CALIFORNIA STEVEDORE & BALLAST COMPANY
OSHRC Docket No. 72
Occupational Safety and Health Review Commission
June 16, 1972
[*1]
Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners
OPINIONBY: BURCH
OPINION:
BURCH, COMMISSIONER: On March 16, 1972, Judge Harold A. Kennedy issued his decision in the captioned case, affirming the Secretary's citation, vacating the notification of proposed penalty of $16, and assessing a penalty of $15.
On March 21, 1972, I directed that the report of the Judge be reviewed by the Commission in accordance with section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq., hereinafter referred to as "the Act").
The Commission has reviewed the entire record in this case and the briefs and exceptions filed by the parties. We do not adopt the Judge's conclusions of law and adopt only those findings of fact that are consistent with the following decision.
On September 27, 1971, respondent was cited for a non-serious violation while performing longshoring operations aboard the Seatrain Maryland at the Oakland Army Base, Oakland, California, in that:
Employer failed to mouse four permanent shackles, which support body of 20-ton capacity spreader bar by wire rope. Employer using this special stevedore gear aloft at time of inspection. Permanently positioned [*2] screw pin shackles provided by employer and used aloft, shall have their pins moused. n1
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n1 "Mousing" is the seizing or securing of a pin in such a way that it cannot become unscrewed or dislodged while in use. (Tr. 29).
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The citation alleges a violation of 29 C.F.R. 1504.65(b) (as adopted by 29 C.F.R. 1910.16) and notes that the violation was abated immediately. The Secretary proposed a penalty of $16. Respondent filed a timely notice of contest and proceedings were had before this Commission. At the hearing, respondent contended that the shackles with unmoused pins for which it was cited were not subject to 29 C.F.R. 1504.65(b) as they were not used "aloft."
The standard at 29 C.F.R. 1504.65(b), controlling longshoring operations, provides:
Screw pin shackles provided by the employer and used aloft, except in cargo hook assemblies, shall have their pins moused.
The shackles that are the subject of the citation are part of a spreader bar assembly. The spreader bar is a bar forming a rectangle, the [*3] purpose of which is to "spread" wire ropes, or lower "legs," leading from each corner of the spreader to the cargo platform below. Thus, the area between the bar and the platform has parallel sides affording maximum cargo space. At the upper corners of the spreader bar are wire ropes, or upper "legs," which form a pyramid with the spreader bar as its base and with its apex attached to the cargo hook assembly. Both upper and lower "legs" are attached to the spreader bar with screw pin shackles. Respondent was issued the citation for failure to mouse the screw pins in the four shackles to which the upper "legs" were attached.
It is undisputed that these shackles and pins were furnished by the employer and were not part of the cargo hook assembly. The remaining question is whether they were used "aloft." In moving to and from the dock and the ship, this gear traveled over the heads of men working thereon. In the Secretary's view, this use is "aloft." We disagree.
Aloft is a word of art with a precise meaning to men of the sea. The expertise of the Commission n2 leads it to adopt the definition of "at, on, or to the masthead or the higher rigging." n3 To adopt the definition [*4] suggested by the Secretary as "over the head of the observer" makes the standard meaningless. n4
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n2 U.S.C.A. 661(a).
n3 Webster's New International Dictionary, 3rd Ed. (1965) "naut."
n4 Surely, the Secretary does not seriously contend that "Charlie Noble" is "aloft" to the cook in the galley.
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The Area director chose to issue the citation for failure to mouse the pins in only the upper shackles on the spreader bar, and not the lower ones. His reasoning was that the lower shackles were frequently changed and therefore were not permanent. The Area Director also opined that owing to the frequency of change of these shackles, it would be "onerous" to require respondent to mouse the pins.
The purpose of the standard is to protect longshoremen from the danger likely to exist if screw pins back out of the shackles. Cargo hook assemblies are specifically excluded from the standard because they frequently come into view for inspection. Plainly, anything below the cargo hook assembly is just as frequently in view [*5] for inspection. The application of the standard, based on the Area Director's opinion that it would be "onerous" to respondent to mouse the pins on these lower shackles while requiring it to mouse the pins of the upper shackles places an even more onerous duty on respondent, i.e., that of attempting to comply with the standard as interpreted in each case by a particular Area Director. Employers are entitled to rely on the standard's clear language, uncolored by additional and subjective criteria.
The Commission notes that while shackles used aloft may, in fact, be part of the permanent rigging, permanency is not a criterion necessary to bring a shackle within the ambit of the standard. If it is the Secretary's judgment that screw pins in permanent shackles used overhead shall be moused, let the standard be changed to reflect this judgment. n5
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n5 Standard Seamanship for the Merchant Service, F. Reisenberg, (2Ed, 1936), shows only two kinds of screw pins for shackles: the eye-screw pin, in use here, and the flush head screw pin. Although the standard requires mousing of screw pins, there is no reliable way to mouse a flush head screw pin. One may search Reisenberg in vain for an example of a moused screw shackle pin. The flush head screw pin has a slotted head to receive a screwdriver with which it is tightened. The eyescrew pin is designed to receive a marlin spike for use as a fulcrum with which it is driven home. That this eye may be utilized for mousing the screw in infrequently inspected shackles used aloft and which are subject to vibration is insufficient reason to require that every screw pin used overhead be moused as provided by 29 C.F.R. 1504.65(b).
[*6]
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Accordingly, it is ORDERED that the Secretary's citation and notification of proposed penalty are vacated.
[The Judge's decision referred to herein follows]
KENNEDY, JUDGE, OSAHRC: This is a proceeding under Section 10(c) of the Occupational Safety and Health Act of 1970 (84 Stat. 1601; 29 U.S.C. 651 et seq. ) to review a citation and notification of a proposed penalty issued by the Secretary of Labor against Respondent California Stevedore and Ballast Company of San Francisco, California. The citation, dated September 27, 1971, recites that an inspection of Respondent's workplace at MOTBA (Military Ocean Terminal Bay Area Facility) 6 East, Oakland Army Base on September 22, 1971, disclosed an alleged violation of the safety standard set forth at 29 CFR 1504.65(b). The alleged violation, which was "abated immediately" according to the citation was described in the citation as follows:
Employer failed to mouse four permanent shackles, which support body of 20-ton capacity spreader bar by wire rope.
Employer using this special stevedore gear aloft at time of inspection. Permanently [*7] positioned screw pin shackles provided by employer and used aloft, shall have their pins moused.
The Secretary's notification, issued on October 4, 1971, proposed a penalty of $16. Respondent filed its notice contesting the citation and the proposed penalty under date of October 6, 1971, which was received by the Commission on October 12, 1971. The Secretary's complaint was filed on October 18, 1971, and Respondent's answer was filed on November 16, 1971 (within the time allowed by the Hearing Examiner).
The case was heard, after due notice, in San Francisco, California, on December 1, 1971. Parties were afforded opportunity to present evidence, examine and cross-examine witnesses. No affected employee or employee representative sought to participate although given opportunity to do so.
FINDINGS OF FACT
I. THE ISSUES -- JURISDICTION
The complaint alleges that Respondent is a California corporation engaged in longshoring operations and that its employees load and unload vessels arriving from and destined for foreign and out-of-state ports. The complaint further asserts that on September 22, 1971, Respondent violated the Occupational Safety and Health Act of 1970 [*8] and the safety standard promulgated pursuant to the amended Longshoremen's and Harbor Workers' Compensation Act (33 U.S.C. 941) appearing at 29 CFR 1504.65(b) and more recently adopted as a standard under the Occupational Safety and Health Act of 1970 (29 1910.16, 36 Fed. Reg. 10,469, dated May 29, 1971) in that (Para. V):
screw pin shackles provided by respondent were not moused, while being used aloft in a spreader bar assembly on board the Seatrain Maryland while docked at MOTBA 6 East, Oakland Army Base, Oakland, California.
According to the complaint such violation was non-serious in nature and affected 20 of Respondent's employees. The complaint prays affirmation of the citation and the proposed penalty of $16.
Respondent's answer admits that it is a California corporation engaged in a business affecting commerce and that the employees aboard the Seatrain Maryland on the day of the alleged violation are represented by Local 10 and 91 of the International Longshoremen's and Warehousemen's Union. Respondent specifically denies violating the Act or the cited standard, asserting that "shackles were not used aloft."
Based on undisputed facts, the Hearing Examiner finds [*9] that Respondent is, and at all times relevant herein, a California corporation engaged in longshoring operations and related employments with its principal place of business located at Pier 30, San Francisco, California. The Hearing Examiner also finds that Respondent and its employees load and unload vessels arriving from and destined for out-of-state and foreign ports, and that Respondent is an "employer" and a person engaged in a "business affecting commerce who has employees" as defined in Sec. 3(5) of the Act. n1
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n1 Respondent is the largest, and only government contracting, stevedore concern in the San Francisco Bay Area. In June 1971, its average weekly longshore payroll was approximately $300,000. It employs longshoremen on a day-to-day basis out of the ILWU hiring hall. In addition, it has approximately 80 regular employees (typists, clerks, walking bosses and other supervisory personnel) on its payroll (Respondent's Ex. 1, pp. 368-377, 395).
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Section 6 of the Occupational Safety and Health Act [*10] of 1970 sets forth the procedures for issuing standards under the Act. Section 5 of the Act provides in part that each employer
(2) shall comply with occupational safety and health standards promulgated under this Act.
Section 1504.65(b) of the longshoring regulations (29 CFR 1504.65(b)) reads:
(b) Screw pin shackles provided by the employer and used aloft, except in cargo hook assemblies, shall have their pins moused.
The Secretary's citation acknowledges that the alleged hazard has been abated. The following issues are thus presented: (1) whether Respondent violated the cited longshoring safety standard and the Occupational Safety and Health Act of 1970 by furnishing unmoused screw pin shackles to be used aloft but not a part of a cargo hook assembly and (2) and, if so, whether the proposed penalty is appropriate.
II. THE EVIDENCE
Two witnesses were called by the Secretary, Richard W. Sundstedt, an Occupational Safety and Health Administration (OSHA) compliance officer, who had inspected Respondent's workplace on September 22, 1971, and Mr. Sundstedt's superior, Donald T. Pickford, the San Francisco Area Director of OSHA.
Mr. Sundstedt testified that he went [*11] to Pier 6 East of the Oakland Army Base on the morning of September 22, 1971, and saw stevedore employees of Respondent loading cargo onto the deck of the vessel Seatrain Maryland "via a whaleback spreader bar unit which was attached to the hook of the shipboard crane" (Tr. 18). Mr. Sundstedt, who worked as a longshoreman for about eight years, described the unit as follows (Tr. 19):
* * * Whaleback platform is the platform the cargo itself sets upon. It is hoisted by means of utilizing a rectangular bar, a rectangular configuration. At each end of the bar . . . there are wire rope slings or legs which are fastened to the whaleback platform. And the uppermost legs form a triangle and are shackled into the ship's crane hook.
Lower legs or slings, he said, are attached to the whaleback lift platform on which cargo is loaded. Mr. Sundstedt drew a sketch of the spreader bar assembly and whaleback lift platform that he saw in use on that day (Secretary's Ex. 1). n2 Mr. Sundstedt identified on his sketch four screw pin shackles which attach the wire rope spreader bar to the cargo hook as A, C, E and G. Such shackles secure the upper legs at the four corners of the bar and above [*12] the bar itself. Below the bar and at the four corners are four other screw pin shackles, identified as B, D, F and H, which secure the lower legs to the spreader bar frame. Four other shackles identified as I, J, K and L secure the lower legs to the platform below.
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n2 A witness for the Respondent explained that the "spreader bar brings these wires up in a vertical position so they will not squeeze in on the cargo" (Tr. 116). Mr. Sundstedt also identified a picture that he had taken of a similar whaleback lift platform and spreader bar assembly (Secretary's Ex. 2).
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According to Mr. Sundstedt a screw pin shackle is in the form of a horseshoe and has a pin which fits into an opening (Tr. 28). (Screw pin shackles are pictured in Respondent's Exhibit 9.) The pins are threaded and become dislodged if they are "unthreaded a distance of about three quarters of an inch" (Tr. 59). A screw pin is "moused" and made secure by "seizing or securing of the screw pin in such a way that it cannot become unscrewed" (Tr. [*13] 29). This is done with a "seizing wire" (Tr. 61).
Mr. Sundstedt testified that he observed the spreader bar assembly being used to hoist seven or eight loads of cargo onto the Seatrain Maryland during a period of about one hour and fifteen minutes while he was aboard the vessel. According to the compliance officer, screw pin shackles identified as A, C, E and G, those above the spreader bar, were not moused but should have been as they were used aloft and were not a part of the cargo hook assembly. n3 He explained that the other shackles did not have to be moused (Tr. 42):
* * * Shackles B, D, F and H would be excluded from 1504.65(b), and any other shackles which fall beneath them or which were located beneath them.
* * * It's generally thought that they are more likely to be changed, and rather than pose a practical difficulty on component parts of gear which are frequently subject to observation, it's the intent of the regulations, that the shackles beneath the bar fall into the realm of the cargo hook.
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n3 The Secretary's citation is concerned only with the shackles above the spreader bar and identified as A, C, E and G, Comparable shackles are identified as "A" on a sketch drawn by a witness for Respondent (Respondent's Ex 8, Tr. 114).
[*14]
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Mr. Sundstedt thought that the "thrust" of the regulation in excluding shackles from its operation (i.e., from the mousing requirement) was directed more at "frequent change(s)" of shackles than the "frequent observation" of shackles (Tr. 47). He agreed on crossexamination that a shackle at the bridle ring or cargo hook ("blacksmith") need not be moused under the cited standard (Tr. 47-51). He also agreed that the regulations would not apply to shackles on a hatch beam bridle or shackles furnished as a part of a ship's stevedore gear (Tr. 53-57).
As San Francisco Area Director of OSHA, Mr. Pickford said he was responsible for the issuance of the citation against Respondent and assessment of the $16 proposed penalty in the case. He testified that he considered "aloft" as used in 29 CFR 1504.65(b) as meaning "that which is raised up over the heads of persons who are able to observe it" (Tr. 65). He interpreted "aloft" to apply, in relation to the deck of a ship or to the dock, "whenever something reaches a point where men can be under it" (Tr. 65, 77-78).
Mr. Pickford said he considered [*15] "aloft" in this light when he approved the issuance of the citation raising issue only with respect to mousing of shackles A, C, E and G. He explained his view of how the cited standard should be applied as follows (Tr. 69-70):
I have made the determination as Area Director that we would not issue citations on the bridle legs on such assembly for the reason that they are frequently changed, and although in accordance with the letter of the law we could consider that in violation, we also must consider that it would be onerous and create a hardship on the employer frequently having to change those legs.
So it is a policy of this District to require the mousing of shackles of those components that are not frequently changed, such as the upper four legs on such a spreader bar assembly. Those are frequently -- infrequently, if ever, changed, except to replace worn out wire, whereas the lower portions are changed when it is required to use different length legs.
And in the lower shackles where they need be shackled in for each lift, there would be screw pin shackles put in, the lift made and screw pin shackles removed. The duration of time in attendance would be very short. * * * [*16]
Thus, if a shackle were "frequently handled" it would thus be "permanent" in the Area Director's opinion and need not be moused (Tr. 76). He said his determination was based on past history of accidents and that he had advised local employers of his interpretation of the standard before the Act became effective in April 1971 in the form of written notice or otherwise (Tr. 83-97; Secretary's Ex. 5). He agreed that the regulation itself did not distinguish between permanent and non-permanent shackles (Tr. 83); however, in order to avoid hardship on employers he had made an allowance in favor of non-permanent shackles (Tr. 87-92).
According to Mr. Pickford, Mr. Sundstedt's sketch does not show the cargo hook assembly (except for the hook) which is excluded from the cited regulation (Tr. 66-67, 81-82). On cross-examination, he agreed that hatch beam bridle shackles, subject to another regulation (1504.42(b)), and presumably handled frequently, need not be moused (Tr. 76-78). He also agreed that a ship's gear, including a screw pin shackle, is not subject to his jurisdiction unless it is used by an employer subject to the Act (Tr. 78-79).
Mr. Pickford also identified the [*17] penalty worksheet used to compute the $16 proposed penalty (Secretary's Ex. 4). It shows that the figure was calculated from an unadjusted penalty of $50 for a "Type A" violation after allowing 35% deduction based on size (5%), good faith (10%) and history (20%) (Tr. 70-71, 83-87, 93-96). Only 10% was allowed for good faith he said because Respondent had "full knowledge" of the regulation, "and yet they failed to comply" (Tr. 84-85). The allowance for size was based on the fact that employees on the job ranged from 20-100 (Tr. 86; 95). The penalty was further reduced by 50% for prompt abatement of the alleged violation.
Respondent called William H. Hogberg, Respondent's Stevedore Superintendent for Pier 32 in San Francisco, as a witness. He testified that he had 44 years' experience in the maritime field, having served first as a sailor and later as a freight clerk, operating manager and later as a superintending official. He has been employed by Respondent for five years. He attends Respondent's safety meetings regularly and has taught marine safety courses. As a stevedore superintendent Mr. Hogberg said that he was responsible for receiving the papers of a docking [*18] vessel and determining the hours and type of labor and cargo equipment for loading and discharging.
Mr. Hogberg said that he was aboard the Vessel Seatrain Maryland at Berth 7 East, Oakland Army Terminal on the day before the inspection by Mr. Sundstedt. He also drew a sketch of the spreader bar assembly used on the Vessel (Respondent's Ex. 8). The assembly that he drew showed the cargo hook shackled to a mylar belt (to prevent conduction of static electricity) and other parts above the hook (Tr. 110-115). The assembly which he drew shows eight shackles at the four corners of the spreader bar, four above the bar securing the upper legs (labeled "A") and four below securing the lower legs (labeled "B"). Mr. Hogberg testified that the spreader bar in use on September 21 was bent but was replaced on that day.
According to Mr. Hogberg the shackles marked "A" (which are comparable to shackles A,C,E and G on Secretary's Exhibit 1) above the bar were not "permanently positioned" as they were frequently dismantled to change the lengths of upper legs (when "coaming," "two-blocking" or when using a Garitson bridle, (Tr. 120-128)). He did not consider shackles "B," below the bar, [*19] as "permanent" either as they are "removable." Mr. Hogberg said that Respondent does permanently secure shackles used on a Stokes or firstaid basket, used in hoisting an injured person. This is done by "peening" the end of the screw pin (Tr. 125). He saw no need to mouse shackles above the spreader bar or shackles shown above the hook in his sketch (C and D) as they are changed during the course of a day and are just above the men's heads and are visible (Tr. 128). He personally inspects shackles on the spreader bar each day as do walking and gang bosses (Tr. 128, 142).
Mr. Hogberg acknowledged that the screw pin shackles shown on his sketch were furnished by Respondent (Tr. 148). He thought a shackle could be moused in five to seven minutes (Tr. 142).
The term "aloft" to Mr. Hogberg refers to the ship's rigging -- the mast, the cross trees or the boom heads (Tr. 130). He identified certain maritime texts and dictionaries which define the term or use it in a similar way (Tr. 131-137; Respondent's Exs. 10-11-12). n4 Mr. Hogberg thought use of the word "aloft" in the cited standard for stevedoring was confusing (Tr. 139-140):
* * * In other words, they say "screw pin [*20] shackles provided by the employer and used aloft," a longshoreman -- a longshore company or stevedore company do not provide shackles for use in the upper rigging. They go on to say, "except in cargo hook assemblies, shall have their pins moused . . ." So they are talking about aloft and in the rigging. Why that comes into this book, under my personal interpretation, I don't understand.
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n4 Mr. Hogberg pointed out that the Pacific Coast Marine Safety Code (Resp's Ex. 13) for longshoremen contains a rule (Rule 204) that requires boom guys and gin blocks to be secured with shackles properly moused, but they are clearly "aloft" -- approximately 45' above the deck (Tr. 136-137).
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Respondent also offered the testimony of Mr. Irving W. Levikow, Respondent's Insurance Manager, which had been given in another Review Commission Case, Docket 14 (Respondent's Ex. 1). The testimony was received by stipulation (Tr. 102). Mr. Levikow testified as to certain business facts (See footnote 1), Respondent's safety policies [*21] and insurance program. He pointed out that Respondent is self-insured up to $25,000, which he believes has resulted in a safer work operation for employees. He testified of safety meetings held by superintendents and other supervising officials of Respondent, also to a number of operational changes made to improve the safety and health of Respondent's employees (e.g. safety cages, auto transporters, etc.). He pointed out that Respondent received PMA's top safety award in 1969 and was second in 1967, 1968 and 1970. n5
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n5 Respondent also offered the following exhibits which were introduced through Mr. Levikow: Pacific Coast Longshore Contract Document, 1966-1971 (Respondent's Ex. 2); Respondent's written Safety Policy, (Respondent's Ex. 3); Respondent's check lists for Walking Bosses and Gang Bosses (Respondent's Ex. 4); Minutes of Respondent's Management Meeting on Occupational Safety June 15, 1971 (Respondent's Ex. 5); Copy of June 24, 1971 letter to Universal Transcontinental Corporation (typical of letters sent to Respondent's customers on requirements of the 1970 Act, Respondent's Ex. 6); and Respondent's notice of July 23, 1971 to its Gang Bosses (Respondent's Ex. 7).
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III. THE DISCUSSION
The following elements of the Secretary's case are not disputed:
1. Screw pin shackles above the spreader bar (A, C, E and G in Secretary's Ex. 1 and shackles "A" in Respondent's Ex. 8) were furnished by Respondent;
2. Such shackles were not part of the cargo hook assembly; and
3. Such shackles were not moused.
Respondent contends that there is a fatal variance in the Secretary's case, and that a decision favorable to the Secretary would be highly prejudicial to it. Respondent points out that the Secretary maintained throughout the trial that the shackles in question were "permanent" but concedes in its proposed findings that the shackles were not permanent. According to the Secretary, such fact is immaterial. Respondent argues that there could be no violation of the cited standard in the case because:
1. The shackles in question were not "permanent";
2. The shackles were not used "aloft"; and
3. The cited standard is so ambiguous and inconsistent as to be unenforceable.
The Hearing Examiner does not agree with Respondent and finds that the citation and [*23] complaint are sustained by the evidence. The standard involved, 29 CFR 1504.65(b), makes no reference to shackles being permanent. The complaint does not refer to the shackles as being permanent. The Secretary's citation does describe the shackles as "permanent" and "permanently positioned." If either term was an essential allegation at the time the citation was issued, however, it ceased to be so after the complaint was filed. The complaint in effect amended the citation so as to eliminate such allegations from the Secretary's case. Pleadings are to be liberally construed. All that is required is that the Secretary give an employer fair notice of the nature and basis of the penalty being sought against him. n6
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n6 See Conley v. Gibson, 355 U.S. 41, 45-48 (1955). A complaint is sufficient "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him relief" ( Id., pp 45-46). The Labor Board cases which Respondent cites involved Board findings of violations without any supporting charge in a complaint or amendment thereto.
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Respondent would limit the application of the term "aloft" to the higher or upper rigging of a vessel. Undoubtedly this is an accepted meaning of the word in the maritime or nautical field generally, but the Hearing Examiner believes it would be unrealistic to so limit its meaning in construing regulations relating to cargo handling or stevedoring operations. There is no question about the fact that a technical word or trade term used in a regulation (or statute) issued with reference to a particular trade should be given the meaning it has acquired in that trade or business as held in O'Hara v. Luckenbach S.S. Co., 269 U.S. 364 (1926), a case relied upon by Respondent. But Respondent's stevedore superintendent acknowledged that "stevedoring has its language" and "at sea you have language" (Tr. 153). Application of the narrow concept of "aloft" to the cited stevedoring standard as Respondent urges would, as the Secretary points out, render it essentially meaningless. Mr. Hogberg testified that longshoremen do not "go aloft to examine shackles in the rigging" (Tr. 130). On the [*25] other hand, Area Director Pickford's application of the term to anything above the head of workmen on the dock or deck is consistent with the purpose of the standard -- i.e., protection of employees engaged in longshoring operations.
The text and dictionary definitions of the term introduced by Respondent do not exclude the meaning that the Secretary ascribes to it. The International Maritime Dictionary (Respondent's Ex. 11) gives "overhead" as a second definition of "aloft." Webster's Third New International Dictionary (Respondent's Ex. 12) gives the nautical definition of aloft as "at, on, or to the masthead or the higher rigging." But it also includes the definition: "* * * 2. up into the air; away from or off the ground." n7
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n7 Also, the Hearing Examiner is not persuaded that the use of "hoisting" and "lowering" as used in the longshoring regulations precludes application of the term "aloft" to something over the heads of longshoremen without it being up in the rigging.
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Nor is the Hearing Examiner persuaded [*26] that the cited regulation is so vague, indefinite or inconsistent that it must be considered unenforceable on the basis that an employer would not know which shackles are within its scope. In this connection, Respondent points out that the Area Director attempted to make an "administrative determination" so the regulation would be a "workable at least to his own satisfaction." Respondent here points to the fact that Mr. Pickford had made a distinction between permanent and non-permanent shackles, but the Hearing Examiner may not invalidate the Secretary's enforcement efforts if he chooses not to proceed against every violation.
Respondent further argues in this connection that there is confusion because the standard applies to screw pin shackles "provided by the employer" but not those provided by a vessel as ship's gear. There appears to be some difference of opinion between the two witnesses of the Secretary on the "ownership" issue of the shackles, but it is of no moment here. The shackles involved here were admittedly furnished by Respondent to its employees and were, therefore, subject to the standard. Further, shackles furnished by an employer to an employee would presumably [*27] be subject to the standard irrespective of their ownership, in the Hearing Examiner's view, although he does not have to decide this issue here.
Respondents point to an "apparent inconsistency" of the Secretary requiring the four shackles above the spreader bar to be moused while exempting shackles on the cargo hook assembly. Respondent argues that with the dangers of the pins becoming dislodged being the same in either case the irrationality and inconsistency of the standard is demonstrated. But this does not invalidate the regulation. An employer is not at liberty to disregard a regulation because he believes it may be inconsistent with another regulation or that another rule or regulation is called for in another area for consistency's sake. The standard does exempt cargo hook assemblies, but their use is different and distinct. And as Witness Sundstedt pointed out (Tr. 48-50), they are subject to another regulation which requires that cargo handling bridles "hoisting successive drafts . . . be attached by shackles, or other positive means . . . to prevent them from becoming accidentally disengaged from the cargo hook" (29 CFR 1504.81(b)).
The Hearing Examiner [*28] is not persuaded that the cited regulation is so ambiguous or inconsistent as to be unenforceable. n8 Further, the Hearing Examiner is of the view that the Secretary sustained his burden of proof and established by probative evidence that Respondent violated the cited standard by failing to mouse the shackles above the spreader bar.
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n8 Quoting from 2 Sutherland, Statutes and Statutory Construction (3d ed.) #4920, pp. 446-447:
"It is the duty of courts however to endeavor by every rule of construction to ascertain the meaning of and give full force and effect to the legislative product unless it violates a specific constitutional prohibition. There is no constitutional provision which authorizes a court to declare an act invalid for uncertainty. In spite of this lack of constitutional authority, courts frequently have asserted that if after exhausting every rule of construction no sensible meaning can be given to the statute or if it is so incomplete that it cannot be carried into effect it must be pronounced inoperative and void. Such decisions appear to be unwarranted . . ." (footnotes omitted). (Respondent points out that the rules of construction for regulations are essentially the same as those governing construction of statutes.)
Kraus & Bros. v. United States, 327 U.S. 614 (1946) is not controlling here. That case involved the question of whether certain tying agreements were clearly prohibited by a price control regulation. It was a criminal case and was presented to the jury by a defective instruction.
[*29]
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The penalty proposed by the Secretary is nominal, especially in the light of the "size" of Respondent. The Secretary, who originally gave five per cent reduction on this basis, suggests in his findings that no reduction should have been given for this factor. Ten per cent reduction was originally given on the basis of Respondent's "good faith," but in his proposed findings he suggests that the full 20% be given. The Secretary maintains that the 20% allowed for "history" is sustained by the evidence. While Respondent's size, in terms of employees and in terms of the scope of its operations, is significant, the violation is not a grievous one. As the Secretary points out in his findings, the evidence does establish that Respondent frequently inspected the screw pins. Thus, the risk of death or serious physical harm resulting from the violation (i.e., the "gravity") was not great. The Hearing Examiner has given consideration to all the factors set forth in Section 17(j) of the Act and has concluded that the assessed penalty, as revised by the Secretary, is appropriate.
Based on the foregoing findings [*30] of fact, and the entire record, the Hearing Examiner makes the following:
CONCLUSIONS OF LAW
1. Respondent is an "employer" and a person engaged in a business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970.
2. Respondent violated the longshoring standard found at 29 CFR 1504.65(b) and adopted as a standard pursuant to Section 6 of the Occupational Safety and Health Act of 1970 (29 CFR 1910.16) by failing to mouse screw pin shackles used above the spreader bar but not a part of a hook assembly.
3. The violation was not a "serious" one as defined in Section 17(k) and proposed penalty of $15 (as revised) is appropriate.
ORDER
Based on the foregoing findings of fact, conclusions of law, and upon the entire record, it is ORDERED that the citation issued herein on September 27, 1971 be, and the same is, AFFIRMED. It is further ORDERED that the Secretary's proposed penalty of $16.00 for the citation be vacated and that a penalty of $15 be, and the same is, ASSESSED.