UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 8221
NORTHEAST MARINE TERMINAL COMPANY,
Respondent.

August 31, 1976

DECISION

BEFORE BARNAKO, Chairman: MORAN and CLEARY, Commissioners.

MORAN, Commissioner:

A decision of Review Commission Judge Joseph Chodes, dated January 30, 1975, is before this Commission for review pursuant to 29 U.S.C. § 661(i). That decision vacated two citations alleging that respondent failed to comply with the requirements of seven different occupational safety standards. Review was directed on the following issues:

(1) What effect if any should be given in this case to Brennan v. Gilles & Cotting, Inc. and OSAHRC, 504 F.2d 1224 (4th Cir. 1974), and Brennan v. OSAHRC and Underhill Construction Corp., 513 F.2d 1032 (2d Cir. 1975)?[1]

(2) Whether the Administrative Law Judge erred in finding that respondent’s employees were not shown to have been exposed to the hazards contemplated by the standards at 29 C.F.R. § 1910.178(m)(3), 29 C.F.R. § 1910.22(a)(1), and 29 C.F.R. § 1910.106(e)(2)(iv)(b)?

For the reasons that follow, we affirm the Judge’s decision which is attached hereto as Appendix A.[2]

Complainant’s inspector was the only witness at the hearing. He testified that he conducted the inspection of respondent’s worksite, a marine terminal, under the assumption that the entire worksite was under the control of the Northeast Marine Stevedoring Company and occupied solely by its employees. In actuality, the worksite was also occupied by respondent, a company which is corporately separate from Northeast Marine Stevedoring Company and which hires its own employees. Because of this erroneous assumption, the inspector, upon observing noncompliant conditions, failed to inquire as to which company was responsible for the conditions and which company employed the workers who were exposed to the hazards caused by those conditions. The only significant testimony he was able to give regarding his observations of the three alleged violations enumerated in the second directed issue[3] is as follows:

29 C.F.R. § 1910.178(m)(3).[4] A high-low truck was coming out of a shed on which two men were riding. The truck was equipped with only one seat. One of the riders was a Mr. Lennon, the ‘foreman of the pier.’

29 C.F.R. § 1910.22(a)(1).[5] Debris was scattered in a storeroom and in the garage. In the maintenance area of the garage, parts and machines blocked access route for employees in the area.

29 C.F.R. § 1910.106(e)(2)(iv)(b).[6] In the garage area, various machine parts were dripping gasoline. Employees were working in the area which was blocked off for security reasons.

Subsequent to the inspector’s notation of these violative conditions, he discovered that respondent was also an employer on the site. Upon this discovery, he and a Mr. Kiplock, who had identified himself previously as the safety director for Northeast Marine Stevedoring Company, attempted to rectify the error by apportioning the violations between the two companies. The inspector testified as follows regarding Mr. Kiplock’s views on the equitable allocation of the violations:

[D]uring the discussion, Mr. Chiplock [sic] suggested there were too many [violations] to lay off on the Stevedore and they should be separated between the Stevedore and the Terminal operation because the Stevedore did not function and the Terminal did another function. Where the terminal made repairs and provided proper roadway and fire equipment and whatever was necessary to maintain a good place to work and the building and shed and equipment, whereas the Stevedore’s primary function was to load and discharge vessels and store the cargo and remove it from the sheds and load and discharge trucks.

The Judge determined that the evidence was insufficient to prove that employees of respondent were exposed to the hazardous conditions. He concluded:

[T]here is no probative evidence in the record showing that the violations established exposed employees of the respondent, Northeast Marine Terminal Co., to the hazards contemplated by the standards . . . While the compliance officer obtained the names of some of the employers involved, he did not ask or otherwise determine for whom they were working . . . The failure of the compliance officer to obtain information concerning the employment status of the individuals affected by the violations is understandable in light of his initial unawareness that more than one employer was involved at the worksite. Unfortunately, this does not cure the deficiency in the evidence.

Violations of the Act cannot be predicated on an arrangement between a compliance officer of the complainant and the safety director of an employer who is not the respondent in this case, albeit he did have some overall supervision of the worksite.

We find that complainant has failed to establish by a preponderance of the evidence[7] that any employee of respondent was actually exposed to the alleged hazardous conditions or had access thereto. In view of that failure, we agree with the Judge’s disposition of the exposure question.

Moreover, we cannot infer from the evidence that respondent created the noncompliant conditions or was responsible therefor. The inspector’s only information regarding respondent’s responsibilities was from Mr. Kiplock. That evidence is much too inconclusive and unreliable for us to conclude that respondent was the responsible employer. Mr. Kiplock simply outlined to the inspector the general functions of respondent and the general working areas of respondent’s employees. There was no direct evidence from which we can reasonably infer that respondent was the employer responsible for the alleged functions of respondent are inherently unreliable because his authority to of Mr. Kiplock on the professed functions of respondent are inherently unreliable because his authority to represent respondent was not clearly shown. On the other hand, the Judge’s distrust of Mr. Kiplock’s allocation of the violations was justifiable since his authority to represent the Northeast Stevedoring Company has not been questioned.

Finally, we note our basic disapproval of the procedures followed by the inspector in this case. He should not have attempted to correct his mistake by simply dividing up the violations, especially since he was dependent solely on the judgment of Mr. Kiplock to do so. It would have been more equitable, and simpler in the long run, for him to have retraced his steps and determined for himself who was actually responsible for the conditions and whose employees were exposed to the resulting hazards.

Because of the aforementioned evidentiary deficiencies in complainant’s case on the responsibility and exposure questions, the Judge’s decision holding that the citations must be vacated is affirmed.

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

DATED: AUG 31, 1976

CLEARY, Commissioner, DISSENTING:

The Secretary of Labor has successfully carried his burden of establishing respondent’s violation of section 5(a)(2) of the Act[8] for its failure to comply with the standards at 29 CFR § 1910.178(m)(3), 29 CFR § 1910.22(a)(1), and 29 CFR § 1910.106(e)(2)(iv)(b).[9] Hence, I do not agree with my colleagues’ disposition of this case.

Our point of disagreement does not center on whether the standards cited by the Secretary apply to the conditions at issue, nor, I believe, do we disagree that there has been a failure to comply with the cited standards. Indeed, Judge Chodes found that violations of the Act did exist. Furthermore, I doubt seriously, based upon the record before, us, that my colleagues would argue that no employees were exposed to the hazards occasioned by the admittedly present violative conditions. In short, I submit that the majority (a) knows the cited standards apply to the conditions at issue, (b) knows there has been a failure to comply with the cited standards, and (c) knows there are employees exposed to the hazards created by these noncomplying conditions. Yet, by all but ignoring essential facts, my colleagues manage to vacate the citations.

The majority concludes that it cannot infer from the evidence that respondent created the noncomplying conditions or was responsible therefor. The only way my colleagues can reach this conclusion is to discount completely the statements made to the Secretary’s compliance officer (CO) by respondent’s safety director, Mr. Kiplock.[10]

At the conclusion of the two day inspection, respondent’s safety director told the CO[11] that Northeast Marine Terminal was responsible for providing and maintaining the roadway, work sheds, buildings, and equipment in the terminal. On the other hand, the safety director continued, Northeast Marine Stevedoring was responsible for loading and discharging vessels, storing and removing cargo from sheds, as well as loading and discharging trucks.[12]

In addition to these general descriptions, respondent’s safety director assisted the CO in determining the responsibility under the Act for each noncomplying condition. Regarding both the powered industrial truck item [29 CFR § 1910.178(m)(3)] and the housekeeping item [29 CFR § 1910.22(a)(1)], the safety director noted that Northeast Marine Terminal (respondent) was the proper party to cite since no ships were ‘working’ at the time. In other words, there was no loading or unloading being done—the function performed by Northeast Marine Stevedoring. As to the flammable liquid item, respondent’s representative made it known that the gasoline was being used by Northeast Marine Terminal to clean equipment as part of its repair and maintenance function.

Even if respondent’s representative had never said a word to the CO, the safety director’s actions concerning the cited items illustrate respondent’s control of the hazardous conditions.[13] Upon discovering the powered industrial truck and housekeeping violative conditions, Mr. Kiplock, respondent’s safety director, ordered and obtained immediate abatement.

As noted previously, the third violative condition, that involving the flammable liquid, concerned the cleaning and maintenance of certain equipment by Northeast Marine Terminal for eventual use by Northeast Marine Stevedoring. It is clear to me that respondent controlled, if it did not create, the physical conditions that resulted in the citations. Hence, we have an employer who controls hazards to which the employees of another employer engaged in work at the same site are exposed. Under such circumstances, I would extend the multiple employer precedent developed by the Second Circuit in Brennan v. O.S.H.R.C. and Underhill Construction Corp., 513 F.2d 1032 (2d Cir. 1975)[14] and would find Northeast Marine Terminal Co. in violation of the Act for its failure to comply with the standards at 29 CFR § 1910.178(m)(3), 29 CFR § 1910.22(a)(1), and 29 CFR § 1910.106(e)(2)(iv)(b).

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 8221
NORTHEAST MARINE TERMINAL COMPANY,
Respondent.

January 30, 1975

DECISION AND ORDER

APPEARANCES:

Theodore T. Gotsch, Esq., of New York, N. Y., for the Secretary of Labor

William M. Kimball, Esq., of New York, N. Y., for the Respondent

Joseph Chodes, Judge, OSAHRC

STATEMENT OF THE CASE

This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq.) in which the respondent is contesting a citation issued by the complainant under the authority vested in complainant by sections 9(a) of the Act (29 U.S.C. § 658(a)). After a complaint and an answer had been filed by the parties, the case came on for hearing at New York, New York on September 13, 1974.

The citation, which was issued on May 14, 1974, following an inspection on April 3 and 4, 1974 of a place of employment at the Marine Terminal at the foot of 39th Street, Brooklyn, New York, alleged that the respondent violated section 5(a)(2) of the Act (29 U.S.C. § 654(a)(2)) by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to section 6 of the Act (29 U.S.C. § 655) and codified in 29 Code of Federal Regulations, Chapter XVII, Parts 1910 and 1918.

Specifically, the respondent was charged with a repeated violation and with nonserious violations as follows:

Repeated Violation

29 C.F.R. § 1910.178(m)(3) in that respondent failed to prevent unauthorized personnel from riding on powered industrial trucks.

Nonserious Violations

1. 29 C.F.R. § 1910.27(f) in that respondent failed to maintain all ladders in a safe condition and inspect all ladders regularly with the intervals between inspections being determined by use and exposure. 2. 29 C.F.R. § 1910.22(a)(1) in that respondent failed to keep all places of employment clean and orderly and in a sanitary condition. 3. 29 C.F.R. § 1910.213(h)(1) in that respondent failed to equip a radial arm saw with a lower blade guard in building 111A storeroom. 4. 29 C.F.R. § 1918.25(e) in that respondent permitted the use of a portable straight ladder which failed to extend at least 36 inches above the upper landing surface in the garage from a platform to the 10 foot blockhouse. 5. 29 C.F.R. § 1918.25(f) in that respondent failed to lash, block or otherwise secure a portable straight ladder in the garage used from a platform to the 10 foot blockhouse to prevent shifting or slipping. 6. 29 C.F.R. § 1910.106(e)(2)(iv)(b) in that flammable or combustible liquids were used or handled in the garage machine repair area without providing means to dispose promptly and safety of leakage or spills.

Pursuant to the enforcement procedure set forth in section 10(a) of the Act (29 U.S.C. § 659(a)), the respondent was notified by letter dated May 14, 1974, from Nicholas A. DiArchangel, Area Director of the New York area, Occupational Safety and Health Administration, U. S. Department of Labor, of the assessment of proposed penalties for the violations totalling $620.

PRELIMINARY MOTIONS

The respondent moved to vacate the citations and proposed penalties on the grounds that the citation was not issued ‘with reasonable promptness’ as required by section 9(a) of the Act (29 U.S.C. § 658(a)). The authority relied on was Secretary v. Chicago Bridge & Iron Co., 6 OSAHRC 244 (1974). That case held that the issue of reasonable promptness was an affirmative defense. In the absence of evidence that the citation was issued more than three days after the complainant or his authorized agent had formed his belief that a violation had occurred (the rule followed in the Chicago Bridge case) the motion was denied (T–8).

Another motion to vacate the citation and proposed penalties was made by respondent. It was contended that the citations in the instant case should be vacated because a citation was issued to another employer for alleged violations at the same worksite involved herein about a month prior to the issuance of the citations in the instant case. The motion was denied since any action taken by complainant against another employer is not considered to be relevant to the disposition of this case (T–12).

AMENDMENT OF CITATION

At the hearing a motion to amend item 4 of the citation for nonserious violations to read ‘29 C.F.R. 1918.25(e)’ was granted (T–91).

SUMMARY OF EVIDENCE AND DISCUSSION

On April 3 and 4, 1974, Joseph D. Martino, one of the claimant’s compliance officers, inspected Marine Terminal at the foot of 29th Street, Brooklyn, New York, comprising several piers consolidated into one complex (T–14, 15). He met with Mr. Kiplock, safety director for the Northeast Stevedoring Co. (a different company from Northeast Marine Terminal Co., the respondent herein) and Mr. Viola, vice president of Northeast Stevedoring Co. (T–15, 16, 19). Mr. Martino was accompanied on his inspection by Mr. Kiplock, and Mr. Ciccone and Mr. Santos, shop stewards for Local 1814, I.L.A. (T–23, 24). Initially, Mr. Martino did not know that another company, the respondent Northeast Marine Terminal Co., Inc. was also working at the terminal.

At the conclusion of the inspection, Mr. Martino held a closing conference with Mr. Kiplock during which they discussed about 27 alleged violations observed during the inspection. Mr. Kiplock stated that there were too many violations to ‘lay off’ on Northeast Stevedoring Co. and suggested that, since Northeast Stevedoring Co. performed one function at worksite (loading and discharging vessels, storing and removing cargo from sheds, and loading and discharging trucks) while the respondent Northeast Marine Terminal Co. performed other functions (repairs, maintenance and care of fire equipment), the violations should be divided between the two companies. Mr. Martino and Mr. Kiplock went down the list of violations and agreed to charge the respondent with the violations relating to the operational features at the terminal and to charge Northeast Stevedoring Co. with the other violations (T–26, 27). The determination with respect to which violations would be charged against each employer was made by mutual agreement between Mr. Martino and Mr. Kiplock acting as representatives of management for both employers (T–67, 83, 85).

Following Mr. Martino’s inspection, a citation was issued against Northeast stevedoring Co. on April 15, 1974 for 14 or 15 violations (T–85) and later, on May 14, 1974, citations were issued against the respondent which are the subject of this proceeding.

Mr. Martino, who was the only witness at the hearing, testified to facts from which violations of the standards charged against the respondent could be inferred. However, there is no probative evidence in the record showing that the violations established exposed employees of the respondent, Northeast Marine Terminal Co., to the hazards contemplated by the standards.

There is evidence that Mr. Magna, who is vice-president of Northeast Marine Terminal Co., the respondent herein, abated a violation involving an unauthorized rider on a powered industrial truck, but the identity of the employer of the employees involved was not elicited (T–49, 50). The compliance officer was not sure who hired the employees (T–52). Mr. Magna also ordered abatement involving a ladder violation, but here again, there is no definite evidence indicating for whom the involved employees worked (T–92, 93). While the compliance officer obtained the names of some of the employers involved, he did not ask or otherwise determine for whom they were working (T–31, 75). The failure of the compliance officer to obtain information concerning the employment status of the individuals affected by the violations is understandable in light of his initial unawareness that more than one employer was involved at the worksite. Unfortunately, this does not cure the deficiency in the evidence.

Violations of the Act cannot be predicted on an arrangement between a compliance officer of the complainant and the safety director of an employer who is not the respondent in this case, albeit he did have some overall supervision of the worksite. This is particularly so where the determining factor as to which employer to cite was the nature of the work employees were performing at the time the violation was observed, rather than the identify of the employer whose employees were exposed to the hazard.

Absent proof that the violations found exposed employees of this respondent to the hazards contemplated by the standards violated, a citation against the respondent cannot be sustained. The principle was expressed by Chairman Moran in Secretary v. Otis Elevator Co. No. 688 (October 8, 1974) as follows:

This Commission has consistently held that just because a condition on the worksite fails to comply with the specifications of a standard, a violation of the Act has not been established. There must be evidence that employees of respondent have been exposed to the hazard as a result of noncompliance. Secretary v. Hawkins Construction Co., OSAHRC Docket No. 949 (May 20, 1974); Secretary v. City Wide Tuckpointing Service, OSAHRC Docket No. 247 (May 24, 1973).

FINDINGS OF FACT

On the basis of the citations, notification of proposed penalty, notice of contest, pleadings and the representations of the parties, it is concluded that on the basis of the record as a whole, a preponderance of the evidence supports the following findings of fact:

1. The respondent is an employer engaged in a business affecting commerce (respondent’s answer, paragraph 2).

2. On May 14, 1974, the complainant issued citations for a repeat violation and for nonserious violations as set forth above under the heading ‘Statement of the Case’ and at the same time the respondent was notified of the proposed penalties totalling $620.

3. On May 28, 1974 the respondent filed with the complainant a notice of contest of the citations and proposed penalty referred to in paragraph 2 above.

4. An inspection of a workplace at the Marine Terminal at the foot of 29th Street, Brooklyn, New York, made on April 3 and 4, 1974, revealed that the standards set forth above under the heading ‘Statement of the Case’ had been violated, but the evidence does not establish that any of the respondent’s employees were affected by the violations or exposed to the hazards contemplated by the standards.

CONCLUSIONS OF LAW

1. The respondent at all times material hereto was engaged in business affecting commerce within the meaning of section 3 (5) of the Occupational Safety and Health Act of 1970.

2. The respondent at all times material hereto was subject to the requirements of the Occupational Safety and Health Act and the standards promulgated thereunder, and the Commission has jurisdiction of the parties and of the subject matter herein.

3. The respondent did not violate the standards set forth above under the heading ‘Statement of the Case’.

ORDER

Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record, it is

ORDERED that the citations issued on May 14, 1974 for violation of 29 C.F.R. sections 1910.178(m)(3); 1910.27(f); 1910.22(a)(1); 1910.213(h)(1); 1918.25(e); 1918.25(f); and 1910.106(e)(2)(iv)(b) and the proposed penalties totaling $620 are hereby vacated.

JOSEPH CHODES

JUDGE, OSAHRC

Dated: January 30, 1975

New York, New York

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[1] This issue concerns the liability of employers on multi-employer worksites. In Secretary v. Anning-Johnson Co., OSAHRC Docket No. 3694, May 12, 1976, and Secretary v. Grossman Steel & Aluminum Corp., OSAHRC Docket No. 12775, May 12, 1976, a divided Commission held that an employer on a multi-employer construction site who creates or controls a hazard to which employees of any employer are exposed is liable. The Commission further held that an employer who did not create or control a hazard but whose employees were exposed thereto was also liable under certain circumstances. A divided Commission has also held that exposure is to be determined by a rule of access. Secretary v. Gilles & Cotting Inc., OSAHRC Docket No. 504, Feb. 20, 1976.

In this case, we find a failure of proof both as to whether respondent created or controlled the hazardous conditions shown to exist and whether respondent’s own employees were exposed to the hazards. Therefore, respondent is not responsible under any theory of liability and further discussion of this matter is obviated. Consequently, the divergent positions Chairman Barnako and I both took in the above decisions in no way are inconsistent with our agreement in this opinion.

[2] Chairman Barnako does not agree to this attachment.

[3] The complainant argues in his review brief that only these three violations are in issue and requests reversal of the Judge’s decision only as to those violations.

[4] This standard provides that:

Unauthorized personnel shall not be permitted to ride on powered industrial trucks. A safe place to ride shall be provided where riding of trucks is authorized.

[5] This standard provides that:

All places of employment, passageways, storerooms, and service rooms shall be kept clean and orderly and in a sanitary condition.

[6] This standard provides that:

Where flammable or combustible liquids are used or handled, except in closed containers, means shall be provided to dispose promptly and safely of leakage or spills.

[7] See Olin Construction Co. v. OSAHRC, 525 F.2d 464 (2d Cir. 1975); Secretary v. Armor Elevator Co., 5 OSAHRC 260 (1973).

[8] 29 U.S.C. § 654(a)(2).

[9] The standards have been set out in the majority opinion.

[10] The majority states that Mr. Kiplock’s ‘authority to represent respondent was not clearly shown.’ I disagree. There is unrebutted testimony establishing that Mr. Kiplock was the safety director for both Northeast Marine Stevedoring Company and Northeast Marine Terminal Company (respondent). In addition, he was named as such in a letter from respondents counsel to Judge Chodes. The letter, in pertinent part, reads as follows:

Respondent may call as a witness its safety director, P. Kiplock, who is an expert on terminal activities and who may testify concerning specific facts of each claimed violation . . . (emphasis added).

[11] The testimony of the compliance officer with respect to the safety director’s statements is arguably hearsay. These statements, however, were admissions of a party-opponent by an employee concerning a matter within the scope of his employment. See McCormick, Handbook of the Law of Evidence, Sec. 267 (2d ed. 1972). As such, the statements are reliable and probative. See 5 U.S.C. § 556(d). Furthermore, the Federal Rules of Evidence characterize such admissions as non-hearsay, F.R.E. 801(d)(2), and freely admissible to prove the truth of the matter asserted.

[12] This breakdown of assigned responsibilities comports with the commonly recognized stevedore functions. indeed, ‘stevedore’ as a term is defined as ‘to work at or undertake responsibility for the loading and unloading of a ship.’ Webster’s Third New International Dictionary (unabridged, 1971).

[13] In determining if one has control of a hazardous condition, the Commission considers whether the employer ‘realistically had the means to rectify the condition in the manner contemplated by the cited standard’ (footnotes omitted). Anning-Johnson Company, Nos. 3694 & 4409, BNA 4 OSHC 1193, CCH OSHD para. 20,690 (1976). The ‘means to rectify’ refers not only to actual physical capability, but includes also the ability to order abatement. See Anning-Johnson Company, supra.

[14] The Commission has stated previously that it will follow the Second Circuit’s Underhill decision. Anning-Johnson Co., Nos. 3694 & 4409, BNA 4 OSHC 1193, CCH OSHD para. 20,690 (1976); Grossman Sheet & Aluminum Corp., No. 12775, BNA 4 OSHC 1185, CCH OSHD para. 20,691 (1976).