Docket No. 6589

MATSON TERMINALS, INC.

OSHRC Docket No. 6589

Occupational Safety and Health Review Commission

March 1, 1976

[*1]

Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Altero D'Agostini, Regional Solicitor, USDOL

Jared H. Jossem, for the employer

Richard Ernst, amicus curiae

OPINION:

DECISION

BY THE COMMISSION: A decision of Review Commission Judge Harold A. Kennedy, dated September 30, 1974, is before this Commission for review pursuant to 29 U.S.C. § 661(i). That decision vacated a citation which alleged that respondent had violated 29 U.S.C. § 654(a)(2) by failing to require and assure the use of protective footwear by its employees in contravention of the occupational safety standard codified at 29 C.F.R. § 1910.132(a).

The Judge correctly held that the alleged violation should have been laid under the maritime standard codified at 29 C.F.R. § 1918.104. In vacating the citation, the Judge noted that the complainant had not contended that the respondent had violated that standard. Before us, however, the complainant contends, in the alternative, that we should affirm a violation of § 1918.104. We disagree.

Section 1918.104 provides that:

"The employer shall arrange through means, such as vendors or local stores, or otherwise, to make safety shoes readily available to all employees, [*2] and shall encourage their use."

This requires no more than that employers (1) make safety shoes readily available and (2) encourage their use. It does not provide that they shall require and assure their use. The respondent in this case was not charged with either of the delicts enumerated in § 1918.104, nor does the record establish that the respondent violated either requirement of the standard.

Accordingly, the Judge's decision is affirmed.

CONCURBY: MORAN

CONCUR:

MORAN, Commissioner, Concurring:

Judge Kennedy's decision is correct and should be affirmed for the reasons stated therein. Rather than rephrase his discussion of the matters in dispute in this case, I incorporate Judge Kennedy's decision herein by reference and attach the same hereto as Appendix A.

APPENDIX A

DECISION AND ORDER

Malcolm R. Trifon, for the Secretary

Jared H. Jossem, for Respondent

Harold A. Kennedy, Judge:

On January 15, 1974, United States Department of Labor Compliance Officer Charles N. Regan made an inspection of the SS MATSONIA at Pier 1, Honolulu, Hawaii. On that date, persons in the employ of the Respondent Employer, Matson Terminals, Inc., were involved in the loading of the ship (Tr. 38). As a result [*3] of that inspection, the Complainant Secretary of Labor caused to be issued on January 23, 1974, a non-serious citation, designated Citation No. 1, charging Respondent with violating Section 5(a)(2) of the Occupational Safety and Health Act of 1970 by failing to comply with two occupational safety and health standards, viz., 29 C.F.R. 1910.132(b) and 29 C.F.R. 1918.92(a). n1 The Secretary proposed a penalty of $35 for the alleged violation of 1910.132(b), referred to as Item No. 1, but no penalty for the alleged violation of Section 1910.92(a), referred to as Item No. 2. Respondent timely contested Item No. 1 and the penalty proposed. n2 Item No. 1 of the citation alleged violation of Section 1910.132(b) in the following language:

Failure of employer to assure the adequacy of footwear used by employees. Location: Second Deck.

In his complaint filed to enforce Item No. 1 of the citation, the Secretary alleged violation of Section 1910.132(b) in these words (Para. IV):

Respondent failed to assure the adequacy of footwear provided by employees; that is, respondent allowed and/or failed to prohibit the wearing of unsafe soft top or canvas shoes in regard to employees working on the [*4] second deck of the "SS MATSONIA" at the said Pier 1, contrary to 29 CFR § 1910.132(b) (Citation No. 1, Item No. 1).

On April 15, 1974, prior to the trial, the Secretary filed a motion seeking to change the charge with respect to Item No. 1. The Secretary's motion proposed that the Item 1 charge read as follows:

Respondent failed to require and assure the use of foot personal protectve equipment by employees engaged in work on the second deck of the "SS Matsonia" at the said Pier 1, where such personal protective equipment was necessary by reasons of employee exposure to hazards of processes or environment which were capable of causing injury or impairment in the function of part of the body through physical contact, contrary to 29 CFR 1910.132(a).

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n1 Section 5(a)(2) of the Act provides that each employer "shall comply with occupational safety and health standards promulgated under this Act."

n2 The citation prescribed abatement of Item No. 1 "immediately," but the abatement period was not contested.

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The amendment, [*5] as proposed in the Secretary's motion, was taken up at the hearing and was, after extended discussion of the Secretary's theory of the case, granted so that only violation of Section 1910.132(a) was alleged (Tr. 12-32).

Section 1910.132 reads as follows:

General requirements.

(a) Application. Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants 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.

(b) Employee-owned equipment. Where employees provide their own protective equipment, the employer shall be responsible to assure its adequacy, including proper maintenance, and sanitation of such equipment.

The hearing [*6] was held in Honolulu, Hawaii on May 2, 1974. No one sought party status on behalf of any employee. The Secretary called three witnesses: Howard Tanaka, a stevedore; Charles N. Regal, the Department of Labor compliance officer who conducted the inspection of the SS MATSONIA; and Donald Watts, Matson Stevedore Superintendent. Respondent elected to stand on the record without presenting any defense evidence.

* * *

The facts are not controverted. The SS MATSONIA is a new, "roll-on roll-off" Matson vessel. It is a "container" ship, which means that cargo is carried on the vessel in containers that may be stacked as much as "five high" on the deck. The containers are on wheels, and they must be secured on tied down (lashed) to the deck of the ship by lashing gear. Cargo on conventional vessels must also be lashed, but the equipment used to do so is somewhat heavier (Tr. 43, 77, 149-50).

Mr. Tanaka, an employee n3 of McCabe, Hamilton & Renny stevedoring firm, described the lashing equipment in use as follows:

A You see, on the roll-roll ships, we have a lashing wire that's about 11-foot long. That is the total overall length. Then there is a 3-foot length of chain that is connected [*7] to the top of the lashing wire, that is next to that big hook. We call it a pelican hook, but fellows call it "eye" hook. Then I think the length of that wire rope is about 8 feet, 7 or 8 inches, I think, thick. That is used to be hooked onto the container. Then we have a tensioner device - a spring lock device that we dog down to the padeye on the deck. We have the wires running in through the back end of this tensioning device and it's hooked on like a claw; and the tensioning device is brought up to secure that wire on the ground to the deck of the ship. n4

The lashing equipment is stored on the ship. According to Mr. Tanaka, the tensioner and the wire part, which are separate devices, are dragged to the point where the cargo is to be secured (Tr. 41-2, 73). Mr. Tanaka estimated the weight of the wire at 35 pounds and the tensioner device at 18 to 20 pounds (Tr. 39). There are smaller tensioning devices weighing only about 10 pounds also used on the MATSONIA (Tr. 59).

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n3 Respondent does not dispute the fact that it supervises stevedores working on Matson vessels or that it is an "employer" of such persons for the purposes of the Occupational Safety and Health Act of 1970. See Tr. 5, 35.

n4 Two photographs of lashing equipment used on roll-on roll-off vessels were offered in evidence (SXs 1 and 2). Mr. Tanaka also drew a diagram of the type of lashing gear used on the MATSONIA (SX 3, Tr. 43-47).

[*8]

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Mr. Tanaka thought that lashing activity presented "some degree of hazard" to the feet (Tr. 62). He said he had observed stevedores drop lashing gear while working on ships. He had dropped hooks on his own feet five or six times. He dropped a hook on his foot while aboard the MATSONIA once, but it was a glancing blow and he lost no time as a result (Tr. 51-4, 77-80). He at one time wore safety shoes but stopped wearing them due to an irritation to a toe. He wears leather work shoes while at work (Tr. 70).

The inspection of the MATSONIA took place on the morning of January 15, 1974, and Mr. Tanaka did not enter on duty on that day until 6:00 P.M. Mr. Regan testified that he was advised of the arrival of the new MATSONIA at Pior 1 in Honolulu and that he promptly went down to inspect it. He contacted Superintendent Watts and they proceeded to inspect the vessel. He observed a lashing crew member wearing tennis shoes and called it to Mr. Watts' attention. He testified that Mr. Watts indicated that he did not approve the wearing of tennis shoes and the latter in fact spoke to the man about it. [*9] Later during the inspection another lashing crew member was observed wearing a "similar" type of shoe. Mr. Regan expressed the view that the footwear worn by these two men were inadequate for the hazard involved in lashing and recommended issuance of the citation (Tr. 83-6, 89-90, 111-20).

Mr. Watts confirmed that Compliance Officer Regan had called his attention to the shoes worn by two lashing crew members, identified as a Mr. Tablang and a Mr. Mariano. He recalled, however, that Mr. Regan at the time of the inspection did not suggest that hard-top safety shoes were required (Tr. 148):

* * * And he says, "Well, as long as they are leather covered shoes." And I asked Fats if he had them and he said he had a pair of shoes in the car, so Fats did go out and get -- change his shoes. But Mariano didn't have any change in the car. * * * n5

Mr. Watts went on to explain that he took immediate action following Mr. Regan's inspection (Id.):

Well, after Mr. Regan left, I -- because he found a couple of guys with tennis shoes on, I made a survey of all the people I had aboard the ship, which we had at that time, 12 lashing people and 18 automobile people; and I checked them all [*10] out and I didn't find anybody else with tennis shoes or cloth covered, or whatever you want to say. And this is getting close towards the end of our operation -- I mean, the end of the day, so I made sure at the check-in at a quarter to six p.m., before the night gang checked in at 1800 hours -- I told -- in fact, Mr. Tanaka was there and I told Mr. Tanaka, "I got a citation because we found a couple of guys with canvas-covered shoes or tennis shoes; and if there is anybody here that turns to as of right now, you might as well tell them to go home or get some shoes with -- leather-covered shoes", which would have been appropriate at the time Mr. Regan told me what was appropriate.

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n5 Mr. Regan never indicated during his testimony that he ever suggested to Mr. Watts or any of Respondent's employees that safety shoes were required. See Tr. 110, 114-20. Mr. Tanaka, an officer of ILWU, attended a meeting at the OSHA office but was not told anything specific about what type of protective footwear was to be worn (Tr. 67, 75-7).

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Mr. Watts testified that Respondent had made arrangements for the purchase of safety shoes some years ago by stevedores through a vendor, but there was little response. McCabe, Hamilton and Renny also has made arrangements for its stevedores to purchase safety shoes through a vendor. Both Respondent and McCabe have safety rules for stevedores, but neither has specifically ordered stevedores to wear safety shoes (Tr. 63-4, 69; 137, 143-4, 149). n6

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n6 A copy of Respondent's safety rules, which was received in evidence, prohibits the wearing of canvas shoes (RX 1).

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Accident reports in evidence show injuries to the feet of employees engaged in lashing activities. There is no report, however, of any foot injuries on the MATSONIA or other roll-on roll-off vessel (RX 4(a)-(i); Tr. 77, 138-40, 149, 152).

* * *

Jurisdiction of the Commission is not disputed, all of the jurisdictional allegations of the complaint being admitted (Answer, Tr. 33).

The Secretary's case is based on the theory that the general industry [*12] standard appearing at 29 C.F.R. 1910.132(a) is applicable to Respondent's longshoring operations and, more specifically, required Respondent's lashing crew while at work on the MATSONIA to wear hard-top safety shoes (Tr. 33, 166-73).

It seems clear enough from this record that there is a hazard in lashing activities, even on roll-on roll-off vessels, which should be protected to the fullest extent possible by requiring stevedores engaged in such work to wear safety shoes. But can Respondent be fairly cited for not requiring its employees to wear such protective equipment on the day of the inspection? Careful examination of this record persuades me that only a negative answer can be given to this question.

Respondent has pressed several contentions in its answer, during trial, and in its brief. Its basic arguments are 1) that the standard relied on is unconstitutionally vague on its face and as applied herein, 2) that the standard is inapplicable to the pertinent operations of Respondent and, 3) assuming there was a violation, it was not attributable to Respondent.

Respondent raises some perplexing n7 questions if it were to be held that section 1910.132(a) is applicable [*13] to Respondent's stevedoring operations. In any event, the recent approval of the Commission's decisions by appellate courts in Ryder Truck Lines, F.2d , (5th Cir. July 18, 1974) and in McLean Trucking Co. v. OSAHRC, F.2d (4th Cir. Sept. 4, 1974) cases provides the definitive answer to Respondent's contention that the standard is unconstitutionally vague.

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n7 What is disturbing is not the wording of the standard so much as the fact that the record indicates that the Secretary may not always interpret it the same.

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However, I do not [*14] consider these cases dispositive as there are considerations here not present in any of the other cases. The significant difference in this case and the others is that this Respondent's operations are subject to standards promulgated for longshoring under the Longshoremen's and Harbor Workers' Compensation Act (33 U.S.C. 901 et seq.) and that such standards include a specific standard dealing with "foot protection". That standard reads as follows (29 C.F.R. 1918.104):

Foot Protection. The employer shall arrange through means, such as vendors or local stores, or otherwise, to make safety shoes readily available to all employees, and shall encourage their use.

It is to be noted that the standard requires Respondent only to (1) make safety shoes available and (2) encourage their use. Although the word "shall" is used, the standard is not mandatory in effect as it is followed by the word "encourage". In any event, the record does not indicate that 1918.104 was violated, and the Secretary does not contend that it was. However, I am convinced that 1918.104 is the applicable regulation and that 1910.132(a) is not.

The Secretary's own regulations indicate that a particular [*15] industry standard is to apply in the situation presented rather than the general standard. § 1910.5 of the general standard provides in part:

(c)(1) If a particular standard is specifically applicable to a condition, practice, means, method, operation, or process, it shall prevail over any different general standard which might otherwise be applicable to the same condition, practice, means, method, operation, or process. For example, § 1501.23(c)(3) of this title prescribes personal protective equipment for certain ship repairmen working in specified areas. Such a standard shall apply, and shall not be deemed modified nor superseded by any different general standard whose provisions might otherwise be applicable, to the ship repairmen working in the areas specified in § 1915.23(c)(3).

(c)(2) On the other hand, any standard shall apply according to its terms to any employment and place of employment in any industry, even though particular standards are also prescribed for the industry, as in Subpart B or Subpart R of this part, to the extent that none of such particular standards applies. To illustrate, the general standard regarding noise exposure in § 1910.95 applies to employments [*16] and places of employment in pulp, paper, and paperboard mills covered in § 1910.261.

The Secretary maintains that § 1910.132(a) should be held to apply here because there is a "gap" in the longshoring standards (Secy's Br., p. 9; Tr. 172-3). The difficulty with the Secretary's argument is that a fair reading of the longshoring standards fails to reveal any gap that the general standard can fill. Under § 1910.5(c)(2) a general standard may govern even though the industry has had particular standards promulgated for it but only "to the extent" there is no applicable particular standard. As has been noted, particular standards have been promulgated for the longshoring industry and a longshoring standard regulates feet protection in longshoring operations in specific terms -- i.e., safety shoes must be available and their use encouraged. Of course § 1910.132(a), if held applicable to longshoring operations, is a more strict rule in the sense that it is written in more mandatory terms than § 1918.104. However, the test of whether a general standard is to apply under § 1910.5 is not whether it is more strict or effective but simply whether there is a particular industry standard that [*17] applies. n8

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n8 The Secretary cites Rawles General Repair, Docket No. 531, dated Aug. 15, 1973, and Underhill Construction Corp., Docket No. 2516, for the proposition that general industry standards can be invoked against an employer even though he is covered by a particular industry standard. The judge's decision in Underhill, dated Feb. 13, 1974, is on review. There is no indication in the Rawls case that any general standard was applied in the face of an existing specific industry standard covering the same subject.

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It appears that the Secretary did not consider § 1910.132(a) applicable to Respondent's longshoring operations prior to issuance of the citation in this case. A published OSHA program directive, designated #200-21 and dated September 18, 1973 (CCH New Developments 1973-1974 Transfer Binder, P9083, p. 8120) provides in part:

(9) Applicable Standards. The following standards will be cited for longshoring violations: * * *

(b) The general industry standards, 29 CFR Part 1910, shall [*18] be applied to onshore and offshore hazards not specifically covered by standards under 29 CFR Part 1918.

(c) Where longshoring hazards are specifically covered by standards in 29 CFR Part 1918, citations of such standards shall be issued under 29 CFR Part 1918 and not under 29 CFR Part 1910 even though a 29 CFR Part standard covers the hazard. (See Section 1910.5(c)).

The Secretary's staff as well as members of the longshoring industry have apparently considered § 1918.104 applicable to longshoring operations and not § 1910.132(a). Compliance Officer Regan testified that this was the first citation he knew of issued in Hawaii on footwear against an employer subject to longshoring standards (Tr. 118-19; also RX 2).

Mr. Regan obviously considered the longshoring standard inadequate but was not sure just what the Secretary could require in the way of foot protection. At one point he expressed the view that the cited regulation required leather shoes "but it was still inadequate" (Tr. 120). Mr. Tanaka testified that OSHA officials were unable to state during a safety conference just what the Secretary's standards require in the way of foot protection (Tr. 75-7). It is evident [*19] that the Secretary did not consider the necessity of requiring use of safety shoes until sometime after the complaint was filed.

Unquestionably the Occupational Safety and Health Act is to be interpreted liberally so as to protect covered employees to the fullest extent possible. But the Act must be implemented and enforced against employers only after fair notice is given as to what is required of them. The remedy is simple: delete § 1918.104 from the longshoring standards so § 1910.132(a) will come into play; or better yet, issue a longshoring standard which states in clear terms that safety shoes are required in lashing operations.

In any event, the Secretary did not establish applicability or violation of § 1910.132(a). Since no violation was established no penalty of course may be assessed.

* * *

Based on the foregoing, and the whole record, I make the following conclusions of law:

1. Respondent is now, and at all times relevant herein, an "employer" within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970, and the Commission has jurisdiction of the parties [*20] and the subject matter.

2. It was not established that 29 C.F.R. 1910.132(a) applied to the lashing operations performed on the SS MATSONIA by Respondent's stevedore employees on January 15, 1974.

3. It was not established that Respondent violated 29 C.F.R. § 1910.132(a) or Section 5(a)(2) of the Act.

ORDER

Based on the foregoing, and the whole record, it is ORDERED that Item No. 1 of Citation No. 1 issued against Respondent on January 23, 1974, and the proposed penalty therefor be, and the same are, VACATED.

Harold A. Kennedy, Judge, OSAHRC

Dated: SEP 30 1974