“Docket No. 80-2369 SECRETARY OF LABOR,Complainant,v.I.T.O. CORPORATION OF AMERIPORT,Respondent.OSHRC DOCKET NO. 80-2369DECISION Before: Rowland, Chairman; Cleary, Commissioner. BY THE COMMISSION:I.T.O. Corporation of Ameriport (\”I.T.O.\”) was charged with a serious violationof the Occupational Safety and Health Act of 1970, 29 U.S.C. ?? 651-678, in that,contrary to the requirements of the standard at 29 C.F.R. ? 1918.105(a), six of itslongshoremen allegedly were not wearing hardhats while unloading cargo from the hold ofthe vessel Charlottenboro. Administrative Law Judge Mary E. Cerbone affirmed the citationand I.T.O. petitioned for review. We reverse.II.T.O. is the second largest stevedoring company in the port of Philadelphia, employingfrom 200 to 600 employees daily. I.T.O. was engaged in unloading the vessel Charlottenboroat I.T.O.’s Tioga Marine Terminal on February 1, 1980, when its operations were inspectedby Occupational Safety and Health Administration (\”OSHA\”) compliance officersSullivan and Leedom. After observing longshoring \”gangs\” in hatches nos. 1 and 3of the Charlottenboro and seeing nothing amiss, Sullivan and Leedom checked hatch no. 5.There they observed longshoremen loading cartons onto pallets and guiding the pallets asthey were lifted in and out through the hatch by crane. Each loaded pallet containedforty- five cartons of frozen fish. The hatch opening was 8 by 10 feet or 10 by 10 feet,and the pallets were about 4 by 6 feet.Compliance officer Sullivan, who went into the hatch, testified that there were sixlongshoremen in the hatch including the gang foreman, Collins, none of whom was wearing ahardhat. Collins, however, testified that there were thirteen longshoremen includinghimself 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 had arrived in the hatchonly a few minutes before Sullivan and had not noticed that two employees were withouthardhats until Sullivan pointed them out to him. He then told them to get their hardhats,which they had left in their cars. Sullivan acknowledged that, of the 200 I.T.O. employeesworking in the terminal that day, he saw only six not wearing hardhats.OSHA issued a citation to I.T.O. charging it with a serious violation of the longshoringstandard 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 Safety Requirements forIndustrial Head Protection Z89.1(1969): a) In Motor Vessel Charlottenboro, Number five hold six employees not wearing headprotection while working in the square of the hatch, subjecting the employees to beingstruck by falling objects 29 C.F.R. ? 1918.105(a) states: \”Employees shall beprotected by protective hats meeting the specifications contained in the American NationalSafety Requirements for Industrial Read Protection, Z89.1 (1969).\” OSHA proposed apenalty of $700, which it later reduced to $350.At the subsequent hearing, I.T.O. presented extensive evidence concerning its safetyprogram on use of hardhats. I.T.O.’s safety policy includes the following provision onhead protection:Head ProtectionWhen there is a danger of objects falling on the head, Head Protection is needed.Longshoremen working on the ship or pier are expected to wear Safety Hats. These hats mustmeet the American National Standard Z89.1 (1969).Here the hat normally considered is a rigid helmet which will resist penetration andcushion impact. It also has resistance to electric shock and burn. Metal hats are notproper.Lump Caps do not meet the standard and only serve the limited purpose their name implies.The waterfront activity where they might be of value would be driving care on or offships.The Philadelphia Marine Trade Association, of which I.T.O. is a member, was a party to a1976 industry-wide labor-management policy statement on hardhats, which provided asfollows:Re: Union-Management Joint Program for Compliance with OSHA Hardhat RegulationTO: ALL LONGSHORE EMPLOYEES ON THE EAST AND GULF COASTS OF THE UNITED STATESWe are writing to you to urge your compliance with the Federal Safety Act (OSHA) which wasenacted for your safety and protection.In some port areas parts of the OSHA Act are being ignored by employees. This has resultedin injuries to the employees involved and has caused serious problems dealing with theenforcement of the Safety Act.Specifically, the Federal Act required the wearing of hard hate where there are hazards ofhead injuries. In some ports employees have refused to wear hard hats which have beensupplied to them by their employers. The law places responsibilities on both the employerand the employee with respect to the wearing of hard hats. It is essential, therefore,that there be full compliance with this Federal Regulation in all port areas on a nationalbasis.Accordingly, we wish to advise you that a national program has been agreed to by bothmanagement and labor on the East, Gulf and West Coasts of the United States to implementthe Federal Regulations regarding the wearing of hard hats and to establish fullcompliance with those regulations.Under the new program all employees working on marine terminals and vessels will berequired to wear hard hats at all times except employees employed in the following areasand employees engaged in the operation of 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 andcafeterias to work on a marine terminal or aboard a vessel they must wear their hard hats.This new program will be started as of January 1, 1976. After that date, employees who donot comply with the Federal Regulations and this national program by wearing hard hatswhere required will be refused employment until they comply with the Federal Safety Act.I.T.O. uses a number of means to communicate its hardhat policy to its employees. I.T.O.maintains a tape-recorded telephone message that its longshoremen call in order toascertain their work assignments. Since 1972 or earlier, I.T.O. has included a statementat the beginning of the recording that I.T.O. requires all employees engaged in dock orterminal operations to wear hardhats, that this requirement is strictly enforced, and thatanyone failing to comply will not be allowed to work and will be \”checked out,\”i.e., suspended from work for the day. The trade association to which I.T.O. belongsdistributed hardhats free of charge to longshoremen in 1971 and 1975. Also, on severaloccasions starting about 1972, I.T.O. put \”envelope stuffer\” messages in itsemployees’ pay envelopes informing employees that they must wear hardhats on the job. WhenI.T.O. began operating the Tioga Terminal in 1975, it put signs at the terminal’s gatesand within the terminal stating that the terminal is a hardhat area.I.T.O. put more emphasis on its hardhat rule beginning in 1979. On September 6, 1979,I.T.O. Vice-President Castagnola issued a memo to the heads of its various departmentsincluding the Terminal Department stating that I.T.O. had been fined by OSHA more thanonce for violating the hardhat standard, that I.T.O.’s numerous requests that hardhats beworn had been largely ignored. and that compliance was essential. Therefore, as ofSeptember 10, all I.T.O. employees engaged in longshore or terminal operations wererequired to wear hardhats and anyone not complying would not be allowed to work and wouldbe \”checked out.\” On the same date Castagnola sent another memo concerning thehardhat rule to I.T.O. superintendents stating in part that \”in contrast to some ofour past efforts, this is a definite and serious attempt to attain compliance….\” OnSeptember 21, 1979, I.T.O.’s Tioga Terminal manager sent a letter to I.T.O.’s safetysupervisor, Keene, stating that I.T.O. was engaged in a concerted effort to obtain fullcompliance with the hardhat rule and asking that Keene instruct employees to wear theirhardhats in the terminal. Keene holds safety meetings for supervisors at least once amonth, at which I.T.O.’s rule on hardhats is discussed.Collins himself stated that I.T.O.’s hardhat policy was to \”have the hats at alltimes while you’re on the pier, on the terminal, on the ship.\” He said that over thefourteen years that he had been a gang foreman he had often seen men not wearing hardhats;he had told them to get their hats and they had done so. Collins indicated that employeesoften \”conveniently forgot\” their hardhats in their cars, knowing that theirgang foreman will send then back to retrieve their hardhats and they could thereby avoid afew minutes of work. In January 1980, Collins \”checked out\” for the day hisassistant gang foreman, Delahaney, because Delahaney left his hardhat at home and refusedCollins’ instructions to get an extra hardhat from the \”mechanic’s shift.\”Collins testified that the \”company was hollering because the guys were forgettingtheir hats. \”Vice-President Castagnola testified that a checker at I.T.O.’s Broadway Terminal inCamden, New Jersey, reported for work without his hardhat on February 23, 1980, refusedinstructions to get it, and was \”not hired\” or \”checked out.\”Castagnola stated that before September 1979, the port community, including I.T.O., madenumerous attempts to enforce the wearing of hardhats, but the programs started off welland then deteriorated. Until the September 1979 hardhat memos were issued, I.T.O. enforcedthe hardhat requirement by telling and encouraging the men to wear hardhats, telling themwhy they had to wear hardhats, and, to a certain extent, threatening to dismiss those whodid 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 and where theyweren’t succeeding, we kept getting stronger and stronger in our terms and consequence forfailure to conform.\” He stated that compliance with the hardhat rule had improvedgreatly since he issued the September 1979 memos. Castagnola also visits the piers andships and sees what is going on. If he sees a man not wearing his hardhat, Castagnola\”raises hell\” with the supervisor, even if the man immediately puts on hishardhat. If individuals continue not to wear their hardhats, supervisors are told to\”check them out.\” I.T.O. chief stevedore superintendent Baston testified that ifhe sees a longshoremen not 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 they carry outthe rule. Baston added that I.T.O. requires all ship foremen and gang foremen, such asCollins, to set an example by wearing hardhats.Union business agent Anderson testified that the union’s position is that all men are towear hardhats and it does not oppose I.T.O. sending an employee home for the day if herefuses to wear a hardhat. He also stated that the union would not authorize a strike orwork stoppage over an employee being disciplined for not wearing a hardhat.II Judge Cerbone affirmed the citation and imposed a penalty of $350. She credited thetestimony of Sullivan that six employees, including gang foreman Collins, were not wearinghardhats, and discredited Collins’ contrary testimony because he was responsible forassuring that the employees wore hardhats and \”his interest in the result of thetrial must be considered….\” The judge also found employee access to the hazard andimputed to I.T.O. gang foreman Collins’ knowledge that the employees were not wearinghardhats. The judge held that I.T.O.’s hardhat rule was ineffective, stating:\”Respondent’s argument that it has done all it feasibly can to achieve compliancewith the standard is also negated by the very fact that the programs instituted haveachieved a large measure of compliance in the wearing of hardhats.\” The judge alsofound that \”there was no cogent showing\” that I.T.O. believed that employeeswould engage in strikes or walkouts if I.T.O. attempted to enforce the standard.IIIOn review, I.T.O. takes issue with the judge’s finding that additional efforts wererequired of I.T.O. to secure compliance with its hardhat rule while failing to specifywhat those additional efforts are. I.T.O. also contends that under Atlantic & GulfStevedores, Inc. v. OSHRC., 534 F.2d 541 (3d Cir. 1976), I.T.O. can be held liable for aviolation resulting from employee misconduct only when demonstrably feasible measuresexist for materially reducing the incidence of such misconduct, and I.T.O. asserts it hastaken all the measures that the court said it should take in Atlantic & Gulf otherthan seeking a variance: it has bargained for the right to discharge or disciplinenoncomplying employees and has discharged or disciplined employees who violated thehardhat rule or has threatened to do so. I.T.O. also maintains that the failure to wearhardhats in this case was idiosyncratic, unpreventable employee misconduct. I.T.O. alsocontends that the judge’s crediting of Sullivan’s testimony over that of Collins waserroneous and that the Secretary is bound by Collins’ testimony, because he was theSecretary’s witness.The Secretary argues that the Commission should affirm the citation because, evenaccording to Collins’ testimony, two employees did not have hardhats with them on thevessel and Collins could have prevented the violation by checking that these employees hadhead protection when they started work. The Secretary further asserts that the fact thatan entire six-man crew, including the foreman, would work without hardhats shows that theemployees did not regard the possibility of detection and discipline to be very serious.The Secretary notes that employees seen without hardhats received only verbal reprimandsand were not disciplined unless they refused instructions to get their hardhats. TheSecretary contends that I.T.O. failed to adequately supervise its foremen to insure thatthey were complying with the hardhat rule and were requiring the employees in their gangsto do likewise.IV In view of the basis for our decision we need not decide whether Judge Cerbone erred inholding that the Secretary was not bound by Collins’ testimony and in crediting Sullivan’stestimony. If Collins’ testimony is correct that he was wearing a hardhat and that, havingjust arrived in the hatch, he had not yet noticed that two employees were without hardhatsuntil Sullivan pointed them out, then he had no actual knowledge of the violation. He alsowould have had no opportunity to detect the violation. In this regard, Collins testifiedthat he ordered the two employees to go get their hardhats upon Sullivan’s pointing themout. Under these circumstances, Collins would have no knowledge that can be imputed toI.T.O. Thus, if we were to credit Collins’ testimony, the citation must be vacated forlack of knowledge that can be imputed to I.T.O.On the other hand, if Sullivan’s testimony is correct that six employees in the hatch,including Collins, were not wearing hardhats, then the judge correctly held that, as asupervisor, Collins’ knowledge of violative conduct could be imputed to I.T.O. However,the judge erred in finding 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 can affirmativelydemonstrate that a supervisory employee’s misconduct could not have been prevented. Inparticular, the employer must demonstrate that it effectively communicated its workrulerequiring the wearing of hardhats to employees and that the rule was effectively enforcedthrough supervision adequate to detect failures to comply and discipline sufficient todiscourage 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 Electrical Contractor, Inc., 78 OSAHRC 50\/E1, 6 BNA OSHC 1675, 1978 CCH OSHD?22,805 (No. 3069, 1978).[[*\/]] The Secretary concedes, in his brief on review, thatI.T.O.’s workrule effectively implemented the requirements of the hardhat standard andthat I.T.O. effectively communicated this workrule. Thus, the remaining question iswhether I.T.O. effectively enforced its hardhat rule.Out of the 200 I.T.O. employees present at the time of the inspection, compliance officerSullivan saw only six who were not wearing hardhats. Additionally, the evidence shows thatI.T.O. forcefully implemented a program to effect a hardhat rule as evidenced by I.T.O.’smemos concerning the use of hardhats and the testimony by I.T.O. Vice-PresidentCastagnola. Castagnola and I.T.O. chief stevedore superintendent Baston monitoredcompliance with I.T.O.’s hardhat rule and reprimanded supervisors and gang foremen if anyof their men were not wearing a hardhat. Longshoremen who started work without hardhatswere sent back to their cars to retrieve their hardhats. Employees who refused to wearhardhats were \”checked out\” for the day. We do not agree that the high degree ofcompliance with the hardhat rule that I.T.O. has accomplished negates I.T.O.’s argumentthat it has done all it feasibly could to achieve compliance. There is no evidence of whatadditional measures I.T.O. could have taken. We, therefore, conclude that any failure ofCollins and five members of his gang to wear hardhats at the time of the inspection wasunpreventable and that I.T.O. therefore succeeded in rebutting the Secretary’s evidenceconcerning knowledge of the violative conduct. See Daniel Construction Co. of Alabama, 81OSAHRC 71\/A2, 9 BNA OSHC 2002, 1981 CCH OSHD ? 25,553 (No. 13874, 1981).Accordingly, under either view of the testimony, the Secretary has failed to establishknowledge of the violation on the part of I.T.O., an essential element of his proof. We,therefore, vacate the citation and penalty.SO ORDERED.FOR THE COMMISSIONDated: 6\/13\/83Ray H. Darling, Jr.Executive Secretary\u00a0The Administrative Law Judge decision in this matter is unavailable in this format. Toobtain a copy of this document, please request one from our Public Information Office Bye-mail ( [email protected] ), telephone(202-606-5398), fax (202-606-5050), or TTY (202-606-5386).FOOTNOTES: [[*\/]] Chairman Rowland notes that Commission precedent permits an employer to rebut theSecretary’s showing of knowledge based on imputation of the actions of a supervisoryemployee by showing that the employer both communicated and enforced a workrule pertainingto the conduct in issue. Since I.T.O. satisfied its burden under Commission precedent,Chairman Rowland does not find it necessary to consider whether that precedent is correctinsofar as it imposes on the employer a duty to enforce as well as communicate workrulesto non-supervisory employees. 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 supervisory employees, see ChairmanRowland’s opinion in Farthing & Weidman, Inc., 82 OSAHRC 75\/A2, 11 BNA OSHC 1069, 1983CCH OSHD ? 26,389 (No. 78-5366, 1982).”