Docket No. 5

PORTLAND STEVEDORING COMPANY

OSHRC Docket No. 5

Occupational Safety and Health Review Commission

July 25, 1973

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission upon my order directing review of the decision of Judge Robin S. Heyer. The Judge's decision found, inter alia, a serious violation of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq., (hereinafter "the Act"), in that on June 24, 1971, Respondent violated section 5(a)(2) of the Act by violating a standard then published at 29 C.F.R. 1504.43(e) n1. A civil penalty of $235 was assessed by the Judge.

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n1 The standard is currently published at 29 C.F.R. 1918.43(e). It provides:

Any beam or pontoon left in place adjacent to a section through which cargo, dunnage, equipment, or any other material is being worked, shall be lashed, locked, or otherwise secured so that it cannot be displaced by accident.

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The relevant facts are not in dispute. On June 24, 1971, Respondent's employees were unloading cargo from the hold of a ship, the Maria Carla d'Amico, at Portland, Oregon. An electric winch was being used to hoist the cargo from the hold. All except one hatch beam had been removed. It was unsecured. At least three employees were working in the hold, approximately 40 feet below the unsecured beam which was about 30 feet long and weighed between 900 and 1,200 pounds.

The Judge correctly found that failure to secure the beam during the unloading operation violated the standard. Our decision in Secretary of Labor v. Crescent Wharf and Warehouse Company,

Respondent's contention that the violation was not of a serious nature because there was not shown to be a substantial probability an accident would occur was accepted by the Judge. We find that this was error. As we held in Crescent Wharf, supra; Secretary of Labor v. Natkin and Company, Mechanical Contractors, Secretary of Labor v. Standard Glass & Supply Company, A serious violation is established if there is a possibility of an accident which, if it occurs, creates a substantial probability that death or serious injury will result.

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n2 Section 17(k) provides:

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

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Turning to the appropriateness of the penalty, we find that the Judge properly considered the relevant factors in making the assessment. The $235 penalty he assessed for the serious violation is appropriate.

Accordingly, it is ORDERED that the citation for serious violation is affirmed; that a penalty of $235 is assessed for such violation; and that the decision of the Judge is in all other respects affirmed.

DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: The Commission, by taking up cases of this nature, is wasting its time and energy on an academic exercise which will have no practical effect on the parties in this case or in any future cases.

From the standpoint of respondent, what is the difference between a serious and a nonserious violation? Both incur the possibility of civil penalties of identical scope. The maximum assessment for such a violation whether labeled "serious" or "nonserious" is $1,000, and neither requires any minimum. n3

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n3 Although the statute's plain wording states that a penalty "shall be assessed" which seems to me to require a penalty of at least one cent when a "serious" violation is established (section 17(b)), the Commission appears to have gotten around this by assessing a penalty of "zero dollars" for a serious violation in Secretary of Labor v. Thorleif Larsen & Son, Consequently, there is not a cent's worth of difference between a "serious" and a "nonserious" violation.

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A debate proposition could be framed on whether a "serious" violation requires a penalty assessment of one cent or zero dollars or the effect of a different burden of proof for "serious" violations n4 but these distinctions are virtually meaningless in the real world.

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n4 There is a distinction in the burden of proof but its ultimate effect is that of a distinction without a difference since complainant, upon failing to establish the employer's knowledge of a danger likely to cause death or serious harm as required in section 17(k), could still prevail if a nonserious violation of the Act were found. Such a finding would permit the assessment of a penalty in the exact same amount as that proposed for the allegedly "serious" violation.

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In a system whereby an employer can be penalized $235 for a "serious" offense and $500 n5 for an offense which is not serious, I am thoroughly unfamiliar with the advantages to be gained by calling a Judge's decision for review simply in order to expound either upon the "differences" between the two or the definition of either word. n6 As Shakespeare wrote long ago:

What's in a name? That which we call a rose By any other name would smell as sweet. n7

In my opinion this is another example of a propensity within the Commission to stir up what the Fifth Circuit Court of Appeals has recently characterized as "an administrative whirlwind." n8

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n5 Secretary of Labor v. Federal Glass Co.,

n6 There is at least one disadvantage to such a practice. If this case had not been called for review, it would have become a final order at least 15 months earlier than is now possible. During that period, there was no obligation upon respondent to abate the condition Judge Heyer found to be a violation of the Act and, at least theoretically, employees could have been exposed to the hazards arising therefrom for the 15 months it took to settle upon a definition of the word "serious."

n7 Romeo and Juliet, Act II, Sc. 2, Line 43.

n8 Brennan v. OSAHRC and Brent Towing Co., Inc. U.S. Court of Appeals (5th Cir.), decided July 3, 1973.

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[The Judge's decision referred to herein follows]

HEYER, JUDGE, OSAHRC: This matter came on regularly for hearing on July 30, 1971, at Portland, Oregon, before the undersigned Robin S. Heyer, as Hearing Examiner for the Occupational Safety and Health Review Commission of the United States, upon written notice given on July 20, 1971, under section 10(c) of the Occupational Safety and Health Act of 1970 [29 U.S.C. section 659(c)], designated "OSHA" or "the Act" below.

On June 28, 1971, the United States Secretary of Labor issued to the Contestant, Portland Stevedoring Company, two citations alleging violations of the Act on the grounds that on June 24, 1971, aboard the ship Maria Carla d'Amico at Portland, Oregon;

(1) an unlocked beam over a section through which cargo and dunnage were being discharged violated 29 C.F.R. section 1504.43(e), allegedly a "serious violation,"

(2) use of one rather than two choker slings to discharge a "large, long load" of dunnage violated 29 C.F.R. section 1504.81(c).

The Secretary issued to Contestant, on the same day as the citations issued, a "Notice of Proposed Penalty" of $600 for the first violation and $15 for the second.

The Contestant on July 1, 1971, notified the Secretary that it intended to contest the citations and the proposed penalties before the Commission. The Commission assigned the case to the present hearing examiner for hearing and determination, and without further formal pleadings the matter proceeded to hearing as noted above. No affected employees or representatives of the same have formally appeared as parties. Evidence, oral and written, proposed findings, and motions have been presented, and the matter has been taken under submission on all matters at issue. General procedure has followed that outlined and explained in the opinion in Case No. 1, a copy of which has been issued to counsel for both parties.

The regulations mentioned above were initially promulgated under another statute and adopted as existing safety standards under OSHA by reference in 29 C.F.R. section 1910.16, pursuant to OSHA section 6 (29 U.S.C. section 655). The rules of the Commission do not apply to this case (36 F.R. No. 169, Tuesday, August 31, 1971, p. 17409). Violation of such a regulation may be a violation of section 5(a) of the Act [29 U.S.C. section 654(a)(2)], resulting in penalty not exceeding $1000 [29 U.S.C. section 666(b) and (c)].

A penalty must be imposed if the citation for serious violation is upheld; a penalty may be imposed if a non-serious violation is found (ibid.). A serious violation is a situation or action in a place of employment from which a substantial probability exists that death or serious physical harm could result, unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the circumstances constituting the violation [ ibid., subsection (b)].

ISSUES

The general issues in the present case are whether the contestant has violated Section 5(a) of the Occupational Safety and Health Act of 1970, by violating 29 C.F.R. sections 1504.43(e) and 1504.81(c) or either of them, and, if so, what the appropriate penalties, if any, should be for such violation or violations as are found.

OPINION

SECRETARY'S MOTION TO REOPEN

The Secretary moved in written argument that the hearing be reopened to permit testimony to additional ways in which a beam could be dislodged. The Secretary offered such evidence at the hearing, but the hearing examiner sustained objection to the offer. As explained in the hearing and in the decision on Case No. 1 before this Commission, the question is one of substantial probability, not mere possibility.

The word "could" by itself would imply possibility, but in context it merely shows that Congress was referring to a probability substantial enough to constitute a genuine risk, a danger worthy of official action, but not necessarily a high probability. The violation is serious if that degree of risk is present that a serious injury will occur.

That degree of risk is not needed to be shown where the injury is non-serious, because its presence or absence is an element of seriousness, and if absent the penalty may in non-serious cases be omitted altogether.

The Secretary's motion must therefore be denied.

BASIC STANDARD OF SERIOUSNESS

The Secretary's motion raises again the basic issue of the standards of "seriousness" applicable to these proceedings. The meaning of this standard is also argued at length in the present case as in Case No. 1. Counsel on both sides have marshalled additional illustration and refrained from some of the widest difference of viewpoint originally expressed in the prior case, but the substance of the problem remains the same. The conclusions and reasons for them expressed in Decision No. 1 apply to the present case. It is therefore unnecessary to repeat them at length here.

As pointed out previously (Decision No. 1, page 43) the Secretary is correct in contending that the existence of the regulation raises a presumption of substantial probability of injury, but it raises no presumption of seriousness, and the presumption is rebuttable by convincing evidence.

EVALUATION OF FACTS OF SERIOUSNESS

Testimony on the distance from the unlocked beam to the cargo hook cable varied from eight to 15 feet. The latter testimony included reference to other objects as aids in the estimate, and was made by a witness who observed the arrangement for a significantly longer period of time. The larger estimate therefore appears more dependable.

The probability of dislodgment of the beam through the falling of the empty hook appears minimal. Dislodgment if struck on the rise by the marble cargo being discharged was possible, although from the slowness of operation and the positioning, such probability was not high. Dunnage moves faster and was considerably longer. Its chance of striking accordingly was greater, though normally clearance would have been adequate. These factors make probability of dislodgment not extremely large, but sufficient to be real and significant.

Contestant argues that single-choker slinging and the other precautions reduce the probability of dislodgment and consequent injury to insignificance. These factors doubtless reduce the probability well below what it otherwise would be; nevertheless, one cannot assume perfection of all other factors -- human experience proves that no system assures perfection of "all other factors." A substantial risk is likely to exist in the absence of some margin for error, such as winch-operator illness or midjudging, winch mechanical malfunction, or awkward dunnage position. A witness said there was "no way in the world" dislodgment could occur, but the objective facts and the "laws of nature" or common experience put this statement a little beyond literal credibility.

Certainly the opinions of individuals on the potentialities of situations with which they are familiar are not to be lightly disregarded, and in this case have not been. But the enthusiasm of this witness' response has carried it beyond the bounds of credibility.

The citation of Judge Learned Hand's explanation of the common-law duty of reasonable care, mentioned by contestant's counsel, is reasonably apt:

"The degree of care [required] . . . is the resultant of . . . [1] the likelihood that his conduct will injure others, . . . [2] the seriousness of the injury if it happens, and [3] [the counterbalancing] . . . interest which . . . must [be sacrificed] to avoid the risk" [Conway v. O'Brien (2d Cir. 1940) 111 F. 2d 611, 612].

Although the present case arises under a statutory standard resulting in part from failure of the commonlaw remedies to satisfy national policy fully, these general comments remain true. Balancing the likelihood of occurrence injury, seriousness of the nature of such injury, and other interest of employer, employee, and society which must be sacrificed, serious injury must be substantially probable. Though several deterrents to injury appear in the case, dislodgment by any number of reasonably forseeable events is patently a substantial risk on the evidence of the situation. The universally recognized laws of physics and common experience make it clear the cable suspension gave the bearing hook and its load that opportunity to swing and rotate; that bumping the forward coaming was fairly likely, especially in the event of dunnage rotation; and that bumping the forward coaming would with fairly high probability result in some aft-ward pendular motion. Citation shows that dislodgments do occur (Decision in Case No. 1, and Grace case, cited therein), and winches can and do lift beams on occasion, according to the testimony, and therefore appear to have the potential capacity to do so.

The damage likely from a dislodged beam of such weight falling into a work area is patent. The likelihood of injury in case of dislodgment is extremely high. The danger of dislodgment was somewhat less than might be true if, for example, the required vertical clearance for displacement were less, or the velocity of lift were greater, or cradle boards were used, or other factors are present, as in OSHRC Case No. 1.

The greater weight of the evidence shows a genuine, actual risk or danger -- a substantial probability existed of serious injury to workers from the violation of section 1504.43(e). The facts constitute a violation which was serious.

SCIENTER, DUE DILIGENCE, AND PENALTY

The expense of correcting the unlocked beam was slight. The number of persons endangered was small, the period of known danger was relatively brief, and the likelihood of dislodgment was not as great as might have been the situation in other cases. These factors tend to reduce the gravity of the violation. The period of exposure was about half a shift. This also affects gravity.

The employer in the exercise of due diligence should have ascertained the securing of the beam rather than relying on the representation of someone else over whom it had no control. Therefore in exercise of due diligence it should have known of the unlocked beam. On the other hand, lack of actual knowledge must be considered in adjudging good faith, as must the promptness of correction.

It is therefore concluded that the gravity is less, the good faith shown significantly greater, the company size and history of previous violations substantially equal to those of Case No. 1. It follows that the penalty must be substantially less. $235 appears to be an appropriate penalty, regardless of whether the violation should be classed as serious or non-serious.

In any event, a non-serious violation is a "lesser included offense," in the general way in which this statute and its implementing regulations are written, so that, if a violation is shown to have occurred, a penalty determination must still be made, even if the violation be not serious. The finding of a non-serious violation permits but does not require waiver of penalty, and does not require dismissal or vacation of the order for fatal variance of proof from pleading.

Since the maximum penalty for either serious or non-serious violation is the same, and since the factors for determining the size of penalty are not the same as those determining presence or absence of "serious" status -- "gravity" is not quite synonymous with the "serious" or non-serious nature of a violation as explained in Decision No. 1 -- the appropriate penalty in the present case is the same whether the major violation be regarded as serious -- in which category it deserves relatively low-gravity rating -- or as non-serious (in which category it deserves rather high-gravity rating). All of which means, in essence, that it lies near the boundary between these categories.

SLING VIOLATION

29 C.F.R. section 1504.81(c) as pertinent here requires double slings on unstrapped dunnage except when hatch size or "deep tank openings" render double-slinging "impractical."

In the present case the evidence establishes that a single sling wrapped twice around but not spread significantly was used to remove one load of dunnage n1 from a hatch large enough for practical use of a double sling.

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n1 Dunnage is loose material, commonly mats or wood, or sometimes cargo items, used in a ship to protect cargo, including material placed (1) on vessel flooring on which cargo may rest to keep it dry, or (2) between containers or [large?] cargo items to prevent motion, or (3) to keep cargo from the hull, or (4) to facilitate drainage [ Wyborski v. Bristol City Line . . ., 191 F. Supp. 884, 891; Capuccio v. Barber & Co., 148 F. 473, 476; The Indien, (9 Cir.) 71 F. 2d 752, 756; Great Western Insurance Co., v. Thwing 80 U.S. 672, 20 L. Ed. 607; Richards v. Hansen, TF. 54, 56; Butler Motor Co. v. Atchison, Topeka, and Santa Fe Railway Co., 272 F. 683, 684].

It is part of the seaworthiness of a vessel and is the owner's obligation to provide as "reasonably fit for its intended purpose." Hurst v. Central Gulf S.S. Corp., 267 F.S. 65, 68.

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Despite some conflicts, the evidence makes occurrence of a violation of this regulation reasonably clear.

The evidence conflicts on the identification of the hatch from which the single-slung dunnage was discharged. Regardless of that, the contestant presented testimony supporting such an occurrence. Despite the reference in the original charge, which amounts to a pleading, the contestant is not misled or prejudiced in any way by permitting amendment of that pleading to conform to proof, if the hatch proves to be a different one. To require a new proceeding to resolve the matter would merely result in a multiplicity of administrative proceedings without commensurate gain (F.R.C.P. Rule 15). (Under the circumstances a new charge, if a strict view treating the evidence as requiring a separate charge were to prevail, would be reasonably prompt under 29 U.S.C. section 658). Contestant has presented evidence as to the load of dunnage which its witnesses testified came from Hatch No. 2. Even if there was no other dunnage load than they mentioned (if, e.g., the other winch operator took it up), contestant has not been surprised or deprived of opportunity to defend.

The only danger would be a new attempt to impose an additional charge for the same offense. To avoid that possibility and wind the matter up without excessive litigation, it is appropriate here to find a violation where one is established and hold that any new charges of violation arising from the same inspection under the same regulation are hereafter barred.

As counsel points out, a mere citation is not proof or even evidence of an offense. The testimony of witnesses, including the inspector, may constitute such evidence. The inspector's testimony to what he saw, noted, and remembered is more convincing than the winch driver's testimony of what he did not remember seeing.

The walking boss' testimony is more persuasive than the winch driver's recollection, but in view of the nature of the duties of inspector and walking boss, the detail of a supposed violation appears more likely to be recalled by the inspector. That would appear to be his primary function, and to draw his primary attention. He made a writing relating to it within a few days (the citation), while no other record is shown by the evidence to have been made. The walking boss has other duties which may distract his attention. He is likely to be more concerned with type of cargo, getting the job done promptly, and such matters apart from safety regulations.

A powerful impetus to the assignment of essentially adjudicatory tasks to new administrative agencies rather to traditional courts, from the advent of chancery to creation of this Commission, is the tendency of long-existing agencies of every type to become hide-bound in unnecessarily intricate technicalities which, despite their origin as rational aids to fairness, have developed irrational applications as mere obstructions to resolve issues. The courts themselves have begun to repair this defect. Amending pleadings to conform to proof is now liberally permitted where it does not make defense infeasible. In the present case, amending the citation, which amounts to the first pleading, analogous to complaint or petition, to specify Hatch No. 2 rather than Hatch No. 1, does not surprise or prejudice contestant. The record is clear that from early in the proceeding contestant's counsel expected to show, and contends in effect that it did later show, that the very violation which the inspector perceived actually occurred at Hatch No. 2 rather than at No. 1. A further citation and hearing on that issue would not serve the ends of justice.

On the other hand, the Secretary's argument that there may well have been three violations rather than one could be asserted on the basis of the evidence, but if so is not fully material and not fully proven. More likely all three are different recollections of the same event -- a common-enough courtroom experience. In any case, it seems clear that at least one violation occurred, that the contestant was aware of it at the time of the inspection and thereafter, that the inspector observed it, and that the contestant was aware from the citation, notice of proposed penalty, and its knowledge of the violation to what violation the citation and notice were intended to refer.

Whether this violation occurred at Hatch No. 1 or No. 2 is not crucial, since the contestant seems to have been aware of the violation. If one other uncited violation occurred earlier, that is not really sufficiently material to justify taking enough evidence to permit its rational use in determining good faith or other use, and a separate charge on that basis is not likely to relate to the event seen by the inspector. Taking up an earlier asserted violation in this proceeding in the absence of stipulation would be improper.

A later violation on the same day, accomplished by the same persons would certainly be material to the matter of good faith and prompt correction in computing the penalty. A later lifting of a dunnage load is shown without banding. The record does not establish, however, that this later dunnage load had only one choker. The Secretary gave full credit on correction and good faith, and the contestant does not contest this. This possibility of other violations therefore really adds nothing of value to the determination of the matter.

NON-SERIOUS-VIOLATION PENALTY COMPUTATION

The Secretary's method of computing penalties for non-serious violation essentially consists of the following steps:

(1) counting the number of violations of any particular safety standard;

(2) determining from the result of step (1) whether the employer has a good, fair, poor, or no system for controlling the particular hazard;

(3) fixing a "base" or "unadjusted" penalty range for each of the categories of step (2), calling them "gravity of violation by system or type;"

(4) selecting as the precise "base" or "unadjusted" penalty, a sort of preliminary figure, within the specified range, by evaluating:

(a) The obviousness of the violation;

(b) The probability of injury;

(d) The number of employees exposed to the hazard involved;

(5)-(7) reducing the "unadjusted," "base," or "preliminary" penalty by up to 20% for good faith, 20% for history, and 10% for size, in the same manner and by the same standards used for serious violations, and

(8) allowing (or denying) an "abatement credit" of half the result of all these computations for abatement within the time allowed.

The considerations used by the Secretary in evaluating the penalty for the violation of 29 C.F.R. section 1504.81(c) are rational, simple and uniform, inclusive of the elements intended by Congress, and not excessive in their application to this case. It is concluded that this penalty should stand undisturbed.

"Prompt correction" seems a dubious category for a single-event violation, but this perhaps overly generous element is counter-balanced by starting at $50 as the basic or "unadjusted" figure because of its use in the form, when the Secretary's guide-line intended use of a judgment figure between $50 and 0 for this unadjusted category. It is not clear that this judgment was actually exercised, or that the existence of this delegated discretion was recognized.

It might also be argued that the method of using experience with the employer's "system" as a criterion of "gravity" rather than of "history" is misplaced, yet gravity may perhaps depend on history, and using the proper heading is less important than evaluating the proper criteria.

On the whole, the penalty appears a little low, but at the beginning of a new program that objection does not seem serious. It is concluded that the Secretary's guidelines for non-serious violation penalties is not irrational; was applied reasonably well but with illogical aspects in this case; that the resulting penalty, independently analyzed, is not excessive; and that the penalty should not be disturbed.

PRELIMINARY ORDERS

The transcript is corrected as follows:

at-page,	line	from	to
3	12	Lawyer	Employer
20	20	toward ship	athwartship
67	5	and the	under the

Manual instruction pages XII-35 through XII-44, inclusive, are received together, a total of nine pages, as Exhibit C.

III

The Secretary's motion to reopen the hearing to receive additional evidence is denied.

FINDINGS OF FACT

After careful examination of the entire record, the facts are found as set forth below.

1. On June 28, 1971, the United States Secretary of Labor issued to the contestant two citations alleging violations of the Occupational Safety and Health Act of 1970, aboard the cargo ship Maria Carla d'Amico at Terminal 2, Portland, Oregon, viz.:

(a) a serious violation of 29 C.F.R. section 1504.43(e), by working employees beneath an unlocked beam; and

(b) a non-serious violation of 20 C.F.R. section 1504.81(c), by discharging dunnage with one choker sling where two slings could have been used.

2. The foregoing citations were issued after and consequent on the inspection mentioned below in Finding Paragraph 8.

3. On June 30, 1971, the Secretary notified the contestant of the proposed civil penalties of $600 for the violation of section 1504.43(e) and $15 for the violation of section 1504.81(c).

4. The contestant on July 1, 1971, notified the Secretary that it intended to contest both the citations and the proposed penalties.

5. The matter was heard without further pleadings on July 30, 1971, a date acceptable to all counsel, at Portland, Oregon, before the undersigned hearing examiner; further evidence has been submitted and received as requested by contestant; motions have been made; written argument, proposed findings, conclusions, order, and decision offered; all matters taken under submission; and certain rulings hereinbefore made.

6. No affected employees or representatives of such employees offered to participate in the proceeding on their behalf, although given an opportunity to do so (Tr. p. 7).

7. Contestant was an employer of employees working at the premises mentioned in Finding Paragraph 1 at the time of the inspection mentioned in that finding, as the words "employer", "employee," and "inspection" are used in the named Act.

8. On June 24, 1971, an inspector on behalf of the United States Secretary of Labor inspected a place of employment aboard the ship Maria Carla d'Amico moored at Terminal 2, Portland, Oregon.

9. At the time of the inspection, mentioned above, the contestant employed and worked employees in, under, and around the hatches on the said ship, under the direction of contestant's employed supervisory personnel.

10. Contestant Portland Stevedoring Company on June 24, 1971, was an employer engaged in commerce within the meaning of those terms "employer" and "commerce" as used in the Occupational Safety and Health Act of 1970.

11. Affected employees are members of the International Longshoremen's and Warehouseman's Union Local No. 8.

12. Affected employees were engaged in long-shoring operations, unloading cargo and dunnage from the above-named vessel on June 24, 1971, at the time of the inspection mentioned above.

13. The work in progress generally was discharge of the ship's cargo consisting of boxes of solid pre-slung marble, by hoisting them out of the hold through the hatchway at under one foot per second on their own slings suspended on a hook, which in turn hung on a cable from a boom and was moved and controlled by an electric winch.

14. A beam in the upper tween deck rested horizontally across the hatchway. Though designed to be secured to the coaming by bolting, it was not bolted, locked, or otherwise secured, but merely rested with its tapered ends between guides called "keeps" or "keepers."

15. Contestant employed and worked at least three employees under this unlocked beam.

16. The loads passed about eight feet from the unlocked beam mentioned above, the hood bearing the loads within about fifteen feet from the beam. To dislodge the beam, its end would have to be raised a little over four to six inches.

17. The loads were suspended from a swiveled hook, permitting circular turning of the load around a central axis, and the hook in turn was suspended on a cable, which permits substantial athwartship (and small fore-and-aft) swinging.

18. Substantial probability of horizontal rotary motion existed.

19. The potential for circular turning coupled with the regular vertical motion of a long load, such as dunnage, created a substantial probability of dislodgment of any unlocked beam within reach.

20. The probability was high that a dislodged beam could fall, that such a fall could seriously injure a workman below, and that such a fall could fatally injure an employee working below.

21. At the time of inspection the load was not swinging. The nature of the cargo and location of the rigging discouraged swinging.

22. The beam weighed on the order of half a ton.

23. The dropping of the bare hook to pick up more cargo was not likely to dislodge the beam.

24. Substantial probability existed that death or serious physical harm could result from the condition described in Finding Paragraphs Nos. 14-23 inclusive.

25. Before the inspection, but on the same day, contestant's employees charged with responsibility for latching the beam had noticed that it was not latched on the side facing them. They then contacted the ship's mate to obtain proper locking bolts. The mate -- not contestant's employee -- informed them that "the beam was locked from the back side . . ." The beam was designed to lock with a bolt through the beam end and both beam keepers, but did not have such a bolt. The mate implied use of a sliding bolt.

26. The contestant later learned that in fact the beam was not secured, obtained the necessary bolts, inserted one, delayed inserting the second long enough to find a device to lever the beam into a position in which the other bolt would fit, a total of several minutes. The locking had begun when the inspection occurred, and was completed soon after the inspection.

27. The contestant with reasonable diligence should have known of the unlatched beam, but in fact did not know that the mate's statement was in error until past the middle of the shift.

28. The contestant discharged a load of dunnage slung with only a single choker.

29. The dunnage consisted of "a considerable" number of pieces of lumber about twelve feet long.

30. At the time of the discharge of dunnage, the contestant employed and worked three employees in the hold under the hatch through which the dunnage mentioned in the preceding paragraph was discharged.

31. These men also were generally under the unlocked beam mentioned above.

32. The choker was a wire or cable wrapped in a vertical plane entirely around, and cinched down firmly to the entire outer bundle circumference, of the horizontal dunnage bundle. This choker, also known as a wire sling, was wrapped twice around the bundle but the wraps were not spread significantly.

33. The dunnage was not strapped.

34. The inspector saw the dunnage, as did some of contestant's responsible employees. The contestant was aware of the nature of the dunnage charge and of the event to which reference was made sufficiently to prepare for the hearing.

35. Use of two slings was practical and feasible. The hatchway opening was large enough to permit vertical passage of dunnage 14 feet long suspended in the horizontal plane.

36. The use of a single choker, in the inspector's experience, sometimes led to sliding of dunnage pieces out of the bundle, thus presenting the danger of injury to workmen below.

37. The contestant was aware of the condition and method, mentioned in Finding Paragraphs 28-36 inclusive, when the condition and method first occurred.

38. The condition mentioned in Finding Paragraphs 28-37 inclusive created a substantial probability of significant injury from boards sliding from the middle of the load.

39. The inspector mentioned above advised the walking boss that the two conditions mentioned in Finding Paragraphs 14 and 28 above constituted violations of the Act. The walking boss agreed to correct them.

40. The beam had been unlocked during about 4 1/2 hours of work. Only a few loads of dunnage were removed.

41. The beam was unlocked (and the dunnage was moved) adjacent to a section through which cargo passed and adjacent to where employees worked unloading ship cargo.

42. The cost of checking and correcting the unlocked beam situation would have been less than three dollars.

43. The beam was locked soon after the inspector noted its unlocked condition.

44. The period of exposure to risk from the single strapped dunnage was quite brief.

45. The contestant employed from 16 to 150 workmen at any given time, but did not present evidence on the number employed on the day of the inspection. It employed 500,000 man-hours annually.

46. At the time of the inspection, mentioned above, the conditions described in Finding Paragraphs 9-44 inclusive existed at the place of employment mentioned above.

47. The Secretary computed the proposed penalties pursuant to a guide as follows:

(a) For the unlatched beam:

(1) On the ground that the violation was serious, starting from $1000;

(2) The Secretary applied a 20% reduction for good faith and

(3) 20% again for lack of previous violations during the history of the Act; but

(4) No reduction for size, on the ground that the contestant employed over 100 employees,

(5) Arriving at $600

(b) For the single-slung dunnage:

(1) On the ground that the violation was in the lowest category of seriousness, the Secretary started with $50, the base amount of the lowest category for seriousness;

(2) Reduced this amount 20% for good faith;

(3) Reduced it another 20% (of the selected base) for history;

(4) Made no reduction for size; and

(5) Reduced the remainder in half on the contestant's representation that the dunnage violation would not be repeated,

(6) Arriving at $14.

48. The $50 category was used because the Secretary regarded the contestant's (safety?) system as generally a good one.

49. The Secretary's guidelines in pertinent part are as shown in Appendices I and II immediately following these findings.

50. With respect to the unlatched beam:

(a) The gravity of the violation was high enough to be "serious," but in the lower range of "serious" violations, in view of the degree of probability of accident under the circumstances;

(b) The contestant's good faith was rather high, but inspection was not as careful as the degree of danger warranted.

51. With respect to the single-slung dunnage load:

(a) The gravity of the violation was relatively low, because of the limited period of exposure, limited weight of objects involved, and limited number of persons endangered, as well as the factors considered by the Secretary;

(b) The contestant's good faith is not shown to be defective.

52. The size of the company was such that:

(a) The penalties here involved are cumulatively not likely to affect its ability to stay in business;

(b) The problems of control of management, extensive places of work, and activities are significant;

(d) The maximum penalty is not likely to be required to secure compliance in cases of comparable severity with this company in the future.

53. The parties were not prejudiced by any procedural defects of this proceeding, were adequately prepared to go to hearing, and did so.

CONCLUSIONS OF LAW

1. Portland Stevedoring Company is an employer within the meaning of the Act.

2. On June 24, 1971, the employer violated Section 5 of the Occupational Safety and Health Act of 1970 (29 U.S.C. section 654) by violating 29 C.F.R. sections 1504.43(e) and 1504.81(c) as adopted by reference by 29 C.F.R. section 1910.16.

3. The first mentioned of these two violations constituted a serious violation.

4. The administrative guidelines for penalty determination do not appear to cover fully all the factors, elements, and principles of their application in accordance with the intent of Congress for serious violations.

5. The proper penalty, independently appraised and assessed according to the principles described herein, is $235 for the serious violation, $15 for the remaining violation.

6. In the exercise of due diligence the contestant should have known of the unlocked beam.

7. The Secretary should be, and is, barred from citing the same contestant for any further violation of 29 C.F.R. section 1504.81(c) alleged to have occurred on the same ship mentioned above, on June 24, 1971, at either Hatch No. 1 or Hatch No. 2, unless this order shall hereafter be modified or set aside.

ORDER

It is therefore hereby ORDERED:

1. The citations of the Secretary of Labor are both affirmed.

2. Contestant has violated 29 C.F.R. section 1504.43(e), an occupational safety standard under The Occupational Safety and Health Act of 1970.

3. The violation is serious.

4. The proposed penalty for the violation mentioned above is modified.

5. The penalty for the violation mentioned in Order Paragraph 2 is fixed at $235.

6. Contestant has violated 29 C.F.R. section 1504.81(c), an occupational safety standard under the Occupational Safety and Health Act of 1970.

7. The violation mentioned in Order Paragraph 6 is non-serious.

8. The proposed penalty for the violation last mentioned above is modified as to reasoning but affirmed as to result.

9. The penalty for the violation last mentioned above is fixed at $15.

10. The contestant shall pay the stated civil penalties, totalling $250, to the Secretary within 10 days after this Order becomes final.