“SECRETARY OF LABOR,Complainant,v.I.T.O. CORPORATION OF AMERIPORT,Respondent.OSHRC DOCKET NO. 80-2369_DECISION_Before: Rowland, Chairman; Cleary, Commissioner.BY THE COMMISSION:I.T.O. Corporation of Ameriport (\”I.T.O.\”) was charged with a seriousviolation of the Occupational Safety and Health Act of 1970, 29 U.S.C.?? 651-678, in that, contrary to the requirements of the standard at 29C.F.R. ? 1918.105(a), six of its longshoremen allegedly were not wearinghardhats while unloading cargo from the hold of the vesselCharlottenboro. Administrative Law Judge Mary E. Cerbone affirmed thecitation and I.T.O. petitioned for review. We reverse.II.T.O. is the second largest stevedoring company in the port ofPhiladelphia, employing from 200 to 600 employees daily. I.T.O. wasengaged in unloading the vessel Charlottenboro at I.T.O.’s Tioga MarineTerminal on February 1, 1980, when its operations were inspected byOccupational Safety and Health Administration (\”OSHA\”) compliance officersSullivan and Leedom. After observing longshoring \”gangs\” in hatches nos.1 and 3 of the Charlottenboro and seeing nothing amiss, Sullivan andLeedom checked hatch no. 5. There they observed longshoremen loadingcartons onto pallets and guiding the pallets as they were lifted in andout through the hatch by crane. Each loaded pallet contained forty- fivecartons of frozen fish. The hatch opening was 8 by 10 feet or 10 by 10feet, and the pallets were about 4 by 6 feet.Compliance officer Sullivan, who went into the hatch, testified thatthere were six longshoremen in the hatch including the gang foreman,Collins, none of whom was wearing a hardhat. Collins, however, testifiedthat there were thirteen longshoremen including himself in the hatch,and that all but two of the longshoremen were wearing hardhats. Hedenied that he had not been wearing a hardhat. He stated that he hadarrived in the hatch only a few minutes before Sullivan and had notnoticed that two employees were without hardhats until Sullivan pointedthem out to him. He then told them to get their hardhats, which they hadleft in their cars. Sullivan acknowledged that, of the 200 I.T.O.employees working in the terminal that day, he saw only six not wearinghardhats.OSHA issued a citation to I.T.O. charging it with a serious violation ofthe longshoring standard at 29 C.F.R. ? 1918.105(a). The citation stated:Employee(s) were not protected by protective hat(s) meetingthe specification(s) contained in the American National Standards SafetyRequirements for Industrial Head Protection Z89.1(1969):a) In Motor Vessel Charlottenboro, Number five hold six employees notwearing head protection while working in the square of the hatch,subjecting the employees to being struck by falling objects 29 C.F.R. ?1918.105(a) states: \”Employees shall be protected by protective hatsmeeting the specifications contained in the American National SafetyRequirements for Industrial Read Protection, Z89.1 (1969).\” OSHAproposed a penalty of $700, which it later reduced to $350.At the subsequent hearing, I.T.O. presented extensive evidenceconcerning its safety program on use of hardhats. I.T.O.’s safety policyincludes the following provision on head protection:Head ProtectionWhen there is a danger of objects falling on the head, Head Protectionis needed. Longshoremen working on the ship or pier are expected to wearSafety Hats. These hats must meet the American National Standard Z89.1(1969).Here the hat normally considered is a rigid helmet which will resistpenetration and cushion impact. It also has resistance to electric shockand burn. Metal hats are not proper.Lump Caps do not meet the standard and only serve the limited purposetheir name implies. The waterfront activity where they might be of valuewould be driving care on or off ships.The Philadelphia Marine Trade Association, of which I.T.O. is a member,was a party to a 1976 industry-wide labor-management policy statement onhardhats, which provided as follows:Re: Union-Management Joint Program for Compliance with OSHA HardhatRegulationTO: ALL LONGSHORE EMPLOYEES ON THE EAST AND GULF COASTS OF THE UNITED STATESWe are writing to you to urge your compliance with the Federal SafetyAct (OSHA) which was enacted for your safety and protection.In some port areas parts of the OSHA Act are being ignored by employees.This has resulted in injuries to the employees involved and has causedserious problems dealing with the enforcement of the Safety Act.Specifically, the Federal Act required the wearing of hard hate wherethere are hazards of head injuries. In some ports employees have refusedto wear hard hats which have been supplied to them by their employers.The law places responsibilities on both the employer and the employeewith respect to the wearing of hard hats. It is essential, therefore,that there be full compliance with this Federal Regulation in all portareas on a national basis.Accordingly, we wish to advise you that a national program has beenagreed to by both management and labor on the East, Gulf and West Coastsof the United States to implement the Federal Regulations regarding thewearing of hard hats and to establish full compliance with thoseregulations.Under the new program all employees working on marine terminals andvessels will be required to wear hard hats at all times except employeesemployed in the following areas and employees engaged in the operationof the following equipment:a. Offices on piers or marine terminals;b. Rest rooms and cafeterias;c. Cranes with enclosed cabs;d. Vehicles with adequate overhead protection.Please note that when employees leave the above cranes, vehicles,offices, rest rooms and cafeterias to work on a marine terminal oraboard a vessel they must wear their hard hats.This new program will be started as of January 1, 1976. After that date,employees who do not comply with the Federal Regulations and thisnational program by wearing hard hats where required will be refusedemployment until they comply with the Federal Safety Act.I.T.O. uses a number of means to communicate its hardhat policy to itsemployees. I.T.O. maintains a tape-recorded telephone message that itslongshoremen call in order to ascertain their work assignments. Since1972 or earlier, I.T.O. has included a statement at the beginning of therecording that I.T.O. requires all employees engaged in dock or terminaloperations to wear hardhats, that this requirement is strictly enforced,and that anyone failing to comply will not be allowed to work and willbe \”checked out,\” i.e., suspended from work for the day. The tradeassociation to which I.T.O. belongs distributed hardhats free of chargeto longshoremen in 1971 and 1975. Also, on several occasions startingabout 1972, I.T.O. put \”envelope stuffer\” messages in its employees’ payenvelopes informing employees that they must wear hardhats on the job.When I.T.O. began operating the Tioga Terminal in 1975, it put signs atthe terminal’s gates and within the terminal stating that the terminalis a hardhat area.I.T.O. put more emphasis on its hardhat rule beginning in 1979. OnSeptember 6, 1979, I.T.O. Vice-President Castagnola issued a memo to theheads of its various departments including the Terminal Departmentstating that I.T.O. had been fined by OSHA more than once for violatingthe hardhat standard, that I.T.O.’s numerous requests that hardhats beworn had been largely ignored. and that compliance was essential.Therefore, as of September 10, all I.T.O. employees engaged in longshoreor terminal operations were required to wear hardhats and anyone notcomplying would not be allowed to work and would be \”checked out.\” Onthe same date Castagnola sent another memo concerning the hardhat ruleto I.T.O. superintendents stating in part that \”in contrast to some ofour past efforts, this is a definite and serious attempt to attaincompliance….\” On September 21, 1979, I.T.O.’s Tioga Terminal managersent a letter to I.T.O.’s safety supervisor, Keene, stating that I.T.O.was engaged in a concerted effort to obtain full compliance with thehardhat rule and asking that Keene instruct employees to wear theirhardhats in the terminal. Keene holds safety meetings for supervisors atleast once a month, at which I.T.O.’s rule on hardhats is discussed.Collins himself stated that I.T.O.’s hardhat policy was to \”have thehats at all times while you’re on the pier, on the terminal, on theship.\” He said that over the fourteen years that he had been a gangforeman he had often seen men not wearing hardhats; he had told them toget their hats and they had done so. Collins indicated that employeesoften \”conveniently forgot\” their hardhats in their cars, knowing thattheir gang foreman will send then back to retrieve their hardhats andthey could thereby avoid a few minutes of work. In January 1980, Collins\”checked out\” for the day his assistant gang foreman, Delahaney, becauseDelahaney left his hardhat at home and refused Collins’ instructions toget an extra hardhat from the \”mechanic’s shift.\” Collins testified thatthe \”company was hollering because the guys were forgetting their hats. \”Vice-President Castagnola testified that a checker at I.T.O.’s BroadwayTerminal in Camden, New Jersey, reported for work without his hardhat onFebruary 23, 1980, refused instructions to get it, and was \”not hired\”or \”checked out.\” Castagnola stated that before September 1979, the portcommunity, including I.T.O., made numerous attempts to enforce thewearing of hardhats, but the programs started off well and thendeteriorated. Until the September 1979 hardhat memos were issued, I.T.O.enforced the hardhat requirement by telling and encouraging the men towear hardhats, telling them why they had to wear hardhats, and, to acertain extent, threatening to dismiss those who did not comply. I.T.O.took more severe action after the memos were issued, according toCastagnola; I.T.O. tried \”a number of ways to get the laws enforced andwhere they weren’t succeeding, we kept getting stronger and stronger inour terms and consequence for failure to conform.\” He stated thatcompliance with the hardhat rule had improved greatly since he issuedthe September 1979 memos. Castagnola also visits the piers and ships andsees what is going on. If he sees a man not wearing his hardhat,Castagnola \”raises hell\” with the supervisor, even if the manimmediately puts on his hardhat. If individuals continue not to weartheir hardhats, supervisors are told to \”check them out.\” I.T.O. chiefstevedore superintendent Baston testified that if he sees a longshoremennot wearing a hardhat, he tells the man to get his hardhat and then\”gets after\” the ship foremen and the gang foremen to see that theycarry out the rule. Baston added that I.T.O. requires all ship foremenand gang foremen, such as Collins, to set an example by wearing hardhats.Union business agent Anderson testified that the union’s position isthat all men are to wear hardhats and it does not oppose I.T.O. sendingan employee home for the day if he refuses to wear a hardhat. He alsostated that the union would not authorize a strike or work stoppage overan employee being disciplined for not wearing a hardhat.IIJudge Cerbone affirmed the citation and imposed a penalty of $350. Shecredited the testimony of Sullivan that six employees, including gangforeman Collins, were not wearing hardhats, and discredited Collins’contrary testimony because he was responsible for assuring that theemployees wore hardhats and \”his interest in the result of the trialmust be considered….\” The judge also found employee access to thehazard and imputed to I.T.O. gang foreman Collins’ knowledge that theemployees were not wearing hardhats. The judge held that I.T.O.’shardhat rule was ineffective, stating: \”Respondent’s argument that ithas done all it feasibly can to achieve compliance with the standard isalso negated by the very fact that the programs instituted have achieveda large measure of compliance in the wearing of hardhats.\” The judgealso found that \”there was no cogent showing\” that I.T.O. believed thatemployees would engage in strikes or walkouts if I.T.O. attempted toenforce the standard.IIIOn review, I.T.O. takes issue with the judge’s finding that additionalefforts were required of I.T.O. to secure compliance with its hardhatrule while failing to specify what those additional efforts are. I.T.O.also contends that under Atlantic & Gulf Stevedores, Inc. v. OSHRC., 534F.2d 541 (3d Cir. 1976), I.T.O. can be held liable for a violationresulting from employee misconduct only when demonstrably feasiblemeasures exist for materially reducing the incidence of such misconduct,and I.T.O. asserts it has taken all the measures that the court said itshould take in Atlantic & Gulf other than seeking a variance: it hasbargained for the right to discharge or discipline noncomplyingemployees and has discharged or disciplined employees who violated thehardhat rule or has threatened to do so. I.T.O. also maintains that thefailure to wear hardhats in this case was idiosyncratic, unpreventableemployee misconduct. I.T.O. also contends that the judge’s crediting ofSullivan’s testimony over that of Collins was erroneous and that theSecretary is bound by Collins’ testimony, because he was the Secretary’switness.The Secretary argues that the Commission should affirm the citationbecause, even according to Collins’ testimony, two employees did nothave hardhats with them on the vessel and Collins could have preventedthe violation by checking that these employees had head protection whenthey started work. The Secretary further asserts that the fact that anentire six-man crew, including the foreman, would work without hardhatsshows that the employees did not regard the possibility of detection anddiscipline to be very serious. The Secretary notes that employees seenwithout hardhats received only verbal reprimands and were notdisciplined unless they refused instructions to get their hardhats. TheSecretary contends that I.T.O. failed to adequately supervise itsforemen to insure that they were complying with the hardhat rule andwere requiring the employees in their gangs to do likewise.IVIn view of the basis for our decision we need not decide whether JudgeCerbone erred in holding that the Secretary was not bound by Collins’testimony and in crediting Sullivan’s testimony. If Collins’ testimonyis correct that he was wearing a hardhat and that, having just arrivedin the hatch, he had not yet noticed that two employees were withouthardhats until Sullivan pointed them out, then he had no actualknowledge of the violation. He also would have had no opportunity todetect the violation. In this regard, Collins testified that he orderedthe two employees to go get their hardhats upon Sullivan’s pointing themout. Under these circumstances, Collins would have no knowledge that canbe imputed to I.T.O. Thus, if we were to credit Collins’ testimony, thecitation must be vacated for lack of knowledge that can be imputed to I.T.O.On the other hand, if Sullivan’s testimony is correct that six employeesin the hatch, including Collins, were not wearing hardhats, then thejudge correctly held that, as a supervisor, Collins’ knowledge ofviolative conduct could be imputed to I.T.O. However, the judge erred infinding that I.T.O. did not successfully rebut the prima facieimputation of knowledge in this case. We find that it did.To rebut the prima facie imputation of knowledge, an employer canaffirmatively demonstrate that a supervisory employee’s misconduct couldnot have been prevented. In particular, the employer must demonstratethat it effectively communicated its workrule requiring the wearing ofhardhats to employees and that the rule was effectively enforced throughsupervision adequate to detect failures to comply and disciplinesufficient to discourage violations. H.E. Wiese, Inc., 82 OSAHRC 18\/A2,10 BNA OSHC 1499, 1982 CCH OSHD ?25,985 (Nos. 78-204 & 78-205, 1982),aff’d, No. 82-4202 (5th Cir. Apr. 27, 1983); Floyd S. Pike ElectricalContractor, Inc., 78 OSAHRC 50\/E1, 6 BNA OSHC 1675, 1978 CCH OSHD?22,805 (No. 3069, 1978).[[*\/]] The Secretary concedes, in his brief onreview, that I.T.O.’s workrule effectively implemented the requirementsof the hardhat standard and that I.T.O. effectively communicated thisworkrule. Thus, the remaining question is whether I.T.O. effectivelyenforced its hardhat rule.Out of the 200 I.T.O. employees present at the time of the inspection,compliance officer Sullivan saw only six who were not wearing hardhats.Additionally, the evidence shows that I.T.O. forcefully implemented aprogram to effect a hardhat rule as evidenced by I.T.O.’s memosconcerning the use of hardhats and the testimony by I.T.O.Vice-President Castagnola. Castagnola and I.T.O. chief stevedoresuperintendent Baston monitored compliance with I.T.O.’s hardhat ruleand reprimanded supervisors and gang foremen if any of their men werenot wearing a hardhat. Longshoremen who started work without hardhatswere sent back to their cars to retrieve their hardhats. Employees whorefused to wear hardhats were \”checked out\” for the day. We do not agreethat the high degree of compliance with the hardhat rule that I.T.O. hasaccomplished negates I.T.O.’s argument that it has done all it feasiblycould to achieve compliance. There is no evidence of what additionalmeasures I.T.O. could have taken. We, therefore, conclude that anyfailure of Collins and five members of his gang to wear hardhats at thetime of the inspection was unpreventable and that I.T.O. thereforesucceeded in rebutting the Secretary’s evidence concerning knowledge ofthe violative conduct. See Daniel Construction Co. of Alabama, 81 OSAHRC71\/A2, 9 BNA OSHC 2002, 1981 CCH OSHD ? 25,553 (No. 13874, 1981).Accordingly, under either view of the testimony, the Secretary hasfailed to establish knowledge of the violation on the part of I.T.O., anessential element of his proof. We, therefore, vacate the citation andpenalty.SO ORDERED.FOR THE COMMISSIONDated: 6\/13\/83Ray H. Darling, Jr.Executive Secretary ————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office By e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[*\/]] Chairman Rowland notes that Commission precedent permits anemployer to rebut the Secretary’s showing of knowledge based onimputation of the actions of a supervisory employee by showing that theemployer both communicated and enforced a workrule pertaining to theconduct in issue. Since I.T.O. satisfied its burden under Commissionprecedent, Chairman Rowland does not find it necessary to considerwhether that precedent is correct insofar as it imposes on the employera duty to enforce as well as communicate workrules to non-supervisoryemployees. See H.E. Weise, Inc., 10 BNA OSHC at 1508 n.8, 1982 CCH OSHDat p. 32,617 n.8 (dissenting opinion). With respect to supervisoryemployees, see Chairman Rowland’s opinion in Farthing & Weidman, Inc.,82 OSAHRC 75\/A2, 11 BNA OSHC 1069, 1983 CCH OSHD ? 26,389 (No. 78-5366,1982).”