SEATTLE STEVEDORE COMPANY
OSHRC Docket No. 14266
Occupational Safety and Health Review Commission
January 18, 1977
[*1]
Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Robert A. Friel, Associate Reg. Sol., USDOL
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 2632, 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 [*2] the 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
Charles G. Preston, Office of the Solicitor, U.S. Department of Labor, for the Complainant
Jack P. Hogan, Director of Safety, Seattle Stevedore Company, for the Respondent
Mr. Hogan is not an attorney.
Donegan, Judge: This is a proceeding pursuant to section 10(c) of the Occuptational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., 84 Stat. 1590, hereinafter referred to as the Act).
The Respondent's employees were engaged in longshoring activities involving the loading of logs on board the M/S "Eastern Ocean" and the M/S "Golden Explorer" in the Port [*3] of Tacoma, Washington when an OSHA compliance officer inspected these worksites on June 17, 1975.
The Respondent contested item 1 of citation number two and the proposed penalty of $700 therefor, which had been issued as a result of this inspection. An amended citation number two issued on July 1, 1975 deleted item 2 of the original citation issued on June 25, 1975.
The description of the alleged serious violation of 29 CFR 1918.33(b) is set forth in item 1 of citation number two as follows:
"There was no suitable means available to protect signalmen from falling from their respective vessels in the following instances:
1. One hatch tender standing on the stowed hatch pontoons immediately adjacent and flush to the gunwhale on the port (offshore) side of #2 hatch aboard the M/S Eastern Ocean (Piper 1). The signalman was 29 feet directly above a log boom.
2. One hatch tender standing on the stowed hatch pontoons immediately adjacent and flush to the gunwhale on the port (offshore) side of #3 hatch aboard the M/S Eastern Ocean (Pier 1). The signalman was 29 feet directly above a log boom.
3. One hatch tender standing on the stowed hatch pontoons immediately adjacent [*4] and flush to the gunwhale on the starboard (offshore) side of #2 hatch aboard the M/S Ocean Explorer (at Blair Terminal). The signalman was directly above the log boom on the offshore side."
The citation provides that this alleged violation must be corrected immediately upon receipt of the citation.
The cited section of the longshoring safety and health regulations provides as follows:
29 CFR 1918.33(b)
"Part D 1918 - Longshoring Subpart D-Working Surfaces 1918.33-Deck Loads
* * *
(b) Signalmen shall not be permitted to walk over deck loads from rail to coaming unless there is a safe passage. If it is necessary to stand at the outboard or inboard edge of the deckload where less than 24 inches of bulwark, rail, coaming, or other protection exists, any signalman shall be provided with a suitable means of protection against falling from the deckload."
At the opening of the hearing, the Complainant moved to amend the citation and complaint to correct the designation of the M/S "Ocean Explorer" to M/S "Golden Explorer". The Respondent agreed to this amendment and the motion was granted.
No affected employees or representatives of affected employees have intervened in this [*5] proceeding or have elected to participate as a party (T. 3-4).
The Complainant has submitted a post-hearing brief.
FINDINGS
When inspected on June 17, 1975, the M/S "Eastern Ocean" and the M/S "Golden Explorer" were located on navigable waters in the Port of Tacoma, Washington. The logs that were being loaded from the water were to be carried on these ships outside of the State of Washington.
The violation involves 3 hatch tenders standing on hatch pontoons stowed on the deck adjacent to and flush with the offshore gunwhales of these vessels.
Two of the hatch tenders were directing the winch operators in hoisting the logs from the water into the holds of the M/S "Eastern Ocean". Both of the longshoremen were working on the offshore (port) side of the vessel, one at the number 2 hatch and the other at the number 3 hatch (T. 14-20, 24; Exhibits C-1 and C-2).
The third hatch tender was directing the winch operator of the M/S "Golden Explorer" in hoisting the logs from the water into the hold of that vessel at hatch number 2 (T. 32-36; Exhibit C-3).
The winch operators are dependent upon the hatch tenders for direction when operating the ship's gear to hoist the logs from [*6] the water to the ships. The location of the winch platforms and the position of the winch operators on the vessels prevent the winch operators from having a view of the logs in the water. The hatch tender directs the winch operator with hand signals in most instances.
To have a clear view of the logs in the water and when they are being hoisted to the ship, it is necessary that the hatch tenders stand as close to the gunwhale as possible. When the hatch tenders stand on the deck, the gunwhale protects them from falling into the water. But, when pontoons are stowed on the deck flush with the top of the gunwhale, as in this case, the hatch tenders standing on the pontoons and the top of the gunwhale do not have the protection of the gunwhale.
In this case, the hatch tenders had no protection against falling into the water from the pontoons.
There was the additional hazar of slipping on the surface of the pontoons because of water dripping and debris falling as the logs were hoisted on board the ships.
The permanent stanchions, usually 3 on each side of the ship, would only serve as a handhold to prevent a hatch tender from falling overboard if he should happen to be immediately [*7] adjacent to one of the stanchions. The use of the stanchions as handholds would be discouraged by the practice of the winch operations of turning the logs on the stanchions before lowering them into the holds. At any rate, it is concluded that the permanent stanchions do not serve as suitable means of protecting the hatch tenders against falling from the pontoons into the water (T. 58, 68, 71, 79).
The distance from the top of the gunwhale to the surface of the water was approximately 29 feet for the M/S "Eastern Ocean," and 25 feet for the M/S "Golden Explorer" (T. 26, 32). The hatch tenders were not wearing life jackets and drowning could result from a fall into the water from the top of the gunwhales (T. 27, 52).
There was a substantial probability that a fall from the top of the gunwhales to the logs in the water would result in a serious injury, if not death n1.
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n1 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 the the presence of the violation."
[*8]
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Although the standard does not prescribe the form of protection from falling that shall be provided, the testimony of the witnesses concerning the life lines, temporary guardrails and temporary rope or cable barriers attached to the permanent stanchions support a finding that the Respondent has failed to show that compliance with the cited standard is not feasible (T. 38, 59, 68, 72). Compliance can also be achieved by not stowing the hatch pontoons as deck cargo where the hatch tenders are deprived of the protection from falling provided by the gunwhales (T. 74-75, 78).
The Respondent is one of the large stevedoring companies that operates in the Puget Sound area of the State of Washington. At the time of the inspection, the Respondent had 213 employees working on 4 ships in the Port of Tacoma (T. 41).
There were 3 hatch tenders exposed to the hazard of falling from the pontoons into the water or onto the log booms because of the failure of the Respondent to comply with the cited standard (29 CFR 1918.33(b)).
In evaluating the evidence of record as related to the criteria of section 17(j) of the [*9] Act n2, an appropriate civil penalty for this violation of 29 CFR 1918.33(b) of the Act is $600.
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n2 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 places of employment maintained by the Respondent on board the M/S "Eastern Ocean" and the M/S "Golden Explorer" in the Port of Tacoma, Washington was inspected by an authorized [*10] employee of the Secretary of Labor on June 17, 1975, in accordance with section 8 of the Act.
4. The Respondent was not in compliance with 29 CFR 1918.33(b) oas charged in the citation issued on June 25, 1975 and amended on July 1, 1975, and thereby was in violation of section 5(a)(2) of the Act.
5. This violation of 29 CFR 1918.33(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 $600.
ORDER
Based on the foregoing findings of fact and conclusions of law, it is ORDERED:
1. That item 1 of citation number two for a serious violation issued to the Respondent on June 25, 1975 and in an amended form on July 1, 1975 be, and in hereby affirmed.
2. That the proposed penalty of $700 for this serious violation be vacated and that a penalty of $600 be assessed therefor, and that the same be, and are hereby vacated and assessed accordingly.
THOMAS J. DONEGAN, Judge
DATED: March 18, 1976, Seattle, Washington