ROTHSCHILD WASHINGTON STEVEDORING CO.

OSHRC Docket No. 4671

Occupational Safety and Health Review Commission

September 25, 1975

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners

OPINION:

BY THE COMMISSION: A decision of Review Commission Judge Thomas J. Donegan, dated July 1, 1974, is before this Commission for review pursuant to 29 U.S.C. 661(i).

At issue is whether the occupational safety standard codified at 29 C.F.R. 1918.105(a) was properly promulgated. In Secretary v. Atlantic & Gulf Stevedores, Inc., 16 OSAHRC 770 (1975), that question was answered in the affirmative. That decision is dispositive of the issue in the instant case.

Accordingly, the Judge's decision is affirmed.

[The Judge's decision referred to herein follows]

DONEGAN, JUDGE: This is a proceeding pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., 84 Stat. 1590, hereinafter referred to as the Act).

The respondent is engaged in longshoring operations in Washington and Oregon, and on August 18, 1973 had employees under its supervision engaged in the loading and discharging of cargo on the S/S Schulyer Otis Bland at Pier 91, Seattle, Washington.

This worksite, under the operation and control of the respondent, was inspected on August 18, 1973 by a compliance officer [*2] in the employ of and acting as a representative of the complainant.

As a result of this inspection a citation number 1 for repeated violations was issued to the respondent on September 5, 1973 which alleged that the respondent had violated the Act by failing to comply with 29 CFR 1918.105(a) n1 as follows:

Failure to protect employees with protective hats in the following three instances:

1) Two slingmen on the apron of Pier 91 adjacent to the starboard side of #3 hatch of the S/S Schulyer Otis Bland were observed not wearing hard hats.

2) One deckman on weather deck on the starboard side #3 hatch aboard the S/S Schulyer Otis Bland was observed net wearing a hard hat.

3) Two holdmen in the starboard side of #4 upper 'tween deck aboard the S/S Schulyer Otis Bland were observed not wearing hard hats.

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n1 The Secretary of Labor promulgated Part 1918 [including 1918.105(a)], through adoption of Part 1504 (issued under the Longshoremen's and Harbor Workers' Compensation Act) by 29 CFR 1910.16.

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The standard [*3] cited as having been violated by the respondent provides as follows:

29 CFR 1918.105(a)

1918.105 Head Protection

(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).

It is stated in the citation that the alleged violations must be corrected immediately upon receipt of the citation. The respondent agreed to an immediate abatement.

The notification of proposed penalty, issued on September 5, 1973, proposes a total penalty of $70 for the alleged repeated violations.

The respondent timely contested the citation and proposed penalty.

A complaint was filed on October 11, 1973, and on November 1, 1973, the complainant filed a "Motion to Affirm Citation and Proposed Penalty." This motion alleged that respondent had failed to plead or otherwise respond to the complaint thereby prejudicing the complainant. The respondent's "Response To Motion To Affirm" and "Answer To Complaint" were received at the office of the executive secretary of the Commission on November 14, 1973.

The complainant objected to the late filing of the respondent's answer. [*4] The Commission denied the complainant's motion to affirm the citation and proposed penalty.

The Commission issued a notice on January 4, 1974, setting the case for hearing in Seattle on February 11, 1974.

No affected employees or persons representing affected employees have appeared in this proceeding or sought to participate in the hearing.

Briefs have been submitted and the respondent has also submitted proposed findings of fact and law.

DISCUSSION

Frank Lloyd Strasheim (an OSHA compliance officer, hereinafter referred to as the inspector) testified at the hearing concerning his inspection on the night of August 18, 1973, of the workplace of the respondent on pier 91 of the Port of Seattle and on board the S/S Schuyler Otis Bland. Longshoremen employed by the respondent were loading and discharging cargo from the ship at the time of the inspection by means of the ships masts and booms.

The customary cargo gear n2 and procedures were used for loading and unloading the cargo. The cargo was placed in slings on the pier and lifted over the side of the ship into the hold on a signal to the winch operator who operated the gear. The opposite procedure was followed in [*5] discharging cargo from the hold of the ship to the pier. Only two of the ship's hatches were being worked at the time the inspector made his observation: automobiles were being loaded through the number 4 hatch and bulk cargo was being discharged through the number 3 hatch.

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n2 The inspector stated that he associated the word "gear" with any type of cargo handling equipment above the deck of the ship.

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The inspector observed 2 slingmen n3 who were not wearing head protection standing on the apron of the pier, n4 to the side of where the cargo was landed and being loaded. He testified that the yard boom was over the head of the two slingmen, and that they were occasionally exposed to the hazards of the cargo coming down on the "cargo runner", n5 and to debris or dunnage falling off the cargo that was being lifted or landed.

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n3 The inspector stated that a slingman is a longshoreman who fits the bridle of the slings, or the lifting mechanism, to the cargo for loading aboard the ship, or who releases the cargo from the slings, or the lifting mechanism, what the cargo gear lands it on the pier.

n4 The inspector said that in referring to "apron of the pier" he means that part of the pier immediately adjacent to the ship where cargo is landed from the ship or prepared for loading aboard the ship.

n5 The inspector explained that the "cargo runner" (lifting wire on the crane) runs from the revolving drum on the crane through a block at the top of the boom and then down to the cargo runner from the other boom where there is a hook to which the cargo is attached.

[*6]

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The inspector testified that he observed a deckman adjacent to the number 3 hatch without head protection. This longshoreman was a hatchtender, and was giving directions for lowering and placing of the cargo. He stated this longshoreman was exposed to a hazard of being struck by gear and cargo which frequently passed overhead.

The inspector stated that he observed two "holdmen" n6 in the number 4 hatch of the ship without head protection. They were landing and rolling automobiles into the wings of the hatch. He observed some of the "holdmen" in the square of the hatch and that the cargo was being worked over their heads.

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n6 The inspector described "holdmen" as longshoremen who work in the hold of a ship.

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Mr. Thompson, the respondent's night superintendent at the worksite, observed that the two slingmen, the deckman, and the two holdmen were without hard hats when the inspector brought to his attention these instances of longshoremen [*7] working without head protection. Mr. Thompson explained to the inspector that the respondent had a policy of stamping on the longshoremen's time cards "No hard hats, no work," and that the respondent had supervision available to insure that the men did not come on board the ship without hard hats.

The inspector said that the deckman and two slingmen, who were not wearing hard hats, were visible when Mr. Ward, a foreman, was assisting him to locate the superintendent. The two holdmen, without hard hats, were visible from where the superintendent was standing when the inspector first encountered him.

The inspector testified that in the instances where he observed that the five longshoremen were not wearing hard hats, he did not observe the hard hats attached to the persons of the longshoremen or in their immediate vicinity. He said that the two longshoremen at the number 4 hatch did not produce their hard hats upon inquiry of the respondent's representative.

In describing the hazards resulting from the failure to wear hard hats, the inspector testified that a scalp laceration, concussion, or fracture could result from material falling from the cargo passing overhead [*8] and striking the unprotected heads of the longshoremen.

Mr. Thompson testified that there were two foremen on board the ship and one foreman on the dock on the night of the inspection. The foremen on board the ship moved about and coordinated with the foreman on the dock. Mr. Thompson worked through the foremen in checking to see if the longshoremen were wearing hard hats. It was the delegated responsibility of the foremen to supervise the longshoremen, and to enforce the requirement that they wear hard hats.

As far as Mr. Thompson knew all of the longshoremen were regulars from the union hall. When they reported for work on the night of the inspection, he ascertained that every longshoreman had a hard hat.

Mr. Shaun McGillin Maloney, president of local 19, International Longshoremen's Union, testified that the collective agreement between the union and the employers provides that longshoremen shall wear hard hats while working, and that it is the policy of the union that hard hats be worn for safety because of the law.

Mr. Maloney stated that the union's registered longshoremen were issued hard hats at the union hall. Prior to the issuance of the hard hats, which were supplied [*9] by the employers, the longshoremen received instructions at the union hall concerning the application of the law. The union's casual work force -- a man off the street -- is also required to have a hard hat, and is issued one before being dispatched to the worksite from the union hall.

The union has business agents who constantly patrol the waterfront to correct the employer if there are unsafe conditions, and to correct the workmen if they are violating the collective agreement. Mr. Maloney said that the business agents are concerned with safety, but meet with objections to the longshoremen wearing hard hats. He stated that is it practically impossible for the union and almost impossible for the employer to police the requirement that longshoremen wear hard hats. He said the union is going to make recommendations for variances.

The inspector was informed by the superintendent on the night of the inspection that there were 25 employees at the worksite, including management and supervisory employees. When questioning the inspector, Mr. Jones said he had records of at least 42 employees, outside of management, working on the night of the inspection. The inspector reiterated [*10] that he had been informed by the superintendent that there were 25 employees at the worksite at the time of the inspection.

The inspector, in reply to a question of Mr. Jones on cross-examination, testified that he did not observe any other safety violations at the worksite during the inspection.

It is quite clear from the substantial evidence, which is not disputed by the respondent, that five longshoremen were not protected by hard hats on the night of the inspection. It is also quite clear that the respondent provided hard hats and determined that the longshoremen had hard hats with them when they reported for work. The longshoremen were on notice that they were required to wear hard hats as a condition of their employment.

The issue in this case is whether the respondent adequately supervised the longshoremen for the purpose of enforcing compliance with the standard requiring protection by hard hats.

The Commission has held that;

An employer cannot in all circumstances be held to the strict standard of being an absolute guarantor or insurer that his employees will observe all the Secretary's standards at all times. An isolated brief violation of a standard by an employee [*11] which is unknown to the employer and is contrary to both the employer's instructions and a company rule which the employer has uniformly enforced does not necessarily constitute a violation of section 5(a)(2) of the Act by the employer. n7

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n7 Secretary v. Standard Glass Company, Inc.,

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Although this case is cited in the respondent's brief, it is not considered to be applicable to the facts of this case.

The inspector's undisputed observations of the violations involving the two slingmen on the apron of the pier, the deckman adjacent to the No. 3 hatch, and the two holdmen in the No. 4 hatch were not observations of isolated violations of the standard.

From the credible substantial evidence of record it is concluded that the superintendent and the three foremen, who were the supervisory personnel of the respondent at the worksite at the time of the inspection, were not diligent in supervising and enforcing the requirement that the longshoremen wear hard hats.

This [*12] failure of the respondent's supervisory personnel to enforce the requirement of the standard that the longshoremen be protected by the wearing of hard hats is chargeable to the respondent.

The inspector described the procedure followed in arriving at the proposed penalty of $70, including the OSHA field operations manual procedure for determining proposed penalties for repeated violations. He testified that the OSHA files reflected that the respondent had received citations on two previous occasions "for not having employees protected by protective hats in the area of Seattle." He said it was evident from these previous citations that the respondent had repeatedly violated this standard which required that the procedures of the OSHA field operations be followed in assessing the proposed penalty for repeated violations.

The only evidence in the record of previous citations is a citation issued to the respondent alleging violations of 29 C.F.R. 1918.105(a). The inspector testified that the respondent did not contest this citation issued on September 12, 1972 (Exhibit C-1).

Clayton Jones, the respondent's representative at the hearing, testified that a review of the respondent's [*13] files revealed that the only previous citation issued to the respondent alleging a violation of 29 C.F.R. 1918.105(a), was a citation issued on September 12, 1974 (Exhibit C-1) which the respondent did not contest.

It is asserted in the complaint that the violation alleged in the citation issued on September 5, 1973, "was a violation within the meaning of section 17(c) of the Act, of not a serious nature but constituted repeated violative behavior and conduct within the meaning of section 17(a) of the Act." In the complainant's brief it is contended that "the increased 'repeatedly' penalty authorized under section 17(a) is warranted for the violation of 29 C.F.R. 1918.105(a)."

Although it is found that there were repeated violations of 29 C.F.R. 1918.105(a), it is determined that the circumstances of these repeated violations, and the respondent's behavior and conduct in relation to these violations, do not sustain a finding that section 17(a) is applicable in the assessment of a civil penalty.

After giving consideration to the size of the business and good faith of the respondent, the gravity of the violation, and the history of previous violations; it is determined [*14] that $50 is an appropriate civil penalty for the repeated violations of 29 C.F.R. 1918.105(a) as charged in citation number one.

FINDINGS OF FACT

1. The respondent is a large stevedoring company which employs longshoremen at Washington and Oregon ports for the loading and discharging of ship cargo which is transported between ports within and outside of the United States.

2. The respondent's worksite, which was inspected on August 18, 1973, by a compliance officer of the U.S. Secretary of Labor, was located on navigable waters of the United States and, more particularly, on the S/S Schulyer Otis Bland and pier 91, Seattle, Washington, where some 25 to 42 employees were engaged in loading and discharging cargo under the supervision of the respondent's superintendent and three foremen.

3. Five longshoremen employed at this worksite and exposed to the ship's gear and the overhead movement of cargo were not protected by hard hats when observed by the inspector on the night of the inspection.

4. The respondent had provided and required the employees to have hard hats when they reported to the worksite, and had notified the employees that the wearing of hard hats was a condition [*15] of their employment.

5. The respondent's superintendent and three foremen did not supervise or enforce the standard that employees shall be protected by hard hats in the instances of the five longshoremen observed by the inspector.

6. The violations of the standard on August 18, 1973, were repeated violations, the respondent not having contested a citation issued on September 12, 1972 for alleged violations of the same standard.

CONCLUSIONS OF LAW

1. The respondent, Rothschild Washington Stevedoring Company, at all times material to this proceeding, was an employer engaged in business affecting interstate commerce within the meaning of section 3 of the Act.

2. The Occupational Safety and Health Review Commission has jurisdiction over the parties and subject matter of this proceeding in accordance with section 10 of the Act.

3. The inspection made of the respondent's worksite at Seattle, Washington, on August 18, 1973, was in accordance with the requirements of Section 8 of the Act.

4. The respondent on August 18, 1973, violated section 5(a)(2) of the Act and the standard (29 C.F.R. 1918.105(a)) as alleged in the citation issued on September 5, 1973.

5. This [*16] was a repeated violation of this standard but was not violative behavior and conduct within the meaning of section 17(a) of the Act.

6. In accordance with the provisions of section 17(j) of the Act a civil penalty of $50 is appropriate for the repeated violations charged in citation number one.

ORDER

Based on the foregoing, it is ORDERED:

1. That citation number 1 for repeated violations issued to the respondent on September 5, 1973 be, and is hereby affirmed.

2. That the proposed penalty of $70 for the repeated violations of citation number one be vacated and a penalty of $50 be assessed for these repeated violations, and the same is hereby vacated, and assessed accordingly.