SEATTLE STEVEDORE COMPANY

OSHRC Docket No. 13418

Occupational Safety and Health Review Commission

January 12, 1977

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Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Robert A. Friel, Assoc. Regional Solicitor

Jack P. Hogan, Director of Safety, Seattle Stevedore Company, 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 [*2]   significance of an 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 AND ORDER

William W. Kates, Office of the Solicitor, U.S. Department of Labor, For the Complainant

Jack P. Hogan, Director of Safety, Seattle Stevedore Company, For the Respondent

Donegan, Judge: This is a proceeding pursuant to section 10(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., 84 Stat. 1590, hereinafter referred to as the Act).

On the night of April 23 and early morning of April 24, 1975, the Respondent's employees were engaged in longshoring activities which involved the unloading of steel pipe from the vessel "Ho O Maru" located at Pier [*3]   39, Port of Seattle, Washington.

The Respondent contested a citation number one for a serious violation and a proposed penalty of $550 therefor, issued on April 28, 1975 as a result of the inspection by an OSHA compliance officer of this worksite on board the M/S "Ho O Maru."

The complaint amends the citation to allege the night of April 23-24, 1975, as the correct date of the inspection and violation in lieu of April 25, 1975 as set forth in the citation.   The Respondent did not object to this amendment of the citation (T. 6-7).

The alleged violation of 29 CFR 1918.32(b) is described in the citation for a serious violation as follows:

"Aboard the M/S Ho O MARU, at Hatch No. 2, longshoremen were permitted to discharge steel pipe from the top of the 26' high load of pipe, when said load did not have a safety net or equivalent means of protection to protect employees from the hazards of falling between the after end of the load and the after bulkhead of the hold, three feet away."

and prescribes that the alleged violation be corrected immediately upon receipt of the citation.

The section of the longshoring safety and health regulations which is cited provides as follows:   [*4]  

"29 CFR 1918.32(b)

Part 1918 - Longshoring

Subpart D - Working Surfaces

1918.32 - Stowed Cargo and Temporary Landing Platforms

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(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 employee falling, the edge shall be guarded by a safety net of adequate strength to prevent injury to a falling employee, or by other means providing equal protection under the existing circumstances."

No affected employees or authorized representatives of affected employees have elected to participate as parties in this proceeding.

The Complainant has submitted a post-hearing brief.

FINDINGS

When the inspection was made, the Japanese vessel "Ho O Maru" was located on navigable waters in the Port of Seattle.   The longshoring activities of the Respondent's employees involved the unloading of steel pipe which had been shipped in the vessel from points outside of the State of Washington.

The issue concerning the violation is limited to the aft end of hatch number two.   More precisely, the alleged violation was concerned with the exposure of two longshoremen to the hazard of falling a distance of 26 feet to the floor of [*5]   the hold from the top tier of the stacked steel pipe. The alleged hazardous area was an open space of three feet between the tiers of stacked steel pipe and the aft bulkhead of hold number two.   This gap between the pipe and the bulkhead extended from the port to the starboard sides of the hold and is illustrated in the photograph marked exhibit C-3.   The stacking of the pipe and the gap of three feet are illustrated in the sketch marked exhibit C-1.

This sketch and exhibits C-4, C-5 and J-1 serve to illustrate how the steel pipe was stacked in hold number two and how the Respondent complied with the cited standard (29 CFR 1918.32(b)) in guarding the space between the foreward ends of the stacked pipe and the foreward bulkhead of the hold.   The two longshoremen who were working on top tier of the pipe at the time of the alleged violation were protected from falling injuries at the foreward edge of the pipe by safety nets which appear in exhibit J-1 (T. 11, 20-32, 59-61, 85).

These two longshoremen were working on the top of the stack of steel pipe in hold number two from 7:00 to 11:00 p.m. on the night of April 23, 1975 (T. 76).   Their work activities required them to attach hooks [*6]   to the foreward and aft ends of the pipe so that the ship's gear could hoist each section of pipe from the hold (T. 8, 36).

The time period from 7:00 to 11:00 p.m. is relevant and material to the alleged violation.   When the longshoremen resumed their work activities on top of the steel pipe after the night meal period, which started at 11:00 p.m., they wore life belts attached to lanyards to prevent them from falling into the space between the aft end of the stack of pipe and the aft bulkhead (T. 37-38, 50, 77-78, 80-83).   Although there was no safety net rigged in this space, the life lines worn by these employees provided equal protection under the existing circumstances in compliance with the cited standard (T. 45, 52, 56, 57, 59, 60).

When the Inspector arrived at hold number two shortly after midnight, the longshoremen had not returned to work from the 11:00 p.m. to midnight meal period (T. 84).   He measured the distance between the top of the pipe and the bottom of the hatch coaming shortly after he arrived and found that there was a clearance of about 5 1/2 feet. At about 1:00 a.m. on the morning of January 24, 1975, the Inspector took the photographs that are in evidence,   [*7]   and no pipe had been removed since the time of his arrival at the hold (T. 85).

No measurement was made of the distance that the coaming extended forward over the three foot gap between the pipe and the aft bulkhead of hold number two, but the Inspector testified that the coaming extended forward more than three feet (T. 87).

The resolution of the issue involving the alleged violation is dependent upon an evaluation of the credible substantial evidence of record concerning the distance between the top tier of the stack of pipe and the hatch coaming which extended more than three feet forward over the aft edge of the pipe. The time span to be considered in determining if and how long the two longshoremen were exposed to the hazard of falling between the aft end of the pipe and the aft bulkhead of the hold is from 7:00 p.m. to 11:00 p.m. on the night of April 23, 1975.

The two longshoremen working on top of the pipe during this period of time were not wearing safety belts and the space of three feet between the pipe and the aft bulkhead of the hold was not guarded with a safety net. Nevertheless, the longshoremen were protected from falling into this opening while there was insufficient [*8]   space between the top of the pipe and the bottom of this forward extension of the coaming for them to reach the aft edge of the pipe.

With a clearance of 5 1/2 feet between the top of the pipe and the bottom of the coaming, the two longshoremen could approach the opening at the aft end of the pipe by crouching or crawling. The Respondent's superintendent testified that he observed the longshoremen crawling on their hands and knees when hooking the aft end of the pipe, and that the lowering of the top level of the pipe created sufficient clearance below the coaming to permit them to do this approximately three hours after 7:00 p.m. on April 23, 1975.   He said that there was not sufficient clearance for the longshoremen to stand at the aft end of the pipe prior to 11:00 p.m. (T. 51-54, 73-77).

It is concluded that for a period of approximately an hour from 10:00 to 11:00 p.m. on the night of April 23, 1975, the two longshoremen working on the top tier of the pipe in hold number two were exposed to the hazard of falling into the space between the pipe and the aft bulkhead. This exposure resulted from them crawling on their hands and knees for the purpose of hooking the ship's gear [*9]   into the aft ends of the pipe.

Because of the crawling position of the two longshoremen at the aft end of the pipe, and the comparatively short time period of exposure, the gravity of the violation was low n1.

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n1 Examples of some of the factors that are considered in determining the degree of gravity of the violation are: number of employees exposed to risk of injury; duration of employee exposure; precautions taken against injury, if any; and degree of probability of occurrence of an injury.

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There was a substantial probability that a fall from the aft end of the pipe to the floor of the hold, some 26 feet below, would result in a serious injury, if not death.   This was a serious violation within the meaning of section 17(k) of the Act n2.

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n2 Section 17(k) provides: "For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation."

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The Respondent is one of the large stevedoring companies in the Puget Sound area of the State of Washington.   There were 22 employees at the "Ho O Maru" worksite.   In finding that the Respondent has demonstrated a high level of good faith with reference to the circumstances of this violation, considerable weight has been given to the Respondent's compliance with the cited standard in guarding the open space between the pipe and the forward bulkhead of hold number two.   The Respondent had no previous history concerning this violation.

In considering the criteria of section 17(j) of the Act n3, an appropriate civil penalty for this violation of 29 CFR 1918.32(b) of the Act is $50.

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n3 Section 17(j) provides: "The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations."

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CONCLUSIONS OF LAW

1.   The Respondent, Seattle Stevedoring Company, was at all times material to this proceeding an employer engaged in business affecting interstate commerce within the meaning of section 3 of the Act.

2.   The Occupational Safety and Health Review Commission has jurisdiction over the parties and the subject matter of this proceeding as provided in section 10 of the Act.

3.   The place of employment maintained by the Respondent on board the "Ho O Maru" at Pier 39, Port of Seattle, Washington was inspected by an authorized employee of the Secretary of Labor on April 23-24, 1975, in accordance with section 8 of the Act.

4.   The Respondent was not in compliance with 29 CFR 1918.32(b) on the night of April 23, 1975 as charged in the citation issued on April 28, 1975, and thereby was in violation of section 5(a)(2) of the Act.

5.   This violation of 29 CFR 1918.32(b) was a serious violation within the meaning of section 17(k) of the Act, and pursuant to the provisions of section 17(j) of the Act an appropriate civil penalty for this violation is $50.

ORDER

Based on the foregoing [*12]   findings of fact and conclusions of law, it is ORDERED:

1.   That citation number one for a serious violation issued to the Respondent on April 28, 1975 be, and is hereby affirmed.

2.   That the proposed penalty of $550 for this serious violation be vacated and that a penalty of $50 be assessed therefor, and that the same be, and are hereby vacated and assessed accordingly.

THOMAS J. DONEGAN, Judge

Dated: March 11, 1976

Seattle, Washington