Docket No. 161

SUN SHIPBUILDING AND DRYDOCK COMPANY

OSHRC Docket No. 161

Occupational Safety and Health Review Commission

October 3, 1973

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: On August 25, 1972, Review Commission Judge Herbert E. Bates issued his decision in this case holding respondent in violation of section 5(a)(2) 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). Thereafter, under authority granted by section 12(j) of the Act, I directed that the decision be reviewed by the Commission.

The record discloses that, as a result of single course of conduct, respondent was cited by the complainant under both section 5(a)(1), the so-called general duty requirement, and section 5(a)(2) for failure to comply with a more specific occupational safety and health standard promulgated under the authority of section 6 of the Act. While the decision found noncompliance with the latter, his order left the disposition of the alleged violation of section 5(a)(1) unclear.

After having reviewed this case, the Commission orders that the citation for violation of section 5(a)(1) is dismissed. In all other respects, the decision of the Judge is affirmed.

Citing a respondent under the general duty requirement of the Act is not appropriate where there exists a specific occupational safety and health standard covering the conduct at issue. The law is well settled that "[h]owever inclusive may be the general language of a statute, it will not be held to apply to a matter specifically dealt with in another part of the same enactment." Fourco Glass Co. v. Transmirra Products Corps., 353 U.S. 222, 229 (1957), citing Ginsberg & Sons v. Popkin, 285 U.S. 204 (1932).

This principle was recognized by Congress in the passage of the general duty requirement. The report of the Senate Labor and Public Welfare Committee n1 explains the purpose of section 5(a)(1) and its relationship to the specific standards as follows:

The general duty clause in this bill would not be a general substitute for reliance on standards, but would simply enable the Secretary to ensure the protection of employees who are working under special circumstances for which no standard has yet been adopted.

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n1 Senate Report No. 91-1282, 91st Congress, 2d Session, on the Occupational Safety and Health Act of 1970.

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Thus, where any occupational safety and health standard has been promulgated under the authority of section 6 of the Act, which regulates a specific type of conduct, the complainant must cite all alleged failures to comply with such conduct under that particular standard, rather than the general duty clause.

Congress delegated full responsibility for the promulgation of occupational safety and health standards to the complainant. It enacted section 5(a)(1) only to cover those situations which might not be treated by a standard promulgated by the complainant.

Complainant recognized this principle and adopted it to regulate his activities under this Act when he promulgated the regulation which is published as 29 CFR 1910.5(c)(1), which provides that if a particular standard is specifically applicable, it shall prevail over any different general standard which might otherwise be applicable.

In the opinion of this Commission, if a particular occupational safety and health standard is applicable, it should prevail over any other standard of more general application, whether the general standard be one promulgated by the complainant, or is the general duty clause itself.

CONCURBY: CLEARY

CONCUR:

CLEARY, COMMISSIONER, concurring: I concur in the disposition of this case vacating the alleged violation of section 5(a)(1).

Respondent was cited under a specific standard and the general duty clause for the same alleged violative condition. The Judge correctly concluded that the particular standard was applicable.

The majority opinion correctly concludes that:

[I]f a particular occupational safety and health standard is applicable, it should prevail over any other standard of more general application, whether the general standard be one promulgated by the complainant, or is the general duty clause itself.

But this restatement of a common rule of construction should not inhibit citations issued in the alternative. I would restrict its application to the finding of a respondent in violation for failure to comply with a specific standard rather than a general standard or in violation of the general duty clause.

I believe that the Secretary should not only be permitted, but should be encouraged, to cite and plead in the alternative. The Secretary could cite an employer under more than one standard for a particular industry or a standard and the general duty clause, fully describing the condition for which the employer may be found in violation of the Act. This is in accord with rule 8(e)(2) of the Federal Rules of Civil Procedure, allowing alternative claims to be pleaded, even though they may be inconsistent. Pleading in the alternative has a long tradition in the law.

Under this procedure, employers are assured of promptly issued specific citations. At the same time, dismissals based on deficient citations, which frustrate the avowed purpose of the Act, can be reduced or eliminated.

[The Judge's decision referred to herein follows]

BATES, JUDGE, OSAHRC: This is a proceeding under the provisions of Section 10(c) of the Occupational Safety and Health Act of 1970, P.L. 91-596; 84 Stat. 1601; 29 U.S.C. 651 et. seq. (hereinafter the Act) to review several citations referred to below, which were issued by the Secretary of Labor against the Respondent, Sun Shipbuilding and Drydock Company, Inc. (hereinafter sometimes referred to as "Sun Ship") pursuant to Section 9(a) of the Act, which citations included proposed assessment of penalties upon the alleged violations pursuant to Section 10(a) of the Act.

The citations and notification of proposed penalties were issued on October 19, 1971. The Respondent noted its intent to contest the charges by letter dated November 8, 1971. The case was assigned to the undersigned for trial, and the issues joined by complaint and answer. A prehearing conference was held on April 4, 1972, immediately preceding the commencement of the hearing per se. The hearing continued from that date through April 6, 1972, inclusive, and produced 795 pages of testimony.

Mr. Ernest Wilson, President, Local 802, and Mr. James Snock of the authorized employee representative noted in the case caption, were present at the instant hearing.

There exists no controversy that the Respondent is a Delaware corporation maintaining its principal office and place of business at the foot of Merton Avenue, Chester, Pennsylvania, where it manufactures ships and ship machinery, and repairs and overhauls ships, dealing largely with customers located outside of the Commonwealth of Pennsylvania.

The Respondent is an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Act, and is subject to the Act and the safety and health standards duly promulgated thereunder. The Occupational Safety and Health Review Commission (hereinafter the Commission) has jurisdiction of this matter under Section 10(c) of the Act.

The undersigned notes at this time that this action is the first of two actions which the Secretary of Labor has brought against the Respondent under the Act. It should be noted that the Secretary on November 22, 1971, issued a citation for an alleged serious violation of a safety standard relating to excessive noise at the Respondent's workplace. The resultant hearing was conducted by Commission Judge Joseph L. Chalk, in Philadelphia on March 22 through May 25, 1972.

The captioned case was initiated by the Complainant's issuance of four citations against the Respondent, one of which charged a serious violation and the remainder charging non-serious violations within the meaning of the Act. These citations (which will be set forth in detail below) were based on alleged violations found to exist after an inspection of the Respondent's workplace conducted by inspectors of the Occupational Safety and Health Administration on October 5, 6, and 7.

The Secretary, in his Citation for a Serious Violation and in the Complaint, charged the Respondent with violation of both subsections of Section 5(a) of the Act, i.e., that the Respondent violated Section 5(a)(1) of the Act by failing to furnish to each of his employees employment and a place of employment which was free from recognized hazards that were causing or were likely to cause death or serious physical harm to his employees and Section 5(a)(2) of the Act in that "a load was not well secured and properly balanced in a lifting device before it was lifted more than a few inches," in violation of 29 CFR 1910.179(n)(3) which standard prohibits such procedure as quoted above.

The undersigned notes that the Citation and Complaint were inartfully drawn in that the general provisions of Section 5(a)(1) should be utilized only when no detailed standard covering the activity complained of exists, and here the provisions of the aforementioned standard are applicable (as the Respondent asserts in his memorandum supporting his proposed order), which is treated more fully under the heading of "Discussion," below.

However, there is no showing that the Respondent has been in any way prejudiced, surprised or disadvantaged by this technical pleading departure, nor was a "double liability" or a "multiple citation" imposed on the Respondent through the Citation and Complaint, as urged by the Respondent and as discussed infra.

The three non-serious citations contain a total of ten itemized violations for which the penalties proposed amount to $327.00, which are detailed as follows:

		Proposed
Standard or regulation	Description	penalty
Citation #1, Item #1
29-CFR-1910.133(a)(1)	No protective eye and face	$30.00
	equipment was provided by
	employer for employees
	assigned to work with
	welders and burners.
Citation #1, Item #3
29-CFR-1910.244(b)	Blast cleaning nozzles were	30.00
	not equipped with operating
	valves which must be held
	open manually. No support
	was provided on which the
	nozzle may be mounted
	when not in use.
Citation #1, Item #4
29-CFR-1910.132(a)	No protective equipment for	$30.00
	eyes, face, head, and
	extremities was provided by
	employer for spray painters
	using Rust Ban 191 and
	Dimetcote.
Citation #2, Item #1
29-CFR-1910.28(c)(13)	Tube and coupler scaffold	30.00
	outside of blacksmith shop
	was not tied to and securely
	braced against the building.
Citation #2, Item #2
29-CFR-1910.28(c)(14)	Tube and coupler scaffold	30.00
	not provided with guard-rail,
	mid-rail and toe-board.
Citation #2, Item #3
29-CFR-1502.52(a) as	The means of access and	75.00
adopted by 29-CFR-	walk-ways leading to working
1910.14	areas as well as the working
	areas themselves were not
	adequately illuminated -- #4
	port and center tanks Hull
	657.
Citation #2, Item #4
29-CFR-1502.32(d) as	Suitable fire extinguishing	30.00
adopted by 29-CFR-	equipment was not available
1910.14	in the work area -- Hull 657.
Citation #2, Item #5
29-CFR-1502.51(a) as	Welding leads were not	30.00
adopted by 29-CFR-	elevated over or placed
1910.14	under walkways or covered
	by adequate crossover
	planks -- Hull 657.
Citation #3, Item #1
29-CFR-1502.41(i)(1)	Runways more than 5 feet	30.00
as adopted by 29-CFR-	above a solid surface not
1910.14	provided with mid-rail;
	staging more than five feet
	above a solid surface not
	equipped with a back-rail or
	mid-rail -- Hull 657.

At the pre-trial conference, the Respondent repeated, as it had in its Answer, that it was not contesting Item 2 of Citation #1 (non-serious) which charged a violation of 29 CFR 1910.178(m)(5) in that "A Yale fork lift truck #336, was left unattended with motor running." Respondent's counsel advised that the violation was immediately abated, the $12.00 penalty was not disputed, reiterating that it was company safety policy, communicated to its forklift operators, that such trucks should never be left unattended.

The Respondent also withdrew, with objection, its contest of Item 3 of the above citation wherein it was charged that "Blast cleaning nozzles were not equipped with operating valves which must be held open manually. No support was provided on which the nozzle may be mounted when not in use," in violation of 29 CFR 1910.244(b). This condition was properly abated, and Respondent did not contest the $30.00 assessed penalty.

In view of the above, and in the absence of any objection thereto, I find that the Respondent's withdrawal of contest as to the aforementioned items was properly effected.

Having heard the testimony of the witnesses and having considered the same together with the exhibits, stipulations, representations and admissions of the parties, I conclude that substantial evidence on the record considered as a whole supports the findings of fact listed under the appropriate headings below.

FINDINGS OF FACT RELATED TO THE PARTIES AND JURISDICTION

1. The parties stipulated that Sun Shipbuilding and Drydock Company is a Delaware corporation with its principal place of business located in Chester, Pennsylvania, engaged in heavy manufacturing, shipbuilding and ship repair, and sells a good percentage of its products without the Commonwealth of Pennsylvania (Tr. 8-16 to 8-21, 9-4 to 9-8).

2. It was further agreed between the parties that the Respondent's net worth for the year preceding the year in which the violation occurred was in excess of $15 million and that Sun Ship employes approximately 3,500 persons (Tr. 12-16 to 13-1, 18-21 to 19-1).

FINDINGS OF FACT RELATED TO THE CITATION FOR SERIOUS VIOLATION

3. On Respondent's third work shift on the night of September 15, 1971, in its fabrication shop #47, certain employees of Respondent attempted to move by crane a longitudinal angle or beam, 40 feet in length from a location where they were piled to a job site in another part of the shop.

4. These employees attempted to lift and transport the angle by crane from which was suspended a clamp, which witnesses at the hearing referred to variously as a gooseneck clamp, shoe-type clamp, or "pad" (C-2, a, b, and c; Tr. 31, 64, 335).

5. This clap was so designed that it could not positively lock, grip, or secure the angle, but could act only to balance the angle when placed in its center (Tr. 35, 36, 37, 336).

6. Testimony indicated that normally an angle or beam was never lifted more than approximately 4 feet with this type of clamp and then always further hand balanced by employees walking along the ground at each end of the beam (Tr. 39, 67).

7. On the instant occasion the angle was lifted to a height of approximately fifteen or twenty feet by the crane with the use of this type clamp.

8. The angle was moved in this manner at least 30 to 40 feet (Tr. 68), and possibly more (Tr. 38). Testimony indicated that this far exceeded the distance angles or beams were normally transported with a shoe-type or goose-neck clamp at Respondent's workplace (Tr. 39).

9. Further, the angle could not be moved on a straight line with an employee balancing each end, as there was work in process directly between the pick up point and the ultimate destination of the angle obstructing the balancers (Tr. 35, 65, 66).

10. The crane operator therefor lifted the beam over the obstructions, and the unsecured and un-balanced angle beam slid out of the goose-neck clamp as it was approaching the job site and struck and employee (Tr. 39, 41, 66).

11. Officials of Respondent and the crane operator admitted that the above-described use of the goose-neck clamp was a use for which it was not designed nor intended (Tr. 70, 336).

12. One witness testified "on occasion" he has seen beams slip out of such a clamp at the Respondent's workplace (Tr. 39).

13. Respondent's crane operator and other employees, prior to the above-described accident, had never been formally instructed on the limitations or use of this type of clamp for transporting beams (Tr. 40, 67).

14. The Philadelphia Area Director determined that the above-described method by which the goose-neck clamp was used to transport the angle presented a recognized hazard which was likely to cause death or serious physical harm (Tr. 388-390).

15. Accordingly, the Area Director issued a citation for Serious Violation of the Act and of 29 CFR Section 1910.179(n)(3)(C-7).

16. In proposing a penalty, therefor, the Area Director assessed a civil penalty of $600.00 which was reached by giving Respondent maximum reduction credit for good faith and past history, but no credit for size of the business. The unadjusted penalty base was set at $1,000 in accordance with statute and Department of Labor directives as contained in the Department's Compliance Manual (Tr. 391).

FINDINGS OF FACT RELATED TO CITATION 1, ITEM 1, A NON-SERIOUS VIOLATION

17. A citation issued to the Respondent on October 19, 1971, alleged a violation of 29 CFR 1910.133(a)(1) which provides, "Protective eye and face equipment shall be required where there is a reasonable probability of injury that can be prevented by such equipment. In such cases, employers shall make conveniently available a type of protector suitable for the work to be performed and employees shall use such protectors. No unprotected person shall knowingly be subjected to a hazardous environmental condition. Suitable eye protectors shall be provided where machines or operations present the hazard of flying objects, glare, liquids, injurious radiation, or a combination of these hazards."

18. The alleged violation is based on the finding of the occupational safety and health compliance officer that Sun Ship employees that were working with welders in the boiler shop were not adequately protected against flash, even though those employees were wearing clear, impact, non-contoured safety glasses at the time (Tr. 272-18 to 273-24, 274-24 to 275-19 to 276-5).

19. The Area Director determined that this violation (and the other non-serious violations herein referenced to) was other than serious in that any injury sustained relative thereto would probably not be serious nor would death be a likely consequence (Tr. 343).

20. In assessing a proposed penalty for this violation (as well as for the other non-serious violations herein referred to), the Area Director considered the gravity of the violation and gave maximum reduction credit for the Respondent's good faith and past safety history; no credit was given for Respondent's business size, pursuant to a directive of the Department of Labor, since Respondent had more than 100 employees (C-11; Tr. 384-85).

21. The record is uncontradicted that the safety glasses are made available to employees from the company, that Sun Ship requires its employees to wear these glasses, and that Sun Ship enforces this rule by disciplining employees (Tr. 117-12 to 117-13, 118-12 to 119-5, 127-2 to 127-6, 127-7 to 127-12, 274-3 to 274-4, 683-6 to 683-13, 715-2 to 715-3; Exhibits R-1, Rules 2.2 and 2.5 at p. 11 and 12, and R-3).

22. The company-issued clear lens safety glasses were available to and being used by Sun Ship's employees at the time of the federal inspection (Based on Requests Nos. 27 and 28).

23. The safety glasses issued by Sun Ship and worn by its employees are adequate to protect employees who work with or around welders against the hazard of "flash" from a welder's arc (Tr. 722-2 to 722-8, 725-3 to 725-10, 726-4 to 726-16). In addition, other evidence submitted by the Respondent indicates that clear safety glass lenses do filter out ultra-violet rays which cause "flash" (Tr. 747-12 to 747-16, 753-2 to 753-5).

24. There was no credible evidence adduced at the hearing which indicated that the clear lens safety glasses issued by the company are not adequate to protect employees who work around welders from the danger of flash. The OSHA compliance officer made no effort to ascertain whether any Sun Ship employee had suffered any such injury while wearing these glasses (Tr. 232-22 to 233-2, 235-2 to 235-6.

25. None of the employees who might have occasion to work with a welder, including shipfitters, liners, regulators, is required by the demands of the job to look at the welding arc. Both common sense and the working rules of the company dictate that an employee working with a welder looks away from the weld, has moved on to the next location, or shields his eyes from the arc (Tr. 683-19 to 683-22, 682-25 to 683-5, 682-13, 681-17 to 681-23, 680-23 to 681-4, 718-14 to 718-16; Exhibits R-25, R-26 and R-27).

26. Sun Ship's decision to issue and require the wearing of the safety glasses described in Finding #18 above, instead of tinted glasses finds support also, in a company study made prior to the federal inspection. The study shows that the hazard of slipping and tripping in connection with the use of tinted lens safety glasses is substantially higher than any alleged benefit gained from such tinted glasses. This is because the tinted lens significantly reduced visual acuity by limiting the amount of light reaching the eye (Tr. 686-21 to 687-7, 687-12 to 687-16, 718-25 to 719-8, 720-21 to 720-23; Exhibits R-21 and 22).

FINDINGS OF FACT RELATED TO CITATION 1, ITEM 4, A NON-SERIOUS VIOLATION

27. 29 CFR 1910.132(a) provides in pertinent part: "Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided . . . wherever it is necessary by reason of hazards of processes . . . (or) chemical hazards . . . encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact."

28. The alleged violation of 29 CFR 1910.132(a) is based on conversations with two first-class painters, Chester Erb and Edward Mackey, by an inspector during the course of the OSHA inspection (Tr. 305-14 to 305-19, 521-24 to 522-14).

29. All paints coming into the yard are reviewed as to their chemical properties and composition by Joseph Ross, Sun Ship's certified marine chemist. Mr. Ross, in conjunction with Robert Hartman, Sun Ship's painting supervisor, develops a protocol for the use of a particular paint, which includes the personal protective equipment to be worn by the painters when using that paint (Tr. 486-24 to 487-9, 484-23 to 484-25, 489-1 to 489-10, 492-12 to 492-18, 515-14 to 515-20, 510-18 to 511-1, 521-10 to 521-16, 522-15 to 522-25).

30. Mr. Erb and Mr. Mackey were using Dimetcote-4 and Rust-Ban 191, respectively. Both of these products were reviewed by Mr. Ross when they came into the Sun Ship yard and he made certain recommendations with respect to the protective equipment to be used in connection with these paints (Tr. 487-10 to 487-20, 489-1 to 489-10, 489-24 to 490-3, 490-13 to 490-17).

31. The manufacturer's labeling of Dimetcote warns against its being allowed to come in contact with the skin (Tr. 295-60).

32. Information concerning the proper equipment to be used is disseminated to individual painters by their leaders, supervisors and foremen. Further, all supervisory levels in the painting departments direct and monitor the day-to-day use of the prescribed protective equipment by employees (Tr. 490-20 to 491-14, 494-13 to 494-21, 523-1 to 524-3, 531-15 to 531-20, 537-7 to 537-17, 538-1 to 538-23).

33. The experience and demonstrated knowledge of a painter at Sun Ship determines his job classification, wage rate, extent of supervision, and amount of responsibility exercised in the performance of a specific job. Both Erb and Mackey were first-class painters (Tr. 423-18 to 424-5, 489-15 to 489-23, 522-1 to 522-14). However, the Respondent supervises closely all special painting jobs and the use of particularly hazardous paints.

34. While painting, Mr. Erb wore a respirator, gloves, safety glasses, painter's hat, hard hat, cheesecloth and cold cream on exposed areas of his face (Tr. 414-11 to 414-15, 415-7 to 415-19, 416-2 to 416-10, 416-22 to 417-1, 417-2 to 417-6, 417-21 to 417-22; Exhibits R-2, R-3). Mr. Erb was not painting when Mr. Saul, the OSHA compliance officer, approached him and initiated the conversation (Tr. 411-6 to 411-13, 412-10 to 412-14, 413-1 to 413-8).

35. The safety glasses issued by the company were adequate to keep paint out of Mr. Erb's eyes. In those situations where the glasses do not provide sufficient protection, tight fitting goggles, face shields and other special equipment are provided to painters by the company (Tr. 418-13 to 418-24, 419-14 to 420-10, 422-19 to 423-8, 423-18 to 424-2, 530-18 to 534-19; Exhibits R-4, R-5, R-8, R-9(a), (b), (c) and (d)).

36. The cold cream, cheesecloth and gloves worn by Mr. Erb while painting, protected his skin from direct contact with the paint (Tr. 411-14 to 411-23, 416-5 to 416-9, 417-2 to 417-14, 423-9 to 423-17, 487-18 to 488-21, 491-15 to 492-5).

37. Mr. Mackey was not painting when approached by the compliance officer (Tr. 435-3 to 435-21).

38. Mackey's uncontradicted testimony establishes he wore a respirator, gloves, and cheese-cloth while painting, that the ventilation and exhaust system in the spray booth protected him from the spray and that he did not have paint on his skin (Tr. 438-15 to 438-17, 441-10 to 441-24, 447-13 to 447-15, 454-10 to 454-16).

39. Mr. Mackey further testified that he found the combination of respirator, cheesecloth, and gloves adequate to protect him while in the booth, and that Rust-Ban 191, a water soluble paint, in his experience, was not harmful to his skin. This latter conclusion is supported by the evaluation of the marine chemist (Tr. 436-9 to 436-25, 441-6 to 441-24, 457-7 to 457-17, 487-18 to 487-21).

FINDINGS OF FACT RELATED TO CITATION 2, ITEM 1, A NON-SERIOUS VIOLATION

40. This alleged violation and the violation alleged in Citation 2, Item 2 were based upon the purportedly improper use of a scaffold outside the door of the blacksmith shop (Tr. 309-18 to 310-2, 310-6 to 310-9, 313-23 to 314-4, 315-5 to 315-9, 471-13 to 471-15).

41. The Complainant erroneously identified the scaffolding in question as being the "tube and coupler type," which was more than 10 feet above the ground, not tied to and securely braced against the building. Employees of the Respondent were observed to be using this scaffold (Tr. 147-48; 222; 315; 308-312).

42. The scaffold was in fact an "Advance" rolling type and made up of three interlocking sections held together by pins. These pins are not "couplers" (Tr. 464-14 to 464-18, 596-18 to 596-21, 597-13 to 597-17, 599-13 to 600-9; Exhibit R-13). The Secretary's witnesses found it difficult to describe the difference between a tube-and-coupler scaffold and a manually propelled mobile platform or scaffold tower (Tr. 313-14 to 313-19, 314-1 to 314-3).

43. The scaffold was wheeled and the wheels were locked in place when it was in use (Tr. 310-6 to 310-9, 313-5 to 313-6, 463-17 to 463-18, 481-25 to 482-11, 481-14 to 482-19, 482-25). The wheels made this particular scaffold portable and adapted to the type of job being performed, which required movement along a fixed work area, here a door track covering 17 feet (Tr. 362-21 to 362-25, 482-12 to 482-25).

44. This manually propelled mobile scaffold was 18 feet 10 inches in height, 8 feet in length and 5 feet in depth. All braces, mid-rails, back-rails, toe-boards and end rails were in place and the wheels were locked (Tr. 310-6 to 310-8, 313-5 to 313-6, 464-7 to 464-13, 464-20 to 465-3, 465-5 to 465-17, 471-17 to 472-10, 480-24 to 481-4, 481-14 to 481-19).

45. There is no requirement that such a scaffold be secured to a building except as provided in 29 CFR 1910.29(3)(i), and the facts here show that the height (i.e., 18 feet 10 inches) of this tower did not exceed by four times its lease base dimension (i.e., 5 feet). Therefore, there was no requirement that the scaffold be secured to a permanent structure.

FINDINGS OF FACT RELATED TO CITATION 2, ITEM 2, A NON-SERIOUS VIOLATION

46. The above requested findings of fact numbered 40, 43 and 44 are incorporated herein by reference.

47. The scaffold was set up so that the employee assigned to it would be standing on a work level protected by a midrail and backrail. The employee could reach the specific working area from that position (Tr. 472-22 to 473-4, 473-13 to 473-24).

48. The employee assigned to work on this scaffold by his leader altered the work platform within 45 minutes of starting the job by moving a plank to a higher position to the top of the scaffold so that he could sit to work rather than stand. It was this unauthorized and independent act in contravention of Respondent's work rules and the employee's training, which put the employee in a position on the scaffold where his working level was not guarded by a midrail, backrail and toe board (Tr. 475-11 to 476-6, 476-17 to 476-20, 483-5 to 483-25; Exhibit R-1, Rule 14.3 at p. 17).

FINDINGS OF FACT RELATED TO CITATION 2, ITEM 3, A NON-SERIOUS VIOLATION

49. 29 CFR 1502.52(a), as adopted by 29 CFR 1910.14, provides: "All means of access and walkways leading to working areas as well as the working areas themselves shall be adequately illuminated."

50. Sun Ship's alleged violation of this standard is based on the judgment of the OSHA compliance officer that the No. 4 port-wing and center tanks approximately 75 feet deep were poorly illuminated on one day of the inspection. He testified that this conclusion was based upon his perception of the situation and admitted that no light meter reading was taken to determine the exact illumination (Tr. 317-21 to 317-24, 318-16 to 318-19, 319-7 to 319-9).

51. Testimony indicated that lighting conditions on the day of the inspection were relatively the same as prior to the inspection (Tr. 154, 230, 231).

52. The inspection revealed that supervisors were carrying flashlights in the tank, but the evidence indicated the use of flashlights as an extra safety precaution in the event the lighting system fails, and as a convenient method of pointing out a specific job to an employee (Tr. 93-4 to 93-5, 99-8 to 99-15, 616-15 to 616-21).

53. The testimony of Mr. Wilson, the union president, that the lighting was poor on the day of the inspection was based on his own judgment, and his testimony that the work area where William Swahl was working was dark and, by implication inadequately illuminated, is contradicted by Mr. Swahl's testimony that the lighting at his job site was adequate (Tr. 99-8 to 99-17, 152-5 to 152-6, 155-4 to 155-7, 160-19 to 160-20).

54. Roger Bligh, the company's maintenance superintendent, is responsible for lighting throughout the shipyard, and has a facilities foreman and general foreman under him who are responsible for the maintenance of lighting in the shipyard. The installation and daily maintenance of the temporary lighting system on board ship is carried out by a 40 man crew (Tr. 602-15 to 602-22, 603-5 to 603-12).

55. Prior to the commencement of work on Hull 657, the maintenance department, working from a general plan of the hull, which shows all dimensions and the locations of tanks, laid out a general lighting plan which took both safety and working condition illumination factors into account (Tr. 604-3 to 604-25).

56. The general lighting plan in operation in Hull 657 at the time of the inspection was comprised of a series of double mogul sockets equipped with two 300-watt bulbs above and below the staging. The lighting fixtures above the staging were welded to the deck and were approximately 67 feet from the bottom of the tank. The lighting fixtures below the staging are approximately 40 feet from the bottom of the tank. The lighting installed in the center tank is approximately double that in the wing tanks (Tr. 607-12 to 607-16, 615-14 to 616-3).

57. Once installed, the lighting system is inspected and maintained on a daily basis by a crew of temporary light men from 33N department who were assigned to the hull (Tr. 610-3 to 611-1, 622-14 to 622-21).

58. In addition, Sun Ship provides handlights for use by employees who may find that shadows in a particular location reduce the light available for a particular job. The initial lighting plan for each Hull included power sources for these handlights, known as "plug boxes" (Tr. 604-17 to 604-25, 606-11 to 606-15, 608-6 to 608-22).

59. This lighting plan was in operation in the No. 4 port and center tanks in October of 1971 at the time of the inspection (Tr. 609-2 to 609-6).

60. The illumination in No. 4 port and center tanks was adequate to permit employees, supervisors, and berthing inspectors to read blueprints throughout the tanks of Hull 657 without the aid of flashlights. In addition, Sun Ship monitored the adequacy of the illumination in Hull 657 by the utilization of regular light meter readings (Tr. 612-16 to 613-14, 618-11 to 618-16, 702-20 to 705-17).

61. The illumination in Hull 657 at the time of the federal inspection complied with the Pennsylvania lighting code, which was used as a guide because of the ambiguous phrase "adequate illumination" in 29 CFR 1502.52(a) (Tr. 612-10 to 612-20, 613-24 to 614-15).

FINDINGS OF FACT RELATED TO CITATION 2, ITEM 4, A NON-SERIOUS VIOLATION

62. 29 CFR 1502.32(d) as adopted by 29 CFR 1910.14 provides: "Suitable fire extinguishing equipment shall be immediately available in the work area and shall be maintained in a state of readiness for instant use. In addition, when hot work is being performed aboard a vessel and pressure is not available on the vessel and pressure is not available on the vessel's fire system, an auxiliary supply of water shall be made available where practicable, consistent with avoiding freezing of the lines of hose."

63. There were no fire extinguishers in the interior of Hull 657 at the time of and prior to the inspection (Tr. 165, 322).

64. Fire hazards were present in this workplace in the form of wood staging, planks, and combustible debris of wood, paper, rags, and similar material (Tr. 167, 172, 323).

65. Certain employees in this area were preforming hot work, including welding; there were approximately 50 employees in one of the tanks (Tr. 322).

66. The nearest fire extinguishers were located on the main dock, approximately 25 feet above where employees were working (Tr. 165, 244, 322).

67. Roger Bligh, Sun Ship's superintendent of maintenance is responsible for the supervision of the fire prevention program in the shipyard (Tr. 546-3, 546-15 to 546-18). The responsibility for inspecting, repairing, replacing, recharging and stationing extinguishers located on the shipways and decks of a hull under construction is exercised daily by employees assigned to the 74 Department, Tool Room and Hose Repair (Tr. 549-9 to 550-3, 688-24 to 689-20, 691-3 to 691-21, 693-8 to 693-10, 693-15 to 693-22).

68. Hull 657 was located on No. 6 shipway. At the time of the federal inspection, in addition to the fire fighting equipment located on the deck, fully charged fire extinguishers were positioned every 50 to 100 feet along the shipway rail on both sides of the hull. On the shipway itself was a portable water extinguisher system both fore and aft and a network of hydrants capable of supporting additional hoses along the entire length of the shipway. Also, an additional fire box containing six extinguishers was in the immediate vicinity of No. 6 way (Tr. 548-8 to 548-12, 548-13 to 548-18, 548-21 to 549-3, 553-17 to 553-24, 556-3 to 556-5, 641-17 to 641-20, 689-21 to 690-6, 692-4 to 692-7, 692-20 to 693-1; Exhibit R-24).

69. All of the fire fighting equipment was distinctive, marked and placed on the shipway and deck in clear view of employees who are assigned to work on Hull 657 (Tr. 553-24 to 554-3, 547-10 to 547-16, 557-5 to 557-11, 589-8 to 590-6, 641-19 to 641-23, 646-25 to 647-5, 690-14 to 691-2, 693-2 to 693-5).

70. The fire fighting equipment located on the deck or on the shipway was inspected daily by Sun Ship employees in connection with the construction of Hull 657 (Tr. 550-1 to 550-3, 691-3 to 693-10, 690-10 to 699-14).

71. On the day of the federal inspection, the deck of Hull 657 was equipped with two constant pressure water lines with 300 foot hoses located fore and aft on the deck. In addition, a fire extinguisher box positioned at the gangway and containing six to eight fully charged extinguishers was on the deck (Tr. 690-6 to 690-17, 547-20 to 548-7, 548-19 to 549-3, 553-17 to 553-24).

72. The No. 4 center tank of Hull 657 was approximately 125 feet long and 63 feet wide. Employees working in this tank had 10 separate and distinct means of exit through the bulkheads or the deck (Tr. 635-19 to 635-25, 636-6 to 636-18, 639-19 to 639-22; Exhibits R-15 and R-16).

73. The No. 4 port-wing tank of Hull 657 was approximately 125 feet long and 35 feet wide. A large bilgeplate opening measuring 30 feet by 5 feet 6 inches was the most frequent and available means of ingress and egress in this tank. In addition, employees working in this tank had at least 4 other means of exit through the bulkheads or deck (Tr. 635-19 to 635-22, 636-1 to 636-7, 636-19 to 637-5, 638-2 to 638-23, 648-22 to 649-23; Exhibits R-15 and R-16).

74. The fire fighting equipment placed on the deck and shipway was "immediately" accessible to employees working in the No. 4 port-wing and center tanks of Hull 657 either through the bilgeplate opening and other openings in the deck and bulkheads (Tr. 322-10 to 322-13, 552-19 to 553-24, 556-6, 556-11, 562-11 to 563-8, 643-7 to 643-13, 696-4 to 696-22).

75. The consistent pattern of location of the fire fighting equipment, including extinguishers, on Hull 657 facilitated the maintenance of this equipment and the increases of the probability that an employee would be able to more easily locate fire fighting equipment if it were needed (Tr. 576-8 to 577-11, 647-19 to 648-13, 694-13 to 694-25).

FINDINGS OF FACT RELATED TO CITATION 2, ITEM 5, A NON-SERIOUS VIOLATION

76. 29 CFR 1502.51(a) as adopted by 29 CFR 1910.14 provides in pertinent part: ". . . All staging platforms, ramps, stairways, walkways, aisles and passageways . . . shall be kept clear of all tools, materials and equipment except that which is in use . . . Hose and electric conductors shall be elevated over or placed under the walkway or working surfaces or covered by adequate crossover planks."

77. The inspection disclosed that welding leads, or lines were lying on and across walkways in Hull 657; no bridges or crossover planks were provided (Tr. 175, 325, 327).

78. This condition existed prior to the inspection (Tr. 175-6, 253-4).

79. At least since 1966 the Respondent has had a consistent practice of issuing written and oral instructions and warnings to supervisors and to employees in order to insure the placing of welding leads under or elevated above walkways or working surfaces or covered planks (Tr. 734-24; Exhibits R-1, R-21 and R-22). Prior to and at the time of the federal inspection the company provided and required the use of trusses, trestles and line hooks for the purposes of placing lines under or elevated above walkways (Tr. 733-9, 734-15).

80. The only reason welding leads were found on the walkways at the time of the OSHA inspection was because certain employees failed to "cooperate" with safety regulations and disobeyed specific company written and oral directions and warnings concerning the proper use of trusses, trestles, line hooks and the placement of welding leads (Tr. 735-11 to 735-24).

FINDINGS OF FACT RELATED TO CITATION 3, ITEM 1, A NON-SERIOUS VIOLATION

81. 29 CFR 1502.41(i)(1) as adopted by 29 CFR 1910.14 provides in pertinent part: "Scaffolding, staging, runways or working platforms which are supported or suspended more than 5 feet above a solid surface . . ., shall be provided with a railing which has a top rail . . . and a midrail. . . .'

82. Inspection of Hull 657 disclosed that runways more than 5 feet above a solid surface which were being used by employees in walking from one area to another had no midrails (Tr. 183, 327-8).

83. This condition had also been observed at least once prior to the inspection (Tr. 183).

84. An employee (Swahl) was observed working on a staging which had no backrail or midrail; although there was a pipe approximately four feet beneath the staging, the inner bottom of the hull was more than ten feet below (Tr. 88-9, 183-4, 328).

85. The pipe was suspended from hangars and its top surface was rounded; the employee had to balance himself carefully in attempting to walk over it (Tr. 89, 330, 332).

86. The company has required backrail and/or toprail on all ". . . scaffolding, staging, runways or working platforms . . ." for at least twenty (20) years (Tr. 711-24). The company has required midrail on all ". . . scaffolding, staging, runways or working platforms" for at least the last two (2) years (Tr. 711-12).

87. The Respondent issued written and oral instructions and warnings to supervisors and employees that employees were not to work on ". . . scaffolding, staging, runways or working platforms" above five feet which did not have the proper backrail and midrail (Tr. 708-16, 709-17).

88. Employee Swahl was specifically informed of this policy and he (Swahl) also received written material prior to the date of the inspection informing him that he was not to work on scaffolding, staging, runways of working platforms" above five feet without backrail or midrail (T. 92-7, 99-7, 101-2, 103-18, 104-12, 105-5; Exhibit R-1).

89. If at the time of the inspection employee Swahl was working on improperly constructed ". . . scaffolding, staging, runways or working platforms" he did so only because he failed to cooperate with respect to the applicable safety regulations and because he intentionally disobeyed clear, direct and specific written and oral directions and warnings from the company (Tr. 92-12, 95-6).

DISCUSSION

This discussion is limited to certain aspects of the serious violation involved in this case, and to the reasonableness of the penalties proposed for that violation as well as for the non-serious violations which were proven by the Secretary as noted infra.

As I noted earlier in this decision, the Citation for Serious Violation (No. 1) and the Complaint, were drawn inartfully, and essentially allege that the Respondent violated both Sections 5(a)(1) and 5(a)(2) of the Act.

The Respondent was charged with violating Section 5(a)(1) of the Act (sometimes referred to as "the general duty clause") by failing to provide to his employees employment and a place of employment free from recognized hazards likely to cause death or serious physical harm to his employees, "in that a load was not well secured and properly balanced in a lifting device before it was lifted more than a few inches -- Fabrication Shop #47."

The Complainant further charged the Respondent with violating the standard from which the above phrase was extracted, i.e., 29 CFR 1910.179(n)(3), in contravention of Section 5(a)(2) of the Act.

The Respondent did not assert that it had been surprised, prejudiced or disadvantaged by the Complainant's omnibus use of Section 5 of the Act as described above, but in the memorandum supporting his proposed order (H-21), the Respondent asserted inter alia, that the citation alleging a serious violation under the general duty clause was "improperly and illegally issued," and that Sun-Ship was being "doubly" cited, in effect, in regard to that violation, arguing that the Secretary may not assert a general violation under Section 5(a)(1) of the Act, where the activity complained of, is regulated by a detailed occupational safety and health standard, 29 CFR 1910.179(n)(3), which in the Respondent's words, "precisely covers the work activity involved."

The Complainant contends that the Respondent is not being burdened with "double liability" or a "multiple citation," asserting that charging violations of Section 5(a)(1) of the Act and of the specific standard "is no more than a different description of the same set of circumstances," that there is but one citation and a single penalty proposed for the underlying fact situation which set of facts violated both the Respondent's duty to provide a safe workplace within the meaning of Section 5(a)(1) and also violated Section 5(a)(2) of the Act and the standard.

Incorporating by reference the Respondent's supporting points and authorities it is quite clear that the Secretary erroneously charged a violation of Section 5(a)(1) of the Act, when there existed a specific standard covering the hazardous conduct at issue.

Despite this, however, nowhere is there a showing made that the Secretary's use of the dual subsections of Section 5 of the Act, in any way prejudiced, surprised or disadvantaged the Respondent prior to, or during the course of the trial, as the underlying fact situation and the proofs adduced in regard thereto, comported in substantial degree, to proving either of the statutory subsections here involved. In my judgment, those portions of the Citation and Complaint which charge a violation of Section 5(a)(1) of the Act are superfluous but nevertheless non-prejudicial. Thus the Respondent's contention (which in essence is a motion) that the entire citation for a serious violation must be vacated is groundless, and that motion must be denied. There is no doubt that the Complaint, which may be construed as amendatory of the citation, essentially charged a violation of Section 5(a)(2) of the Act and the standard which both parties concede covered the conduct and activity of which the Secretary complained.

Turning from the pleading aspects of the serious citation to the evidence of record in regard to the conduct which caused the fatality in this case, it appears convinctingly clear that the use by Respondent's employees of a "gooseneck clamp" for purposes for which the clamp was neither designed nor intended (as the Respondent admits) was in violation of the standard cited supra.

The undersigned cannot permit the literal phraseology of the standard to be so tortured that it renders the clear purpose of the standard meaningless. The standard is headed, "Moving the load," i.e., from the point where the load is hooked on, to its ultimate destination. The standard calls for a preliminary check of the securement and balance of the load before the load is lifted more than a few inches off the ground (in this case that check was made at a height of several feet), the purpose of this preliminary check being of course to insure that the load may be transported by crane to its ultimate destination safely, under the relevant foreseeable conditions which might be involved in such movement.

This is to say that the preliminary load check called for by the standard would be meaningless and irrelevant unless it was undertaken in respect to many variables, including the nature, type and weight of the load to be moved, as well as the distance and height involved. In the instant case, while a 40 foot angle beam hooked on to a single gooseneck clamp, may be considered "well secured" and "balanced" for moving such a load very short distances at heights where the balance of the beam could at all times be controlled by helpers at each end, such a clamp is incapable ab initio of safely securing such a beam in the transit involved here, which the evidence indicated was at least a distance of 30 to 40 feet at heights of 10 to 15 feet, enabling the crane operator to clear obstructions such as "inner bottoms" (Tr. 65), but at the same time removing the beam from the essential balance control factor provided by the workers assigned to balance each end of the beam.

It is obvious that hooking up the beam to be transported as it was in this case, violated the standard because such a load was not, nor could not, be "well secured" with a single gooseneck clamp for the transit intended, and should have been, as the crane operator testified, wrapped up "with two pendants, or either a pair of chains or with two dogs" (Tr. 70) (the latter being clamps equipped with non-skid teeth).

Had the beam involved in this case been so wrapped, and the load tested before it was lifted more than a few inches off the ground the Respondent would have been in compliance with the standard, and the unfortunate fatality, which the standard was promulgated to prevent would not have occurred.

As the Complainant noted in his supporting memorandum (C-19) the Respondent is chargeable with knowledge of the possibility that such an accident might ensue since testimony indicated that beams had slipped from similar gooseneck clamps previously at Respondent's shipyard (Tr. 39).

In addition, the evidence demonstrated that the Respondent had never formally instructed its employee on the limited and restricted uses to which the gooseneck clamp may be put, although such instruction followed the accident of September 15th. Education and closer supervision of employees would have done much to make them aware of the potential hazards existent in moving beams secured by a single gooseneck clamp where such beams are carried at heights which take them out of the control of the helpers assigned to balance each end thereof.

In light of all the foregoing, I am constrained to conclude that the Respondent is chargeable with a violation of Section 5(a)(2) of the Act and 29 CFR 1910.179(n)(3)," as outlined in the Complainant's supporting memorandum (C-19).

Turning now to the reasonableness of the penalties proposed for the violations, both serious and non-serious, I find the Area Director's proposed penalty of $600.00 for the serious penalty not to be unreasonable under the circumstances herein involved.

The record indicates that this penalty was arrived at under a formula which used the statutory base of $1,000 as a starting point, which amount was reduced by fixed percentages given for good faith and past history of violations, to a total of $600.00.

In coming to this conclusion I am not unaware (as noted previously) of the fact that the violation involved was most grave from the standpoint of possible loss of life or serious physical injury, and that it was not the first instance of such a practice at the Respondent's workplace. I am convinced, however, that the Respondent did not affirmatively condone or tolerate practices by crane operators similar to the one which resulted in this violation, and am reluctant to raise the proposed penalty to the maximum $1,000, for a violation which I feel was a relatively isolated one, as described in the crane operator's words, ". . . as long as I've been running a crane I have never took the angle up that high with that type of pad" (Tr. 69).

In regard to the question of the penalties proposed for the non-serious violations found in Conclusions of Law 4, 5 and 6, below, which total $102.00, I am constrained under the principles enunciated by the Commission in Secretary of Labor v. General Meat Co., Inc., (OSAHRC Docket #250) and the demonstrated good faith of the Respondent to vacate those proposed penalties. In coming to the conclusion I find myself in complete accord with the Commission's opinion in General Meat that "the assessment of small monetary penalties does little to effectuate the principal purposes of the Act in obtaining compliance in order to insure safe and healthful workplaces," and the Commission's belief that the purposes and policies of the Act are better served by the encouragement of immediate abatement through other means than "the proposal of small monetary penalties which do little to achieve voluntary compliance on the part of others."

CONCLUSIONS OF LAW

Based upon all the foregoing, and on the preponderance of the evidence in the record as a whole, the undersigned concludes that:

1. At all times mentioned herein the Respondent was, and is an employer engaged in a business affecting commerce within the meaning of Section 3 of the Act and the Commission has jurisdiction of the parties and of the subject matter herein pursuant to Section 10(c) of the Act.

2. The Respondent violated Section 5(a)(2) of the Act and 29 CFR 1910.179(n)(3) of the applicable safety standard, promulgated under the Act.

3. The proposed penalty of $600.00 assessed for the aforesaid violation is not unreasonable or inappropriate.

4. The Secretary failed to sustain the burden of proving the violations alleged in:

a) Item 1 of Citation 1, i.e., that the Respondent violated 29 CFR 1910.133(a)(1) or 29 CFR 1502.31(d)(ii), (as adopted by 29 CFR 1910.14, which latter violation was charged in the Complaint amending the original citation, said amendment being non-prejudicial to the Respondent).

b) Item 4 of Citation 1, i.e., that the Respondent in failing to provide adequate personal protective equipment to spray painters violated 29 CFR 1910.132(a).

c) Item 1 of Citation 2, i.e., that a "tube and coupler" scaffold outside of the blacksmith shop was not tied to and securely braced against the building in violation of 29 CFR 1910.28(c)(13).

d) Item 2 of Citation 2, i.e., that a "tube and coupler" scaffold was not provided with guardrail, mid-rail and toe board in violation of 29 CFR 1910.28(c)(14).

e) Item 3 of Citation 2, i.e., that "the means of access and walkways leading to working area as well as the working area themselves were not adequately illuminated -- #4 part and center tanks Hull 657" (29 CFR 1502.52(a) as adopted by 29 CFR 1910.14).

f) Item 4 of Citation 2, i.e., that "suitable fire extinguishing equipment was not (immediately) available in the work area -- Hull 657" (29 CFR 1502.32(d) as adopted by 29 CFR 1910.14).

5. As conceded by the Respondent the charges set forth in Item 2 and 3 of Citation No. 1 (non-serious) constitued violations of 29 CFR 1910.178(m)(5) and 29 CFR 1910.244(b), respectively. These conditions were properly abated.

6. The Respondent violated 29 CFR 1502.51(a) (as adopted by 29 CFR 1910.14) by permitting a condition described as "Welding leads not elevated over, or placed under, walkways or covered by adequate crossover planks -- Hull 657" (Item 5, Citation 2).

7. The Respondent violated 29 CFR 1502.14(i)(1) (as adopted by 29 CFR 1910.14) by permitting runways more than 5 feet above a solid surface not to be equipped with a mid-rail and staging similarly situated not to e equipped with a backrail or midrail (Item 1, Citation 3).

8. Taking into consideration the factors of gravity of the violations, the Respondent's size, good faith and past safety history under the Act, the Secretary proposed penalties of $30.00 for each of the violations found to exist above excepting Item 2 of Citation 1, for which a $12.00 penalty was proposed. Under the circumstances herein applicable, these penalties are found to be inappropriate, and should be vacated.

ORDER

In view of the foregoing, and good cause appearing, therefore, it is ORDERED that:

1. The allegation in the Citation for Serious Violation the Respondent violated Section 29 CFR 1910.179(n)(3) be and it is hereby affirmed.

2. The Respondent be and hereby is assessed and required to pay a civil penalty in the sum of $600.00, as proposed in the aforementioned Citation.

3. The following violations as charged in the non-serious citations noted below as well as penalties proposed be, and, therefore, hereby are vacated:

Citation	Item
1	1
1	4
2	1
2	2
2	3
2	4

4. The following violations as charged in the non-serious citations noted below be and hereby are affirmed:

Citation	Item
1	2
1	3
2	5
3	1

5. The proposed penalties for each of the violations specified in paragraph No. 4, immediately above, totaling $102.00, be and hereby are, vacated.

6. The Respondent's motion (as urged in his memorandum in support of proposed order, H-21) that the Citation for a Serious Violation should be vacated is hereby denied.