PITTSTON STEVEDORING CORPORATION; AND INTERNATIONAL TERMINAL OPERATING CO., INC.

OSHRC Docket Nos. 2588; 2589; 2655; 2779 (Consolidated)

Occupational Safety and Health Review Commission

July 1, 1975

[*1]

Before MORAN, Chairman; and CLEARY, Commissioner

OPINION:

BY THE COMMISSION: Review Commission Judge David H. Harris' January 10, 1974, decision in the four consolidated cases docketed under the above-indicated docket numbers have been before the Commission for review pursuant to 29 U.S.C. 661(i) for more than a year. Rather than further delaying the disposition of these cases until a third member is appointed to the Commission, the Commission as presently constituted agrees to decide the cases at this time.

The respondents contested citations alleging violations of 29 U.S.C. 654(a)(2) for non-compliance with the occupational safety standard codified at 29 C.F.R. 1918.105(a), which requires that employees engaged in longshoring operations "be protected by protective hats meeting the specifications contained in the American National Standard Safety Requirements for Industrial Head Protection, Z89.1 (1969)." Judge Harris affirmed the citations in docket numbers 2588, 2589, and 2655 but assessed no penalties therefor. He vacated the citation in docket number 2779.

The Commission agrees with the Judge's disposition in docket number 2779 for the reasons given by him. However, [*2] the Commission is in disagreement as to the correctness of the Judge's affirmance of the citations in the remaining three cases. n1 Commissioner Cleary would affirm the Judge's decision in these cases on the basis that the Commission decision in Secretary v. Atlantic & Gulf Stevedores, Inc., 16 OSAHRC 770 (1975), is dispositive of the issues directed for review in the instant cases. The Act places the final responsibility for compliance on the employer. Where the employee's non-compliance is neither completely unpredictable nor idiosyncratic an employer must carry out his duty to enforce compliance. Chairman Moran would vacate the citations in these cases because the respondents did all that they were required to do under the Act to require compliance with the provisions of the standard by their recalcitrant employees. See his separate opinion in Secretary v. Atlantic & Gulf Stevedores, Inc., supra.

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n1 Additionally, the Commission notes that paragraph 2 of the Judge's order erroneously refers to docket number 2658 rather than 2655, the correct docket number. That error is hereby corrected.

[*3]

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Accordingly, the Judge's decision in docket numbers 2588, 2589, and 2655 is affirmed by an equally divided Commission. As to these cares, this decision has no precedential weight. Secretary v. Garcia Concrete, Inc., 18 OSAHRC 184 (1975).

[The Judge's decision referred to herein follows]

Employees shall be protected by protective hats meeting the specifications contained in the American National Standard Safety Requirements for Industrial Head Protection, Z89.1 (1969).

[*4] 9, 1973, charges it with violation of the above-referred standard aboard the ship "Nordstern" at Berth 7, foot of Marlin Street, Port Newark, New Jersey and a Notice of Proposed Penalty, issued the same day, suggests a penalty of $300. Proposed Penalty, issued on the same day, also suggests a penalty of $300.

Notices of Contest were timely filed by both Respondents [*5] and on July 23, 1973, the citations herein were consolidated for trial.

Pittston, a corporation organized under the laws of the state of Maryland, and ITO, a corporation organized under the laws of the state of Delaware, are the two largest stevedoring companies in the Port of Newark, New Jersey. Each employs more than 100 men daily and load and unload varied cargos carried in ships plying the high seas and sailing between ports in various states of the United States. The citations and Notices of Proposed Penalties herein concerned were duly posted and there is no proof of prior violations against Pittston or ITO.

As in the "McGrath" cases and in the "A & G" cases, supra, there exists here no real factual dispute concerning the alleged violations or any of the relevant events or occurrences which preceded them.

On March 2, 1973, an inspection of ITO's work premises at Berth 28, aboard the ship "Valvanuz," made in the presence of the employer's assistant safety director, disclosed that of 6 gangs of stevedores engaged in loading and unloading cargo, some 127 men, not a single man was wearing protective headcovering as is required by the standard at 29 CFR 1918.105(a). ITO's assistant [*6] safety director who appeared and testified, made no denial thereof.

On March 5, 1973 an inspection of Pittston's work premises aboard the ship "Nordstern" at Berth 7, made in the presence of the employer's safety director, disclosed that 7 gangs of stevedores, numbering about 140 men were engaged in discharging Volkswagons and that about 50 of these men were not wearing protective headcovering as required by the said standard.

On the said March 5, 1973, an inspection made in the presence of Pittston's safety director, aboard the ship "Merida" at Berth 13, disclosed that of 7 gangs of stevedores engaged in unloading bags of coffee, approximately 50 men were not wearing protective headcovering as required by the standard. Pittston's safety director, who appeared and testified as a witness, agreed with the compliance officer's allegation that 50 of the stevedores working on each of the said vessels [*7] were not wearing protective headcovering.

On March 8, 1973, an inspection of ITO's work premises aboard the ship "American Ace" at Berth 66, made in the presence of ITO's ship superintendent, disclosed that two stevedores in the vicinity of a crane engaged in hoisting containers, and two others in the same vicinity, were not wearing protective headcovering. These men were not further identified.

For the reasons expressed in the aforesaid "McGrath" and "A & G" cases, supra, I find that the standard at 29 CFR 1918.105(a) is not vague or ambiguous and that it is the responsibility of these employers to enforce the requirement therein.

For the reasons expressed in the said "McGrath" and "A & G" cases, I find that the separate [*8] allegations of violations of the standard by Pittston on March 5, 1973, aboard the vessels "Nordstern" and "Merida" constitute a single violation occurring on the employer's workplace and that a single citation should have been issued thereon. Since, as will appear below, I have determined not to assess penalties thereon, there is no need to order consolidation.

As in the "McGrath" and "A & G" cases, supra, I find that from and after October 1, 1971, Pittston and ITO engaged in a course of conduct designed to secure the voluntary compliance of longshoremen in their employ in the wearing of protective headcovering as is required by the standard at 29 CFR 1918.105(a). Similarly, I find that the employers herein, as did those in the "McGrath" and "A & G" cases, supplied the longshoremen with protective headcovering, the lawful nature and design of which is not in contention; posted signs and bulletins about their workplaces calling attention to the standard's requirement; held periodic safety meetings at which the necessity for wearing the said protective headcovering was stressed; used taped telephone messages and notices placed in payroll envelopes exhorting compliance with [*9] the said standard; issued oral warnings to new employees who failed to wear the headcovering; and lodged complaints with union representatives concerning instances where a man refused to comply. I further find that these employers, as did those in the "McGrath" and "A & G" cases relied upon an understanding that it was the "official policy" that employers who furnished the necessary protective headcovering and engaged in good faith efforts to secure the longshoreman's compliance with the standard, would not be cited for violation thereof. I find that this "official policy" was abandoned in or about March, 1973, without formal notice of that intention given to these employers. As I did in the "McGrath" and "A & G" cases, I find that Pittston and ITO did not have sufficient opportunity to implement the new policy of "strict enforcement" adopted, in these cases, only days before the inspections and consequent citations.

As in the "A & G" cases, supra, the record is barren of a single instance in which a longshoreman was discharged ("checked-off") for refusal to don and wear his protective headcovering despite the fact that no objection was raised by the International Longshoremen's [*10] Association (ILA) to the check-off of a man who arbitrarily refused to wear his protective headgear and a favorable arbitration award in June, 1971 involving the refusal of ILA checkers to comply with an identical regulation issued under the Longshoremen's and Harbor Workers' Compensation Act, as amended, 33 U.S.C. 941 et seq. (Ex. RP-3).

Under the circumstances of these cases, I find that the penalties proposed by the complainant in OSHRC Docket Numbers 2588, 2589, and 2655 are not reasonable.

Now therefore, there being jurisdiction over the parties hereto, for the reasons and upon the facts and conclusions of law hereinabove expressed, it is

ORDERED that:

1. The citations issued against Pittston herein on March 9, 1973 in OSHRC Docket Numbers 2588 and 2589 be and they are hereby affirmed.

2.

3.

4. No penalties be assessed against said Pittston or against said ITO on account of any said violation [*11] found hereinabove.