T. SMITH AND SON (TEXAS), INC.
OSHRC Docket No. 13443
Occupational Safety and Health Review Commission
October 13, 1977
[*1]
Before CLEARY, Chairman; and BARNAKO, Commissioner
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Ronald M. Gaswirth, Reg. Sol., USDOL
James L. Walker, for the employer
OPINIONBY: CLEARY
OPINION:
DECISION
CLEARY, Chairman:
This case is before the Commission pursuant to my order directing review under 29 U.S.C. § 661(i) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. ["the Act"]. At issue is whether the Administrative Law Judge erred in failing to assess the proposed penalty of $1,600 for respondent's repeated-serious violation of 29 CFR § 1918.105(a). n1 We find no error in the Judge's refusal to assess the proposed penalty. The the reasons stated below, however, we do not adopt the Judge's penalty assessment of $100. Pursuant to sections 17(a) and 17(j) of the Act, we assess a $200 penalty.
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n1 29 CFR § 1918.105 Head protection.
(a) 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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On May 14, 1975, respondent T. Smith and Son (Texas), Inc., was cited for a repeated-serious violation of § 1918.105(a) after inspection of its stevedoring operations on piers 29 and 43 in the port of Houston. The violation was characterized as a "repeat" violation because respondent had previously been cited for a nonserious violation of the same standard; the previous citation had not been contested, and had become a final order by operation of law.
Respondent did not deny the existence of the repeat-serious violation. However, it timely contested the proposed penalty as "excessive". In its answer, respondent noted that the longshoremen were fully aware of the hard-hat regulation, but they often reported to work without hard hats in their possession. Respondent argued that penalizing the stevedore for the longshoremen's behavior was unjust and unfair.
At the hearing, the compliance officer's unrebutted testimony established the following facts. Respondent's employees with the use of shorebased cranes and the ships' gear, were unloading pipe and steel from two ships, the Maritime Unity and the Chieh Peng. Each chain sling used in unloading [*3] weighed approximately 150 lbs. The unloading process was hazardous because of swinging chains and the possibility that pipe and chain might fall. A chain used in unloading pulled loose and fell among respondent's employees on the Maritime Unity. All employees on the Chieh Peng, which was being handled exclusively by Local 872, wore hard hats. About 50 percent of the employees on the Maritime Unity, all belonging to Local 1273, did not wear protective hats. Respondent's supervisor was working on the Maritime Unity without a hard hat.
The compliance officer explained that he determined the proposed penalty of $1,600 by beginning with $1,000 because the violation was "serious", reducing that amount by 10 percent for respondent's good faith and another 10 percent for respondent's compliance history, and doubling the balance because the violation was "repeated". He also testified that he allowed no credit for the size of the employer because, respondent had more than 100 employees.
In an order dated Aprtil 18, 1976, Judge Martin concluded that the proposed penalty was excessive. He assessed a lesser penalty of $100. In explaining his actions, he referred to the [*4] widespread problems associated with stevedores' attempts to achieve compliance by longshoremen with the hard-hat standard. He noted that while technically this was respondent's second violation, it was "one which respondent did not intend to commit" and was one which respondent had done "almost everything in its power to prevent." The Judge also noted that Congress intended to "teach a lesson" to employers who intentionally or willfully violated a standard when it authorized the "stiff penalties" in section 17(a) of the Act. He concluded that "but for the recalcitrant attitude of the work force" respondent would not have been in violation of the standard. The Judge added that insufficient credit had been accorded respondent for its good faith and invited attention to the $90 and $100 penalties assessed in International Terminal Operating Corporation of New England, 75 OSAHRC 13/C12, 3 BNA OSHC 1831, 1974-75 CCH OSHD para. 18,794 (Nos. 4107, 4803, 4863, 4882, 6107, 6158, 6159, 6871, & 5579, 1974), a case involving several stevedoring companies that had been cited for "repeated" violations of the hard-hat standard.
On review before the Commission, complainant contends that the [*5] Administrative Law Judge erred in failing to assess the proposed penalty of $1,600. Complainant asserts that, in light of the required section 17(j) factors of gravity, good faith, size of the employer's business, and history of previous violations, a penalty of $1,600 is fully justified by the circumstances of this case. First, complainant argues that the high gravity of the violation more than justifies the initial $1,000 figure. He asserts that because 50 percent of respondent's employees on the Maritime Unity were without hard hats and therefore were exposed to possible death or serious injury, the gravity of the violation is high. Second, complainant argues that the limited 10 percent credit for good faith is appropriate in light of the failure of respondent's superintendent to wear a hard hat. He argues that the superintendent's actions evidenced a lack of good faith, and it would have been inappropriate to give the full 20 percent credit available for good faith. In addition, complainant asserts that the 10 percent credit for past history was justified under the circumstances, and it was correct to disallow credit for employer size because respondent had over 100 [*6] employees. Finally, complainant argues that the repeated nature of the citation justifies the doubling of the penalty.
In addition to asserting the correctness of the proposed penalty, complainant excepts to Judge Martin's finding that respondent had done everything in its power to insure compliance. Complainant disparages respondent's "active safety program" which, he maintains, was limited to monthly ship superintendent meetings and the distribution of safety posters. He maintains, relying on Atlantic & Gulf Stevedore, 75 OSAHRC 47/A2, 3 BNA OSHC 1003, 1974-75 CCH OSHD para. 19,526 (No. 2818, 1975), that such actions do not satisfy the requirements of the standard. Complainant argues that respondent obviously did not do "everything in its power" to effectuate compliance because respondent's own superintendent had not worn a hard hat. Complainant also notes that full compliance with the hard hat rule was achieved only after respondent refused to hire any longshoreman reporting to work without a hard hat in his possession. Finally, complainant argues that the consequence of accepting Judge Martin's decision reducing the penalty because of the employees' recalcitrant attitude [*7] is to place incorrectly responsibility for compliance with the hiring hall rather than with the employer as Commission precedent requires.
Respondent takes the position that the Judge's decision should not be modified on review. To support that position respondent argues that the procedure used in proposing the penalty was eschewed by the Commission in Nacirema Operating Co., 72 OSAHRC 1/B10, 1 BNA OSHC 1001, 1971-73 CCH OSHD para. 15,032 (No. 4, 1972). Respondent argues that under Nacirema, supra, it was incorrect to begin with a maximum penalty of $1,000 for a violation and then discount it.
Respondent also argues that the Secretary incorrectly ignored business size in calculating the penalty. In support of that contention, respondent cites John W. McGrath Corp., 1 BNA OSHC 3265, 1973-74 CCH OSHD para. 16,918 (No. 2872, 1973), Judge's decision; aff'd, 1974-75 CCH OSHD para. 19,066, where the respondent was the third largest stevedoring company in New York, had exposed 300 employees a day to the hazard of falling objects, and had been assessed a $125 penalty. Respondent contends that a penalty of $1,600 is unfair in light of the fact that John W. McGrath Corp., [*8] a company three times the size of respondent, was assessed less than 1/12 the penalty proposed for respondent.
Additionally, respondent argues that its history of previous violations was improperly considered in light of John W. McGrath, supra, and Marine Terminal Co., 74 OSAHRC 29/A2, 2 BNA OSHC 3007, 1973-74 CCH OSHD para. 17,688 (No. 4114, 1974). Respondent notes that in John W. McGrath respondent had been cited for violation of the hard-hat standard three times and was only assessed $125. In Marine Terminal Co., the $170 proposed penalty for respondent's second violation was vacated because the employees were willfully disregarding the hard-hat regulation. Respondent argues that the Judge was correct in assessing a reduced penalty because, like Marine Terminal Co., its violations were due to employee noncooperation rather than its illegal actions.
Respondent also argues that complainant has overstated the gravity of the hazard because not all of the employees on the worksite were exposed to the danger of falling pipe. Respondent notes that some of the employees were working in the wings of the hold and argues that they were not exposed to the hazard [*9] of falling objects.
Further, respondent argues that insufficient credit has been given for its good faith. Respondent asserts that the Act's statement of purpose, 29 U.S.C. § 651, shows that Congress intended both employers and employees to have a role in promoting occupational safety and health. Respondent argues that this Congressional intent requires consideration of both respondent's and employees' efforts to obtain compliance when determining respondent's good faith. Respondent cites National Realty & Construction Co., Inc., 489 F.2d 1257 (D.C. Cir. 1973) to support its contention that the duty imposed upon an employer must be an achievable one. Respondent contends that the record amply supports Judge Martin's finding that hard hat compliance became a reality only after the cooperation of the union was obtained. Finally, respondent argues that past Commission actions imposing little or no penalty in similar "good faith" situations, support the Judge's assessment of a $100 penalty in this instance.
In light of the circumstances recited by respondent, we agree with Judge Martin that a penalty of $1,600 was excessive. We agree with the Secretary that respondent has not [*10] done "almost everything in its power" to enforce compliance with the hard-hat rule. We consider it significant that respondent's own superintendent failed to wear protective head gear. Accordingly, we assess a penalty of $200.
So ORDERED.