SUN SHIPBUILDING & DRY DOCK COMPANY

OSHRC Docket No. 3235

Occupational Safety and Health Review Commission

July 23, 1975

[*1]

Before MORAN, Chairman; and CLEARY, Commissioner

OPINION:

BY THE COMMISSION: A decision of Review Commission Judge Abraham Gold, dated February 25, 1974, has been before this Commission for review pursuant to 29 U.S.C. 661(i) for more than one year. Rather than further delaying the disposition of this case until a third member is appointed to the Commission, the Commission as presently constituted agrees to decide the case at this time.

Chairman Moran finds no prejudicial error in the Judge's vacation of the two contested citations. Commissioner Cleary agrees with the Judge's disposition of Citation Number 1 but would reverse the Judge's decision as to Citation Number 2 and affirm the violation alleged therein. His views concerning Citation Number 2 are set forth in his separate opinion.

Accordingly, the decision of the Judge is affirmed, but this decision has no precedential weight as to Citation Number 2 which is affirmed by an equally divided Commission. Secretary v. Garcia Concrete, Inc., 18 OSAHRC 184 (1975).

CLEARY, COMMISSIONER: Testimony before Judge Gold with respect to citation number 2, revealed the following largely undisputed facts. At the time of inspection, [*2] and for a substantial period before it, respondent used a metal box to transport its employees from either the ground or the ship's main deck to otherwise inaccessible work locations on the M/V Hughes Glomar Explorer. The box, made of corrugated steel measured 53 inches on each side, with sides about 29 inches high. It was suspended from the starboard forward crane by four 12 foot lengths of permanently attached 5/8 inch wire rope. The estimated weight of the empty box was 400 pounds. The ability of the box and wire ropes to support a capacity load, assuming no hidden structural defects, was not in issue.

The custom in the yard was to have a rigger ride in the box when other employees were to be transported to or from their work stations. The rigger would act as a signalman. In addition, it was his job to secure the box against the staging so that the other men could transfer between the box and staging. Securing the box to the staging was accomplished by grabbing onto the backrail and holding tight. Generally, the rigger-signalman was able to signal the box into the staging area "flat and easy." However, on windy days aligning the box with the staging sometimes [*3] proved very difficult. When the wind velocity reached 35 miles an hour, the cranes ceased operation.

The rigger, who signals the crane operator, may make as many as 25 trips a day, some taking as long as 15 minutes per trip, depending on the weather. On the average he will make 10 trips a day.

On the day of inspection, the compliance officer witnessed and photographed a rigger escorting two men to a work station about 65 feet above the pier. Testimony of that rigger revealed that, although he did not fear riding in the box, some men assigned less dangerous jobs who would not ordinarily ride in the box did fear being transported in a box with such low sides. In addition, he stated that he had in the past carried as many as eight men at one time in that box.

Two compliance officers knowledgeable about the maritime and shipbuilding industries testified categorically that respondent's mode of transporting employees was a clear recognized hazard. In addition, they noted that any one or all of the following measures could have been taken to avoid the hazard: (1) The side walls of the box could be raised to about 42 inches to conform to analogous standard rail requirements; * (2) [*4] A line could be installed around the four wire ropes at chest level; (3) Safety belts, suspended from a point above the crane ball, could be required for all persons riding the box; (4) A personnel carrier could be constructed with a sliding door which could be opened to facilitate employee transfers to and from the carrier; and (5) Hand and foot holds could be installed in a box with sides approximately 42 inches high.

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* 29 CFR 1926.500(f).

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Respondent's witnesses, all qualified signalmen and all of whom had ridden in the box on numerous occasions, testified that the most dangerous part of the ride in the box was at the time of transfer to or from the box and the staging. By raising the sides of the box to a height of 42 inches they asserted, a hazard greater than the one they were presently exposed to, if any, would be created. The higher the side walls of the box the more difficult it would be to negotiate a transfer. It should be noted, however, that there is contrary testimony to the effect that [*5] this contention fails to consider the possible use of hand and foot holds in the box to aid in climbing.

Judge Gold noted that "men working at heights face danger, and all preventable hazards must be excluded from the workplace by the use of all available feasible methods." After reaching this conclusion however, he continued and held that: ". . . [R]espondent used all reasonable precautions to eliminate the danger of an employee falling from the box." I do not agree.

Clearly, respondent took some precautions to eliminate the possibility of a fall from the box. The box was raised and lowered at the slowest speed at which a crane can operate. Respondent's employees were not permitted to sit on the side of the box [although at least one employee was photographed doing precisely that.] These precautions while helpful do not go far enough.

The hazards inherent in respondent's method of transportation occur as the result of both the ride and the transfer. The first hazard revealed in undisputed testimony is that the box is occasionally overloaded. Even if substantial protection by holding onto the four pendants would be afforded to three or four men riding the box, eight men could [*6] not be afforded to three or four men riding the box, eight men could not be afforded even this limited protection. Moreover, the arguable protection afforded by holding onto the pendants is applicable only to the actual ride. Sooner or later after reaching the staging the transferring employee must let go.

In addition to the danger of riding in an overloaded material box, there remains the obvious hazard of transporting even one employee in this type of apparatus. Complainant's photographic exhibits of the material box depict a clearly inherently dangerous situation.

Finally, I note that the plainest hazard faced by respondent's employees occurs when they are required to "step over" the 29-inch side wall and 42-inch high back rail onto the staging. At this critical moment the only method used to secure the box to the staging is the arm or arms of the escort rigger. Even assuming that the box is not overcrowded, the transferring employee is still called upon to exert considerable skill and dexterity to make a successful transfer. A single mistake at any substantial height may result in death or serious physical harm. Respondent's method of operation may be thus fairly [*7] described as a "recognized hazard" within the meaning of section 5(a)(1) of the Act.

The Secretary has presented evidence on at least five different methods by which all or part of this recognized hazard could be eliminated. At a minimum respondent should raise the sidewalls of its personnel box, require the use of safety belts attached above the crane ball to protect employees during the critical transfer period, and refrain from overcrowding the personnel box.

[The Judge's decision referred to herein follows]

GOLD, JUDGE: This action arose under Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 659(c), and came on for hearing on October 11, 12, and 15, 1973 at Philadelphia, Pennsylvania.

On May 15, 1973, the Secretary issued three citations. Respondent filed a notice of contest as to Citations 1 and 2, each of which charged one serious violation. Respondent did not contest Citation No. 3, which alleged eight non-serious violations, or any of the penalties proposed therefor, and all eight items in that citation and the proposed penalties became a final order of the Commission pursuant to Section 10(a) of the Act.

The contested charges read:

Citation No. 1

Standard, regulation

Date by which

or section of the Act

Description of alleged

alleged violation

allegedly violated

violation

must be corrected

General Duty Clause,

The employer did not furnish

Public Law 91-596,

to each of his employees

Section 5(a)(1)

employment and a place of

employment which were free

from recognized hazards that

were causing or were likely

to cause death or serious

physical harm to his employ-

ees in that:

The accessible areas within

the swing radius of the

rotating superstructure of

the following cranes were not

barricaded or otherwise pro-

tected n1 in such a manner

so as to prevent an employee

from being struck or crushed

by the crane:

a) Crawler crane "Manitowac

#75", Pier 3-1/2

Immediately upon re-

b) Wagon truck crane #76,

ceipt of Citation

area between 2 and 3 Piers

Citation No. 2

General Duty Clause,

The employer did not furnish

Public Law 91-596,

to each of his employees

Section 5(a)(1)

employment and a place of

employment which were free

from recognized hazards that

were casing or were likely

to cause death or serious

physical harm to his employ-

ees in that:

Employees were permitted to

use a material box, suspended

from a deck crane, aboard the

M/V Hughes Glomer Explorer, by

lifting bridles consisting of

four legs attached to the corners,

for a purpose for which it was not

designed. Specifically, employees

were permitted to ride in the

material box to their work areas

on the mid-ship docking legs and

other areas, and leave the con-

fines of the box at heights

ranging from approximately 50

feet to 150 feet above the deck.

This material box was not

guarded to a sufficient height

to protect employees, nor were

employees within the box pro-

vided with, and required to

Immediately upon re-

wear, lifelines or other

ceipt of Citation

equally effective protective

devices.

[*8]

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n1 The words "or otherwise protected" were not in the citation but were added by way of amendment in the Complaint.

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A $700 penalty was proposed by the Secretary for each of these two alleged violations.

Section 5(a)(1) of the Act, 29 U.S.C. 654(a)(1), provides:

DUTIES

Sec. 5.(a) Each employer --

(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;

Section 17(k) declares that "a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the violation."

Section 17(b) provides that an employer who [*9] has received a citation for a serious violation under any standard shall be assessed a civil penalty of up to $1,000.

Under Section 17(j) of the Act, the Review Commission shall have authority to assess all civil penalties after giving due consideration to the size of the business of the employer, the gravity of the violation, the good faith of the employer, and the history of previous violations.

In answer to the Complaint, Respondent admitted that at all times relevant herein it maintained its principal office and place of business, and a workplace, at Chester, Pennsylvania; that it had about 4,000 employees; that it engaged in shipbuilding and ship repair, using goods, materials, and machinery shipped from and/or manufactured outside Pennsylvania, and was engaged in a business affecting commerce; and that this proceeding is subject to the jurisdiction of the Commission. Respondent also admitted in the answer that its workplace was inspected by Labor Department compliance officers on April 24-26, 1973.

Respondent notes that the Secretary attached to the Complaint copies of the contested citations and notice of proposed penalties, incorporating these documents by reference; [*10] it is contended that this form of pleading is invalid because the Secretary is required to set forth all alleged violations in the body of the Complaint, rather than by incorporation by reference.

It is the claim of Respondent that the Secretary (1) failed to comply with Commission Rule 33 (29 CFR 2200.33), which states that a complaint shall state with particularity the time, location, place, and circumstances of each alleged violation and (2) failed to comply with Rules 8(e)(1) and 8(a)(2) n2 of the Federal Rules of Civil Procedure, the former requiring that pleading be "direct" and the latter declaring that a complaint shall consist of "a short and plain statement of the claim showing that the pleader is entitled to relief."

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n2 The brief inadvertently refers to Rule 8(b)(1).

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Under Rule 10(c) of the Federal Rules of Civil Procedure, a copy of any written instrument which is an exhibit to a pleading is a part of the pleading for all purposes, and may properly be considered in determining the sufficiency of the pleading. [*11] Foshee v. Daoust Const. Co., 185 F.2d 23, 24 (7 Cir. 1950). Fisher Iron & Steel Co. v. Elgin, J. & E. Ry. Co., 101 F.2d 373 (7 Cir. 1939). The attached citations and proposed penalty notice were validly incorporated in the complaint by reference. These attachments were thus part of the complaint to the same extent as if their exact language had been written into the body of the complaint document. This motion for dismissal of the complaint is denied.

In another motion Respondent urges that the complaint be dismissed and the citations vacated for failure to adequately describe the hazard which forms the basis of each alleged violation. Respondent points to the expressions "or otherwise protected" in Citation No. 1 and "not guarded to a sufficient height to protect employees" in Citation No. 2. Administrative pleadings are liberally construed, and can be amended prior to and during the hearing. So long as fair notice is given, an issue litigated at an administrative hearing may be decided even though the pleadings did not squarely raise the issue. National Realty and Const. Co., v. OSHRC, 489 F.2d 1257. (D.C. Cir., 1973). It is felt that [*12] the pleadings contain sufficient particularity, despite the ambiguities referred to above, to have afforded Respondent fair notice of the charges. This motion is denied.

Respondent has moved that Citation No. 1 be vacated on the grounds that a specific standard, 29 CFR 1916.65(d), was promulgated to protect shipbuilding employees who are in the vicinity of cranes, thereby preempting Section 5(a)(1) of the Act.

The specific standard referred to by Respondent states:

Subpart G-Gear and Equipment for Rigging and Materials Handling

1916.65 Hoisting and hauling equipment.

(d) Accessible areas within the swing radius of the outermost part of the body of a revolving derrick or crane either permanently or temporarily mounted, shall be guarded in such a manner as to prevent an employee from being in such a position as to be struck by the crane or caught between the crane and fixed parts of the vessel or of the crane itself.

Part 1916 relates to shipbuilding. The term "employer," as pertinent here, is defined in 29 CFR 1916.2(c) as an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States, including [*13] dry docks, and any of whose employees are employed, in whole or in part, in shipbuilding or related employment on the navigable waters of the United States, including dry docks.

An "employee" is defined in 1916.2(d) as any person employed in shipbuilding or related employments on the navigable waters of the United States, including dry docks, by an employer as defined in 1910.2(c).

"Related employment" means any employment performed as an incident to or in conjunction with shipbuilding work including, but not restricted to inspection, testing trials and employment as a watchman. 29 CFR 1910.2(j).

Citation No. 1 involves a crawler crane and a truck crane located in the area of Piers 2 and 3 at Respondent's shipyard. The assistant foreman working with the truck crane at the time of the inspection testified that the crew was moving material on a roadway from one end of the pier to the other and that Respondent was building caissons with that material, the caissons being used as a foundation for a bridge. This record shows that Respondent's truck crane was not being used in connection with shipbuilding at the time of the inspection. Part 1916 does not apply to the truck [*14] crane, and the motion is denied as far as that crane is concerned.

As to the crawler crane, the motion is also denied; there is no allegation naming, and no evidence of record showing, the specific industry in which it was used at the time of the alleged violation. There are specific industry standards covering construction, shipbuilding, ship repair, etc., and on this record a proper determination cannot be made as to which specific industry standard, if any, is applicable; nor is there a basis upon which to decide that no promulgated standard applies and that Section 5(a)(1) of the Act is the only appropriate charge. For this reason the portion of the citation relating to the crawler crane is vacated.

Since making a caisson at the shipyard is a form of heavy manufacturing, this activity falls within the ambit of the general industry standards at Part 1910, but that Part contains no standard requiring that the swing radius of the rotating superstructure of cranes be barricaded or otherwise protected. Hence, the Secretary must rely upon Section 5(a)(1) of the Act, the general duty clause, with respect to the truck crane.

Under that clause, the Secretary must establish, inter [*15] alia, that Respondent failed to furnish to its employees employment and a place of employment free of a condition which is recognized as a hazard in the heavy manufacturing industry.

The inspecting officer said that "on or about" April 24, 1973 he saw the two cranes in a stationary position, with outriggers extended. He saw no barricade near either crane in the area of the swing radius of the superstructure, and this is not disputed by Respondent. At the time of the inspection there was no fixed object within the swing radius of the superstructure.

While a barricade is required by 29 CFR 1926.550(a)(9) for the protection of employees in the construction industry, the maritime standards at 29 CFR 1915.65(d) for ship repairing, 1916.65(d) for shipbuilding, and 1917.65(d) for shipbreaking, do not require a barricade, but instead require that accessible areas within the swing radius of a crane "be guarded in such a manner as to prevent an employee from being in such a position as to be struck." Under 1918.55, relating to longshoring, the accessible areas "shall be temporarily guarded by ropes or other suitable means during cargo operations."

The danger alleged here is [*16] that the accessible area within the swing radius of the rotating superstructure of the truck crane was not barricaded or otherwise protected. Respondent contends that the area was always protected by a signalman who watched the area of the swing radius.

The operator of the truck crane testified that the cab usually swings slowly when booming a load into place, and if he sees anyone approaching the cab he stops the crane right away. an assistant foreman, who was one of the five members of the crew of that crane on the day of the inspection, said that when he directs the operator to swing the boom he does not just stare at the operator, -- he "can see other things"; and that a signalman must watch out for persons in the area. Other witnesses of Respondent testified that a signalman at the front of the crane is so positioned that he can see employees who might come within the swing radius of the superstructure. According to the tool room foreman, a crane is shut down and the operator is removed before any maintenance work is performed on a crane. One of the Secretary's expert witnesses (DiSilvestro) stated that he worked at Respondent's shipyard from about 1951 to about 1961, and [*17] as a safety inspector from 1954 on; and that while he worked for Respondent every crane in operation was barricaded, but later he admitted that at times barricades were unnecessary, and not used, when the crane was located in an area where only two employees were working (the crane operator and one other employee who acted as hooker-on and signalman). He called this "guarding by location," there being no exposure of employees to danger, due to location.

A tool room foreman contradicted Mr. DiSilvestro, claiming that he had worked in Respondent's yard for 33 years and that he had never seen cranes barricaded in the yard. An assistant foreman for riggers, employed by Respondent for 33 years, said that similar cranes were never barricaded when used in the yard, but have been barricaded when used on a ship.

Mr. DiSilvestro, who claimed to have conducted about 10,000 inspections, testified that other shipyards use wooden barricades, metal barricades with wood planking across them, or rope attached to upright stanchions with material hanging from the rope. Complainant's other expert witness (Knight) said that other shipyards use wooden barricades, but he admitted that this [*18] measure "doesn't completely stop anyone from going in that area." He also testified that if a signalman is conscientious he will look to make sure that the exposed areas within the swing radius are kept clear.

None of the witnesses knew of any employee having been struck by the rotating superstructure at Respondent's shipyard.

From a reading of the various industry standards which call for measures to prevent employees from entering the swing radius, it is at once clear that a barricade is not always the only acceptable protective measure; and the Secretary has not relied solely upon that method, -- he would be satisfied if the area were "otherwise protected." Clearly, this record shows that Respondent's practice of relying upon the watchful signalman has worked. There is no evidence of any employee ever having been involved in any accident within the swing radius.

The inspecting officer's testimony is not even clear that he fully observed either crane in operation. At one point he said that the cranes were in a fixed position when he inspected them, but later he stated that he did not remember whether the cranes were moving as he approached. After testifying that he watched [*19] the cranes in operation, he declared that he believed that one was not operating and the other stopped operating when he approached.

It is found that this record fails to establish that Respondent did not "otherwise" protect the swing radius of the rotating superstructure of the truck crance. The portion of Citation No. 1 relating to the truck crane will be vacated.

Citation No. 2 relates to a box which at the time of the inspection was being used to transport three employees from the deck of the M/V Hughes Glomar Explorer to an otherwise inaccessible work location about 65 feet above the deck, onto midship A-frames or docking legs of the vessel, which Respondent was building. This ride took about 2 -- 3 minutes.

The box, made of corrugated steel, was lifted by the starboard forward crane. It measured about 53 inches square, with the sides approximately 29 inches high. The box was suspended from the crane by four 5/8-inch wire rope pendants which were permanently attached to the box with one-inch shackles. Each pendant measured about 12 feet in length.

The box itself weighs about 400 pounds. The breaking strain for each pendant is 16-1/2 tons.

As was the custom, [*20] a rigger-signalman was in the box with the two employees who were being transported to the job location. There are five speeds on the crane, and the box is lifted at the lowest speed. The rigger, who signals the crane operator, escorts workers to the work locations, or back to the deck, as many as 20-25 times in a day, averaging 10 trips a day. A trip may take as long as 15 minutes, depending on the weather. The signalman checks the pendants and shackles for defects. He is required to do so each day.

On a windy day the signalman has a problem getting the box to reach the staging and "bring it in flat and easy." If the wind reaches 35 miles an hour, the cranes cease operation.

When transported in the box, employees wear gloves and hold onto the pendants, but some squat. Personnel are told not to sit on the edge or side of the box, and once when the signalman was seen doing so, he was informed by the manager of the Safety Department that he must stand in the box at all times or he would require a safety belt.

The Secretary contends that it was a hazard for Respondent's employees to ride in such box because (1) the sides of the box were "not guarded to a sufficient height" and [*21] (2) the employees within the box were not "provided with, and required to wear, lifelines or other equally effective protective devices."

At the hearing the Secretary explained what he meant by "sufficient height." The inspecting officer felt that the sides of the box should have been the 42-inch height of the standard guardrail. Another officer of the Department of Labor was less specific, but mentioned 42 and 55 inches. The 42-inch figure stems from safety standards relating to standard railings for walking-working surfaces. The box was used only to lift or lower employees, and not for walking or working. Moreover, recently n3 the Secretary proposed a lowering of the required minimum height from 42 to 36 inches for standard railings [29 CFR 1910.23n(a)].

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n3 38 Fed. Reg. 24,300 (September 6, 1973).

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The Secretary claims that the 29-inch height of the sides makes it very easy for an employee to fall out of the box. However, none of the witnesses knew of any employee having fallen out of such box.

The [*22] inspecting officer suggested a type of carrier which has a door that can be slid open to permit egress, with the employees using a safety belt attached to a point above the hook, so that if the box fell away, the individual would not fall to the ground. This witness admitted that he knew of no accident involving an employee climbing out of a 29-inch box onto a platform with a 42-inch rail.

A box with sides 42 inches high would present a hazard when the employee has to climb over the side onto the work platform or back into the box from the work location. It is obviously easier (and safer) for the average man to step over a 29-inch side. The Secretary presented no evidence that the industry uses a safety belt with its personnel hoists and has not shown a need for a safety belt and lifeline. Obviously, men working at heights face danger, and all preventable hazards must be excluded from the workplace by the use of all available feasible methods.

In the instant case, Respondent used all reasonable precautions to eliminate the danger of an employee falling from the box. The box is made of corrugated steel. A signalman accompanies the employees on each trip. The signalman regularly [*23] inspects the pendants and shackles for possible defects. Most riders wear gloves and hold onto the pendants while being transported, but some squat inside the box. Respondent does not permit riders to sit on the side or edge of the box. The box is raised or lowered at the slowest rate of speed at which the crane can operate. The sides of the box are 29 inches high; using a box with higher sides would make the journey safer but would increase the danger of an employee falling at the work station high in the air when the employee is in the process of leaving or entering the box. Taking into account all the precautions taken, viewed in the light of the fact that no workers have fallen from the box used by Respondent, and measured against the danger that would be created by increasing the height of the sides of the box, it is found that the Secretary has failed to establish that the use of this box is a recognized hazard causing or likely to cause death or serious physical harm to Respondent's employees.

CONCLUSIONS OF LAW

1. The Occupational Safety and Health Review Commission has jurisdiction over the parties and subject matter within the contemplation of Sections [*24] 3 and 4(a) of the Occupational Safety and Health Act of 1970.

2. On April 24-26, 1973, Respondent was not in violation of Section 5(a)(1) of the Act for failure to furnish to each of his employees employment and a place of employment which were free from recognized hazards that were causing or were likely to cause death or serious physical harm to his employees.

ORDER

It is ORDERED that amended Citation No. 1 and Citation No. 2 and the proposed penalties be and the same hereby are VACATED.