Docket Nos. 4897; 7175; 7047; 7281; 6741; 6961 (Co

INDEPENDENT PIER COMPANY; HOLT MARINE TERMINAL, INC.; I.T.O. OF AMERIPORT, INC.; & ATLANTIC GULF STEVEDORES, INC.

OSHRC Docket Nos. 4897; 7175; 7047; 7281; 6741; 6961 (Consolidated)

Occupational Safety and Health Review Commission

October 29, 1975

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners

OPINION:

BY THE COMMISSION: These six consolidated cases are among the cases involving the citing of stevedoring companies for violations of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq. ) for failure to comply with the standard published at 29 CFR § 1918.105(a) n1 for not enforcing the wearing of "hard-hats" by reluctant longshoremen in the Port of Philadelphia.

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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).

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The Commission's decision in Atlantic & Gulf Stevedores, Inc. et al., Nos. 2818, 2862, 2997, and 2998 (April 11, 1975) is controlling here.

We hold that the Judge decided this case in conformance with Atlantic & Gulf, supra, and therefore we affirm his action with the following exception. We vacate his order compelling respondent's longshoremen [*2] employees to comply with 29 CFR § 1910.105(a), however, because they were not parties to the proceeding. n2

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n2 We do not have before us the question of whether this Commissio would have the power to issue such an order if the employees had been party to the proceeding. See Atlantic & Gulf Stevedores, Inc. et al., Nos. 2818, 2862, 2997, and 2998 (April 11, 1975) (majority and concurring opinions.)

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Accordingly, it is ORDERED that the Judge's decision be AFFIRMED insofar as it is consistent with this opinion.

DISSENTBY: MORAN

DISSENT:

MORAN, COMMISSIONER, dissenting: This case presents facts substantially similar to those in Secretary v. Atlantic & Gulf Stevedores, Inc., 16 OSAHRC 770 788 (1975), a decision from which I dissented on the basis that the respondents had done all that was required of them under the Act to require recalcitrant employees to comply with the protective hat standard codified at 29 C.F.R. § 1918.105(a). I will not repeat the rationale which I expressed in that decision, but I believe [*3] that it is important to further emphasize the purpose of the Act and the responsibilities thereunder as well as to point out that criminal law doctrine has been adopted by my two colleagues in this case.

Judge Brennan, in his decision below, found that longshoremen employed by the respondents had "knowingly, deliberately, and defiantly . . . refused to wear protective hats, supplied to them without cost to them." Accordingly, he ordered these employees to comply with the protective hat standard. The effect of the Commission's vacation of that order and its holding in this case is to make employers the absolute enforcers of employee compliance with the Act. In other words, the employer does everything humanely possible to comply with the law -- compliance is impossible because of his employees' defiance -- therefore the two members who make up the majority in this case find the employer in violation and assess over $500.00 in penalties. One would have to search long and hard to find a better example of upside-down logic.

As stated in its preamble, the Act's purpose is "[t]o assure safe and healthful working conditions for working men and women." Furthermore, 29 U.S.C. § 651(b) [*4] provides that:

[t]he Congress declares it to be its purpose and policy . . . to assure so far as possible every working man and woman . . . safe and healthful working conditions. . . .

Thus, the thrust of this Act is employee safety. Secretary v. City Wide Tuckpointing Service Company, 3 OSAHRC 194, 195 (1973).

What my colleagues conveniently overlook, however, is that employees as well as employers are responsible for achieving this goal. The Act requires that "[e]ach employee shall comply with occupational safety and health standards . . . issued pursuant to this chapter which are applicable to his own actions and conduct." 29 U.S.C. § 654(b).

Under the Act, "employers and employees have separate but dependent responsibilities . . . with respect to achieving safe and healthful working conditions." 29 U.S.C. 651(b)(2) (emphasis added). The respondents have carried out their responsibilities by providing hard hats and by continual exhortations -- by numerous means -- to remind their longshoremen of the necessity to wear them. On the other hand, the employees have steadfastly refused to comply with their responsibilities under the Act. It is true [*5] that the Act provides no specific sanctions against disobedient employees, but this does not justify holding their employers liable where they have taken every reasonably necessary and appropriate action to get those employees to wear the protective equipment.

The Commission's disposition here completely ignores the dual responsibility which the Act places on employers and employees. When employees, the very persons whom the Act was designed to protect, knowingly disregard their employer's repeated and extensive efforts to protect them, the Act should not be construed to punish the employers for such refusals to be protected.

It should also be noted that this decision contains no remedial order. It does not tell these employers what they must do in order to come into compliance with the law. It simply penalizes them because the law was not observed by someone else. Consequently, there can no longer be any doubt that the majority of this Commission intends to treat the Occupational Safety and Health Act as a criminal law -- not as remedial legislation.

Even though Judge Brennan imposed an erroneous disposition he at least tried to remedy the employee noncompliance by his order [*6] directing all the affected employees to wear their hard hats. n3 This is at least an attempt to remedy the situation. My colleagues, however, specifically overrule the Judge on this point -- and what do they propose as a remedy? They don't say. Their decision just penalizes the employers. If these employees continue to refuse to wear hard hats -- and there is nothing in this record to indicate otherwise -- apparently the complainant will continue to cite their employers for violating the Act. The Commission will of course continue to affirm such citations and to assess penalties therefor. If this process continues to its ultimate conclusion the problem will be solved (for these respondents) because the companies will eventually be bankrupt from paying job safety penalties. If my colleagues believe that this law is designed for employee protection -- and they have said this in prior decisions -- let them say what this decision does for employee protection.

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n3 He also ordered that a copy of "this Order" be served upon all such employees. Presumably this has not been disturbed by the majority's decision.

[*7]

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The only possible remedy is to terminate these employees. But it is clearly wrong and unjust to hold that employers must take disciplinary action under these circumstances, particularly when such action could lead to wildcat strikes and work stoppages which would cause grave economic consequences for the respondents and the public. Of course, this could also lead to bankruptcy and an end to their safety problems.

I see in decisions of this nature the disposition to punish employers for the sins of their employees -- not a desire to effect the correction of hazardous working conditions. I see a disposition to criminalize this Act and I also see the ultimate failure of the Act's worthwhile purposes when other decisions of this type follow.

[The Judge's decision referred to herein follows]

BRENNAN, JUDGE: All six of the above captioned cases are consolidated for purposes of this Decision and Order because they all present one controlling question, to wit; whether the named Respondent stevedoring companies, doing business in the Port of Philadelphia, have violated Section 5(a)(2) of the Occupational [*8] Safety and Health Act of 1970, 29 U.S.C. 654(a)(2), (hereinafter the Act) by failing to adequately discharge their legal responsibility to comply with the Occupational Safety and Health Standard set forth at 29 C.F.R. 1918.105(a), (hereinafter the "hard hat" or "safety hat" Standard).

Each of the Respondents, as a result of inspections conducted at their respective terminal facilities by authorized agents of Complainant, was issued Citations and proposed penalties pursuant to 29 U.S.C. 658(a) and 659(a), which alleged violations of the Maritime Standard cited supra. n1

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n1 See Appendix A attached for the specifics of the Citations and penalties proposed thereon.

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Pursuant to an Order dated June 28, 1974, the two Atlantic and Gulf cases (hereinafter A&G), Docket Nos. 6741 and 6961; and the two I.T.O. of Ameriport cases (hereinafter I.T.O.), Docket Nos. 7047 and 7281 were consolidated for hearing.

On June 14, 1974, the hearing in the Independent Pier Company case, Docket No. 4897 (hereinafter Independent), [*9] was convened pursuant to notice. This record was held open for the receipt of additional evidence.

On August 23, 1974, pursuant to notice, the hearing in the consolidated I.T.O. cases was convened. This record was likewise kept open for the receipt of additional evidence.

On August 26, 1974, the hearing in the Holt Marine Terminal case, Docket No. 7175 (hereinafter Holt) was convened pursuant to notice and this record also was held open for additional evidence occasioned by the absence of desired witnesses.

On September 5, 1974, the I.T.O. hearing was reconvened to take the testimony of desired witnesses. This record was closed that day. n2

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n2 Citations to the transcripts of the above hearings will be cited as "Vol. I," hearing of 6/14/74; "Vol. II," hearing of 8/23/74; "Vol. III," hearing of 8/26/74 and "Vol. IV," hearing of 9/5/74.

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At all of the above hearings, the named Respondent stevedoring companies were represented by counsel, the law firm of Deasey, Scanlan and Bender, Ltd., through either Mr. O'Callaghan [*10] or Mr. Scanlan. Complainant was represented by the Regional Solicitor, through either Mr. Rieder or Mr. Shapiro. Although the local union of the International Longshoremens' Association, Local 1291-I.L.A., did not claim party status, its counsel Mr. Freedman was present during and participated in the hearing on August 23, 1974 when the President of this local, Mr. Askew, testified (Vol. II, p. 40).

No hearing was held in the A&G cases (Docket Nos. 6741 and 6961). Rather, these cases were submitted upon stipulated facts, filed on October 16, 1974 (R. p. J-12, Docket Nos. 6741 and 6961).

By agreement of counsel the testimony of Mr. James Moock, the International Vice President of the I.L.A. (Vol. IV); of Mr. Alfred Corry, the Executive Secretary of the Philadelphia Marine Trade Association, (Vol. IV); and Mr. Richard Askew, President of Local 1291 of the I.L.A. (Vol. II) was incorporated by reference into all of these dockets.

In the A&G cases (Docket Nos. 6741 and 6961) counsel filed a written motion that judicial notice be taken of the testimony given by Compliance Officer Francis Moock in the other dockets, which, without objection from Complainant is hereby Granted. [*11]

Having considered the entire record herein, the testimony and demeanor of the witnesses, the exhibits, stipulations, representations and admissions of the parties, it is concluded that the substantial evidence of record considered as a whole supports the following findings of fact and conclusions of law.

No injuries were involved in any of these cases and all Respondents concede that they are employers engaged in a type of business affecting commerce within the meaning of Sections 3(5) and 3(6) of the Act, 29 U.S.C. 652(5) and (6). None disputes the jurisdiction of the Review Commission.

These six cases represent another group of cases brought by Complainant involving the failure, on the part of a large number of longshoremen in the Port of Philadelphia, to wear protective hats as mandated by the Standard set forth at 29 C.F.R. 1918.105(a).

This Standard provides:

(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).

All of the Respondents herein are stevedoring companies which, among other things, load and unload vessels in the Port of Philadelphia. [*12] All Respondents are members of the Philadelphia Marine Trade Association (hereinafter P.M.T.A.), an association whose members are employers engaged in stevedoring, longshoring and marine terminal operations in this Port. P.M.T.A. represents its members in collective bargaining negotiations with the I.L.A.

The local union of the I.L.A. for longshoremen in this Port is Local 1291. It operates with essentially full autonomy from the International Union. P.M.T.A. and Local 1291, I.L.A., jointly operate the hiring center for longshoremen in this Port.

The longshoremen work force in this Port consists of "registered gangs" and nonregistered longshoremen.

A "registered gang," for general cargo handling, consists of 19 longshoremen, one of whom is elected by the other members as the foreman of the gang or "gang carrier."

A longshoreman becomes eligible to be registered upon completion of a minimum number of hours of work set forth in the Collective Bargaining Agreement (Ex. C-1, Docket Nos. 7047 and 7281, Vol. II, pp. 42-44).

Each stevedoring company in this Port has certain "gangs" registered with it. When a gang is registered with a given company, that gang is considered [*13] that company's "regular" gang. Each gang is identified by the last name of its foreman. The gang foreman is under the supervision of a ship foreman, each ship being worked having its own ship foreman. Both the gang foreman and ship foreman are universally considered to be supervisory employees of the stevedoring company in whose employ they are working. They are representatives of the management of such stevedoring company.

When a stevedoring company has a ship at its terminal facility and cargo is to be loaded or unloaded, such company makes a taped telephone message, on which its registered gangs are ordered to report to the facility for longshoring work. On any given day, any member of said registered gang calls the telephone number given to them by said company. If his gang is to work for this company, he is so instructed. If, on the other hand, the stevedoring company to which a gang is registered does not have work for any one or all of its registered gangs, they are so advised and report the following morning to the hiring hall for work assignments. If any stevedoring company has more work than can be handled by its own registered gangs, temporarily idle gangs, registered [*14] with other companies, are sent out from the hall to accomplish the necessary longshoreman work.

In the event any given registered gang has a temporary vacancy, the gang foreman fills this vacancy from men available at the hiring center.

No nonregistered longshoreman works in the Port of Philadelphia until all registered longshoremen are working or are unavailable for work.

The stevedoring companies pay the longshoremen for the number of hours worked by them for the company. Each stevedoring company has priority over those gangs registered to it.

The stevedoring companies pay into the P.M.T.A. and I.L.A. Welfare and Pension Funds, amounts determined by the number of hours their longshoremen work. The gang foreman is paid $25 a week more than the members of his gang and they have certain weekly work guarantees from their stevedoring company.

Gang foremen and ship foremen, although members of Local 1291, are not represented by this union in collective bargaining matters as they are considered by the union as "supervisory and company" personnel (Vol. II, pp. 40-73).

The stevedoring companies have the right to deny work to a longshoreman gang or any member thereof and [*15] to dismiss a longshoreman gang or member thereof for cause (Vol. II, pp. 75-76; Collective Bargaining Agreement, Ex. C-1, Docket Nos. 7047 and 7281, p. 6).

The Collective Bargaining Agreement between the stevedoring companies and longshoremen in the Port of Philadelphia, effective at the times material herein (and currently effective), provides in paragraph 15 as follows:

15. The Employer (the stevedoring company members of P.M.T.A., see p. 2 of contract) to have the right to so regulate the work of stevedoring a ship as to:

(a) Best attain an orderly, safe and efficient movement of the cargo into or out of the vessel.

(b) Protect the safety and health of the workers. (Ex. C-1, p. 21, Docket Nos. 7047 and 7281).

Beginning on September 27, 1973 and continuing intermittently to March 14, 1974, authorized compliance officers of Complainant inspected on six occasions, various vessels in the Port of Philadelphia, being worked by longshoremen in the employ of the named Respondents herein. n3 During each inspection, numerous longshoremen were observed without protective hats both on board the vessels in question, working in the holds, or on deck, as well as working the "gangways", [*16] that section of a dock opposite the hold of a ship being loaded or unloaded. In each instance, the danger of head injury was present. (See Vol. I, pp. 40-55; Exs. C-2(a) through 2(d), Docket No. 4897, Vol. II, pp. 126-143; Exs. C-6 through C-10, Docket No. 7281, Vol. II, pp. 201-211; Exs. C-11 through C-13, Docket No. 7047; Vol. III, pp. 18-26; Exs. C-4 through C-6, Docket No. 7175; Stipulation, R p. J-12; photographs 1 through 10; Docket Nos. 6741 and 6961).

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n3 See Appendix A attached hereto for the details of each inspection.

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These facts are neither contested nor rebutted in these records.

As a result of these inspections, the Citations set forth in Appendix A attached hereto were issued to these various Respondent stevedoring companies.

Respondents collectively, through the same counsel, all defend these alleged violations on the basic ground that they, individually and through their association, the P.M.T.A., have done all that can reasonably be expected of them to enforce the Standard as set forth at 29 CFR [*17] 1910.105(a), short of firing or refusing work to longshoremen who knowingly and defiantly refuse to wear protective hats. They argue that if they do attempt to enforce this standard, work stoppages and wildcat strikes will ensue to the great economic detriment of these Respondents and the Port of Philadelphia.

Respondents argue that through their association, P.M.T.A., they have purchased and had distributed to all registered longshoremen, protective hats and liners without cost to the longshoremen. They have included on their telephone hiring tapes messages that the Federal law requires the wearing of protective hats. They have inserted, at various times, the similar written message into the pay envelopes of their longshoremen. They have posted signs at their dock facilities advising that the area is a "hard hat area"; that during their safety meetings they have attempted to impress those in attendance with the requirement for longshoremen to wear protective hats.

All of these efforts have not been overly effective, however, as not less than half of the registered longshoremen in this Port adamantly refuse to wear these hats, giving such reasons as the hats are too [*18] hot, too cold, ill-fitting (although they are evidently adjustable as to size), that they fall off, sometimes obstruct vision, and are thought to be unnecessary by many.

A close examination and evaluation of the evidence of record establishes the following facts.

On June 24, 1971, a special meeting of the membership of P.M.T.A. was held at the Lafayette Building in Philadelphia. The purpose of the meeting was to discuss arrangements for the purchase and distribution of protective hats by the Association any payment therefore by the stevedoring company members.

There was also a discussion of a dinner meeting for company personnel, supervisors and foremen, planned for July 8, 1971 (Ex. R-3, Docket Nos. 7047 and 7281).

Two months after the Act became effective (April 28, 1971), Mr. Corry, on June 28, 1971, then and now the Executive Secretary of P.M.T.A., sent a letter to the Presidents of all the local I.L.A. unions operating in the Port of Philadelphia. In this letter he quoted the protective hat Standard and stated:

Since this new provision will make it mandatory on and after July 27, 1971, that hard hats be worn by all of our employees on the job, our Association is undertaking [*19] a cooperative program on purchasing and distributing these hats prior to the inception of the provision.

After setting forth some details of the planned distribution, he stated:

After a hat has been issued to a man, the man will be expected to have it and wear it whenever he is ordered to work. Any man who does not bring his hat with him or refuses to wear a hat will be refused employment.

We wish to emphasize to you that after this provision becomes effective, no man will be allowed to work without a hard hat, and we ask your cooperation in making this clear to your members in view of the quoted provisions of the Federal Safety and Health Regulations for Longshoring.

. . . In view of these provisions, (penalty provisions of the Act) our employers obviously will not allow men to work without hard hats or to violate the Safety Code in any way which would subject the employers to fines or penalties. (Ex. C-15, Docket Nos. 7047 and 7281; Vol. II, pp. 727-275; Vol. IV, pp. 95-96.)

On July 8, 1971, the planned dinner meeting was held with P.M.T.A. officers stevedoring company personnel, including supervisors and foremen, I.L.A. representatives and others in attendance [*20] (Ex. R-2 and R-3, Docket Nos. 7047 and 7281). Mr. Corry essentially repeated his message concerning protective hats originally set forth in his June 28, 1971 letter to the I.L.A. Presidents (Ex. C-19, Docket Nos. 7047 and 7281). Some unidentified gang foremen raucously shouted their opposition to being told to wear hard hats and indicated their resistance to such a policy. Mr. Askew, the President of Local 1291 of the I.L.A. finally quieted the disturbance.

On July 13, 1971, Mr. Corry sent a notice to the Presidents of the I.L.A. Locals in the Port, setting forth the details for the distribution of the protective hats at the Philadelphia Hiring Center, on July 20 through 22, 1971. At the bottom of this notice, emphatically set out was the following sentence:

BEGINNING THURSDAY, JULY 27, 1971, NO MAN WILL BE ALLOWED TO WORK WITHOUT A "SAFETY HAT" (Ex. R-5, Docket Nos. 7047 and 7281).

On July 14, 1971, another meeting of the stevedoring company members of P.M.T.A. was held at the Lafayette Building. Representatives of all of the Respondents herein attended. The purpose of the meeting was to discuss the "Safety Hat Program."

Mr. Scanlan, counsel for P.M.T.A. (and counsel [*21] for the Respondents herein), addressed the meeting. As the minutes of this meeting reflect (See Ex. C-14, Docket Nos. 7047 and 7281), Mr. Scanlan

. . . pointed out that the association will procede [sic] immediately as soon as it is notified that anyone is picketing in opposition to the Safety Hat Program. He explained that PMTA will go into court as promptly as possible in order to obtain an injunction to have the picket removed. He pointed out that this might not be done in two hours but PMTA should be able to get this done in 24 hours. He impressed those present that if anyone's pier is tied up because of opposition to the Safety Hat Program, that pier operator will have to stand fast against this opposition. He stated that no one can let any man decide that he will not wear a safety hat because the next time there will be 10 men who will make a decision that they are not going to wear a safety hat.

Mr. Scanlan pointed out that if someone is injured while working and they are not wearing a safety hat the employer is faced with two problems:

1. The employee has assumed the risk for not wearing the safety hat.

2. The employer assumes the risk by permitting an employee [*22] to work without a safety hat which is in direct violation of the Federal Statute [sic].

The employer's obligation is obviously greater than that of the employee's and as far as the employer's right to force an employee to wear a safety hat is concerned there is no question about the employer's right to do this under the law.

He stated that there was an arbitration award in New York over this very same issue. In that case the wearing of a safety hat was make mandatory by reason of a joint safety regulation of labor and management. There was also a reference to the wearing of safety hats in all of the Collective Bargaining Agreements in New York and there was complete agreement between the Union and Management on this point.

The clerks and checkers in New York decided not to wear the safety hats. This caused a strike and the case was referred to an arbitrator. On June 25th, the arbitrator ruled very specifically that regardless of the fact that it was in the contract and the safety code that an employer's desire to have an employee wear a safety hat is a reasonable regulation for any employer to promulgate and the employer has the unilateral right to do this and the [*23] fact that this was something which was agreed to between labor and management only reinforces that right.

As far as PMTA's position is concerned, the safety hat issue goes one step deyond an employer's right to force an employee to wear a safety hat because the association is enforcing a federal law. As far as the legalities are concerned, Mr. Scanlan didn't think that there is any question about the employer's right to make an employee wear a safety hat. Conversely he doesn't think that the employees have a right not to wear a safety hat. If an employee decides to test the association, the association will have to decide to meet that test.

He stated that the association is very aware of all the potential problems involved in implementing the safety hat program and the only thing the association doesn't want to happen is for an employer to compromise the association's position by permitting them to work without safety hats.

He pointed out that this program is a PMTA program and it is a Federal Program. It is required by the law and the rules of the association and there shall be no exceptions. Whatever employer is unfortunate enough to meet opposition to this program that employer [*24] is going to have to refer the matter to the association and from there on out the matter has to be handled through the normal channels of the PMTA. He stated that PMTA will do everything it can to assist the employer to the extent that if PMTA hears about any problems in advance, PMTA will alert the court to expedite the injunctive process so that an injunction can be served on a picket as soon as possible.

He stated that PMTA if necessary will have sheriff's deputies at the waterfront to remove any pickets who oppose the Safety Hat Program.

Mr. Scanlan again stated that there will be no exceptions to the wearing of safety hats and as a matter of fact it may be one of the best things that could happen to employers in terms of cutting down their third party liability and insurance premiums. He said there are a lot of good aspects to the program.

Mr. Scanlan thanked those present for their attention and at this point left the meeting. (Ex. C-14, pp. 2-4, Docket Nos. 7047 and 7281.)

Protective hats and liners were distributed to all registered longshoremen in the Port pursuant to the plan outlined above.

As far as the evidence of record in these cases establishes, shortly [*25] after the effective date of the Standard in question, in May of 1971, the then Assistant Secretary of Labor for the Occupational Safety and Health Administration, Mr. Gunther, initiated a policy of not issuing citations to longshoring employers who were making a good faith effort to comply with the protective hat Standard. Compliance with this Standard depended upon the voluntary efforts of employers to persuade longshoremen to wear protective hats. This policy was known to P.M.T.A. and its membership (Vol. IV, p. 105-106, Docket Nos. 7047 and 7281).

It is significant that Mr. Gunther's "moratorium" on the issuance of citations to employers subject to the Standard at issue was known to P.M.T.A. and its membership, before or during the development of their program of "enforcing" this Standard as detailed supra.

Thus, consistent with Mr. Gunther's "voluntary compliance program" there evidently were no citations issued to stevedoring companies in this Port because of the failure or refusal of longshoremen to wear protective hats. Although compliance by longshoremen during the first week or so was rather high in this Port, estimated at 75 to 80 percent, compliance thereafter gradually [*26] declined as more and more rank and file longshoremen failed or refused to wear these hats (Vol. IV, p. 104, Docket Nos. 7047 and 7281).

Thus, during this period of "voluntary compliance" the Respondents herein did supply hard hats to their registered longshoremen, and expended efforts to educate and persuade these employees to wear these hats through the taped telephone message, pay envelope enclosures, signs posted at their terminal facilities and through safety meetings held by both P.M.T.A. and by the individual Respondent companies.

However, despite the fact that many rank and file longshoremen were not wearing protective hats while on the job during this period, which was known to Respondents, no disciplinary action was ever taken by the Respondents herein, in all likelihood, because of the announced policy of Mr. Gunther (Vol. IV, p. 168, 169; Docket Nos. 7047 and 7281).

In March of 1973, the new Assistant Secretary of Labor for the Occupational Safety and Health Administration, Mr. Stender, at a meeting called by the National Maritime Safety Association, whose members consisted of stevedoring companies from both coasts, announced his new policy of enforcing the [*27] protective hat Standard. Mr. Corry of P.M.T.A. was in attendance (Vol. IV, p. 109, Docket Nos. 7047 and 7281).

On April 19, 1973, the P.M.T.A., by unanimous vote of its Board of Directors n4 developed a new policy regarding protective hats, which was formally announced to its members in Circular No. 78-73 over Mr. Corry's signature. This circular reads as follows:

Head Protection

Section 1918.105 of the "Safety and Health Regulations for Longshoring" states that all employees shall be protected by protective hats during longshore operations. It now appears that the U.S.D.L. moratorium on the enforcement of this regulation has been terminated as several of our members have been cited. The PMTA is recommending that these citations be contested on the grounds that:

1. This protection has been provided;

2. That supervisory people have been trained in the need for this protection;

3. And that member companies have continuing programs to keep this regulation before their employees.

Nevertheless, it is apparent that henceforth, the PMTA and Union managements will have to work more closely in obtaining compliance with the regulation. It might be said that the honeymoon seems [*28] to be over. (Ex. C-20, Vol. IV, pp. 127-135, 168-170, Docket Nos. 7047 and 7281.)

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n4 The Board of Directors consists of officers who are management executives of the member stevedoring companies. P.M.T.A. policies are executed by its chief operating official, its Executive Secretary.

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Not listed in this official P.M.T.A. policy statement was the additional ground for contesting all hard hat citations, to wit, the fear of a wildcat strike if any longshoreman was refused work or sent home for failure to wear a hard hat (Vol. IV, pp. 171-175, Docket Nos. 7047 and 7281).

Thus the evidence of these records clearly reveals that the sound legal advice of P.M.T.A.'s counsel, Mr. Scanlan, given in 1971, was never implemented, because, up to the end of Complainant's moratorium in 1973, there was no need. Despite the increasing number of rank and file longshoremen who failed or refused to wear their protective hats, no citations were issued to their employers, the stevedoring companies. Similarly, no recalcitrant [*29] longshoremen employed by these Respondents were refused work or terminated for working without these hats.

When the Complainant ended this moratorium in March of 1973, rather than returning to P.M.T.A.'s counsel's sound legal position announced in 1971, the P.M.T.A. membership adopted a new position, to contest any citations involving the failure of longshoremen to wear hard hats. A number of "hard hat" cases in the Port of Philadelphia ensued, including these six cases.

Upon the evidence of these records, I find Respondent's arguments that this Standard is unenforceable because if noncomplying longshoremen are terminated or laid off, strikes will result to the economic detriment of Respondents and the Port, unpersuasive and not supported in law or fact.

It is now beyond question that the Act places primary responsibility for compliance therewith upon employers. As the Commission held in Secretary of Labor v. Cam Industries, Inc., 7 OSAHRC 30 (3/4/74), at pp. 31, 32,

. . . An employer's duty to comply with standards is not to be diminished simply because the violation is created by his employees. As the Senate Labor Committee said: '[f]inal responsibility for compliance [*30] with the requirements of this Act remains with the employer.' This is as it must be since were it otherwise employers would be able to evade their responsibility by shifting them onto their employees, and such result would be contrary to the purposes for the Act's existence.

This interpretation of the Act has been consistently followed by the Commission and its Judges. n5

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n5 See: Secretary of Labor v. The Budd Company, 7 OSAHRC 160 (3/8/74); Secretary of Labor v. Modern Automotive Services, Inc., 6 OSAHRC 738 (2/27/74); Secretary of Labor v. So. Indiana Gas & Electric Company, 7 OSAHRC 85 (3/5/74); Secretary of Labor v. John B. Kelly, 4 OSAHRC 120; Secretary of Labor v. Ryder Truck Lines, Inc., 4 OSAHRC 419, 497 F.2d 230 (C.A. 5, 1974); Secretary of Labor v. Georgia Pacific Corp., 4 OSAHRC 509.

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As to the Standard here in question, 29 CFR 1918.105(a), as pointed out by Judge Harris in earlier "hard hat" cases, n6 the declared purpose of the Safety and Health [*31] Regulations for Longshoring is set forth in section 1918.1 to be

. . . among other things, that every employer of the aforementioned employees 'shall install, furnish, maintain, and use such devices and safeguards with particular reference to equipment used by and working conditions established by such employers as the Secretary may determine by regulation or order to be reasonably necessary to protect the life, health, and safety of such employees and to render safe such employment and places of employment, and to prevent injury to his employees.' It is the purpose of the regulations of this part to carry out the intent of Public Law 85-742.

Section 1918.2(a) provides:

The responsibility for compliance with the regulations of this part (1918) is placed upon "employers" as defined in § 1918.3(c).

Section 1918.3 in pertinent part provides:

(a) The term "shall" indicates provisions which are mandatory.

(c) The term "employer" means an employer any of whose employees are employed in whole or in part, in longshoring operations or related employments, as defined herein within the Federal maritime jurisdiction on the navigable waters of the United States.

(d) The term "employee" [*32] means any longshoreman, or other person engaged in longshoring operations or related employments, . . .

(i) The term "longshoring operations" means the loading, unloading, moving, or handling of cargo, ship's stores, gear, etc., into, in, on, or about of any vessel on the navigable waters of the United States.

(j) The term "related employments" means any employments performed as an incident to or in conjunction with longshoring operations. . . .

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n6 See: Secretary of Labor v. John W. McGrath Corp., Docket Nos. 2870, 2871, 2872, 3212 and 3726 (11/15/73); Secretary of Labor v. Atlantic & Gulf Stevedores, Inc., Docket No. 2818 (1/8/74); Secretary of Labor v. Holt Marine Terminal, Inc., Docket No. 2862 (1/8/74); Secretary of Labor v. International Terminal Operating Co., Inc., Docket No. 2997 (1/8/74); Secretary of Labor v. Nacirema Operating Co., Inc., Docket No. 2998 (1/8/74).

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As to the evidence herein, Respondent, Independent, produced the testimony of one of its management [*33] personnel, Mr. Baker, its "insurance manager" who is also involved in this company's "safety programs" (Vol. I, pp. 102-142). Mr. Baker, with 3 1/2 years experience with this Respondent, opinioned that if longshoremen were refused work for not wearing hard hats, there would be a work stoppage (Vol. I, p. 106, Docket No. 4897). Further, that Respondent tells longshoremen to "Wear your hard hats. It's a Federal law", but that this Respondent goes no further and has no plans to do anything else because of its fear of a work stoppage (Vol. I, pp. 110-111). In addition, that this Respondent has no policy to terminate longshoremen for not wearing hard hats and has never fired any longshoremen for such conduct (Vol. I, p. 133).

Respondent, I.T.O., produced the testimony of its Vice-President Castagnola, who had been with this company for two years. In his opinion, if longshoremen were fired, "There is no doubt in my mind that the men would walk out" (Vol. II, p. 222). Having previously been found in violation of the Standard at issue by Judge Harris (See Docket No. 2997, 1/8/74), this Respondent still did not tell its longshoremen that they would be terminated for failure to wear [*34] these hats (Vol. II, pp. 242, 243). Its position is that it will not terminate longshoremen for failure of refusal to wear protective hats, which coincides with P.M.T.A.'s position (Vol. II, pp. 267, 268). This company has never been threatened by any local I.L.A. union with a work stoppage if longshoremen are terminated for their adamant refusal to wear hard hats (Vol. II, p. 277).

Respondent Holt produced the testimony of its Safety Director, Mr. Schultz, who had been with this company for three years. He also opinioned that if longshoremen were terminated over this hard hat issue, a work stoppage would ensue (Vol. III, p. 64). He further stated that it would "be nice" if his company could obtain compliance with the hard hat Standard (Vol. III, p. 74). Here too, this company has never been threatened with a strike over this issue by any union official, gang foremen or rank and file longshoremen (Vol. III, pp. 77, 78).

As to Respondent Atlantic and Gulf, no live testimony was presented. Rather stipulated facts were filed which included the incorporation by reference of the testimony of Mr. McTaggart, at pages 378 to 405, taken in an earlier "hard hat" case before [*35] Judge Harris (Docket No. 2818). According to these stipulations, Mr. McTaggart was "formerly claims and safety manager for respondent" (R. p. J-12, Docket No. 6741 and 6961, p. 4 of said stipulations). At page 394 of this incorporated testimony, Mr. McTaggart opinioned that there would be a work stoppage if employment was denied a longshoreman over this issue. Additionally, that this Respondent has never terminated a longshoreman over this issue (pp. 401, 405).

The above identified witnesses also testified to their company's purchase of protective hats and liners, back in 1971, to their safety meetings at which this hard hat issue was discussed, to the use of the hiring tape messages that "Federal law required longshoremen to wear hard hats," to the use of pay envelope messages to the same effect, and to posting "hard hat area" signs at their facilities. However, there is a striking lack of particulars generally, as to how long these educational practices were carried on and with what frequency.

The additional evidence concerning the possibility of a work stoppage over the hard hat issue was supplied by Compliance Officer Francis A. Moock and P.M.T.A.'s Mr. Corry.

Mr. Moock [*36] conceded that, "If a gang carrier was to say, 'Anyone who doesn't wear a hat, get out,' there's a possibility that everybody will walk out, so it's pretty touchy" (Vol. I, p. 69; see also Vol. I, p. 87; Vol. II, p. 143, 152; Vol. III, p. 33, 34).

Mr. Corry of P.M.T.A. testified that in his opinion there would be a wildcat strike if any longshoremen were fired for failure to wear a hard hat (Vol. IV, p. 109). He further testified that the hard hat problem could be brought to the grievance procedure under the extant Collective Bargaining Contract (Ex. C-1, all dockets), but no such procedure has been followed (Vol. IV, pp. 159-164). He further testified that neither he nor P.M.T.A. has ever been threatened with a work stoppage over this issue (Vol. IV, pp. 175, 176).

Mr. Richard Askew, the President of I.L.A. Local 1291 for the past 20 years, was presented by Complainant. He testified regarding the Standard at issue, that "It's the law and I believe it should be complied with to the extent that it can be complied with" (Vol. II, p. 76).

He further testified:

The Union has promised PMTA that it would do all within its power to insure compliance, and the agents and I [*37] we do talk with our men every time we see them and urge them to comply. They know what the law is. They know basically what the law is. They have been issued hats. They know that they are supposed to wear the hats under the law, and we have told that time and time and time again. And we do continue to tell them to comply with the law. (Vol. II, p. 77.)

Although he expressed the belief that the Standard in question is mandatory, that longshoremen wear hard hats at all times when he is working as a longshoreman without exception (Vol. II, pp. 79-81, 94), and that, ". . . it should be complied with to the fullest intent (extent) possible" (Vol. II, p. 100), he also believes that there are certain, limited situations where hard hat protection is not necessary and that a variance should be possible (Vol. II, pp. 101-102, 108-109).

Mr. Askew on three occasions invited P.M.T.A. to join with Local 1291 to seek an appropriate variance, believing only such a joint petition was possible. He received no response from P.M.T.A. (Vol. II, pp. 108, 109).

Additionally, he testified that neither he nor anyone in a responsible position in his longshoremen Local has ever threatened to call a [*38] strike against any stevedoring company which enforced the hard hat Standard (Vol. II, p. 77). Furthermore, the official position of Mr. Askew and his Local 1291 is that if a stevedoring company did discharge any longshoreman for the refusal or failure to wear a protective hat, no strike would be recommended or sanctioned (Vol. II, p. 107).

Mr. James T. Moock, the International Vice President of the I.L.A. for 21 years, with jurisdiction over the Port of Philadelphia, also testified that the I.L.A.'s position was that, ". . . they advocate the wearing of the hats" (Vol. IV, pp. 7, 73). He further stated that he would consider any strike over the hard hat issue in this Port to be a "wildcat strike," i.e., not sanctioned by the union (Vol. IV, p. 73).

It is apparent in these records that the source of Respondent's fears to wildcat strikes over the issue are random, nonspecific threats from some unidentified and undetermined number of rank and file longshoremen. No such longshoreman was produced to testify and repeat, under oath, any such threat. No responsible union official of either Local 1291 or the I.L.A., as far as this evidence reveals, has ever threatened any strike [*39] over this issue. To the contrary, these officials support the enforcement of this Standard, which is for the benefit of their longshoremen membership and have declared that they will not support any member whose employment is terminated for failure to wear a hard hat. No responsible member of management of the Respondents herein has ever been directly threatened by anybody with a work stoppage over this issue.

These considerations, plus one incident recountered in the evidence, leads me to the conclusion that Respondents fears of wildcat strikes are not justified.

Compliance Officer Moock testified that he was told of an incident by a Local 1291 business agent, a Mr. Kelly, employed by the Lavino Shipping Company in this Port. It appears that a longshoreman reported for work one day at this company's facility without a hard hat. He was refused employment and told to go get his hat.

During his absence his place in the gang was filled by another longshoreman. When the first longshoreman returned to the facility, he was then an extra hand and he was refused employment, i.e., the termination of his employment for that day was continued. No work stoppage or wildcat strike ensued. [*40] Ultimately this longshoreman, although he did not resort to the grievance procedure under the Collective Bargaining Contract, was paid for four hours of work for that day n7 (Vol. II, pp. 158-160). This policy of enforcing the hard hat Standard by the Lavino Company has evidently been followed and "worked at" by this company for some time. It has resulted in an absence of strike threats by its longshoremen and produced ". . . a good hard hat record;" (Vol. III, p. 34).

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n7 Unfortunately the details of this incident are meager. This hearsay testimony, standing alone, is not used herein to support any findings, Consolidated Edison Co., v. N.L.R.B., 305 U.S. 197, 230 (1938).

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It is therefore concluded, that the defense of the Respondents herein, that they are unable to comply with the Standard at issue because of the fear of wildcat, illegal strikes or work stoppages, is not supported in these records. Neither is it supported in law. The clearly speculative, prospective, threatened, illegal conduct [*41] of some rank and file longshoremen in this Port, which is addressed infra, cannot justify any continuation of the illegal conduct of these Respondents, to wit, their failure to adhere to the mandate of Section 5(a)(2) of the Act, 29 U.S.C. 654(a)(2) by failing or refusing to comply with the Standard set forth at 29 C.F.R. 1918.105(a).

Additionally, in the event wildcat strikes do follow the action of any Respondent in refusing to employ or terminating the employment of any nonconforming longshoreman, such illegal conduct may be redressed under both Pennsylvania and Federal law. n8

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n8 See: P.M.T.A. et al. v. I.L.A. et al., 115 A2d 733 (1955), cert. den. 350 U.S. 483; P.M.T.A. v. I.L.A. et al., 308 A2d 99 (Pa. S. Ct., 1973); Pa. Anti-Injunction Act, 43 Purdon's Stats. Ann. 206a-20r. Section 301 Taft-Hartley Act, 29 U.S.C. 185; Boys Market, Inc. v. Retail Clerk's Union, Local 770; 398 U.S. 235 (1970).

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The refusal of employees to comply with Occupational Safety and Health Standards is not a defense [*42] to citations under the Act. Nothing in this Act allows employers to negate their duty and responsibility thereunder because of the personal preferences of their employees. See: Secretary of Labor v. Poston Bridge and Iron, Inc.; 6 OSAHRC 42 (1/2/74); Secretary of Labor v. Theodore D. Bross Line Construction Corp.; Docket No. 5421; Secretary of Labor v. T.E. Mercer Pipe Coating Co.; 11 OSAHRC 873 (9/25/74).

Finally, the declared Congressional purpose of the Act is, ". . . to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources . . ." (29 U.S.C. 651(2)(b)). Employees cannot waive these rights and protections.

As the Supreme Court has held:

It has been held in this and other courts that a statutory right conferred on a private party, but affecting the public interest, may not be waived or released if such waiver or release contravenes the statutory policy . . . Where a private right is granted in the public interest to effectuate a legislative policy, waiver of a right so charged or colored with the public interest will not be allowed where it would thwart the [*43] legislative policy which it was designed to effectuate. Brooklyn Savings Bank v. O'Neil, et al., 324 U.S. 697, 704 (1945) n9

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n9 See also: Midstate Horticultural Co. v. Penn. RR Co; 320 U.S. 356, 361 (1943); Phillips Co. v. Grand Trunk Western Ry.; 236 U.S. 662, 667 (1915); Young v. Higbee Co.; 324 U.S. 204 (1945); U.S. ex rel. Johnson v. Morley Const. Co., 98 F2d 781, 788 (C.A. 2, 1938); N.L.R.B. v. Am. Potash Chemical Corp.; 113 F2d 232 (C.A. 9, 1940); N.L.R.B. v. Stackpole Carbon Co., 128 F2d 188, 190 (C.A. 3, 1942)).

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Thus Respondents' defense herein must be rejected. To hold otherwise would vest employees and employers with the authority to comply only with those Standards with which they so desire. Such action would be clearly contrary to the expressed public interest policy of the Act.

One additional substantive matter must be addressed. The records herein conclusively establish that some unidentified but identifiable rank and file longshoremen in the [*44] Port of Philadelphia, knowingly, deliberately, and defiantly have refused to wear protective hats, supplied to them without cost to them, while engaged in longshoring operations at Respondents facilities, as mandated by the Standard at issue. Such conduct is clearly a violation of Section 5(b) of the Act, 29 U.S.C. 654(b), which provides:

Each employee shall comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to this Act which are applicable to his own actions and conduct. (Emphasis supplied).

Despite the language of Section 2(b)(2) of the Act, 29 U.S.C. 651(b)(2) (that one means provided to accomplish the declared objective of the Act is, "by providing that employers and employees have separate but dependent responsibilities and rights with respect to achieving safe and healthful working conditions;"), the Act does not provide for any sanction of employees who are found in violation of the Act. The cases herein strikingly accent this void.

However, in light of the clear joint responsibility of both employers and employees to comply with the Act as set forth therein, supra, it is my belief that authority [*45] does exist under the Act to deal with the type of knowing and deliberate violative conduct of recalcitrant employees established by the evidence in these cases.

Section 10(c) of the Act, 29 U.S.C. 659(c) provides in pertinent part, that after a hearing has been held upon any contested Citation, Notification of Proposed Penalty or Notification of Failure to Correct an Alleged Violation, "The Commission shall thereafter issue an order, based on findings of fact, affirming, modifying, or vacating the Secretary's citation, proposed penalty, or directing other appropriate relief, and such order shall become final thirty days after its issuance." (Emphasis supplied).

Under the authority of the emphasized clause above, an appropriate order is issued herein, directing all longshoremen employees of the Respondents herein to comply with Section 5(b) of the Act and the protective hat Standard set forth at 29 C.F.R. 1918.105(a). n10

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n10 I leave it to the very able and ingenious counsel of either Complainant or Respondents herein, or both, to effect its enforcement in the appropriate lawful tribunal.

[*46]

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A number of motions remain to be ruled upon.

Atlantic & Gulf Stevedores, Inc. -- Docket No. 6741

On October 16, 1974 Respondent in this case filed a written motion to vacate the Citation and dismiss the Complaint therein, insofar as each alleges a "Repeated Violation" of 29 C.F.R. 1918.105(a). (See, R. p. J-12, Docket No. 6741). The grounds for this motion are that the alleged prior violations of this Standard Further, that Judge Gold's Decision and Order in these cases have been directed for review by the Commission, thus, as of the date of the Citation in issue here, February 13, 1974, the Commission had not yet issued its Decision on the earlier cases, and therefore there is no final administrative or judicial determination that Respondent did violate the Standard at issue prior to February 13, 1974.

On November 22, 1974 Complainant [*47] filed its memorandum in opposition to this motion (See R. p. J-14, Docket No. 6741).

Respondent's position, in part, is well taken. There can be no "repeated" violation unless there has been a final determination that a Respondent, so charged, has violated the Act and identical Standard at some time prior to alleged "repeated" violation. A repeated course of conduct is not a repeated violation.

The appropriate relief however, is not the drastic dismissal of the erroneously labeled Citation for "Repeated" violations as prayed, but rather the modification of said Citation and Complaint to charge a Nonserious Citation (29 U.S.C. 659(c)). n11 It is so Ordered.

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n11 See: National Realty and Construction Co., Inc. v. OSAHRC; 489 F2d 1257 (C.A.D.C. 1973)); Secretary of Labor v. Brisk Waterproofing Co., Inc.; 3 OSAHRC 1132 (7/27/73); Secretary of Labor v. F.E. Myers & Bros. Co.; Secretary of Labor v. Toler Excavating Co.;

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Independent [*48] Pier Company -- Docket No. 4897

On June 14, 1974, at the beginning of the trial herein, Respondent filed a written motion to strike from the Citation and Complaint herein, the allegation of violation of the Standard set forth at 29 C.F.R. 1910.132(a), which was pleaded in conjunction with an alleged violation of 29 C.F.R. 1918.105(a). Argument was heard on this motion and ruling was reserved (Vol. I, pp. 23-27).

Respondent's motion has merit and is hereby Granted. The allegations of violation of 1910.132(a) was pleaded because some of the longshoremen observed during the inspection without protective hats were working on the dock, not on board the vessel (See Exs. C-2(b) and 2(a), Docket No. 4897). Complainant's prior practice was to cite such violations under the 1910 Standards. However, this policy was changed by Assistant Secretary Stender in his OSHA Program Directive No. 200-21, dated September 26, 1973 (Vol. I, p. 90), issued one day prior to the Citation herein, dated September 27, 1973. Paragraph 9 of this Directive provides:

(a) 29 C.F.R. Part 1918 standards will be cited for all longshoring activities both onshore and offshore.

Therefore, the Citation [*49] and Complaint in Docket No. 4897 are hereby modified to strike all references to violations of 29 C.F.R. 1910.132(a), pursuant to Respondent's and Complainant's motion (See Vol. I, p. 25).

In Part "B" of its Brief on behalf of all Respondents, filed on November 27, 1974, counsel for Respondents argue that "the Act does not permit the incorporation by reference of 'American National Safety Requirements for industrial head protection, Z89.1 (1969)' nor the application thereof to persons engaged in loading and unloading cargoes carried in ships." because Z89.1 does not satisfy the criteria of the definition of a "national consensus standard" set forth at Section 3(9) of the Act, 29 U.S.C. 652(9) which type of Standard the Secretary, pursuant to Section 6 of the Act, 29 U.S.C. 655 adopted and incorporated by reference by Section 1918.6 of 29 C.F.R. This regulation, 1918.6 was promulgated on May 28, 1971. The Secretary designated Z89.1 on May 28, 1971 had not been adopted and promulgated as a national consensus standard on May 28, 1971, and therefore the provisions of Sections 3(9) of the Act have not been satisfied.

On December 2, 1974 Complainant filed a Motion to Strike this [*50] portion of Respondent's Brief or in the alternative to allow time to file a Reply Brief. Complainlant's Motion to Strike was denied by Order dated December 18, 1974 (R. p. J-15, Docket No. 6741).

On December 16, 1974 Complainant filed his Reply Brief.

In his reply, Complainant first argues that the Commission and its Judges do not have authority to determine whether a Standard has been validly promulgated, noting, however divergent views on this question by Commission Judges. n12

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n12 See: Secretary of Labor v. Juhr and Sons., Docket No. 2314; Secretary of Labor v. Boise Cascade Corp.; Docket No. 2944.

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The Commission has held that the proper promulgation of a Standard is a jurisdictional question which can be raised, and decided, at any stage of a proceeding. Secretary of Labor v. Stevens Equipment Co.; 2 OSAHRC 1501 (4/27/73). Thus Complainant's first argument must fail.

As to the substantive question, the proper promulgation of the Standard at issue, 29 C.F.R. 1918.105(a), [*51] the following facts of public record are noted.

On April 4, 1969, 29 C.F.R. 1504, Safety and Health Regulations for Longshoring, promulgated pursuant to the Longshoremens' and Harbor Workers' Compensation Act (hereinafter LHWCA) (33 U.S.C. 941), were revised (34 F.R. 6150). Included in this revision was Section 1504.105(a), a more restrictive version of the current Standard at 1918.105(a).

On December 29, 1970 the Occupational Safety and Health Act of 1970 was enacted.

On March 23, 1971, as a result of submissions from interested parties concerning the proposed amendment to 29 C.F.R. 1504, invited by notice published in the Federal Register of June 26, 1970 (35 F.R. 10455), the Secretary published in the Federal Register "a substantial revision" of his earlier proposed amendments to 1504. The amended proposal was that 29 C.F.R. 1504.105(a) should read as it does in the current 1918.105(a) (36 F.R. 5437).

On April 28, 1971 the Act went into effect.

On May 29, 1971, the Secretary promulgated the initial set of Occupational Safety and Health Standards under the Act (36 F.R. 10466 et seq. ). Included in this publication was 29 C.F.R. 1910.16, which adopted and extended the LHWCA [*52] Standards contained in Part 1504, "in effect on April 28, 1971."

Thus 29 C.F.R. 1504.105(a) was under revision on April 28, 1971, not being promulgated in its revised form until May 28, 1971.

On October 19, 1972, 29 C.F.R. Part 1918 (formerly 1504) was published for the first time as Occupational Safety and Health Standards which included the Standard at issue, 29 C.F.R. 1918.105(a) (37 F.R. 22546).

However, Section 4(b)(2) of the Act, 29 U.S.C. 653(b)(2) provides, in pertinent part,

Standards issued under the laws listed in this paragraph (which includes the LHWCA Pub. Law 85-742) and in effect on or after the effective date of this Act shall be deemed to be occupational safety and health standard issued under the Act, as well as under such other Acts. (Parenthesis and emphasis supplied).

By the clear terms of this provision of the Act, the Standard in question, promulgated under the LHWC Act after April 28, 1971, to wit, on May 28, 1971, is deemed to be an Occupational Safety and Health Standard. It is therefore concluded that the Respondents herein were properly cited under the Standard at 1918.105(a) which is enforceable as having been duly promulgated pursuant [*53] to law. Respondent's argument in Part B of its Brief must fail. n13

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n13 Respondent's last argument concerning the constitutionality of 29 C.F.R. 1918.105(a) must be left for judicial determination. American Smelting & Refining Co. v. OSAHRC & Secretary of Labor; 501 F2d 504 (C.A. 8, 1974).

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The final matters remaining for determination are the proposed penalties. (See Appendix A attached).

Independent Pier Company -- Docket No. 4897

A penalty of $250 was proposed for the "Repeated" violation of 29 C.F.R. 1918.105(a).

The average number of daily employees for this company was stipulated to be 250 (Vol. I, p. 34). It classified itself as one of the smallest stevedoring companies in this Port. No injuries were involved in this case. Information concerning gross revenues was to be supplied to this record. None was supplied. Five hatches on the vessel M. S. Maracaibo were inpsected on September 17, 1973. Of over 56 longshoremen observed working in these hatches and at the gangways, none wore [*54] protective hats (Vol. I, pp. 40-55). In view of the fact that these violations represent repeated violations as charged, and considering the factors of Section 17(j) of the Act, 29 U.S.C. 666(j), it is concluded that the proposed penalty of $250 is appropriate.

Holt Marine Terminal, Inc. -- Docket No. 7175

A penalty of $70 was proposed for the violation of 29 C.F.R. 1918.105(a) - Item No. 2.

It was stipulated that this Respondent also considers itself one of the smallest stevedoring companies in this Port, with 52 longshoremen working for it in three gangs (Vol. III, pp. 8-10). No injuries were involved in this case. No information concerning revenues was supplied the record. During the inspection of March 14, 1974, aboard the vessel M/V Tocantins, two longshoremen gangs were observed, loading barrels of tallow, with no protective hats (Vol. III, pp. 18-25). In view of the fact that head injuries appear not to be a major type of injury in this Port, and weighing the factors mandated by Section 17(j) of the Act against the meager evidence of this record, it is concluded that the proposed penalty, for this nonserious violation, of $70 is appropriate.

I.T.O. Corporation of Ameriport, [*55] Inc. -- Docket Nos. 7047 and 7281

Penalties of $35 in Docket No. 7047 and $55 in Docket No. 7281 were proposed for the two Citations for Nonserious Violations of 29 C.F.R. 1918.105(a).

It was stipulated that this company also classified itself as one of the smallest stevedoring companies in this Port, accounting for about 5% of the man hours worked therein. It has 127 average daily employees. Gross sales for 1973 were approximately 4 million dollars. No injuries were involved in these cases (Vol. II, pp. 26-27).

During an inspection on March 12, 1974 aboard the vessel M. S. Viscvica, 21 longshoremen employees of Respondent were observed working in the hatches and at the gangways without protective hats (Vol. II, pp. 126-142; Docket No. 7281).

During an inspection on February 14, 1974 aboard the vessel Atlantic Darby, berthed at Respondent's facility unloading bulk sugar, Respondent's ship Superintendent, Mr. O'Brien was observed without a hard hat. In addition, a longshoreman operating a crawler type bulldozer in # 2 lower hold did not have protective equipment (Vol. II, pp. 201-212; Docket No. 7047).

Weighing the factors of Section 17(j) of the Act, it is concluded [*56] that the proposed penalties of $35 in Docket No. 7047 and $55 in Docket No. 7281 are appropriate.

Atlantic & Gulf Stevedores, Inc. -- Docket Nos. 6741 and 6961

A penalty of $420 in Docket No. 6741 was proposed for the alleged "Repeated" Violation, and $45 in Docket No. 6961 for the nonserious violation of 29 C.F.R. 1918.105(a).

No trial was held in these cases. Rather stipulated facts were supplied (See R. p. J-12, Docket No. 6741).

On February 5, 1974 during an inspection aboard the vessel M/S Marita Leon Hardt berthed at Respondent's facility, approximately twelve of Respondent's longhsoremen employees were observed working in hatches # 1, # 3 and # 5 without hard hats (Docket No. 6741).

During an inspection on February 12, 1974 aboard the vessel Mar-Cantabirco, berthed at Respondent's facility, five of Respondent's longshoremen employees were observed working at hatches # 3 and # 4 without hard hats (Docket No. 6961).

There is no evidence of record concerning the factors enunciated in Section 17(j) of the Act, except the overall stipulation that there were no injuries involved in these two cases.

As to Docket No. 6741, the Citation charging "Repcated" Violations, is amended [*57] to charge Nonserious Violations, as discussed supra. In view of the fact that twelve employees were observed performing longshoring duties without head protection, it is concluded that a penalty of $90 is appropriate.

In Docket No. 6961 the proposed penalty of $45 based upon 5 employees being observed doing longshoring work without head protection is determined to be appropriate.

Based upon the foregoing findings and conclusions and pursuant to the provisions of Sections 10(c) and 12(j) of the Act, (29 U.S.C. 659(c) and 661(i) it is hereby,

ORDERED:

Independent Pier Company -- Docket No. 4897

1. That the Citation for "Repeated Violations" issued to this Respondent on September 27, 1973 is modified by striking all references to the Standard set forth at 29 C.F.R. 1910.132(a) in said Citation. As so modified, this Citation for "Repeated Violations" of 29 U.S.C. 654(a)(2) and the Standard set forth at 29 C.F.R. 1918.105(a) is AFFIRMED.

2. The proposed penalty of $250 for said violations is AFFIRMED and is assessed.

Holt Marine Terminal, Inc. -- Docket No. 7175

1. That the Citation for Nonserious Violation issued to this Respondent on March 18, 1974 for [*58] violation of 29 U.S.C. 654(a)(2) and the Standard set forth at 29 C.F.R. 1918.105(a) is AFFIRMED.

2. The proposed penalty of $70 for said violation is AFFIRMED and is assessed.

I.T.O. Corporation of Ameriport, Inc. -- Docket Nos. 7047 and 7281

1. That the Citations for Nonserious Violations issued to this Respondent on February 21, 1974 (Docket No. 7047) and March 18, 1974 (Docket No. 7281) for violations of 29 U.S.C. 654(a)(2) and the Standard set forth at 29 C.F.R. 1918.105(a) are AFFIRMED.

2. The proposed penalties of $35 in Docket No. 7047 and $55 in Docket No. 7281 are AFFIRMED and are assessed.

Atlantic & Gulf Stevedores, Inc. -- Docket Nos. 6741 and 6961

1. That the Citation for "Repeated Violation" issued to this Respondent on February 13, 1974 in Docket No. 6741 is modified to charge a Nonserious Violation.

2. That said Citation as modified in Docket No. 6741, together with the Citation for Nonserious Violation issued to this Respondent on February 20, 1974 in Docket No. 6961, for violations of 29 U.S.C. 654(a)(2) and the Standard set forth at 29 C.F.R. 1918.105(a) are AFFIRMED.

3. A penalty in the amount of $90 in Docket No. 6741 and the [*59] proposed penalty of $45 in Docket No. 6961 are assessed; and it is further

ORDERED:

1. That pursuant to the authority set forth at 29 U.S.C. 659(c), all longshoremen employees of all Respondents herein are hereby directed to comply with the provisions of 29 U.S.C. 654(b) and the Standard set forth at 29 C.F.R. 1918.105(a) at all times when said persons are engaged in longshoring operations as employees of said Respondents.

2. That a copy of this Order be served upon all said longshoremen within two weeks from the date this Order becomes final.

APPENDIX A

Citation for "Repeated Violations" dated September 7, 1973

Standard allegedly violated:	Description of alleged violation
29 C.F.R. 1910.132(a) and	Men working aboard the vessel
1918.105(a)	(M/S Maracaibo
	inspected on September 17, 1973 at Pier 55
	South, Philadelphia, Pennsyulvania) at #1, 2, 3,
	4 and 5 hatches, and on the dock in the
	gangways of these hatches, were not wearing
	protective hats.
	The employer was previously cited for alleged
	violations of 29 C.F.R. 1910.132(a) and 29
	C.F.R. 1918.105(a) in Items No. 1 of the
	Citations issued July 9, 1973 and August 29,
	1973; and 29 C.F.R. 1918.105(a) in Item No. 1
	of the Citation issued July 13, 1973. n1
	(parenthesis supplied.)

[*60]

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n1 The parties stipulated that the prior Citations set forth supra were not contested and had become the Final Order of the Commission pursuant to 29 U.S.C. 659(a) (Vol. I, pp. 28-29).

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Immediate abatement was ordered and a $250 penalty proposed.

Holt Marine Terminal, Inc. -- Docket No. 7175
Citation for Nonserious Violations dated March 18, 1975

Standard allegedly violated:	Description of alleged violation
Item No. 2 n2	Employees working (on March 14, 1974 aboard
29 C.F.R. 1918.105(a)	the vessel M/V Tocantins at Pier #7, 701 N.
	Broadway, loading Tallow in 55 gallon drums
	with ship's gear) at #2 hatch, after end starboard
	side, and on the stringpiece at #2 hatch,
	forward and after end, were not equipped with
	protective hats. (parenthesis supplied.)

Immediate abatement was ordered and a $70 penalty proposed for Item No. 2.

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n2 This Citation set forth three numbered Items. Respondent contested only Item No. 2 (R. p. 3, Notice of Contest dated March 20, 1974).

[*61]

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I.T.O. Corporation of Ameriport, Inc. -- Docket No. 7047
Citation for Nonserious Violations dated February 21, 1974

Standard allegedly violated:	Description of Alleged violations
Item No. 1 n3	Employees in the following locations, working
29 C.F.R. 1918.105(a)	aboard vessel (Atlantic Darby at Pier 14,
	Port
	Richmond, Philadelphia, Pennsylvania on February
	14, 1974), were not wearing protective
	head equipment.
	a) No. 2 lower hold, aft section -- crawler
	equipment operator
	c) No. 3 hatch on deck, port side -- hatch
	tender . . ." (parenthesis supplied.)

Immediate abatement was ordered and a $35 penalty was proposed for Item No. 1

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n3 This Citation set forth nine numbered Items. Respondent contested only Item No. 1 (R. p. 3, Notice of Contest dated March 13, 1974).

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I.T.O. Corporation of Ameriport, Inc. -- Docket No. 7281
Citation for Nonserious Violations dated March 18, 1974

Standard allegedly violated:	Description of alleged violation
Item No. 1 n4	Employees (on March 12, 1974, on board the
29 C.F.R. 1918.105(a)	vessel M/S Visevica at Pier #5, Broadway
	Terminals, Camden, New Jersey) working in
	lower hold areas of hatches #2 & #5 under the
	plumb of the outboard booms at #2 and #5
	hatches were not equipped with protective hats.
	(parenthesis supplied.)

[*62]

Immediate abatement was ordered and a $55 penalty was proposed.

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n4 This Citation set forth two numbered Items. Respondent contested only Item No. 1 (R. p. 3, Notice of Contest dated March 28, 1974).

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Atlantic & Gulf Stevedores, Inc. -- Docket No. 6741
Citation for "Repeated" Violation dated February 12, 1974

Standard allegedly violated:	Description of Alleged violation
29 C.F.R. 1918.105(a) n5	Approximately twelve employees working in
	square of hatch at #1, #3 and #5 hatches (on
	February 5, 1974 on board the vessel M/S
	Marita Leon Hardt at Pier 38 South, Delaware
	& Catherine Streets, Philadelphia, Pennsylvania)
	were not wearing protective hats. (parenthesis
	supplied.)

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n5 A second Citation for Nonserious Violations (3 Items) was issued to this Respondent on February 13, 1974. Respondent did not contest this Nonserious Citation.

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Immediate abatement was ordered and a $420 penalty was proposed.

Atlantic & Gulf Stevedores, Inc. -- Docket No. 6961
Citation for Nonserious Violations dated February 20, 1974

Standard allegedly violated:	Description of alleged violation
Item No. 12 n6	Five employees (grain men) working aboard
29 C.F.R. 1918.105(a)	vessel (Mar-Cantabrico on February 12, 1974 at
	Pier E. Alleghney Avenue, Port Richmond,
	Philadelphia, Pennsylvania) in the area of No. 4
	hatch, starboard side were not wearing protective
	hats. (second parenthesis supplied.)

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n6 This Citation set forth 13 numbered Items, only Item No. 12 was contested by Respondent (R. p. 3, Notice of Contest dated March 5, 1974).

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Immediate abatement weas ordered and a $45 penalty are proposed