OSHRC DOCKET NOS. 4107, 4803, 6107, 4863, 6158, 4882, 5579, 6159 & 6871













December 15, 1975


BEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.


A decision of Review Commission Judge David J. night, dated September 24, 1974, is before this Commission for review pursuant to 29 U.S.C. § 661(i).

At issue is whether the Judge correctly concluded that the respondents could not be held responsible for their employees willful refusal to wear hard hats. A divided Commission has previously resolved that question contrary to the Judge’s conclusion under substantially similar circumstances in Secretary v. Independent Pier Company, 20 OSAHRC —— (Docket No. 4897, October 29, 1975), and Secretary v. Atlantic & Gulf Stevedores, Inc., 16 OSAHRC 770 (1975).

Chairman Barnako and Commissioner Cleary find that the above-cited decisions are dispositive in the instant cases, especially in light of the stipulated facts set forth in the Judge’s decision. They agree with the Judge’s conclusion that repeated violations can be affirmed only in Docket Numbers 4863 and 6158. As for these two dockets they note that the respondent has not challenged the citations for being repeated, has not presented evidence contradicting the repeated classification, and has not argued the question of the classification. Accordingly, they would affirm the citations for repeated violations.

  They also conclude that a low penalty is justified in all cases because of the good faith attempts by the respondents to comply with 29 C.F.R. § 1918.105(a). However, because of the repeated nature of the violations in Docket Numbers 4863 and 6158, they find that those cases warrant slightly higher penalty assessments than do the remaining cases.

The citations in Docket Numbers 4863 and 6158 are affirmed as repeated violations and penalties of $100.00 and $90.00, respectively, are assessed therefor. The citations in the remaining cases are affirmed as nonserious violations and a $45.00 penalty is assessed for each citation.


William S. McLaughlin

Executive Secretary

DATED: DEC 15, 1975

MORAN, Commissioner, Dissenting:

I would vacate all the citations because the respondents did all that they were required to do under the Act to require compliance by their recalcitrant employees with the provisions of the standard. See my separate opinions in Secretary v. Independent Pier Company, 20 OSAHRC —— (Docket No. 4897, October 29, 1975) and Secretary v. Atlantic & Gulf Stevedores, Inc., 16 OSAHRC 770 (1975).

Judge Knight correctly decided this case and no understanding of the issues in dispute could be complete without a full exposition of the facts, the issues, and the rationale included in his decision. I therefore attach the same hereto as Appendix A.










OSHRC DOCKET NOS. 4863, 6158, 4882, 5579, 6159, 6871, 4107, 4803 & 6107
















Final Order Date Oct. 24, 1974


For the Complainant:

Regional Solicitor Paul J. Katz and Robert J. Murphy, Esqs. Regional Attorneys, U.S. Department of Labor Boston, Massachusetts


For the Respondents: Leo F. Glynn, Esq., Glynn & Dempsey Boston, Massachusetts

For Employees: None


The Proceedings:

The Occupational Safety and Health Administration of the U.S. Department of Labor (Complainant or OSHA) issued a number of citations against the Respondents, (1) the International Terminal Operating Corporation of New England (ITO, Docket Nos. 4107, 4803 and 6107), (2) John T. Clark and Son of Boston, Inc. (Clark, Docket Nos. 4863 and 6158), (3) Terminal Services, Inc. (Terminal, Docket Nos. 4882, 5579 and 6159), and (4) Bernard S. Costello, Inc. (Costello, Docket No. 6871), all Massachusetts corporations in the business of contract stevedoring at the Fort of Boston, Massachusetts, for alleged failures to comply with a safety standard promulgated under the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651, et seq., at § 654(a)(2). The particular standard is found at 29 C.F.R. § 1918.105(a) which reads:

(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).


In all of these proceedings, the alleged violations are characterized as nonserious.

In the lead case, Docket No. 4107, the citation was issued to ITO on July 25, 1973, following an inspection on July 16. The citation required immediate abatement of the condition, and a penalty of $50 was proposed. Within the statutory period, 29 U.S.C. § 659, the Respondent notified the Complainant of its intent to contest stating:

Due to the unusual circumstances of this alleged violation, please be advised that contest is hereby initiated and this citation and proposed penalty are being challenged.

Thereafter, complaint and answer were filed, and the matter came on to be heard on December 19, 1973, at Boston. Both parties were represented by counsel examining and cross-examining his own and each other’s witnesses. Proposed findings of fact and conclusions of law were filed, after an extension of time, on March 6, 1974, by the parties. No employee or representative came forward to claim party status.

At the conclusion of this hearing, the parties agreed to attempt a stipulation of facts to avoid a hearing in the remaining proceedings shown in the title—some of which were barely out of the embryonic stage at that time (Transcript, hereafter Tr., 175–176). That stipulation was filed on April 5, 1974, and permits consolidation of all cases for decision. 1 There appears to be no need and no party has claimed its right for any further hearing in any case; and briefs in the consolidated cases were filed by May 7, 1974.

The Issue:

The Act, at 29 U.S.C. § 654(a)(2), mandates:

(a) Each employer—

(2) shall comply with occupational safety and health standards promulgated under this Act.

The question presented by all of these cases is whether the acts and steps taken by the Respondents at Boston, Massachusetts, amount to compliance with the safety standard requiring that employees be protected by protective (hard) hats.

The Evidence Presented at the Hearing (Docket No. 4107):

Complainant’s Compliance officer, Philip Lemarbre, made his inspection on the vessel Victoria at about 11:00 a.m. on July 16, 1973, and was accompanied by Buddy Norton, Respondent’s Pier Superintendent (Tr. 10–11) who was supervising the longshoring operations (Tr. 12). Three employees, in lower #3 cargo hold, which was 30–40 feet deep, discharging lumber, were seen at work without hard hats (Tr. 12 and 14–15). No hats were in the hold, and Mr. Nerton—who told the Officer that the men had been issued hats and should be wearing them (Tr. 14–15)—directed one of the employees to go and get them (Tr. 14). The Compliance officer did not know whether the men that put the hats on at that time (Tr. 48).

After lunch, the Officer returned and inspected holds 4, 5 and 6 (Tr. 13) and saw four, four and two employees in each hold, respectively, without hard hats and three also without them in hold #3 again (Tr. 43). By the time the inspection was completed, the employees in all of these holds were wearing the hats (Tr. 45). At all holds, Mr. Norton accompanied the Officer (Tr. 43).2

In the Officer’s opinion, the hats are necessary to protect the employees from loose, falling objects and from the swinging radius of cranes and the gear attached to them (Tr. 17–18, 19).

Aboard the vessel Chilton Prince, the Officer found that the ‘hard hat wearing was good’ (Tr. 22).3

Respondent’s Pier Superintendent, Steven J. Norton, Jr., who was supervising the work on the Victoria on the day of inspection to make sure that it proceeded rapidly and safely (Tr. 81), testified that the inspection’s course was from hold #6 to hold #1 on that hot summer’s day (Tr. 76).

A few of the employees were seen in hatches without hard hats on, and he (Norton) asked them to wear the hats and they did (Tr. 76). But all men on the deck and pier wore them (Tr. 83).

Prior to July 1973, it was very common to find a longshoreman without a hard hat; but new regulations came into effect that month (Tr. 85). He never disciplined or suspended a man for not wearing a hard hat (Tr. 85–86) for fear of ‘losing the ship;’ i.e., fire one man and all the gangs on the ship would go (Tr. 88–90). Nor would he tell a longshoreman to put his hat on, rather, he asks him to and the longshoreman will comply (Tr. 88–90, 92). However, what he does when the supervisor walks away is unknown (Tr. 93). There is one supervisor on each ship which can range from four to 500 feet long (Tr. 93).

The Area Director of the Occupational Safety and Health Administration, called by Respondent (Tr. 51), testified that no citations had been issued prior to July 2, 1973, for alleged violations of the hard-hat standard [29 C.F.R. § 1918.105(a)] in the Boston area (Tr. 65). That standard, prior to that date of July 2, 1974 (Tr. 65), was not enforced. A program of voluntary compliance with the standard was in effect under which officers assigned to longshoring would ask employers to enforce the hard hat regulation (Tr. 67 and Exhibit C–1). That had been the policy since May 1971 (Tr. 74). After July 2, 1973, citations were issued when infractions of the hard-hat regulation were discovered (Tr. 73).

Captain Robert A. Groom is Respondent’s Vice-President and its senior official in New England. He has been with the Respondent for 23 years—the last 13 in Boston—and originally was its Safety Officer at Norfolk, Virginia (Tr. 93–94).

In 1971, he was informed by OSHA that hard hats were to be worn; and at that time, he was a member of the Stevedoring Committee of the Boston Shipping Association (BSA) Tr. 95).4 BSA has a contract with the International Longshoremen’s Association (ILA), the union representing the longshoremen, which provides the gangs to load and unload ships (Tr. 109). The Respondent’s Operating Manager orders the gangs needed daily from the ILA hiring hall, assigns them to the vessels, and pays them weekly (Tr. 109). But the longshoreman are employed on a daily basis (Tr. 115). The Operating Manager is in charge of the overall work done with the Superintendent responsible for each individual (Tr. 109–110). Respondent gives the location of the ship to be worked and the number of gangs needed to the ILA which records this information. The longshoremen call a certain telephone number and receive the taped information (Tr. 110, 124–125). An attempt to form permanent gangs (constant membership) some years ago failed. At least 40 percent of each gang consists of fill-ins (Tr. 126).

In 1971, BSA bought and issued hard hats to the longshoremen; they wore them for a few weeks and then the practice stopped (Tr. 95). But enforcement of the regulation at that time was not insisted upon (Tr. 96). Late in 1971, at a safety meeting in Houston, Texas, convened by the National Maritime Safety Association, Captain Groom was advised by an official of the Department of Labor that no citations would be issued for violations of the hard-hat regulations. But at a later meeting in May 1973 at San Diego, California, the Labor Department’s official’s successor (Mr. Stender) indicated that the regulation would be enforced (Tr. 96). Now Captain Groom was Chairman of the Stevedoring Committee of the BSA (Tr. 97).

In May 1973, he met with Donald E. MacKenzie, the Assistant Regional Director of OSHA (Tr. 133–134), and they agreed on July 2, 1973, as the date on which hard hats to be worn (Tr. 97 and 139).

BSA bought and issued another full set of hard hats; fliers were put in pay envelopes two weeks prior to July 2, 1973, informing the men that the ‘law was again to be complied with;’ six or eight large placards were placed at all pier areas; and all supervisory employees at all levels advertised the necessity for wearing the hats (Tr. 97–98).

After July 2, less and less compliance was achieved. The men objected to the hats as too heavy, too light, too hot or too cold (Tr. 98). And ‘there was no way that we could make the longshoremen comply with the hard hat rule’ (Tr. 98). If his employment were discontinued because of his refusal to comply, he will quit the ship, so will his gang and so will the rest of the ship (Tr. 99). There is no doubt in Captain Groom’s mind that this would be the result (Tr. 106). He stated:

We do not have ultimate control over these employees either with the wearing of hard hats or with smoking or with cutting up the work or many other areas where they do as they please (Tr. 99).

As compliance became lax, the instructions were repeated to enforce and encourage the use of the hats but with not much success (Tr. 114–115). All of Respondent’s personnel are required to do what they can to have the hats worn (Tr. 111), and many meetings on the matter have been held. The gang or walking boss instructs the men to wear the hats (Tr. 115). The men will wear the hats when asked, but take them off when the supervisor leaves (Tr. 98).

The Captain knows of no instance of a man being disciplined or suspended for his refusal to wear the hat (Tr. 117). While he has the power to suspend a man, he would lose the ship if he did (Tr. 115–116). This has occurred before when a gang left a ship because one of its members was made to leave for allegedly stealing (Tr. 123–124). To protect Boston’s competitive position among the ports, all actual and potential labor difficulties must be kept to a minimum; otherwise, shipowners will reroute their vessels to other ports. Boston has a reputation in the steamship industry as being a labor-troublesome port (Tr. 105–106).

On Rebuttal, the Complainant called the Business Agents of two of the three unions supplying longshoreman (Hankard, Tr. 159). They testified that their unions’ position is that the men must wear the hard hats (Hankard, Tr. 159) and that they cooperate with OSHA and management to educate the men and enforce the use of the hats (Callahan, Tr. 167). They have never received any complaint from the Respondent concerning the failure to comply with this standard (Tr. 159–160 and 168); and no man—to their knowledge—has ever been suspended or disciplined on this account (Tr. 160 and 168). No ‘wild-cat’ strike has occurred as a result of disciplinary action taken against a union member (Tr. 160–161). And, if such action did occur, the unions would employ the grievance procedure spelled out in Article 38 of the agreements between the BSA and ILA (Tr. 160 and 168, and Exhibit C–2).

These union officials attended a meeting on June 27, 1973, at which they were told by an OSHA representative that hard hats had to be worn effective July 2, 1973. Both agreed that there would be problems in achieving compliance, but they had no choice other than to go along (Tr. 169–170 and the late-filed exhibit, From OSHA–1A, notes of this meeting).

The Consolidated Cases—Stipulation of the Parties

By their stipulation, the parties agree that all of the Respondents, as contract stevedores, regularly and customarily load and unload ships whose cargoes have moved in interstate or international commerce.

The parties also agree on the following matters concerning the individual proceedings:

With respect to Respondent ITO in:

Docket No. 4803: During an inspection on September 7, 1973, at Castle Island Terminal in Boston aboard the M/V Kyoto Forest, three employees were observed by Compliance Officer Lemarbre without hard hats while discharging lumber in the #6 hold. The citation was issued on September 26, 1973, alleging a nonserious, repeated violation of 29 C.F.R. § 1918.105(a). A penalty of $100 was proposed, and Respondent’s notice of contest was executed on September 27, 1973. Complainant terms this citation as a repeated violation based on the previous citation in Docket No. 4107 (the lead and pending case). [Paragraphs VI–VII of the Stipulation]

Docket No. 6107: During an inspection on December 4, 1973, at East Boston piers aboard the M/V Zamosc and M/V Rio Los Sauces, nine employees on the latter vessel and 11 employees on the former ship were observed by the same Compliance Officer without hard hats while handling cargo. The citation was issued on January 3, 1974, alleging a nonserious, repeated violation of the same standard. A penalty of $310 was proposed, and Respondent’s notice of contest was executed on January 8, 1974. This citation is termed as a repeated violation based on the two previous and pending citations described above (Docket Nos. 4107 and 4803). [Paragraphs XVII–XIX of the Stipulation]

With respect to Respondent Clark in:

Docket No. 4863: During an inspection on September 7, 1973, at South Boston aboard the M/V Vishva Shobba, 13 employees were observed by the same Compliance Officer The citation was issued on September holds handling cargo. 13 employees were observed 26, 1973, alleging a nonserious, repeated violation of the standard. A $100 penalty was proposed, and Respondent’s notice of contest was executed on October 3, 1973. This violation is deemed as a repeat based on a citation issued to this Respondent on July 19, 1973, alleging a violation of this standard which was not contested, and the penalty there was paid. [Paragraphs IX-XI of the Stipulation]

Docket No. 6158: During an inspection on December 20, 1973, at South Boston aboard and alongside the M/V Dagrum, the same Officer observed 12 employees handling cargo without hard-hat protection. The citation was issued on January 8, 1974, alleging a nonserious, repeated violation (based on the uncontested prior citation and the pending Docket No. 4863, above). A penalty of $90 was proposed. Respondent’s notice of contest was executed on January 14, 1974. [Paragraphs XX–XXII of the Stipulation]

With respect to Respondent Terminal in:

Docket No. 4882: During an inspection on September 10, 1973, at South Boston, the same Officer observed 17 employees handling cargo aboard M/V Temeraire without hard hats. The citation was issued on September 26, 1973, alleging a nonserious violation of the safety standard, and a $50 penalty was proposed. Respondent’s notice of contest was executed on October 5, 1973. [Paragraphs XII and XIII of the Stipulation]

Docket No. 5579: During an inspection on October 25, 1973, at Castle Island, Boston, Massachusetts, the same Officer observed 36 employees without hard hats aboard the M/V Toyota Marv #15 handling cargo. The citation was issued on November 23, 1973, alleging a repeated violation of the standard (based on the pending case in Docket No. 4882, above). A $105 penalty was proposed. On November 26, 1973, the Respondent executed its notice of contest. [Paragraphs XIV–XVI of the Stipulation]

Docket No. 6159: During an inspection on December 20, 1973, at South Boston, the same Officer observed 10 employees without hard hats aboard or alongside the M/V Concordia Tarek handling cargo. The citation was issued on January 7, 1974, alleging a nonserious, repeated violation (repeated based on the prior citation pending in Docket Nos. 4882 and 5579). A penalty of $200 was proposed. The Respondent’s notice of contest was executed on January 14, 1974. [Paragraphs XXIII–XXV of the Stipulation]

With respect to Respondent Costello in:

Docket No. 6871: During an inspection on January 29 and 30, 1974, at Charlestown, Massachusetts, the same Officer observed two employees handling cargo aboard the M/V Great Republic (this worksite was added in the complaint); one on the M/V New England Scout and three on the M/V Bergfalck, all without hard hats. The citation was issued on February 21, 1974, alleging the nonserious violation of the standard, and a $45 penalty was proposed. Respondent executed its notice of contest on March 1, 1974. [Paragraphs II and III of separate Stipulation filed September 6, 1974]

The annual net worth of each Respondent is stipulated to be $50,0005 in fiscal 1973, and the average daily number of employees of each is 60. And, if consolidated cases came on for hearing, it was stipulated that each of the witnesses heard on December 19, 1973 (in Docket No. 4107), would, in essence, repeat his testimony. The management officials of Clark, Terminal and Costello would have testified as did Captain Groom in behalf of ITO. However, each would now testify as to certain actions and their results after the December hearing as follows:

1) The BSA presented a proposed amendment of the BSA-ILA agreement to the unions with provisions to the effect that:

a) No employee, except in the office, shall work on the waterfront without a proper hard hat;

b) Any employee working without the hat shall be discharged and not re-employed on the particular vessel; and

c) A hiring boss refusing to so discharge will be suspended for five days.

The union refused to sign the amendment. Thereupon, BSA asked the union to change the taped telephone message to indicate that no one can work on and after March 4, 1974, without a hard hat.

The union refused and continued the existing message stating ‘Hard hats will be worn commencing March 4, 1974.’

The union officials would testify that the refusal to agree to the amendment or change the tape is based on its position that disciplinary action is covered by the grievance procedures of the BSA-ILA agreement. The management officials would have testified that these grievance procedures—from inception to completion—consume six months. [Paragraphs XXXIII and XLI of the Stipulation and its Annex ‘A’]

The Parties Proposed Findings of Fact, Conclusions of Law and Contentions on Brief

The essence of the Complainant’s post-hearing filings is that the Respondent’s acts (purchase and distribution of the hats and notice in pay envelopes and on cards around the pier areas) do not amount to compliance with the standard [Complainant’s proposed findings of fact 13]. It never suspended or disciplined any employee for his refusal to wear the hat nor complained to the union, nor made the wearing of the hat a condition of employment (proposed finding 14) despite its long-standing awareness of the men not being protected (proposed findings 9, 10, 11 and 12). It maintains insufficient supervisory personnel to enforce the regulation6 (proposed finding 15); there is no evidence that a wildcat strike would result from disciplinary action; and the unions are cooperating to achieve compliance (proposed finding 16).

These facts, argues Complainant, prove that Respondent’s attempts at compliance are superficial (Complainant’s argument p. 12). It cannot hide behind the longshoremen’s refusal to wear the hats as its defense, such defenses being ruled unacceptable in Secretary of Labor v. Weyerhauser Company, OSHRC Docket No. 624, April 3, 1973, and review ordered April 25, 1973, and Secretary of Labor v. Poston Bridge and Iron, Inc., 6 OSAHRC 42 (1974) (Complainant’s argument 14–16). The Respondent has the duty to comply and that section of the Act stating:

Each employee shall comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to this Act which are applicable to his own actions and conduct, 29 U.S.C. § 654(b).

does not relieve it of this duty. Respondents hold the final responsibility (Complainant’s argument p. 16 citing the Senate Committee Report No. 91–1282, p. 10–11). It is the employer who provides the worksite and who can exercise a range of sanctions; the employer is the key to compliance with the Act (Complainant’s argument p. 18). And to allow the employer the defend on the basis of recalcitrant employees would nullify the Act’s purpose of creating safe and healthful workplaces. In any event, Respondent could have more forcefully enforced the standard and then resort to the grievance procedures of the BSA-ILA agreement to settle the controversy if difficulties did arise (Complainant’s argument pp. 19–21).

Respondent finds that the evidence would support propositions that the Complainant had no firm, exact policy prior to the June 14, 1973, memo (instructions to enforce this standard from the Assistant Secretary of Labor to all offices); and even there, uncertainty existed for the offices were directed to meet with employers and employees if the enforcement policy was not clearly understood (Respondent’s findings 1 and 2). But no meeting took place at least as of September 28, 1973 (Respondent’s finding 4).

Instructions to employee groups are necessary because, in the longshoring industry, the employer-employee relationship is unique as shown by Captain Groom’s testimony and the BSA-ILA agreement (Respondent’s findings 5 and 6). The Respondent is not required to ‘take a strike’ resulting from the suspension of a man for failing to wear a hard hat (Respondent’s findings 7, 8 and 9). Situations involving the employees’ systematic refusal to comply with safety standards are covered by the Complainant’s Compliance Operations Manual with an indication that the Department should not become involved in labor/management disputes77 (Respondent’s finding 10).

Further, the unions should support disciplinary action rather than turn to the grievance procedures of the BSA-ILA agreement; and therefore, the unions are not cooperating to assure compliance. Respondent, under the grievance procedures, could not discharge a man until that procedure is complete, requiring two to four months (Respondent’s findings 11, 12 and 13). And, in view of all of this, the stevedore employer does not have the common-law right to hire and fire; and its obligations must be limited by that (Respondent’s finding 15).

Respondent argues that the standard on its face is either vague or absurd. It appears to require constant attendance by the employer. Reasonably, it must be read to require the employer to provide the equipment. And, because the Respondent has no absolute right to hire and fire, it cannot be made to adhere to the same standard of those employers enjoying that right.

In their brief on the consolidated cases (filed April 30, 1974, Complainant incorporates its post-hearing filing in Docket No. 4107 to the consolidated cases), Respondent points to Secretary of Labor v. Northern Metals Co., OSHRC Docket No. 3821, March 20, 1974, and Secretary of Labor v. Marine Terminals Corp., OSHRC Docket No. 4114, April 10, 1974, as two cases where the employers were not found in violation of the standard.8 And Complainant has not shown what Respondent should do in these circumstances as required by the Court in National Realty and Construction Company, Inc., v. OSHRC, 489 F. 2d 1257.

Respondent also argues that the unions’ refusal to agree to the amendment of the BSA-ILA agreement to make the use of the hats an absolute requirement for employment or change the taped message to the same effect is proof that the ILA also fears the retaliation by employees as does Captain Groom. Despite this, the level of compliance achieved by Respondent is more positive than negative because, in the seven consolidated cases (excluding Costello, Docket No. 6871), an average of 85 percent compliance is reflected.9

Finally, Respondent argues that there can be no ‘repeat’ violation absent a determination of a prior alleged violation.10

Findings of Fact in Docket No. 4107 (the lead case):

Based on the record in Docket No. 4107 involving the Respondent ITO, including the demeanor of those witnesses giving testimony, I find:

1) Respondent ITO as a contract stevedoring company loading and unloading ships at the Port of Boston, Massachusetts, regularly handles goods moving in interstate and foreign commerce.

2) In performing these tasks, Respondent employs about 60 longshoremen on an average daily basis ordering these men each day in gangs of about 20 men each from the International Longshoremen’s Association’s hiring hall, assigning the gangs to the vessels to be worked and paying them on a weekly basis.

3) The individual membership of each gang is not within Respondent’s control but is directed by the practices of the union, and there is no totally permanent membership in any gang.

4) Respondent’s official agreed on or about May 18, 1973, that protective equipment had to be worn; and the safety standard cited at 29 C.F.R. § 1918.105(a) would be enforced on and after July 2, 1973.

5) At least two weeks prior to July 2, 1973, the Respondent, through the Boston Shipping Association, provided each longshoreman with the required hard hat and notified each man of the requirement to wear these hats by notice in his pay envelope, placed placards on all piers and instructed all supervisory personnel to advertise the need for the hats, and conducted meetings which included the subject.

6) The local unions providing longshoremen to this Respondent were, on June 27, 1973, advised by Complainant that head protection would be required as of July 2, 1973; and the union officials acknowledged that problems would arise in achieving compliance.

7) On July 16, 1973, during an inspection by Complainant’s Compliance Officer, between 13 and 17 longshoremen aboard the vessel Victoria were observed without the hard-hat protection while discharging cargo.

8) Respondent’s Pier Superintendent instructed these men to wear the hats and they did, but he does not know what these men would do when out of sight.

9) Respondent was aware, before and after July 2, 1973, that some longshoremen do not wear hard hats (except when asked to) and has never suspended or otherwise disciplined any man in this regard.

10) No disciplinary action is taken Because Respondent fears that, as a result, the longshoremen would walk off the ship, and it would be lost; and I find, based on the testimony of Captain Groom, that this is a reasonable apprehension in the circumstances since the Respondent’s control over the longshoremen is not direct and immediate but is governed in large part by its relationship and obligations to the International Longshoremen’s Association.

11) While only one supervisory representative is aboard each vessel, all of Respondent’s personnel are instructed to be on guard against violations of the safety standard (including the Operating Manager);

12) The unions agree to cooperate with Respondent in encouraging longshoremen to observe safety regulations and are bound to so cooperate by Article 23 of their agreement with the Boston Shipping Association (Exhibit C–2),11 but there is no evidence indicating any effectuation of this cooperation.

13) The penalty proposed for the alleged violation ($50) takes into account the elements required in the Act, and its reasonableness was stipulated by the parties, and the immediate abatement required by the citation is reasonable since the date of enforcement (July 2, 1973) was agreed to by Respondent, and these should be enforced if the citation is affirmed.

The Consolidated Cases:

Based on the stipulation filed in these cases by the parties had these proceedings been heard, the same findings of fact would have been made since each witness would have testified as they did in the lead docket with the following addition:

Respondent’s abortive attempt to make the wearing of the hats an absolute condition for employment by amending the BSA-ILA agreement or changing the taped message indicates that—for whatever reason—the unions are not cooperating to achieve compliance, and the Respondents would be forced into the grievance procedure while (a two- to six-month lapse) work continues,12 and they would be subject to further citations.

Discussion and Conclusions:

Based on the foregoing, I conclude that the Respondents are employers having employees and are engaged in a business affecting commerce, 29 U.S.C. §§ 652(3), (5) and (6) and therefore, are subject to the Act’s requirements.

The standards promulgated under the Act [29 C.F.R. § 1918.105(a)] reads:

a) Employees shall be protected by protective hats . . ..

To prevent accidents, Complainant insists that Respondents—in addition to what they have already done—increase their supervisory personnel to enforce and suspend or otherwise discipline the bare-headed and be blind to the disaster that could ensue. While these further acts may achieve compliance,13 it is at the risk of losing the workplace altogether. Management’s view that the statute from which this standard flows does not require a supervisor for every man or gang, nor does it require that management enforce to the point of losing the employees or a good number of them, is reasonable and legally sound. National Realty and Construction Company, Inc., v. Occupational Safety and Health Review Commission, et al., 489 F. 2d 1257, in discussing preventability of accidents (or compliance with the Act) holds:

. . . Nor is misconduct preventable if its elimination would require methods of . . . monitoring, or sanctioning workers which are either so untested or so expensive that safety experts would substantially concur in thinking the methods unfeasible.

The Act requires the establishment of safe working conditions so far as possible, 29 U.S.C. § 651(b); and defines an ‘occupational safety and health standard’ as requiring conditions and practices reasonably necessary or appropriate to create the safe working conditions, 29 U.S.C. § 652(8). Thus, if a standard’s enforcement could lead to a closing down of the worksite or imposing unnecessary burdens on employers, enforcement of that nature could be held to be not reasonably necessary nor appropriate.

In these cases, given the incomplete control over employees, the Respondents are entitled to rely on the Act’s mandate to employees requiring them to comply with standards applicable to their condition, 29 U.S.C. § 654(b), for their own safety.14 Respondents, twice, have purchased the hard hats and have extensively advertised the necessity for their use. Their personnel constantly require (by request) the men to wear them and the men comply. Complainant’s implied suggestion that more supervision is needed in these circumstances would require one-to-one supervision to be sure that no man aboard ship ever takes off his hat.

I conclude that—given the situation at the ports around Boston—the Respondents’ purchase of the hats and the repeated notice to employees to wear them as well as requiring a man to put it back on if he is found without it is in compliance with the standard at 29 C.F.R. § 1918.105(a). These acts fulfill their separate but dependent responsibilities under the Act, 29 U.S.C. § 651(b)(2). Respondents cannot be held responsible, after all of these acts, for the employee who willfully and in disregard of his own safety chooses to work unnoticed without the protection.15 Respondents—again in this situation—need not terminate a longshoreman at the risk of ‘losing the ship,’ a fear which has been documented by Captain Groom.

I conclude, then, that none of the Respondents have violated the safety standard at 29 C.F.R. § 1918.105(a) either initially or repeatedly.16 In reaching this conclusion, I have considered the parties’ proposed findings of fact, conclusions of law, and briefs. The findings and conclusions to the extent noted above are adopted; otherwise, they are rejected as not supported in law or fact.


It is ordered, therefore, that:

I) Concerning the Respondent, International Terminal Operating Corporation of New England:

1) Docket No. 4107: The citation issued July 25, 1973, alleging a violation of 29 C.F.R. § 1918.105(a) together with the proposed penalty of $50 are vacated;

2) Docket No. 4803: The citation issued September 26, 1973, alleging a repeated violation of 29 C.F.R. § 1918.105(a) together with the proposed penalty of $100 are vacated;

3) Docket No. 6107: The citation issued January 3, 1974, alleging a repeated violation of 29 C.F.R. § 1918.105(a) together with the proposed penalty of $310 are vacated;

II) Concerning the Respondent, John T. Clark and Son of Boston, Inc.:

1) Docket No. 4863: The citation issued September 26, 1973, alleging a repeated violation of 29 C.F.R. 1918.105(a) together with the proposed penalty of $100 are vacated;

2) Docket No. 6158: The citation issued January 8, 1974, alleging a repeated violation of 29 C.F.R. § 1918.105(a) together with the proposed penalty of $90 are vacated;

III) Concerning the Respondent, Terminal Services, Inc.,

1) Docket No. 4882: The citation issued September 26, 1973, alleging a violation of 29 C.F.R. § 1918.105(a) together with the proposed penalty of $50 are vacated;

2) Docket No. 5579: The citation issued November 23, 1973, alleging a repeated violation of 29 C.F.R. § 1918.105(a) together with the proposed penalty of $105 are vacated;

3) Docket No. 6159: The citation issued January 7, 1974, alleging a repeated violation of 29 C.F.R. § 1918.105(a) together with the proposed penalty of $200 are vacated; and

IV) Concerning the Respondent, Bernard S. Costello, Inc., Docket No. 6871, the citation issued February 21, 1974, alleging a violation of 29 C.F.R. § 1918.105(a) together with the proposed penalty of $45 are vacated.



Dated: September 24, 1974

Boston, Massachusetts





1 Docket No. 6871, Bernard S. Costello, Inc., was reassigned to me on August 12, 1974. A stipulation of the parties, filed September 6, 1974, brought this case within the group.

2 There was some question raised as to whether the Officer returned to the ship after lunch and was accompanied by Mr. Norton (Tr. 78, Norton). But the possibility that the Officer’s testimony concerning the nonwearing of hard hats may be doubted is not pressed (nor even mentioned) in Respondent’s post-hearing requests or brief.

3 With this one witness, the Complainant rested its case-in-chief.

4 The membership of the BSA includes the Contracting Stevedores such as the Respondent (Exhibit C–2, Article 1).

5 The Stipulation of Facts in Docket No. 4107 (Jt. Exhibit No. 1) indicates that ITO’s net worth in fiscal 1973 was ‘less than $50,000.’

6 Nowhere does Complainant suggest how many or who these extra personnel would be or if their only function would be to insure the wearing of hard hats.

7 Item 4 on page X–7 of that Manual reads:

In cases where employees systematically refuse to comply with the standards applicable to their own actions and conduct, the matter shall be referred to the Regional Administrator. Involvement in labor/management disputes or collective bargaining issues shall be avoided.

8 Northern Metals Co. has been called for review to determine the nature of the application of 29 C.F.R. § 1918.105(a) to employees.

9 As tabulated by Respondent based on an average daily number of 100 employees [Respondent’s brief (consolidated cases), p. 11]:




Percentage of Compliance


Docket No. 4803




3 men




Docket No. 4863




13 men




Docket No. 4882




17 men




Docket No. 5579




36 men




Docket No. 6107




20 men




Docket No. 6158




12 men




Docket No. 6159




10 men





10 Only one final determination exists as far as the records in these cases show with respect to Respondent Clark who did not contest a citation issued on July 19, 1973. That citation, then, became a final order of the Commission, 29 U.S.C. § 659(a).

11   In pertinent part, this Article reads:

The Employers shall continue to provide effective safety devices and protective equipment as the Employers are required to provide by applicable law, and where such devices and equipment are provided it shall be mandatory for employees to use them. In addition, the Union agrees to cooperate with the Employers in encouraging employees to observe any safety regulations as from time to time may be prescribed by an Employer.

12 Article 38, Grievance Procedure of the Agreement reads:

(b) THE FIRST STEP. When a grievance or dispute occurs, either the Management Representative (Stevedore, Pier Superintendent or appropriate designate of the Employer) or a Union Business Agent shall immediately call the problem to the attention of the other party. Meanwhile work shall continue . . ..


13 A compliance that Complainant may not recognize. In Marine Terminals Corporation, OSHRC Docket No. 4114 (final order May 10, 1974), above, longshoremen without hard hats were immediately terminated. In that case, the Respondent did the act sponsored by Complainant here; and in that case, the citation and penalty were, nonetheless, issued. The cited decision vacated the charge.

14 It is not true in these cases that the employer is in as complete control of its employees as was the situation in National Realty, above, where the Court noted in footnote 26 of its decision that:

An employer, of course, enjoys vast physical authority over his employees and their workplace . . ..

The affect of this control would be the same in attempting to enforce the general duty clause or a particular standard.

15 Complainant relies on Weyerhauser and Poston, above, for the proposition that the employees’ refusal to comply is no defense. But in Weyerhauser, the employees (represented by a union) would wear the required safety devices if they were paid $1 an hour more. Use of the safety devices made the work more difficult. And in Poston, the foreman knew the men were violating a standard and did nothing about it. In the cases at bar, the unions have made not even a suggestion; and the man, when caught without the hat, will put it back on.

16 No repeated violation may stand without a prior final order of the Commission finding a previous violation. No such order exists except in the case of Respondent Clark.