the result of an inspection of respondent’s facility in Pittsburgh, Pennsylvania, a citation and notice of proposed penalty was issued by complainant.  The citation alleged, among other things, that respondent faild to plac wheel chocks und the rear wheels of trucks or trailers while they were geing boarded with powered industrial trucks in the non-compliance with the standards at 29 CFR 1910.178(k)(1) and (m)(7).  Respondent filed a timely notice of contest as to this portion of the citation and the applicable proposed penalty.  
        After the Secretary of Labor filed a complaint, respondent files its answer together with a motion to dismiss on January 10, 1974.  Respondent denied the nonserious violation, and, in its motion, pleaded that the working conditions at issue were regulated by the Department of Transportation, In support of its position, respondent cited   Mushroom Transport Co., Inc. , No. 1588[1 BNA OSHC 1390] (November 7, 1973) and asserted that, as in Mushroom , the working conditions were exempted under section 4(b) (1) of the Act because the Secretary Transportation had exercised his statutory duty to prescribe regulations affecting the working conditions in question. 1  
        On January 29, 1974, the Secretary filed a response to the motion to dismiss.  By an order dated January 30, 1974, Judge Chalk summarily granted respondent's motion without issuing a formal opinion.  When the Judge filed his order, it was accompanied by motion disposition memorandum in which the Judge stated, “Respondent 2  did not respond to this motion in accordance with rule 37.” 3  No further explanation for the ruling was given.  The parties were given notice of the Judge’s order, but were not provided a copy of the disposition memorandum.
        Rule 2(b) 4 of the Commission’s Rules of Procedure provides that, in the absence of a specific provision, procedure shall be in accord with the Federal Rules of Civil Procedure.  There being no Commission rule specifically applicable to the motions to dismiss, the question must be considered in accordance with the Federal Rules.
        Respondent, in its motion to dismiss, did not designate the rule of procedure under which it was proceeding.  The motion, however, is in the nature of a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure 5 since
1  Motor Carrier Safety Regulations, 29 CFR Secs. 392-397.
2  The Judge obviously meant that the Secretary , not respondent, had responded to the motion.
3  Commission Rule 37 (29 CFR Sec. 2200.37 states:
Response to motions.
Any party or intervenor upon whom a motion is served shall have 10 days from service of the motion to file a response.
4  29 CFR Sec. 2200.2(b).
5  The rule states:
Rule 12. Defensed and Objections-When and How Presented- by Pleading or Motion-Motion for Judgment on the Pleadings

(b) How Presented. Every defense, in law or in fact, to a claim for relief in any pleading, whether a claim, counter-claim, cross-claim or third-party claim shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: …
(6) failure to state a claim upon which relief can be granted…If a pleading sets for a claim for relief to which the adverse party is not required to serve a responsive pleading , he may assert at the trial any defense in law or fact to the claim of relief.  If on a motion sserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the courtm the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.