NORTHEAST STEVEDORING CO., INC.
OSHRC Docket Nos. 642; 696 (Consolidated)
Occupational Safety and Health Review Commission
November 6, 1974
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Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: VAN NAMEE
OPINION:
VAN NAMEE, COMMISSIONER: This matter is before the Commission on Chairman Moran's order directing review of a decision made by Judge Joseph Chodes. Judge Chodes found that Respondent had failed to adequately secure pontoons located on two of its ships and thus had committed serious violations of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq. ) by failing to comply with the standard published at 29 C.F.R. 1918.46(e). Respondent was assessed with a civil penalty of $800 for the violation on the S/S Socrates (Docket No. 696).
The direction for review raised the issue whether, as to the violation on the Socrates, Complainant's evidence supported the finding of a violation. We have reviewed the entire record and find no prejudicial error in the Judge's decision. Two pontoons located in a hatch on the Socrates were lashed by 3/8 inch sisal rope to pad eyes. The parties presented conflicting evidence on the question of whether the lashing was sufficient to adequately secure the pontoons against accidental displacement. In deciding the issue contrary to Respondent's [*2] position Judge Chodes relied on the testimony given by Complainant's witnesses. His decision thus is founded on a credibility determination, and it will not, therefore, be disturbed on review.
Accordingly, it is ORDERED that the decision of the Judge be and the same is hereby affirmed.
CONCURBY: MORAN (In Part)
DISSENTBY: MORAN (In Part)
DISSENT:
MORAN, CHAIRMAN, concurring in part, dissenting in part: Although I am in agreement with the disposition of the charges involving the S/S Hermes, I believe that complainant did not sustain his burden of proof on the S/S Socrates charge.
At issue was whether rope being used to tie pontoons to the ship was strong enough to prevent them from being shaken loose thereby creating a possible occupational hazard. Complainant alleged that it was not strong enough because not suitably "locked." Such a determination would seem to be capable of resolution with mathematical precision. Yet all this case produced was the opinions of non-experts as to what they thought about the rope's strength and the need for a locking device. This is an insufficient basis for a legal judgment.
The S/S Socrates citation is based on 29 C.F.R. § 1918.43(e), which provides in [*3] pertinent part as follows:
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 . . . .
There were three pontoons placed side by side on one of the decks of the S/S Socrates. They were adjacent to a hatch section through which respondent's employees were working cargo. Complainant charges that respondent was not in compliance with the foregoing standard because it failed to engage the "locking bolts" on the lead pontoon despite the fact that it did attempt to otherwise lash and secure the pontoons.
There is no specific requirement in § 1918.43(e) that "locking bolts" or any other particular method be employed for fastening beams and pontoons. The standard states very generally that they may be "lashed, locked, or otherwise secured," so as to prevent accidental displacement. Respondent contended that it met that requirement by tying the lead pontoon to pad eyes on both the port and starboard sides of the deck with 3/8" sisal rope, and by binding the three pontoons together with 1/2" wire on the offshore side. [*4]
Once an employer contests an alleged violation, complainant then has the burden of establishing by a preponderance of the evidence that a violation has been committed. Secretary v. Armor Elevator Co., Inc., November 20, 1973. The Judge erred in finding that complainant met that burden.
Testimony was given by one of complainant's safety inspectors that sisal rope is generally used for "lashing" and towing. The same officer stated that the 3/8" sisal was inadequate for lashing pontoons, but when pressed by the Judge, offered no factual basis for his opinion.
While complainant's entire argument was based on a claim that the sisal rope used was not strong enough for lashing pontoons, no evidence was presented to substantiate that claim. The sisal in question was intertwined with nine strands of wire. A second inspector employed by complainant testified at length about pure sisal, and drew analogies between the working strength of that type of rope and 3/8" manilla rope, which he felt would have been too weak. There was no testimony offered however upon which a reasonable mind might base a conclusion as to the breaking strength [*5] of wire reinforced sisal. When questioned about the effect of intertwining the rope with wire, the inspector who admittedly possessed no expertise in judging the strength of either rope or wire, stated only that he "didn't think it adds any strength" [emphasis supplied].
Aside from his failure to indicate the actual strength of the lashing used by respondent, complainant neglected to establish what effect the wire binding employed by respondent had on the force necessary to displace the pontoons, or what strength lashing is required to secure them in order to be in compliance with the standard. The sufficiency of any particular method of lashing, absent some evidence specifically indicating the inadequacy of that method, remains entirely speculative.
The Judge erred in finding that the complainant met his burden with that evidence. Speculative evidence does not meet the requirements of section 7(c) of the Administrative Procedure Act, n1 which requires agency orders to be supported by ". . . reliable, probative, and substantial evidence."
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n1 5 U.S.C. § 556(d)
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This is no credibility question. It's a clear case of failure to sustain the burden of proof.
[The Judge's decision referred to herein follows]
CHODES, JUDGE: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereafter called the Act), in which the Respondent is contesting two Citations issued by the Complainant against the Respondent under the authority vested in Complainant by Sections 9(a) of the Act.
Initially proceedings were instituted separately for each Citation, but the cases were consolidated by order of Judge Ben D. Worcester, dated May 4, 1972.
The Citations alleged that as a result of inspections of workplaces under the ownership, operation or control of the Respondent located at the Pier at 39th Street, Brooklyn, New York, on board the S/S Hermes and the S/S Socrates, the Respondent has violated Section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.
The Citations were issued on February 29, 1972 and on March 13, 1972, [*7] pursuant to Section 9(a) of the Act and alleged that the violations resulted from failure to comply with a standard promulgated by the Secretary and codified in 29 Code of Federal Regulations. Specifically, the Citations charged violation of 29 CFR 1918.43(e) which provides in pertinent part that
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.
Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, the Respondent was notified by letters dated February 29, 1972, and March 13, 1972, from Nicholas A. DiArchangel, Area Director of the New York area, Occupational Safety and Health Administration, U.S. Department of Labor, of proposed penalties for the serious violation alleged to have occurred on the S/S Hermes in the amount of $800, and for the serious violation alleged to have occurred on the S/S Socrates in the amount of $900.
After Respondent contested the enforcement action and Complaints and Answers had been filed by the parties, the cases came on for hearing at New York, [*8] New York, on October 6, 1972, and on October 20, 1972.
FACTS STIPULATED
1. The Respondent is a domestic corporation engaged in stevedoring operations which affected interstate commerce (T-5).
2. Respondent is a company of modest size as compared to other stevedoring companies in the Port of New York (T-8).
3. Respondent was properly served with the Citation and Notice of Proposed Penalty in each of the consolidated cases (T-7).
4. At all times material to the two cases herein, the Pier at 39th Street, Brooklyn, New York, was under the control of the Respondent and the longshoremen working in the holds of the S/S Hermes and S/S Socrates were employees of the Respondent (T-7).
Violation Alleged on the S/S Hermes
On February 28, 1972, J. Francis Morse, a compliance officer of the United States Department of Labor, Occupational Safety and Health Administration, made an inspection of the vessel S/S Hermes at the 39th Street Pier, Brooklyn, New York. He found that in hatch Number 4, there was an unsecured tween deck pontoon in the aft section of the hatch square adjacent to the section through which drafts of empty pallets were being taken out (T-32). The pontoon was about [*9] a half foot thick, five feet wide, eighteen feet long and weighed about a ton. The distance between the tween deck and the main deck was approximately twelve feet. The distance from the tween deck to the bottom of the hatch was approximately ten feet. There were eight men in the hatch, half of them were in the hold below and slightly forward of the pontoon, hooking up with sling wires empty pallets for hoisting out of the hatch. The other four men were on top of a stow of pallets approximately at the height of the tween deck. The drafts of pallets were being slung up on married cargo falls, that is, on two booms or derricks each equipped with a wire or cargo runner working together. One boom was over the hatch area and the other over the side of the ship. The wires ran out and down into the hatch and joined together at a point (point of juncture). The cargo was brought up from the hatch then pulled across the vessel and down on the deck (T-15-29 and T-64).
Mr. Morse testified (T-30, 31) that in operating rigging similar to the type in use on the S/S Hermes, the cargo runner goes up and down but there is also a pendulum motion fore, aft, and sideways, and also a spinning [*10] motion. In hoisting pallets adjacent to the edge of the unsecured pontoon, the cargo runner and associated gear (the juncture of fall, the shackle ring, the hook, slings, wires and the cargo) could pick up the pontoon as high as sixteen feet or more and drop it down into the area where the employees were working (T-36).
Mr. Morse also inspected the Number 1 hatch on the S/S Hermes and found two unsecured pontoons adjacent to where the cargo was being worked. The pontoons were similar to the unsecured pontoon found in the Number 4 hatch. There were eight men working in the hold, four were against the aft unsecured pontoon and handling cases being loaded into the vessel and the other four were about six feet forward of the aft pontoon. There was cargo in the lower hold to the level of about five feet below the unsecured pontoons. The open hatch area was about fifteen feet by ten feet. The cargo runner was about two feet from the aft pontoon. The men were finishing the loading of cases into the "hole" near the aft pontoon (T-37-46).
It is not disputed that on the S/S Hermes the pontoon on the aft side of the Number 4 hatch and the pontoons on the aft and forward side of Number [*11] 1 hatch were not secured. In the ends of the pontoons there were built in sliding bolt type locks about 2-1/2 inches thick that slid towards the side of the ship and engaged the solid structure (T-32). The Number 4 hatch pontoon was made secure by the compliance officer who slid the locks, one on either side, in place. This was not done with the pontoons in the Number 1 hatch as the locks were frozen (T-49).
There was some variance in the testimony with respect to the location of the cargo and the workmen in the holds. Mr. Morse testified that in Number 4 hatch on the S/S Hermes the men were working against the material stowed underneath the unsecured pontoon (T-91). With respect to the Number 1 hatch cases of unequal size were stowed fore and aft with a "hole" where there was room for the last remaining cases to be stowed. The free space was about five feet in depth, the width of the hatch (about 18 feet) and eight feet forward. The area was not level, but sloped. The men working in the hatch were standing on the cargo and had to push the cases into place and then crawl under the pontoons to get out of the way of the cargo runner. There was sufficient room under [*12] the pontoons for a person to stand in a stooped position (T-103). Mr. Ron Yortes, an investigator for the Royal Netherland Steamship, who was present on board the S/S Hermes when it was being inspected, testified that the cargo in Number 4 hatch was stowed up to the pontoon and projected about five feet from the pontoon. In the Number 1 hatch, Mr. Yortes testified that the cargo was stowed beneath the pontoons, higher on the offshore side to about three feet below the pontoons on the inshore side. Mr. Yortes further testified that the cargo was being loaded by a hook wire sling and that there was no substantial probability that the cargo hook or the gear would unship the pontoon (T-360, 361, 368-372).
Violation Alleged on Board the S/S Socrates
On March 9, 1972, compliance officer Morse made an inspection on board the S/S Socrates and found that in Number 4 hatch the leading pontoon on the tween deck, the one adjacent to the section through which cargo was being worked, was not secured in that the locking bolts on the pontoon were not engaged. However, on the offshore side of the leading pontoon and the two other pontoons placed alongside, there was a 1/2 inch wire holding the [*13] three pontoons together. Additionally, the leading pontoon was tied to a pad eye on the tween deck by a 3/8 inch sisal rope on both the port and starboard sides. At the time of inspection there were eight men loading general cargo utilizing two cargo runners and a Hi-Lo. There was also a supervisor in the hold taking carbon monoxide tests. The cargo was going over the main deck of the ship, through the hatch opening and down to the hold. The distance from the cargo runner to the adjacent pontoon was about ten feet. From the tween deck to the floor of the hold was about ten feet. After the inspection the locking mechanism was put into position (but with some difficulty as the lock was frozen) and the pontoon made secure (T-282-287, 298).
Mr. Morse testified that the sisal rope was definitely not adequate to secure the pontoon. He also testified that while the 1/2 inch wire did secure one side of the three pontoons together, it did not prevent the pontoon adjacent to the work area, from accidentally falling down into the work site. An additional hazard was present because of the possibility that cargo picked up by the Hi-Lo could dislodge the pontoon (289-292). [*14]
Edward Sealman, a stevedore superintendent of the Respondent, testified that the pontoons on the S/S Socrates were secured as described by Mr. Morse, but that additionally the adjacent pontoon was lashed to a ladder by sisal rope (T-404, 405). Photographs taken by Mr. Sealman shortly after the inspection (Exhibits R 2 through R 11, particularly R 3) show how this was accomplished. Mr. Sealman further testified that he saw no probability that the leading pontoon would be unshipped because the lashing of the pontoon was adequate to prevent the pontoon from moving (T-415).
Mr. Sealman's testimony that the adjacent pontoon on the S/S Socrates could not be dislodged was supported by the testimony of Nick Alliotta, a foreman of the Respondent (T-431).
Discussion Regarding Proof of Violations
The import of the testimony produced by the Complainant is that an unsecured pontoon can be dislodged by the cargo hook, the draft of cargo or other parts of the hoisting apparatus. This has occurred in the past and there was a substantial probability that it could happen under the circumstances existing when the vessels were inspected. The hazards were the same with respect to the pontoons on [*15] both the S/S Hermes and the S/S Socrates with respect to the hoisting apparatus. Additionally, with respect to the S/S Socrates there was the hazard arising out of the operation of a Hi-Lo in the lower hold beneath the pontoons.
The Respondent maintains that even though the pontoons in both hatch Number 4 and Number 1 on the S/S Hermes were unsecured, this did not constitute a serious violation of 29 CFR 1918.43(e) because, in the language of Section 17(k) of the Act, there was not "a substantial probability that death or serious physical harm could result" from the violation. n1 The Respondent produced evidence to show (1) that there was not a substantial probability that an accident would happen and (2) that if an accident did occur there was not a substantial probability that it would cause death or serious physical harm. The Respondent contends that because of the makeup of the cargo carrier, which included a cargo hook that was so formed as to make it extremely unlikely that it could hook into anything, it was not possible and certainly not probable, for an unsecured pontoon to be dislodged. Moreover, because of the proximity of the cargo to the pontoons and [*16] the position of the Respondent's employees, it was impossible for the pontoon to become dislodged so as to endanger the Respondent's employees.
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n1 This section also provides that if the employer "did not, and could not with reasonable diligence, know of the presence of the violation" a serious violation is not established. However the Respondent did not contend that it was unaware of the violation and the evidence establishes that supervisory personnel were on the job at the time the violations were observed by the compliance officer.
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In the opinion of the Judge, the evidence establishes that there was a substantial probability that an accident could occur which would dislodge the unsecured pontoons under the circumstances established in these cases. Admittedly, the probability of an accident occurring is less substantial over a short period of time, as for example, during the inspection. However, in the light of the expressed purposes of the Act to assure so far as possible every working man and woman in the Nation [*17] safe and healthful working conditions by reducing the number of occupational safety and health hazards (see Section (2)(b)(1)) it is necessary to consider the probability of an accident occurring over an extended period of time. The purpose of the Act is to protect employees during their working hours and not only when an inspection is made by the compliance officer. The evidence is clear that accidents involving unsecured pontoons have happened in the past and there was a substantial probability that it could happen under the circumstances shown to exist in these cases. Commissioner Burch, in a concurring opinion issued on February 8, 1973, in the case of the Secretary v. Baltz Brotners Packing Company, possibility of an accident occurring is all that is required for a violation to be considered serious under the definition given in Section 17(k) of the Act, assuming, of course, that if an accident did happen, death or serious injury could result. There is no question in the mind of the Judge that if a pontoon is dislodged, death or serious injury could result.
There was quite a bit of testimony (T-348-356) concerning [*18] the strength of 3/8 inch sisal and whether sisal rope as used to lash the adjacent pontoon on the S/S Socrates would prevent the pontoon from being dislodged and thereby causing injury to the employees engaged in the loading of cargo. The evidence established that sisal rope is not as strong as manila rope and that 3/8 inch manila rope has a safe working load of 270 pounds, per Table G-1, in 29 CFR 1917.68. There was inter-twined with the sisal rope nine separate strands of wire, but it is not shown that this made a material difference in the strength of the rope. Mr. Snowden testified (T-342, 343) that the wire strand would not add materially to the strength of the sisal rope. Should an accident occur, the sisal rope was not of sufficient strength to prevent the pontoon, which weighed about a ton, from being displaced.
The pontoons used on the S/S Socrates had locking devices especially made to secure them against accidental displacement. Rather than improvise the securing of the pontoons with wire and rope, the Respondent should have taken whatever action was necessary to "unfreeze" the locks and put them to the use for which they wers intended.
Respondent has challenged [*19] the constitutionality of the Occupational Safety and Health Act. In a decision by Judge Kennedy ( Secretary of Labor v. Engstrum and Nourse, Docket No. 74) recently affirmed by the Review Commission, the Judge stated that "It is well established that an administrative body is without authority to pass on the constitutionality of a statute which it is called upon to administer" citing cases. It would appear, therefore, that the Respondent should exhaust his administrative remedies and, if he desires, have the question of constitutionality determined by the courts.
Penalties
The Complainant proposed a penalty of $800, for the alleged serious violation on board the S/S Hermes. This determination was made by Nicholas A. DiArchangel, the Area Director of the New York office of the Occupational Safety and Health Administration who testified that because of the exposure of workmen under the pontoon and the ease with which an unlocked pontoon could be dislodged by the cargo hook, loaded or unloaded, repeatedly passing the pontoon. He knew of several persons who had been killed in this type of accident and knew of others because of his association with the waterfront. [*20] Mr. DiArchangel made the determination that the alleged violation was serious involving a substantial probability that death or serious injury could result (T-180-183).
For a serious violation the unadjusted penalty proposed by the Complainant under its guidelines is $1000. In assessing the penalty, consideration is given to the size of the Respondent's business, its good faith and the history of previous violation. No allowance was made in the instant case for the size of the Respondent's business because, under the Complainant's guidelines an employer with 100 or more employees did not receive a credit for this favor. An allowance of 20% is permissible for "good faith," which includes such matters as the existence of a safety program, how it is implemented and its effectiveness, but only 10% was actually allowed because, even though the Respondent had a safety program (T-376), the Respondent's safety program was not felt to be effective. A reduction of 10% out of a possible 20% was allowed for history of prior violations because on June 17, 1968, and on February 21, 1969, the Respondent had been cited for violations of safety and health regulations for failure to lock or otherwise [*21] secure tween deck hatch beams left in place adjacent to sections through which cargo was being worked (Exhibits C-2 and C-3). The Respondent objected to the admission of evidence pertaining to violations of safety regulations which occurred prior to the enactment of the Occupational Safety and Health Act of 1970. However, as was recently held in the case of the Secretary v. John T. Clark and Sons of Maryland, Inc.,
The Complainant also introduced evidence (over the objection of the Respondent) concerning the accident frequency rate of the Respondent in relation to other stevedoring firms in the New York area which tended to show that the Respondent's accident frequency rate was greater than for the industry generally, over the period from 1962 to 1970 (Exhibit C-4).
In view of the evidence of previous violations by Respondent of safety standards which, if not identical with the standard involved in the instant case, were similar in nature, it is considered that the Complainant's allowance [*22] of a 10% reduction in the proposed penalty was appropriate. The Respondent's accident frequency rate in relation to other stevedores may quite possibly be related to "violations" as that term is used in the Act, but this was not established by the evidence. Consequently, this evidence was not considered by the Judge in assessing the penalty.
Once a Notice of Contest is served, the authority to assess the penalty resides exclusively with the Commission. The Judge accepts as appropriate the criteria utilized by the Complainant and the assessment of a proposed penalty of $800, for the alleged violation on the S/S Hermes. However, with respect to the S/S Socrates, the Complainant did not take into consideration the efforts made by the Respondent to secure the pontoon to the tween deck. Even though the securing of the pontoon is held not to satisfy the requirements of 29 CFR 1918.43(e), nevertheless, the Respondent made a good faith effort to secure the pontoon and thereby protect its employees. Certainly, the lashing of the pontoon with sisal rope and the tying down of one side of the pontoon with wire rendered the degree of probability of injury less likely, and thus affected [*23] the gravity of the violation. The Judge is of the opinion that a penalty of $500, would be appropriate for the violation on board the S/S Socrates, taking into consideration all the factors heretofore mentioned.
FINDINGS OF FACT
On the basis of the Citations, Notices of Proposed penalties, Notices of Contest, pleadings, admissions, stipulations, the testimony adduced at the hearing and the representations of the parties, it is concluded that on the record as a whole, substantial evidence supports the following findings of fact:
1. Respondent is a domestic corporation of the State of New York, engaged in stevedoring operations. Much of the equipment and supplies used by Respondent is manufactured outside the State of New York and much of the cargo handled by the Respondent moves in international commerce.
2. Respondent is a company of modest size as compared with other stevedoring companies in the Port of New York.
3. As a result of an inspection of the vessel S/S Hermes at the Pier at 39th Street, Brooklyn, New York, on February 28, 1972, the Complainant issued to the Respondent a Citation for serious violation of 29 CFR 1918.43(e).
4. On February 29, 1972, the [*24] Respondent was notified by the Complainant of a proposed penalty of $800, for the serious violation alleged in Paragraph (3) above.
5. As a result of an inspection of the vessel S/S Socrates at the Pier at 39th Street in Brooklyn, New York, on March 9, 1972, the Complainant issued to the Respondent a Citation for serious violation of 29 CFR 1918.43(e).
6. On March 13, 1972, the Respondent was notified by the Complainant of a proposed penalty of $900, for the serious violation alleged in Paragraph (5) above.
7. On the dates of inspections, to wit, February 28, 1972, and March 9, 1972, the Pier at 39th Street, Brooklyn, New York, was under the control of the Respondent and the individuals working in the holds of the vessels S/S Hermes and S/S Socrates were employees of the Respondent.
8. On March 9, 1972, the Respondent filed with the Complainant a notice of intent to contest only the proposed penalty referred to in Paragraph (4) above. By order of a Judge of the Occupational Safety and Health Review Commission dated May 4, 1972, the Respondent was permitted to amend its Notice of Contest to show that it also contested the alleged violation referred to in Paragraph (3) above. [*25]
9. On March 28, 1972, the Respondent filed with the Complainant a notice of intent to contest the Citation and proposed penalty referred to in Paragraphs (5) and (6) above.
10. On February 28, 1972, the Respondent, utilizing eight men was unloading pallets from Number 4 hatch on board the vessel S/S Hermes.
11. On the tween deck of Number 4 hatch there was a pontoon adjacent to the aft section through which the pallets were being taken out that was not secured so that it could not be displaced by accident. This was a serious violation of 29 CFR 1918.43(e).
12. On the date referred to in Paragraph (9) above, the Respondent, utilizing eight men was loading a cargo of cases into Number 1 hatch on board the vessel S/S Hermes.
13. On the tween deck of Number 1 hatch there were two pontoons adjacent to the section through which the cargo was being loaded that were not secured so that they could not be displaced by accident. This was a serious violation of 29 CFR 1918.43(e).
14. On March 9, 1972, the Respondent, utilizing eight men and a Hi-Lo, was loading general cargo into Number 4 hatch on board the S/S Socrates.
15. On the tween deck of Number 4 hatch there [*26] was a pontoon adjacent to the forward section through which general cargo was being loaded that was not secured so that it could not be displaced by accident. This was a serious violation of 29 CFR 1918.43(e).
16. Giving due consideration to the size of the Respondent's business, the gravity of the violation, the good faith of the Respondent and the history of previous violations, the appropriate penalty for the violations referred to in Paragraphs (11) and (13) above, is $800.
17. Giving due consideration to the size of the Respondent's business, the gravity of the violation, the good faith of the Respondent and the history of previous violations, the appropriate penalty for violation referred to in Paragraph (15) above, is $500.
CONCLUSIONS OF LAW
1. The Respondent is, and at all times material hereto, was engaged in business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970.
2. The Respondent is, and at all times material hereto, was subject to the requirements of the Occupational Safety and Health Act and the standards and regulations promulgated thereunder, and the Commission has jurisdiction of the parties [*27] and of the subject matter herein.
3. On February 28, 1972, the Respondent, on board the S/S Hermes, violated the Occupational Safety and Health standard cited in 29 CFR 1918.43(e).
4. On March 9, 1972, the Respondent on board the S/S Socrates, violated the Occupational Safety and Health standard cited in 29 CFR 1918.43(e).
5. An assessment of $800, is appropriate for the violation referred to in Paragraph (3) above.
6. An assessment of $500, is appropriate for the violation referred to in Paragraph (4) above.
ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record, it is ORDERED that
1. The Citation issued on February 29, 1972, for serious violation of 29 CFR 1918.43(e) on board the S/S Hermes is affirmed, and the penalty of $800, proposed by the Complainant is affirmed.
2. The Citation issued on March 13, 1972, for violation of 29 CFR 1918.43(e) on board the S/S Socrates is hereby affirmed, the penalty proposed by the Complainant is modified, and a penalty of $500, is assessed.
BATES, JUDGE: The Secretary of Labor, Complainant in the captioned consolidated proceeding, through the medium of a "Request for Certification [*28] Pursuant to 29 CFR 2200.12(c)," (which is herein treated as a motion) initiated his preliminary step towards perfecting an interlocutory appeal from a ruling of Judge Ben D. Worcester. In this ruling, an order dated May 4, 1972, the Judge granted (inter alia) the Respondent's motion to amend its notice of contest, nunc pro tunc, "so as to show denial of the violation of 29 CFR 1918.43(e)."
The Secretary thus petitions the Commission, through the undersigned assigned Motions Judge, to certify in accordance with Commission Rule 2200.12(c) that the aforementioned ruling "involves an important question of law concerning which there is substantial ground for difference of opinion, and (2) an immediate appeal from the ruling will materially expedite the ultimate disposition of the proceeding."
Other than noting in his request or motion that the ruling of which he complains had the effect of "improperly allowing an extension of the statutory time in which to file notice of contest of the citation in the above styled case (Docket No. 642)," the Secretary furnished no grounds, points or authorities supportive of his position and relevant required elements set out in the [*29] Commission Rule, noted immediately above.
Respondent's counsel opposes the request for interlocutory appeal certification, noting that permitting an interlocutory appeal of the ruling in issue would serve to delay rather than expedite the ultimate disposition of the consolidated proceeding, and "which determination if favorable to complainant would moot any 'important question of law' . . . which the Regional Solicitor seeks to have prematurely and unnecessarily decided."
Since no grounds on which the requested certification may be granted (as required by Commission Rule 2200.12(c)) have been shown to exist, and because of my apprehension that granting this initial step of an interlocutory appeal proceedings would operate to delay rather than expedite proceedings which were recently consolidated for the purpose of facility, economy and expedition, I am constrained to deny the Secretary's motion for the certification requested under the aforementioned rule and it is so ORDERED.
WORCESTER, JUDGE: On February 29, 1972, the Secretary issued a Notification of Proposed Penalty and Citation for Serious Violation in the amount of $800.00 involving the S/S Hermes at the 39th Street Pier, [*30] Brooklyn, N.Y., in Docket No. 642. On March 9, 1972, the Respondent filed a letter designated as a Notice of Contest conceding violation of 29 C.F.R. 1918.43(e) but placed in issue the appropriateness of the penalty under the provisions of Section 17(j) of the Occupational Safety and Health Act of 1970.
On April 7, 1972, the Respondent filed an Answer denying this violation and moved simultaneously for leave to amend the Notice of Contest to conform to the pleading on the ground that the Notice of Contest was filed before consultation with counsel.
The Secretary opposes the motion to amend on the ground that more than 15 working days had elapsed after receipt of the Notice of Penalty before the motion to amend was filed and that the citation, therefore, became a final order under Section 10(a) of the Act.
On March 10, 1972, in docket No. 696, the Respondent was alleged to have committed a violation involving the steamship Socrates at the same 39th Street Pier, Brooklyn, N.Y., where the steamship Hermes was berthed involving the same standard, 29 CFR 1918.43(e). The Secretary has moved for consolidation of the two proceedings since:
1. The same employer is involved [*31] in both actions.
2. The same employee representative is involved in both actions.
3. The alleged violations took place in the same general location.
4. Identical regulations are involved.
5. The same compliance officer was involved in both citations.
6. Consolidation would be in the best interests of all parties.
Upon consideration of the motion to consolidate, it is hereby ORDERED that docket numbers 642 and 696 be joined for hearing. The Judge comes now to consideration of the Respondent's motion to amend.
The Respondent was not represented by counsel at the time its Notice of Contest in docket No. 642 was filed. For that reason there is good cause to extend time for filing its Notice of Contest to a date coinciding with the filing of its Answer on April 7, 1972, under the provisions of 29 CFR 2200.9(b). The Respondent's motion to amend its Notice of Contest filed March 9, 1972, is granted. The Respondent's Notice of Contest in docket No. 642 is ordered amended, nunc pro tunc as of March 9, 1972, so as to show denial of the violation of 29 CFR 1918.43(e).