SECRETARY OF LABOR, Complainant, v. JONES WASHINGTON STEVEDORING CO., Respondent. OSHRC DOCKET NO. 85-0453 _ORDER_ The Commission grants the Secretary's motion to withdraw the citation and complaint as to serious citation No. 1. The Commission affirms the Judge's decision affirming other-than-serious citation No. 2. FOR THE COMMISSION Ray H. Darling, Jr. Executive Secretary Dated: February 24, 1987 ------------------------------------------------------------------------ SECRETARY OF LABOR, Complainant, v. JONES WASHINGTON STEVEDORING COMPANY, Respondent. OSHRC DOCKET NO. 85-0453 APPEARANCES: For the Complainant: William W. Kates, Esquire, Seattle, Washington For the Respondent: Thomas S. Councell, its Safety Superintendent For Affected Employees: Lawrence Hansen, member of the safety council, International Longshoremen and Warehouse Union, Local 19, appearing on his own behalf _DECISION AND ORDER_ Child, Judge, OSHRC: _Statement of the Case_ This matter is before the Occupational Safety and Health Review Commission (the commission) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 _et_ _seq_., (the Act). Complainant seeks affirmance of Citation No. 1, issued to respondent April 18, 1985, charging one item of serious violation of section 5(a)(2) of the Act for failure to comply with the standard at 29 CFR 1918.32(b)[[1/]] Complainant also seeks affirmance of a proposed penalty in the sum of $480.00. The matter was heard at Seattle, Washington, July 23, 1985. Notice of the hearing was duly given affected employees. Lawrence Hansen, an employee and member of the International Longshoremen and Warehouse Union Local 19 and its safety council appeared on his own behalf. (Tr. 6-10) It was stipulated at the hearing that respondent did not intend to contest a Citation No. 2 also issued to the respondent on April 18, 1985, charging one item of other-than-serious violation of the standard at 29 CFR 1910.180(h)(3)(v) and that to the extent the notice of contest was interpreted to contest said Citation No. 2 it was withdrawn. (Tr. 13, 20) The complainant and the respondent have submitted post hearing memorandum of points and authorities and brief. Jurisdiction has been admitted and is not an issue. (Pleadings) The Issues: The issues to be determined are: A. Was the respondent in violation of the standard at 29 CFR 1918.32(b)?[[2/]] B. If the respondent was in violation as alleged, was such violation serious? C. What, if any, penalty would be appropriate? _Statement of the Facts_ _Uncontested Facts_: On April 10, 1985, Michael Bonkowski, a compliance officer of the Occupational Safety and Health Administration (OSHA), inspected respondent's worksite. He observed six employees of respondent working on top of containers being stowed three abreast and four tiers high on the deck of an ocean going barge. The individual containers were 8 feet wide, 8 feet high and 35 feet long. (Tr. 26, 28, 33, 38, 39; Exhibit C-2) The top of the first tier of containers would be 8 feet above the deck, the top of the second tier would be 16 feet above the deck, the top of the third tier would be 24 feet above the deck and the top of the fourth tier where six employees were observed to be working at the time of the inspection would be thirty-two feet above the deck. (Tr. 40) The work performed by workers at the top of each tier as the loading of containers progressed was (1) to place "cones" at each upper corner of the loaded container, (2) guide incoming containers so that the lower corners would seat in the cones previously placed on the prior loaded container on which the incoming container would rest, and (3) placing the upper end of lashing chains at each corner of the loaded container so that workers at the deck level could lash the container to the deck surface. At the time of the inspection no fall protection was being used by the employees nor were any fall protection devices present. There were safety nets in use, nor were the employees using safety belts or lanyards. (Tr. 41) Similar containers built for and owned by the Matson Lines have a permanent D-ring recessed into the top of the container inboard from each upper corner. Such D-rings are there to provide an anchor for the lanyard attached to the employee's safety belt. However, other container manufacturers do not so equip their containers and like railroad box cars these containers move from shipper around the world to be handled by independent stevedoring companies. The containers being handled at the time of the inspection were not equipped with D-rings. (Tr. 42, 44, 56, 147, 148) _Contested Facts_: In the absence of D-ring anchor points the compliance officer testified that cables or straps could be fastened around the girth or width at each end of the container providing anchor points for lanyards connected to the safety belts of employees working at the corners. Such cables or straps would be so constructed that they could be withdrawn after the container was in place. With cones in place there is a small space separating the bottom of a container from the top of the one upon which it is placed. (Tr. 43, 55, 59) Likewise some space existed between the sides of the stacked containers. (Tr. 60) _Discussion_ _Issue A_: Was the respondent in violation of the standard at 29 CFR 1918.32(b)? To prove a violation of section 5(a)(2) of the Act the Complainant must prove by a preponderance of the evidence an employer's noncompliance with an applicable standard and employee exposure to the hazard created by the violative condition. _Otis Elevator_ _Co_., 78 OSAHRC 88/E5, 6 BNA OSHC 2048, 1978 CCH OSHD ¶ 23,135 (No. 16057, 1978). In addition to the foregoing, section 17(k) of the Act has been interpreted by the Commission as placing on the complainant the burden of proving that the employer knew, or in the exercise of reasonable diligence could have known of the presence of the violative condition. _Prestressed_ _Systems, Inc_., 81 OSAHRC 43/D5, 9 BNA OSHC 1864, 1981 CCH OSHD ¶ 25, 358 (No 16147, 1981). Section 1918 of 29 CFR sets forth "Safety and Health Regulations for Longshoring." The standard here under consideration falls under "Subpart D - Working Surfaces." Here the evidence is that six employees were exposed to the hazard of falling from the top of containers stacked on the deck of a barge thirty-two feet to the deck below. The evidence further shows that there was no fall protection present to prevent such falls. Specifically, no safety nets were present. The Commission has held that the standard at 29 CFR 1918.32(b) applies to containers stowed on the deck of vessels. _See_ _Secretary v. Seattle Crescent Container Service_, 1979 CCH OSHD ¶ 24,002, OSHRC Docket No. 15242-1979. Also _Secretary v._ _Chesapeake Operating Co_., 1982 CCH OSHD ¶ 26,142, OSHRC Docket No. 78-1353-1982. In the ordinary scheme of things the complainant might well have rested on the above proof as making out a prima facie case, leaving to the respondent the burden of establishing that safety nets were infeasible and, if it be the case, that there were no other means of providing equal protection under the existing circumstances. See _Secretary v. Ace Sheeting & Repair_, 1975-1976 CCH OSHD ¶ 20,256, OSHRC Docket No. 5284, 555 F.2d 439 (Fifth Circuit, 1977) Here, however, the complainant volunteered and stipulated on the record that in these circumstances safety nets were infeasible. (Tr. 49-51) The complainant as part of its case in chief offered evidence to the effect that safety belts and lanyards tied off to cables or straps temporarily affixed to the containers for that purpose would be a feasible means of affording fall protection which would be equal to safety nets. To the citation respondent raises the affirmative defenses: (1) impossibility of compliance in that safety nets were not feasible and safety belts and lanyards tied off to an anchor point were infeasible, and (2) use of safety belts and lanyards would create a greater hazard to employees than non-use. The burden of proving each of these defenses rests with the respondent. (1) To establish an impossibility defense, the employer must prove that (a) compliance with the requirements of the cited standard would be functionally impossible or would preclude performance of required work, and (b) alternative means of employee protection are unavailable. _See_ _M.J. Lee Construction Co_., 7 BNA OSHC 1140, 1144; 1979 CCH OSHD ¶ 23,330, OSAHRC Docket No. 15094, 1979, and cases there cited. The defense will not be sustained of an employer shows merely that compliance would be difficult, inconvenient, or expensive. See, e.g., _Lee Way Motor Freight, Inc._, 74 OSAHRC Docket No. 1105, 1974; 1 BNA OSHC 1689; 1973-74 CCH OSHD ¶ 17,693, affirmed 511 F.2d 864 (10th Circuit 1975) Since the complainant concedes that safety nets would here be infeasible, respondent's burden is restricted to that of proving that the alternative method of fall protection proposed by the complainant, to wit: safety belts and lanyards tied off to an anchor point would be infeasible in that they would be functionally impossible to utilize or that they would preclude the performance of required work. Permanent D-rings set inboard of each upper corner of the containers would be an obvious anchor point for the lanyards of employees working at the corners of the tops of these containers. Unfortunately, according to the evidence adduced at the hearing of this matter only the Matson Lines so equip their containers. The containers of the Matson Line are owned and exclusively used by that line. None of the containers being handled by the respondent at the time of this inspection were so equipped. The problem was pointed up by the testimony of Lawrence J. Hansen, an experienced Longshoreman produced as a witness by the respondent. Mr. Hansen testified: "First, I feel it unfeasible. Because there's 2.6 million containers running around the world. And there seems to be no way you can police the usage and keep these safety items up to a standard of certification in the United States. I find that there is no world organization that could force the world to create some kind of safety means that is uniform. A container that we are talking about today could be in Saudi Arabia in six months and following that could be in India in eight months. So it's hard to police these containers." (Tr. 147-148) It is unfortunate that the industry has not brought pressure upon the manufacturers of containers to require installation of anchor points to permit employers working at heights to tie-off. Nonetheless, the Act requires each employer to furnish to each employee and a place of employment free from recognized hazards likely to cause death or serious physical harm to such employees. The dereliction of the industry in facing up to solving this problem cannot relieve the individual stevedoring company of its duty to its employees. As the Commission said in the analogous case _S&H Riggers and Erectors, Inc_., OSHRC Docket No. 15855 (1979), 7 BNA OSHC 1260, 1263: "... Although industry custom and practice are useful points of reference, with respect to whether a reasonable person familiar with the circumstances would recognize a hazard requiring the use of personal protective equipment, they are not controlling. (Reversed 5th Circuit - 1981, 659 F.2d 1273) Respondent's witness testified to the continuing concern of longshoremen and stevedoring companies to "coning off" and working "aloft on containers" and the attendant hazard of falling. (Tr. 146-147, 155, 156) Complainant offered evidence that the use of safety belts and lanyards tied off to a fitting on a strap or cable --- each end of the container temporarily installed for that purpose would be feasible and would provide fall protection equal to ----under the circumstances. A useful discussion of "feasibility: as it applies to safety standards is set forth in the recent case _Forging Industry Association v._ _Secretary of Labor_ decided by the United States Circuit Court of Appeals for the Fourth Circuit, sitting _en_ _banc_. (No. 83-1420, September 23, 1985) This respondent provided _no_ fall protection to its employees (Tr. 78). Its cargo superintendent (Tr. 77) and its stevedore foreman (Tr. 125) themselves considered that a safe place of work had been provided, in spite of the absence of any protection. The only protection the employees had was "just their own experience and knowledge" (Tr. 78), "their own ability to be careful." (Tr.134) Respondent's operations manager testified that no one had" ... come up with a better solution than the way we do it today." He also acknowledged the hazard to be obvious. (Tr.173) The respondent thus justified itself taking no steps to remove the hazard to which its employees are exposed. Having never tried the method proposed by the complainant, respondent attacks its feasibility by offering opinions as to difficulties which might present themselves if it were used. It is here noted that none difficulties appear to be insurmountable if the respondent were to apply itself to the task. Respondent urges Exhibit R-1, OSHA Instruction CPL 2-1.17 as excusing its failure to provide fall protection. It is true that document is an acknowledgment by complainant that "To date there is no overall workable means to protect longshoremen in all instances of exposure." Nonetheless, five instances of accomplished protection are there cited by way of illustration. The Instruction reminds the respondent of its duty under the standard and divisions of the potential of being cited when available means of protecting employees from falling from containers are not used. The respondent availed itself of no means whatsoever. Respondent has failed to meet its burden or proving that the use of safety belts and lanyards tied-off in the manner suggested by the complainant would be functionally impossible or would preclude performance of required work. (2) To establish a greater hazard defense, the employer must prove that (a) the hazards that would have been created by complying with the cited standard are greater than those resulting from noncompliance; (b) alternative means of employee protection were either used or unavailable; and (c) application for a variance pursuant to section 6(d) of the Act would be inappropriate. _M.J. Lee_ _Construction Company_, _supra_. At page 7 of respondent's post hearing brief this defense is stated: "The anchoring rings on top of a container and on the proposed alternative - - a girdle/strap - - still embrace a serious tripping hazard, namely, that of a line that is behind you exerting a downward pull." Respondent cites us to testimony that when the employee is taking the strap out or putting it on he would not be hooked up. (Tr. 105) If this were the case it would not be a greater hazard, but the same hazard although not necessarily at the corner or edge of the container top. Also there is reason to believe the "strap" could be applied or removed without the necessity of having an unprotected employee on the container. (Tr. 44, 103-105) The tripping hazard complained of by the respondent is that of tripping on the lanyard or the girdle/strap or cable. (Tr. 163) It must be noted that in the event of such tripping a fall if it occurred would be no more than six feet and probably much less. Such a fall would not likely result in serious injury whereas an unrestrained fall 32 feet to the deck would in all probability result in serious injury or death. No evidence was presented that respondent had sought a variance from the requirements of the standard or that application for a variance would be inappropriate. Respondent failed to meet its burden of proving a greater hazard defense. _Issue B_: Six employees were observed to be working at the top level of containers stacked three abreast and four high. Each container was eight feet high. Thus the six employees were working thirty-two feet above the deck of this ocean going barge. The deck was metal, covered with wooden planking. Although complainant failed to put on evidence as to the probable consequences of such a fall it would appear to be self-evident that in all probability the result would be serious injury likely involving broken bones and even death. _Issue C_: Complainant gave due consideration to the requirements set forth in the Act in arriving at its proposed penalty and the sum of $480.00 is appropriate. (Tr. 45-49) Now, having observed the demeanor of the witnesses and having weighed the credibility thereof, there are here entered the following: _Findings of Fact_ 1. Jones Washington Stevedoring Company is a corporation with offices at 7245 W. Marginal Way S.W., Seattle, Washington. (Pleadings) 2. The respondent is and at all times material hereto was engaged in longshoring operations at a worksite and place of business and employment located aboard and in the dock side vicinity of the barge ATB#99 located at Terminal 105 in the Port of Seattle, Washington, whereby containers of cargo destined for shipment to the State of Alaska were being loaded aboard said bridge which was then located on the navigable waters of the Duwamish Waterway in Seattle, Washington. (Pleadings) 3. At all times material hereto respondent was engaged in the use of materials, machinery and other goods brought to respondent from points outside the state of Washington and utilizes the mails, telephone and other facilities or interstate commerce. (Pleadings) 4. Those factual statements set forth under Uncontested Facts in the Statement of the Facts portion of this decision are incorporated in these Findings of Fact by reference. 5. The standard at 29 CFR 1918.32(b) applies to the work being performed by respondent's employees at the time of the inspection herein. 6. Respondent's employees working on the top of containers at the time of the inspection were exposed to the hazard of falling thirty-two feet to the wooden plank covered metal deck below. 7. The edge of the containers atop which respondent's employees were working was not guarded by safety nets nor was any other means of fall protection present. 8. Respondent knew or in the exercise of reasonable diligence could have known of the presence of the violative condition in that supervisory personnel were present and respondent's work practice and procedure was to provide no fall protection to employees working on top of containers, but rather to rely entirely upon the individual unprotected employees exercising care and caution in their own behalf. 9. Safety nets were not a feasible form of fall protection under the circumstances prevailing at the time of the inspection herein. 10. Safety belts and lanyards tied off to an anchor point to be provided by respondent were a viable means of fall protection which would provide protection equal to safety nets under the circumstances here present. 11. Safety belts and lanyards worn by employees working on top of containers were a feasible form of fall protection and the lanyards worn by employees working on top of containers were a feasible form of fall protection and the method proposed by the complainant to provide anchor points for the lanyards attached to the safety belts was feasible. 12. The use of safety belts and lanyards tied off to anchor points to be provided by the respondent would be functionally possible and would not preclude performance of the work to be performed at the top of containers. 13. Lanyards tied off to an anchor point at foot level present a tripping hazard, however, the hazard of possibly tripping on a lanyard or the point or device to which the lanyard is anchored is not so great as the hazard of falling unrestrained eight feet, sixteen feet, twenty-four feet or thirty-two feet from the top of containers stacked on the wooden plank covered metal deck. 14. The efforts of employees in installing lanyard anchor points in the form of removable straps or cables at either end of the containers would not necessarily present a fall hazard and if it did, such a hazard would be limited in duration and not greater than the hazard presented to longshoremen guiding incoming containers, setting "cones" and placing lashing chains at the upper corners of the containers without the benefit of fall protection. 15. Should a worker experience an unrestrained fall thirty-two feet and strike a wooden plank covered metal deck, there is a substantial probability that death or serious physical harm could result. 16. The sum of $480.00 is appropriate penalty to be assessed respondent for the violation found herein. _Conclusions of Law_ 1. Respondent was and is engaged in a business affecting commerce within the meaning of section 3 of the Act. 2. Respondent was and is an employer within the meaning of the Act and the Commission has jurisdiction of the persons and the subject matter of this proceeding. 3. Other-than-serious Citation No. 2, issued to respondent April 18, 1985, should be affirmed and no penalty assessed thereon. 4. Respondent was in serious violation of the standard at 29 CFR 1918.32(b) and Serious Citation No. 1, issued to respondent April 18, 1985, should be affirmed and a penalty of $480.00 should be assessed thereon. _ORDER_ 1. Other-than-serious Citation No. 2, issued to respondent April 18, 1985, is AFFIRMED and no penalty is assessed thereon. 2. Serious Citation No. 1, issued to respondent April 18, 1985, is AFFIRMED and penalty of $480.00 is ASSESSED. R. M. Child Judge, OSHRC Dated: November 20, 1985 FOOTNOTES: [[1/]] The citation reads: 29 CFR 1919.32(b): The edge of a hatch section or of stored cargo, more than eight (8) feet high, presented the danger of employee(s) falling and was not guarded by a safety net of adequate strength to prevent injury to falling employee(s) or other means providing equal protection: (a) Lashers working on Barge ATB #99 atop the containers were not provided with any fall protection exposing employees to a fall of 32 feet to the barge deck. Feasible means of protection are, but not limited to: 1. Modifying lashing methods to eliminate the need for employees to work on top of containers. 2. Provide means for an employee to tie off with a safety belt and lanyard while on top of containers. [[2/]] The standard reads: 29 CFR 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 or adequate strength to prevent injury to a falling employee, or by other means providing equal protection under the existing circumstances. * * *