Docket No. 12408

ZIDELL EXPLORATIONS, INC.

OSHRC Docket No. 12408

Occupational Safety and Health Review Commission

May 2, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Robert Friel, Assoc. Regional Solicitor

Thomas A. Sherwood, Zidell Explorations, Inc., for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Chairman:

The issue in this case is whether Judge Garl Watkins erred in vacating a citation alleging Respondent's noncompliance with the standard at 29 C.F.R. 1917.51(b). n1 For the reasons which follow, we affirm his decision.

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n1 This standard provides:

Adequate aisles and passageways shall be maintained as far as practicable in all work areas, except when impossible due to the nature of the work being performed.

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Respondent is engaged in the business of shipbreaking in Portland, Oregon. The citation was issued following an inspection which occurred while Respondent was in the process of dismantling the USS Bunker Hill. The compliance officer who conducted the inspection observed two of Respondent's employees working on the top deck of a void tank, a section of the ship [*2] which was in the process of being dismantled. The area in which the employees were working was a flat surface six to seven feet wide and approximately fifty feet long. A two inch fire hose and a three-quarter inch water hose laid on, and ran lengthwise down, the deck. In one location, the hoses were curled up so as to cover a significant part of the width of the deck. The compliance officer expressed the opinion that the hoses presented a tripping hazard to the employees working in the area.

At the close of the Secretary's case in chief, Respondent moved for an involuntary dismissal pursuant to F.R. Civ. P. 41(b) stating that based upon the evidence presented at the hearing the Secretary failed, as a matter of law, to establish a prima facie case that Respondent violated the cited standard. The Judge granted the motion, finding that the Secretary had not presented sufficient evidence to establish that Respondent failed to maintain an adequate aisle or passageway. The Secretary takes exception to this finding. n2

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n2 The Secretary also argues that the Judge erred in holding that the standard is unenforceably vague. In this respect, the Secretary interprets a statement made by the judge during the hearing that the standard is "indefinite . . . with a subjective evaluation only," as an indication that the Judge considered the standard unenforceably vague.

In his decision, however, the Judge did not in any manner indicate that he considered the standard unenforceably vague. He determined on the evidence presented that a violation had not been proven. Furthemore, the statement made by the Judge cannot reasonably be construed as an indication that he considered the standard unenforceable. He merely stated the obvious, i.e. that the standard imposes a subjective requirement. Accordingly, the vagueness of the standard is not in issue, and we express no opinion regarding it.

[*3]

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The Secretary contends that the presence of hoses on the deck in the area in which employees were working is sufficient to establish that adequate aisles and passageways were not maintained. We do not agree. The standard only requires that "adequate" aisles and passageways be maintained. The presence of objects on a working surface does not alone establish that aisles or passageways in the aren are inadequate. In concluding that the Secretary failed to show that inadequate aisles and passageways were maintained, the Judge fairly weighed the evidence. His determination is supported by the evidence, and we will therefore not reweigh the evidence on review. Allis-Chalmers Corp., No. 8274, BNA 4 OSHC 1876, 1877, CCH OSHD para. 21,341 (1976); See also Williams Enterprises, Inc., No. 4533, BNA 4 OSHC 1663, 1666, CCH OSHD para. 21,071 (1976).

Accordingly, we affirm the Judge's finding that Respondent did not violate 1917.51(b). The Secretary moves in his petition for discretionary review, however, that if a violation of 1917.51(b) is not found, the citation should be amended to allege a violation [*4] of 1917.51(a). n3 He contends, without citation to the record, that the evidence establishes "that a working area on the vessel USS BUNKER HILL was maintained in a state of unreasonable disorder and that scrap, equipment and other materials were not piled and therefore presented a hazard to employees." We have cafefully examined the record and find no support for this statement. n4 Furthermore, the citation specifically alleged that the violation consisted of the presence of "fire hose and water hose on deck in work area," and the Secretary's theory at trial was limited to the hazard allegedly presented by the hoses. The Secretary now seeks to shift the nature of the alleged violation from the presence of the hoses to the presence of general debris in the work area. Respondent was not placed on notice by the pleadings that the presence of general debris might be considered a violation, and the issue was not tried by consent. Respondent would be prejudiced if the amendment were permitted, and the motion to amend will therefore be denied. See Carr Erectors, No. 7247, BNA 4 OSHC 2009, CCH OSHD para. 19,297 (Jan. 21, 1977).

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n3 This standard provides:

All working areas on or immediately surrounding the vessel in a dry dock and a graving dock or on a marine railway shall be kept in a reasonable state of order. Scrap, equipment and other materials shall be so piled as not to present a hazard to employees.

n4 In first making the motion to amend in his petition for discretionary review, the Secretary refers to "the presence of 'a couple of 5-gallon foam cans' (Tr. 40), 'a piece of walkway -- a grating' (Tr. 40), 'a piece of loose metal' (Tr. 75), and in general 'debris' (Tr. 40, 75)." This evidence clearly does not establish "unreasonable disorder" or that "scrap, equipment, and other materials were not piled and therefore presented a hazard to employees."

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Accordingly, the Judge's decision is affirmed and the motion to amend is denied.

CONCURBY: MORAN

CONCUR:

MORAN, Commissioner, Concurring:

I agree with the affirmance of Judge Watkins' well-reasoned decision for the reasons stated in the lead opinion. Since that opinion relies in part on Judge Watkins' decision, I attach his decision hereto as Appendix [*6] A.

DISSENTBY: CLEARY

DISSENT:

CLEARY, Commissioner, Dissenting:

I dissent from the disposition of this case. The Administrative Law Judge committed reversible error by holding that the Secretary failed to sustain his burden of proving that respondent did not maintain adequate passageways. By merely deferring to the Judge's decision, the majority commits the same error. Moreover, the majority misconstrues the Secretary's "theory of the case." Finally, the majority errs by failing to grant the Secretary's motion to amend the citation on the ground that respondent would be prejudiced thereby.

During the presentation of his case, the Secretary adduced, without objection, unrebutted testimony from the compliance officer that the platform on which respondent's employees were working was covered by two hoses spread along the length of platform in such disarray that no unobstructed passageway of more than one foot in width was available (Tr. 33-34; see Exhibits C-5 & 6, R-1). n5 In addition, the compliance officer testified without objection that the platform was cluttered with the objects specified in footnote 4 of the majority opinion. The Judge did not consider this additional testimony however, because [*7] the objects were not mentioned in the complaint (J.D. 6). The Judge granted respondent's motion to dismiss the citation on the ground that the Secretary failed to meet his burden of proof.

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n5 These exhibits are aerial photographs of the platform taken at different times during the inspection. After mentioning these crucial photographs (J.D. 6), the Judge neither discussed nor expressly drew conclusions from them. This key evidence alone is persuasive of the disarray on the platform.

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The standard under consideration is drafted to protect employees from tripping hazards. The plain purpose of the standard is to avoid dependence on employee conduct in the avoidance of tripping hazards in the work environment. Cf. Akron Brick & Block Co., 3 BNA OSHC 1876, 1975-76 CCH OSHD para. 20,302 (No. 4859, 1976). Here, the two employees were engaged in activities that diverted their attention from inspecting for tripping hazards. Tripping hazards are particularly dangerous in this case because the platform on which [*8] respondent's employees were working was over 40 feet above the ground and only six to seven feet wide. A trip might occasion a fall, and a fall from such a height could be fatal. In light of the purpose of the standard and the evidence adduced at the hearing, I would hold that the Judge erred in granting respondent's motion.

I am also disturbed by the limited scope of review applied by the majority to the Judge's decision. After noting that the Judge's decision is supported by the evidence, the majority declines to use its own judgment in assessing the evidence. The majority's deference to the Judge is a failure to use its powers to decide the case as fully and finally as the Judge. The Commission has not limited its powers to do so by notice in this case or by rule. See 5 U.S.C. § 557(b). Commission Rule 91(a), 29 CFR § 2200.91(a), 41 Fed. Reg. 53015 (1976), contemplates an exercise by the Commission of full powers of review. It provides, in pertinent part, as follows:

§ 2200.91(a) Review by the Commission

* * *

(b) Petitions for discretionary review shall be filed only upon one or more of the following grounds:

(1) A finding of material fact is not supported by [*9] a preponderance of the evidence.

* * *

Both the Judge and the majority determined that the Secretary's theory of the case was restricted to the tripping hazard created by the presence of the hoses referenced in the complaint. This is not the way that I read the complaint. The first sentence of the complaint states:

Adequate aisles and passageways were not maintained in work area on starboard side, top deck of void tank, aboard vessel "Bunker Hill."

The last sentence of the complaint, in which the presence of hoses was mentioned, is only surplusage. The hazard allegedly present on the platform was that resulting from a lack of adequate aisles and passageways, i.e., a tripping hazard. All evidence tending to prove the existence of a tripping hazard was admissible and should be considered. Evidence need not be pleaded. See Wright & Miller, Federal Practice and Procedure: Civil § 1218.

The addition of another obstruction posing a tripping hazard does not add another theory. The Secretary's evidence concerns real objects and not abstractions. Moreover, even if a theory were added, pleading "theories" is arguably not only not required, but often disregarded. n6

[*10]

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n6 Under the Federal Rules of Civil Procedure, which are applicable here under Commission Rule 2(b), a complainant may recover on a theory different from that on which he based his claim. Gins v. Mauser Plumbing Supply Co., 148 F.2d 974 (2d Cir. 1945).

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Alternatively, the pleading expressly alleging the hoses as a tripping hazard should be amended to conform to the evidence concerning the debris that was received without objection. It is difficult to understand the basis for the majority's conclusion that respondent would be prejudiced by the consideration of the presence of general debris on the platform. Respondent did not object to its introduction into evidence. Nor did respondent demonstrate any difficulty in cross-examining the compliance officer with respect to the debris.

APPENDIX A

Charles G. Preston, for Complainant

Thomas A. Sherwood, for Respondent

DECISION

GARL WATKINS, Judge:

The question for decision in this enforcement proceeding under the Occupational Safety and Health Act of 1970, [*11] 29 U.S.C. 651, et seq. is whether the Secretary's evidence made a prima facie case of a violation by Respondent of 29 U.S.C. 654(a)(2) for failure to comply with a housekeeping standard of the ship breaking regulations adopted by the Secretary under the Act. Respondent's motion for involuntary dismissal under Rule 41(b) of the Federal Rules of Civil Procedure was granted at the conclusion of the Secretary's case in chief. We adhere to that ruling and vacate the citation and proposed penalty.

The housekeeping standard provides as follows:

"SUBPART F -- GENERAL WORKING CONDITIONS

29 CFR 1917.51 Housekeeping

(b) Adequate aisles and passageways shall be maintained, as far as practicable, in all work areas, except when impossible due to the nature of the work being performed."

On January 21, 1975 Respondent was in the process of dismantling the USS BUNKER HILL at a pier on the Williamette River in Portland, Oregon. As a result of an inspection that day by a compliance officer of the United States Department of Labor, two citations were issued. No. 1 contained four items for "non-serious" violations and was not contested.

Citation No. 2 is at issue here. It alleged a "repeated [*12] non-serious" violation and provided:

"Adequate aisles and passageway were not maintained in work area on starboard side, top deck of void tank, aboard vessel "Bunker Hill". Work area approximately 6 feet wide. Fire hose and water hose on deck in work are."

A penalty of $140 was proposed.

The complaint alleges:

"IV

On or about January 21, 1975, at the work-site and place of business and employment above described, the Respondent violated the ship breaking regulations in that adequate aisles and passageways were not maintained in work area on starboard side, to deck of void tank, aboard the vessel "Bunker Hill". The work area was approximately 6 feet wide and there were fire and water hoses on the deck in the work area, contrary to 29 C.F.R. 1917.51(b)."

Although the question may be somewhat academic as applied to the facts of this case, it should be noted in passing that the rule with respect to consideration of the evidence on a motion for involuntary dismissal in a non-jury case under Rule 41(b) differs from the old rule with respect to involuntary non-suit and the present rule, 51(a), applicable to directed verdicts in jury cases. It is no longer the rule at this juncture [*13] of non-jury cases that all evidence and inferences therefrom will be construed most favorably to the party having the burden of proof. At this point the court may weigh the evidence, ". . . determine the facts and give judgment for the defendant. . .". Wright & Miller, Federal Practice and Procedure, § 2371. We stated the question may be academic here because we have difficulty seeing any evidence which needs -- or is capable of -- being "weighed".

The area involved was a small part of one of the decks on the vessel. It was the tank top of a "void tank" on the starboard side of the BUNKER HILL.

Adjacent decking or other structures had been cut away or moved in some other way so that this small, long, narrow portion of the deck was in effect a "stage" with a precipitous drop-off of 20 to 45 feet on one end and two sides. It was six to seven feet wide and 40 to 50 feet long. At the other end (and not shown in the pictures offered as exhibits) the gangway from the pier reached the vessel; and from that position the person boarding the vessel could either turn to his right and move along the narrow "stage" to its end, or proceed to other parts of the vessel. There is no evidence [*14] of any reason for a workman to be on the "stage" except for the two who were there during the compliance officer's entire visit. They were engaged in either extinguishing or controlling a fire below, where an employee with an acetylene torch was cutting through bulkheads so that the entire tank -- or at least a very large portion and the top -- could be lifted off the ship in one piece.

The only objects which could have prevented this narrow platform -- high in the air -- from being an "adequate" "aisle" or "passageway" were a two-inch fire hose and a three-fourths inch water hose. They were used (the compliance officer said only part of the time) by the two workmen on the fire below them. The investigator testified to certain other unidentified small amounts of debris but his complaint was only of the two hoses.

He had the area within view at least a majority of the time for something between an hour and an hour and twenty minutes. He arrived at the scene at "1:25 to 1:30".

"A. We left the vessel approximately 2:30, maybe a quarter to 3, and the condition existed all -- during the time we were there.

Q. In regard -- did you conduct an inspection on the void tank?

A. Yes. [*15]

Q. Would you tell us what you observed?

A. I observed hoses on the deck, 2 employees walking over the hoses -- one was a 2-inch what you'd call I guess a fire hose -- a standard fire hose, and the other was -- well, actually it's one inch -- what they call three-quarter inch water hose that they use for both air and water -- on disarray all over the deck. It wasn't on the tank top -- I called it the deck -- it's the tank top. Actually, it was the deck of a portion of the ship -- just the tank top, on the starboard side.

Q. And you said you observed some employees on top of that tank top during that approximate hour that you were inspecting the vessel. During what part of that hour would you tell us that you observed anybody on top of the tank top?

A. Well, when we first came up to the vessel, they were on there. One man had a hose in his hand, and during the course of the inspection, every time I looked over at that part of the vessel, there were one or two men on that part of the vessel."

(TR 33 - 34)

As to the extent of his observation, he further testified:

"Q. (By Mr. Sherwood) Mr. Mann, you testified on direct examination that -- and I believe your words were, [*16] "Every time I looked over there, there was one or two men in the area". How many times did you look over there?

A. I don't know -- 3 or 4 times. Warren and I and Mr. Quilici were standing -- I'd say midships off of the gangway talking and looking at the other places, then looked over and you would see the man."

(TR 56)

He took two pictures, Secretary's Exhibits 5 and 6. He saw the fire below where the two men were working.

"Q. All right. I believe you testified that your attention was drawn to this location by the fact that as you were proceeding down the dock, there was a fire in progress, or there was smoke coming up?

A. Smoke, yes.

Q. And tell me, when you arrived at the ship and descended the gangway, was there a fire in progress? Was there smoke in evidence?

A. Smoke and steam, yes.

Q. The steam being created by the water on the -- (interrupted)

A. The heat -- the heated metal, yes.

Q. And at that time, did you observe any individuals on the top of the tank?

A. Yes.

Q. Two individuals?

A. Two."

(TR 58 - 59)

Respondent's Exhibit 1 shows the scene as it appeared to the compliance officer when he arrived; Secretary's Exhibit 6 when he left. There [*17] was more steam than smoke when he left. There was also another man "down below" spraying water. A fair inference from other of his testimony is that there was a period when there was no appreciable amount of either steam or smoke coming from the fire.

The compliance officer also testified that it would have "not been impossible" to lay the two hoses parallel to the narrow platform along one edge of it, (TR 43) or to bring them directly from the pier to the point on the platform where they were being used "because that hose has to come aboard the vessel someplace." (TR 65) This is the evidence most favorable to the Secretary's position.

We deem it unnecessary to decide:

1. Whether the platform was a "work area" requiring "aisles and passageways" as contemplated by the standard. There is no question that two men were working there.

2. Whether an adequate aisle or passageway was, "practicable", or "impossible due to the nature of the work being performed".

We do decide that if the long, narrow platform, or "stage", was a "work area", and also an "aisle" or "passageway"; there is no evidence it was not "adequate" as such.

We simply hold that the evidence most favorable to the [*18] Secretary fails to make a prima facie case showing that Respondent failed to comply with the standard requiring "adequate aisles and passageways shall be maintained, as far as practicable, in all work areas, except when impossible due to the nature of the work being performed".

The citation and proposed penalty will be vacated and the complaint of the Secretary dismissed with prejudice.

Based upon the foregoing, the undersigned makes the following

FINDINGS OF FACT

Respondent is a corporation engaged in business in Portland, Oregon. On January 21, 1975 it was engaged in ship breaking of the USS BUNKER HILL.

In the course of this work a portion of the deck emerged as a platform approximately six to seven feet wide and 40 to 50 feet long with an abrupt fall-off on one end and both sides. This was the portion of the deck constituting the top of a void tank on the starboard side of the vessel. Two of Respondent's employees were working in this area and on what constituted a platform or "stage". On the day in question they were either extinguishing or controlling a fire burning below them. On the platform or deck was a two inch fire hose and a three-fourths inch water [*19] hose, both of which were used by Respondent's employees on the fire.

III

There is no evidence or inference from evidence to find Respondent in violation of 29 CFR 1917.51(b) requiring "Adequate aisle and passageways shall be maintained, as far as practicable, in all work areas, except when impossible due to the nature of the work being performed."

Based on the foregoing and on all facts admitted, stipulated or proved by uncontroverted substantial credible evidence, the undersigned hereby makes the following

CONCLUSIONS OF LAW

Respondent at all times herein mentioned was engaged in a business affecting commerce within the meaning of the Act. The Review Commission has jurisdiction of the parties and the subject matter of this action.

On January 21, 1975 Respondent was not in violation of 29 U.S.C. 654(a)(2) by reason of its failure to comply with 29 CFR 1917.51(b). Respondent is entitled to an order so holding.

ORDER

Based upon the foregoing it is hereby ORDERED:

That the citation for non-serious "repeated" violation issued by Complainant to Respondent on January 21, 1975 charging therein a violation of 29 CFR 1917.51(b) be, and the same hereby is, VACATED. [*20]

IT IS FURTHER ORDERED that the proposed penalty in the amount of $140 be, and the same hereby is, VACATED.

III

IT IS FURTHER ORDERED that the complaint of Complainant be, and the same hereby is, DISMISSED with prejudice. Dated December 29, 1975

GARL WATKINS, Judge