J.A. McCARTHY, INC.

OSHRC Docket Nos. 6565; 7177; 7522

Occupational Safety and Health Review Commission

January 20, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Marshall H. Harris, Regional Solicitor, USDOL

Frank C. Bender, for the employer

OPINION:

DECISION

BY THE COMMISSION:

This is another case in which an employer conducting longshoring operations in the Port of Philadelphia was cited for violating 29 C.F.R. 1918.105(a) due to the failure of its employees to wear hardhats. Judge Henry K. Osterman, relying on our decision in Atlantic & Gulf Stevedores, Inc., 16 OSAHRC 770, BNA 3 O.S.H.C. 1003, CCH E.S.H.G. para. 19,526 (1975); pet. for review filed, No. 75-1584 (3rd Cir., June 6, 1975), found that Respondent had violated the standard. With one modification discussed below, we affirm the Judge's decision.

It was argued in Atlantic & Gulf that enforcement of the requirement that longshoremen wear hardhats would result in a wildcat strike, and that it was therefore beyond the ability of the longshoring employers to achieve compliance with the standard. Respondent claims that this case contains stronger evidence of record than did Atlantic & Gulf tending to show that a wildcat strike would occur should the wearing of hardhats be enforced by disciplinary measures. In [*2] both cases, however, the evidence indicating that a strike would occur consisted of the opinions of witnesses based on threats made by longshoremen. The only distinction is that the record in the instant case contains the opinions of more persons. But that does not alter the fact that whether a strike will in fact occur is still uncertain. Persons may make threats they do not intend to carry out. In the circumstances we cannot conclude that longshoremen will conduct a strike which is contrary to their economic self-interest simply to avoid wearing equipment intended for their own protection.

We also noted in Atlantic & Gulf that if a wildcat strike should occur, there were potential means available to the employers to minimize its effects, including the seeking of an injunction against the strike pursuant to Boys Market v. Retail Clerks Union 770, 398 U.S. 235 (1970). Respondent here contends that a Boys Market injunction will not be issued against a wildcat strike. We disagree in view of substantial precedent to the contrary. Eazor Express, Inc. v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, 520 F.2d 951 (3rd Cir. [*3] 1975); C.F. & I. Steel Corp. v. U.M.W., 507 F.2d 170 (10th Cir. 1974). Respondent also contends that any other remedies will not in fact be effective. There is, however, no evidence showing that any such remedies have been tried and proven ineffective. We are not persuaded of their ineffectiveness solely by the arguments advanced.

We hold that Respondent has not, up to now, done what it can to fulfill the duty placed upon it to comply with the standard. Lack of compliance is due solely to employee disobedience and the employer has taken no steps to enforce compliance.

The citations in all three of these dockets alleged repeated violations, based on a citation issued June 21, 1973 which became a final order of the Commission prior to these violations. At the hearing, Complainant moved to downgrade the citation in No. 7177 to a nonserious violation because it occurred in a different area of the port than did the violation represented by the June 21, 1973 citation. The record also shows that the alleged violation in No. 7522 occurred in the same location as that in No. 7177. Consistency therefore dictates that it also be amended to nonserious. Similarly, we reduce the penalty [*4] in No. 7522 to $45, the same as the Judge assessed in No. 7177. We otherwise find no error in the Judge's penalty assessments.

Accordingly, the Judge's order is amended to find a nonserious violation in No. 7522 and to assess a penalty of $45 therefore. In all other respects, the Judge's decision is affirmed. It is so ORDERED.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

My colleagues have determined that this employer violated the Occupational Safety and Health Act of 1970 n1 because various stevedores (longshoremen) in its employ steadfastly refused to wear protective hats in accordance with a regulation which states that

"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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n1 84 Stat. 1590, 29 U.S.C. 651 et seq.

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They reach this conclusion in the face of the following finding made by the Judge who presided at this trial:

"The record amply supports Respondent's assertions [*5] that it has gone to great lengths in its efforts to obtain compliance with the regulation. Respondent purchased hard hats for all its longshoremen at a cost of $2,060.64 and winter liners for these hats at an additional cost of $1,167.39. It has posted signs reminding its men to wear hard hats on the piers and ships; it has, in cooperation with the Philadelphia Marine Trade Association, conducted an educational campaign to persuade its longshoremen to wear hard hats; it has stuffed its pay envelopes with printed reminders; it has conducted safety meetings with union officials and employees to urge compliance with the 'hard hat regulation' and has taken all reasonable steps to insure compliance short of dismissing those men who refuse to comply. Respondent has not taken the final step of dismissing uncooperative employees for fear of precipitating a strike which could spread to the entire Philadelphia waterfront." [emphasis supplied]

Despite the fact that they have not seen any of the many witnesses whose testimony was received on this issue, Messrs. Barnako and Cleary - without any facts on which to base the same - have made their own credibility determination, n2 [*6] as well as their prediction of things to come. The longshoremen will not conduct a strike, they say, because it is

". . . contrary to their self-interest simply to avoid wearing equipment intended for their own protection."

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n2 Among the witnesses who believe that discharging longshoremen for failure to wear hard hats will cause a strike is one of the complainant's highly experienced safety inspectors.

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That assertion not only is without basis in fact, it has been proved wrong time and time again. n3 An untold number of strikes have occurred throughout history in spite of warnings from labor's paternalistic benefactors (who claim to know better than do the workers themselves what's best for them) that a strike would be "contrary to their self-interest."

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n3 One of the earliest American examples were the pre-Civil War strikes in Massachusetts' textile factories. Highly respected orators like Daniel Webster and Edward Everett often stated that New England factories were wonderful places to work in - and that the girls employed by them were the luckiest of women. A contemporary ditty was:

"O sing me a song of the Factory Girl So merry and glad and free -

The bloom on her cheeks, of health it speaks! - O a happy creature is she!"

Nevertheless, those same happy creatures - no doubt in a move Webster, Everett and others thought "contrary to their self-interest" - staged some of the earliest strikes in American history. Schnapper, American Labor, Public Affairs Press, 1972.

[*7]

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It may well be that the existing refusal of these longshoremen to wear protective hats is contrary to their self-interest - yet they are doing just that - despite the many efforts to dissuade them from that course attested to in the record of this case. Having gone this far, there is no reasonable basis for concluding that they will not carry out their expressed threat of striking the Port of Philadelphia if they are discharged for refusing to wear the required headgear.

Messrs. Barnako and Cleary assure us that the longshoremen are engaging in idle threats but even so it won't be too bad if they do prove to be men of their word because there exist "potential" means which employers can seek "to minimize its effects." They even hand out legal opinions on labor relations law to the respondent who maintains that the law provides no effective remedy for a wildcat strike.

What they are saying, however, is rather simple - fire employees who won't wear hard hats. If that causes you a loss of business because of strikes or inconveniences the public - well, go to Court and seek an injunction. This looks [*8] to me like a pretty heavy penalty to heap on an employer for the crime of "taking all reasonable steps to insure compliance short of dismissing those men who refuse to comply."

Job safety can be obtained by work shutdowns but up to now that course has had no adherents. Most responsible safety advocates would, in my opinion, agree with the following reasoning which appeared in Anning-Johnson Company v. OSAHRC, 516 F.2d 1081, 1090 (7th Cir. 1975):

"Correcting the hazard, not shutting down construction sites, is the desired result. It is the former not the latter that is consistent with the balance approach."

The uncertainty of a cessation of operation which my colleagues condemn in this case was no less present in Anning-Johnson. The Circuit Court, however, had little difficulty in formulating responsible policy to deal with competing interests.

As the court in Brennan v. OSAHRC and Raymond Hendrix d/b/a Alsea Lumber Company, 511 F.2d 1139, 1144 (9th Cir. 1975), recognized, the Act n4 is designed to achieve safe and healthful working conditions "through the cooperative efforts of employers and employees." Nevertheless, the majority is again penalizing an employer [*9] because of deliberate and willful misconduct by his employees.

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n4 See note 1 supra.

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The Act places primary responsibility on the employer to insure safe and healthful working conditions. Frohlick Crane Sevice, Inc. v. OSAHRC, 521 F.2d 628, 630 (10th Cir. 1975). An employer, however, is not required to be an insurer of employee compliance. Brennan v. OSAHRC and Raymond Hendrix d/b/a Alsea Lumber Company, supra at 1144-1145; Secretary v. Engineers Construction, Inc., 20 OSAHRC 348 (1975). The respondent has acted reasonably and responsibly in fulfilling its obligations under the Act.

My colleagues again disregard the congressicnal pronouncement "that 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). In implementation of this dual responsibility, Congress directed in 29 U.S.C. 654(b) that:

"Each employee shall comply with occupational safety and health standards [*10] and all rules, regulations, and orders issued pursuant to this Act which are applicable to his own actions and conduct."

Messrs. Barnako and Cleary close their eyes to this requirement but have no difficulty seeing something in the Act which is not there, that is, a requirement that employers seek injunctive relief against wildcat strikes. I believe that if Congress had intended that labormanagement legislation be used for that purpose it would have said so in the Act or the Act's legislative history. Furthermore, such a requirement would make employers the enforcers of the Act contrary to the enforcement scheme provided therein whereby only the Secretary of Labor is delegated enforcement powers.

The citations in this case should be vacated for the reasons set forth above and in my separate opinions in Secretary v. Independent Pier Company, 20 OSAHRC 810 (1975), and Secretary v. Atlantic and Gulf Stevedores, Inc., 16 OSAHRC 770 (1975). Although the majority admits that the failure to enforce the longshoremen hard hat regulation is due solely to the disobedience of employees who are direct beneficiaries of the safety regulation allegedly violated, they nonetheless [*11] brazenly state that "the employer has taken no steps to enforce compliance." Besides being internally inconsistent, nothing could be further from the truth, as this record, and the findings of the Judge who heard and decided this case, amply demonstrate. n5

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n5 I attach as Appendix A hereto the full text of Judge Osterman's decision which enumerates the steps taken by respondent to enforce complince.

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In my view a violation should only be affirmed when an employer is at fault. Since this record shows no fault by this employer, I would vacate the citation.

APPENDIX A

DECISION AND ORDER

Louis Weiner, Regional Solicitor, U.S. Department of Labor and Michael P. Shapiro, for Complainant

Sean J. O'Callaghan, for Respondent

OSTERMAN, Judge, OSAHRC

This is a proceeding initiated by the Respondent pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970, 29 USC 659(c) to contest three Citations issued to Respondent by the Secretary of Labor. On September 10, 1974 these Citations were consolidated for [*12] trial.

The record discloses that the Citation in Docket No. 6565, dated January 29, 1974 alleged three non-serious violations and one repeat violation of 29 CFR 1918.105(a). No penalties were proposed for the three non-serious violations but a penalty of $310 was proposed for the one repeat violation. n1

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n1 All proposed penalties were reduced by the Secretary at the hearing. In Dockets No. 6565 and 7522 the penalty was reduced from $310 and $235 respectively to $200 each. In Docket No. 7177 the proposed penalty was reduced to $50 (Tr. 13-19).

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In Docket No. 7177, issued on March 13, 1974, the Secretary alleged one non-serious violation and one repeat violation of 29 CFR 1918.105(a). A penalty of $125 was proposed for the repeat violation. n2

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n2 See footnote 1 aupra.

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In Docket No. 7522, issued on April 1, 1974, the Respondent is charged only with [*13] one repeat violation of 29 CFR 1918.105(a). A penalty of $235 was proposed. n3

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n3 See footnote 1 supra.

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Only the alleged repeat violations of 29 CFR 1918.105(a) are at issue. The other non-serious violations have not been contested and have become the final order of this Commission by operation of law.

The record also contains a set of requests for admissions served by Complainant which are deemed admitted because of Respondent's failure to answer (Rule 52 of the Commission's Rules of Procedure).

At the hearing in these matters it was stipulated by the parties that certain exhibits and portions of testimony given at earlier hearings should be admitted as part of the record herein. n4

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n4 Secretary of Labor v. I.T.O. of Ameriport, Inc., OSHRC Dockets No. 7047 and 7281, August 23, 1974, before Judge Brennan, A.L.J., pp. 40-123 (Testimony of Richard Askew).

Secretary of Labor v. Atlantic and Gulf Stevedores, et al., OSHRC Dockets No. 2818, 2862, 2997, 2998, August 3, 1973, before Judge Harris, A.L.J., pp. 80-189 (Testimony of Alfred Corry).

Page 15 to Page 18

2. Page 18 to Page 34

Testimony of James Moock, OSHRC Dockets No. 7175, 7037 and 7281, Secretary of Labor v. Holt Marine Terminal, Inc. and Secretary of Labor of Labor v. I.T.O. of Ameriport, Inc. Hearing Date: September 4, 1974, Pages: 1. From line 25, Page 3 to line 19, Page 79.

Testimony of Francis Moock, OSHRC Dockets No. 7047 and 7281, Secretary of Labor v. I.T.O. of Ameriport, Inc. Hearing Date: August 25, 1974, Pages: 1. Page 179 to 199.

Testimony of Alfred Castagnola, OSHRC Dockets No. 7047 and 7281, Secretary of Labor v. I.T.O. of Ameriport, Inc. Hearing Date: August 23, 1974, Pages: 1. Page 216 to 277.

Page 69 to Page 71

2. Page 87

3. Pages 92 to 100.

Page 293 to 328.

Testimony of Francis Moock, OSHRC Dockets No. 3870, 4019, 3824, 4517 and 4997, Secretary of Labor v. Atlantic & Gulf Stevedores, Inc., Hearing Date: November 16, 1973 Pages: 1. Page 115 to Page 116

2. Page 128 to Page 132.

STIPULATED TESTIMONY, OSHRC Dockets No. 3985, 4884 and 5168, Secretary of Labor v. J.A. McCarthy, Inc., Hearing Date: November 16, 1973, Pages: 1. Pages 14 to 30.

Exhibits

Exhibit 1 - Agreement effective October 1, 1968 to September 30, 1971 between the Philadelphia Marine Trade Association and the International Longshoremen's Association (AFL-CIO).

Exhibit 2 - PMTA Circular No. 150-72 dated June 29, 1972 with New Terms and Additions to PMTA-ILA Agreements Retroactive to November 14, 1971 and effective to September 30, 1974.

Exhibit 3 - Letter dated June 28, 1971 from Alfred Corry, Executive Secretary of the PMTA to Presidents of ILA Locals.

Exhibit 4 - Letter dated July 13, 1971 from Alfred Corry to Presidents of ILA Locals.

Exhibit 5 - Draft Talk by Alfred Corry, Dinner for Foremen, Supervisors, etc., Thursday, July 18, 1971.

Exhibit 6 - Minutes of meeting of direct employers of the PMTA held on Wednesday, July 14, 1974, taken by Mr. P. Orindorf, Secretary.

Exhibit 7 - Minutes of meeting of Thursday, May 31, 1973 taken by Mr. James P. Traynor, Secretary.

Exhibit 8 - PMTA Circular No. 78-73 dated April 19, 1973.

Exhibit 9 - Memorandum of Settlement, ILA-PMTA, Collective Bargaining Agreement.

[*14]

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The testimony at the trial disclosed that on the date of the inspections stevedores employed by the Respondent were observed on three separate occasions loading and unloading ships without the use of protective head gear - a fact not contested by the Respondent (Requests for Admissions, Items #6 through 14). Respondent takes the position that it has done everything in its power to enforce the use of hard hats by its employees on the job short of discharging those who refuse to comply with the regulation. It has not discharged the violators because of widespread opposition by the longshoremen and its fear that a wildcat strike would be the immediate consequence of such action (Respondent's Brief, 17-25). For this reason the Respondent urges that it should not be held accountable under 29 CFR 1918.105(a). Thus the issue presented is whether this employer has fulfilled the obligation, imposed by the Act and 29 CFR 1918.105(a) to see to it that its employees shall wear protective hats while on the job.

The record amply supports Respondent's assertions that it has gone to great lengths in its efforts [*15] to obtain compliance with the regulation. Respondent purchased hard hats for all of its longshoremen at a cost of $2,060.64 and winter liners for these hats at an additional cost of $1,167.39. It has posted signs reminding its men to wear hard hats on the piers and ships; it has, in cooperation with the Philadelphia Marine Trade Association, conducted an educational campaign to persuade its longshoremen to wear hard hats; it has stuffed its pay envelopes with printed reminders; it has conducted safety meetings with union officials and employees to urge compliance with the "hard-hat regulation" and has taken all reasonable steps to insure compliance short of dismissing those men who refuse to comply. Respondent has not taken the final step of dismissing uncooperative employees for fear of precipitating a strike which could spread to the entire Philadelphia waterfront.

Several cases recently decided by this Commission are in my opinion dispositive of the issue here. n5 On facts which appear to be identical with those in the instant case, a majority of the Commissioners held, that the final responsibility for compliance rests upon the employer and that where the employees' noncompliance [*16] is neither completely unpredictable nor idiosyncratic the employer must carry out his duty to enforce compliance. I am, of course, bound to follow the majority rule in these cases.

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n5 Secretary of Labor v. Atlantic & Gulf Stevedores, Inc., Holt Marine Terminal, Inc., Nacirema Operating Co., Inc., International Terminal Operating Corp. of Ameriport, Dockets No. 2818, 2862, 2998, 2997; Decided April 11, 1975.

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I believe however that the Area Director committed an error in his calculations of the penalties proposed for the violations herein. In his testimony Mr. Sachkar (Area Director) indicated that in arriving at the final figure for the proposed penalties he had allowed a 10% credit for good faith. His justification for not allowing the full 20% reduction was that McCarthy's safety program was "just average" (Tr. 18, 25). His knowledge of McCarthy's safety program was incomplete (Tr. 24-29). He also indicated that his determination that McCarthy's safety program was just "average" rested upon the [*17] fact that there was "an alleged violation of not wearing hard hats during the inspection" (Tr. 27).

I believe the record contains evidence to support McCarthy's contention that they did in fact support a safety program which, though unsuccessful, was ongoing and vigorous. The full allowance of 20% for "good faith" should be restored.

CONCLUSIONS OF LAW

1. Respondent, a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, is an "employer" engaged in "commerce" as those terms are defined by Section 3 of the Act and is subject to the jurisdiction of this Commission.

2. On January 23, 1974, February 28, 1974, and March 29, 1974, Respondent was in violation of 29 CFR 1918.105(a) because it permitted persons in its employ to load and unload ships and to work in "hard-hat" areas of the Philadelphia docks without suitable head protection as prescribed by 29 CFR 1918.105(a). These violations were "repeat" violations.

3. The penalties proposed by the Complainant for the aforesaid violations are not in accord with Section 17(j) of the Act and should be reduced as indicated in my ORDER annexed hereto.

ORDER

Pursuant to 29 USC 659(c) and [*18] Rule 66 of this Commission's Rules of Procedure it is ORDERED:

1. That the Citations issued to Respondent in Dockets No. 6565, 7177, and 7522 (consolidated) be, and the same hereby are, AFFIRMED.

2. That the penalty proposed by the Complainant in Docket No. 6565 be, and the same hereby is, reduced to $180 and AFFIRMED in that amount.

3. That the penalty proposed by the Complainant in Docket No. 7177 be, and the same hereby is, reduced to $45 and AFFIRMED in that amount.

4. That the penalty proposed in Docket No. 7522 be, and the same hereby is, reduced to $180 and AFFIRMED in that amount.

HENRY K. OSTERMAN, Judge, OSAHRC

Dated: May 20, 1975

Hyattsville, Maryland