SECRETARY OF LABOR,
Complainant,

v.

MARINE TERMINALS CORPORATION,
Respondent.

OSHRC Docket No. 85-1468

ORDER

The parties' settlement agreement is approved.  This order is issued pursuant to a delegation of authority to the Executive Secretary. 41 Fed. Reg. 37173 (1976), amended at 44 Fed. Reg. 7255 (1979).

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

Dated:  August 5, 1987


SECRETARY OF LABOR,
Complainant,

v.

MARINE TERMINALS CORPORATION OF
LOS ANGELES,
Respondent,

INTERNATIONAL LONGSHOREMEN'S AND
WAREHOUSEMEN'S UNION, (ILWU), Local 13,

Authorized Employee
Representative.

OSHRC DOCKET NO. 85-1468

APPEARANCES:

For the Complainant:
Joseph Bednarik, Esq., Los Angeles, California

For the Respondent:
William D. Claster, Esq., Newport Beach, California

For the Authorized Employee Representative:
Frederick William Von Nagel, Wilmington,
California

DECISION AND ORDER

Child, Judge:

Statement of the Case
This matter is before the Occupational Safety and Health Review Commission, (the Commission) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., (the Act).  Complainant seeks affirmance of Citation No. 1, issued to respondent November 29, 1985, charging one item of serious violation of section 5(a)(2) of the Act and of the penalty which was proposed thereon in the sum of $350.00.

The matter came on regularly for hearing at Los Angeles, California, on the 22nd and 23rd days of May 1986.  Notice of the hearing was duly given affected employees. (Tr. 4)  Affected employees were represented at the hearing by International Longshoremen's and Warehousemen's Union, Local 13 (the ILWU) which appeared through its safety coordinator, Frederick William Von Nagel.  The union requested party status in the course of the hearing which status was granted.   (Tr. 11-16)

Complainant and respondent have submitted post-hearing briefs in support of their positions.  Jurisdiction is not an issue.   (Tr. 8 & 9; Pleadings)

The Issues:

The issues raised by the citation and the pleadings to be here determined are:

A.  Did the respondent have knowledge that its employees working aloft were doing so without being tied-off, thus making out a violation of 29 CFR 1918.32(b)?[[1/]]

B.  Was the offending conduct here observed an isolated occurrence resulting from unpreventable employee misconduct?

C.  What, if any, penalty would be appropriate?

Statement of Facts

Facts stipulated by the parties:  (Tr. 16,17; Pre-Hearing Stipulation)

1.  This court has jurisdiction of the parties and the subject matter of this action pursuant to section 10(c) of the Act.

2.  The respondent, Marine Terminals Corporation of Los Angeles hereinafter referred to as Marine Terminals, is and at all times was a corporation with an office and a place of business located at 1601 Water Street, Long Beach, California 90802.

3.  Marine terminals is and at all times hereinafter mentioned, was engaged in providing stevedore services in the loading and unloading of vessels.

4.  Marine Terminals was and is engaged in the loading and unloading of vessels while these vessels are in port.

5.  The vessels referred to in paragraph 4 above were being and are being used in transportation of goods and materials in interstate and international commerce.

6.  At all times material hereto Marine Terminals was and is engaged in a business affecting interstate commerce within the meaning of Sections 3 and 5 of the Act (29 U.S.C. 563 and 565).

7.  At all times hereinafter mentioned, Marine Terminals was performing work aboard the M. V. American Lancer, which was docked at Berth 230, Long Beach, California.

8.  On November 21, 1985, Marine Terminals, was engaged in the unloading and loading of shipping containers aboard the M. V. American Lancer.

9.  The containers were made of metal and were 8 feet high, 8 feet wide and either 20 or 40 feet long.

10.  The shipping containers were stowed below deck as well as above deck, that is, on the deck of the vessel.

11.  Persons performing the various tasks necessary to the unloading and loading of the shipping containers were employed by Marine Terminals.

12.  The fact situation involved in the instant matter concerns the duties performed by longshoremen designated as cone men, while in the process of preparing the containers for unloading.

13.  The containers were stowed on the deck in rows, with the length of the container parallel to the sides of the vessel.

14.  The containers were stowed eleven across and four high.

15.  Each container was locked onto or attached to the container, if any, immediately above, and to the container, if any, immediately below.  At each corner of each of the 20 and 40 foot sides of the container there was a corner twist lock; by rotating the locking pin, the container was locked onto or attached to container above or below.

16.  After the corner twist locks or cones were unlocked and the top container removed it was necessary to remove the cones before the next container could be removed.

17.  Each cone man, working independently while standing on top of the top tier of containers, was to remove two of the four corner twist locks or cones on each container.  The cone men here observed were removing twist locks located on top of the third tier, 24 feet above the deck.

18.  After the cone men removed all of the corner twist locks on the third tier of containers in the particular row of containers which was to be unloaded, they were to be removed from the top of the third tier of containers, by means of a man-cage which was attached to the crane.

19.  The collecting of cones was performed by the cone men while they were standing and walking on the top of the container and required that they work near the edge and bend down to reach the cones.

20.  On November 21, 1985, the edge of the containers on which the cone men were working, were open-sided and unguarded, that is, there was no rail or barrier, to prevent the cone men from falling from the edge of the container.

21.  On November 21, 1985, Marine Terminals did not provide guarding by means of a safety net to safeguard employees from injury in the event of a fall.

On November 21, 1985, Frederick William Von Nagel while performing his assignment as safety coordinator for the ILWU, Local 13 observed two longshoremen employees of respondent working as cone men on a single stack of containers (sometimes referred to as a "chimney stack") on the forward deck of the American Lancer at berth 230 at Long Beach, California.  The men were working approximately 34 feet above the deck surface of the vessel and although they were wearing harnesses, they were not tied-off to anything, thus exposing themselves to a fall of 34 feet to the deck below. (Tr. 37, 38)

Mr. Von Nagel reported his observation by telephone to the local office of the United States Occupational Safety and Health Administration (OSHA).  George Godzak, a compliance officer, was sent to investigate the report.  When he arrived, he found the men then working aloft to be secured or tied-off.  However, he interviewed the two workers who had been observed by Mr. Von Nagel and who were wearing harnesses.  They told him they had been working aloft at the forward area of the ship that morning and that they had not been tied-off while working aloft.  (Tr. 39, 40, 45, 110, 114)

Since June of 1985 both the ILWU and the respondent as a member of the Pacific Maritime Association (PMA) had recognized the need for cone men working aloft to tie-off and that tying-off to the container lifting beam was the appropriate method. (Exhibits 4, 5, 6; Tr. 149)

After the agreement of June 29, 1985, the members of the Pacific Maritime Association, which is comprised of maritime employers, developed an alternative "flatrack" method for tying-off where rows of containers were involved. (Tr. 156; Exhibit R-6)

Upon its joint adoption by the ILWU and the PMA in June of 1985, respondent posted a copy of the Container Procedures Rules and Duties (Exhibits R4 & 5) at its office trailers at the various berths and upon the crane legs, including those at berth 230.  (Tr. 152,170, 250)  Respondent also had its management review these Container Procedures and Rules with its superintendents and its operations personnel.  (Tr. 152, 251)  Foremen and bosses are generally, but not in every instance, steady employees of the specific maritime employer, respondent in this case.  (Tr. 218)

Peter McGivern, general manager for respondent, testified that under the disciplinary process available to respondent in the collective bargaining agreement between the ILWU and the PMA respondent was required to inform the offending longshoreman of the problem and make sure that he understands.  At that point the offending individual is to be informed that " . . . further deviation from the rules will result in immediate dismissal."  (Tr. 171, 172)  The offending longshoreman has the option of complying with the rule or calling the hiring hall and securing another individual to replace him on the job.  (Tr. 172)

Mr. McGivern and his safety director, Ron Mateas, would make spot checks unannounced day and night to see if the new rules regarding containers were being observed.  If he saw a violation, he would contact the superintendent on the job and tell him to fix it right away.  (Tr. 163)  On average he inspected approximately one vessel per day.  (Tr. 212)

Invariably, when a longshoreman is warned to tie-off aloft, he does so.  (Tr. 183)  However, on some occasions when the individual was informed they were not complying and they would have to do so, the employee opted to replace himself rather than be subject to dismissal.  (Tr. 209)

On average the top of the upper tier of containers stacked four high on a loaded vessel is about 80 feet above the dock.   (Tr. 184) Thus the tops of containers stacked on deck are not readily visible to persons working on the dock near the vessel or working in the office trailer.  (Tr. 185; Exhibit R-7)

Robert Munoz, respondent's superintendent at berth 230, has his office in the office trailer, but his duties usually have him moving about the vessel and locating himself centrally where he can see two cranes and on occasion three cranes in operation.  Many times the men working aloft cannot be seen from his position.  Generally, however, the hatch boss is supposed to be with the men going aloft.  (Tr. 272, 273)

On the day in question approximately forty employees of respondent were working on the cargo of the American Lancer at berth 230 and two cranes were operating.  (Tr. 281)   Approximately seven of these would be foremen and about eight would be cone men.   (Tr. 314, 315)

On occasion when Mr. Munoz has not been able to see aloft from his position, he has spoken to the boss aloft on the radio to find out if a flatrack is up there.  (Tr. 299)

In discussing safety with Mr. Von Nagel, including the need to hook up while working aloft, Mr. Munoz has stated that he can't be a baby-sitter -- that it is up to the men to take some responsibility also.  (Tr. 301)

Discussion

Issue A:

Did the respondent have knowledge that its employees working aloft were doing so without being tied-off, thus making out a violation of 29 CFR 1918.32(b)?

To prove a violation of section 5(a)(2) of the Act, the complainant must prove by a preponderance of the evidence an employer's noncompliance with an applicable standard and employee exposure to the hazard created by the violative condition.  Otis Elevator Co., 78 OSAHRC 88/E5, 6 BNA OSHC 2048, 1978 CCH OSHD 22,135 (No. 16057, 1978).  In addition to the foregoing, section 17(k) of the Act has been interpreted by the Commission as placing on the complainant the burden of proving that the employer knew, or in the exercise of reasonable diligence could have known, of the presence of the violative condition.  Prestressed Systems, Inc., 81 OSAHRC 43/D5, 9 BNA OSHC 1864, 1981 CCH OSHD 25,358 (No. 16147, 1981).

The evidence clearly supports findings that two employees of the respondent were working atop containers 24 to 34 feet above the deck of the American Lancer on November 21, 1985, and that they were doing so without being tied-off and that no other fall protection was present.  Deaths had occurred from such falls (Tr. 111) and it cannot be argued that the hazard to which these employee were exposed was other than serious.  (Stipulated fact No. 17; Tr. 37, 38)

The only remaining element to make out the violation is employer knowledge of the violative condition.  Constructive knowledge is found when in the exercise of reasonable diligence the employer could have known of the violative condition.

Mr. McGivern, respondent's general manager, undertook to perform approximately thirty inspections of vessels being loaded or unloaded under the supervision of Robert Munoz, its superintendent at berth 230.  These inspections took place following July of 1985 and approximately 10 percent of the time he found longshoremen employees working aloft without being tied-off and without the benefit of fall protection.  When he called Mr. Munoz' attention to the violation, he found that in each instance Mr. Munoz and the foremen working under him were not aware of this ongoing violative conduct. (Tr. 233-236)  Indeed, in every instance where he would observe employees working aloft without being tied-off, which was about 10 percent of the time, he determined that respondent's superintendent on the job was unaware of the violation in process.  (Tr. 212, 215, 237)  On such occasions the superintendent was told that the container rules were clear, that he was responsible to ensure they were followed up and if he was unable to do so, Mr. McGivern would find someone capable of doing so.  (Tr. 216)

Respondent's safety director visited berth 230 frequently during the period between July and the time of this inspection in November 1985.  The facility was busy - - with a fresh ship in about every five days.  He observed men working aloft without being tied-off on about one-third of these vessels he inspected. ( Tr. 253)  On each occasion he called the situation to the attention of the job superintendent which was Mr. Munoz, and each time he found Mr. Munoz to be unaware of the existing infraction.  (Tr. 260)

Again, on November 21, 1985, when Mr. Von Nagel observed the two employees working aloft without fall protection and without being tied-off, which fact was later called to the superintendent's attention by the compliance officer, Mr. Munoz professed that he was unaware that the employees had again bean exposed to the hazard of falling in violation of the standard.  (Tr. 106, 119).

Apparently respondent tolerated such failure on the part of its superintendent to keep himself aware and viewed that failure as an acceptable excuse.  Such explanation by the superintendent is too convenient and acceptance by the employer without imposing sanction or change of procedure amounted to nothing more than closing its eyes to reality.

Reasonable diligence requires a superintendent given the responsibility of enforcing a safety rule to keep himself reasonably informed.   The superintendent carried a radio.  The crane operators were equipped with radios and were in position to observe men working aloft.  (Tr. 238, 262, 323)   The foremen and the foremen aloft had radios.  Under these circumstances the respondent in the exercise of reasonable diligence could have known of the violative condition and is charged with that knowledge.

The complainant has met its burden of proving by a preponderance of the evidence that the respondent was in violation of the standard at 29 CFR 1918.32(b) at the time and place in question.  The cases cited by respondent at pages 15 and 16 of its brief support this conclusion.

Issue B:

Was the offending conduct here observed an isolated occurrence resulting from unpreventable employee misconduct?

In support of this defense respondent cites Floyd S. Pike Electrical Contractor, Inc., 6 BNA OSHC 1675 (OSAHRC Docket No. 3069, 1978).   There the Commission held that elements to prove such a defense include:

1.  A demonstration of the employer's commitment to employee safety reflected by establishment of work rules that effectively implement the requirements of the standard at issue;

2.  the effective communication of the work rules to employees; and,

3.  the effective enforcement of these work rules through supervision adequate to detect failures to comply with the rules and discipline sufficient to discourage such violations.

The Container Procedures Rules and Duties adopted by the ILWU and the PMA of which respondent was a participating member as modified by the "flatrack" procedure permitted in the case of rows of containers stacked side by side effectively implement the requirements of 29 CFR 1918.32(b).

Longshoring work is performed in large part by longshore-men assigned to respondent's worksite by the union.  Thus a turnover of longshoremen personnel is experienced.  Under these circumstances respondent produced testimony to the effect that the rules including the need to tie-off while working aloft were discussed with all employees at the beginning of the shift " . . . on every occasion that they worked."  (Tr. 152, 219)

Respondent told its superintendents and steady employees to enforce these safety rules and to direct the men in accordance therewith and told them "to talk wherever they went to make sure that the people understood . . . . ." (Tr. 180, 181)  Respondent told its steady employees that those who do not obey the safety rules will be warned to obey in case there is any misunderstanding and if they do not obey, they will be subject to termination.  (Tr. 209, 251)

The discussion with men coming on the job would last ".....a couple of minutes while the men were forming up."  The 26 rules set forth in Exhibit R-5 would be one of the topics discussed, among many others.   (Tr. 220, 221)

Mr. Munoz, respondent's superintendent on this job, testified that he gave the instructions to the longshoremen at the start of this job and specifically on November 21, 1995, and that the two men later found to be in violation were present.  He stated that instruction included the requirement that when working aloft they must always hook-up to the flatrack or if the flatrack was not available, to the beam.  One or the other would always be present.  (Tr. 276, 277, 280, 316)

Notwithstanding the foregoing, statements taken two weeks after the event from the two offending longshoremen, who had also worked for respondent at berth 230 on numerous occasions prior to November 21, 1985, and placed in evidence at the hearing by the respondent demonstrate a lack of instruction from the respondent as to the need to tie-off to the crane lifting beam while working aloft on a chimney or single stack containers such as they were working when observed by Mr. Von Nagel.  (Tr. 315; Exhibit R-8)   The attempt in those statements to suggest that the union was somehow to blame for indecision in the men's minds won't wash.  The ILWU had been stressing the beam as the appropriate tie-off point since June of 1985.  It was the PMA that developed the "flatrack" as an alternative to the beam, and that only in situations not involving a single stack of containers.

Obviously, a two-minute general instruction at the beginning of a job or shift in which 26 container rules were one point touched upon failed to meet the requirement of ". . .effective communication of the work rules to employees."

Finally, it appears that respondent was deficient in its enforcement of these work rules.   The inadequacy of effort on the part of the job superintendent to detect failures to comply with the rules is discussed under Issue A, supra.  Discipline sufficient to discourage such violations was non-existent.

The collective bargaining agreement would not prevent the respondent from terminating an individual for repeated violations and the respondent has its own rule permitting such terminations.  (Tr. 175, 176)  Notwithstanding this, no record is made of violations by individual longshoremen and names are not taken at the time of warning against working aloft without tying-off.  (Tr. 175)

Prior to November 21, 1985, no terminations had been imposed by reason of safety violations by persons working aloft nor had any terminations been imposed for that reason up to the time of the hearing of this matter.   (Tr. 239)

Respondent has never terminated anyone solely for safety violations.  (Tr. 244)

Neither Mr. McGivern nor the safety director, Ron Mateas, made written reports or kept written account of their findings or inspections.   (Tr. 246)

Mr. Mateas testified that to his knowledge respondent has never had a rule that repeated tie-off violations by longshoremen would be cause for termination.  (Tr. 261)

When asked, Mr. Munoz could not recall the names of longshoremen who Mr. McGivern and Mr. Mateas found from time to time to be working aloft without being tied-off.  (Tr. 317)

No record was kept by respondent of the names of employees who were observed to be in violation of the requirement to tie-off when working aloft on containers.  (Tr. 246, 260, 261, 318)

Obviously, where repeated violations would be cause for termination, the failure to preserve a record to substantiate a claim of repeat under circumstances of rotating workers is to communicate to those workers a lack of concern and inadequate effort to discipline on the part of respondent.

The necessary elements of a defense based on isolated occurrence resulting from unpreventable employee misconduct are not here present.   ITO Corporation of Ameriport, 11 BNA OSHC 1562 (No. 80-2369, 1983) cited by respondent at page 24 of its brief is distinguishable on the facts.

Issue C:

What, if any, penalty would be appropriate?

Complainant proposed a penalty of $350.00 for this serious violation, but offered no evidence in support thereof.  Nor did complainant offer evidence as to how it arrived at the figure of $350.00.

Applying the criteria set forth in the Act as to the size of the business of the respondent and the gravity of the violation, and giving due consideration to the good faith of this respondent not withstanding its lack of diligence in making itself aware and laxity of enforcement discipline, it is determined that an appropriate penalty is the sum of $200.00.

Now, having observed the demeanor of the witnesses and having weighed the credibility thereof, there are here entered the following:

Findings of Fact

1.  The twenty-one facts stipulated to by the parties and set forth in the Statement of Facts portion of this decision are incorporated herein by reference.

2.  Two employees of respondent were working atop a single or chimney stick of containers between 24 and 34 feet above the deck of the American Lancer on November 21, 1985, without fall protection and without being tied-off to prevent falling.

3.  The hazard of falling to the deck below to which said employees were exposed could give rise to serious injury or death.

4.  In the exercise of reasonable diligence respondent could have known of the failure of its employees to tie-off at the time and place alleged.

5.  Respondent did not effectively communicate to affected employees the work rule requiring employees working aloft on containers to tie-off to the beam or alternatively a flatrack.

6.  Respondent did not effectively enforce its above-mentioned work rule through supervision adequate to detect failure of its employees to comply therewith.

7.  Respondent did not effectively enforce its above-mentioned work rule through discipline sufficient to discourage failure to comply therewith.

8.  Two hundred dollars is an appropriate sum to be assessed as a penalty against the respondent for the violation here found.

Conclusions of Law

1.  Jurisdiction of the subject matter of this proceeding is conferred upon the Commission by section 10(c) of the Act and the Commission has jurisdiction of the parties hereto.

2.  The standard at 29 CFR 1918.32(b) applies to the work activity for which respondent was cited herein.

3.  The respondent was in violation of the standard at 29 CFR 1918.32(b) as alleged in the citation issued and the complaint filed herein and item 1 of Serious Citation No. 1, issue to respondent November 29, 1985, should be affirmed.

4.  A penalty of $200.00 should be assessed for the violation here found.

Order

Item 1 of Serious Citation No. 1, issued to respondent November 29, 1985, is AFFIRMED and a penalty of $200.00 is ASSESSED.

R. M. Child
Judge, OSHRC
Dated: August 29, 1986


FOOTNOTES:

[[1/]] The citation and the standard read:

Citation
1
29 CFR 1918.32(b):  The edge of a hatch section or of stored cargo, more than eight (8) feet high, presented the danger of employee(s) falling and was not guarded by a safety net of adequate strength to prevent injury to falling employee(s) or other means providing equal protection.

LOCATION:  Aboard the M.V. AMERICAN LANCER - employees working on the tops of containers three (3) high, approximately 24 feet, were exposed to the hazard of falling.

Standard

1918.32 Stowed cargo and temporary landing platforms.
(b) When an edge of a hatch section or of stowed cargo more than 8 feet high is so exposed that it presents a danger of an employer falling, the edge shall be guarded by a safety net or (sic) adequate strength to prevent injury to a falling employee, or by other means providing equal protection under the existing circumstances.