T. SMITH & SON, INC.
OSHRC Docket No. 2240
Occupational Safety and Health Review Commission
August 28, 1974
[*1]
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: MORAN
OPINION:
MORAN, CHAIRMAN: A decision of Review Commission Judge Henry F. Martin is before this Commission pursuant to 29 U.S.C. § 661(i). Judge Martin found respondent, a large stevedoring company in New Orleans, in violation of the Occupational Safety and Health Act of 1970 n1 for noncompliance with the requirements of 29 C.F.R. § 1918.106(b). n2 The parties stipulated that at the time of inspection two of respondent's employees were not wearing U.S. Coast Guard approved work vests while engaged in loading and unloading of steel from the New Orleans dock to a deck barge. The derrick barge PATRICIA was being used to lift steel from the dock to the deck barge. Respondent admits noncompliance with the standard, but contends that the employees were "members of the crew" of the PATRICIA, or "seamen," and that therefore the Coast Guard had exclusive jurisdiction over their safety and health. We disagree, and affirm the Judge's holding that the employees discussed herein cannot be considered "seamen" under the Act.
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n1 29 U.S.C. § 651 et seq., hereinafter referred to as the Act.
n2 At the time of the inspection 29 C.F.R. § 1918.106(b) provided as follows:
Except when engaged in loading or discharging ocean going vessels, employees walking or working on the decks of barges on the Mississippi River System and the Gulf Intracoastal Waterway shall be protected by U.S. Coast Guard approved buoyant vests or U.S. Coast Guard approved work vests.
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The Coast Guard has general maritime jurisdiction over "all matters not specifically delegated by law to some other executive department." n3 The Longshoremen's and Harbor Workers' Compensation Act n4 removed jurisdiction over longshoring from the Coast Guard and delegated it to the Secretary of Labor. n5 Though the Act did not delegate the original authority, it does allow the Secretary of Labor to retain jurisdiction for purposes of the Act. n6 29 U.S.C. § 653(b)(1) states that jurisdiction is prescribed by statutory authority; we therefore must look to the interpretation by the courts of the relevant statues. n7
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n3 14 U.S.C. § 2, which provides in full as follows:
The Coast Guard shall enforce or assist in the enforcement of all applicable Federal laws on and under the high seas and water subject to the jurisdiction of the United States, shall administer laws and promulgated and enforce regulations for the promotion of safety of life and property on and under the high seas and water subject to the jurisdiction of the United States covering all matters not specifically delegated by law to some other executive department. (emphasis supplied)
n4 33 U.S.C. § 901, et seq.
n5 33 U.S.C. § 941(a), passed in 1958, provides in part as follows:
Every employer shall furnish and maintain employment and places of employment which shall be reasonably safe for his employees in all employments covered by this chapter and shall install, furnish, maintain, and use such devices and safeguards with particular reference to equipment used by and working conditions established by such employers as the Secretary may determine by regulation or order to be reasonably necessary to protect the life, health, and safety of such employees, and to render safe such employment and places of employment, and to prevent injury to his employees. (emphasis supplied)
n6 Congress would have to grant authority to another federal agency "to prescribe or enforce standards or regulations affecting occupational safety and health" over longshoring to remove jurisdiction from the Secretary of Labor. 29 U.S.C. § 943(b)(1).
n7 Complainant's reliance on his own regulation, 29 C.F.R. § 1910.16 as defining the Secretary of Labor's jurisdiction is misguided, for
"Surely it would be a strange doctrine that would permit an administrative officer to extend his own powers in doubtful cases by his own interpretation of the Statute. It would be a clear case of lifting oneself by one's bootstraps." Stark v. Brannan, 82 F. Supp. 614, 618 (D.C.D.C. 1949), affirmed 342 U.S. 451 (1952).
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The meaning of the terms "seamen" and "member of the crew" have been extensively litigated in order to define the coverage of the Jones Act, n8 which provides a cause of action for damages for personal injuries suffered by a "seaman" in the course of his employment, and the Longshoremen's and Harbor Workers' Compensation Act, which excludes from its coverage a "member of a crew" of a vessel. n9 Since the courts use the terms interchangeably, Offshore Co. v. Robison, 266 F.2d 769 (5th Cir. 1959), the result is that the two acts are mutually exclusive. Senko v. La. Crosse Dredging Corp., 352 U.S. 370 (1957).
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n8 46 U.S.C. § 688.
n9 33 U.S.C. § 903.
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We agree with respondent that the courts have shown an eagerness to restrict the coverage of the Longshoremen's and Harbor Worker's Compensation Act by classifying claimants as "seamen" and therefore awarding them compensation under the Jones Act. It is likely that a Federal court [*4] might well classify these employees as "seamen" or "members of the crew" n10 if this were a Jones Act case. But it is not. A study of the cases have not so much led us to believe we should follow their interpretations of the terms, but instead has shown us that we should rule contrary to respondent's contentions.
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n10 Respondent showed that the employees had a variety of duties on the PATRICIA, such as maintenance of the equipment and handling of lines when the barge was moved by means of a tug.
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The Longshoremen's and Harbor Workers' Compensation Act was passed in order to provide compensation to longshoremen who were deprived compensation under state workmen's compensation laws, South Chicago Coal and Dock Co. v. Bassett, 309 U.S. 251 (1940), but Congress intended to leave "distinct and unimpaired the rights and remedies of seamen." Weiss v. Central Railroad Co., 235 F.2d 309 (2d Cir., 1956). In order to "enlarge the admiralty's protection to its wards," Garrett v. Moore-McCormack, 317 U.S. [*5] 239 (1942), the Supreme Court has broadened the coverage of the Jones Act by liberal interpretation. Cf. South Chicago Coal and Dock Co. v. Bassett, supra. While liability under the Longshoremen's and Harbor Workers' Compensation Act is exclusive, 33 U.S.C. § 905, and limited to the amounts set by the act, 33 U.S.C. § 908, an injured employee who is protected by maritime law is entitled to his admiralty actions for maintenance and cure plus a Jones Act action for damages for injuries sustained in the course of his employment. Cf. Norton v. Warner, 321 U.S. 565 (1944). Most importantly, the Jones Act grants wider benefits than the Longshoremen and Harbor Workers' Compensation Act, and recovery can be extensive. Cf. Bartholomew v. Universal Tankships, Inc., 279 F.2d 911 (2nd Cir. 1960). Although the Supreme Court has not said that it believes the benefits are better under the Jones Act than the Longshoremen's and Harbor Workers' Compensation Act, it concedes that maritime workers are anxious to maintain full benefits under the Jones Act. South Chicago Coal and Dock Co. v. Bassett, supra. The Court has simply concluded as follows:
Where Congress has [*6] provided that those basic rights shall not be withheld from a class or classes of maritime employees, it is our duty on judicial review to respect the command and not permit the exemption to be narrowed by administrative construction or otherwise. Norton v. Warner, supra.
In Warner v. Goltra, 293 U.S. 155 (1934), Justice Cardozo stated in detail the Court's rationale for the liberal interpretation of the term "seaman" in the context of the Jones Act:
The Statute [Jones Act] is set forth at large in opinions of the court. It gives to "any seaman" injured in the course of his employment, and in case of the death of such seaman, to his personal representatives, a cause of action similar to that given by the statutes of the United States to railway employees. In the enforcement of the statute a policy of liberal construction announced at the beginning has been steadily maintained. Early in the history of the act, the question came up whether it gave a remedy to stevedores. We decided that it did. "It is true that for most purposes, as the word is commonly used, stevedores are not 'seamen.'" International Stevedoring Co. v. Haverty, 272 U.S. 50, 52. None the less, [*7] verbal niceties were bent to the overmastering purpose of the act to give protection to workers injured upon ships. "Words," we said, "are flexible." [cites omitted] 293 U.S. at 156 (emphasis supplied).
The Court felt that "our concern is to define the meaning for the purpose of a particular statute which must be read in the light of the mischief to be corrected and the end to be attained." 293 U.S. at 158.
The Federal Courts have followed this liberal interpretation doctrine in compensation cases. But, similarly, they have found that when the purpose of the statute varied, the interpretation of a term could vary. In Helena Glendale Ferry Co. v. Walling, 132 F.2d 616 (8th Cir. 1942) the court followed Justice Cardozo's example when interpreting § 13(a)(3) of the Fair Labor Standards Act of 1938, which exempted "seamen" from coverage under the act. The court reasoned as follows:
That it was the intention of Congress to include within the protection of the Fair Labor Standards Act of 1938 every employee engaged in commerce or in production for commerce within the broad scope of those activities expressed in the Act, is no longer open to doubt. The Act is remedial [*8] and must be given a liberal construction in accordance with its obvious intent and purposes. . . . Those asserting in reference to any employee an exemption under the Act, must establish the exemption as being both within the spirit and the letter of the statute. Since the statute is remedial and by its terms includes every employer and every employee coming within the broad scope of its coverage, the section granting exemptions is to be construed strictly against those claiming them. [citations omitted] 132 F.2d at 619.
The Court did not accept the respondent's reliance on cases defining "seaman" as used in other acts of Congress, but construed the meaning of "seaman" consistent with the reason underlying the exemption and did not grant the exemption.
Congress expressed its purpose in enacting the Occupational Safety and Health Act -- "to assure so far as possible every man and woman in the Nation safe and healthful working conditions." 29 U.S.C. § 651(b). In order to carry out its purpose it defined an employer subject to regulation as "a person engaged in a business affecting commerce," 29 U.S.C. § 3(5), thereby exhausting its full constitutional powers, Secretary v. Cable [*9] Car Advertisers, By so providing, Congress showed its intent to give broad statutory coverage in order to protect working people from job-related injuries and illnesses.
We are concerned here with employees loading and unloading cargo at dockside. They were not on or under the high seas, a prerequisite for the coverage of Coast Guard safety regulations. Consequently, we do not believe it appropriate to follow precedents that require a liberalization of the term "seaman" for to do so would exclude many employees from any type of safety and health coverage. We therefore construe the term "seamen" strictly. Since we find that respondent's employees in this case were longshoremen engaged in longshoring activities, respondent comes within the jurisdiction of the Secretary of Labor, and is liable under the Act.
We therefore affirm the Judge's findings based upon the admitted noncompliance with the requirements of 29 C.F.R. § 1918.106(b) and his resulting penalty assessment.
CONCURBY: CLEARY
CONCUR:
CLEARY, COMMISSIONER, concurring: I concur in the disposition of this case, and I add my express affirmance of the Judge's disposition [*10] of the issues arising under subsection (a) and (e) of section 8 of the Act. These were the subject of exceptions by the respondent.
Concerning the validity of the inspection under section (a), the Judge noted that the inspector was well known to the respondent's foreman. A formal presentation of credentials would be a useless act, and would therefore not be required. This is fully consonant with the observation made in Accu-Namics, Inc., No. 477 (May 30, 1974) that the essential purpose for requiring the presentation of credentials is the identification of the inspector.
Regarding the asserted failure to comply with the "walkaround" requirements of section 8(e), I am satisfied that the respondent had an opportunity to accompany the inspector, but did not avail itself of this opportunity.
[The Judge's decision referred to herein follows]
MARTIN, JUDGE, OSAHRC: This is a proceeding brought pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970, (29 USC 651, et seq. ), hereinafter referred to as the Act, to review a Citation and Notice of Proposed Penalty issued by the Secretary of Labor, hereinafter referred to as Complainant, to T. Smith [*11] & Son, Inc., hereinafter referred to as Respondent, pursuant to Sections 9(a) and 10(a) respectively of the Act.
On January 22, 1973, Complainant issued a Citation alleging a violation of Section 29 CFR 1918.106(b) for the failure of two of Respondent's employees to be protected by U.S. Coast Guard approved buoyant work vests while working on a barge on the Louisa Street wharf in New Orleans, Louisiana, on the date of December 19, 1972. A Notice of Proposed Penalty was simultaneously issued by Complainant, proposing a penalty of $50.00.
On February 13, 1973, Respondent, through its safety director, filed a formal contest of the aforementioned Citation and proposed penalty, stating that the contest should be considered as a "friendly one" to determine jurisdiction of its floating derrick employees. Subsequently, on March 12, 1973, Complainant filed his formal complaint with the Occupational Safety and Health Review Commission in Washington, setting forth substantially the same facts and information as referred to in the Citation and Notification of Proposed Penalty. Respondent, through its counsel, on March 28, 1973, filed a formal answer to the complaint admitting and [*12] denying certain allegations in the complaint and contending among other things that the Review Commission lacks jurisdiction over the Respondent for the reason that Respondent's work place is under the jurisdiction of and protected by the laws administered by the United States Coast Guard. Respondent alleged that its employees were not engaged in longshoring operations as defined in the Act.
This case was assigned to the undersigned Judge and pursuant to formal notice a hearing was held in New Orleans, Louisiana, on June 20, 1973. Subsequent to the hearing, Complainant and Respondent submitted briefs and proposed Findings of Fact and Conclusions of Law.
The Citation issued in this matter describes the alleged violation as follows:
Two employees were working on the offshore side approximately midship of the deck barge, SCB-2, moored to the derrick barge, 'Patricia' which was moored to the Louisa St. Wharf. They were not protected by U.S. Coast Guard approved buoyant work vest, while loading drafts of steel on the barge.
Complainant has alleged that the aforementioned activity on the part of Respondent's employees was a violation of Section 29 CFR 1918.106(b). This section provides [*13] as follows:
Except when engaged in loading or discharging ocean going vessels employees walking or working on the decks of barges on the Mississippi River System and the Gulf Intracoastal Waterway shall be protected by U.S. Coast Guard approved buoyant vests of U.S. Coast Guard approved work vests.
At the opening of the hearing, it was jointly stipulated that Respondent, T. Smith & Son, Inc., is a corporation incorporated under the laws of the state of Louisiana, and that during the year preceding the alleged violation it was one of the three largest stevedoring companies in New Orleans, having approximately 1, 131 daily employees during the calendar year of 1972. It was further stipulated that Respondent has had 84 inspections by Compliance Officers of the Occupational Safety and Health Administration since the passage of the Act, which inspections resulted in findings of compliance. In addition, it was stated that Respondent had had one previous inspection which resulted in the issuance of a Citation, (presently on review by this Commission -- Docket No. 1531).
It was also stipulated that Respondent's stevedoring operations involve cargo which moves in interstate [*14] or foreign commerce.
It was agreed that on the date of December 19, 1972, Respondent was engaged in loading steel from a truck on the Louisa Street wharf in New Orleans on to the deck barge, SCB-2, by means of a floating derrick, the Patricia, which was moored to said wharf and that Respondent's operation on and about the deck barge was inspected by Compliance Officer Luc, a duly authorized representative of the Occupational Safety and Health Administration, U.S. Department of Labor. On January 22, 1973, Complainant issued and served upon Respondent the aforementioned Citation and Notification of Proposed Penalty. On February 15th, Complainant received Respondent's Notice of Contest regarding the Citation and proposed penalty.
It was further stipulated that on December 19, 1972, Respondent employed persons who were working on and about the Louisa Street wharf, the floating derrick, Patricia, and the deck barge, SCB-2. The Patricia is a floating derrick barge 200 feet in length, 56 feet in width and 10 feet in depth, weighing 1008 gross tons and equipped with a traveling crane. The derrick barge is a non-selfpropelled barge used for lifting heavy cargo, primarily in [*15] the port of New Orleans, and is moved about by means of a tugboat. It is used in the loading and discharging of cargo from the shore to barge, from shore to deep seagoing vessel, from deep seagoing vessel to barge, and from deep seagoing vessel to shore. The SCB-2 is a flat deck barge, 360 feet in length, 41 feet 2 inches in width, and 11-1/2 feet in depth with a gross tonnage of 1,527. Both vessels are owned by the Respondent.
It was further agreed that the area where the floating derrick barge and the flat deck barge were moved is customarily used for the loading and unloading of heavy cargo such as large steel beams, tractors, etc. At the time of the inspection the deck barge was located on the Mississippi River System. Also, at that time two employees were working on the deck barge and wearing U.S. Coast Guard approved buoyant work vests. Two employees, Stewart and Sanders, were not protected by U.S. Coast Guard approved buoyant vests or U.S. Coast Guard approved work vests. However, it was further stipulated that at the time of the inspection approved buoyant work vests had been provided, or at least were available for use, for all four of said employees and that before [*16] the completion of said inspection, but after having been informed of the apparent violation, such vests were obtained and were being worn by the two employees. It was further agreed that the probability of an employee falling into the water was low.
The principal question for resolution herein is whether or not Section 4(b)(1) of the Act divests Complainant of authority over the working conditions of Respondent's employees or whether the workplace of Respondent is under the jurisdiction of and protected under laws administered by the U.S. Coast Guard. Respondent has contended that persons employed at Respondent's work place on the date in question were either masters, ship's officers, or members of a crew of a vessel and as such are exempt from coverage under the Act. It is Complainant's contention that Respondent's workmen on the date in question were performing longshoring duties and are covered by the provisions of Section 29 CFR Part 1918.
Another issue to be determined herein is whether the inspection made by the compliance officer was in substantial compliance with the provisions of Section 8(a) of the Act, and if not, whether the Citation should be vacated. [*17] Finally, there is the issue as to whether or not there has been a violation of the safety standards set forth at Section 29 CFR 1918.106(b) and if a violation occurred, a determination must be made as to what penalty, if any, might be appropriate.
As previously indicated Respondent filed his Notice of Contest mainly for the purpose of determining whether or not the employees on the derrick barge are subject to the provisions of the Occupational Safety and Health Act of 1970, or whether the employees are in fact under the jurisdiction or control of the U.S. Coast Guard. Mr. Forrest P. Luc was the only witness who testified as to the actual working conditions on the Louisa Street wharf and on the barges in question on the date of December 19, 1972. Mr. Luc testified that as he was proceeding down the dock, approaching the two barges, he noticed Mr. Sanders, the derrick barge foreman and another worker, a Mr. Stewart, working on the offshore side of the deck barge without buoyant vests. He stated that Mr. Sanders, the foreman, was counting pipe which had been stacked and that Mr. Stewart was preparing to unload steel and was laying cribbing on the deck. He testified that [*18] Mr. Sanders observed him approaching and after disappearing temorarily came on the dock to meet him. He advised that Mr. Stewart almost immediately went to obtain a work vest and was wearing one by the time he stopped to speak to him. Mr. Luc stated that Mr. Sanders, the foreman, was the highest supervisory official at the work place at the time of his inspection and that he informed him of the violation. He stated that he spoke to one of the workmen, Mr. Stewart, who did not have on a vest, and another employee who was thought to be Mr. Brinkle, and upon interrogation Mr. Luc learned that one of them was a member of Local 1418 and the other was a member of Local 1419 of the General Longshore Workers of the International Longshoreman Association. He stated that they rejected an invitation to accompany him on a walk-around inspection. Mr. Luc advised that at the conclusion of the inspection he made attempts to contact higher officials at Respondent's main office which was near by. Mr. Luc stated that he made three or four attempts to get in touch with Mr. Al Cooper who was in charge of the derrick department.
Mr. Luc testified that he noticed two men hooking on the [*19] steel pipe which was then being loaded on to the barge, SCB-2. He noticed Mr. Sanders counting the pipe and Mr. Stewart, the other employee, was laying down cribbing in preparation for the unloading of more steel pipe. After the employees working on the dock near the truck had hooked on to the steel, the load would then be swung over by the crane and placed on the deck barge where the men would then unhook it and set it down.
Mr. Luc, who has been engaged off and on in longshoring work for over 20 years, testified that in his opinion that work being done by the aforementioned employees was a longshoring operation. He stated:
In my opinion it is longshoring. It could be according to all the dictionaries and in all my time on the riverfront, it is longshoring. And, no one can take or fool with that cargo unless you carry a longshoreman card and they have one. Those people carry one and if they don't, they couldn't handle the cargo. They are longshoring; that is, longshore work [Tr., page 24].
Upon being questioned, Mr. Luc advised that longshoring is "when you take cargo from the dock to a vessel, from a vessel to a dock, or from vessel to vessel."
Relative to the jurisdictional [*20] question which Respondent raised, Section 4(b)(1) of the Act provides as follows:
Nothing in this Act shall apply to working conditions of employees with respect to which other federal agencies and state agencies acting under Section 274, of the Atomic Energy Act of 1954, as amended, (42 USC 2021), exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.
Respondent's position herein is that the employees in question were members of the crew of the derrick barge, Patricia, and as such must be classed as seamen and subject to the jurisdiction of the U.S. Coast Guard, rather than the Occupational Safety and Health Administration. Further, it is the contention of Respondent that the operation of the two vessels in question, the Patricia, and the SCB-2, were not subject to the provisions of 29 CFR Part 1918, because the operations did not constitute "longshoring" as defined in the regulations. n1
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n1 Section 29 CFR 1918.3(i) defines the term "longshoring operations" as the loading, unloading, moving or handling of cargo, ship stores, gear, etc. into, in, on, or out of any vessel on the navigable waters of the United States.
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Section 29 CFR 1918.1(b), cited by Respondent reads as follows:
Pursuant to public law 85-742, the regulations of this part do not make determinations with respect to matters under the control of the U.S. Coast Guard within the scope of Title 52 of the Revised Statutes and Acts supplementary or amendatory thereto (46 USC 1-1388, passim), including, but not restricted to, the master, ship's officers, crew members, design, construction and maintenance of the vessel, its gear and equipment; to matters within the regulatory authority of the U.S. Coast Guard to safeguard vessels, harbors, ports, and waterfront facilities under the provisions of the Espionage Act of June 15, 1917, as amended (40 Stat. 220; 50 USC 191 et seq.; 22 USC 401 et seq ) or to matters within the regulatory authority of the U.S. Coast Guard with respect to lights, warning devices, safety equipment, and other matters relating to the promotion of safety of lives and property under Section 4(e) of the Outer Continental Shelf Lands Act of August 7, 1953 (67 Stat. 463; 43 USC 1333).
Section 29 CFR 1918.3, subsection (c) defines [*22] the term "employer" as an employer any of whose employees are employed, in whole or in part, in longshoring operations or related employments, as defined herein within the Federal maritime jurisdiction on the navigable waters of the United States. Subsection (d) defines the term "employee" as any longshoreman or other person engaged in longshoring operations or related employments, within the Federal maritime jurisdiction on the navigable waters of the United States, other than the master, ship's officers, crew of the vessel, or any person engaged by the master to load or unload any vessel under 18 net tons.
Respondent has also cited the provisions of Section 46 CFR, subchapters 24, 25 and 26, which relate to uninspected vessels including motor boats, motor vessels, and passenger carrying barges. These regulations deal with lights, bells, gongs, life preservers, and other life saving equipment. n2 It also provides regulations for fire extinguishing equipment and work vests to be worn by "crew members." Respondent has cited several cases in his brief n3 which indicate the trend in the various Circuit Courts of Appeal to treat anyone who performs work on a vessel [*23] as a seaman or crew member regardless of whether or not he aids in the navigation of the vessel. It is noted that there is a present trend in the courts to use the term "seaman" and "member of a crew" of a vessel interchangeably. It has been held that almost any sort of work aboard a ship in navigation would qualify one as a seaman within the Jones Act, and in some decisions, coverage of the Jones Act has been extended to include almost any injury to a person while employed on any structure that "once floated or is capable of floating on navigable waters." In the case of Producers Drilling Co. v. Gray, it was held that the term "seaman" was not restricted to those aboard primarily in aid of navigation but might include those who served the vessel in the sense that the work they performed fits in with the function the vessel serves.
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n2 Respondent specifically referred to Section 46 CFR, Sub Chapter 25.25 which relates to life preservers and other life saving equipment. This section, however, deals with crew members on un-inspected vessels (motor boats, motor vessels, and barges carrying passengers). The entire Sub Chapter 25 relates to navigational aids, life preservers, fire extinguishing equipment for the protection of "each person on coard" including crew members. Sub Chapter 25 makes no reference to employees who are engaged in longshoring operations.
n3 Boatel, Inc. v. Delamore, 379 F2d 850 (5th Cir. 1968)
Summerlin v. Massman Constr. Co. 199 F.2d 715, (4th Cir. 1952)
Wilkes v. Mississippi R. Sand and Gravel Co., 202 F.2d 383 (4th Cir. 1953) Cert. den. 74 S.Ct. 29
Producers Drilling Company v. Gray, 361 F.2d 432 (5th Cir. 1966)
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After having carefully considered all of Respondent's contentions and argument, it is concluded that the employees of Respondent who were engaged in unloading steel from the truck on the deck barge, SCB-2, were engaged in a longshoring operation and cannot be considered in any sense as seamen or members of the crew, master, or ship's officers. The evidence in this case reveals that Respondent is one of the largest stevedoring companies in New Orleans and furnishes employees for the purpose of performing stevedoring or longshoring operations. Its business is not the navigation of vessels and there is no evidence in the record to indicate that any of Respondent's employees are seamen in any sense of the word. No testimony was offered to substantiate Respondent's claim that its employees were seamen or crew members of a vessel. Inspector Luc, who has had many years of experience in longshoring operations, testified that in his opinion the work performed by the men he observed on December 19th, on the Louisa St. wharf was actually a longshoring operation. The record is devoid of any evidence [*25] to show that any of the employees were certificated as seamen or that they were engaged in any type of work on the day in question other than the removal of steel pipe from the truck to the deck barge. The safety regulations cited by Respondent deal primarily with fire protection equipment and life saving equipment designed to protect persons in transportation, principally passengers but also members of the crew. As previously stated, there is no testimony in the record or any documentary evidence to show that any of the persons observed by Inspector Luc were assigned to the derrick barge as a master, ship's officer, or member of the crew.
With reference to the Circuit Court decisions cited by Respondent, it is noted that all of them dealt with actions by persons injured on board barges or drilling rigs who were engaged in performing their duties for the owner or master of the vessel. These cases involve tort actions and while it is noted that the courts have been liberal in determining that the certain employees were seamen and entitled to recover under the Jones Act, none of them actually dealt with occupational safety or health standards which we are concerned with here. Also, [*26] none of the cases dealt with the loading or unloading of cargo, ship to shore, or vice versa. In the Boatel and Producers cases the injured workmen were members of a drilling crew. In the Summerlin case the "seaman" was engaged as a fireman on a derrick crane while in the Wilkes case the workman was a gravel spreader on a barge.
Mr. Luc testified that he interviewed several of the workmen involved in the unloading operation and learned that two of them were members of International Longshoreman Association (Local unions 1418 and 1419). In view of the foregoing, it is concluded that the employees in question were longshoremen and were engaged in a longshoring operation when they were removing steel pipe from the truck and loading it on to the deck barge.
Respondent contends that Complainant has failed to prove the applicability of Section 29 CFR 1918.106(b) in that it was not established that the deck barge SCB-2 was a non-oceangoing vessel. Paragraph VI(a) of the complaint alleges:
At its work place on December 19, 1972, Respondent failed to protect, by United States Coast Guard approved buoyant vests or United States Coast Guard approved work vests, [*27] employees walking or working on the decks of barges on the Mississippi River System. Said employees were not engaged in loading or discharging oceangoing vessels.
On page 2 of its formal Answer Respondent stated "Respondent admits the allegation contained in Article 6(a) of the complaint". Rule 33(b)(2) of the Commission's Rules of Procedure provides that an Answer shall contain a short and plain statement denying those allegations in the complaint which the party intends to contest and also provides that any allegation not denied shall be deemed admitted. Since Respondent did not deny Paragraph VI(a) of the complaint, but in fact admitted said allegation, Complainant was under no obligation to produce testimony or evidence as to whether or not the deck barge, SCB-2, was an oceangoing vessel. From the pleadings it must be concluded that the barge in question was not an oceangoing vessel.
One of Respondent's principal contentions is that the Citation was illegal and should be vacated because the compliance officer did not comply with the provisions of Section 8(a) of the Act. Section 8(a) of the Act provides:
In order to carry out the purposes of this Act, the Secretary, [*28] upon presenting appropriate credentials to the owner, operator, or agent in charge, is authorized --
(1) to enter without delay and at reasonable times any factory, plant, establishment, construction site, or other area, work place or environment where work is performed by an employee of an employer; and
(2) to inspect and investigate during regular working hours and at other reasonable times, and without reasonable limits and in a reasonable manner, any such place of employment and all equipment, and materials therein, and to question privately any such employer, owner, operator, agent or employee.
Since there was no testimony from the compliance officer that the showed his credentials to anyone prior to entering Respondent's work place or prior to observing the alleged violation, Respondent contends that the Citation was void and should be vacated. The case of Secretary of Labor v. Alsea Lumber Company, Docket No. 1228, was cited as being identical to the instant case. There Judge Kennedy vacated the Citation because the alleged infraction was observed by the compliance officer while he was driving his car along a road, some 400 or 500 feet distant from the employer's [*29] work place, and prior to the presentation of his credentials. In that case the employee did not appear to have on a life jacket, but when he was later questioned by the compliance officer he was wearing one. (The Secretary of Labor has appealed this matter to the Circuit Court of Appeals for the 9th Circuit).
Two recent cases involving the matter of credentials are Secretary of Labor v. W.C. English, Docket No. 2888, (Final Review Commission Order dated November 19, 1973) and Secretary of Labor v. Smith Masonry Contractors, Docket No. 2042 (Final Review Commission Order dated October 25, 1973). The undersigned Judge is inclined to follow the reasoning set forth by Judge Chalk in the English case where he stated:
As the compliance officer, to this point, had done nothing wrong and was following proper procedures, I cannot accept the theory propounded by Respondent before, during, and after the hearing that the inspection results were voided because the Compliance Officer happened to stumble upon the conditions he later cited as violations immediately before but almost coincidental with the presentation of his credentials to the foreman. To hold otherwise, [*30] in my view would defeat the very objectives of the Act on the basis of a mere technicality that in no way was occasioned by improper actions on the part of the Compliance Officer.
The facts in this case are also similar in some respects to those in the case of Smith Masonry Contractors. The violation there was observed in a public area, a shopping center, where the compliance officer observed a material hoist carrying a man and a wheelbarrow. After purchasing film and obtaining materials for his investigation, the compliance officer subsequently presented his credentials to the foreman and proceeded to make an inspection. Judge Stuller decided that the inspection was not vitiated by the mere fact that no notice of the inspection or a walk around opportunity had been given to the employer prior to the observation. It was stated further that the presenting of credentials is a prerequisite only to entering a work site which the compliance officer would not otherwise be authorized to do. In that case there was no problem of authority to enter the work site and the compliance officer did not act surreptitiously.
In the case at hand Inspector Luc was engaged in making [*31] inspections of various derrick barges working along side the docks on Louisa Street. He had gotten out of his car and was walking toward the end of the dock which he stated was a large open area where everything could be seen as well as everything that was going on the derrick barge and deck barge. It was at this point that Inspector Luc observed the derrick foreman and another workman on the offshore side of the deck barge. The foreman, Mr. Sanders, was counting pipe and the other employees, Mr. Stewart and Mr. Brinkle, were preparing the deck for other loads of steel pipe. As soon as Inspector Luc noticed that two of the employees did not have on a proper work vest, he started on board the derrick barge and was proceeding to the deck barge when he was met by the foreman. Mr. Luc stated that he knew Mr. Sanders very well and that when Mr. Sanders recognized him he asked him (Luc) how he was getting along. Inspector Luc then proceeded to question the foreman and another employee who had not worn a buoyant work vest and also invited them to accompany him on the inspection. He stated that they declined the opportunity to accompany him on a walkaround.
Although Section 8(a) of [*32] the Act calls for the presentation of appropriate credentials which would give an inspector authority to enter upon a work place to make an inspection and to privately question employees about possible safety hazards, it is the undersigned's opinion that the law does not demand or require the performance of futile or useless acts. In this case it is apparent that no useful purpose would have been accomplished by Mr. Luc "shoving an ID card" into the face of Mr. Sanders who was in charge of Respondent's work place on the deck barge since Mr. Luc has conducted many such inspections of Respondent's operations in the past years and when in fact foreman Sanders and Mr. Luc are well acquainted with each other. Since Mr. Sanders was well acquainted with Mr. Luc it could be reasonably assumed that Mr. Luc was still engaged in his duties as a compliance officer for the Occupational Safety and Health Administration and that the mere presentation of an ID card would not enhance or increase Mr. Luc's authority under the circumstances. The fact remains that Mr. Luc was in the process of going aboard to make an inspection at Respondent's work place but happened to notice this failure [*33] to two employees to have on proper work vests just prior to his beginning the inspection.
The undersigned also agrees with the statement made by Judge Stuller that the presenting of credentials is a prerequisite only to entering a work site which the compliance officer would not otherwise be authorized to do. Since Mr. Luc was well known to Respondent's foreman, his appearance on board Respondent's work site can be considered equally as effective or proper as would be the presenting of an ID card to a total stranger at some other work site or plant. The presenting of appropriate credentials is merely the first step in identifying a person and his official capacity which would serve to convince an owner, superintendent, or foreman that the inspector is authorized to conduct an investigation and interrogate persons regarding alleged safety hazards or violations. Mr. Luc was in an open area on a public dock or wharf and could clearly see the alleged violation, some hundred or so feet away, immediately prior to his going on board the work place or before he would have an opportunity to present any credentials or make his presence known. This action on his part, all open [*34] and above board, does not invalidate the Citation which he saw fit to issue after interviewing the foreman and workmen and after having given them an opportunity to accompany him on the walkaround. Inspector Luc did not act improperly in any way or engage in any snooping or surrepititious actions prior to going on board the barge.
Respondent has also argued that the Citation should be vacated because of the compliance officer's failure to afford the employer or employee representatives the right to accompany him during the inspection of the work place as required in Section 8(e) of the Act. It is concluded from the meager evidence in the file that there is no merit to Respondent's contention in this regard. Inspector Luc testified that he discussed the violations with the employees and with the employer's representative, Mr. Sanders, who was the foreman and highest person in authority on the work place. He also testified that he always offered the employees and employer the right to accompany him on a walkaround inspection but that they usually declined, Mr. Luc expressed the opinion that it was not necessary for them to accompany him on the walkaround since everything was all [*35] out in the open and that no useful purpose would be served thereby.
Section 8(e) of the Act provides as follows:
Subject to regulations issued by the Secretary, a representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany the Secretary or his authorized representative during the physical inspection of any work place under Sub Section (a) for the purpose of aiding such inspection. Where there is no authorized employee representative, the Secretary of his authorized representative shall consult with a reasonable number of employees concerning matters of health and safety in the work place.
It is concluded from Inspector Luc's undisputed testimony that the employer and employees' representative were given an opportunity to make a walkaround inspection and that they did not see fit to avail themselves of this opportunity. n4 After Inspector Luc had observed a possible violation, he interrogated two of the employees at which time he learned that they were members of the I.L.A. and also discussed the alleged infraction with Respondent's foreman, Mr. Sanders. He also indicated the difficulty he had in trying to [*36] locate Respondent's representative, Mr. Cooper, who was in charge of the derrick workmen.
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n4 In the case of the Secretary of Labor v. Wright-Schuchart Harbor Contractors, Docket No. 559, Commission final order dated February 15, 1973, it was held that the provision for a walkaround was directory rather than mandatory.
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Another contention made by Respondent was to the effect that Section 29 CFR 1918.106(b) was vague, incomprehensible, and impossible to understand. As previously indicated this section requires that the employees walking or working on the decks of barges on the Mississippi River System and the Gulf Intracoastal Waterway shall be protected by Coast Guard approved buoyant work vests, except when engaged in loading or discharging oceangoing vessels. The undersigned Judge does not find that there is any vagueness or ambiguity in the wording of this particular standard. It is apparent that Respondent's argument is actually directed toward the opinion expressed by Inspector Luc to the effect [*37] that if employees were engaged in loading or discharging oceangoing vessels they would not be required to wear the aforementioned life vests, whereas under the current regulation where employees were engaged in working on a deck barge tied up along side the dock on the Mississippi River they would be required to wear a Coast Guard approved life vest. It is the undersigned Judge's opinion that he does not have the power or authority to question the wisdom or practicability of a regulation. (See Secretary of Labor v. Bucheit and Sons Co., Docket No. 295).
Respondent has also complained that the Review Commission's requirement for the filing of simultaneous briefs (Rule 76) is a denial of due process. There is no merit to this argument nor can it be said that this rule, allowing the Judge to fix reasonable brief dates, in any way alters the burden of proof. Originally the date of August 6, 1973, was set for the filing of briefs and proposed Findings of Fact and Conclusions of Law. However, this date was later extended to August 17th, to accommodate Respondent's counsel who advised that he was ill. Both parties were also afforded an opportunity to submit reply briefs if [*38] they felt that it was necessary.
Further, Respondent states that Complainant's trial brief and supplemental brief were not timely filed and should be stricken from the record. No lack of due process has been shown herein; therefore, Respondent's request to strike Complainant's brief is denied. The matter of brief dates is within the discretion of the Judge assigned to a case. n5
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n5 Although Respondent's counsel contends that Complainant's brief was filed three days late the facts are that late Friday afternoon on August 17th, Complainant's attorney called to advise that he had been out of the city and that he had just returned in time to notice that there were many errors in his brief which needed correction and requested that he be permitted to wait until Monday, August 20th, to deliver the same to the Review Commission office in Dallas. This request was granted. Complainant's brief was filed on August 20th and as a matter of fact Respondent's brief was not filed in the Dallas office until August 20th.
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Since it has been concluded that Respondent violated Section 29 CFR 1918.106(b) the only matter remaining for consideration is the nature of the penalty, if any, which should be assessed. Complainant proposed a $50.00 civil penalty and alleged in Paragraph VI(g) that this penalty was fixed bearing in mind the size, good faith, and past history of Respondent. Also considered was the low probability of an employee falling into the water, the fact that buoyant vests were available for all four employees although only two were wearing them, Respondent's good record in the past, and the fact that the employer had an effective safety program. These facts were admitted in Respondent's Answer. In view of the aforegoing factors, plus the fact that Respondent has had some 84 inspections by compliance officers of the Occupational Safety and Health Administration since the passage of the Act which inspections resulted in findings of compliance, n6 it is concluded that no penalty should be assessed.
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This case is presently before the Commission on review.
[*40]
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FINDINGS OF FACT
1. That Respondent, T. Smith & Son, Inc., is a corporation duly incorporated under the laws of the State of Louisiana and on December 19, 1972, was engaged in stevedoring operations in New Orleans, Louisiana (Stipulation).
2. That Respondent, on the aforementioned date, employed persons in a work place along the Louisa Street wharf in New Orleans where it was engaged in unloading steel from a truck on the dock and reloading same on to a deck barge (SCB-2) by means of a derrick barge, Patricia, which was moored to the Louisa Street wharf (Stipulation).
3. That the deck barge and the derrick barge are owned by Respondent and are used principally for lifting heavy cargo, primarily on the Mississippi River in the harbor area of the Port of New Orleans. They are non-self-propelled vessels and are moved by means of a tug boat (Stipulation).
4. That Respondent, on the aforementioned date, failed to protect by United States Coast Guard approved buoyant vests or United States Coast Guard approved work vests, two employees walking and working on the deck of said deck barge on the Mississippi [*41] River System; said employees were engaged in working on the offshore side of the deck barge (Stipulation, Answer and Transcript, P. 48).
5. That Respondent, on the aforementioned date, had approximately six employees engaged in longshoring operations at its work place, two were working on the dock unloading steel from a truck and attaching the steel to a crane, two unhooking the cargo and stacking it on the deck barge, one operating the crane and the other serving as foreman on the job. The employees are members of the Longshoring Union (Transcript, P 15 16).
6. That on the aforementioned date Respondent's work place was inspected by a compliance officer of the Occupational Safety and Health Administration Area Office, who observed two employees. Sanders and Stewart, without buoyant work vests on the offshore side of the deck barge where the steel pipe was being stacked (Stipulation).
7. That Respondent is one of the three largest stevedoring companies in New Orleans and during the calendar year 1972 averaged approximately 1,131 daily employees (Stipulation).
8. That the probability of an employee falling into the Mississippi River is low; however, an accidental [*42] falling into the river could result in injury or death (Stipulation).
CONCLUSIONS OF LAW
1. That jurisdiction of this proceeding is conferred on this Commission by Section 10(c) of Act.
2. That Respondent, is and at all times material hereto, was an employer within the meaning of Section 3(5) of the Act and was engaged in a business affecting commerce and subject to the provisions of the Act.
3. That Respondent, on December 19, 1972, violated the provisions of Section 29 CFR 1918.106(b) by the failure of two of its employees to wear United States Coast Guard approved buoyant vests or United States Coast Guard approved work vests while engaged in a longshoring operation on the Louisa Street wharf and the deck barge, SCB-2. That Respondent had knowledge of the violation in that one of its supervisory officials was one of the employees who was not wearing an approved work vest.
4. That Respondent is not exempt from complying with Section 29 CFR 1918.106(b) by reason of Section 4(b)(1) of the Act since there is no showing that the United States Coast Guard has exercised authority over longshoring operations or has prescribed regulations covering the working conditions [*43] of the type of employees referred to herein.
5. That Respondent is an employer having employees within the purview of Section 29 CFR 1918 and that said employees were engaged in a longshoring operation.
6. That the inspection of Respondent's work place on the aforementioned date was not improper or defective but was in substantial compliance with the provisions of Section 8 of the Act.
7. That Respondent's employees were not engaged in loading or discharging an oceangoing vessel on the date in question.
8. That it has not been established that Respondent's employees were masters, ship's officers, or crew members of a vessel.
ORDER
It is therefore ORDERED that:
1. The Citation herein be and the same is hereby affirmed.
2. The Notification of Proposed Penalty herein be and the same is hereby reduced to zero.