UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 15242
SEATTLE CRESCENT CONTAINER SERVICE,
Respondent.

October 24, 1979

DECISION

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

CLEARY, Chairman:

Respondent, Seattle Crescent container Service, was cited for violating the Act[1] by failing to comply with the standard at 29 C.F.R. § 1918.32(b) (the standard). A $500 penalty was proposed by the Secretary of Labor. The citation and penalty were contested and the dispute between respondent and the Secretary was heard by Administrative Law Judge Garl Watkins. Judge Watkins vacated the citation on the ground that the standard does not apply to the type of work performed by respondent’s employees. The Secretary took exception to the judge’s decision and I granted the petition for review pursuant to the authority conferred by section 12(j) of the Act, 29 U.S.C. § 661(i). We reverse the judge and affirm the citation.

The standard with which respondent allegedly failed to comply provides that,

[w]hen an edge of a hatch section or of stowed cargo more than 8 feet high is so exposed that it presents a danger of an employee falling, the edge shall be guarded by a safety net of adequate strength to prevent injury to a falling employee, or by other means providing equal protection under the existing circumstances.

At the time of the inspection, two of respondent’s employees were standing on top of a stack of three 8-foot high cargo containers while securing them in place on the deck of a ship. The containers were resting on a three foot combing. The employees were working near the edges of the containers and were, therefore, exposed to a 27 foot fall hazard. While respondent provided its employees with safety belts and lanyards, they were not used. Respondent’s foreman was aware of this.[2] It is undisputed that belts could have been tied to the ‘D’ rings welded to the tops of the containers and that use of the belts would have provided protection equal to that which nets could provide No other form of fall protection was provided. We conclude from these facts that respondent did not comply with the terms of the standard.

The judge held the standard inapplicable because, since its promulgation in 1960, it had not been applied to work performed on deck.[3] Respondent supports this rationale and offers two additional grounds to support the judge’s decision. Respondent claims that the containers on top of which the employees worked were neither cargo nor stowed, as those terms are used in the standard.

All of these rationales rest on inter-related evidence and, therefore, stand or fall together. The standard has never been applied to work performed on the deck of a ship.[4] While less than five percent of the cargo handled in American ports in 1960 was shipped in containers, the volume of containerized cargo has increased steadily and significantly since then, especially in west coast and Hawaiian ports. Respondent’s expert witness, Gromachey, testified that the standard was drafted in accordance with the maritime industry’s usage of the terms stow and cargo. Gromachey stated that in the industry ‘to stow’ means to arrange goods and cargo compactly below deck and tween decks,[5] and ‘cargo’ includes only goods and merchandise transported for a tariff or charge.[6] A tariff was assessed for the contents of the containers, but not for the containers themselves. Respondent relies on the distinction Gromachey made between cargo and containers in which cargo is shipped to support the argument that the standard applies to work performed atop the former but not the latter.

The Secretary’s expert (Jones) testified that the terms stow and cargo are used broadly in the maritime industry to include, respectively, storage on the deck of a ship and containers.[7]

Finally, respondent and the judge interpreted three exhibits, entered into the record by respondent, in a manner that supports the judge’s conclusion that the standard is inapplicable in this case. The first is a special directive issued to enforcement officials by the national office of the Occupational Safety and Health Administration on August 20, 1971, shortly before the maritime standards became effective under the Act. It is read by respondent and the judge to require that enforcement of the maritime standards continue under the Act as it had when the standards were enforced under the Longshoremen’s Act. The second and third exhibits, which are documents issued by the Maritime Safety Services division of the Department of Labor, describe accidents and their causes, and state that no regulations are applicable to prevent the accidents. Respondent and the judge appear to understand the hazards so described to be falls of distances up to 27 feet, as in this case.

This evidence does not support the judge’s conclusion that the Secretary has interpreted the standard to be inapplicable to work performed on deck. The relevant sections of the first exhibit mentioned in the preceding paragraph are quoted below[8] with underscoring on that portion that the judge apparently failed to consider in his opinion. It is clear that the last sentence of the quotation directs enforcing officials to conduct inspections according to the previously established schedule of priorities; it does not address the question of the scope of the maritime standards as the judge and respondent believe.

Similarly, the second and third documents do not address the same concern as the standard. The purpose of the standard is to protect employees against injuries as a result of falls. The focus of the documents is the cause of the accident described in each document. The causes of the accident are identified in the first document as the failure to provide slack in the line and the winchdriver’s unfamiliarity with the winch controls. The causes of the accident described in the second document are stated at the signalman’s taking an unsafe position in the way of the load. Both documents state that no regulations are applicable. We interpret this to mean that there are no regulations designed to eliminate the causes of the described accidents. The recommendations included in each document, i.e., provide slack in the fall, label winch controls, and do not stand in the way of a moving load, are directed at that goal. Even if the Commission were to accept the analysis presented in the documents, a matter of no concern here, the documents clearly are immaterial to the issue of the scope of the standard’s application.

The history of the Secretary’s enforcement of the standard does not support the judge’s conclusion. There has been no expressed administrative determination of the applicability of the standard upon which we can rely. Cf. Baltimore & Ohio R.R. Co. v. Jackson, 353 U.S. 325, 330–331 (1959) (Interstate Commerce Commission’s 60 year failure to require maintenance-of-way vehicles to use power brakes required on all motor track cars held not to be administrative interpretation worthy of deference by the Court). Unlike affirmative decision-making, in the absence of an express statement by the enforcement authority, there is no assurance that inaction is the result of reasoned consideration of a problem. For example, because of the relatively slight volume of containerized cargo in 1960, practically all of which happened to be stowed below deck and tween decks, it is impossible to determine whether the Secretary intended either to restrict application of the standard to work performed below deck and tween decks or, more generally, to protect employees against injuries resulting from working on top of cargo regardless of its location on board ship. The Secretary’s silence since 1960 is equally ambiguous. Stronger evidence is needed before we can interpret a standard restrictively to the detriment of employee safety.

On August 17, 1977, respondent moved the Commission to permit supplementation of the record by inclusion of two documents alleged to be letters from Department of Labor officials describing the Secretary’s history of enforcing the standard. The Commission denied the motion as to the first (1971) letter. Official action was not taken with respect to the second (1977) letter because the Commission members were unable to agree on a disposition.[9] The motion as to the first letter has not been renewed and, therefore, is not before us. Respondent has renewed its motion as to the second letter, however,

The letter respondent moves the Commission to enter into evidence allegedly was written by Edward March, a Department of Labor official experienced in enforcing the standard at issue here. March asserts in the letter that the Secretary promulgated the standard with the intent to apply it exclusively to cargo stowed in a hold or at the edge of a partially opened hatch or block. Respondent bases its motion on the claim that the letter is relevant evidence that was unavailable at the time of the hearing. This claim technically may be accurate, but it is seriously misleading. The letter was not written until after the judge’s decision had been directed for review by the Commission, but any relevant information March possessed was readily available to respondent prior to the hearing.

As part of discovery, respondent moved for permission to serve interrogatories on March and three other Labor Department employees. The proposed interrogatories included questions about the Secretary’s interpretation and application of the standard under the Longshoremen’s Act and the Occupational Safety and Health Act. The judge granted the motion over the Secretary’s strong objection, but permitted the Secretary one week to raise objections to the wording of the interrogatories. Respondent submitted the interrogatories to the Secretary’s counsel for comment under the judge’s order. The Secretary did not object to any of the wording. Thus, respondent had access to the information in the March letter from March himself prior to the hearing.

As evidenced by the argument over the motion to serve interrogatories, respondent was fully aware of the possible evidentiary value of the answers that the interrogatories might elicit. However, Respondent did not pursue discovery by seeking responses to the interrogatories from any of the Labor Department employees. Apparently as an alternative to serving the interrogatories, respondent moved to have a subpoena served on Gromachey, one of the employees for whom the interrogatories were intended. (The motion was granted and, as indicated above, Gromachey testified in respondent’s behalf). Whether respondent’s failure to conduct discovery further is attributable to a lack of due diligence, cf. In re Westec Corporation, 434 F.2d 195, 204 (5th Cir. 1970), or a decision that Gromachey’s testimony would be sufficient, respondent’s motion is, at the very least, an attempt to remedy a questionable trial tactic.

In view of these circumstances, the necessity of bringing an end to litigation outweighs any countervailing interests of respondent and accordingly we deny respondents’ motion. Congress intended expeditious adjudication of cases arising under the Act to protect employees against hazardous working conditions. Atlas Roofing Company, Inc. v. OSHRC, 430 U.S. 442, 461 (1977). An employer who contests a citation is not obligated to abate a condition alleged in a citation to be hazardous until a final order of the Commission is issued. Section 10(b) of the Act. If the March letter were admitted into evidence now, it would be necessary to afford the Secretary an opportunity for rebuttal. Compare Ralpho v. Bell, 569 F.2d 607, 628 (D.C. Cir. 1977) with Doe v. Hampton, 566 F.2d 265, 277–278 (D.C. Cir. 1977) and Chrysler Corporation v. Federal Trade Commission, 561 F.2d 357 (D.C. Cir. 1977). Issuance of a final order would be delayed substantially because of the need to remand the case. Admittedly a gap always will exist between the time a record is closed and the time a final order is issued if, after the judge issues a proposed decision, the agency considers exceptions to the judge’s decision. But the process would be impeded unduly if an agency were to open a record after a case has left the trial judge whenever relevant evidence has been discovered. See Interstate Commerce Commission v. Jersey City, 322 U.S. 503, 514 (1944). Opening the record in this case is not justified on the grounds advanced by respondent.

Respondent’s reference to the asserted technical meaning of the terms stow and cargo is misplaced. We cannot credit Gromachey’s testimony that the Secretary intended to use the terms in the same manner as the maritime industry. There is no evidence that Gromachey was involved in drafting the standard or in the policy discussions that preceded or followed the drafting. We have no reason to attribute to him any knowledge of the Secretary’s intent. Moreover, the evidence indicates that the maritime industry has not settled upon precise technical definitions of the terms. As noted above, the two equally qualified expert witnesses divided on the industry’s usage of the terms cargo and stow. Even the dictionary relied upon by Gromachey includes three definitions of the verb ‘to stow’, one of which is ‘to put anything away for sea.’ This definition is consistent with the long-standing maritime practice of transporting large machinery and volatile material on the deck of a ship. Criteria other than maritime industry usage must, therefore, be used to interpret the standard.

Guidance is provided by the remedial purpose of the standard. See Brennan v. OSHRC and Gerosa, Inc., 491 F.2d 1340 (2d Cir. 1974). As noted above, the purpose of the standard is to reduce the incidence and extent of injury caused by accidental falls. Nothing in the record indicates that employees who fall 27 feet onto the deck of a ship are less likely to be injured, or will be injured less seriously, than employees who fall 27 feet below deck. Respondent admits that its employees could have been protected during the inspection simply by securing safety belts to rings on top of the containers. In short, there is no practical difference, at least for safety purposes, between working on top of cargo which is on deck and cargo below deck. Thus, we conclude that storage on deck is included in the term stow as it is used in the standard.

For the same reason, we conclude that cargo containers fall within the category of ‘cargo’ for the purposes of the standard. Employees working on top of containers face the same hazards as employees working on top of similarly sized cargo. Both expert witnesses testified that respondent’s employees were exposed to a fall hazard. The manufacturer (or owner) of the containers stowed by respondent recognized the possibility of falls and fashioned the containers with ‘D’ rings to facilitate the use of safety belts. The emergence of containerized cargo has caused major adjustments in cargo transportation and longshoring operations. Technological advances in the handling of cargo, however, clearly have not altered the hazards attendant to falls in excess of eight feet. It would be a distinction without a difference if the standard were held to prohibit unprotected employees from working on top of a stack of beer cases[10] eight feet high and to permit the same unprotected employees to work on top of an eight foot container filled with cases of beer. For the purposes of the standard, a container is merely an extension of the cargo within. We do not believe any employer reasonably attentive to the purpose of the standard will be misled by our interpretation of the term cargo.[11]

By permitting its employees to be exposed to falls in excess of 27 feet, respondent is in serious violation of the Act. The compliance officer and both expert witnesses testified that a fall could have caused serious bodily injury. Moreover, respondent has exhibited a less than earnest concern for the safety of employees by permitting them to work as they did without fall protection. Under these circumstances, we assess a penalty of $500.

Accordingly, the judge’s decision and order are vacated, respondent is held to have violated section 5(a)(2) of the Act by failing to comply with the standard at 29 C.F.R. § 1918.32(b), and a penalty of $500 is assessed for the violation.

FOR THE COMMISSION:

Ray H. Darling, Jr.

Executive Secretary

DATED: OCT 24, 1979

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 15242
SEATTLE CRESCENT CONTAINER SERVICE,
Respondent.

May 16, 1977

DECISION

Appearances:

Ernest Scott, Jr., Seattle, Washington for Complainant

Robert E. Babcock, Portland, Oregon for Respondent

GARL WATKINS, JUDGE:

In this enforcement action under the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., the only question for decision is whether on September 17, 1975 Respondent, a stevedoring company, was in violation of a longshoring safety regulation aboard the S/S HAWAIIAN which it was loading at Pier 18 in Seattle, Washington for a voyage to Hawaii.

The standard is 29 CFR 1918.32 entitled ‘Stowed Cargo and Temporary Landing Platforms’. Subsection (b) is involved in this case. The secretary contends that the violation was in Respondent’s failure to have a net to protect two men who were working atop three cargo containers above deck, or ‘. . . other means providing equal protection . . .’. The men were putting devices on the top corners of the containers to secure them in place for the voyage. Each of the containers was eight feet high and the base was on a combing three feet above the deck. Thus, the men were 27 feet above the deck of the ship. No safety net had been placed to prevent their fall to the deck.

Nor were the men using ‘. . . other means providing equal protection under existing circumstances.’ The evidence is undisputed that although not required by the standard under which it is charged to do so, Respondent provided safety belts and lanyards, and Matson, owner of the containers, welded ‘D’ rings on the top of each container to attach the lanyards. These lifelines and safety belts were normally used on top of the containers, and were immediately available, but were not being used.

The Compliance officer testified:

‘Q. Following, I believe, the September 26 inspection—29th inspection, a follow-up inspection—excuse me, or during that inspection, you took some additional photographs which have been previously marked C–4, -5, and -6?

A. During the 29th inspection.

q. Is that right?

A. That’s correct.

q. Showing the lanyards, safety harness, D-ring?

A. Correct.

q. Do you have any reason to believe that those lanyards weren’t available on the 17th?

A. I have reason to know that they were available.’ (TR–176–A)

As an additional protection a specially prepared paint had been applied frequently to all container tops, giving them a ‘sandpaper’ or non-skid surface.

Respondent’s principle contention is that for more than fifteen years the Secretary of Labor has continuously administered and enforced this safety standard and has never before attempted to apply it to a situation arising on deck.

Before the advent of OSHA the regulation was adopted under the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C.A. 901 et seq., first as 29 CFR 9.32(b) and then 29 CFR 1504.32(b). During all the years the interpretation of the Secretary of Labor has consistently been that this standard did not apply above deck. Thus, the Secretary by his enforcement actions has adopted an administrative interpretative rule that the standard under which Respondent is cited contemplates

‘. . . ‘Container’ means a reuseable or between decks operations. In interim amendments before the advent of OSHA there were some changes in the language, but none pertinent to this decision.

Respondent’s second contention is that aside from the construction placed on ‘stowed cargo’ by the Secretary of Labor in the Longshoring standard; the container was not cargo because it belonged to Matson, was on its ship, was not being transported for a tariff, and was there primarily for the purpose of itself transporting cargo. It meets the definition of ‘Container’ rather than that of ‘Cargo’.

‘. . . ‘Container’ means a reusable cargo container of rigid construction and rectangular configuration, intended to contain one or more articles of cargo or bulk commodities for shipment aboard a vessel and capable of utilization for this purpose by one or more other modes of transport without immediate reloading . . .’ 29 CFR 1918.85(e).

Respondent quotes Matsushita Electric Corporation of America versus the S.S. Aegis Spirit, et al. D. C., W. D. Wash. Nos. 88–76C3 and 0741525, 1976, wherein United States District Judge William R. Beeks said:

I would liken these containers to detachable stowage compartments of the ship. They simply serve to divide the ship’s overall cargo stowage space into smaller, more serviceable loci.

Respondent’s third contention is that there is a total failure of proof of knowledge on the part of the respondent that its employees who were furnished protective equipment with which to work were not using it on this one isolated occasion and therefore the requirements of 29 USC 666 (j) are not met.

Since we hold for respondent on its first contention and vacate the citation and proposed penalty, it is unnecessary to reach the arguments in connection with the second and third.

The language of the citation, the complaint and the standard follow:

CITATION NO. 2 (Serious)

Item No.	Standard, regulation or section of the Act allegedly violated	Description of alleged violation
1	29 CFR 1918.32(b)	Two longshoremen were observed exposed to the danger of falling from the top of the third tier of deck stowed containers at hatch #13 aboard the S/S Hawaiian. The longshoremen were observed by the edge placing a hoisting davit in the corner posts of the top tier of the 8 high containers.

COMPLAINT

IV

On or about September 17, 1975, at the worksite and place of business and employment above described in numbered paragraph III hereinabove, Respondent violated the longshoring regulations, contrary to 29 CFR 1918.32(b), in that Respondent suffered or permitted two employees, longshoremen to be exposed to the danger of falling from the top of the third tier of deck stowed containers, each eight feet high, at or about hatch #13 aboard the S/S HAWAIIAN and the edge of exposure was not guarded by a safety net of adequate strength to prevent injury to a falling employee, or by other means providing equal protection under the circumstances then existing.’

STANDARD

1918.32-STOWED CARGO AND TEMPORARY LANDING PLATFORMS

. . . (b) When an edge of a hatch section or of stowed cargo more than 8 feet high is so exposed that it presents a danger of an employee falling, the edge shall be guarded by a safety net of adequate strength to prevent injury to a falling employee, or by other means providing equal protection under the existing circumstances.

The Secretary asks a finding of serious violation and proposes a penalty of $500.

Before reaching the main question in the case, disposition must be made of a preliminary matter. On September 1, 1976 counsel for Respondent addressed a letter to the trial judge and to the solicitor enclosing a copy of a letter dated August 25, 1971 from Thomas R. Miller, Acting Regional Administrator and stating it was discovered in his office after the hearing. (J–18) Counsel’s letter does not make clear his purpose in sending it; for example, whether he intended to apply to reopen the case for the purpose of offering the letter in evidence as an exhibit, or whether he was simply requesting that counsel stipulate to its admission.

The trial judge arranged a telephone conference to find out what was intended. (J–19) It appears that counsel for Respondent was simply requesting admission of the letter on stipulation—that he was not applying to reopen the case. The Solicitor declined to so stipulate. Consequently no action was taken regarding the letter or its enclosure. By agreement of counsel the copy of the letter of August 25, 1971, was marked as an exhibit of Respondent, and as rejected. No consideration is given to it in reaching the decision in this case.

We now face the one important issue in the case. Did the Secretary’s administrative and enforcement conduct for more than fifteen years create an interpretative rule that ‘stowed cargo’ and as applicable thereto ‘when an edge . . . of stowed cargo more than 8 feet high is so exposed that it presents a danger of an employee falling, . . .’ did not apply to above deck operations of longshore operations on the vessel. The second question—and necessary correlative— is whether the Respondent is entitled to rely on that interpretative rule. Our answer to both is in the affirmative.

We should say in passing that the following questions are relevant to the case, and of interest; but are in no way controlling.

1. The conduct of the workmen in failing to use adequate safety equipment which was immediately available to them at the time of the Secretary’s inspection.

2. Except as they are given as well known maritime definitions, personal definitions by various persons, both expert and lay, of the words ‘cargo’ and ‘stowed’. Included is whether a cargo container which is part of the equipment of a particular ship can under certain circumstances be classified as ‘cargo’ on that ship; or whether ‘cargo’ can be ‘stowed’ on the deck of the ship.

3. We are not as much concerned with how the Secretary of Labor should have defined and construed the words of the standard; as how he did define and construe them in a completely uniform manner over many years in carrying out his regulatory administrative and enforcement duties over maritime safety.

4 Since the decision in this case hinges on the consistent and unvarying interpretation by the Secretary of Labor over many years not to construe the words ‘stowed cargo’ and the standard as applicable to longshoring operations above deck of a vessel; the evidence showing this fact warrants more detailed discussion than would be true in most cases. The Secretary denies the existence of the policy of enforcement and administration and denies the existence of the administrative interpretative rule thereby produced.

In addition to that part of the compliance officer’s testimony which could be classified as expert, each party produced one expert witness. Both are presently employed by OSHA. Jack Jones, called by complainant, is in the regional office in Seattle. Lawrence E. Gromachey, appearing under subpoena for Respondent, is in the OSHA regional office in San Francisco. Both seem well qualified as expert witnesses in the areas about which they testified.

After an extensive background in safety work—principally maritime—Jones began his employment with the United States Department of Labor in June of 1971. For the past three years he has been assistant regional administrator for training and education.

He was graduated from the Golden State University with a bachelor’s degree in business administration and industrial engineering and took an unspecified amount of graduate work at the University of California in industrial accident prevention. Shortly thereafter he went to work for Pacific Maritime Association where he remained for twelve years, starting as a safety inspector and ending as area supervisor for accident prevention in the State of Washington. After a stint with Boeing Company—also in safety work—he started with the United States Department of Labor in 1971.

During his time with PMA he said he personally investigated ‘a hundred’ fatal longshore accidents, and was involved in training courses for longshoremen and other employees.

Jones was on a committee formed by the United States Department of Labor at the time safety and health standards were first being promulgated under the Longshore and Harbor Workers Act and worked as a representative of PMA in developing the standards.

‘A. . . .’ the particular Standard that you are referring to, which is now 1918.32(b), then it was 9.32(b), but it was in April of 1960, that that was passed and I had worked as a member of the committee that helped—

‘Q. (Interrupting) Which committee was this?

‘A. This was the committee of employer, employees, working with the U. S. Department of Labor in setting the original set of Standards . . .’ (Tr 194)

‘Judge Watkins: Was this when the Standard was first being formed?

The Witness: Yes, sir. (TR 195)

Jones further testified at length regarding the meaning of the words ‘stowed’ and ‘cargo’. He agreed with other witnesses that cargo in normal definition means goods carried for a tariff or a charge, but that the word is broad and can sometimes mean containers as such. He testified at length regarding the fact that ‘cargo’ can be on deck and at greater length about the hazards presented in the situation found by the inspector and giving rise to this case.

His evidence shows complete familiarity with section 32 of part 1926 and its enforcement and of the fact that from the first adoption of the Standard it had been administered and enforced by the Secretary of Labor. Among other things he said:

‘I have certainly become acquainted with cargo stowage and the terminology of the industry, based on that and a hazard, particularly, of the industry and having seen, and indeed, investigated I would say at least a hundred fatal accidents in longshoring, many of which were the result of falls, not always from deck loads or vans, people falling from the upper deck to the lower hold. I recognize the hazards of falls. I would say definitely someone working aboard a top container stowed three high, assuming that the testimony is correct, that these were eight feet high containers, is a definite hazard, if a person were to fall and it’s a probability that death or serious injury would result from that fall.’ (TR 203)

The remarkable thing about Mr. Jones testimony is that it contains not one word to the effect that at any time during the many years of its existence and enforcement and administration by the Secretary of Labor did the latter ever enforce or attempt to enforce 29 CFR 1918.32(b) to longshoring operations above deck; nor did his testimony contain anything from which it could be inferred that it was the policy of the Secretary to so enforce it. His testimony is completely silent on the crucial point of the case.

The expert witness produced by respondent, Lawrence E. Gromachey, has equally impressive credentials. The chief difference between his background and that of Jones, the Secretary’s expert is that Gromachey’s experience has been in enforcement. Both men probably knew—but only Gromachey testified—that in all the years the Secretary of Labor has never construed ‘stowed cargo’ under 29 CFR 1918.32(b) as applying above deck.

Gromachey started working in the Department of Labor in 1959 with the Bureau of Labor Standards, which then had the responsibility for the administration and enforcement of maritime safety programs. Until August of 1974 he continuously held jobs carrying with them the responsibility of enforcing maritime safety standards.

Before 1959 Gromachey had gone to sea, starting as a wiper in the engine room. He had studied three years of mechanical engineering at Oregon State College. When he went to work for Labor in 1959 he was Acting Safety Director of the Pacific area in San Francisco for the Military Sea Transportation Service. He was with that organization a total of eight years and previously had been a marine training specialist and damage control instructor.

Initially with the Bureau of Labor Standards he was a Maritime Safety Officer enforcing then existing marine safety and health regulations in San Francisco. He was then promoted to district supervisor in Oakland and in 1961 became the district supervisor in Honolulu.

He held this job ten years and on May 19, 1971, after the advent of the Occupational Safety and Health Act, he was transferred to Phoenix, Arizona with OSHA as senior compliance officer. After two or three months he was made area director for the Phoenix area. He was in this job until August of 1974 when he was transferred to the regional office in San Francisco and to his present job as special assistant to the regional director. In February of 1975 he was designated as consultant for federal agency programs.

Gromachey’s experience included not only an initial schooling when he started as a maritime inspector, but additional schools and periods of training, principally within the Labor Department.

Gromachey’s testimony is extensive and it all points to the fact that at no previous time did the Secretary of Labor ever treat ‘stowed cargo’ as anything above the deck of a vessel within the meaning of 29 CFR 1910.32; either when the standard was so numbered or when it carried either of its two preceding C.F.R. numbers. This was a standard to be enforced only below deck.

It is important to consider that there is no conflict in the testimony of Jones and Gromachey about the construction and interpretation uniformly enforced by him. It did not apply to cargo on deck.

Gromachey did not recall having seen a specific written memorandum or interpretation—applicable only to this standard—distributed. He did testify without qualification that there were such interpretations issued, both in form for general distribution and others applicable to specific cases.

Without contradiction, the witness’ testimony showed that he was familiar with interpretation of the complainant on this standard in Hawaii and all ports on the Pacific coast and Alaska. Secretary’s brief implies that this limited knowledge does not indicate a general interpretation of the standard by the Secretary. The Solicitor states, for example, that the fact Gromachey knew what the Secretary’s policy was in Hawaii, Los Angeles, San Francisco, Portland, Seattle, and Alaska, does not necessarily indicate that he knew what was happening in New Orleans and New York.

I have had occasion to encounter criticism of the Secretary of Labor on various counts, but never before have I heard a claim of there being such a total breakdown of communications within the Department of Labor that the district manager for enforcement of maritime standards in Hawaii would not know the policy of the Department of Labor with respect to those standards.

The evidence is therefore conclusive that from the time of the enactment of the first standard having to do with ‘stowed cargo’ under the Longshore and Harbor Workers Act the policy of the Secretary of Labor was to consider that standard applicable only below the deck of ships. The enforcement officers practices followed the policy. (There is one bit of testimony to the contrary from the compliance officer in this case. It is too vague and indefinite to cast a doubt on the conclusion just stated. It will, however be discussed.)

The Secretary points out that Gromachey’s direct involvement in making and in supervising longshoring and other maritime inspections ended when he became a senior compliance officer and then area director in Phoenix.

It is implied but neither stated nor proved that the policy of the Secretary of Labor may have changed when the standard became one of OSHA rather than of the Longshore and Harbor Workers Act.

Again, and unless there was a complete breakdown of communications between the various offices of the Labor Department, Gromachey remained familiar (as he said he did) with the Secretary’s interpretation of this standard as well as with many others.

This conclusion is strengthened by language of Exhibit R1. It is a ‘ SPECIAL DIRECTIVE’ issued August 20, 1971 by the Assistant Secretary of Labor for Occupational Safety and Health. It is addressed to:

Regional Administrators:

Area Directors:

Maritime District Supervisors:

Subject: ‘Instructions for compliance activity effective August 27, 1971.’ It says:

‘1 Standards . . .

a. Maritime Safety Standards. Maritime Safety Standards continue in effect under OSHA. As of August 27, 1971 coverage is extended to on-shore activities.

‘In the maritime area, the program should continue in longshoring, shipyards, etc., as in the past’. (emphasis supplied) (P.1 and 3)

The ‘one bit of testimony’ noted on the previous page is from Strasheim, the compliance officer, who testified with some equivocation that he had previously issued citations under 29 CFR 1918.32 for on deck activities. His testimony with respect to such other citations is both inconclusive and incomplete. To complete the recital of facts in this decision however, it would seem advisable to include all Strasheim’s testimony with respect to his other citations which may have been under section 1918.32, as well as his testimony regarding the adjoining section 1918.33 entitled ‘Deck Loads’.

‘Q. How many times do you use the standard, 1918.32(b)

A. I think I’ve used it, I don’t know, about seven or eight times.

Q. Under what circumstances?

A. One of the circumstances was on a container operation in Anchorage where men were working on the open ends of these stacking frames. I’m reasonably certain I used that standard—I could check that out

Q. Is that the one you were talking about where they were on a catwalk?

A. Yes.

Q. You used 1918.32(b)?

A. Yes

Q. Any other examples?

A. Yes, I’ve had people working on tops of deck loads of cargo along the edge where we’ve had wooden cases stacked several tiers high, deck loads of lumber—that was another case. Deck load of logs was another case where men were working close to the edge without protection; also below decks, men working on top of tiers of cargo below decks, and also stacks of pipe-that’s particularly hazardous, although the hazard is the same.

Q. You used 1918.32(b) on deck loads of logs?

A. On lumber.

Q. Deck Loads of lumber?

A. Lumber.

Q. What is a deck load?

A. It’s a load placed on the deck.

Q. Where were these containers?

A. On the deck.

Q. Are you familiar with 1918.33?

A. I would have to refresh it.

Q. Entitled ‘Deck loads’, are you familiar with it?

A. Reasonably, yes, if I could refresh my memory by looking at it.

Q. You for the moment recall that 1918.33 is specifically referable to deck loads?

A. I believe that’s the heading, yes.

Q. And 1918.32, as a whole, refers in the heading to ‘Stowed cargo and temporary landing platforms’?

A. That’s correct.

*8 Q. Do you check the headings in determining whether to apply a standard to a given condition?

A. Yes.

Q. What is a temporary landing platform?

A. Well, it would be, as it implies, it’s a temporary landing platform. It can be made up of cargo; it can be made up of dunnage. It’s a place where you would generally land cargo, on the square of a hatch or on deck.

Q. You call that a temporary landing platform?

A. Yes.

Q. With respect—do you know what a hatch section is?

A. A hatch section?

Q. Yes.

A. Perhaps I don’t understand it in the sense that you’re speaking of.

Q. The regulation provides, ‘When an edge of a hatch section or of stowed cargo more than eight feet high is so exposed it presents danger of an employee falling.

A. Here again, if you’re asking my interpretation—

Q. (Interrupting) I’m asking if you know what a hatch section is.

A. I know what I consider a hatch section. I don’t know if the review Commission interprets a hatch section to be the same thing.

Q. What do you consider a hatch section?

A. A hatch section would be a section of the covering for a ‘tween decks’ or weather deck.’

(TR 168, 169, 170)

This evidence fails to show anything but generalities about even one previous charge of failing to comply with the standard because of ‘stowed cargo’ above deck. It falls far short of establishing any deviation by the Secretary from his long standing interpretation of construing ‘stowed cargo’ under the standard to apply only to stevedoring operations below deck.

Again the important thing here is that for a period more than 15 years Secretary of Labor in combining the two words ‘stowed’ and ‘cargo’ and applying them under 29 CFR 1918.32(b)—and thus to longshoring and stevedoring operations while at the same time giving interpretations for general as well as specific application; has thereby adopted an administrative interpretative rule that above deck operations were not contemplated by that safety standard. All persons affected by the rule—including respondent in this case—were entitled to rely on it.

At this point in the decision, it is certainly time to point out that in our opinion the interpretation of the Secretary of Labor of the particular language of 29 CFR 1918.32(b) was not only contemporaneous, continuing and unvarying, but it was practical—it makes sense in view of the language of the standard.

Consider for example the words ‘temporary landing platforms’ in the heading and ‘Temporary tables on which loads are to be landed’ in subparagraph (a). The evidence is clear that these tables and landing platforms are used below deck or between deck, and not on deck.

Likewise in subparagraph (b) the ‘. . . edge of a hatch section or of stowed cargo more than eight feet high’, likewise applies to an operation below or between decks.

As to subparagraph (c) if ‘. . . two gangs (are) working in the same hatch on different levels . . .,’ they are below the main deck. (underlining and parenthetical word supplied)

We are also mindful that the section following the standard we are considering covers ‘Deck Loads.’ 29 CFR 1918.33

Of singular importance to the decision in this case is the fact that the Secretary has sole control of the evidence about whether anyone was ever charged with violating the standard in handling cargo above deck. Any such evidence could be easily produced. If respondent’s contentions are not correct, such evidence is readily available to the Secretary, and to the Secretary only. Contrariwise an attempt by respondent to get further evidence—by discovery or otherwise—might present formidable obstacles.

An administrative interpretative rule—as opposed to a legislative rule—need not be in strict compliance with elaborate statutory procedures for adopting it. It can be adopted with much less formality than a legislative rule.

The interpretative rule, which then becomes binding on all parties, may be adopted in many informal ways, and according to Professor Davis may cover a wide variety of subjects.

‘Interpretative rules may interpret,

(1) a statute

(2) a legislative rule

(3) another interpretative rule

(4) judicial decisions

(5) administrative decisions

(6) administrative rulings

(7) any other law or interpretation

(8) any combination of items on this list, or

(9) nothing.’

1 Davis-Administrative Law Treatise § 5.03 P.304

The variety of ways of adoption an interpretative rule are as diverse as the subject of interpretation.

‘An agency may announce policies in connection with deciding cases, or informally through press releases or reports or speeches, or formally through regulations.’

‘Something that either is akin to rule making or is rule making takes place when particular courses of official action are repeatedly followed. More than a century ago the Supreme Court observed that ‘usages have been established in every department of the government, which have become a kind of common law, and regulate the rights and duties of those who act within their respective limits.’

‘therefore an ‘administrative practice or enforcement policy,’ even when unannounced or wholly negative, may sometimes have about the same effect as a formal rule.’

1 Davis Id. § 5.01 P.289

‘In some circumstances even a speech of a commissioner may have about the same effect as formal rules, especially if the speech authoritatively states enforcement or adjudication policy. If by any informal method, including a press release, a prosecuting agency makes known what it will not prosecute, the result may be closely akin to a rule.’

1 Davis Id. § 5.01 P.290

The authorities seem clear that contemporaneous interpretation, followed by continuous adherence to that interpretation by an administering or enforcing official, strengthens the force and effect of the interpretative rule. C. Sands (author of the Fourth Edition of Sutherland on Statutes and Statutory Construction) makes it even more clear than Professor Davis that the same rules apply to administrative regulations or rules and the interpretation of their words, as apply to statutes.

‘Contemporaneous and practical interpretation is influential in the construction not only of statutes but also . . . regulations of administrative agencies . . .’

2A Sutherland Statutes and Statutory Construction (4th Ed. C. Sands 1973) § 49.03 P.233.

Both authors place strong emphasis on the importance not only of the administering and enforcing official’s interpretation contemporaneous with his adoption of the rule, but also on his continuing to follow this interpretation.

‘Courts give extra authoritative weight to interpretative ‘rules’ and practices which embody interpretations made contemporaneously with the enactment of the statute, or which have been consistenly followed over a long period.’

1 Davis Id. § 5.06 P.324

‘Like all precedents, where contemporaneous and practical interpretation has stood unchallenged for a considerable length of time, it will be regarded as of great importance in arriving at the proper construction . . .’

2A Sutherland, Id. § 49.07—P.251–2

Sutherland goes into greater detail and the reasons for the rule we hold decisive of this case.

‘One of the soundest reasons sustaining contemporaneous interpretations of long standing is the fact that reliance has been placed thereon by the public and those having an interest in the interpretation of the law.’

2A Sutherland, Id. § 49.07–P.252

‘The greatest weight attaches to an administrative interpretation in favor of parties who have reasonably relied on it.’

2A Sutherland Id. § 49.05—(Supplement)

The decision in this case is based upon an Interpretative Rule made by the Secretary in his consistent, unvarying and long standing interpretation of the words ‘stoward cargo’ in 29 CFR 1918.32(b) and its predecessor Code of Federal Regulations section numbers. The Rule is this safety standard does not apply above deck. All persons subject to citation under the standard are bound by the Rule; so is the Secretary.

The citation and proposed penalty will be vacated and the complaint dismissed.

Based upon the entire record in this case the undersigned now makes the following.

FINDINGS OF FACT

1. The respondent is in the stevedoring business in Seattle, Washington and on September 17, 1975, was engaged loading the S/S Hawaiian, a vessel owned by Matson Navigation Company, at Pier 18, Port of Seattle, Washington for a voyage to Hawaii.

2. On that date, respondent’s operation was inspected by a representative of the Secretary of Labor, resulting in the issuance of citation No. 2 for serious violation of 29 USC 654(a)(2) for failure to comply with 29 CFR 1918.32(b) because ‘. . . two longshoremen were observed exposed to the danger of falling from the top of the 3rd tier of deck stowed containers at hatch #13 aboard the S/S Hawaiian. The longshoremen were observed by the edge placing a hoisting davit in the corner posts of the top tier of eight feet high containers.’

At the time of the inspection there were three steel cargo containers each eight feet high stacked one atop the other on the main deck of the S/S Hawaiian. They had been placed there by respondents crew in loading the ship. They were on top a ‘coming’ approximately three feet high so that the top of the uppermost was approximately twenty seven feet above the main deck of the vessel. The cargo containers were owned by Matson Navigation Company and were intended to be carried on deck the vessel on its voyage to Hawaii.

3. Two employees of respondent were on top the topmost container near its edge in the process of securing the containers in place. Respondent had erected no net to protect them from falling. They were not wearing their life belts with lanyards or lines attached nor were they using other means providing equal protection under existing circumstances.

4. Life belts, lanyards, rings welded to the tops of the topmost container and other equipment were immediately available to the men to prevent them from falling, but were not being used. It is undisputed that the use of the life belts and lanyards provided ‘equal protection under existing circumstances under 29 CFR 1918.32(b)

5. 29 CFR 1918.32 was adopted by the Secretary under the provisions of 29 USC 655 as an established Federal standard. It had been in effect under the Longshore and Harbor Workers Act since 1960 under an amendment to the Longshore and Harbor Workers Act in 1958 authorizing the Secretary to adopt Safety standards for longshoring.

6. From the time the standard first became effective under the Longshore and Harbor Workers Act until the time this case arose, it was the consistent and unvarying, as well as announced policy of the Secretary of Labor to enforce its provisions only to activities below and between decks of ships. It was not enforced, nor was it the policy of the Secretary to enforce it, to any cargo, person or thing above deck. There is no creditable evidence in the record to the contrary.

CONCLUSIONS OF LAW

1. On September 17, 1975, respondent was engaged in a business affecting commerce as that term is defined in the Act. The Review Commission has jurisdiction of the parties and the subject matter of this action.

2. From the time of its first adoption under the Longshore and Harbor Workers Act (33 USC 941), what is now 29 CFR 1918.32(b) was the subject by the Secretary of Labor of a uniform contemporaneous interpretation and a continuing unvarying adherence to this interpretation; that this safety standard did not apply above deck on ships; rather it applied only below deck and ‘tween’ decks. The Secretary’s enforcement officers were consistently instructed to so enforce it. The Secretary and his agents disseminated information of this interpretation in written form, both of a general nature and in specific cases, that the standard did not apply above deck. Such interpretation and enforcement, coupled with dissemination of information about it, had the effect of the Secretary adopting an interpretive rule that the standard did not apply above deck.

3. Irrespective of the Secretary’s interpretative rule, a fair and correct interpretation of 29 CFR 1918.32(b) is that it does not apply to longshoring operations above deck.

4. Respondent, as well as the entire Longshoring and Stevedoring industry, relied on the interpretative rule, and had a right to rely on it.

5. The Secretary has taken no steps to change, amend, modify or repeal the rule.

6. Respondent is entitled to an order vacating the proposed citation and proposed penalty in the amount of $500.00

ORDER

IT IS HEREBY ORDERED:

1. That Citation No. 2 for Serious Violation issued to respondent September 23, 1975 and relating to the S/S Hawaiian at Pier 18, Port of Seattle, Seattle, Washington, and the resulting proposed penalty in the amount of $500.00 for such violation, be and the same hereby are vacated.

2. That the complaint of the Secretary is dismissed with prejudice.

DATE: May 16, 1977

GARL WATKINS

Judge

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[1] The Occupational Safety and Health Act of 1970 U.S.C. § 651 et seq.

[2] Respondent claims that the employees’ failure to use the safety belts was unpreventable employee misconduct. Respondent’s foreman saw and could have prevented the conduct. In the absence of evidence that the foreman’s failure to act was in violation of an effectively enforced work rule, that failure is imputed to respondent. Larkan Steel Erectors, 77 OSAHRC 167/B12, 5 BNA OSHC 1783, 1977–78 CCH OSHD ¶22,100 (No. 15016, 1977).

[3] The standard was promulgated originally under The Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq. It was subsequently promulgated under the Occupational Safety and Health Act as an established federal standard pursuant to 29 U.S.C. § 655(a).

[4] The Secretary asserts that the judge improperly failed to credit the compliance officer’s testimony that he had applied the standard to work on deck. The judge rejected the testimony because he found it inconclusive and incomplete. We agree with the judge. The compliance officer could not recall the pertinent circumstances or dates of any prior applications of the standard.

[5] A tween deck is a deck that does not run the full length of a ship.

[6] Gromachey based this testimony on his long experience in dealing with the maritime industry and, more heavily, on the definitions appearing in The International Maritime Dictionary (2d ed. 1961). Gromachey paraphrased the dictionary.

[7] The judge properly found that Jones was as well qualified as Gromachey to testify on the industry usage of the terms stow and cargo.

[8] Subject: Instructions for Compliance Activity Effective August 27, 1971

a. Maritime Safety Standards. Maritime safety standards continue in effect under OSHA. As of August 27, 1971, coverage is extended to on-shore activities.

2. Compliance Inspections. The compliance provisions of the Act, the Compliance Manual and subsequent directives are fully effective as of August 27. Priorities for compliance inspection activity and the utilization of compliance officer time have been established. These priorities are:

a. Catastrophe/Fatality investigations.

b. Response to valid complaints.

c. Target industry inspections.

d. General industry inspections on a inspection on a random basis.

In the Maritime area, the program should continue in longshoring, shipyards, etc., as in the past.

[9] The Commission was composed of only two members between April 1977 and May 1978.

[10] Cases of beer were contained in some of the containers handled by respondent’s employees.

[11] Respondent moves that it be awarded attorney’s fees because of alleged improper conduct by the Secretary in prosecuting this case. Even if we were persuaded by the allegation and respondent were victorious before us, we could not grant the motion. The Commission does not possess the authority to award such costs. John W. McGowan, 77 OSAHRC 189/E10, 5 BNA OSHC 2028, 1978 CCH OSHD ¶22,268 (No. 76–1308 , 1977), appeal docketed, No. 77–3495 (5th Cir., December 27, 1977).