SOUTHEASTERN MARITIME COMPANY
OSHRC Docket No. 2
Occupational Safety and Health Review Commission
February 7, 1972
Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners
BURCH, COMMISSIONER: The Commission has reviewed the rulings of the Hearing Examiner and finds no prejudicial error therein. The Commission has also reviewed the entire record in this case and has considered the briefs and arguments of the parties.
We adopt the Hearing Examiner's recommended decision and order as the decision and order of the Commission.
[The Judge's decision referred to herein follows]
HARRIS, JUDGE, OSAHRC: This is an action under Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq. (hereinafter the Act will be referred to as OSHA), to review a citation issued by the Secretary of Labor (hereinafter Secretary) pursuant to Section 9(a) and a proposed assessment of penalty thereon pursuant to Section 10(a) of OSHA.
The citation (P-1), issued on June 18, 1971, alleges that Southeastern Maritime Company, the employer (hereinafter Southeastern), in a work place under its ownership, operation, or control located in No. 4 hold of a ship named "Toxotis" in Talleyrand Terminal, Jacksonville, Florida, "failed to place net between two gangs working at different [*2] levels in the same hold" in violation of 29 CFR Part 1504.32(c). A footnote to this citation states that the alleged violation is not a serious violation within the meaning of OSHA. The citation requires that the alleged violation be corrected by June 15, 1971, followed by the word "Abated" in parenthesis. A "Notification of Proposed Penalty," (P-2), also issued by the Secretary on June 18, 1971, proposed a penalty of $26.49.
Southeastern, by letter dated June 23, 1971, contested the Secretary's actions (P-3, par. 2). The matter was referred to the Occupational Safety and Health Review Commission for hearing pursuant to Section 10(c) of OSHA on July 2, 1971. On July 12, 1971, the undersigned was appointed and the within matter assigned to him for hearing pursuant to Section 12(e) of OSHA.
Pursuant to notice and by agreement of the parties a pre-hearing conference and the hearing were held on July 28, 1971, at Jacksonville, Florida.
Counsel for an insurance company covering the respondent entered an appearance and sought leave to participate on behalf of and with said respondent.
Neither the Secretary nor the respondent called any witnesses and proceeded by way of [*3] stipulation and admission on the record.
Thereafter, on October 5, 1971, at the instance of the Presiding Examiner and on his motion, the record was opened and a stipulation of the parties, exhibit HE-1, the affidavit of William W. Gordon, exhibit HE-2, and the affidavit of Noel Wilson, HE-3, pertaining to the posting of the citation herein, were ordered received in evidence.
Having considered the entire record, the exhibits and the stipulations, representations and admissions of the parties, it is concluded that the substantial evidence on the record considered as a whole, supports the following findings of fact.
FINDINGS OF FACT
1. The motor vessel "Toxotis" arrived in Jacksonville, Florida, at 0800 a.m. on June 15, 1971 (Tr. 18; P-3, par. 3), enroute from Houston, Texas, to Norfolk, Virginia, and was berthed at the Talleyrand dock in Jacksonville (Tr. 18).
2. Cargo from other ports had been stored in #4 hold of the ship (Tr. 18; Tr. 19; Tr. 39; P-3).
3. On June 15, 1971, the respondent employed 32 men to load sacks of flour into #4 hold of the "Toxotis" (Tr. 18; Tr. 33).
4. The cargo of sacks of flour in #4 hold of the "Toxotis" formed two levels (Tr. 18).
5. [*4] The men employed by the respondent were divided into two gangs, one gang working on one level and the other gang working on a different level (Tr. 19; Tr. 32; Tr. 34-35; P-4).
6. One gang of men employed by the respondent was adding sacks of flour to a stack of cargo 11 feet above the floor of the hold on which were other employees of the respondent engaged in performing their assigned work (Tr. 35; Tr. 36-37; Tr. 39; P-4).
7. No net was hung by the respondent while the work was in progress on June 15, 1971 (Tr. 9; Tr. 19; Tr. 36; Tr. 37).
8. The citation (P-1) and the Notice of Proposed Penalty (P-2) were issued on June 18, 1971 (Tr. 26-27).
9. Work by employees of the respondent in #4 hold of the "Toxotis" was suspended at noon on June 15, 1971 (Tr. 41; P-1; P-3; HE-3).
10. The respondent does not contest the jurisdiction of the Occupational Safety and Health Review Commission in the premises nor the form of the citation or the amount of the proposed penalty (Tr. 20).
11. The citation was posted at the timekeeper's station on the dock where longshoremen employed by respondent report for assignment and for their pay from June 21, 1971. Copies were also posted [*5] at the timekeeper's station on other docks where longshoremen were employed by the respondent through July 12, 1971 (HE-2; HE-3).
12. No employee of the respondent communicated with the Jacksonville Area Office of the Occupational Safety and Health Administration, Department of Labor (HE-2).
13. No employee of respondent was present in the hearing room for the purpose of taking part in the proceedings other than to testify as a witness at the instance of the complainant or the respondent (Tr. 4).
14. There is no evidence to establish that the failure to rig a safety net, under the circumstances herein, resulted in a substantial probability that death or serious physical harm could result therefrom (Tr. 11; Tr. 33; Tr. 35; Tr. 38-39).
15. The insurance carrier seeking leave to participate did not represent the respondent (Tr. 3) which had elected to be represented by its Sales Manager, W. M. Lawrence (Tr. 1-2).
CONCLUSIONS OF LAW
1. At all times herein respondent, Southeastern Maritime Company, was an employer engaged in a business affecting commerce within the meaning of Section 3 of OSHA.
2. Respondent, by its employment of longshoremen herein was and is subject [*6] to the provisions of the Longshoremen's and Harbor Workers' Compensation Act, as amended, 33 U.S.C. 901, et seq., and the regulations issued thereunder, including 29 CFR 1504.32(c) which was in effect prior to and on April 28, 1971.
3. Pursuant to Section 6(a) of OSHA, the Secretary of Labor, on May 28, 1971, adopted the standards prescribed by CFR Part 1504 which were in effect on April 28, 1971 (29 CFR 1910.16; 36 FR 10469).
4. 29 CFR 1504.32(c) provides:
When two gangs are working the same hatch on different levels, a safety net shall be rigged and securely fastened so as to prevent men or cargo from falling.
5. The provisions of 29 CFR 1504.32(c) are mandatory and respondent, under the circumstances herein, was in violation thereof on June 15, 1971, by reason of its failure to rig and securely fasten a safety net.
6. The determination that the violation herein was not of a serious nature is not unreasonable. 7. The proposed penalty, under the circumstances appearing herein, is not unreasonable.
8. Counsel who did not appear for or represent the respondent had no right to participate in these proceedings in its behalf.
In view of the foregoing, it is therefore [*7] ORDERED that the Secretary's citation and proposed penalty herein be and the same are hereby affirmed.