INTERNATIONAL TERMINAL OPERATING COMPANY

OSHRC Docket No. 2340

Occupational Safety and Health Review Commission

August 8, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: CLEARY

OPINION:

CLEARY, COMMISSIONER: On October 11, 1973, Judge Robert P. Weil issued his decision and order in this case, affirming four non-serious violations of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., Hereinafter referred to as "the Act") and assessing penalties in the total amount of $135. Judge Weil vacated a fifth alleged non-serious violation. n1

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 The citation for non-serious violations contained seven items. The respondent contested only five.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Subsequently, complainant filed a Petition for Discretionary Review with respect to the vacation of the alleged non-serious violation of section 5(a)(2) of the Act for failure to comply with the standard at 29 C.F.R. 1918.63(c). On November 15, 1973, review was directed pursuant to section 12(j) of the Act on the issue raised in the Secretary's Petition for Discretionary Review.

In response to the direction for review, complainant has submitted [*2] a notice that it is withdrawing the citation with respect to the alleged violation under review. Service of the notice was made upon respondent and the authorized employee representative.

The Commission has held that complainant cannot unilaterally withdraw a citation at this stage in the proceedings. See Brown and Kerr, Inc., No. 3055 (August 20, 1973). Since Commission approval of withdrawal of a citation is necessary, we deem complainant's notice to be a motion to withdraw the citation for non-serious violation of the Act. That motion is unopposed. Therefore, we need not reach the issue on review. Complainant's motion to withdraw is granted with prejudice.

Accordingly, it is ORDERED that the Judge's decision vacating the citation for non-serious violation of the Act for failure to comply with the standard at 29 C.F.R. 1918.63(c) and proposed penalty therefor is affirmed. The Judge's disposition of the remaining contested items of the citation and his assessment of penalties is also affirmed.

CONCURBY: MORAN

CONCUR:

MORAN, CHAIRMAN, concurring: I agree with the disposition ordered in this case but disagree with the assertion that "Commission approval of withdrawal [*3] of a citation is necessary." One well might ask why this Commission continues to insist that its approval is necessary in light of this clear statement of law:

"Enforcement of the Act is the Secretary's responsibility. He has discretion of compromise penalties as a natural incident of his enforcement powers." Madden v. Hodgson et al.    F.2d    (C.A., 9th Cir., No. 72-1874, decided July 29, 1974).

This Commission has no standing to interfere with the Secretary's enforcement power when there is no party objecting to his actions. Once he decides that it is in the interests of enforcement of this law to permit an employer to withdraw from litigation, the case is closed for there are no longer any issues in dispute between the parties. And, as the Court has stated ever so clearly in Madden:

The administrative structure limits the Commission to adjudication.

[The Judge's decision referred to herein follows]

WEIL, JUDGE, OSAHRC: This is a proceeding by complainant under the Occupational Safety and Health Act, 29 U.S.C. 651 et seq., for an order affirming the citation and proposed penalties herein.

Respondent is one of the three largest stevedoring companies [*4] operating in the Port of New York. On February 8, 1973, complainant inspected respondent's terminal in the Erie Basin in Brooklyn and more specifically, respondent's operations aboard and alongside four vessels, MV "Kastar," MV "Zawichost," MV "Vassilos R," and MV "Stazzi." On February 14, 1973, complainant issued a citation for seven items of nonserious violation, three in connection with "Kastar," one in connection with "Zawichost," two in connection with "Vassilos R," and one in the area which "Stazzi" was berthed. Respondent contested Items 1, 3, 4, 6 and 7 of the citation; and on complaint and answer the case went to final hearing, on which the evidence was received as if each item were a separate case.

I

Item 1 alleges that respondent breached 29 C.F.R. Section 1918.91(c), which requires that "Slippery conditions shall be eliminated as they occur." Rather than read this remedial regulation literally, and therefore as perhaps so broad as to be unenforceable, I think it should be interpreted as a statute would be, that is to say, as limited by its overall purpose, as such purpose is revealed by its introductory provisions, here Sections 1918, 1, .2 and .3(c) and (d), and [*5] by its other provisions in pari materia, namely the other paragraphs of .9, which provide that the weather deck walking and working areas shall be kept clear of tripping and stumbling hazards; that gear not is use shall be removed from the immediate working area; and that employees shall not be exposed to ice falling from aloft where the circumstances at the time are such as to create a hazard (emphasis added). Also, the language must be limited by interpretative decisions, e.g., Tishman Realty & Construction Co., Inc. #567. Thus it is reasonable to read the provision here as requiring the stevedoring company to eliminate slippery conditions which create a hazard to its employees in the course of their work. So read the standard is valid and enforceable. To what extent was it breached?

When DiMartino, the compliance officer, and Incorvaia, the employer's representative, made the walk-around inspection (22-3, 42-3), they found in the weather deck, immediately forward of the por-side winch abaft No. 5 hatch, a patch covered with spots of oil, which apparently had resulted from the circumstance that the ship's crew had over-lubricated the winch barrel [*6] about two hours before, when they slushed it down in order to keep the cable supple (27, 33, 69). DiMartino and Incorvaia disagreed about the size of the patch. DiMartino thought that the area was about 3' X 5' with some of the oil running down the sloping side of the walkway and spreading forward over an area as wide as the drum (23-4, 31, 69), while Incorvaia thought the patch was the size of his two hands, with a quantity of oil which he could have wiped up with two pocket handkerchiefs (43-4, 60). But more important, they disagreed as to whether respondent's employees had to traverse the oily patch in doing their work and in going to and from their duty stations. According to DiMartino, the oily patch was in a walking area, since, he testified, the gangwaymen had to pass over this are in walking from the hatch coming to the bulwark; the winchman would have to walk through it; and the men working inside the hold then being loaded would have to traverse it going to and from the hatch. DiMartino made this assumption although he did not see any of the gang in the hold do so (24-5); but on cross-examination he said he actually saw "longshoremen" walking through the area [*7] (32). On the other hand Incorvaia, who was with DiMartino, said that he saw no longshoremen walk through the oily patch and that no longshoreman had to do so, and he gave a comprehensive description of the operation in support of his statement (44, 45-6, 54).

According to Incorvaia, the ship was lying port side to respondent's dock (30-1), being loaded by respondent's men (41, 52). At the time of the inspection they were loading through No. 5 hatch, the one nearest the ship's stern (45). The forward part of the hold was full; and cargo was going into the central and after part (46). The hatch was a large, oblong opening in the weather deck, with coamings all around. Between the longitudinal coamings and the bulwarks there were relatively narrow deck areas. Astern of the hatch but between the bulwarks and the line of the longitudinal coamings projected aft there was a winch on each side (45). The winchman sat amidships on a raised platformeastern of the hatch, from which position he could operate either winch (47). At the time he was operating the port winch, bringing cargo up off the dock, swinging each draft in over the bulwark to a position above the hatch and then lowering [*8] it into the hold where other men stowed it (51-3, 24). From his platform the winchman could see into the hatch but he could not see his cargo drafts on the dock (47). Here is where the special function of the gangwayman came in. As the winchman lifted the cargo from the dock he relied on the gangwayman's signals until the cargo came up to a point where the winchman could see it. Thus the gangwayman had to be in a position where he could see the cargo on the dock and could be seen by the winchman. Accordingly there was another raised platform, this one forward of No. 5 hatch, for the gangwayman; and for the performance of his special function the gangwayman had no need to be on deck at all (44, 47-8). However the gangwayman also had a general function. He was second in command of the hatch (54); and at the time of the inspection Incorvaia said the gangwayman was on deck with the hatch boss at the forward part of the hatch coaming above the area where cargo was being stowed (51-2). The hatch boss was in charge of all operations at the hatch. He had to see that the cargo was "going in right" and that the condition of the deck and rigging were good. According to Incorvaia [*9] he was away from the area being swept by the drafts of cargo coming in over the side, away from the winch (51-3). Incorvaia stated that there was no occasion for the gangwayman to walk through the oily patch; that the winchman had a ladder amidships leading up to his position, which ladder he approached from the starboard side; and that for the gang in the hold there were two ladders, a portable ladder on the starboard side, and a permanent, ship's ladder leading down from the middle of the athwartships hatch coaming (44-48). However, Incorvaia later admitted that he did not see the temporary ladder (80, 83). To illustrate and particularize his testimony Incorvaia drew a rough diagram of the area, respondent's Ex. 1, which complainant's counsel objected to only on the ground that it did not properly depict the size of the oily patch (50); and DiMartino stated that the diagram was an accurate representation except for the area and location of the oily patch, and the positions of the hatch boss and the gangwayman, designated by Incorvaia by black circles in pen; and he described the oily patch as moving forward from the winch the full width of the winch barrel (68-9).

To what extent, [*10] then on this conflicting evidence, did complainant meet his burden of providing that longshoremen traversed the oily patch, which was not only in a corner, between the winch which was working and the after end of the hatch, but also was in an area swept overhead by drafts of cargo? According to DiMartino they all had to traverse the oily patch. According to Incorvaia no one was seen in the oily patch and no one worked there; and from his testimony and diagram, all would reach their duty stations from the dock by boarding the vessel over the gangway forward of No. 5 hatch, the winchman and the gang in the hold reaching their ladders by moving athwartships, forward of No. 5 hatch and then down the starboard, disengaged side of the ship, while the hatch boss and the gangwayman could do their work without moving nearer to the oily patch than the forward end of the port side hatch coaming. But early in his testimony Incorvaia conceded that the oily patch came within "a few inches or maybe a foot or two from walking area" (44). When questioned about this concession, he indicated that he had been referring only to the hatch boss, who stationed himself alongside the coaming, [*11] whereas the oil was at the base of the winch (54-5). He had also conceded that the gangwayman was beside the hatch boss; and this was too close. The standard is useful in implementing the remedial purposes of the Act, and is not to be nullified by an interpretation which permits an employer to refrain from protecting his employees from a hazard a foot or two from a walking area, with no separation between.

To be sure, the condition which obtained at the time of the inspection may not have occurred two hours before, when the winch was lubricated. The oil had spread forward from the drum (69). The spots were "fresh oil" (23)' and from observation DiMartino could only "conjecture" as to how long they had been where he saw them (33). But the standard requires that slippery conditions be eliminated "as they occur"; and it only took five minutes to get the oily patch eliminated, once attention was focused on it (64). The action which Incorvaia took to get the patch eliminated could have been, but was not, taken by the hatch boss or the gangwayman before the oil got as close as it did to where they were working.

I deem established by the weight of the evidence that there [*12] was an oily patch within a foot or two of the area traversed by the hatch boss and the gangwayman in performing their duties, but not so established complainant's further proposition that at the time of the inspection the other longshoremen working the Kastar had to walk through or near the oily patch. The position and duration of the oily patch constituted a violation of the standard. Accordingly I affirm Item 1 of the citation. But the penalty which would be appropriate on the evidence in this particular case would be so small that its imposition would not further the objectives of the Act. Accordingly I assess no penalty in respect of Item 1.

II

Item 3 alleges that respondent violated 29 C.F.R. Section 1918.25(a), which requires that "There shall be at least one safe and accessible ladder for each gang working in a hatch."

DiMartino testified that there were two ship's ladders in No. 5 hatch on Kastar, one forward, which was completely blocked by stowed cargo (77), and one aft, which was blocked by a draft of dunnage up to the fifth rung (71). DiMartino brought this to the attention of Incorvaia, who ordered the dunnage removed immediately, clearing the ladder (71-2, 73). [*13] The presence of a portable ladder in the hatch would have met the requirement (78); but Incorvaia, respondent's only witness on the point, admitted that he did not see any (80, 83).

I find that there was no accessible ladder in No. 5 hatch at the time of the inspection and affirm Item 3.

On the pertinent evidence, I assess the penalty in the amount of $40.

III

Item 4 alleges that in the lower hold of Zawichost, respondent violated 29 C.F.R. Section 1918.73(h)(j) which provides that

When mechanically-powered vehicles are used [aboard a vessel], adequate provisions shall be made to ensure that the working surface can support the vehicle and load, and that hatch covers, truck plates, or other temporary surfaces cannot be dislodged by movement of the vehicle.

DiMartino looked down No. 3 hatch to the lower hold, where he observed one of respondent's "hi-lo's" carrying a double draft (84). The primary deck was made of timber, which had a gouged out area of about a foot square. The primary deck was covered by metal sheets, nailed down. These sheets were 2' wide by 8' long by 1/4" thick. As the loaded vehicle traversed the sheet over the gouged out area of the primary [*14] deck, DiMartino twice observed that it made a diagonal crease between two of the opposite corners, which had become loose from their fastenings and rose into the air, causing the vehicle to move laterally and tip almost to the point of dumping its load (84-5, 87-8, 90-1, 95-8). This occurred at about 11:00 A.M. DiMartino brought it to the attention of Incorvaia and the mate, whereupon the crew immediately set about repairs (85, 98-100).

Respondent attempted to controvert DiMartino's testimony by two lines of evidence: (1) that No. 3 hatch was not being worked at 11:00 A.M. on February 8, 1973; when DiMartino made his inspection (98-116); and (2) that respondent's records, referred to as the cargo plan, the plan of the work, and the ship's activity files, contained entries from which Granado, respondent's foreman in charge of its operations on the ship, DiMartino made his inspection (116-132). But respondent made out neither of these propositions. Respondent's time sheet, respondent's Ex. 2, showed that on the day in question Field's gang had worked No. 3 hatch from 11:00 A.M. to 12:00 noon; and after consulting respondent's entire file for Zawichost on the date in question, [*15] Cash admitted that it contained nothing which showed whether a hi-lo had been used in No. 3 hatch (133).

I affirm Item 4 of the citation, and on all the evidence I assess a penalty in respect thereof in the amount of $40.

IV

Item 6 alleges that respondent breached 29 C.F.R. Section 1918.63(c), which provides inter alia, that

Where 'U' bolt wire rope clips are used to form eyes, Table G-6 shall be used to determine the number and spacing of the clips.

And Table G-6, at the end of Section 1918.63, provides that in respect of 3/4" steel rope, at least 4 clips shall be used. The complainant in Paragraph IV(d) alleges that respondent failed to use the required number of clips on the 3/4" steel rope which secured the heel blocks at the No. 1 and No. 2 hatches aboard V assilos R.

DiMartino testified that the port and starboard preventers on these heel blocks were held by eyes in the rope, secured by clips, of which there were only two, instead of the required four or more (136, 138).

Respondent made no attempt to controvert DiMartino's evidence. Instead, it contended that the standard had not been breached because it applies only where men are working, or are to work, [*16] within the bight of the cable going through the heel block; and that here there was no proof that this was the case. DiMartino testified that he did not see any longshoreman working within the bight; and complainant's counsel objected to a question addressed to DiMartino by respondent's counsel as to whether he knew that longshoremen were required to work within the bight on the ground that DiMartino was informed on the subject only by his own observations (153-4).

In more detail, respondent argued that as to the manner of securing the eye in a 3/4" wire rope preventer on a steel block, Section 1918.63(k) merely implements and particularizes Section 1918.52(d), which provides that:

When employees are required to work in the bight formed by the heel block, a preventer of at least 3/4-inch diameter wire rope, rove reasonably snug and adequately secured, shall be rigged, or equally effective means shall be taken to hold the block and fall in the event that the heel block attachments should fail . . .

Respondent's position is well taken. In Section 1918.52(d). the Secretary has undertaken to set forth with particularity respondent's duty to provide heel block preventers. This duty [*17] becomes operative "When employees are required to work in the bight formed by the heel block. . . ." Complainant cannot ignore part of his own Regulations so as to turn a qualified duty into an unqualified one. In the premises the Secretary was obliged to prove facts to bring the case within Section 1918.51(d), as respondent urges; and this the Secretary failed to do.

Furthermore respondent's duty with respect to securing any required heel block preventers was not delineated in Section 1918.63(c), which regulated the manner of using clips to form eyes in steel rope where use of clips is permitted, but by Section 1918.52(a)(2), which forbids the use of slips "to form eyes in . . . preventer guys."

Item 6 is dismissed.

V

Item 7 alleges that respondent breached the general housekeepings requirements of 29 C.F.R. 1910.22(a)(1) that

All places of employment, passageways, storerooms and service rooms shall be kept clean and orderly and in a sanitary condition.

The Stazzi itself was free of violation (158); but according to DiMartino, the string piece of the dock where the vessel was berthed and the after end of No. 3 shed in the area were strewn with broken pallets, wire, [*18] lumber, strapping, plastic sheeting and paper: ". . . the total string piece area looked like a disaster area" (157-8, 161-2).

Respondent sought to establish that the condition which DiMartino saw was not due to faulty housekeeping by respondent but was the result of unloading another vessel which had been through a storm which damaged its cargo; that there was nothing which respondent could do to remedy the condition at the moment of the inspection; and that DiMartino accepted this explanation (162-3, 170-71).

But DiMartino was positive that this was not the case.

It was not anything that came from discharging cargo of a vessel. It was debris, junk, garbage, plastic paper, plastic binding, broken pallets and pallet boards and dunnage, all in the area and much of it with nails sticking up (164).

DiMartino said that the area was one which was dangerous for the unspecified number of men who had to move about in it (162, 164-5). Incorvaia, who accompanied DiMartino on this part of the inspection (159-60) as well as on the earlier phases, attempted no rebuttal.

I find that the condition of the string piece of Dock No. 1 and the after end of Shed No. 3 violated the cited [*19] standard and I affirm Item 7 of the citation. On the relevant evidence, I assess a penalty in the amount of $55.