CALIFORNIA STEVEDORE AND BALLAST CO.

OSHRC Docket No. 1132

Occupational Safety and Health Review Commission

May 28, 1974

[*1]

Before VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission in accordance with my order directing review of a decision of Judge James A. Cronin. Judge Cronin, inter alia, rules that section 4(b)(1) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereinafter "the Act") does not deprive Complainant of jurisdiction in this case, and also vacated Complainant's citation charging that Respondent violated the safety standard prescribed at 29 C.F.R. 1918.53(a)(1). n1

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 29 C.F.R. 1918.53(a)(1) provides as follows: "When moving parts of winches or other deck machinery present a hazard, they shall be guarded."

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

We have reviewed the entire record. We adopt the decision of the Judge only to the extent it is consistent with the following decision.

The relevant facts are as follows: On May 18, 1972 Respondent's stevedores were discharging cargo from the hold of the S. S. Hastings. Respondent was using two steam winches at the [*2] number 4 hatch to hoist the cargo. The upper third portion of the winches drive wheels was unguarded. The drive wheels turn at a rapid rate of speed when the winches are operated. The unguarded drive wheels were located approximately waist high to persons passing by the aforementioned winches, and several of Respondent's employees were affected by the condition.

JURISDICTIONAL ISSUE

Respondent contends that section 4(b)(1) of the Act n2 deprives the Complainant of jurisdiction to enforce 29 C.F.R. 1918.53(a)(1) because the United States Coast Guard has promulgated a safety standard similar in scope to the Occupational Safety and Health Administration's standard it was cited for having violated. n3 As noted above, Judge Cronin rejected this contention. We agree.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n2 The section provides, in part, as follows:

Nothing in this Act shall apply to working conditions of employees with respect to which other Federal agencies . . . exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health. 29 U.S.C. 653(b)(1).

n3 Respondent relies on the safety standard prescribed at 46 C.F.R. 92.25-15, which provides as follows:

Guards in dangerous places.

a) Suitable hand covers, guards, or rails shall be installed in way of all exposed and dangerous place such as gears, machinery, etc.

[*3]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Respondent would have section 4(b)(1) apply merely because an agency other than Complainant's has promulgated a regulation covering a like or similar occupational hazard. The question in this case is not whether the Coast Guard's regulations cover the same hazard. Rather, it is whether the Coast Guard has statutory authority to "prescribe or enforce standards or regulations" applicable to the working conditions of longshoremen.

According to the statement of authority set forth in 46 C.F.R. Part 92, the regulation relied upon by Respondent was promulgated pursuant to the authority granted by various provisions of Titles 46, 49, and 50 of the United States Code. We have examined the authorizing provisions and in addition have examined the entirety of Title 46, U.S. Code. With the arguable exception of one provision relating to the carriage of dangerous substances n4 the provisions of the Shipping Code as they relate to occupational safety appear to apply to seamen as a class to the exclusion of longshoremen as a class. n5 Indeed, were this not the case there would have been no necessity [*4] to amend the Longshoremen's and Harbor Worker's Compensation Act n6 so as to authorize the Secretary of Labor to promulgate and enforce safety standards relating to longshoring operations. n7 Nor would there have been any necessity for Congress to adopt longshoring standards issued under the Compensation Act as occupational safety standards under section 4(b)(2) of this Act. Accordingly, Judge Cronin correctly decided that 29 C.F.R. 1918.53(a)(1) applies to Respondent. We turn now to the question of whether Complainant proved a violation.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n4 46 U.S.C. 170.

n5 In this regard Respondent's general superintendent testified that it was not subject to the Coast Guard regulation relied on herein.

n6 33 U.S.C. 901, et seq.

n7 Pub. L. 85-742, 33 U.S.C. 941.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

VIOLATION OF 29 C.F.R. 1918.53(a)(1) (NON-SERIOUS)

Judge Cronin, as noted above, vacated Complainant's citation. He held that to prove noncompliance the record had to establish not only that Respondent failed to properly guard the drive wheels of the winches, [*5] but also that Respondent had sufficient control or authority over the winches to enable it to comply with the standard's requirements. n8 We disagree.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n8 The winches were the ship's property.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Section 5(a)(2) of the Act mandates employer compliance with safety and health standards that have been legally promulgated by Complainant. In the usual case an employer is in violation of section 5(a) when his employees are affected by a violative condition. It is no defense that others created the violative condition, were responsible for its existence, or had control of the site or the equipment where such condition exists. As both noncompliance with the requirements of the cited standard (failure to guard the upper third of the drive wheels of the winches) and employee exposure were established, we conclude that the trial Judge erred in vacating the citation.

Complainant proposed a civil penalty of $35 for the alleged violation of 29 C.F.R. 1918.53(a)(1). We consider that proposal to be reasonable and it is [*6] hereby assessed. In reaching our conclusion here we place particular emphasis on the gravity of the violation. Though, on the one hand, the chance of an accident occurring due to the unguarded drive wheels of the winches was somewhat remote because of the apparent limited exposure and the short duration of that exposure, should an accident occur it could be of a relatively serious nature. On balance we conclude that the gravity of the violation was low to moderate.

We have also considered the size of Respondent's business, its good faith and its history of previous violations in assessing an appropriate penalty.

For the reasons given the Judge's decision is modified to affirm the citation of 29 C.F.R. 1918.53(a)(1), a penalty of $35 is assessed for such violation, and as modified it is affirmed. It is so ORDERED.

[The Judge's order referred to herein follows]

CRONIN, JUDGE, OSAHRC: This is a proceeding under Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereafter called the Act) contesting a Citation and Notification of Proposed Penalty issued by the Complainant on June 14, 1972 against the Respondent under the authority [*7] of Sections 9(a) and 10(a) of the Act.

The Citation was issued as a result of an inspection on May 18, 1972 of a Respondent longshoring operation conducted on board the vessel S. S. Hastings berthed at Pier 7 W, Military Overseas Terminal Bay Area, Oakland, California. It alleges that Respondent violated Section 5(a)(2) of the Act by failing to comply with 3 occupational safety and health standards or regulations of the Act, promulgated and adopted by the Secretary of Labor pursuant to Section 6(a) of the Act at 29 C.F.R. 1910.16, namely, Item No. 1, 29 C.F.R. 1918.31(c), Item No. 2, 29 C.F.R. 1918.53(a)(1), and Item No. 3, 29 C.F.R. 1918.53(b)(1).

In his complaint filed July 19, 1972, the Secretary of Labor (hereafter the Secretary) represented that he did not possess sufficient evidence to prove the alleged violation of Item No. 3, 29 C.F.R. 1918.53(b)(1). Subsequently, the Secretary moved to vacate Item No. 3 of the Citation which was granted (Tr. 4).

The alleged violation of 29 C.F.R. 1918.31(c), to be abated "immediately," was described in the Citation as follows:

Employees working in the lower tween deck of #3 hatch which had five broken hatch boards and two partially [*8] missing hatch boards in the hatch square.

The standard as promulgated by the Secretary provides:

1918.31(c) Missing, broken, split, or poorly fitting hatch covers that would jeopardize the safety of employees shall be reported at once to the officers in charge of the vessel. Pending replacement or repairs by the vessel, work shall not be performed in the section containing the unsafe covers or in adjacent sections unless the flooring is made safe.

The alleged violation of 29 C.F.R. 1918.53(a)(1), to be abated in "20 days," was described in the Citation as follows:

Employer using the forward set of steam winches at #4 hatch with the top sides of the port and starboard piston rods not guarded.

The standard as promulgated by the Secretary provides:

1918.53(a)(1) When moving parts of winches or other deck machinery present a hazard, they shall be guarded.

The Notification of Proposed Penalty, also issued June 14, 1972, proposes to assess a penalty of $75 for Item No. 1 and $35 for Item No. 2.

Pursuant to due notice, this case was heard at San Francisco, California, on October 18, 1972.

Proposed Findings of Fact, Conclusions of Law and a brief were filed by the [*9] Secretary. The Respondent filed an initial and a reply brief.

JURISDICTION AND ISSUES

The Respondent admittedly is a California Corporation engaged in "longshoring operations" and "related employments" as those terms are defined at 29 C.F.R. 1910.16(b)(1) and (2) and, in a business affecting commerce within the meaning of Section 3(5) of the Act. Jurisdiction, therefore, is duly conferred on the Commission.

The Secretary's complaint modifies and amends the citation in two major respects. First, the citation alleges violation of 29 C.F.R. 1918.31(c) was committed because employees were working in an area containing a specified number of broken, split or missing hatch boards, whereas the complaint alleges the violation took place when Respondent permitted employees to work in an area containing missing and broken or split hatch covers that would jeopardize employee safety. Second, the citation alleges that 29 C.F.R. 1910.53(a)(1) was violated because of the use of winches whose piston rod top sides were not guarded, whereas the complaint alleges the violation resulted from Respondent's failure to guard moving parts of winches which presented a hazard.

Respondent's [*10] answer denies the complaint's allegations of violation and further avers that the "vessel owner and/or charterer lacked due diligence" in providing its own employees and representatives as well as its contractor and the latter's employees with a place of employment free from recognized hazards.

Respondent's reply brief asserts that the differences between the citation and complaint represent material variances prejudicial to the Respondent, and any decision based thereon would be inconsistent with principles of administrative law and fundamental fairness. We disagree.

Respondent cites Commission Rule 33 in support of its contention that a complaint amends a citation only when the Secretary sets forth the reasons for amendment and states with particularity the change sought. But this rule didn't become effective until September 28, 1972 and does not govern the situation which existed on July 19, 1972 when the complaint in this case was filed.

During the period when the Commission's Interim Rules of Procedure were operative, (September 20, 1971 through September 27, 1972) the Commission has consistently held that differences or variances between the complaint and citation constitute [*11] an amendment of the citation. Secretary of Labor v. American Agencies Co., Inc. J. R. Steel subsidiary, Secretary of Labor v. Cook Ford Sales, Inc., See also, Secretary of Labor v. Otis Elevator Company,

The complaint in this case sets forth with particularity the time, location and circumstances of each alleged violation. The Respondent denied the complaint's allegations without filing a motion for a more definite statement and presented defenses against the complaint's charges at the hearing. The Respondent, therefore, was not prejudiced by the complaint's amendment of the citation.

The issues to be resolved and determined are:

1. Whether Respondent is required to comply with the provisions of standard 29 C.F.R. 1918.32(c) and standard 29 C.F.R. 1918.53(a)(1).

2. If the cited standards are applicable to Respondent, does the record evidence establish that Respondent violated them as alleged?

3. If violations [*12] were committed, are the proposed penalties appropriate?

EVIDENCE

The Secretary called one witness, an employee of the Occupational Safety and Health Administration, U.S. Department of Labor, Compliance Officer Roy H. Bissell. The Respondent's sole witness was Mr. Kenneth P. Graunstadt, Sr., its General Superintendent.

Officer Bissell testified that at about 2 o'clock on the afternoon of May 18, 1972 he inspected Respondent's workplace on board the vessel, S. S. Hastings. On the lower 'tween deck of No. 3 Hatch, he observed four of Respondent's employees discharging retrograde cargo in a hatch square containing broken and missing hatchboards (Tr. 8, 10, 12). Without objection, Officer Bissell testimonially adopted and read into evidence a portion of the "comments" section of his Compliance Work Sheet prepared by him at the time of the inspection. These "comments" represent that at the time of inspection he observed several broken hatchboards and an open space between two boards, 10 inches wide, which was covered by a hatchboard 20 by 30 inches (Tr. 15, 16).

According to Officer Bissell he brought the situation of the broken hatchboards to the attention of Respondent's [*13] walking boss who informed Respondent's Superintendent Johnstone and stopped the work in the hatch (Tr. 16, 17).

Superintendent Johnstone, in turn, informed the proper authorities aboard the ship of the situation and commenced replacement of the broken hatchboards with new hatchboards before Officer Bissel left the ship (Tr. 17, 46, 47).

The cargo, in the deck immediately below the lower 'tween' deck, was stowed up to within 2 or 3 feet of the lower 'tween's hatchboard covers. Therefore, according to Officer Bissell, the hazards caused by the broken and missing hatchboards, did not include falling to an empty hold below, but were restricted to possible injuries to a longshoreman's legs, such as broken bones, bruises or sprains (Tr. 18, 19).

Respondent's General Superintendent Kenneth P. Graunstadt, Sr., testified he has 44 years work experience in the maritime industry and is in charge of Respondent's safety program (Tr. 81, 82). He was not on board the S. S. Hastings on May 18, 1972 and his knowledge of that day's events is limited to the Safety Inspection Report (Respondent's Exhibit 1), and Hatch Clerk's logs (Respondent's Exhibit 2). The Safety Inspection Report, authored [*14] by Harold J. McCarthy, Respondent's representative at the hearing and also a safety superintendent, represents that between 8 a.m. and 9:05 a.m., on May 18, 1972, the lower 'tween deck of No. 3 hatch had two broken hatch boards in the square where work was being performed and that the Gang Boss was instructed to have men lower hatch boards from upper 'tween deck to replace broken ones (Respondent's Exhibit 1). According to the Hatch Log Reports, hatchboards were replaced in Hatch No. 3, forward, during the period 11:30 a.m. to 12 noon and in Hatch No. 3, aft, between 1 o'clock and 1:30.

Based on these reports, Mr. Graunstadt was of the opinion that no hatch boards were missing at the time of inspection and though the possibility existed that the weight of the discharged cargo could have cracked a hatchboard, this event would have occurred shortly before the 2 o'clock inspection (Tr. 90-92).

Officer Bissell testified that at the forward end of No. 4 hatch he observed that approximately one-third of the upper portion of the eccentric drive wheels and connecting piston rods of two steam winches were unguarded (Tr. 20, 21; Secretary's Exhibit 2). These port and starboard [*15] winches were part of the vessel's machinery but were being operated by longshoremen at the time of inspection (Tr. 53, 54). Officer Bissell believes that the hatch tender, winch driver, and any longshoreman walking past the wincharea would be in jeopardy from the partially unguarded moving parts of the winches (Tr. 62, 63). He saw "several" longshoremen, "more than two," walking by the winch area (Tr. 63). He estimates that 99% of vessel winches he has observed have been completely guarded (Tr. 65).

General Superintendent Graunstadt testified that a hatch tender (signalman) and winch driver would not be near the winches during normal operations except when changing places, and longshoremen walking by would not be subjected to any hazard from the eccentric drive wheels because of protection afforded by the partial guards and by the positioning of the gypsy heads (Tr. 100, 101, 103, 105, 119, 122). He admittedly has never seen in the particular winches in question (Tr. 119, 120). In his opinion, eccentrics should be guarded but that this particular requirement is for the sole protection of the employees who operate the winches (Tr. 119, 122, 123).

Officer Bissell testified [*16] how the proposed penalties of $75 for Item No. 1 and $35 for Item No. 2 of the citation were selected. A $200 unadjusted penalty for Item No. 1 was arrived at by the Compliance Officer because he "didn't consider it too serious a violation" due to the possible type of injuries involved (Tr. 30). From this unadjusted figure a reduction of 50% credit for anticipated abatement was given; a 10% reduction was given for "good faith;" 10% for a past history of violations of other standards of the Act that had become final orders of the Commission, and 5% for size, determined on the basis that the number of Respondent's employees at the worksite in question was 20 to 99 (Tr. 30-36, 68-73, 78). With respect to Item 2, the same percentage reduction factors were applied to an initial unadjusted penalty figure of $100 thereby resulting in a final adjusted penalty of $35. Officer Bissell testified that he selected the "minimum" unadjusted penalty for Item No. 2 because he took into consideration that Respondent has no authority or control over guarding the winches, only over "the fact he worked his men in the area of exposure" (Tr. 71).

DISCUSSION

A. AS TO VIOLATIONS

In determining whether [*17] a cited employer violated a standard of the Act, we must initially decide whether the Act requires his compliance with the particular standard and if so, whether he was obliged to comply with that standard's provisions under the circumstances of the case.

Section 5(a)(2) of the Act provides that each covered employer "shall comply with the Occupational Safety and Health Standards promulgated under this Act." The standards prescribed by Part 1918 were adopted and promulgated under the Act by the Secretary at 29 C.F.R. 1910.16 and the responsibility for complying with Part 1918 Standards is placed upon employers with employees engaged in longshoring operations, or employments performed as an incident to, or in conjunction with, longshoring operations by 29 C.F.R. 1910.16(a) and 1918.2. Because the Respondent company is a longshoring contractor, it clearly is required to comply with the "appropriate" standards of Part 1918. Also, Section 4(b)(1) of the Act does not act to deprive the Secretary of jurisdiction in this case. Dual jurisdiction exists; the Secretary's applies to longshoring working conditions, while the U.S. Coast Guard's covers working conditions of vessel [*18] employees.

Essentially, the thrust of Respondent's defense to a violation of 29 C.F.R. 1918.31(c) is to question that hatch No. 3 contained missing and split hatch boards at the time of inspection and then contend that, assuming defective hatchboards were there, they were present for such a short time prior to the inspection Respondent's supervisory personnel had insufficient time to replace them.

In an attempt to discredit the Compliance Officer's testimony, Respondent cites certain alleged inconsistencies concerning the number, location and type of defective hatchboards appearing in the Citation, the "comments" section, and "narrative" section of the Compliance Worksheet. However, as previously discussed, the complaint changed and amended the citation's original description of the violation and therefore, the latter is no longer at issue. Furthermore, the "narrative" section of the Compliance Worksheet is not a part of the evidentiary record, and therefore, cannot be considered, only that portion of the "comments" section which was read into evidence by the Compliance Officer, without objection.

This record presents no basis for rejecting the Compliance Officer's [*19] testimony which establishes that on May 18, 1972 four of Respondent's employees were working in a section containing broken hatch boards and at least one missing hatchboard.

Based on the Hatch Log entry that broken hatch covers were replaced in Hatch No. 3 between 1:00 and 1:30 p.m. on May 18, 1972 (Respondent's Exhibit 2), Respondent concludes that the alleged defective condition observed by the Compliance Officer at 2 o'clock must have occurred sometime between 1:30 and 2 o'clock. Such reasoning, however, is speculative because the record fails to reflect how many broken hatch boards were present at 1:00 p.m. and how many of these were subsequently replaced.

The crucial issue to be determined, of course, is not when the hatch covers became unsafe, but rather, whether employees under Respondent's direction were working in a section containing the unsafe hatch covers. The record answers that qustion in the affirmative and therefore, a violation of 29 C.F.R. 1918.31(c) by the Respndent must be found.

A contrary finding, however, must be made concerning the alleged violation of 29 C.F.R. 1918.53(a)(1). The gravamen of that offense is not an employer's use of winches with [*20] unguarded, hazardous, moving parts as contended by the Compliance Officer, and as originally charged in the Secretary's citation. Rather, (as subsequently recognized by the complaint), it is the employer's failure to guard such winches which constitutes the violation. To prove a failure to guard on the part of a cited covered employer, however the record evidence also must establish that he had sufficient control or authority over the winches in question to enable him to comply with the standard's requirements. This element of proof is essential because the duty to comply with a particular standard's provision presupposes a covered employer's power to comply. The undisputed evidence of record establishes that the winches were ship's gear and the Respondent did not have the authority or right to guard their moving parts (Tr. 70, 71, 73). On these facts, the Secretary has failed in his burden to prove that Respondent violated 29 C.F.R. 1918.53(a)(1).

The foregoing determination should not be interpreted to mean that the Act does not prohibit employers from permitting their employees to use unsafe ship's gear, only that 29 C.F.R. 1918.53(a)(1) does not.

B. AS TO [*21] PENALTY

All four factors prescribed in section 17(j) of the Act, the size of employer's business, gravity of the violations, the good faith of the employer, and history of previous violations have been duly considered. The Respondent is a large stevedoring company with an apparent history of previous violations under the Act. However, the Secretary's evidence concerning Respondent's past history of proven violations under the Act was non-specific, couched in generalities and, therefore, was given little weight. The facts constituting a violation of 29 C.F.R. 1918.31(c) indicate only a low level of gravity. Also, the good faith of Respondent in attempting to comply with the Act was reflected in Respondent's replacement of other defective hatch covers on the morning and early afternoon of May 18, 1972.

In view of the foregoing, no penalty for violation of 29 C.F.R. 1918.31(c) in this case is warranted.

FINDINGS OF FACT

Upon the entire record, the following facts are found:

1. California Stevedore and Ballast Company in June, 1971 was the largest of the eight stevedoring companies in the San Francisco Bay area and employed approximately 80 permanent and clerical [*22] employees, in addition to the longshoremen hired daily. A year later, in June, 1972, the company's volume of business was somewhat smaller but its average weekly longshoreman payroll still was approximately $225,000.

2. On May 18, 1972, between 11:30 a.m. and 12:00 p.m. and again between 11:00 p.m. and 1:30 p.m., Respondent caused the replacement of broken hatch covers on the lower 'tween deck of No. 3 hatch of the vessel S. S. Hastings.

3. On May 18, 1972, at about 2:00 P.M. in the lower 'tween deck of No. 3 hatch of the S. S. Hastings, four of Respondent's employees were working on and around a section containing broken or split hatch covers that jeopardized the employees' safety to a minor degree.

4. On the afternoon of May 18, 1972, on board the S. S. Hastings, longshoremen were operating cargo winches with unguarded, hazardous, moving parts. These winches are part of the vessel's gear.

5. The Respondent, on May 18, 1972, had no right or authority to guard the moving parts of these winches.

CONCLUSIONS OF LAW

1. The Respondent is engaged in a business affecting commerce within the meaning of Section 3(5) of the Act and is obliged to comply with the standards [*23] promulgated under Part 1918 of the Act.

2. On May 18, 1972, the Respondent was in violation of 29 C.F.R. 1918.31(c).

3. No penalty for the violation of 29 C.F.R. 1918.31(c) is warranted under the circumstances of this case.

4. On May 18, 1972, the Respondent was not in violation of 29 C.F.R. 1918.53(a)(1).

ORDER

Based on the foregoing findings, conclusions of law and the entire record, it is ORDERED that:

1. Item No. 1 of the citation, as amended, charging a violation of 29 C.F.R. 1918.31(c) is hereby AFFIRMED.

2. No penalty is assessed for Item No. 1 of the citation, as amended, and the proposed penalty is hereby VACATED.

3. Items No. 2 & 3 of the citation, as amended, and the proposed penalties based thereon, are hereby VACATED.