SECRETARY OF LABOR,
Complainant,

v.

I.T.O. CORPORATION OF AMERIPORT,
Respondent.

OSHRC DOCKET NO. 80-2369


DECISION

Before: Rowland, Chairman; Cleary, Commissioner.
BY THE COMMISSION:

I.T.O. Corporation of Ameriport ("I.T.O.") was charged with a serious violation of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678, in that, contrary to the requirements of the standard at 29 C.F.R. § 1918.105(a), six of its longshoremen allegedly were not wearing hardhats while unloading cargo from the hold of the vessel Charlottenboro. Administrative Law Judge Mary E. Cerbone affirmed the citation and I.T.O. petitioned for review. We reverse.

I

I.T.O. is the second largest stevedoring company in the port of Philadelphia, employing from 200 to 600 employees daily. I.T.O. was engaged in unloading the vessel Charlottenboro at I.T.O.'s Tioga Marine Terminal on February 1, 1980, when its operations were inspected by Occupational Safety and Health Administration ("OSHA") compliance officers

Sullivan and Leedom. After observing longshoring "gangs" in hatches nos. 1 and 3 of the Charlottenboro and seeing nothing amiss, Sullivan and Leedom checked hatch no. 5. There they observed longshoremen loading cartons onto pallets and guiding the pallets as they were lifted in and out through the hatch by crane. Each loaded pallet contained forty- five cartons of frozen fish. The hatch opening was 8 by 10 feet or 10 by 10 feet, and the pallets were about 4 by 6 feet.

Compliance officer Sullivan, who went into the hatch, testified that there were six longshoremen in the hatch including the gang foreman, Collins, none of whom was wearing a hardhat. Collins, however, testified that there were thirteen longshoremen including himself in the hatch, and that all but two of the longshoremen were wearing hardhats. He denied that he had not been wearing a hardhat. He stated that he had arrived in the hatch only a few minutes before Sullivan and had not noticed that two employees were without hardhats until Sullivan pointed them out to him. He then told them to get their hardhats, which they had left in their cars. Sullivan acknowledged that, of the 200 I.T.O. employees working in the terminal that day, he saw only six not wearing hardhats.

OSHA issued a citation to I.T.O. charging it with a serious violation of the longshoring standard at 29 C.F.R. § 1918.105(a). The citation stated:

Employee(s) were not protected by protective hat(s) meeting
the specification(s) contained in the American National Standards Safety Requirements for Industrial Head Protection Z89.1(1969):

a) In Motor Vessel Charlottenboro, Number five hold six employees not wearing head protection while working in the square of the hatch, subjecting the employees to being struck by falling objects 29 C.F.R. § 1918.105(a) states: "Employees shall be protected by protective hats meeting the specifications contained in the American National Safety Requirements for Industrial Read Protection, Z89.1 (1969)." OSHA proposed a penalty of $700, which it later reduced to $350.

At the subsequent hearing, I.T.O. presented extensive evidence concerning its safety program on use of hardhats. I.T.O.'s safety policy includes the following provision on head protection:

Head Protection

When there is a danger of objects falling on the head, Head Protection is needed. Longshoremen working on the ship or pier are expected to wear Safety Hats. These hats must meet the American National Standard Z89.1 (1969).

Here the hat normally considered is a rigid helmet which will resist penetration and cushion impact. It also has resistance to electric shock and burn. Metal hats are not proper.

Lump Caps do not meet the standard and only serve the limited purpose their name implies. The waterfront activity where they might be of value would be driving care on or off ships.

The Philadelphia Marine Trade Association, of which I.T.O. is a member, was a party to a 1976 industry-wide labor-management policy statement on hardhats, which provided as follows:

Re: Union-Management Joint Program for Compliance with OSHA Hardhat Regulation

TO: ALL LONGSHORE EMPLOYEES ON THE EAST AND GULF COASTS OF THE UNITED STATES

We are writing to you to urge your compliance with the Federal Safety Act (OSHA) which was enacted for your safety and protection.

In some port areas parts of the OSHA Act are being ignored by employees. This has resulted in injuries to the employees involved and has caused serious problems dealing with the enforcement of the Safety Act.

Specifically, the Federal Act required the wearing of hard hate where there are hazards of head injuries. In some ports employees have refused to wear hard hats which have been supplied to them by their employers. The law places responsibilities on both the employer and the employee with respect to the wearing of hard hats. It is essential, therefore, that there be full compliance with this Federal Regulation in all port areas on a national basis.

Accordingly, we wish to advise you that a national program has been agreed to by both management and labor on the East, Gulf and West Coasts of the United States to implement the Federal Regulations regarding the wearing of hard hats and to establish full compliance with those regulations.

Under the new program all employees working on marine terminals and vessels will be required to wear hard hats at all times except employees employed in the following areas and employees engaged in the operation of the following equipment:

a. Offices on piers or marine terminals;

b. Rest rooms and cafeterias;

c. Cranes with enclosed cabs;

d. Vehicles with adequate overhead protection.

Please note that when employees leave the above cranes, vehicles, offices, rest rooms and cafeterias to work on a marine terminal or aboard a vessel they must wear their hard hats.

This new program will be started as of January 1, 1976. After that date, employees who do not comply with the Federal Regulations and this national program by wearing hard hats where required will be refused employment until they comply with the Federal Safety Act.

I.T.O. uses a number of means to communicate its hardhat policy to its employees. I.T.O. maintains a tape-recorded telephone message that its longshoremen call in order to ascertain their work assignments. Since 1972 or earlier, I.T.O. has included a statement at the beginning of the recording that I.T.O. requires all employees engaged in dock or terminal operations to wear hardhats, that this requirement is strictly enforced, and that anyone failing to comply will not be allowed to work and will be "checked out," i.e., suspended from work for the day. The trade association to which I.T.O. belongs distributed hardhats free of charge to longshoremen in 1971 and 1975. Also, on several occasions starting about 1972, I.T.O. put "envelope stuffer" messages in its employees' pay envelopes informing employees that they must wear hardhats on the job. When I.T.O. began operating the Tioga Terminal in 1975, it put signs at the terminal's gates and within the terminal stating that the terminal is a hardhat area.

I.T.O. put more emphasis on its hardhat rule beginning in 1979. On September 6, 1979, I.T.O. Vice-President Castagnola issued a memo to the heads of its various departments including the Terminal Department stating that I.T.O. had been fined by OSHA more than once for violating the hardhat standard, that I.T.O.'s numerous requests that hardhats be worn had been largely ignored. and that compliance was essential. Therefore, as of September 10, all I.T.O. employees engaged in longshore or terminal operations were required to wear hardhats and anyone not complying would not be allowed to work and would be "checked out." On the same date Castagnola sent another memo concerning the hardhat rule to I.T.O. superintendents stating in part that "in contrast to some of our past efforts, this is a definite and serious attempt to attain compliance...." On September 21, 1979, I.T.O.'s Tioga Terminal manager sent a letter to I.T.O.'s safety supervisor, Keene, stating that I.T.O. was engaged in a concerted effort to obtain full compliance with the hardhat rule and asking that Keene instruct employees to wear their hardhats in the terminal. Keene holds safety meetings for supervisors at least once a month, at which I.T.O.'s rule on hardhats is discussed.

Collins himself stated that I.T.O.'s hardhat policy was to "have the hats at all times while you're on the pier, on the terminal, on the ship." He said that over the fourteen years that he had been a gang foreman he had often seen men not wearing hardhats; he had told them to get their hats and they had done so. Collins indicated that employees often "conveniently forgot" their hardhats in their cars, knowing that their gang foreman will send then back to retrieve their hardhats and they could thereby avoid a few minutes of work. In January 1980, Collins "checked out" for the day his assistant gang foreman, Delahaney, because Delahaney left his hardhat at home and refused Collins' instructions to get an extra hardhat from the "mechanic's shift." Collins testified that the "company was hollering because the guys were forgetting their hats. "

Vice-President Castagnola testified that a checker at I.T.O.'s Broadway Terminal in Camden, New Jersey, reported for work without his hardhat on February 23, 1980, refused instructions to get it, and was "not hired" or "checked out." Castagnola stated that before September 1979, the port community, including I.T.O., made numerous attempts to enforce the wearing of hardhats, but the programs started off well and then deteriorated. Until the September 1979 hardhat memos were issued, I.T.O. enforced the hardhat requirement by telling and encouraging the men to wear hardhats, telling them why they had to wear hardhats, and, to a certain extent, threatening to dismiss those who did not comply. I.T.O. took more severe action after the memos were issued, according to Castagnola; I.T.O. tried "a number of ways to get the laws enforced and where they weren't succeeding, we kept getting stronger and stronger in our terms and consequence for failure to conform." He stated that compliance with the hardhat rule had improved greatly since he issued the September 1979 memos. Castagnola also visits the piers and ships and sees what is going on. If he sees a man not wearing his hardhat, Castagnola "raises hell" with the supervisor, even if the man immediately puts on his hardhat. If individuals continue not to wear their hardhats, supervisors are told to "check them out." I.T.O. chief stevedore superintendent Baston testified that if he sees a longshoremen not wearing a hardhat, he tells the man to get his hardhat and then "gets after" the ship foremen and the gang foremen to see that they carry out the rule. Baston added that I.T.O. requires all ship foremen and gang foremen, such as Collins, to set an example by wearing hardhats.

Union business agent Anderson testified that the union's position is that all men are to wear hardhats and it does not oppose I.T.O. sending an employee home for the day if he refuses to wear a hardhat. He also stated that the union would not authorize a strike or work stoppage over an employee being disciplined for not wearing a hardhat.

II

Judge Cerbone affirmed the citation and imposed a penalty of $350. She credited the testimony of Sullivan that six employees, including gang foreman Collins, were not wearing hardhats, and discredited Collins' contrary testimony because he was responsible for assuring that the employees wore hardhats and "his interest in the result of the trial must be considered...." The judge also found employee access to the hazard and imputed to I.T.O. gang foreman Collins' knowledge that the employees were not wearing hardhats. The judge held that I.T.O.'s hardhat rule was ineffective, stating: "Respondent's argument that it has done all it feasibly can to achieve compliance with the standard is also negated by the very fact that the programs instituted have achieved a large measure of compliance in the wearing of hardhats." The judge also found that "there was no cogent showing" that I.T.O. believed that employees would engage in strikes or walkouts if I.T.O. attempted to enforce the standard.

III

On review, I.T.O. takes issue with the judge's finding that additional efforts were required of I.T.O. to secure compliance with its hardhat rule while failing to specify what those additional efforts are. I.T.O. also contends that under Atlantic & Gulf Stevedores, Inc. v. OSHRC., 534 F.2d 541 (3d Cir. 1976), I.T.O. can be held liable for a violation resulting from employee misconduct only when demonstrably feasible measures exist for materially reducing the incidence of such misconduct, and I.T.O. asserts it has taken all the measures that the court said it should take in Atlantic & Gulf other than seeking a variance: it has bargained for the right to discharge or discipline noncomplying employees and has discharged or disciplined employees who violated the hardhat rule or has threatened to do so. I.T.O. also maintains that the failure to wear hardhats in this case was idiosyncratic, unpreventable employee misconduct. I.T.O. also contends that the judge's crediting of Sullivan's testimony over that of Collins was erroneous and that the Secretary is bound by Collins' testimony, because he was the Secretary's witness.

The Secretary argues that the Commission should affirm the citation because, even according to Collins' testimony, two employees did not have hardhats with them on the vessel and Collins could have prevented the violation by checking that these employees had head protection when they started work. The Secretary further asserts that the fact that an entire six-man crew, including the foreman, would work without hardhats shows that the employees did not regard the possibility of detection and discipline to be very serious. The Secretary notes that employees seen without hardhats received only verbal reprimands and were not disciplined unless they refused instructions to get their hardhats. The Secretary contends that I.T.O. failed to adequately supervise its foremen to insure that they were complying with the hardhat rule and were requiring the employees in their gangs to do likewise.

IV

In view of the basis for our decision we need not decide whether Judge Cerbone erred in holding that the Secretary was not bound by Collins' testimony and in crediting Sullivan's testimony. If Collins' testimony is correct that he was wearing a hardhat and that, having just arrived in the hatch, he had not yet noticed that two employees were without hardhats until Sullivan pointed them out, then he had no actual knowledge of the violation. He also would have had no opportunity to detect the violation. In this regard, Collins testified that he ordered the two employees to go get their hardhats upon Sullivan's pointing them out. Under these circumstances, Collins would have no knowledge that can be imputed to I.T.O. Thus, if we were to credit Collins' testimony, the citation must be vacated for lack of knowledge that can be imputed to I.T.O.

On the other hand, if Sullivan's testimony is correct that six employees in the hatch, including Collins, were not wearing hardhats, then the judge correctly held that, as a supervisor, Collins' knowledge of violative conduct could be imputed to I.T.O. However, the judge erred in finding that I.T.O. did not successfully rebut the prima facie imputation of knowledge in this case. We find that it did.

To rebut the prima facie imputation of knowledge, an employer can affirmatively demonstrate that a supervisory employee's misconduct could not have been prevented. In particular, the employer must demonstrate that it effectively communicated its workrule requiring the wearing of hardhats to employees and that the rule was effectively enforced through supervision adequate to detect failures to comply and discipline sufficient to discourage violations. H.E. Wiese, Inc., 82 OSAHRC 18/A2, 10 BNA OSHC 1499, 1982 CCH OSHD ¶25,985 (Nos. 78-204 & 78-205, 1982), aff'd, No. 82-4202 (5th Cir. Apr. 27, 1983); Floyd S. Pike Electrical Contractor, Inc., 78 OSAHRC 50/E1, 6 BNA OSHC 1675, 1978 CCH OSHD ¶22,805 (No. 3069, 1978).[[*/]] The Secretary concedes, in his brief on review, that I.T.O.'s workrule effectively implemented the requirements of the hardhat standard and that I.T.O. effectively communicated this workrule. Thus, the remaining question is whether I.T.O. effectively enforced its hardhat rule.

Out of the 200 I.T.O. employees present at the time of the inspection, compliance officer Sullivan saw only six who were not wearing hardhats. Additionally, the evidence shows that I.T.O. forcefully implemented a program to effect a hardhat rule as evidenced by I.T.O.'s memos concerning the use of hardhats and the testimony by I.T.O. Vice-President Castagnola. Castagnola and I.T.O. chief stevedore superintendent Baston monitored compliance with I.T.O.'s hardhat rule and reprimanded supervisors and gang foremen if any of their men were not wearing a hardhat. Longshoremen who started work without hardhats were sent back to their cars to retrieve their hardhats. Employees who refused to wear hardhats were "checked out" for the day. We do not agree that the high degree of compliance with the hardhat rule that I.T.O. has accomplished negates I.T.O.'s argument that it has done all it feasibly could to achieve compliance. There is no evidence of what additional measures I.T.O. could have taken. We, therefore, conclude that any failure of Collins and five members of his gang to wear hardhats at the time of the inspection was unpreventable and that I.T.O. therefore succeeded in rebutting the Secretary's evidence concerning knowledge of the violative conduct. See Daniel Construction Co. of Alabama, 81 OSAHRC 71/A2, 9 BNA OSHC 2002, 1981 CCH OSHD ¶ 25,553 (No. 13874, 1981).

Accordingly, under either view of the testimony, the Secretary has failed to establish knowledge of the violation on the part of I.T.O., an essential element of his proof. We, therefore, vacate the citation and penalty.

SO ORDERED.

FOR THE COMMISSION

Dated: 6/13/83

Ray H. Darling, Jr.
Executive Secretary

The Administrative Law Judge decision in this matter is unavailable in this format. To obtain a copy of this document, please request one from our Public Information Office By e-mail ( lwhitsett@oshrc.gov ), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).

FOOTNOTES:

[[*/]] Chairman Rowland notes that Commission precedent permits an employer to rebut the Secretary's showing of knowledge based on imputation of the actions of a supervisory employee by showing that the employer both communicated and enforced a workrule pertaining to the conduct in issue. Since I.T.O. satisfied its burden under Commission precedent, Chairman Rowland does not find it necessary to consider whether that precedent is correct insofar as it imposes on the employer a duty to enforce as well as communicate workrules to non-supervisory employees. See H.E. Weise, Inc., 10 BNA OSHC at 1508 n.8, 1982 CCH OSHD at p. 32,617 n.8 (dissenting opinion). With respect to supervisory employees, see Chairman Rowland's opinion in Farthing & Weidman, Inc., 82 OSAHRC 75/A2, 11 BNA OSHC 1069, 1983 CCH OSHD ¶ 26,389 (No. 78-5366, 1982).