JOHN W. McGRATH CORPORATION

OSHRC Docket No. 2872

Occupational Safety and Health Review Commission

November 20, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: CLEARY

OPINION:

CLEARY, COMMISSIONER: This matter is before the Commission upon my order directing review of a decision issued by Judge David H. Harris. The Judge found that respondent's failure to contest in a timely fashion item no. 1 of the citation n1 resulted by operation of law in the item becoming the final order of the Occupational Safety and Health Review Commission that is not subject to review by any court or agency. n2

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 Item no. 1 alleged respondent's non-serious violation of 29 CFR 1918.105(a) Employees shall be protected by protective hats meeting the specifications contained in the American National Standard Safety Requirements for Industrial Head Protection, Z89.1 (1969).

n2 29 U.S.C. 659(a) [1972].

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Submissions were invited on the following issue:

Whether the Judge's ruling concerning Item No. 1 of the citation issued in docket number 2872 is erroneous.

The facts may be briefly stated. Subsequent to an inspection, a citation and [*2] notification of proposed penalty were issued to respondent. The citation alleged that respondent had violated the job safety and health standards codified at 29 CFR 1910.105(a), 1919.25(a) and 1918.91(d). The alleged violations were listed in the citation in seriatim as individual items 1, 2, and 3.

Respondent's notice of contest stated that: ". . . the corporation contests items 2 and 3." At the hearing respondent alleged that the failure to file a notice of contest for item 1 was the result of a typographical error. Respondent sought to interpose a defense to item 1 and its proposed penalty and moved to withdraw its notice of contest to items 2 and 3.

We have reviewed the entire record. The decision of Judge Harris is substantively correct and is hereby affirmed in all respects. Mississippi Valley Erection Company of Tennessee, No. 524 (December 26, 1973).

It is therefore ORDERED that the decision of Judge Harris is affirmed.

CONCURBY: MORAN

CONCUR:

MORAN CHAIRMAN, concurring: I concur with the Commission's ruling affirming the citation's charge of noncompliance with 29 C.F.R. 1918.105(a). I must emphasize that the question presented to the Commission here [*3] is purely a procedural determination. My concurrence, therefore, is not addressed to any substantive issues regarding the validity of this particular standard. Such issues were not directed for review by the Commission in this case or the others which had been consolidated with it; n3 nor did the respondent file a petition for discretionary review on the matter. The findings of violation of this standard have thus become final orders of the Commission by operation of law and are unreviewable at this point.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n3 Secretary v. John W. McGrath Corporation, 5 OSAHRC 741 (1973).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

[The Judge's decision referred to herein follows]

HARRIS, JUDGE: These are actions in which the employer, John W. McGrath Corporation (hereinafter Respondent) seeks review of five citations and Notices of Proposed Penalties thereon, issued to it by the Secretary of Labor (hereinafter Complainant) under the provisions of the Occupational Safety and Health Act of 1970 (hereinafter the Act). The citations in docket numbers 2870, 2871 and 2872 [*4] were issued on April 6, 1973, that in docket number 3212 on May 18, 1973 and the citation in docket number 3726, on June 28, 1973. All of these citations place in issue an allegation that Respondent was in "other than serious" violation of the standard at 29 CFR 1918.105(a) (37 FR 22546, October 19, 1972). The Notices of Proposed Penalty, which accompanied each said citation, propose penalties of $200 in docket number 2870, $200 in docket number 2871, $225 in docket number 2872, $210 in docket number 3212 and $125 in docket number 3726. Docket numbers 2870, 2871 and 2872 were consolidated for trial by order dated July 6, 1973, docket number 3212 was consolidated for trial by order dated July 27, 1973, while docket number 3726, by written consent of all of the parties thereto n1 will be decided upon the record and exhibits received upon the issues raised in the trial of docket numbers 2870, 2871, 2872 and 3212.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 See order dated September 21, 1973.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The standard aforesaid provides:

Section 1918.105 [*5] Head protection.

(a) Employees shall be protected by protective hats meeting the specifications contained in the American National Standard Safety Requirements for Industrial Head Protection, Z89.1 (1969).

Additionally, the standards promulgated in 29 CFR Part 1918, Safety and Health Regulations for Longshoring, declare "[I]t is the purpose of the regulations of this part to carry out the intent of Public Law 85-742" which is stated to require, among other things,

Section 1918.1 Purpose and Authority.

(a) -- that every employer --- shall install, furnish, maintain, and use such devices and safeguards with particular reference to equipment used by and working conditions established by such employees 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.

Responsibility for compliance with the regulations of Part 1918 is placed upon the employer (See 1918.2) who is defined as

Section 1918.3 Definitions

--- an employer any of whose employees are employed, in whole or in part, in longshoring operations [*6] or related employments ---

Other related definitions are

Section 1918.3(d) The term "employee" means 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.

Section 1918.3(i) The term "longshoring operations" means the loading, unloading, moving, or handling of cargo, ship's stores, gear, etc., into, in, on, or out of any vessel on the navigable waters of the United States.

Section 1918.3(j) The term "related employments" means any employments performed as an incident to or in conjunction with longshoring operations ---

(37 FR 22530-22531)

At the trial herein, Respondent's attention was directed to the following circumstances. The citation issued to it in docket number 2872 (citation number 162), charges three separate violations of disparate standards, to wit: Item 1, 29 CFR 1918.105(a); Item 2, 29 CFR 1918.25(a) and Item 3, 29 CFR 1918.91(d). Respondent's Notice of Contest, dated April 23, 1973, states [*7] "As to no. 162, the corporation contests Items Nos. 2 and 3." The complaint filed by Complainant, in paragraph V, charges all three Items alleged in the citation. However, Respondent's answer, in paragraph five, denies the allegation in Item no. 1, of violation of the standard at 29 CFR 1918.105(a), but does not raise a contest in connection with Items no. 2 and 3 (Tr. 5). Respondent thereupon stated that the failure to contest Item no. 1 was due to a typographical error, represented that the proposed penalties for Items nos. 2 and 3 had been paid and moved to withdraw the Notice of Contest to said Items nos. 2 and 3 and to be permitted to interpose a defense to Item no. 1 and the penalty proposed thereon (Tr. 5-10). Complainant interposed no objection (Tr. 5-6).

No authority exists in this tribunal to grant Respondent's prayer to defend against the allegation charged in Item No. 1 set out in the citation issued in docket number 2872 (citation number 162), nor the penalty thereon proposed by the Complainant. Section 9(a) of the Act (29 U.S.C. 658) requires of the Complainant that whenever he believes that an employer "has violated a requirement of section 5 of this Act, of any [*8] standard, rule or order promulgated pursuant to section 6 of this Act, --- he shall --- issue a citation to the employer. Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the Act, standard, rule, regulation, or order alleged to have been violated. In addition, the citation shall fix a reasonable time for the abatement of the violation." Section 10(a) (29 U.S.C. 659) requires the Complainant, where a citation has been issued, to "notify the employer --- of the penalty, if any, proposed to be assessed --- and that the employer has fifteen working days within which to notify the Secretary that he wishes to contest the citation or proposed assessment of penalty." This section then provides that "If, within fifteen working days from the receipt of the notice issued by the Secretary the employer fails to notify the Secretary that he intends to contest the citation or proposed penalty, --- the citation --- as proposed shall be deemed a final order of the Commission and not subject to review by any court or agency." As used in these sections, the term "citation" is referenced to each [*9] violation of any standard promulgated under the Act and each violation is required to be described with particularity in such citation. Complainant has chosen, for reasons known to him, to include more than one allegation of violation in a notice of violation which he styles "Citation" and wherein each allegation of violation of a standard is described as Item No. 1, etc. This form of pleading cannot, in my opinion, affect the requirement of the Act that each violation of a standard requires the Complainant to issue a citation therefore. Whether the allegation of violation be referred to as "Item No. 1" or by any other term, each such allegation constitutes a separate citation under the Act and requires the employer to notify the Complainant that "he wishes to contest the citation or proposed assessment of penalty" thereon. That this is so, is borne out by the provision in Sections 10(b) and 10(c) affording the employer the choice of contesting either the citation n2 or the proposed assessment of penalty and permitting the uncontested item to become "a final order of the Commission and not subject to review by any court or agency," (Section 10(a)).

- - - - - - - - - - - - - [*10] - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n2 Notification of failure to correct a violation for which a citation has been issued, Section 10(b).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

This is not to say that, where the Complainant, as he has done in the instant case, includes more than one allegation of violation in a single document which is styled "Citation," the employer may join issue on all of these allegations by a general statement that he contests the charges. Such a statement would be the equivalent of a general denial and would include the proposed assessments of penalty.

In the instant case, however, the Respondent failed to notify the Secretary that it intended to contest the citation described as "Item No. 1" in docket number 2872 with the result that that citation and the proposed assessment of penalty thereon became a final order of the Review Commission which, by the terms of Section 10(a) of the Act, is not subject to review by any court or agency. See, Sec. v. Walter A. Podpora, Sec. v. Blue Ribbon Industries, Inc., 19, 1973, on remand); Sec. v. Remark Building Service Company, Inc., Sec. v. Penn Central Transportation Company, Cf. Sec. v. Schumann Brothers, Inc.,

It appearing that the penalties proposed to be assessed for the violations described in Items No. 2 and 3 in docket number 2872 have been paid, that the violations therein have been abated and that a representation of continuing compliance has been made, there is no reason why the Respondent's prayer to withdraw its notice of contest to these citations should not be granted (Tr. 10-11).

On the remaining issues raised herein, there exists no real dispute concerning the factual situation.

Respondent is the third largest contract stevedore and terminal operator in the Port of New York with annual sales of between 5 and 10 million dollars. It employs approximately 1100 men on a daily basis and is engaged in the loading and discharging of various types of cargo carried by vessels moving to and from states other than the State of New York and to and from foreign [*12] countries. Respondent has been cited for "various non-serious violations" of the Act. The citations herein have been posted at Respondent's pier and it concedes proper service of the said citations and of Notices of Proposed Penalty thereon (Tr. 13-14). It is also conceded that a stevedore employed aboard the motor ship Concordia Gulf, moored at Respondent's pier at the foot of River Street, Hoboken, New Jersey, suffered a head injury on March 9, 1973 (Tr. 15).

In the fall and winter of 1970, following the extension of the application of regulations issued under the authority of the Longshoremen's and Harbor Workers' Compensation Act, as amended, to all types of cargo vessels and to the piers, Respondent as a member of the New York Shipping Association (NYSA) n3, purchased and issued, protective head gear, including liners, to all longshoremen who were regular members of stevedore gangs working on its piers in the Port of New York. n4

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n3 Composed, among others, of stevedore and longshoring contractors. The association represents employers in collective bargaining negotiations with the International Longshoremen's Association, labor union.

n4 The compliance officer who described the conditions he found on the dates of his inspections, as a witness for the Complainant, assisted in the distribution of protective hats to longshoremen as an employee of the Respondent in 1970.

[*13]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

29 CFR Part 1918, which includes the standard at 1918.105(a), was promulgated under Section 6 of the Act (29 U.S.C. 655) on May 29, 1971 (29 CFR 1910.16, 36 FR 10469) by way of adoption of 29 CFR Part 1504 which had been issued under the Longshoremen's and Harbor Workers' Compensation Act (33 U.S.C. 901 et seq. ), as amended. Part 1504 of this title was redesignated as Part 1918 on December 30, 1971 (36 FR 25232) and now appears in consolidated and revised form at 37 FR 22530 et seq. (October 19, 1972). Subsection 1918.105(a) remained unchanged.

The inspections in docket numbers 2870 and 2871 were had on March 9, 1973. At the time these inspections were conducted, the compliance officer was required to follow a directive of his area director which treated each vessel as a separate workplace. Following this directive separate citations and separate proposed assessments of penalty were issued for alleged violations of subsection 1918.105(a) for the M/S Hung Ming (docket number 2870) and the M/S Concordia Gulf (docket number 2871). Shortly thereafter and prior to May 8, 1973, this directive [*14] was rescinded and a new directive required that the workplace be considered to include the pier, the dock area and all ships moored for loading or unloading. As a consequence, the inspection of May 8, 1973, conducted by the same compliance officer, and which included the motor ships Concordia Tadj and Condordia Fonn, resulted in a single item alleging violation of the said subsection (docket number 3212) and a single proposed assessment of penalty.

The compliance officer was accompanied on the walkaround of March 9, 1973 by Respondent's first aid and safety man, its pier superintendent and the union shop steward.

On that date, five gangs, comprising over 100 men, were unloading the M/S Hung Ming. Of these, 20 were wearing protective hats. On the M/S Concordia Gulf, not one of the five gangs of stevedores working there wore protective hats.

On May 8, 1973 the compliance officer was accompanied on his inspection walkaround by the same individuals who had accompanied him on his tour of March 9, 1973. Aboard the motor ships Concordia Tadj and Concordia Fonn approximately 100 of the longshoremen engaged in handling cargo, did not wear protective headgear.

Except in the [*15] instance of the stevedore who was struck on the head aboard the M/S Concordia Gulf on March 9, 1973, the compliance officer did not take the names of any of the men who were working the ships in question on either March 9 or May 8, 1973. However, the men were working ships moored at Respondent's pier and were pointed out by the shop steward as employees of the Respondent. In fact, little dispute is raised as to the fact of their employment. Neither Respondent's safety man or its pier superintendant, both of whom testified as witnesses in its behalf, denied that the longshoremen in question were employees of the Respondent on the dates of the said inspections.

It is clear, in fact it is not disputed, that from May 29, 1971, when Part 1504 was adopted and promulgated as a group of standards under the Act, until March 1973, no citations were issued in the Port of New York for violations of 29 CFR 1918.105(a). This was due to a course of action adopted by the area director of the Occuptational Safety and Health Administration of the United States Department of Labor (OSHA) (Tr. 42-44). This course of action appears to coincide with a public statement made by the Assistant Secretary [*16] of Labor in charge of OSHA on October 28, 1971 (Tr. 120). It is also undisputed that the issuance of the citations for violation of the standard in question was the result of a change in the enforcement policy of OSHA which took place shortly before the inspection of March 9, 1973 and that the first knowledge of the change received by the Respondent was communicated to its safety officer via a telephone call from Complainant's compliance officer on Monday, March 5, 1973 (Tr. 45).

Respondent's pier in Hoboken, New Jersey, the situs of the violations alleged herein, can receive 7 ships at one time. There are usually 2 or 3 ships moored and in the process of loading and unloading and this process requires the use of about 15 gangs of stevedores totalling some 300 men. These men, all of whome are members of ILA, form into their gangs at the hiring hall which is under the jurisdiction of a bi-state authority. Work orders are posted on a bulletin board at the end of Respondent's pier each day for the following day validated through the bi-state authority. These gangs are often short men in which case a hiring agent, in Respondent's employ, hires extra men at the hiring hall. [*17] Whenever there is no work at Respondent's pier, the men go to the hiring hall to be validated for work at other piers.

Since the Respondent issued protective headgear to the men in the stevedore gangs validated to it, these men have been required to have such headgear with them when reporting for work at the pier. In those instances where a man who had been previously issued a headgear had lost it, he is required to defray the cost of a re-issue.

There is evidence that educational efforts were made by Respondent to foster the use of protective headgear prior to the March 5, 1973 notification that subsection 1918.105(a) would be enforced by OSHA. A poster had been erected on Pier B in the spring of 1971 which had been torn down at some unknown time and replaced some time in July, 1973. In addition to admonishing each man to wear the headgear while at work, periodic safety meetings are held which are attended by the hatch bosses and ship foremen at which instructions are issued that the law requires all men to wear protective headgear while at work.

Other than those efforts, little attention was paid to requiring the stevedore to wear the protective headgear which had been issued [*18] to him. It was common occurrence for men who had been requested to don the headgear to be observed working without it shortly thereafter. No specific person was assigned to see to enforcement and only two of Respondent's supervisory personnel made efforts to do so. Most men were reluctant to wear the protective headgear but put the gear on when requested although many doffed the hats soon thereafter. In cases where a man refused to wear the hat or where he had been observed without the hat on several occasions after having been donned the same on request, the procedure followed was to complain to the ship steward and then to the hiring agent who is an ILA official. No evidence was introduced to indicate what action these union officials took in such instances. Since March 5, 1973 efforts to enforce the wearing of protective headgear while at work have included notification to all men on the pier that protective hats are to be worn, instructions to the same effect to the hatch bosses and the posting of 2 signs on Respondent's pier (R-2; R-4). No fractious longshoreman has ever been discharged.

I am satisfied that Respondent has, in good faith, attempted to persuade [*19] the stevedores to wear the protective headgear which it had issued to them. I am also satisfied that Respondent relied upon the policy of voluntary compliance with subsection 1918.105(a) adopted by OSHA during the period from May, 1971 to some time in March, 1973 and, understandably, adopted a similar policy of compliance by persuasion and edification. This course of action has resulted in widespread failure to comply with this subsection by stevedores in Respondent's employ. However in spite of the exposure of approximately 300 men each day to head injury by objects and material falling through open hatches and from cargo being hoisted from or into the ship, only a single injury appears of record.

It must be recognized that it is necessarily a slow process to reverse a widespread and habitual course of conduct, i.e. the preference among stevedores not to wear protective headgear while at work, which has been permitted to go relatively unchecked for approximately two years. I have little hesitancy, under the circumstances of this case, in concluding that it would be manifestly unfair to penalize Respondent for its failure to enforce full compliance with the standard herein concerned [*20] on March 9, 1973. Similarly, with regard to case docket number 3212, although two months have elapsed since Respondent became aware of the fact that it would be required to comply with the said standard, I am not persuaded, in view of Respondent's apparent good faith efforts to provide adequate head protection for its stevedore employees and secure compliance by officially approved voluntary methods, that a sufficient amount of time had elapsed in which a completely successful reversal of the aforesaid conduct on the part of its stevedore employees, could have been brought about. Consequently I find that imposing a penalty for the latter violation would do little toward producing the desired result and, indeed, under the circumstances of this case, do little toward enhancing the spirit of cooperation which is necessary to the successful acceptance and enforcement of the Act.

With regard to the violation of the same standard alleged in case docket number 3726, which occurred on June 27, 1973, almost four months after Respondent knew that it would be required to comply with the instant standard, I am satisfied that the proposed penalty of $125 is, under the circumstances [*21] herein, reasonable.

Now therefore, there being jurisdiction over the parties hereto, for the reasons and upon the facts and conclusions of law heretofore expressed, it is ORDERED that:

1. Respondent's prayer to interpose a defense to Item number 1 in case docket number 2872 be and the same is hereby denied.

2. Respondent's prayer to withdraw its notice of contest to Items numbered 2 and 3 in case docket number 2872 be and the same is hereby granted and the citations thereon and the proposed penalties thereon of $65 and $45, respectively, be and they are hereby affirmed.

3. Respondent be and hereby is adjudged to have violated the standard at 29 CFR 1918.105(a) on March 9, 1973 as alleged in case docket number 2870 and case docket number 2871, and upon May 8, 1973 as alleged in case docket number 3212 and on June 27, 1973 as alleged in case docket number 3726, and each of the citations issued therein are hereby affirmed.

4. The proposed penalties of $200 in case docket number 2870, of $200 in case docket number 2871 and of $210 in case docket number 3212, be and they are hereby vacated.

5. The Respondent be and it is hereby assessed and required to pay a penalty in the sum [*22] of $125 for and account of its said violation of 29 CFR 1918.105(a) as alleged in case docket number 3726.