Docket No. 12443

KETCHIKAN SPRUCE MILLS, INC.

OSHRC Docket No. 12443

Occupational Safety and Health Review Commission

January 4, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Robert A. Friel, Assoc. Reg. Sol.

Franklin C. Roppel, Ketchikan Spruce Mills, Inc., for the employer

OPINION:

DECISION

This case is before the Commission pursuant to a sua sponte order for review. The parties have filed no objections to the Administrative Law Judge's decision, either by way of petitions for discretionary review or response to the order for review. Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge's decision.

In these circumstances, the Commission declines to pass upon, modify or change the Judge's decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.

The Judge's decision is accorded the significance of an [*2] unreviewed Judge's decision. Leone Constr. Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).

It is ORDERED that the decision be affirmed.

CONCURBY: MORAN

CONCUR:

MORAN, Commissioner, Concurring:

I would affirm the Judge's decision for the reasons set forth in his decision which is attached hereto as Appendix A. For the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, Dec. 20, 1976, I disagree with the majority's view regarding the significance of decisions rendered by Review Commission Judges.

APPENDIX A

DECISION

William W. Kates, for Complainant

Franklin C. Roppel, Lay Representative, for Respondent

GARL WATKINS, Judge:

A longshoring safety standard adopted under the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., requires that "Protruding ends of strands in splices on slings and bridles shall be covered or blunted." (29 CFR 1918.63(b). The principal question in this enforcement action is whether Respondent was in compliance with this standard on January 14, 1975 in using slings with "spliced eye" ends in loading lumber or cants on a barge in Ketchikan, Alaska for shipment [*3] to Tacoma, Washington.

Although a "division" of Ketchikan Pulp Company, it was stipulated that Respondent is a separate corporation. It has 75 employees. The inspection by the compliance officer of OSHA was routine. Two citations were issued. One for a non-serious violation with no proposed penalty was not contested.

The citation here at issue was designated "repeated". In disposition of this designation it is sufficient to say that there is inadequate proof of the issuance of a previous citation alleging violation of the same standard; and no proof at all that any such previous citation became a violation of the Act -- by operation of law or otherwise.

We vacate the citation and proposed penalty of $80 because a preponderance of the evidence clearly shows:

1. That the only effective "covering" for "protruding ends of strands" known in the industry -- some type of "pressed eye" -- produces far greater hazard to employees using them than the protruging ends of the strands.

2. There is an impossibility of compliance with the "blunting" requirement of the standard in any manner which would reduce hazards to employees.

Hazards are to the hands of the vorkmen and include only [*4] scratching and small punctures. The device used by Respondent at one end of each sling rope was a "spliced eye". It is contemplated by the standard as requiring "blunting", which is done by cutting off the ends of the strands. "Blunting" does not mean cutting them so short that no ends protrude, which would make the splice too weak to use; but rather, cutting the protruding ends to a reasonable length -- perhaps 3/4 of an inch. Every use of a sling with a "spliced eye" is likely to cause some wire ends to protrude farther. Thus, effective "blunting" is possible only by an inspection of the "spliced eyes" after every use. Each inspection would necessarily bring as great a danger of scratching or puncture as would another use of the sling.

The citation alleges:

"Protruding ends of strand in splices on the slings used to load lumber onto the Barge Callapooya were not covered or blunted."

The Secretary's complaint alleges:

"IV

On or about January 14, 1975, at the worksite and place of business and employment above described, the Respondent violated the longshoring regulations in that protruding ends of strands in splices on the slings used to load lumber onto the barge Callapooya [*5] were not covered or blunted, contrary to 29 C.F.R. 1918.63(b)."

Respondent was not represented by counsel. Its notice of contest and answer to the complaint were letters of its safety supervisor. Its representative at the hearing was its sawmill manager.

The "answer" does not state as "affirmative defenses"

1. That compliance with the standard would produce greater hazards and dangers than failure to comply; or

2. An impossibility of compliance.

Both contentions are argued in a letter answer, however, and we hold this to be a sufficient pleading.

Apparently the Solicitor agreed and there was no question about the presentation of evidence on either defense. Thus, whatever construction is placed on Respondent's "answer", there is no question that the issues were tried by consent under Rule 15(b) of the Federal Rules of Civil Procedure.

Since longshoring operations are involved and a stevedore company is in the picture, some question might arise as to whose employees were at the worksite. The evidence establishes that the slings with the "offending" spliced eyes belong to Respondent. The complaint alleges that Respondent "was engaged at a worksite and place of employment [*6] in the loading of lumber aboard the barge CALLAPOOYA . . . in employing employees in longshoring operations . . ." Since this was not denied, it is admitted and is an established fact of the case. Rule of Procedure 33(b)(2).

Use of spliced eye ends (one end on each piece of rope in this case) on the wire rope constituting the slings used by Respondent is sanctioned by the very existence of the standard. The requirement is that "protruding ends of strands" be "covered or blunted".

Respondent's witnesses all qualified as experts. Each testified in detail about methods and devices used by respondents and in other like work situations. We are satisfied that such knowledge and testimony of at least one witness covered shipping and longshoring operations industry wide -- in all parts of the world. All gave opinions on which our conclusions are based. The testimony of the compliance officer is in no wise contradictory to that of these witnesses.

It should be sufficient for this decision if we refer briefly to witnesses who testified and their experience and then est out the conclusions to which a preponderance of the evidence from these witnesses leads us.

Cliff Taro is president [*7] and general manager of three stevedoring companies in Alaska. He has been a stevedore or in that business since 1952. The past year his companies loaded over 300 million feet of cants aboard ships, representing 200,000 man hours. Taro remains in day to day touch with all operations and is familiar with the details of all. He is on the Board of Governors of the National Maritime Safety Association, which, as one of its activities, is an advisory group to the United States Department of Labor. He is familiar with all devices used in situations such as those involved in this case in the loading of lumber and cants.

Sayers McAlpin is a "gang boss" and "walking boss" and has served on various safety committees representing his union and on a joint port committee where employers, employees and port officials are represented on safety matters. He is completely familiar with all problems presented by this case.

George Garrison is a compliance officer for the Alaska Department of Labor. He had his own logging business for 35 years and is equally familiar with the devices under scrutiny in this case as well as competent to testify on their use, effectiveness and the hazards connected [*8] with them.

John Park has been a longshoreman in Ketchikan for 26 years, has been active in safety organizations and efforts during all of this time. and is equally qualified as an expert witness. He is a winch operator.

Robert Clay, safety supervisor for Respondent, is a safety professional. He testified that during the previous three years, Respondent had loaded 300 million board feet of cants or lumber at the Ketchikan Spruce Mills dock -- 250 million under the direct supervision of the company. During that time there was one "reportable" injury to an employee from a spliced eye sling. It was a small puncture wound with one dressing by a doctor, and no time loss.

In the operation with which we are here concerned, one principal objective is to load the bundles of lumber or cants as close together as possible -- or "tight" -- in order to prevent shifting of the cargo during the voyage. Except for experimenting with other types of rope ends on the slings, spliced eye slings have been uniformly used. This is on the end of the rope which is detached from the sling after the load is in place and is then pulled free by the winch or crane.

Dunnage or other material to separate [*9] one load from another is seldom used. The spliced eye is not as wide as any of the other devices used for the same purpose and since it is part of the rope (or cable) it is relatively flexible. It can thus be withdrawn without disturbing the load.

The spliced eye is formed by making a small loop at the end of the rope and then splicing the individual strands into the "bite" of the cable. Immediately after the splice loose ends of the strand always protrude. They are "blunted" or shortened, by being burned off with an acetylene torch. After any appreciable use of the sling and often after only one use these strands then protrude farther again. To make sure they remain "blunted" and do not protrude to an unacceptable length would require an inspection after every use of the sling.

The OSHA compliance officer, Edward Graham, stated that in his opinion there would be compliance with the standard if the ends protruded no more than 3/4 inch. In view of his and other testimony that the only hazard involved was to the workmens' hands -- scratching or small punctures -- there would obviously be as great a danger with 3/4 inch strands as if they were slightly longer. Also of interest [*10] is the fact that two witnesses testified that if the protruding strands were cut off at a point short enough that they didn't stick out at all the splice would be weakened to the point where it might separate or "pull out" in a normal operation, with resulting great danger to all persons in its vicinity.

The only other device the Secretary could seriously contend Respondent should use is called a pressed eye, with which the "protruding ends" are "covered". Here again a small loop is made at the end of the rope and a solid metal sleeve or collar is pressed around the end of the rope and the "bite" under great pressure. These sleeves or collars are of varying sizes but in every case are considerably larger than the rope itself or the rope with a spliced eye. In removal they tend to catch or "hang up" on the lumber or cants, frequently causing the ship's load to be unstable. In many cases they cause a shifting or actual toppling of the load. If the pressed eye is caught and then comes loose suddenly it may "fly" with a "rubber band" effect, creating a serious hazard to any person within the length of the sling and its attached line.

The testimony of the Secretary's compliance [*11] officer also corroborates the other evidence not only about the somewhat minimal hazard presented by ends of strands protruding -- they are limited to scratching or small punctures of the hands -- but also to the fact that these injuries seldom occur. Nothing in his testimony negates the statements of all other witnesses about the more severe dangers in using the pressed eye.

The third method of protection -- the second kind of covering -- is called the "log" sling. Here a solid metal object shaped something like a small beehive is fastened, again under great pressure, at the extreme end of the rope. This device then fits into a socket. Little attention was paid it by the witnesses, including the Secretary's. It creates a greater hazard in the kind of work Respondent was doing than do the various kinds of pressed eyes because it is solid metal, bigger than the pressed eye and is likely to come apart. It is apparently used successfully in handling logs, where one of the objectives is to cause them to roll at the time the sling is released.

The testimony of the expert witnesses presented by Respondent is not in complete agreement on all particulars. Some is directed to the impracticality [*12] rather than impossibility of blunting protruding ends in spliced eyes. We find no disagreement in evidence as to the dangers involved in the use of a pressed eye on a cargo sling.

A fair reading of all evidence leads to the inescapable conclusion that it is impossible to keep the spliced eye strands of wire "blunted" as contemplated by the standard in any manner which would reduce hazard to workmen; and the use of any other type of device known within the industry to keep wire strands "covered" would produce greater danger to workmen than the spliced eye.

It is of more than passing interest that spliced eyes are more expensive than pressed eyes, and that the people whose money is thus spent are strongest in their belief that the spliced eye is the only device known which will allow Respondent and others similarly situated to load lumber and cants on vessels with the least hazard or danger to workmen.

The citation and proposed penalty must be vacated and the complaint of the Secretary dismissed.

Based upon the entire record, the undersigned hereby makes the following

FINDINGS OF FACT

Respondent is a separate corporation but an operating "division" of Ketchikan Pulp Company; [*13] operating a mill, and wharf for loading its products on vessels in Ketchikan, Alaska. It has 75 employees.

On January 14, 1975 it was in the process of loading bundles of lumber and cants on a barge at Ketchikan, Alaska. In this operation it used numerous slings. On one end of the cables or ropes of each were spliced eyes. The evidence is inconclusive as to whether the protruding ends of strands of wire from these spliced eyes were "blunted" as contemplated by the statute under which Respondent was charged.

The only other method available to Respondent for making and securing eyes on its lumber slings is called a pressed eye.

III

It is impossible to keep the protruding ends of wires in the spliced eyes on Respondent's slings blunted as contemplated by the standard (29 CFR 1918.63(b) without an inspection after each load of each sling. Every such inspection is as great a danger to a workman as hooking and unhooking the sling for another load. It is impossible to comply with the "blunting" requirement of the standard without the workman being subjected to an equal -- or greater -- hazard than is involved in use of the spliced eye without "blunting". The only alternative [*14] to use of a spliced eye for the purpose and in the situation stated is the use of a pressed eye to keep protruding strands "covered". Its use would create greater hazards and dangers to employees of Respondent than any produced by the use of the spliced eye.

There is no evidence Respondent was previously in violation of 29 U.S.C. 654(a)(2) for failure to comply with the same standard.

Based on the foregoing and on all facts admitted, stipulated or proved by uncontroverted substantial credible evidence, the undersigned hereby makes the following

CONCLUSIONS OF LAW

Respondent is engaged in a business affecting commerce within the meaning of the Act. The Review Commission has jurisdiction of the parties and the subject matter of this action.

Because of impossibility of performance in the "blunting" of spliced eyes on the slings used by Respondent in its operation loading bundles of cants and lumber onto vessels; and because of the fact that the use of the only other device available for compliance with the standard by keeping protruding strands "covered", namely a "pressed eye", would make the operation more hazardous and dangerous to Respondent's employees; Respondent [*15] was not in violation of 29 U.S.C. 654(a)(2) for its failure to comply with 29 CFR 1918.63(b) on January 14, 1975. Respondent is entitled to an order vacating the citation and proposed penalty and dismissing the complaint.

ORDER

Based upon the foregoing, it is hereby

ORDERED:

The citation for Repeated violation issued by Complainant to Respondent on January 14, 1975 charging therein a violation of 29 CFR 1918.63(b) is VACATED.

It is further ORDERED that the proposed penalty of $80 be and the same hereby is VACATED.

DATED: December 23, 1975

GARL WATKINS, Judge