BUCK KREIHS CO., INC.

OSHRC Docket No. 1321

Occupational Safety and Health Review Commission

July 8, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINION:

BY THE COMMISSION: This matter is before this Commission for review of a January 16, 1973, decision of Judge Henry F. Martin, Jr., pursuant to 29 U.S.C. 661(i). At issue is whether the citation was issued with reasonable promptness as required by 29 U.S.C. 658(a). We hold that the respondent waived consideration thereof at this level because that defense was not raised in the proceedings below. Chicago Bridge and Iron Company, We therefore affirm the Judge's decision.

Chairman Moran would reverse for the reasons set forth in his dissenting opinions in Secretary v. Plastering, Incorporated, Secretary v. Advanced Air Conditioning, Inc.,

[The Judge's decision referred to herein follows]

MARTIN, JUDGE, OSAHRC: This is a proceeding brought pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970 [29 U.S.C. 651 et seq. ], hereinafter referred to as the Act, to review a citation and proposed penalties issued by the Secretary of Labor, hereinafter referred [*2] to as the Complainant, pursuant to Sections 9(a) and 10(a) of the Act.

The citation, containing ten (10) different items of a nonserious nature, was issued on August 4, 1972, and alleged the following violations on the part of Buck Kreihs Company, Inc., hereinafter referred to as the Respondent:

Item Number -- Standard or regulation allegedly violated -- Description of alleged violation -- Date on which alleged violation must be corrected

1 -- 29 CFR Section 1915.23(c)(1)(iv) -- Employee was sandblasting at #10 hatch on the main deck. A dead man control device was not provided at the nozzle end of the blasting hose. -- Immediately upon receipt of this citation.

2 -- 29 CFR Section 1915.24(a)(1)(iii) -- Employee was spray painting the stern of the vessel, Velma Lykes. He was not protected by a respirator in accordance with the requirements of 1501.82(a) and (e). -- Immediately upon receipt of this citation.

3 -- 29 CFR Section 1915.35(a)(1) -- Valve protection caps were not in place and secured on compressed gas cylinders, while laying on the wharf. -- Immediately upon receipt of this citation.

4 -- 29 CFR Section 1915.35(a)(9) -- Acetylene cylinder was not secured [*3] while in an upright position on the wharf. -- Immediately upon receipt of this citation.

5 -- 29 CFR Section 1915.36(b)(4) -- Welding cable in use, located at #5 hatch, port side of main deck in the walkway, was cut to the extent of exposing the bare conductors. -- Immediately upon receipt of this citation.

6 -- 29 CFR Section 1915.41(i)(1) -- Employee was working from a portable scaffold more than 5 feet above a solid surface in the upper tween deck of #5 hatch. No midrail was provided on the scaffold. -- August 8, 1972

7 -- 29 CFR Section 1915.41(i)(2) -- Employee was performing hot work from a scaffold 10 feet above a solid surface in #5 hatch upper tween deck, aft. Scaffold was equipped with a fiber rope. -- August 8, 1972

8 -- 29 CFR Section 1915.64(c) -- The upper hooks of the chain falls, used in the engine room, were not moused or otherwise secured. -- Immediately upon receipt of this citation.

9 -- 29 CFR Section 1915.71(g) -- Manifolds on compressed air lines did not bear the word "air" in letters at least 1" high. -- Immediately upon receipt of this citation.

10 -- 29 CFR Section 1915.72(c) -- Portable electric drill used in engine room was equipped with [*4] a switch of a lock-in type. -- Immediately upon receipt of this citation.

The aforementioned regulations are set forth verbatim in Appendix A attached hereto.

On August 16, 1972, Respondent, through his counsel, notified Complainant's area director in New Orleans that it wished to contest the violations as described in the citation as well as the proposed penalties relating to the various items covered by the citation. Subsequently, Complainant prepared and filed his formal complaint, setting forth substantially the same allegations as those alluded to in the citation and notification and proposed penalties. Respondent's answer was filed on September 13, 1972, and it was alleged that the complaint and answer had been properly posted.

Following the assignment of this case to the undersigned, a formal hearing was held in New Orleans, Louisiana, on November 13, 1972. Although Attorney Hess filed a formal appearance for the Marine Shop and Shipyard Laborers Local #821, he did not participate in the hearing. Subsequent to the hearing, Complainant's counsel submitted his memorandum brief and proposed findings of fact and conclusions of law.

Although Respondent's answer generally [*5] denied the allegations in the complaint, Respondent's counsel at the opening of the hearing entered into a stipulation with Complainant's counsel to the effect that at all times pertinent hereto Respondent was in an industry affecting commerce; that the Review Commission has jurisdiction in this matter; that Respondent admitted the factual allegations of the complaint; that Respondent owned or controlled all of the equipment referred to in the alleged violations, with the exception of a portable electric drill; and that the citation, notification of proposed penalties, and notice of contest, were issued and served as alleged in the complaint.

The issues to be determined herein are whether there have been violations of the various standards or regulations as set forth in the citation and complaint. In the event that violations have been established, then a further determination must be made to ascertain whether or not the proposed penalties are reasonable or appropriate.

The alleged violations herein arose out of an inspection of Respondent's workplace on board the Velma Lykes at the St. Maurice Avenue Wharf on the Mississippi River in New Orleans, Louisiana, on July 12, [*6] 1972. Respondent, Buck Kreihs Company, Inc., is incorporated under the laws of the State of Louisiana with offices in New Orleans, and is generally engaged in constructing, repairing or remodeling all types of ships. On July 12, 1972, Respondent was performing major repairs at its workplace on the Velma Lykes, and at the time of the aforementioned inspection, had more than 100 employees working on the vessel [Tr. 74]. n1

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n1 Complainant's Exhibit 15 reveals an average of 241 employees for the first ten months of 1972.

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Testimony from an Occupational Safety and Health Administration inspector, Mr. Forest P. Luc, revealed that Respondent's safety director was very cooperative during visits to the workplace and that following the disclosure of the aforementioned discrepancies, corrective measures were taken immediately or shortly thereafter.

As previously indicated, the facts set forth in the ten items of the citation were admitted and consequently Respondent is found to be in violation of the cited regulations. [*7] The only serious dispute arises as to the appropriateness of the penalties proposed by Complainant. n2

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n2 No penalties were proposed for items 3, 4 and 10 of the citation [valve protection cap not in place; acetylene cylinder not secured; and electric drill used with lock-in type of switch.]

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Inspector Luc, attached to the Occupational Safety and Health Administration area office in New Orleans, testified as to his experience in the longshoring field and his background in the safety field. He outlined the various infractions which he noted during his July 12, 1972, inspection of Respondent's worksite, primarily for the purpose of showing the basis for his recommended penalties. He indicated that he used his own judgment in selecting an unadjusted figure to be used for a particular violation, taking into account the probability of an accident, the severity thereof, and the frequency or extent to which the standard was violated. He stated that he then followed the provisions of the Act in allowing credit for Respondent's [*8] good faith, size of the business, gravity of the violation, and history of previous violations.

Inspector Luc testified in considerable detail as to the methodology used in arriving at a proposed penalty for each cited violation. He allowed no credit for size of business in view of the large number of employees, volume of business conducted, and Respondent's financial reports (Complainant's Exhibits 10 through 15). Respondent's safety director, Mr. Eugene Daires, described his employer as a major repair facility (Tr. 133). The inspector allowed a 20 percent reduction (the maximum under existing guidelines) for good faith in view of Respondent's cooperative attitude. He indicated that Respondent's safety director, and other management officials he dealt with, had always been amenable to his inspection findings and had always remedied most of the discrepancies right away. Inspector Luc did not allow Respondent any reduction for history (20 percent is the maximum amount), in view of the fact that Respondent's violations have in some instances been duplications of prior infractions.

Because of Respondent's prompt abatement a further reduction of 50 percent of each penalty [*9] was allowed. n3

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n3 Occupational Safety and Health Administration area director, John K. Parsons, testified that he was in general agreement with the judgment and recommendations made by Inspector Luc as to the proposed penalties. He was of the view that the penalties were actually on the low side, considering the size of the Respondent (Tr. 98).

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Some comment regarding the Respondent's past history is appropriate at this point. Testimony from Respondent's witnesses was designed to place the blame for the violations on the high turnover of employees, incompetency and poor education on the part of the employees furnished by the union hall, and the reluctance of some employees to comply with certain safety measures, such as the wearing of certain protective devices. Mr. Daires, the safety director, testified as to daily visits which he made to various ship repair jobs underway and as to his efforts to reduce safety hazards. He also cited an award (Delta Safety Society Award) which Respondent had received for reducing [*10] the number of industrial accidents in 1970 and 1971. He indicated that periodic meetings were held with supervisory personnel to discuss safety matters. He admitted that most employees can be counted upon to follow the advice which is given them.

The Act does not define what is meant by the words "history of previous violations". However, a logical interpretation would place the phrase within the same category as "past record" or "past history". In the case of J.T. Clark and Sons of Maryland, Inc.,

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n4 The Clark decision became the decision of the Review Commission since no review was ordered within a thirty day period.

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In the case at hand it is noted that Respondent has been cited for violating various sections of 29 CFR 1501 (Safety and Health Regulations for Ship Repairing), n5 as far back as 1967 (Complainant's Exhibit 16). Some of the violations are listed as "repeats." Several of the older infractions are the same as those observed by Inspector Luc on July 12th, such as:

Manifolds on compressed air lines not labeled 'air;' no dead man control device on blasting hose, welding cable in poor repair; and acetylene cylinders not secured in upright position, etc.

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n5 These regulations were adopted by the Secretary as Occupational Safety and Health Hazards on May 29, 1971. (See 29 CFR 1910.13 and 29 CFR 1915.1) The wording of the regulations in Part 1915 is identical to that in Part 1501.

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Inspector Luc testified that in his inspection of Respondent's workplace on the date of November 3, 1970, he found fiber rope being utilized as a railing while "hot work" was being performed. This is also one of the items in the citation issued [*12] as a result on the July 12th inspection.

In answer to Respondent's counsel, Mr. Luc admitted that the violations he found on July 12th on the Velma Lykes are similar to those found in other shipyards. He explained, however, that he never noticed the dead man control violation in other yards. Mr. Luc stated that while Respondent's supervisory personnel had always exhibited a cooperative attitude and promptly corrected deficiencies, he would go back later and find "repeats of these things" (Tr. 93).

It is abundantly clear from the entire record that although Respondent's supervisory personnel had a wholesome attitude from a safety view point, the actual supervision of the workmen was not adequate and has not prevented the recurrence of safety infractions. It is noted that Mr. Daries, who assumed his duties as safety director in January of 1970, was not made aware of the existence of a cease and desist order by his company officials, but was later advised of the same by Occupational Safety and Health inspectors (Tr. 141).

Respondent's counsel objected to the receipt of Complainant's Exhibit 9, which is a consent order for injunction issued in the U.S. District Court for [*13] the Eastern District of Louisiana, on April 2, 1971, on the ground that the order was a consent order and was entered into merely as a compromise measure and could not be construed as an admission that Respondent was responsible for the violation of safety regulations. The exhibit was received in evidence subject to any further objections Respondent might raise on brief as to its admissibility. The aforementioned order restrained Respondent from violating the provisions of Section 41(a) of the Longshoremen's and Habor Workers' Compensation Act, as amended (33 U.S.C. 941), and the certain subparts and sections of the Safety and Health Regulations for Ship Repairing as found in the Federal Register at 29 CFR 1501, et seq. It is further noted that on page 2 of said order that Respondent was the subject of an administrative proceeding in 1967 wherein it was held that Respondent had failed to comply with Section 41(a) of the Act (The Longshoremen's and Harbor Workers' Compensation Act, as amended, 33 U.S.C. 941) and certain of the safety regulations issued thereunder, and further that Respondent should cease and desist from further violating Section 41(a) of the Act. Certainly, [*14] it is appropriate to consider the aforementioned order of the U.S. District Court as a part of Respondent's "past record".

In view of the aforementioned restraining order, it is incumbent upon Respondent's managerial and supervisory personnel to provide for more stringent supervision over its employees in order to prevent a repetition of the same types of infractions and do all things reasonably possible to provide a safe work place for their employees. Based upon all of the evidence of record, it is concluded that Respondent violated the regulations as enumerated in the citation and complaint and that the penalties proposed by the Complainant are proper and should be affirmed.

CONCLUSIONS OF LAW

1. At all times mentioned herein, Respondent was and now is an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970.

2. At all times mentioned herein, Respondent was subject to the provisions of the Occupational Safety and Health Act of 1970, and standards and regulations promulgated thereunder. The Commission has jurisdiction of the parties and of the subject matter herein.

3. On July 12, [*15] 1972 Respondent violated the following standards and appropriate penalties are assessed as indicated:

(a) Section 29 CFR 1915.23(c)(1)(iv) by failing to have a dead man control device on the nozzle end of the blasting hose -- penalty $60.00.

(b) Section 29 CFR 1915.24(a)(1)(iii) in view of an employee's spray painting without the protection of a respirator -- penalty $140.00.

(c) Section 29 CFR 1915.35(a)(1) by reason of the failure to have valve protection caps in place and secured on compressed gas clinders -- no penalty.

(d) Section 29 CFR 1915.35(a)(9) by reason of the failure to secure in an upright position an acetylene cylinder -- no penalty.

(e) Section 29 CFR 1915.36(b)(4) by reason of using a welding cable which was cut to the extent of exposing the bare conditions -- penalty $40.00.

(f) Section 29 CFR 1915.41(i)(1) by reason of having an employee working on a portable scaffold more than five feet above the surface where no midrail was provided on the scaffold -- penalty $140.00.

(g) Section 29 CFR 1915.41(i)(2) by reason of permitting an employee to perform hot work on a scaffold, ten feet above a solid surface, when said scaffold was equipped with a fiber rope -- [*16] penalty $140.00.

(h) Section 29 CFR 1915.64(c) by failing to have the upper hooks of a chain fall properly "moused" or otherwise secured -- penalty $40.00.

(i) Section 29 CFR 1915.71(g) by reason of the fact that manifolds on compressed air lines did not bear the word "air" in inch high letters -- penalty $50.00.

(j) Section 29 CFR 1915.72(c) by reason permitting the use of a portable electric drill which was equipped with a switch of a lock-in type -- no penalty.

4. The penalties referred to in the foregoing paragraphs are, under all circumstances, appropriate and proper.

ORDER

Based upon the foregoing findings and conclusions, and upon the entire record, IT IS ORDERED THAT:

Respondent violated the provisions of Section 29 CFR 1915.23(c)(1)(iv) 1915.35(a)(1); 1915.35(a)(9); 1915.36(b)(4); 1915.41(i)(1); 1915.41(i)(2); 1915.64(c); 1915.71(g); and 1915.72(c); and that the citation and proposed penalties totaling $610.00 be and the same are hereby affirmed.

APPENDIX A

29 CODE OF FEDERAL REGULATIONS

1915.23(c)(1)(iv)

. . . Dead man control. A dead man control device shall be provided at the nozzle end of the blasting hose either to provide direct cutoff or [*17] to signal the pot tender by means of a visual and audible signal to cut off the flow, in the event the blaster loses control of the hose. The pot tender shall be available at all times to respond immediately to the signal.

1915.24(a)(1)(iii)

. . . In large and well ventilated areas, employees exposed to such spraying shall be protected by respirators in accordance with the requirements of 1915.82(a) and (e).

1915.35(a)(1)

. . . Valve protection caps shall be in place and secure. Oil shall not be used to lubricate protection caps.

1915.35(a)(9)

. . . Acetylene cylinders shall be secured in an upright position at all times except, if necessary, for short periods of time while cylinders are actually being hoisted or carried.

1915.36(b)(4)

. . . Cables in poor repair shall not be used. When a cable, other than the cable lead referred to in subparagraph (2) of this paragraph, becomes worn to the extent of exposing bare conductors, the portion thus exposed shall be protected by means of rubber and friction tapes or other equivalent insulation.

1915.41(i)(1)

. . . Scaffolding, staging, runways, or working platforms which are supported or suspended more than [*18] 5 feet above a solid surface, or at any distance above the water, shall be provided with a railing which has a top rail whose upper surface is from 42 to 45 inches above the upper surface of the staging, platform, or runway and a midrail located halfway between the upper rail and the staging, platform, or runway.

1915.41(i)(2)

. . . Rails shall be of 2 X 4 inch lumber, flat bar or pipe. When used with rigid supports, taut wire or fiber rope of adequate strength may be used. If the distance between supports is more than 8 feet, rails shall be equivalent in strength to 2 X 4 inch lumber. Rails shall be firmly secured. Where exposed to hot work or chemicals, fiber rope rails shall not be used.

1915.64(c)

. . . Straps, shackles, and the beam or overhead structure to which a chain fall or pull-lift is secured shall be of adequate strength to support the weight of load plus gear. The upper hook shall be moused or otherwise secured against coming free of its support.

1915.71(g)

. . . Headers, manifolds, and widely spaced hose connections on compressed air lines shall bear the word "air" in letter at least 1 inch high, which shall be painted either on the manifold or [*19] separate hose connections, or on signs permanently attached to the manifolds or connections. Grouped air connections may be marked in one location.

1915.72(c)

. . . Portable electric tools which are held in the hand shall be equipped with switches of a type which must be manually held in the closed position.