NORTHERN METAL COMPANY

OSHRC Docket Nos. 3821; 3896; 4594; 4898 (Consolidated)

Occupational Safety and Health Review Commission

October 30, 1975

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners

OPINIONBY: CLEARY

OPINION:

CLEARY, COMMISSIONER: These cases present several issues which we resolved in Atlantic & Gulf Stevedores, Inc., Nos. 2818, 2862, 2997 and 2998 (April 11, 1975). These are: (a) whether there was a failure to fulfill an obligation under the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. [hereinafter the "Act"] by not requiring reluctant longshoremen employees to wear "hard hats" as required by the standard published at 29 CFR 1918.105(a), n1 and (b) whether the cited standard is unenforceably vague and was improperly adopted. In Atlantic & Gulf, we held that the employers herein had failed in fulfilling their duties under the standard and that the standard was valid and enforceable. The facts in this case bearing on these issues being substantially similar to those in Atlantic & Gulf and finding no merit in respondent's other asserted defenses, we affirm the citations for non-serious violation of the Act. Accordingly, Judge Worcester's decisions to the contrary are reversed.

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

n1 29 CFR 1918.105(a) reads:

(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).

[*2]

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

I.

On June 15, 1973, respondent's workplace was inspected by a compliance officer from the Department of Labor. After showing his credentials to the guard, the compliance officer entered the premises and sought out respondent's operations manager and his assistant. Failing to find either of them and not attempting to contact other company officials, the compliance officer, who was well known at the port, began the inspection, and was accompanied by respondent's ship's foreman.

During the inspection the compliance officer found that a vast majority of the longshoremen at the worksite were not wearing hard hats.

Immediately after the inspection the compliance officer held a closing conference with respondent's operations manager. On June 21, 1973, a citation was issued alleging a non-serious violation of the Act for failure to comply with 29 CFR 1918.105(a). Immediate abatement was required. No penalty was assessed. On July 13, 1973, respondent filed a timely notice of contest. That case is before us as Docket No. 3821.

On July 6, 1973, before respondent contested that citation and [*3] before the expiration of the 15-working day period for filing such contests, n2 the Secretary reinspected respondent's workplace. That inspection resulted in a second citation, issued July 13, alleging a repeated violation of 29 CFR 1918.105(a), and for the first time, alleging a violation of the standard promulgated at 29 CFR 1910.132(a), n3 also for the failure of employees to wear hard hats. A penalty of $115 was proposed. That case is before us as Docket No. 3896.

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

n2 See section 10(c) of the Act.

n3 29 CFR 1910.132(a) reads:

(a) Application. Protective equipment, including personal protective equipment for eyes, face, head, and extremeties, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition whenever it is necessary by reason of hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - [*4] - - - - - - - - - - - -

After filing a timely notice of contest to this second citation, respondent was inspected a third time, on August 15, 1973 (Docket No. 4594), and a fourth time, on September 13, 1973 (Docket No. 4898). Each reinspection resulted in the issuance of citations for repeated violations of the two "hard hat" standards. Penalties in the amount of $195 were proposed in No. 4594 and $315 in No. 4898, respectively. n4 Respondent timely contested both citations.

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

n4 In both Docket Nos. 4594 and 4898, respondent was cited for other nonserious violations. Its timely notices of contest to those citations were withdrawn at the hearing and, accordingly, are not before us on review.

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

II.

In defense respondent argues:

(1) That the standard published at 29 CFR 1918.105(a) is unenforceably vague;

(2) That its due process rights were violated by the Secretary's incorporation by reference into the above cited standard of the "American National Standard -- Safety Requirements for Industrial Head Protection, [*5] Z89.1 (1969)," and by the Secretary's failure to print that incorporated standard in full in the Federal Register;

(3) That it has done all that is possible to enforce that standard among its employees;

(4) That it lacks sufficient control over the actions of its longshoremen to be considered their employer under section 3(6) of the Act; n5

(5) That the June 15, 1973, inspectin violated its rights under sections 8(a) n6 and 8(e) n7 of the Act;

(6) That it was improperly cited for a violation of 29 CFR 1910.132(a) in Nos. 3896, 4594, and 4898, since it is a genceral industry standard, superseded in this instance by 29 CFR 1918.105(a) which is a standard concerning the same conduct and relating specially to the longshoring industry;

(7) That 29 CFR 1910.132(a) is unconstitutionally vague and unenforceable; and

(8) That the citations in Nos. 3896, 4594, and 4898 should be vacated bacause they were issued before the entry of a final order in No. 3821.

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

n5 Section 3(6) reads:

The term "employee" means an employee of an employer who is employed in a business of his employer which affects commerce.

n6 See. 8(a) In order to carry out the purpose of this Act, the Secretary, upon presenting appropriate credentials to the owner, operator, or agent in charge, is authorized --

(1) To enter without delay and at reasonable times any factory, plant, establishment, construction site, or other area, workplace or environment where work is performed by an employee of an employer; and

(2) To inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such employer, owner, operator, agent, or employee.

n7 (e) Subject to regulations issued by the Secretary, a representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany the Secretary or this authorized representative during the physical inspection of any workplace under subsection (a) for the purpose of aiding such inspection. Where there is no authorized employee representative, the Secretary or his authorized representative shall consult with a reasonable number of employees concerning matters of health and safety in the workplace.

[*6]

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

III.

As we said at the outset, in Atlantic & Gulf Stevedores, Inc., supra, we examined comprehensively the questions raised here by respondent concerning the lawfulness of the standard at 29 CFR 1918.105(a), its incorporation of the American Safety Standard Z89.1, and respondent's fulfillment of its obligations under the Act to achieve compliance with that standard.

Respondent presents no new evidence or argument to warrant a departure from Atlantic & Gulf, and we repeat our holding of the following: First, the standard at 29 CFR 1910.105(a) is not vague and requires the use of safety hats by employees to the extent that they are engaged in longshoring operations. Second, the Secretary's incorporation by reference of the American Safety Standard Z89.1 was lawfully accomplished under 5 U.S.C. 552(c)(1) n8 and the standard is incorporated, not to limit the circumstances under which safety hats are required or to impose any further requiremens, but to set forth the scope of protection to be provided by the hats. Third, the claim that laying off an employee for failure to wear a hard hat [*7] would result in a "wildcat" strike is speculative and final responsibility for complying with the provisions of the Act rests with the employer.

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

n8 That section of the Administrative Procedure Act states, in part, that,

. . . matter reasonably available to the class of persons affected thereby is deemed published in the Federal Register when incorporated by reference therein with the approval of the Director of the Federal Register.

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

IV.

Respondent contends that it should not be considered the "employer" of the longshoremen under section 3(6) of the Act. Respondent points to its "hiring hall" arrangement common in longshoring whereby longshoremen are hired by gangs, which choose their own members and foremen without the consent of the employer.

Respondent also contends that the International Longshoreman's Association (ILA) actually controls the longshoremen. Respondent points to other ports where the local ILA encourages the use of hard hats and where, apparently because of such encouragement, the regulation [*8] is largely followed. Respondent submits that no such encouragement has come from the ILA in local Philadelphia. n9

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

n9 The evidence shows the existence of a grievance procedure which respondent apparently could have, but did not invoke by filing a complaint against longshoremen who refused to comply with the hard hat standard. (Exh. R-D, para. 30, pp. 25-27; Tr. 30, 59).

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

In his decision in Docket No. 3821, Judge Worcester accepted respondent's arguments and held that "the Respondent cannot be charged with a violation of the Act when the usual indicia of an employer-employee relationship under the common law rules is lacking."

That holding is clearly wrong. Common-law tests of employment are not controlling. Brennan v. Gilles & Cotting, Inc. & O.S.H.R.C., 504 F.2d 1255 (4th Cir. 1974). What is controlling is the legislative purpose. Congress plainly intended to regulate by the Act safety in longshoring and construction, two industries which have high injury-frequency rates and in which there is common use [*9] of hiring-halls. See for example, the provision in section 4(b)(2) of the Act coordinating its enforcement with the Longshoremen's and Harbor Workers' Compensation Act and the Construction Safety Act. This purpose would be frustrated by a narrow application of the term "employer" in hiring-hall situations. The hiring-hall acts merely as an agent of the employer in referring employees. N.L.R.B. v. H.K. Ferguson Co., 337 F.2d 205 (5th Cir. 1964); N.L.R.B. v. Houston Maritime Assoc., 337 F.2d 333 (5th Cir. 1964).

Under an "economic" realities" test, n10 we note that it is respondent who pays the longshoremen and determines how many workers it needs on any given day. Respondent also has the power to inspect the workplace for safety hazards.

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

n10 See generally N.L.R.B. v. Hearst Publications, Inc., 322 U.S. 111 (1944); Brennan v. Gilles & Cotting & O.S.H.R.C., supra, (4th Cir. 1974); and Dayton Tire & Rubber Co., No. 2719 (January 29, 1975), petition for review docketed, No. 75-1316, D.C. Cir., March 27, 1974.

- - - - - - - - - - - - - - - - -End Footnotes- - - [*10] - - - - - - - - - - - - - -

Clearly, respondent must be charged with responsibility for compliance with the Act at its own workplace. The gang foremen or the ILA cannot be expected to conduct inspections of respondent's workplace and order the abatement of safety hazards. See Dayton Tire & Rubber Co., supra.

Stevedoring companies have long been held to be employers of their longshoremen under the National Labor Relations Act. See N.L.R.B. v. Houston Maritime Assoc., 337 F.2d 333 (5th Cir. 1964); N.L.R.B. v. Janka Corp. of Philadelphia, 198 F.2d 618 (3d Cir. 1952).

V.

In dicta in his decision in No. 3821, Judge Worcester also found that respondent's rights were violated because of the compliance officer's asserted failure to comply with sections 8(a) n11 and 8(e) n12 of the Act. The Judge's ruling is based on the fact that the compliance officer failed to present his credentials to either the owner, operator, or agent in charge before beginning the inspection and because he failed to give an authorized employer representative an opportunity to accompany hid on his inspection of the workplace.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - [*11] - - - - - -

n11 See note 6, supra.

n12 See note 7, supra.

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

Section 8(a) establishes the compliance officer's authority, upon presenting appropriate credentials, to enter an employer's premises and conduct a search. Substantial compliance with its terms is sufficient. See Accu-Namics, No. 477 (May 30, 1974), affirmed, 515 F.2d 828 (5th Cir. 1975). The compliance officer, in this instance, substantially complied with the identification requirement. He presented his credentials to the ship's boss thereby establishing his authority. Further, he was well known at respondent's place of business. The essential purpose of section 8(a) being identification, any further presentation of credentials would have been redundant.

We also find compliance with section 8(e). n12a the record establishes that the compliance officer complied with that section. He made a good-faith effort to find respondent's operations manager and his assistant. Failing to locate them, he proceeded to the ship where he found the ship boss who then accompanied the compliance officer on his inspection. [*12] Respondent argues that being a member of the ILA, the ship's boss cannot be considered an authorized employer representative. We find the compliance officer's determination that the ship's boss was an authorized employer representative to be reasonable. On this point the testimony of the International Vice President for the Philadelphia Area of the ILA is particularly persuasive. In his opinion a ship's boss is a member of management, and is so considered by management.

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

n12a For my own part, I would also note that this result is consistent with the following precedents: Wright-Schuchart Harbor Contractors, No. 559 (February 15, 1973); Chicago Bridge & Iron Co., No. 244 (January 19, 1973), appeal dismissed, No. 73-1971 (7th Cir., May 31, 1973); Accu-Namics, supra, No. 477 (May 30, 1974), affirmed 515 F.2d 828 (5th Cir. 1975).

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

VI.

We agree with respondent that the allegations concerning violations of 29 CFR 1910.132(a) must fail. The "hard hat" standard published at 29 CFR 1918.105(a) is a [*13] standard specifically addressed to longshoring. As such it controls over any similar standard of general application such as 29 CFR 1910.132(a). Sun Shipbuilding & Drydock Co., No. 161 (October 3, 1973).

In his decision in cases Nos. 3896, 4594, and 4898, Judge Worcester concluded that, there having been no order in No. 3821, respondent was improperly cited for repeated violation of the "hard hat" standard.

At the hearing, the Judge, after refusing to grant the Secretary's motion to plead repeated and non-serious violations in the alternative, allowed a subsequent motion to amend the complaint to allege non-serious violations.

We agree with the Judge that an allegation of a repeated violation cannot stand until the citation upon which it is based becomes an order of the Commission either by operation of law or as a result of adjudication. n13 We agree with the Secretary, however, that respondent was citable for additional non-serious violations.

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

n13 This case is distinguishable from Brennan v. O.S.H.R.C. & Kesler & Sons Constr. Co., 513 F.2d 553 (10th Cir. 1975) which involved a citation for failure to abate in accordance with a previous order that was not stayed by a contest thereof under the terms of section 10.

[*14]

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

VII.

In determining the proper penalty assessment we find that the proposed penalties in Docket Nos. 2896, 4594, and 4898, being based on an erroneous allegation of repeated violations are too high.

Considering respondent's efforts of persuasion to comply with the Act we believe that full credit should be allowed for good faith. We assess no penalties.

Accordingly, it is ORDERED that the citations for non-serious violations in Docket Nos. 3821, 3896, 4594, and 4898, for failure to comply with the standard at 29 CFR 1918.105(a), be affirmed and that no penalty be assessed. The alleged violations of 29 CFR 1910.132(a) are vacated.

CONCURBY: MORAN (In Part)

DISSENTBY: MORAN (In Part)

DISSENT:

MORAN, COMMISSIONER, concurring in part and dissenting in part: I concur in the affirmation of the dismissal by the court below of the 29 C.F.R. 1910.132(a) charge. I respectfully dissent, however, from the Commission's reversal of the disposition regarding 29 C.F.R. 1918.105(a). Judge Worcester's well-reasoned decision is correct and ought to be affirmed.

Although the Commission's decision notes the respondent's [*15] claim that the incorporation by reference of the substantive requirements of 29 C.F.R. 1918.105(a) does not afford employers due process of law, it contains not one word of reason for overturning that defense.

1918.105(a) provides that:

[e]mployees . . . be protected by protective hats . . . [specified in ANSI] Z89.1 (1969).

Incorporation by reference is not per se a violation of due process. The Administrative Procedure Act, 5 U.S.C. 552(1)(E), provides that a

. . . matter reasonably available to the class of persons affected thereby is deemed published in the Federal Register when incorporated by reference therein with the approval of the Director of the Federal Register. (emphasis added)

The question here is whether the incorporation by reference of ANSI Z89.1 makes the requirements of this standard "reasonably available" under this Act. n14

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

n14 5 U.S.C. 552(1)(E) also provides that the director of the Federal Register must approve of the incorporation by reference before the standard may be published. In what manner, by what criteria, and for what reasons was the incorporation of the substantive requirements of 29 C.F.R. 1918.105(a) determined to be "reasonably available" to employers under this Act? Unfortunately, an independent inquiry does not disclose the answers to these questions. Considering, however, the vast number of employers affected by OSHA regulations, I am not convinced simply because 1918.105(a) was published in the Register that serious if any, consideration was given this extremely important congressional mandate.

[*16]

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

A 1973 United States Government Printing Office publication of OSHA (occupational safety and health) standards covers some 1,362 pages, encompassing more than 20,000 standards.

The class of employers to which these regulations apply is not a small or concentrated group. They apply to every employer in the United States and affect every working man and woman. See 29 U.S.C. 651(a), (b); 29 U.S.C. 653(a).

A recent study by the Subcommittee on Environmental Problems Affecting Small Business, entitled The Effects of the Administration of the Occupational Safety and Health Act on Small Business, n15 resulted in the "finding" that OSHA "has a duty to write its standards in a . . . manner so that they can be . . . quickly implemented." n16 They also stated that OSHA ". . . has the obligation to organize its standards in an understandable and utilitarian manner which will serve to assist the employer in locating and enforcing those applicable to his particular business." n17

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

n15 II.R. Rep. No. 93-1608, 93rd Cong., 2d Sess. (1974).

n16 Id. at 23.

n17 Id.

[*17]

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

They then went on to state that:

. . . the practice of adopting standards by using the methods of incorporation by reference obfuscates their pertinence and consequently delays their effectuation." n18

The subcommittee therefore recommended that OSHA:

Cease promulgating standards on the basis of incorporation by reference and instead extract the adopted sections and publish them in their entirety. n19

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

n18 Id. at 25.

n19 Id. at 26.

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

Any standard that requires all employers in the United States to ascertain its substantive requirements from sources other than the Federal Register is not, in my opinion, a matter "reasonably available" within the context of this Act. 29 C.F.R. 1918.105(a) falls within this category. It is my conclusion therefore that this defense should have been sustained.

With regard to the facts and law at issue in this case, I would affirm Judge Worcester's disposition for reasons given in my opinions in Secretary [*18] v. Atlantic & Gulf Stevedores, Inc., 16 OSAHRC 770, 788 (1975), and Secretary v. Independent Pier Company, 20 OSAHRC 810 (1975.)

As to my views regarding the other issues of vagueness, the requirements mandated in 29 U.S.C. 657(a) and (e), and the employer-employee relationship presented here, see respectively Secretary v. Arkansas-Best Freight Systems, Inc., 15 OSAHRC 663, 666 (1975); Secretary v. California Stevedore and Ballast Company, 16 OSAHRC 800, 806 (1975); Secretary v. Lipsky and Rosenthal, Inc., 8 OSAHRC 375, 379 (1974); Secretary v. Elmer Vath, Painting Contractor, 9 OSAHRC 833, 835 (1974).

[The Judge's decisions referred to herein follows]

WORCESTER, JUDGE: This proceeding arises pursuant to notices of contest filed by the Northern Metal Company (hereinafter Northern) in each of Docket Nos. 3896, 4594, and 4898. Section 10(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et. seq. ), hereinafter called the Act, provides for a hearing whenever an employer as defined in the Act disagrees with a determination by the Secretary of Labor (hereinafter Secretary) that the employer has violated the Act or the standards [*19] promulgated under authority of the Act and has proposed a penalty for such an alleged violation.

Northern is a stevedoring company with terminal facilities located in the Ports of Philadelphia and Wilmington, Delaware. On June 15, 1973, Francis A. Moock, a marine safety specialist employed by the Secretary, inspected the Northern's terminal. He saw longshoremen employed by Northern aboard the M/S Sugar Crystal who were not wearing protective hats. Upon Moock's recommendation a citation charging Northern with a violation of 29 CFR 1918.105(a) was issued on June 21, 1973. Northern filed a timely notice of contest of this citation. This matter was assigned Docket No. 3821 and came on to be heard on December 3, 1973, before this Judge. On March 20, 1974, a decision vacating the citation and dismissing the action was issued. Docket No. 3821 is now pending before the Review Commission on the Secretary's petition for review. It has not yet become a final order.

The Secretary has since inspected the respondent's terminal on three other occasions and has issued three additional citations for failure to wear protective hats which were classified as "repeat" violations. One of these [*20] citations now identified as Docket No. 3896 was issued before the time for filing notice of contest of the June 21st citation had expired. The two other cases identified as Docket Nos. 4594 and 4898 were issued after the notice of contest in Docket No. 3821 was filed but before the hearing was held. Again the respondent was charged with a repeat violation although, because of the filing of a notice of contest, Docket No. 3821 had not yet become a final order.

There is no mention of a repeat violation in the act nor is such a term defined. Section 17(a) provides that any employer who "willfully or repeatedly" violates the Act may be assessed a penalty. A reasonable interpretation of this language would be that before an employer can be charged with a repeat violation, it must be shown that he has done the same thing before. A previous citation which has not yet been finally adjudicated cannot serve as the basis for a charge of violating the same standard "repeatedly." A citation is like an arrest. Many arrests are made which do not result in a conviction. In criminal law it is understood that every person, including those arrested, is presumed to be innocent until [*21] proven guilty. No less a less consideration should be given to the alleged violator of a regulatory act.

There is another element in the factual record in three cases which also throws some doubt as to whether or not there was is in fact a repeat violation. Docket No. 3821 alleged a violation of 29 CFR 1918.105 of the Act as adopted by 29 CFR 1910.16. The latter section is titled "Longshoring". The protective hats referred to in 29 CFR 1918.105 are those which meet the specifications contained in the American National Standards Safety Requirements for Industrial Head Protection Z89.1 (1969). Section 1910.16 did not adopt the ANSI standards. It adopted the standards prescribed by Part 1504 of Title 29, Code of Federal Regulations in effect on April 28, 1971. Docket Nos. 3896, 4594 and 4898, although alleging a repetition of a violation of 29 CFR 1910.105(a) on June 21, 1973, added an additional charge of a violation of 29 CFR 1910.132(a) in the same citation. Section 132(a) is the introductory general paragraph of the standards pertaining to general industry.

The citations in Docket Nos. 3896, 4594 and 4898 were based on Moock's observation of longshoremen employed by Northern [*22] without protective hats performing work on the vessel Alice Torm on July 6, 1973, the vessel Itapui on August 15, 1973, and the vessel Lloyd on September 13, 1973. Northern conceded that Moock's observation coincided with the facts, but Northern had filed a timely notice of contest in each instance so that none of the citations for "repeat" violation have become a final order. For that reason Northern's motion to vacate the citations for repeat violations was granted and the Secretary was permitted to amend the complaint to allege a simple nonserious violation.

Northern, in its brief, argues that the Secretary's motion to amend should not have been granted and asks for reconsideration of this ruling. It also contends that (1) 29 CFR 1918.105(a) and 29 CFR 1910.132(a) are so vague as to be unenforceable, (2) that a citation for violation of 29 CFR 1910.132(a) was improper because it is a general industry standard when 29 CFR 1918.105(a), a specific standard, is applicable, and (3) that the respondent is not an employer of longshoremen.

The longshoremen are employees of the respondent within the meaning of the Occupational Safety and Health Act, but since the Secretary [*23] has failed to sustain the burden of proof that there were violations as alleged in the complaint none of these issues raised by Northern are reached.

The evidence reveals that, due to the unique character of the employer-employee relationship in the stevedoring industry, Northern Metal lacked the ultimate authority to discipline its employees. The International Longshoreman's Association is, regardless of the terms of any existing labor contracts, the entity which can make longshoremen wear protective hats in the Port of Philadelphia. It is not necessary for Northern to invoke the grievance provisions of its labor contract or to litigation to sustain this conclusion. The respondent's longshoremen is the Port of Wilmington wear protective hats because the ILA orders them to comply with the standards.

At the hearing the respondent moved to withdraw its notice of contest of the alleged violation of 29 CFR 1918.91(g) for which no penalty was proposed in Docket No. 4594 and an alleged violation of 29 CFR 1918.82(a) for which a penalty of $55.00 was proposed in Docket No. 4898. That left only the single issue in each of the Docket Nos. 3896, 4594 and 4898 of an alleged violation of [*24] 29 CFR 1910.132(a) and 29 CFR 1918.105(a).

FINDINGS OF FACT

1. The respondent, Northern Metal Company, is a stevedoring company with a terminal facility in the Port of Philadelphia in the State of Pennsylvania. As a stevedoring company it employs longshoremen for handling cargo on ships in the Port of Philadelphia.

2. On July 6, 1973, the respondent's longshoremen were loading general cargo on the M/S Alice Torm without wearing protective hats.

3. On August 15, 1973, the respondent's longshoremen were loading cargo on the M/S Itabui without wearing protective hats.

4. On September 13, 1973, employees of the respondent's longshoremen were loading general cargo on M/S Lloyd without wearing protective hats.

5. The longshoremen utilized by the respondent in the Port of Philadelphia and in the Port of Wilmington, Delaware, were supplied by the International Longshoremen's Association through a hiring center pursuant to the terms of a labor-management contract.

6. The respondent has no authority to select the gangs or gang foremen under the terms of its labor contract.

7. The longshoremen employed by the respondent in the Port of Wilmington, Delaware, wear protective [*25] hats. The longshoremen employed by the respondent in the Port of Philadelphia do not. This is because the International Longshoremen's Association requires its members in the Port of Wilmington to wear protective hats. See Docket No. 3821, Tr. 117.

CONCLUSIONS OF LAW

1. The respondent, Northern Metal Company, is an employer engaged in commerce subject to the requirements of the Occupational Safety and Health Act of 1970 and to the jurisdiction of the Occupational Safety and Health Review Commission.

2. The respondent has at all times relevant to the inspections of July 6, August 15, and September 13, 1973, complied with the provisions of section 5(a) of the Act.

3. The longshoremen employed by the respondent at its terminal in the Port of Philadelphia on July 6, August 15, and September 13, 1973, deliberately and in defiance of orders directed to them by the respondent's supervisory personnel refused to wear protective hats and, in this manner, violated section 5(b) of the Act.

4. Northern Metal Company is not accountable for exposure to a hazard which is the direct result of a violation of section 5(b) of the Act by its employees.

ORDER

It is accordingly hereby [*26] ORDERED that:

1. Citation for violation of 29 CFR 1918.91(g) in Docket No. 4594 be affirmed.

2. The citation for violation of 29 CFR 1918.82(a) and a proposed penalty of $55.00 in Docket No. 4598 be affirmed.

3. The citation for violation of 29 CFR 1910.132(a) and 29 CFR 1918.105(a) in Docket Nos. 3896, 4594 and 4898 and the proposed penalties thereon be vacated.

WORCESTER, JUDGE: This proceeding arises pursuant to a notice of contest filed by the Respondent, on July 18, 1973, under the provisions of Section 10(c) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590 et seq., 29 U.S.C. 651 et seq. ) hereinafter called the Act. On June 21, 1973, a citation was issued alleging that the Respondent had violated Section 5(a)(2) of the Act and 29 CFR 1918.105(a) as adopted by 29 CFR 1910.16. The alleged violation was described in the following language.

Men working aboard vessel and landing drafts in gangway were not wearing protective hats.

The Respondent denied that there was a violation and asserted as an affirmative defense:

1. That a good faith effort to comply with the requirements of 29 CFR 1918.105 and 29 CFR 1910.16 had been made.

2. That prior [*27] to the inspection protective head gear had been issued to its employees and that;

3. Respondent had no control over the selection and hiring of member of Local 1291, International Longshoreman's Association (hereinafter I.L.A.) working on its premises and, for that reason lacked the power to enforce the regulation requiring longshoremen to wear protective hats.

The Respondent has sustained the burden of proof of these allegations. The only issue is whether, as a matter of law, there was a violation of the standard by the Respondent under these circumstances. No penalty was proposed.

The parties agreed at the hearing that Theodore R. Alf and Thomas P. Kelly, if called to testify, would say the same things as in their testimony in Secretary of Labor v. Nacirema, OSHRC No. 2818 but the Complainant objected to admission of this testimony on the ground that it was irrelevant because it pertained to conditions in the Port of New York, not the Port of Philadelphia. The objection should be and hereby is overruled. The substance of Alf's testimony was that, after protective hats were supplied, the longshoremen refused to wear them just as in Philadelphia. It is relevant [*28] to the subject of employer control over longshoremen who are members of the I.L.A.

The decision of Judge Harris of this Commission relied upon by the Complainant has been considered. n1 According to the Respondent's brief Judge Harris was not persuaded that the Respondents had fully carried out their responsibilities in enforcing compliance with the standard. The evidence in the instant case shows that the Respondent has met this responsibility thus distinguishing it from the cited opinion.

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

n1 Secretary of Labor v. Atlantic and Gulf Stevedores et al.,

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

The Respondent, Northern Metal Company, operates a stevedoring business, a warehouse and a scrap business. It stevedores vessels in the Philadelphia ship terminal just as other stevedoring companies do but, in addition, it buys vessels and scraps them. They also lease warehouses. The loading and unloading of vessels is accomplished through employees furnished by Local No. 1291, I.L.A. The Respondent's scrap and [*29] warehouse business utilizes laborers who are members of other unions. Because of the unique nature of the employer-employee relationship in stevedoring it is necessary to go into some detail to explain this relationship.

In all ports vessels are loaded and unloaded while at a pier by laborers known as longshoremen. Longshoremen are furnished by companies known as stevedoring companies. There are 70 companies including the stevedoring companies involved in the loading and unloading of vessels on the eighteen mile long waterfront in the Port of Philadelphia. n2 They are allied in an association known as the Philadelphia Marine Trade Association, generally referred to as PMTA. The PMTA has a contractual agreement with a hiring center operated by the I.L.A. The hiring center in the instant case is located under the Walt Whitman Bridge on the Philadelphia waterfront. When a stevedoring company learns that a vessel is coming to its pier, they contact the hiring center by means of a taped message. The longshoremen can call a predetermined number to learn whether or not they have a work assignment for the next day.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - [*30] - - - - - - - - - - - - -

n2 Secretary v. Nacirema Operating Company,

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

On the Philadelphia waterfront longshoring is done by gangs. The gang consists of eighteen men and one foreman who is selected by the members of the gang. A gang is named after its foreman, or gang carrier, the term the former longshoreman, Moock, now a compliance officer for the Secretary used when referring to a gang foreman. Stevedoring companies in the Port of Philadelphia use what are known as registered gangs. A registered gang works for one particular stevedoring company regularly enough so that this gang is guaranteed three days per pay week from this employer. If the stevedoring company has more work than its registered gangs can handle, it calls other terminal companies in the Philadelphia area. They also notify the hiring center which is interconnected with each other stevedoring company by a special telephone system so that any longshoremen registered with a particular company can dial that number and find out what work is available for him on the following day.

There are some occasions [*31] where causual non I.L.A. employees are used. The Respondent has had no difficulty in getting these employees to wear hard hats, nor has it had any difficulty getting the employees in its scrap yard and other terminal facilities who do not belong to the I.L.A. to comply with the OSHA standards. However, the I.L.A. men in its three gangs have refused to wear hard hats. This is the basis of the citation for violation of 29 CFR 1910.105(a).

The Complainant's witness, Moock, explained what happens when a ship arrives in port. The work is supervised by a person known as a ship boss. The ship boss is a member of the I.L.A., but he is also a full time employee of the stevedoring company. He tells the gang foreman what he wants done. The witness, Moock, said that the ship boss is a part of management. He is not sent to the Respondent by the hiring center. He receives his directions from a higher level executive in the stevedoring company. He gives no direct orders to the gangs. All orders to the longshoreman must come through the gang foreman.

At public meetings with union leaders, through persuasion, posting of signs and private entreaty the Respondent has told its [*32] employees in the Philadelphia harbor to wear hard hats, but they refuse to do it. There is little compliance with this OSHA requirements in the whole port area. The compliance officer testified that he asked three employees at respondent's pier why they weren't wearing their hard hats. Biorashak said "too hot," Vesselwood said, "I don't have it with me," Moscos said, "get lost." They gave a variety of excuses such as being too hot, too cold, or inconvenient because the hat falls off. These are examples of the defiant attitude of the individual longshoreman.

On June 15th 1973, the date of the alleged violation in this case, the Respondent had three registered gangs loading the vessel Sugar Crystal King's gang was at Number 4 hatch. Monoghan's gang was at Number 5 hatch, and Bialec's gang was at Number 1 hatch. All of these men were on the Respondent's payroll for workmen's compensation purposes and all other situations in which the Respondent is required to report to government agencies on matters involving its employees. However, these same employees work for other stevedoring companies, and like all other longshoremen are dependent upon the hiring center for employment. Their [*33] only contact with the stevedoring company is by telephone through the hiring center when seeking work and through the gang foreman and ship boss on the pier when they are working. They receive their paycheck from the employer at the hiring center, not at the employer's office.

Moock testified that none of the stevedoring companies on the Philadelphia waterfront were able to accomplish 100% compliance with the protective hat regulation. He explained that 100% compliance by Northern Metal's employees on the Wilmington waterfront was due solely to the I.L.A.'s insistence that the longshoremen comply with the standard.

When an employer has furnished protective hats to its longshoremen in one port and they all wear them and has furnished the same protective equipment to its longshoreman in a nearby port and none wear them, there must be some intervening factor which accounts for this unusual situation. From the mouth of the Complainant's own witness, a former I.L.A. member himself, this anomalous situation was clarified. The I.L.A., although not the employer in the usual sense as a matter of law, nevertheless dominates the longshoreman while at work. The nominal employer [*34] cannot control the work habit of the longshoreman. Only the I.L.A. has the power to do that. The Respondent cannot be charged with a violation of the Act when the usual indicia of an employer-employee relationship under the common law rules are lacking.

The I.L.A. made a token effort to bring about compliance with the standards in Philadelphia orally and in writing but never utilized its full power to accomplish compliance as it did in the Port of Wilmington. Section 5(b) of the Act states that each employee shall comply with Occupational Safety and Health Standards and all rules, regulations, and orders issued pursuant to the Act which are applicable to his own actions and conduct. This requirement is as binding on employees as the requirement that the employer furnish each employee a place of employment free from hazards. When a longshoreman refuses to comply with a stevedoring company's orders to wear protective clothing furnished to him and the power to deny further work to the defiant workman is not in the hands of the proprietor of the stevedoring business for whom the work is performed but is instead in the hands of an independent association which furnishes longshoremen [*35] to the stevedoring company, the stevedoring company cannot be charged with a violation of Section 5 of the Act.

Upon consideration of the foregoing findings the following conclusions of law are made:

1. The Respondent is an employer engaged in commerce subject to the requirements of the Occupational Safety and Health Act of 1970.

2. The Respondent has not failed to fulfill its obligation toward the longshoremen it employs under the provisions of 29 CFR 1910.16 and Section 5(a) of the Occupational Safety and Health Act of 1970 as alleged in the Complaint.

3. The failure of longshoremen at the Respondent's terminal in the Port of Philadelphia to wear protective hats while loading the vessel Sugar Crystal on June 15, 1973, was a result of each of such longshoremen's failure to comply with standards, regulations, rules and orders of his employer as required by Section 5(a)(2) of the Act.

4. When an employer has fully complied with the provisions of Section 5(a)(1) and (2) of the Act, such employer is not accountable for, nor may he be cited for, nor may he be cited for, a violation of the Act or any standard promulgated pursuant to the provisions of Section 6(b) when [*36] exposure of an employee at a worksite is the direct result of the failure of the employee to adhere to the mandate of Section 5(b) of the Act which requires each employee to comply with all standards, rules, regulations and orders issued pursuant to the Act which are applicable to his own actions and conduct.

The Respondent has submitted a well documented brief in support of its contention:

1. That the inspection by the compliance officer violated the provisions of the Act and the Secretary's own regulations.

2. That the citation of the Respondent was due to a change in policy.

3. That the Respondent's rights to due process of law have been violated because it does not have the right of control over the longshoreman as an employer, and

4. That 29 CFR 1918.105(a) is unconstitutionally vague and unenforceable.

Having concluded as a matter of law that there was no violation of Section 5(a)(2) of the Act by the Respondent, none of these issues need be decided. However, the Complainant should not overlook the clear and unambiguous language of Section 8(a) of the Act stating that the Secretary is required to present appropriate credentials to "the owner, operator in [*37] charge," which the Secretary's compliance officer Moock did not do; and the mandatory language of Section 8(e) of the Act where it stated that an employer representative shall be given an opportunity to accompany the Secretary or his authorized representative during the physical inspection of any workplace for the purpose of aiding such inspection. (Emphasis added). Moock was accompanied by a ship boss who is also a member of the I.L.A. in the same pay status as the longshoreman. Because Moock failed to see either Colonel Bratcher, the agent of the Respondent in charge, or his assistant, Mr. Kapczynski, before he made his inspection, neither the owner, operator or agent in charge was afforded an opportunity to designate a representative to accompany him.

ORDER

Having concluded that, considering the record as a whole, there was no violation of the Act by the Respondent it is accordingly ordered that the Citation be vacated and this proceeding dismissed.