Union Tank Car Company

Plain-English summary

Union Tank Car Company required employees at its railcar repair facility to buy their own safety shoes and welding gloves while subsidizing metatarsal guards. OSHA cited the company on the theory that the word “provide” in the general PPE standard required employers to pay for the equipment. The Commission noted that its earlier precedent had rejected that reading and that OSHA had accepted it for about twenty years. Agency interpretation letters had repeatedly stated that the standards did not specify who paid, and a later PPE rulemaking did not address cost allocation. OSHA then changed its position through a memorandum and directives without explaining the policy shift. The Commission found the new interpretation unreasonable and not entitled to deference, and vacated the citation.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.132(a)
• Outcome: The PPE citation was vacated.
• Key point: An agency interpretation that reverses longstanding policy without a reasoned explanation may be denied deference.

Full text (OSHRC public release)

SECRETARY OF LABOR,
Complainant,
v. OSHRC Docket No. 96-0563
UNION TANK CAR COMPANY,
Respondent.

USWA LOCAL 8923,

Authorized Employee Representative.


                                 DECISION

Before: WEISBERG, Chairman; GUTTMAN, Commissioner.
BY THE COMMISSION:
Union Tank Car Company (“Union Tank”), located in Cleveland, Texas, repairs
railroad cars. Following an inspection on March 7, 1996, Union Tank was cited for an
alleged violation of 29 C.F.R. § 1910.132(a) for failing to provide personal protective
equipment (“PPE”). The citation, as amended, alleged:
29 C.F.R. 1910.132(a): Protective equipment including, equipment, for eyes,
head, face, and extremities, protective clothing, respiratory equipment and
protective shields and barriers, were not provided:
a. At Hwy 787 East. Employees required to purchase their safety shoes and
welding gloves and the company would subsidize the cost of metatarsal
guards.
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     Both parties submitted cross motions for summary judgment to Administrative Law

Judge James H. Barkley. The Secretary argued that she interprets the term “provide” in
section 1910.132(a)1 to mean that the employer must pay for the cost of PPE. The judge did
not rule on the reasonableness of the Secretary’s interpretation, instead he found that the
cited standard, section 1910.132(a), was preempted by sections 1910.1362 (addressing foot
protection) and 1910.1383 (addressing hand protection) and vacated the citation. We affirm
the decision of the administrative law judge, but for different reasons.

     I.     History of Section 1910.132(a).
     Section 1910.132(a) was a national consensus standard promulgated pursuant to

section 6(a) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678, in

1
Section 1910.132(a) provides:

     (a) Application. Protective equipment, including personal protective equipment
     for eyes, face, head, and extremities, protective clothing, respiratory devices,
     and protective shields and barriers, shall be provided, used, and maintained in
     a sanitary and reliable condition wherever it is necessary by reason of hazards
     of processes or environment, chemical hazards, radiological hazards, or
     mechanical irritants encountered in a manner capable of causing injury or
     impairment in the function of any part of the body through absorption,
     inhalation or physical contact.

2
Section 1910.136(a) provides:

     (a) General requirements. The employer shall ensure that each affected
     employee uses protective footwear when working in areas where there is a
     danger of foot injuries due to falling or rolling objects, or objects piercing the
     sole, and where such employee's feet are exposed to electrical hazards.

3
Section 1910.138(a) provides:

     (a) General requirements. Employers shall select and require employees to use
     appropriate hand protection when employees' hands are exposed to hazards
     such as those from skin absorption of harmful substances; severe cuts or
     lacerations; severe abrasions; punctures; chemical burns; thermal burns; and
     harmful temperature extremes.

3

1971. The Commission first addressed the meaning of the term “provide” in the cited section
      in The Budd Co., 1 BNA OSHC 1548, 1973-74 CCH OSHD ¶ 17,387 (No. 199,
      1974)(consolidated), aff'd, 513 F.2d 201 (3d Cir. 1975). The Commission determined that
      “provide” in section 1910.132(a) could not be interpreted to mean “pay for.”4 Reading all
      three subparts of section 1910.132 together, the Commission held that to read subpart (a) as
      requiring the employer to provide protective equipment would negate subpart (b), which
      contemplates the use of employee provided equipment.5
      Since Budd, we are aware of at least five letters of interpretation issued by OSHA
      from 1976 to 1993 clarifying an employer’s responsibility to “provide” PPE under section
      1910.132.6 In these letters, OSHA never stated that the standard required employers to pay
      the cost of PPE. For example, the agency explained that “[t]he OSHA standards do not . . .
      specify who pays the cost of such protective equipment. This question normally is settled
      through discussions between the employer and employees, or through the collective
      bargaining process.” September 2, 1976 Interpretive Letter to Adlai E. Stevenson. In a 1990
      letter, OSHA stated that it had “conducted a recent hearing on proposals to revise existing
      OSHA standards covering personal protective equipment. One of the issues discussed at the
      hearing concerned who should bear the cost of safety equipment necessary to protect

4
In that case, the employer did not deny that it violated section 1910.132(a), and moved to
withdraw its notice of contest. This motion was conditioned on a finding that Budd was not
obliged to pay for the required safety equipment -- steel-toed shoes. The Secretary did not
object. However, the Authorized Employee Representative argued that the company was
required to provide and pay for the equipment.
5
Section 1910.132(b) provides:

   (b) Employee-owned equipment. Where employees provide their own
   protective equipment, the employer shall be responsible to assure its adequacy,
   including proper maintenance, and sanitation of such equipment.

6
These letters of interpretation were published on OSHA’s internet site. We find it troubling
that the Secretary made no references to these letters of interpretation in her submissions to
the Commission. The Secretary asserts that she has always interpreted the term “provide” in
section 1910.132(a) to mean “pay for.”
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employees during work situations. We do not expect a formal resolution of this issue in the
near future.” May 9, 1990 Interpretive Letter to Benjamin Schneider.
In 1989, nine months prior to the Schneider interpretive letter, OSHA issued a notice
of proposed rulemaking (“NPRM”) that was intended to create revised standards for PPE that
were “more clearly written, more comprehensive, and [that] more accurately reflect[ed]
available technology.” 54 Fed. Reg. 33,832. We assume that the hearings conducted in
conjunction with the rulemaking were the same hearings mentioned in the Schneider letter.
Yet there was no proposal in the NPRM to alter section 1910.132(a). The Secretary argues
that the “Costs of Compliance” section in the NPRM indicates that employers will bear the
costs of PPE. This assertion is not borne out in the plain language of the NPRM published
in the Federal Register. The NPRM addressed only the increased cost of compliance with
the revised rule, it did not address who will bear those costs. The “Costs of Compliance”
section reads in part:
Under both the existing and proposed standards there are requirements to
provide PPE wherever there are hazards present in the workplace. OSHA
estimates that the incremental cost to comply with the revised rule would be
approximately $28.3 million annually.
54 Fed. Reg. 33,840. The final rule, issued in 1994, used a similar cost analysis. Neither the
NPRM nor the final rulemaking addressed any requirement that employers must provide and
pay for PPE. Indeed, neither addressed cost allocation at all.7
In October 1994, four months after the revisions to the PPE standard went into effect,
a 1994 memorandum issued by Deputy Assistant Secretary James W. Stanley to regional
administrators and heads of directorates outlined an employer’s obligation to pay for PPE
(“Stanley memorandum”). The only stated reasons for the memorandum was that it was
“important that a uniform approach be taken by all OSHA offices with respect to the question

7
The Secretary requested that we take official notice of a document entitled “Preliminary
Regulatory Impact and Regulatory Flexibility Analysis of the Personal Protective Equipment
Standard.” Pages IV-7 through IV -8 were attached to her motion. Although we find this
document to be of limited value, we grant the Secretary’s motion.
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of employer responsibility for payment of the cost of . . . PPE.” The memorandum stated
that:
OSHA has interpreted its general PPE standard, as well as specific standards,
to require employers to provide and to pay for personal protective equipment
required by the company for the worker to do his or her job safely and in
compliance with OSHA standards. Where equipment is very personal in nature
and is usable by workers off the job, the matter of payment may be left to
labor-management negotiations. Examples of PPE that would not normally be
used away from the worksite include, but are not limited to: welding gloves,
wire mesh gloves, respirators, hard hats, specialty glasses and goggles (e.g.,
designed for laser or ultraviolet radiation protection), specialty foot protection
(such as metatarsal shoes and linemen’s shoes with built in gaffs), face shields
and rubber gloves, blankets, cover-ups and hot sticks and other live-line tools
used by power generation workers. Examples of PPE that is personal in nature
and often used away from the worksite include non-specialty safety glasses,
safety shoes, and cold-weather outer wear of the type worn by construction
workers. However, shoes or outerwear subject to contamination by carcino-
gens or other toxic or hazardous substances which cannot be safely worn off-
site must be paid for by the employer. Failure of the employer to pay for PPE
that is not personal and not used away from the job is a violation and shall be
cited.
OSHA restated this policy in directive number STD 1-6.6, issued on June 16, 1995, updating
the inspection guidelines for 29 C.F.R. Subpart I. This directive noted that “[f]ailure of the
employer to pay for PPE that is not personal and not used away from the job is a violation
of 29 C.F.R. 1910.132(a) and shall be cited.”
On April 3, 1995, OSHA issued a letter of interpretation that reflected the apparently
new requirement contained in the Stanley memorandum that employers must pay for some
types of PPE. Neither the Stanley memorandum nor the April 1995 letter of interpretation
gave any explanation for the change. Directive STD 1-6.6 reiterated the new interpretation
less than a year before Union Tank was inspected on March 6, 1996. Another letter of
interpretation, issued on December 9, 1996, similarly reflected OSHA’s change in
requirements.
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   II.    Analysis
   In Martin v. OSHRC (CF & I Steel Corp.) 499 U.S. 144, 150, 157-58 (1991) (“CF

& I”), the Supreme Court held that reviewing courts must defer to the Secretary’s reasonable
interpretation of an ambiguous regulation that otherwise “sensibly conforms to the purpose
and wording of the regulation[]”, taking into account “whether the Secretary has consistently
applied the interpretation embodied in the citation,” “the adequacy of notice to regulated
parties,” and “the quality of the Secretary’s elaboration of pertinent policy considerations.”
Here, the Secretary claims that she “has consistently applied the interpretation
embodied in the citation,” but this claim is unsupported. The Secretary’s new interpretation
comes after twenty years of uninterrupted acquiescence in the interpretation the Commission
announced in Budd. During this twenty-year period, the Secretary stated more than once in
interpretative letters that the “standards do not . . . specify who pays the cost of such
protective equipment.” Moreover, from 1989 to 1994 the Secretary conducted a rulemaking
proceeding dealing with PPE that could have addressed the question of who pays for PPE
under section 1910.132(a), but did not. The Stanley memorandum was issued only four
months after the publication of the final rules that culminated that rulemaking. Finally, the
Secretary’s interpretation also fails to “elaborate” the policy considerations that caused her
to change her interpretation. See CF & I. Although she claims that she “clearly articulated”
her position in the October 1994 memorandum and the 1995 instruction, neither of these
“articulations” nor any of the rulemaking documents provide an adequate foundation for the
change in her interpretation. See Greater Boston Television Corp. v. FCC, 444 F.2d 841,
852 (D.C. Cir.), cert.denied, 403 U.S. 923 (1971) (“agency changing its course must supply
a reasoned analysis indicating that prior policies and standards were being deliberately
changed, not casually ignored”).
The circumstances of the interpretation the Secretary proposes here are in stark
contrast to those in Erie Coke Corp., 15 BNA OSHC 1561, 1991-93 CCH OSHD ¶ 29,653
(No. 88-611, 1992), aff’d on other grounds, 998 F.2d 134 (3d Cir. 1993), which the
Secretary mistakenly relies on. There, the interpretation in question was issued relatively
contemporaneous to the issuance of the cited standard, see OSHA Instruction STD 1-6.4
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(March 12, 1979), nearly nine years before the inspection of Erie’s plant took place. See CF
& I (reasonableness of interpretation takes consistency of application into account). The
standard cited in Erie Coke requires that “[t]he employer shall provide and assure the use
of appropriate protective clothing and equipment. . . .” (emphasis added). The Commission
noted that “[o]ur inquiry is limited, by Erie’s arguments and the language of the citation, to
the Secretary’s interpretation of ‘provide’ only as it relates to flame resistant gloves under
this standard.” 15 BNA OSHC at 1563, 1991-93 CCH OSHD at p. 40,148 (emphasis in
original). The Commission distinguished Budd, noting that 1910.132(a) requires that
protective clothing and equipment “shall be provided” but is silent as to who should do the
providing.
Accordingly, under all of these circumstances, we cannot find that the Secretary’s
interpretation is reasonable and entitled to deference under CF & I. The citation is therefore
vacated.

                                              /s/
                                              Stuart E. Weisberg
                                              Chairman


                                              /s/
                                              Daniel Guttman
                                              Commissioner

Dated: October 16, 1997