SEATTLE STEVEDORE COMPANY

OSHRC Docket Nos. 9114; 10114

Occupational Safety and Health Review Commission

October 25, 1977

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Before CLEARY, Chairman; and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Robert A. Friel, Associate Regional Solicitor

Jack P. Hogan, Dir. of Safety, Seattle Stevedore Company, for the employer

OPINION:

DECISION

BY THE COMMISSION:

The issue before us is whether the Respondent (Seattle Stevedore) violated the Secretary's longshoring hardhat standard. n1 Judge Henry c. Winters held that, because Seattle Stevedore had done all that could reasonably be required to assure that its employees wore hardhats, it did not violte the standard.   We do not agree that the steps taken by Seattle Stevedore were sufficient.   We find that Seattle Stevedore violated the standard and assess penalties totalling $50.

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n1 In each case, the Secretary alleged a violation of 29 C.F.R. 1918.105(a), which provides:

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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Seattle Stevedore   [*2]   conducts longshoring operations in the Port of Seattle, Washington.   Although it supplies hardhats to its longshoring employees and encourages their use, employees frequently refuse to wear the hats. With one exception, Seattle Stevedore has not used disciplinary measures to enforce the wearing of hardhats. The exception occurred in July of 1973, when Seattle Stevedore fire a number of men who refused to wear hardhats, closing down for one day the ship on which they were working.

Seattle Stevedore's longshoremen are sent out each day from the union hiring hall.   If the union refuses to send replacements to a ship from which employees have been fired, then the longshoring employers in the Port of Seattle have a procedure, called "grieved ship," by which they will not permit the union to send longshoremen to any ship in the port. A committee of employers' representatives decides whether to use this procedure.

After the firings in 1973, Seattle Stevedore gained the impression that the union would not send replacements for men fired for failing to wear hardhats. n2 The employers' committee, which included Seattle Stevedore's president, met to consider the problem, and decided that [*3]   it would not invoke the "grieved ship" procedure to enforce the use of hardhats. Seattle Stevedore's executive vice-president stated, "we were instructed to do everything possible to make the men wear the hats but we could not shut the port down over it." Seattle Stevedore took no further steps to enforce the wearing of hardhats until the time of these alleged violations in July and September 1974.

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n2 Seattle Stevedore's executive vice-president testified that, after the 1973 incident, the union advised the company that it agreed the long-shoremen should wear hardhats but was opposed to their being penalized for not doing so.   The witness assumed that the union would therefore not send replacements for employees fired for failing to wear hardhats.

The evidence of record, however, establishes only that the union did not in fact send replacements on that one occasion; it does not reveal the union's motive.   A complaint filed by Seattle Stevedore shortly after the incident (Respondent's Exhibit #2) states only: "Attempted to obtain replacements for one hour.   None available.   Balance of gang was released at 10:00 p.m. because operation was inoperable. . ." On this record, we cannot infer that the union "refused" to send replacements because Seattle Stevedore had disciplined employees.

  [*4]  

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We have previously held, in cases arising in the ports of Philadelphia and Boston, that employers must discipline employees, if necessary, to assure the use of hardhats. See Atlantic & Gulf Stevedores, Inc., 75 OSAHRC 47/A2, 3 BNA OSHC 1003, 1974-75 CCH OSHD para. 19,526 (No. 2818, 1975), aff'd 534 F.2d 541 (3rd Cir. 1976); International Terminal Operating Corporation of New England. 75 OSAHRC 13/C12, 3 BNA OSHC 1831, 1975-76 CCH OSHD para. 20,242 (No. 4107, 1975), aff'd, 540 F.2d 543 (1st Cir. 1976).

This case differs in certain respects from those in Philadelphia and Boston.   In the latter cases, the employers never attempted to discipline employees who would not wear hardhats. They said that a wildcat strike throughout the port would occur if they did.   We noted, however, that the employers might have had remedies against a wildcat strike. Until these potential remedies were shown to be unworkable, we could not conclude that the employers lacked the ability to prevent the violations.

In the present case, Seattle Stevedore does not assert that a wildcat strike would result if it disciplined [*5]   employees for refusing to wear hardhats. Instead, it contends that it did once fire employees who would not wear hardhats, but abandoned this practice when it proved unworkable. According to Seattle Stevedore, the only way to make the firings effective is to invoke the "grieved ship" procedure and shut down the entire port.

Seattle Stevedore thus argues that the only available method for enforcing the wearing of hardhats is too drastic to be used.   If this is so, however, it is because Seattle Stevedore has apparently not considered less drastic possible solutions.   For example, a solution could be sought through bargaining with the union. n3 Other possible solutions are set forth by the Third Circuit in Atlantic & Gulf Stevedores, Inc. v. OSHRC, 534 F.2d 541, 555 (1976). Since it has not pursued all the potentially feasible means of enforcing the use of hardhats, we conclude that Seattle Stevedore has not taken sufficient steps to comply with the standard.

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n3 Since the record does not establish that the union was in fact intransigent on this issue (See n. 2, supra), we cannot conclude that it would have been futile for Seattle Stevedore to seek a solution through collective bargaining.

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The Secretary alleges that the violations are "repeated" based on three prior citations alleging that Seattle Stevedore violated the same standard.   Since Seattle Stevedore did not contest the earlier citations, they are final orders of the Commission. n4 The prior violations occurred in the same port, but at different piers than the violations in this case.   The Secretary contends that these facts are sufficient to establish that the violations are "repeated" under our decision in Bethlehem Steel Corp., 75 OSAHRC 83/C12, 3 BNA OSHC 1520, 1975-76 CCH OSHD para. 19,996 (No. 8392, 1975).

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n4 29 U.S.C. 659(a).

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The decision in Bethlehem Steel was reversed on appeal insofar as it dealt with the question of what constitutes a "repeated" violation.   Bethlehem Steel Corp. v. OSHRC, 540 F.2d 157 (3rd Cir. 1976). Subsequently, a majority of the Commission was unable to agree on the elements of a repeated violation.   George Hyman    [*7]   Construction Company, 77 OSAHRC 67/C7, 5 BNA OSHC 1318, 1977-78 CCH OSHD para. 21,774 (No. 13559, 1977).   In Commissioner Barnako's opinion, the facts show that Seattle Stevedore has made a good faith attempt to comply and did not disregard the standard.   He would therefore hold that the violations are not repeated, but are nonserious. Chairman Cleary would find that there is sufficient similarity between the violations here at issue and the earlier uncontested violations to conclude that the violations are repeated in nature.   He also notes, however, that the characterization of a violation as "repeated" is essentially significant in that it expands the Commission's discretion in the amount of penalty assessments.   George Hyman Construction Co., supra (Cleary, Commissioner).

In any event both Commission members agree that, in view of Seattle Stevedore's good faith efforts to comply with the standard, penalties of $25 are appropriate for each violation.

Accordingly, the Judge's decision is set aside.   The citations are modified to allege nonserious violations of 29 C.F.R. 1918.105(a) and, as so modified, [*8]   are affirmed.   Penalties totalling $50 are assessed.

So ORDERED.