BETHLEHEM STEEL CORPORATION

OSHRC Docket No. 13799

Occupational Safety and Health Review Commission

January 22, 1979

[*1]

Before CLEARY, Chairman; and COTTINE, Commissioner. n1

n1 Commissioner Barnako disqualified himself from consideration of this case.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall H. Harris, Reg. Sol., USDOL

Donald S. Bauman, Bethlehem Steel Corporation, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Chairman:

On February 23, 1976, Administrative Law Judge Henry K. Osterman rendered a decision and order vacating an alleged nonserious violation of 29 CFR 1916.65(a) n2 and the proposed penalty, and affirming that portion of the citation and proposed penalty alleging a repeated n3 violation of the housekeeping standard codified at 29 CFR 1916.51(a). n4 Neither party petitioned for review. On February 25, 1976, former Commissioner Moran sua sponte directed the case for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. [hereinafter "the Act"], without specifying any issues. Subsequently, respondent, Bethlehem Steel Corporation, filed a brief contending that (1) the Judge erred by concluding that 1916.65(a) was applicable to the hull of a vessel under construction that was not capable of [*2] floating at the time of the citation, and that (2) the Judge erred in concluding that complainant proved a violation of the housekeeping standard, 1916.51(a), by a preponderance of the evidence. The complainant did not file a brief.

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n2 The regulation provides as follows:

Part 1916 Safety and Health Regulations for Shipbuilding

1916.65 Hoisting and hauling equipment.

(a) Derrick and crane certification:

(1) Derricks and cranes which are part of, or regularly placed aboard, barges, other vessels, or on wingwalls of floating drydocks, and are used to transfer materials or equipment from or to a vessel or drydock, shall be tested and certificated in accordance with the standards provided in Part 1919 of this chapter by persons accredited for that purpose.

(2) Paragraph (a)(1) of this section shall take effect 180 days after the effective date of this amendment.

(b) The moving parts of hoisting and hauling equipment shall be guarded.

n3 The parties stipulated at the hearing that if the alleged violation of 29 CFR 1916.51(a) is affirmed, it is a repeated violation.

n4 The regulation provides:

Subpart F General Working Conditions

1916.51 Housekeeping.

(a) Good housekeeping conditions shall be maintained at all times. Adequate aisles and passageways shall be maintained in all work areas. All staging platforms, ramps, stairways, walkways, aisles, and passageways on vessels or drydocks shall be kept clear of all tools, materials, and equipment except that which is in use, and all debris such as welding rod tips, bolts, nuts, and similar material. Hose and electric conductors shall be elevated over or placed under the walkway or working surfaces or covered by adequate crossover planks.

[*3]

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For the reasons discussed below, the Commission affirms Judge Osterman's decision vacating the alleged violation of 29 CFR 1916.65(a). Furthermore, the Commission finds that there is sufficient evidence on the record to support the Judge's decision as to the alleged violation of 29 CFR 1916.51(a) and therefore affirms the item. The penalty proposed for this housekeeping violation is also affirmed.

Respondent argues that the Judge's decision vacating the 29 CFR 1916.65(a) citation should be modified to include a holding that because the vessel in question was under construction and incapable of floating, it was not a "vessel" within the meaning of 29 CFR 1916.2(f). n5 Respondent is not seeking reversal of Judge Osterman's decision to vacate. Rather, it is seeking an order supporting its position on the meaning of "vessel." Where a party does not seek reversal of the administrative law judge's decision, but only takes exception to the findings of fact or conclusions of law, the Review Commission will not address those issues unless they raise a question of compelling public interest. Cf. [*4] Union Camp Corporation, 77 OSAHRC 166/A2, 5 BNA OSHC 1799, 1977-78 CCH OSHD P22,103 (No. 12203, 1977) and cases cited therein; Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD P20,780 (No. 4136, 1976). We find no such compelling interest here.

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n5 That section defines a "vessel" as follows:

(f) The term "vessel" includes every description of watercraft or other artificial contrivance used or capable of being used as a means of transportation on water, including special purpose floating structures not primarily designed for or used as a means of transportation on water.

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The respondent also contends that Judge Osterman erred in finding that the complainant had established a violation of housekeeping provision 1916.51(a) by a preponderance of the evidence. Respondent argues that some accumulation of work materials in walkways is necessary given the nature of shipbuilding, and that it is impossible for the walkways to be wholly clear and unobstructed. n6

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n6 In addition, respondent argues that there were adequate alternative passageways and walkways in compliance with the standard. Even assuming arguendo that respondent has produced sufficient evidence to support its contention, the standard clearly requires that all walkways and passageways shall be kept clear.

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Compliance Officer William Knight testified that he had conducted an inspection of respondent's worksite at Sparrows Point, Maryland, on May 15, 19 and 20, 1975, and had found "an excessive accumulation" of pipe, burning, welding, and air hoses, welding rods, trash, scrap steel, and electrical cables in seven designated work areas aboard Hull 4643. Mr. Knight was of the opinion that the accumulated material in these areas had exceeded the point of unavoidable congestion. He noted that the accumulation was blocking passageways and normal means of access for the workers, and therefore cited respondent for a violation of the housekeeping standard. Mr. Knight's testimony was corroborated by James Harmon, the Executive [*6] Secretary of Local 33 of the Shipbuilder's Union, John Tudor, an employee of respondent at Sparrows Point for the last 28 years, and Vernon Oliver, a machinist and shop steward at respondent's worksite for eight years, all of whom accompanied Mr. Knight during his inspection.

Respondent's witnesses, Carl Snell, Robert Miller, and Herman Nordstrom, supervisory employees of respondent at the worksite, testified that every effort had been made to maintain clear access. They opined that there were no violations of the housekeeping standard. Respondent argues in its brief that where there is a conflict between credible witnesses, the employer's version should prevail. n7 Judge Osterman weighed the evidence and found it to preponderate in complainant's favor. We find the judge's decision to be supported by the record.

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n7 The respondent cites John W. McGrath Corp., 74 OSAHRC 64/D7, 2 BNA OSHC 3137, 1974-75 CCH OSHD P18,372, No. 1242 (1974) in support of its argument. The cited case, however, is an unreviewed Judge's decision and is therefore without precedential value. Leone Construction Company, 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD P20,387 (No. 4090, 1976). Furthermore, we note that in this case the factual testimony of the witnesses as to the physical conditions existing at the time of inspection is not in direct conflict. There is, however, a difference of opinion as to whether the congestion was unavoidable and whether the conditions constituted a violation. Of course, legal conclusions of witnesses are not binding of the Commission.

[*7]

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Alternatively, respondent seeks to characterize the accumulation of materials throughout the seven designated areas as a "temporary disarray" and as materials in the process of being installed. Respondent cites an unreviewed judge's decision, Preform Sealants, Inc., 73 OSAHRC 41/E4, 1 BNA OSHC 3185, 1973-74 CCH OSHD P16,485 (No. 2358, 1973), for the proposition that a temporary disarray is not a violation of housekeeping standards. First, as noted in footnote 7 supra, an unreviewed judge's decision does not have precedential value. And furthermore, the present case is factually distinguishable from Preform Sealants, Inc., supra. n8

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n8 In Preform Sealants, Inc., a temporary disarray of inventory and equipment parts being arranged while shelves were being installed did not constitute a violation of the housekeeping standard. The testimony in this case clearly shows that the housekeeping problem existed for weeks before the inspection.

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The Commission has recently ruled on a case involving a temporary disarray argument in Marinas of the Future, Inc., 77 OSAHRC 201/B1, 6 BNA OSHC 1120, 1977-78 CCH OSHD P22,406 (No. 13507, 1977). In that case, the Commission dismissed a citation for failure to keep the workplace "clean and orderly" n9 where it was shown that respondent's assistant manager, who was alone at the worksite performing extensive repair work caused by a severe storm, had to stop his work to accompany the compliance officer on his inspection. The assistant manager could have either cleaned up the work materials which were scattered all over the floor before accompanying the compliance officer, or completed his repairs. Either option would have required several hours. Under these facts, the Commission held that the employer was not in violation of the general industry housekeeping standard for the "temporary disarray."

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n9 This is the requirement of the general industry housekeeping standard, 29 CFR 1910.22(a)(1).

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At the hearing before Judge Osterman in this case, Mr. Harmon stated that the excessive accumulation of materials in all seven work areas cited had existed for several weeks. Mr. Oliver testified that these conditions had reached a peak about a week before the inspection and that despite many employee complaints to their supervisors, nothing was being done to correct the problem. Mr. Harmon and Mr. Tudor both agreed that whatever cleanup attempts had been made in response to the complaints, they were inadequate. Herman Nordstrom, who testified on behalf of the respondent, conceded that there had been employee complaints prior to the inspection, but stated that the problems had been corrected. Respondent's "temporary disarray" argument is thus overcome by testimony indicating the longstanding nature of the problem. Judge Osterman considered the testimony and found that the housekeeping violation had existed for an unreasonable length of time. We find that the judge's finding is supported by the evidence of record.

Respondent also argues that the alleged excessive accumulation of pipe in the engine room and pump room constituted unavoidable congestion. Clusters of pipe were [*10] lowered into these areas before the top of the engine room was sealed off to avoid the inconvenience of later having to lower pieces of pipe one at a time through a smaller opening. There is conflicting evidence in the record as to how much of the pipe was being stored and how much was actually being installed. Respondent's witnesses all maintain that the pipe was being installed or already had been installed, thus creating unavoidable congestion. Mr. Oliver, on the contrary, testified that the pipe was not for immediate installation, but was being stored. He further stated that there was pipe everywhere and that in descending the ladder toward the pump room he could not find a spot to place his foot because of the piles of pipe. Mr. Harmon also testified about the excessive accumulation of pipe. He noted that workmen in the area had "to crawl over the pipe to get from one end to the other. . . ." Although respondent emphasizes that the amount and size of the pipe required by the nature of the work caused unavoidable congestion, Mr. Knight, the compliance officer, explained that "The question is not the amount [of pipe] that was there, but the way it was located. . . [T]he [*11] alternative means would be to locate it in a position that still maintained adequate walkways just for normal work processes, and in the event of an emergency." Thus, even if some of the pipe had already been installed or was in the process of being installed, there is other sufficient evidence to support Judge Osterman's conclusion that there was "an excessive accumulation" of pipe obstructing passageways in the engine room and pump room.

The proposed penalty of $125 was assessed by Judge Osterman. This penalty is affirmed in light of the factors set forth in section 17(j) of the Act. Respondent, the second largest steel producer in the United States, employs an average of 3200 persons on a daily basis at the Sparrows Point Shipyard. It was stipulated by counsel for the respondent that if the alleged housekeeping violation were affirmed, it was a repeated violation. Respondent also stipulated that in the event the alleged violations were affirmed, the computation of a penalty made by the Secretary's compliance officer is correct. In addition, respondent has apparently made a good faith, although unsuccessful, effort to correct its housekeeping hazards. Thus, in light of these [*12] factors, we find the penalty of $125 assessed by the judge to be appropriate.

Accordingly, the judge's decision is AFFIRMED.