ATLANTIC & GULF STEVEDORES, INC.; NACIREMA OPERATING COMPANY, INC.; HOLT MARINE TERMINAL, INC.; AND INTERNATIONAL TERMINAL OPERATING CORPORATION OF AMERIPORT

OSHRC Docket Nos. 2818; 2998; 2862; 2997 (Consolidated)

Occupational Safety and Health Review Commission

April 11, 1975

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: CLEARY

OPINION:

CLEARY, COMMISSIONER: These consolidated cases arose as a result of citations being issued in the Port of Philadelphia for alleged violations of the "hard hat" standard published in 29 CFR part 1918, the Secretary of Labor's longshoring regulations. The standard involved in section 1918.105(a) which reads as follows:

1918.105 Head Protection (a) Employees shall be protected by protective hats meeting the specifications contained in the American National Standards Safety Requirements for Industrial Head Protection, Z89.1 (1969).

Respondents were found in violation of the standard, and review before the full Commission was directed by the Chairman on the following issues:

(1) Does 29 CFR 1918.105(a) place any duty on the employer or is it written in such a way as to apply only to employees?

(2) Whether an employer can be compelled to comply with a regulation which has not been printed in full in the Federal Register or any other U.S. Government publication but can be obtained only by purchase from a private corporation?

(3) Whether the Act permits the incorporation by reference of "American National [*2] Standard Safety Requirements for Industrial Head Protection, Z89.1 (1969)" and the application thereof to persons engaged in loading and unloading cargoes carried in ships.

Respondents have also raised related contentions.

For the reasons set forth below, we affirm the Judge's decision and order except in No. 2997 (ITO), in which we vacate the citation.

I.

In No. 2818 (Atlantic & Gulf Stevedores, Inc.) the Secretary, for the first time, disputes in his brief (and in no more than a footnote) the jurisdiction of the Commission. The Secretary asserts that Judge Harris should have examined the respondent's notice of contest sua sponte to determine its scope. In the abstract, we would agree. Once the 15-day working period prescribed in section 10(a) of the Act has expired, this Commission is divested of jurisdiction over the subject matter not fairly within the scope of the notice of contest. American Airlines, Inc., No. 4532 (November 5, 1974). Florida East Coast Properties, Inc., No. 2354 (February 4, 1974). n1 The scope of a notice of contest goes to the very heart of our authority and limits our jurisdiction over citations, penalties and abatement periods. [*3] Sections 10(a) and 10(c) of the Act. Florida East Coast Properties, Inc., supra. Cf. Brennan v. O.S.H.R.C. & S.J. Otinger, Tr. Constr. Co., 502 F.2d 30 (5th Cir. 1974); see also Brennan v. O.S.H.R.C. & Bill Echols Trucking Co., 487 F.2d 230 (5th Cir. 1973). United States v. Robinson, 361 U.S. 220 (1960) (failure to file notice of appeal within time limits is jurisdictional defect). We therefore note that,

Since an objection to subject matter jurisdiction goes to the power of the court [here, Commission] to hear and decide the case, parties may not create or destroy jurisdiction by agreement or by consent. By the same token the defense cannot be waived and . . . it may be reasserted at any time.

Furthermore, . . . lack of subject matter jurisdiction may be asserted at any time by any interested party, either in the answer, or in the form of a suggestion to the Court prior to final judgment. . . . Lack of subject matter jurisdiction also may be asserted at any time by the court, sua sponte, either at the trial or appellate level. Indeed, the appellate court has an obligation to satisfy itself as to both its jurisdiction and that of the district court. [*4]

Wright and Miller, Federal Practice and Procedure: Civil 1350, p. 544. American Fire & Casualty Co. v. Finn, 341 U.S. 6, 17-18 (1951). Cf. Underhill Constr. Corp., No. 1307 (January 31, 1975) (Moran, Chairman, dissenting).

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n1 Concerning the scope of a notice of contest, see particularly footnote 3 in Florida East Coast Properties, supra.

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Thus, as the Secretary suggests, it would be proper for, and even incumbent upon, the Administrative Law Judge and this Commission to examine the scope and timeliness of a notice of contest sua sponte and at any time.

Nevertheless, within this context, we are hesitant to convert section 10(a) into a trap for the unwary. As a matter of policy we look with disfavor upon the Secretary's jurisdictional points when raised for the first time at this very late date. Accordingly, we shall not hestitate to accord the respondent every indulgence which the Act may fairly allow. In this setting, we turn to the respondent's notice of contest. [*5]

The citation and notification of proposed penalty were mailed to respondent no earlier than April 17, 1973. Assuming arguendo that receipt occurred on April 18, the 15-working day period would not expire until May 9. Within that time, respondent mailed to the Secretary a notice of contest, dated April 23, 1973 reading as follows:

Atlantic & Gulf Stevedores, Inc., Philadelphia, Pa. is in receipt of citation dated April 17, 1973 covering alleged violation to regulation 29 CFR 1918.105(a) "Failure to wear protective hats."

We wish to appeal the proposed penalty of $105.00 which we have received for this violation, for the following reasons.

1. All the labor in the Port of Philadelphia (including the labor at Camden) and Wilmington, Del. were all issued protective hats to assist us in complying with the regulations.

2. The Philadelphia Marine Trade Association administered the issuing of a "hard hat" to every man in every labor catagory [sic]. These hats were issued in July 1971.

3. In addition, we have maintained a continuing program of issuing hats to new men who join the work force.

4. We have instructed each and every supervisor of the importance of the use of the [*6] "protective headgear" and stress this point at all of our pier Safety meetings.

5. On no previous occasion has Atlantic & Gulf received a citation for this violation, as we have complied in every manner possible in providing this protection to our work force.

Under these circumstances, we would request that the penalty of $105.00 be abated.

Thereafter, the Secretary filed his complaint, alleging inter alia that:

VIII

On April 23, 1973, the respondent corporation filed with a representative of the Secretary of Labor, a notification of intent to contest the aforesaid citation and the proposed assessment of the penalty pursuant to the provisions of section 10(c) of the Act. This notification of intent to contest was duly transmitted to the Occupational Safety and Health Review Commission and jurisdiction of this proceeding is conferred upon the Commission by section 10(c) of the Act. [Emphasis added.]

Respondent's pro se answer was received by the Commission on May 11, and reads as follows:

We are in receipt of notification of denial of our appeal for alleged violation of regulation 29 CFR 1918.105(a) "Failure to wear protective hats," which was sent [*7] to Mr. William J. Dreeland, Area Director on April 23, 1973.

In accordance with Rule 33(b) (Rules of Procedure), Atlantic & Gulf Stevedores, Philadelphia, Pa. wishes to continue to appeal the proposed penalty.

As stated in our letter (to Mr. Dreeland) dated April 23, 1973 Atlantic & Gulf, has made and continues to make every effort to enforce the regulation regarding all employees wearing protective head gear (hard hats) in those areas as required.

As pointed out in our letter of April 23, 1973, Atlantic & Gulf in conjunction with the other employer members of the Philadelphia Marine Trade Association, purchased and issued a hard hat to every member of the Philadelphia work force.

In addition, we conducted a mass meeting in July 1971 at which time we informed every Ship Foreman and Hatch Boss of the requirement.

In addition, we have stressed the requirement at every pier side "Safety meeting," each and every location, in which we operate, has been posted as a "hard hat" area.

Atlantic & Gulf also informed and continues to inform each and every employee continually of this requirement.

We understand that three (3) other employer members (Nacirema Operating Co., Holt Hauling [*8] & Warehouse System, & International Terminal Operating Corp.) have all received the same citation at approximately the same time in the Camden, N.J. area.

It is requested that if further appeals must be made that the employer members so affected be called at one time to present any additional information required. [Emphasis added.]

Because the answer was mailed within the 15-working day period, we construe it as an amendment to the original notice of contest, as well as an answer to the complaint. Tice Industries, No. 1622 (January 20, 1975) Cf. Edward J. Huegel, Inc., No. 893 (June 19, 1972).

We note that the Secretary in his complaint showed his belief that the original letter contested both the citation and proposed penalties. Because the Secretary can neither create jurisdiction nor waive it, we consider the wording of the complaint for the sole purpose of deciding whether an interpretation favorable to respondent would be unreasonable in light of the Secretary's allegations.

In this light, respondent's notice of contest contained many contentions, matters and representations. Indeed, the many colorable defenses which respondent set up in his pro se [*9] letters seem more appropriately interpreted as objections to both the citation and proposed penalty than to the proposed penalty alone. This reading is particularly appropriate in light of respondent's repeated references to "citations" as well as "penalties." For example, in the April 23 letter, respondent declared that:

5. On no previous occasion has Atlantic & Gulf received a citation for this violation, as we have complied in every manner possible in providing this protection to our work force.

We further note that considered as a whole respondents' letters would also indicate that it considered the period for abatement n1a unreasonable. In such a case, we may properly interpret them as contesting the abatement period, and hence the citation. Cf. Eastern Knitting Mills, Inc., No. 2019 (April 23, 1974) Pro se notices of contest are entitled to a sympathetic construction. Florida East Coast Properties, Inc., supra at note 1.

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n1a The citation required immediate abatement.

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We therefore hold that [*10] in the particular circumstances of this case, respondent in No. 2818 filed a valid notice of contest of the citation as well as the proposed penalties.

In the future, we would expect the Secretary to raise his jurisdictional points in a manner and time both fair to the employer-respondents and convenient to the Commission. In this way also, remands and consequent delays can be avoided. Cf. American Federation of Musicians, AFL-CIO v. Bonatz, 475 F.2d 433 3(rd Cir. 1973) (before dismissing for lack of jurisdiction, court may give party opportunity to establish facts on which jurisdiction depends); Brennan v. O.S.H.R.C. (John J. Gordon Co.), 492 F.2d 1027 (1974).

II.

Issues concerning the validity of the Secretary's rulemaking action is promulgating standards have been ordered before us. We conclude that we lack the power to consider the issues. n2 However, before the absence of judicial precedent, we shall assume arguendo that the issues are properly before us.

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n2 On the Commission's lack of power to declare invalid the rulemaking actions of the Secretary, see Arkansas-Best Freight Systems, Inc., No. 2375 (February 21, 1975); United States Steel Corp., Nos. 2975 & 4349 (November 14, 1974) (concurring opinion).

[*11]

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The Occupational Safety and Health Act became effective on April 28, 1971. n3 At that time the following Longshoreman's and Harbor Worker's Compensation Act n4 regulation was in effect:

29 CFR 1504.105(a)

Whenever employees are handling cargoes of loose scrap metal, bulk ores which contain ore in a chunky form, or bulk commodities of a similar nature, they shall be protected by protective hats meeting the specifications contained in American Standards Safety Code for Head, Eye and Respiratory Protection, Z-2.1.

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n3 29 U.S.C. 651 note 1 (1972).

n4 33 U.S.C. 901, 941 (1972).

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An amendment of this provision was published in the Federal Register on May 28, 1971, putting the safety hat standard of the LHWCA in its present form. n5 36 Fed. Reg. 9771, 9773. The amendment was adopted following an informal rulemaking proceeding under the LHWCA, as was made effective 60 days following the day of publication. 36 Fed. Reg. 9772. [*12]

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n5 29 CFR 1504.105(a):

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).

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On May 29, 1971, the Secretary published in the Federal Register his general occupational safety and health standards under the Occupational Safety and Health Act. 36 Fed. Reg. 10466-10714. Section 1910.16 n6 of the published standard incorporated by reference the safety regulations previously published under the LHWCA that were in effect on April 28, 1971, the effective date of the Occupational Safety and Health Act. Therefore, at no time was the present section 1918.105(a) adopted by the Secretary of Labor under section 6(a) of OSHA. An earlier version of the standard was nominally adopted under section 6(a).

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n6 The entire text of 29 CFR 1910.16(a) reads as follows:

The standards prescribed by Part 1504 of this title [subsequently redesignated Part 1918] and in effect on April 28, 1971, are adopted as occupational safety or health standards under section 6(a) of the Act and shall apply, according to the provisions thereof, to every employment and place of employment of every employee engaged in longshoring operations or a related employment. Each employer shall protect the employment and places of employment of each of his employees engaged in a longshoring operation or a related employment, by complying with the appropriate standards prescribed by this paragraph. (Emphasis added.)

[*13]

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If the current standard is to have application here it can only be by operation of law under section 4(b)(2) of the Act.

Section 4(b)(2) reads as follows:

(2) The safety and health standards promulgated under the Act of June 30, 1936, commonly known as the Walsh-Healey Act (41 U.S.C. 35 et seq.), the Service Contract Act of 1965 (41 U.S.C. 351 et seq.), Public Law 91-54, Act of August 9, 1969 (40 U.S.C. 333), Public Law 85-742, Act of August 23, 1958 (33 U.S.C. 941), and the National Foundation on Arts and Humanities Act (20 U.S.C. 951 et seq.) are superseded on the effective date of corresponding standards, promulgated under this Act, which are determined by the Secretary to be more effective. Standards issued under the laws listed in this paragraph and in effect on or after the effective date of this Act shall be deemed to be occupational safety and health standards issued under this Act, as well as under such other Acts. [Emphasis added.]

Public law 85-742 contains the safety requirements of the LHWCA. The second sentence of section 4(b)(2) makes it patently clear that a longshoring standard [*14] can be enforced under OSHA because "occupational safety and health standards" must be complied with under section 5(a)(2) of the Act. Cf. Lee Way Motor Freight, Inc. v. Secretary of Labor, No. 74-1230 (10th Cir., February 19, 1975).

The legislative history also demonstrates that at least one objective of the Congress was to permit the Secretary of Labor to use the enforcement procedures of OSHA as an alternative method of adjudicating cases involving violations of the LHWCA standards. The Conference Report had the following to say on the subject:

The Senate bill provided that safety standards under any law administered by the Secretary of Labor (Walsh-Healey, Service Contract Act, Construction Safety Act, Arts and Humanities Act, and Longshore safety) would be superseded when more effective standards are promulgated under this Act, but until then they were deemed standards under the present Act. The enforcement process of this Act was thus added to the enforcement procedures of those other Acts. The House amendment repealed and rescinded standards under the Walsh-Healty, the Service Contracts, and the Arts and Humanities Acts. All construction industry [*15] employers were exempted from this Act and the entire industry brought under the Construction Safety Act. That Act was amended to make the enforcement provisions of this Act applicable. Unlike the Senate bill which left the hearing of contract violation cases with the Secretary, the House amendment provided the hearing of such cases by the Safety and Health Commission. The House receded.

It is understood by the Conferees that in any enforcement proceedings brought under either this Act or under such other Acts, the principle of collateral estoppel will apply. [Emphasis added.]

Legis. Hist. at 1186.

The emphasized portion is arguably a non sequitur, but it does evince an intent to permit the use of OSHA enforcement machinery for standards adopted under the LHWCA. n7

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n7 The earlier "hard hat" standard nominally adopted under section 6(a) of OSHA cannot be said to supersede the current LHWCA because the Secretary has not characterized it as more effective than the current standard and it of course antecedes the current LHWCA.

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In the course of the debate on the bill it was recognized that section 4(b)(2) was not intended to be a full substitute for rulemaking. See section 6(a). n8 Section 4(b)(2) does not render section 6(a) redundant. Obviously, section 4(b)(2) has operation only when the statutes listed therein apply concurrently with OSHA. Section 6(a), of course, concerns rulemaking for the full parameters of OSHA, and not just the areas overlapping with the statutes listed in Section 4(b)(2). Perhaps this is most easily demonstrated by comparing the scope of the construction standards published in 29 CFR Part 1926 under both Public Law 91-54 and OSHA. The construction standards apply to most Federal and federally assisted construction by virtue of Public Law 91-54, the so-called Construction Safety Act. The same construction standards adopted under section 6(a) of OSHA also apply to the entire construction industry, including any portions that are exclusively private, and do not involve Federal or federally assisted construction. See 29 CFR section 1910.12.

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n8 See remarks of Congressman Steiger, Legis. Hist. at 1217. However, nothing in the Congressman's remarks suggests barring the Secretary from enforcing LHWCA standards under OSHA.

[*17]

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In view of the foregoing, we do not reach respondents' assertions that the standard involved is not a valid "national consensus standard" as that term is used in section 6(a) of the Act and as defined in section 3(9) thereof.

The respondents also contend that the publication requirements of the Federal Register Act (44 U.S.C. 1501 et seq. ) apply, and require that Z89.1 must be printed in full in the Federal Register. The respondents point to section 1505(a)(2) as authority. That section reads, in pertinent part as follows:

1505. . . . (a) There shall be published in the Federal Register -- (2) documents or classes of documents that the President may determine from time to time have general applicability and legal effect; . . . .

The contention lacks merit. Incorporation by reference in the Federal Register is specifically permitted by the subsequently enacted 5 U.S.C. section 552(a)(1), the public information section of the Administrative Procedure Act, expressly providing that:

. . . matter reasonably available to the class of persons affected thereby is deemed published in the Federal [*18] register when incorporated by reference threin with the approval of the Director of the Federal Register.

The obvious purpose of this provision is to reduce the volume of material printed in the Federal Register.

It is clear that the Director of the Federal Register approved implicitly the Secretary of Labor's incorporation by reference by publishing the rule. n9 We add, however, that whatever power, or lack thereof, this Commission has to review the actions of the Secretary, it certainly has no authority to review the way in which the Director of the Federal Register performs his official duties. Moreover, section 1507 of 44 U.S.C., the Federal Register Act, provides that:

The publication in the Federal Register of a document [here 29 CFR 1504.6; redesignated 29 CFR 1913.6] creates a rebuttable presumption --

(1) that it was duly issued, prescribed, or promulgated;

(2) that all the requirements of this chapter and the regulations prescribed under it relative to the document have been complied with.

The respondents have not rebutted this presumption by the introduction of any record evidence. We hold that respondents have failed to show cause why the Secretary [*19] should not have incorporated Z89.1 by reference. See Shafer v. United States, 229 F.2d 124 (4th Cir. 1956), cert. denied 351 U.S. 931. See generally U.S. Code Cong. and Adm. News, 89th Cong. 2d Sess., p. 2424 (1966).

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n9 See 34 F.R. 19106, section 20.5, 20.3, 20.12 and compare with 29 CFR 1504.6 (now CFR 1918.6) printed at 36 F.R. 9771. An examination of these sections reveals that the Secretary, in any event, has fully complied with the requirements of Federal Register regulations.

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The respondents further contend that the ANSI specifications limit the circumstances under which 29 CFR 1918.105(a) requires the use of safety hats. This contention is erroneous for two reasons.

First. The respondents' reading of the standard is seriously infirm. 29 CFR 1918.105(a) clearly refers to the ANSI requirements for the sole purpose of setting forth those "specifications" which protective hats must meet. Therefore, any part of the ANSI publication which is not a "specification" within the [*20] meaning of 29 CFR 1918.105(a) is simply not adopted by that standard. See e.g., the appendix to Z89.1 containing "recommendations" for the use and care of safety hats. n10

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n10 Furthermore, this part was not adopted by the Secretary since it is not a "mandatory" provision. See 36 F.R. 10466.

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Second. The respondents' contention, that the intended scope of Z89.1 is much narrower than that intended by the Secretary, is also unsound as a serious misreading of the scope provision of Z89.1. That provision reads as follows:

1. Scope

This standard establishes specifications for industrial protective helmets for the protection of heads of occupational workers from impact and penetration from falling and flying objects and from limited electric shock and burn. This standard does not include high-voltage protective helmets, Class B.

Even a cursory reading of this provision reveals that it merely sets forth the scope of performance and protection which the user of the helmets could safely [*21] expect from their use. It does not mean that he helmets are to be worn only when the listed contingencies are likely to occur. Indeed, the scope provision itself simply states that Z89.1 establishes only "specifications." Thus, for example, the phrase "limited electric shock and burn" cannot seriously be said to refer to those circumstances under which the helmet must be worn; instead, it clearly refers to the outer limits of protection which the helmet would afford if worn. This construction explains the purpose of the very next sentence of the scope provision: that he scope of protection afforded by hats meeting the specifications of Z89.1 does not reach to work involving high voltage. Compare ANSI Standard Z89 2 (1971), Safety Requirements for Industrial Protective Helmets for Electrical Workers, Class B, and the scope provision thereof.

We therefore conclude that nothing in Z89.1 limits the circumstances under which 29 CFR 1918.105(a) requires the wearing of hard hats.

III.

Respondents contend that the standard is unenforceably vague because it allegedly fails to inform the employer of the conduct required by him. n11 This assertion is unsound and we must reject [*22] it.

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n11 On the power of the Commission to consider the vagueness issue, note the separate views of the Commissioners in Santa Fe Trail Transport Co., No. 331 (December 18, 1973).

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The standard is broad, but clear on its face:

Employees shall be protected by protective hats . . . . [29 CFR 1918.105(a)].

To hold that the standard is vague because it is unequivocal would be specious. n12

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n12 Cf. Judge's Decision at 795.

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The respondent contends, however, that the standard by its terms imposes no duty on employers to require the use of safety hats. Section 1918.105 must be read in its totality. Although paragraph (a) is ambiguous, paragraph (b) clearly suggests that the duty to comply with section 1918.105(a) is squarely on the employer. Section 1918.105(b) reads as follows:

Protective hats which have been previously worn shall [*23] be cleaned and disinfected before they are issued by the employer to another employee. [Emphasis added.]

It is also significant that it is the employer who has the exclusive duty to comply with the LHWCA. This also suggests that paragraph (a) is addressed to the employer rather than the employees.

Respondents cite several of our previous decisions as contrary holdings. These cases are easily distinguishable.

In Tilo Co., Inc., No. 211 (April 27, 1973), the Commission merely held that it would not adopt a construction contrary to common sense to prevent a standard from being declared unenforceably vague. As will be explained later, the instant standard meets the test of common sense, and as so construed it is not vague.

In Georgia-Pacific Corp., No. 676 (August 20, 1973), the Commission held that where a standard requires the use of personal protective equipment when the existence of hazard warrants such use, an employer with actual knowledge of a hazard long known to be such cannot claim that the standard is vague.

Cam Industries, Inc., No. 258 (March 4, 1974), is clearly distinguishable. See especially footnote two therein. In a two-to-one decision, [*24] the standard involved was held to require only that employers provide equipment and not require its use by employees. The instant standard, however, explicitly requires use of safety hats.

We interpret 29 CFR 1918.105(a) as requiring the use of safety hats by employees to the extent that they are engaged in longshoring operations. The term "longshoring operations" is limited in 29 CFR 1918.3(i) to "the loading, unloading, moving, or handling of cargo, ship's stores, gear, etc., into, in, on, or out of any vessel on the navigable waters of the United States." It is apparent that the former version of 29 CFR 1918.105(a), quoted earlier in this opinion, was considered unsatisfactory by the Secretary of Labor because it limited the situations wherein safety hats were required for head protection. A broader standard was adopted by the Secretary of Labor plainly to cover the myriad of situations in which head protection may be needed in longshoring operations that use the subject of the standards in Part 1918. Cf. Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230 (5th Cir. 1974), aff'g Ryder Truck Lines, Inc., No. 391 (August 16, 1973) (motion for reconsideration). [*25] We take official notice of the fact that the Department of Labor has placed longshoring in its "Target Industry Program" because its high injury-frequency rate is in excess of all-manufacturing average frequency rate. See CCH Employment Safety and Health Guide, paragraph 4011.

We conclude that the standard is broad, but not vague, and that employers have a duty to require the use of safety hats. In No. 2997, however, we note that no ship was being loaded or unloaded by ITO employees. At least four ITO workers were laboring in the West Bay shed without safety hats. But there is no indication in this record that the work performed then falls within 29 CFR 1918.3(i).

IV.

Respondents also contend that they have done all that they can do without causing labor strife to comply with the standard. Respondents fear that if they do more they will be confronted with wildcat strikes and walkouts.

As the Judge notes in his opinion, respondents' fears are largely speculative. None of the respondents has ever discharged an employee for failure to wear a safety hat. Under these facts and the other circumstances noted in the Judge's opinion we find no basis to concede the [*26] factual vitality of respondents' assertions. Furthermore, we would note, consistent with the Second Circuit's holding in Brennan v. O.S.H.R.C. & Gerosa, Inc., 491 F.2d 1340 (1974), that Congress admonished "that final responsibility for complying with the provisions of the Act rests with the employer . . . ." 491 F.2d at 1344-45.

This is as it must be. Were it otherwise, employers would be able to evade their responsibilities by shifting them onto their employees, a result which would be contrary to the very purpose of the Act. Cam Industries, Inc., supra.

It is our view that the Act places the final responsibility for compliance on the employer. Where the employee's non-compliance is neither completely unpredictable nor idiosyncratic, National Realty & Constr. Co. v. O.S.H.R.C., 489 F.2d 1257 (D.C. cir. 1973); Standard Glass Co., Inc., No. 259 (June 26, 1972), the employer must carry out his duty to enforce compliance, Weyerhaeuser Co., No. 624 (April 18, 1973) (Administrative Law Judge), review directed April 25, 1973. Cf. Brennan v. O.S.H.R.C. & Gerosa, Inc.; supra at 1344-5.

Section 5(b) of the Act does not suggest the contrary. [*27] The plain Congressional purpose behind that section was to enhance the ability of employers to enforce safety requirements. The Senate Report on S.2193, the precursor of the Act, noted that:

The committee recognizes that accomplishment of the purposes of this bill cannot be totally achieved without the fullest cooperation of affected employees. In the connection, Section 5(b) expressly places upon each employee the obligation to comply with standards and other applicable requirements under the Act.

The committee does not intend the employee-duty provided in section 5(b) to diminish in anyway [sic] the employer's compliance responsibilities or his responsibility to assure compliance by his employees. Final responsibility for compliance with the requirements of this act remains with the employer.

S. Rep., No. 91-1282, 91st Cong., 2d Sess. 10-11 (1970); Legislative History at 150-151. n13

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n13 We note that these cases may have implications for labor-management relations. However, no party has presented its views on the interrelationships between the enforcement of the Act and the national management relations laws. We therefore express no views as to whether, for example, an employee wildcat strike or walk-out would be a protected concerted activity under the National Labor Relations Act (29 U.S.C. 151 et seq. ), nor do we pretend to expertise on the subject. We would note that Congress has made available to respondents a carefully balanced system for the expert resolution of labor-management relations problems. See e.g., ABC Prestess & Concrete, 201 N.L.R.B. 119, 82 LRRM 1406 (1973); Southern Steamship Co. v. N.L.R.B., 316 U.S. 31 (1942); N.L.R.B. v. Washington Aluminum Co., 370 U.S. 9, 17 (1962); but cf. Gateway Coal Co. v. Mine Workers, 414 U.S. 368,     n. 10, 94 S.Ct. 629, 638 n.1 (1974).

[*28]

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If the respondents anticipate or experience difficulty in enforcing compliance with the standard, they are not left without a remedy. Under section 10(c), they may petition the Commission for a modification of the abatement date. H.K. Porter, Inc., No. 1210-P (March 23, 1974). We are also confident that the Secretary will use his sound discretion before the issuance of any citations for failure to abate and in proposing penalties therefore. Section 10(b).

In all other respects, we find no prejudicial error in the Judge's decision and opinion, nor in his assessment of penalties.

Dicta in my colleague's concurring opinion suggests a power in the Commission to order employees and their representatives to comply with standards and that such an order is enforceable in the Federal appellate courts. It is true of course that the Act is "revolutionary." Brennan v. O.S.H.R.C. & Gerosa, Inc., 491 F.2d 1340, 1343 (2d Cir. 1974). The Act is not counter-revolutionary. It does not permit a substantial inroad on the national labor policy of limiting the jurisdiction of Federal courts [*29] in labor disputes. The suggestion would be a step backward from this policy that began with the Norris-LaGuardia Act. The intrinsic and extrinsic evidence of statutory construction suggests an absence of such a power.

Sections 8, 9, 10, and 11 plainly establish a procedure for enforcement that relates only to employers. Going further would clearly mean greater involvement with labor relations issues, and the legislative history makes it unmistakably clear that Congress wanted neither this Commission nor the Secretary of Labor to become involved unnecessarily with labor relations issues. See, e.g., Legis. Hist. at 198, 448, 474, 1051, 1190, 1224.

This does not signify, as the concurring opinion suggests, that section 5(b) has little or no meaning. Whether employees meet their duty under section 5(b) has obvious significance in considering the "good faith" of an employer in seeking to comply with his own duty under section 5(a). Also, in enacting section 5(b), it is doubtful that the Congress was unaware of possible remedies available to an employer outside of this Act that may aid him in meeting his own duty. My colleague makes a reference to one possible remedy [*30] with his citation to Boys Market. Other cases may present issues cognizable by the National Labor Relations Board, arising for example under section 8(b)(4) of the Labor Management Relations Act. Further, perhaps in the majority of situations traditional forms of managerial discipline should have great force.

It should also be noted that the Secretary himself has acknowledged his limited role under the Act in the labor relations area. Thus, the Field Operations Manual ( CCH Employ. S. & H. Guide, paragraph 4251 et seq. ), of which we make take official notice, specifically admonishes the compliance officer to "be particularly careful to avoid injecting himself into labor relations disputes, . . . between a recognized union and the employer. . . ." Chapter V, sub-part F, section 1.e of the Manual, CCH Employ. S. & H. Guide at paragraph 4330.6. See also 29 CFR 1903.8(b).

Therefore, it is ORDERED that as to all respondents but ITO the citations are affirmed. In No. 2997 (ITO) the citation is vacated. No penalties shall be assessed.

So ORDERED.

CONCURBY: VAN NAMEE; MORAN (In Part)

CONCUR:

VAN NAMEE, COMMISSIONER, concurring: The principal argument of the several [*31] Respondents in this matter is that longshoremen will not wear hard hats in the performance of their various assigned tasks even though according to Respondents they have done everything they can do short of using disciplinary measures to get the men to wear the hats. If disciplinary measures are used, Respondents say the men will conduct a wildcat strike.

My colleague correctly notes that the cited standard is effective under 29 U.S.C. 653(b)(2), that incorporation by reference is permissible by law, n14 that the standard is not vague, and that it is limited in application as defined by 29 C.F.R. 1918.3(i).

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n14 I do not join in his discussion relative to presumptions under the Federal Register Act. Similarly, I specifically disclaim note 2 of his opinion, and my views relative to the question of the scope of a contest are expressed in my dissenting opinion in Florida East Coast Properties, Inc., 6 OSAHRC 404, BNA 1 OSHC 1532, CCH E.S.H.G. para. 17,272 (1974) and in the majority opinion in Eastern Association Coal Corporation, Dkt. 6448, BNA 2 OSHC 1171, CCH E.S.H.G. para. 18,572 (1974).

[*32]

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But I do not think it is enough to merely dismiss the Respondents' principal argument as being speculative. n15 The record in this case indicates that these employers have a remedy in the event that their employees walkout (wildcat) when compliance is mandated and enforced by the employers. The Respondents were instructed by counsel that an injunction would be obtained within 2-24 hours should a strike occur. See: Boys Market, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235 (1970). Accordingly, the principal argument as applied in these four cases is nothing more than an illusion. For this reason and those stated above, I concur in my colleague's disposition.

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n15 Similarly, its is not enough to say that the duty is on the employer. At least two courts have said that employers are not to be held to a standard of strict liability. National Realty & Const. Co., Inc. v. OSHRC, 489 F.2d 1257 (D.C. Cir., 1973); Brennan v. OSHRC & Raymond Hendrix, d/b/a Alsea Lumber Co., No. 73-1938 (9th Cir., February 24, 1975). But cf., Underhill Construction Corp. v. OSHRC, Nos. 74-1568 & 74-1569, (2d Cir., March 10, 1975).

[*33]

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The result, however, could be different for those cases where an injunction may not be obtainable. In such situations we could rely on Brennan v. OSHRC & Raymond Hendrix, d/b/a Alsea Lumber Co., supra, note 2, as authority for the proposition that the citation should be vacated. But if we do so, the consequence will be that some employers will be exempt from the duties imposed by 29 U.S.C. 654(a) to the extent that employees refuse to comply with the duty imposed on them by 29 U.S.C. 654(b). In this regard it should also be noted that other employers in the same industry will not be exempt if their employees obey the law. Selective exemptions will not further the purposes of the Act, and if unequal treatment results to employers, then commerce may be additionally burdened.

On the other hand if we affirm the citations, selective exemptions will not be created. n16 The problem in these situations then reduces to one of abatement, i.e., one of obtaining employee compliance. The Act does not now provide for employee penalties, nor does it confer jurisdiction on the Federal district [*34] courts such that they might provide injunctive relief. n17 Accordingly, if what I have to say hereinafter should be beyond the scope of the Act, then the only recourse left will be to the Congress for amendment.

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n16 This does not mean to say we will assess anything more than a nominal penalty in these situations.

n17 See 29 U.S.C. 101 et seq.

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I would suggest that we have the authority to issue cease and desist orders which can be enforced by the Federal appellate courts. I would also suggest that if we do not have such authority, then the congressionally stated purpose that

. . . employees have separate but dependent responsibilities . . . with respect to achieving safe and healthful working conditions (29 U.S.C. 651(b)(2))

cannot be effectuated, and the affirmative duty that employees comply with safety and health standards (29 U.S.C. 654(b)) is therefore meaningless and a nullity.

I predicate my suggestion that we have the authority to issue cease and desist orders on that part of 29 U.S.C. 659(c) which [*35] states:

The Commission shall . . . issue an order, based on findings of fact, affirming, modifying or vacating the Secretary's citation . . . or directing other appropriate relief . . .

According to 29 U.S.C. 658(a) the citation "shall fix a reasonable time for abatement of the violation." Obviously, if the facts of a case are that employee disobedience makes no specific time for abatement reasonable, then we should not affirm or modify that portion of the citation. And as I have said vacation would create an exemption. On the other hand, we could provide for "other appropriate relief" by issuing a cease and desist order to employees if they are a party to the proceedings.

According to the provisions of 29 U.S.C. 659(c) employees are entitled to initiate their own contests of the abatement period specified by the citation. Moreover, we are required to afford them the opportunity to be a party in proceedings before us, and this statutory requirements is implemented by Rule 20 of our Rules of Procedure. Given these provisions I believe employees should be made to appear as a party when the question is whether an abatement period specified by a citation is unreasonable [*36] in view of employee misconduct. It this regard the provisions of Rules 13 and 14 of the Federal Rules of Civil Procedure relating to cross-claims and third party practice appear to apply.

Finally, as to the question of enforcement I note that sections 11(a) and 11(b) (29 U.S.C. 660(a) & (b)) authorize the several Courts of Appeal to issue orders enforcing orders issued by the Commission. Moreover, section 11(b) specifically contemplates that the contempt process may be employed to insure enforcement with orders issued under either of sections 11(a) or 11(b). Accordingly, it would appear that a cease and desist order issued under the other appropriate relief provision of 29 U.S.C. 659(c) can be affirmed by the courts and enforced through the contempt process.

For these reasons, I believe the Act can be construed as giving us the authority to issue enforceable cease and desist orders. I will not here attempt to set down guidelines but rather will leave that for some future case where my suggestion is adopted as the position of the Commission. Suffice it to say that the relief I suggest would not be appropriate in this case because it was not asked for, and the Respondents have [*37] other remedies available to them.

DISSENTBY: MORAN (In Part)

DISSENT:

MORAN, CHAIRMAN, concurring in part and dissenting in part: I concur in the dismissal of the charges against respondent International Terminal Operating Corporation but dissent from affirmance of the charges against the remaining respondents. In my opinion the citations against all four respondents should be vacated because these employers did nothing to violate the Act. The efforts which they made to encourage their employees to wear hard hats were sufficient. This situation arises simply and plainly because of employ ee misconduct. What the Commission is here saying is that when an employee consciously and deliberately refuses to comply with an order from his employer, the employer shall be punished.

Over a period of two years respondents attempted in numerous and varied ways to educate and cajole their employees to wear hard hars. They purchased hard hats and distributed them to their employees. Signs directing that hard hats be worn were prominently posted at worksites. Safety meetings were held at which employees were advised to wear their hard hats. Slips containing messages encouraging the use [*38] of hard hats were frequently placed in pay envelopes. Taped safety messages on the use of hard hats were played to stevedores who telephoned to inquire about employment. In addition, respondents sought the cooperation of the supervisory personnel and unions to aid them in their campaign to get employees to comply with hard hat standard.

Although initial compliance among stevedores was good, estimated by an official of one of the respondents at 80%, observance by the men of the requirements of the standard began to deteriorate. Very few of the stevedores at respondents' worksite were wearing hard hats at the time of the inspection by the Department of Labor. The apparent reason for this deterioration was that the employees found the hard hats cumbersome and uncomfortable. Employees complained that hard hats fall off, that they give them headaches, and that they are hot in summer and cold in winter. There is also some indication that employees feel that hard hats do not protect against a significant hazard posed by their job.

Despite these herculean efforts on the part of respondents and the obdurate resistance with which they have been met, the Commission finds that respondents [*39] have violated the Act because they did not take the additional step of terminating the employment of all longshoremen who refuse to wear hard hats. Respondents argue that if they took such action they would be confronted with wildcat strikes and walkouts. One of my colleagues finds these fears speculative and that the record provides no basis for concluding that such labor unrest would occur. My other colleague concedes that the fears are not speculative, but would nevertheless find respondents in violation of the standard since if a strike occurred an injunction could be obtained to stop it. The existence of this remedy, it is contended, makes respondents' fears of labor unrest an illusion.

My review of the evidence convinces me that these fears of strikes and walkouts are not speculative. There was testimony that at a dinner meeting that was arranged to explain the regulation to supervisory personnel, pandemonium broke loose when it was announced that a man would be refused employment if he reported to work without his hard hat. An official of a trade association, of which three of these respondents were members, testified that he was told by a union official that [*40] a strike would undoubtedly result if an attempt were made to enforce the regulation by disciplinary measures. It was also the opinion of numerous representatives of respondents that a strike would result if coercive measures were used to secure compliance.

The Department of Labor also appears to have been aware of the sensitivity of this subject and the potential disruption enforcement of the regulation might cause. There was a two-year moratorium on the enforcement of the regulation by the Department of Labor until 1973 when a new Assistant Secretary of Labor for OSHA took office.

The OSHA compliance officer who made the inspection testified that he had been told by his regional supervisor that the previous moratorium on citing hard hat violations resulted from difficulties with the labor unions since the longshoremen were adverse to wearing hard hats. He was also told that in view of these difficulties enforcing the hard hat regulation might cause a strike.

Moreover, a representative of one of respondents testified that he was told by the compliance officer at the time of the inspection that there is no doubt that there would be a work stoppage if a man were denied employment [*41] for not wearing a hard hat. He is also reported to have stated that it is impossible to do any more than the company had already done to get the men to wear hard hats.

Evidence about the experience in other ports was also introduced to show the likely consequence of dismissals to force compliance with the regulation. There was a two day strike in New York by longshoremen when the company tried to enforce the regulations by not allowing men without hard hats to work. The men went back to work only when the company receded. Difficulties have also been encountered in enforcing the regulation on the West Coast. It should also be noted that a number of cases are presently pending before this Commission where it is argued that labor strife would result from forcing compliance with this standard. See e.g., Secretary of Labor v. International Terminal Operating Corporation of New England, Docket No. 4107, September 24, 1974.

This evidence satisfies me that the respondent's fears of labor unrest if they refuse employment to longshoremen without hard hats are real. Moreover, I do not believe that the Act requires an employer to run the risk of enduring a strike even if [*42] he could obtain an injunction to force his men back to work. n18

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n18 It appears doubtful to me in any event that such an injunction could be issued. The anti-injunction provisions of the Norris La Guardia Act prohibit a federal court from enjoining employees engaged in a labor dispute over refusal to perform any work. In Boys Market, the Supreme Court held that the Norris La Guardia Act did not prevent federal district courts from enjoining strikes that were called in breach of no-strike obligations under collective-bargaining agreements which contain enforceable provisions for binding arbitration of the dispute over which the strike was called. The court made clear that its holding was a narrow one. See Boys Markets, Inc., supra at page 1594.

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An occupational safety and health standard is defined in 29 U.S.C. 652(8) as a standard which requires conditions and practices reasonably necessary and appropriate to create safe working conditions. While the legislative history of the Act indicates an intent [*43] not to relieve the employer of the general responsibility of assuring compliance by his employees, the Act does not make an employer a guarantor of employee compliance. Brennan v. OSAHRC and Raymond Hendrix, d/b/a Alsea Lumber Co., No. 73-1938 (9th Cir., February 24, 1975), slip op. at page 9. In National Realty & Construction Company, Inc., v. OSAHRC et al., 489 F.2d 1257, the Court in discussing the duty of an employer to prevent employee misconduct under the general duty clause, noted

. . . nor is misconduct preventable if its elimination would require methods of . . . monitoring, or sanctioning workers which are either so untested or so expensive that safety experts would substantially concur in thinking the methods unfeasible.

These considerations compel me to conclude that respondents have done all they must do to comply with the Act.

[The Judge's decision referred to herein follows]

HARRIS, JUDGE: The captioned matters, as did those in OSHRC Docket Numbers 2870, 2871, 2872, 3212 and 3726, n1 charge "other than serious" violations of the standard of 29 CFR 1918.105(a) (37 FR 22546, October 19, 1972). Unlike those cases, the matters sub judice involve [*44] four different respondents, albeit, the alleged violations all are charged to have occurred in the Port of Philadelphia at Camden, New Jersey.

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n1 Decided November 15, 1973, wherein the respondent in all five matters was the John W. McGrath Corporation, also engaged in stevedoring along the Eastern seaboard.

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The captioned matters were consolidated for trial by order dated July 5, 1973 and trial was scheduled to commence on August 3, 1973 in Camden, New Jersey. Trial was completed on August 29, 1973 in Washington, D.C. by consent of all of the parties hereto.

Additional allegations of violation of the standards at 29 CFR 1918.96(e) (37 FR 22545, October 19, 1972), requiring at least 90 feet of line to be attached to liferings and 29 CFR 1910.157(a)(2) (37 FR 22243, October 18, 1972), requiring portable fire extinguishers to be readily accessible in the event of fire, by Holt Marine Terminal, Inc., (hereinafter Holt), the respondent on OSHRC Docket Number 2862, are the subject of a petition for leave to withdraw its [*45] notice of contest thereto by this respondent which was filed herein on November 21, 1973. n2

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n2 On respondent's representation that it would apply to withdraw its notice of contest thereto, complainant did not offer proof thereon.

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In Docket Number 2997, the notice of contest filed by the respondent, International Terminal Operating Corporation of Ameriport (hereafter International), was ordered to stand as a general denial in lieu of answer which said respondent had inadvertently omitted to file and the answers and separate defenses filed by the respondents in OSHRC Docket Numbers 2818, 2862 and 2998 are to be applicable as well to International.

It was stipulated and agreed that all respondents in the captioned matters herein were engaged in the business of loading and unloading cargoes carried in ships moving in interstate and foreign trade upon navigable waters of the United States and were engaged in a business affecting commerce within the purview of the Occupational Safety and Health Act of 1970 (hereinafter [*46] the Act).

It was further stipulated and agreed that none of the said respondents had been charged with prior violations of the standard at 29 CFR 1918.105(a); that Atlantic and Guld Stevedores, Inc. (hereinafter A & G), the respondent in OSHRC Docket Number 2818, employed approximately 210 men daily; that Holt employed approximately 52 men daily; that International employed approximately 131 men daily and that Nacirema Operating Company, Inc. (hereinafter Nacirema), the respondent in OSHRC Docket Number 2998, employed approximately 100 men daily; that the citations issued herein were posted pursuant to the provisions of the Act and the regulations issued thereunder and that the respective citations and Notices of Proposed Penalty issued herein were duly served upon each of the respondents.

As in the cases brought against the John W. McGrath Corporation, supra, there exists here no real dispute concerning the factual situation.

The four respondents named herein are substantial stevedores who, in the aggregate, have annual sales in excess of $15 million and who, in the Port of Philadelphia above, employ approximately 500 men daily all of whom are members of the International Longshoremen's [*47] Association (ILA), a labor union. Each respondent operates branches in other ports.

On July 20 and 21, 1971, following the extension of the application of regulations issued under the authority of the Longshoremen's and Harbor, Workers' Compensation Act, (33 U.S.C. 901 et seq. ), as amended, to all types of cargo vessels and to the piers, respondents, as members of the Philadelphia Marine Trade Association (PMTA) n3, purchased and issued, protective head gear, including liners, to all longshoremen who were regular members of stevedore gangs working on its piers in the Port of Philadelphia.

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n3 Composed, among others, of stevedore and longshoring contractors. The association represents employers in collective bargaining negotiations with the International Longshoremen's Association, labor union.

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29 CFR Part 1918, which includes the standard at 1918.105(a), was promulgated under Sections 6 of the Act (29 U.S.C. 655) on May 29, 1971 (29 CFR 1910.16, 36 FR 10469) by way of adoption of 29 CFR Part 1504 which [*48] had been issued under the Longshoremen's and Harbor Workers' Compensation Act, supra. Part 1504 of this title was redesignated as Part 1918 on December 30, 1971 (36 FR 25232) and now appears in consolidated and revised form at 37 FR 22530 et seq. (October 19, 1972). Subsection 1918.105(a) remained unchanged.

Section 1918.105(a) reads, in its entirety, as 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).

Respondents argue that "[By] its terms the standard at most imposes a duty only to purchase and supply hardhats." (Resp. Br. p. 19). The argument is untenable. As I pointed out in the "McGrath" cases, supra, responsibility for compliance with the regulations in Part 1918 is specifically placed upon the employer by Section 29 CFR 1918.1. Furthermore, protective equipment standards applicable in other industries have been consistently determined to require the employer to enforce the use of such equipment. See Sec. v. Ryder Truck Lines, Inc., Sec. v. Georgia-Pacific Corporation, [*49]