“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 citationand complaint as to serious citation No. 1. The Commission affirms theJudge’s decision affirming other-than-serious citation No. 2.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDated: February 24, 1987————————————————————————SECRETARY OF LABOR,Complainant,v.JONES WASHINGTON STEVEDORING COMPANY,Respondent.OSHRC DOCKET NO. 85-0453APPEARANCES:For the Complainant:William W. Kates, Esquire, Seattle, WashingtonFor the Respondent:Thomas S. Councell, its Safety SuperintendentFor Affected Employees:Lawrence Hansen, member of the safety council, InternationalLongshoremen 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 ReviewCommission (the commission) pursuant to section 10(c) of theOccupational Safety and Health Act of 1970, 29 U.S.C. ? 651 _et_ _seq_.,(the Act). Complainant seeks affirmance of Citation No. 1, issued torespondent April 18, 1985, charging one item of serious violation ofsection 5(a)(2) of the Act for failure to comply with the standard at 29CFR 1918.32(b)[[1\/]] Complainant also seeks affirmance of a proposedpenalty in the sum of $480.00.The matter was heard at Seattle, Washington, July 23, 1985. Notice ofthe hearing was duly given affected employees. Lawrence Hansen, anemployee and member of the International Longshoremen and WarehouseUnion 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 tocontest a Citation No. 2 also issued to the respondent on April 18,1985, charging one item of other-than-serious violation of the standardat 29 CFR 1910.180(h)(3)(v) and that to the extent the notice of contestwas interpreted to contest said Citation No. 2 it was withdrawn. (Tr.13, 20)The complainant and the respondent have submitted post hearingmemorandum of points and authorities and brief. Jurisdiction has beenadmitted 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 CFR1918.32(b)?[[2\/]]B. If the respondent was in violation as alleged, was such violationserious?C. What, if any, penalty would be appropriate?_Statement of the Facts__Uncontested Facts_:On April 10, 1985, Michael Bonkowski, a compliance officer of theOccupational Safety and Health Administration (OSHA), inspectedrespondent’s worksite. He observed six employees of respondent workingon top of containers being stowed three abreast and four tiers high onthe deck of an ocean going barge. The individual containers were 8 feetwide, 8 feet high and 35 feet long. (Tr. 26, 28, 33, 38, 39; ExhibitC-2) The top of the first tier of containers would be 8 feet above thedeck, the top of the second tier would be 16 feet above the deck, thetop of the third tier would be 24 feet above the deck and the top of thefourth tier where six employees were observed to be working at the timeof 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 ofcontainers progressed was (1) to place \”cones\” at each upper corner ofthe loaded container, (2) guide incoming containers so that the lowercorners would seat in the cones previously placed on the prior loadedcontainer on which the incoming container would rest, and (3) placingthe upper end of lashing chains at each corner of the loaded containerso that workers at the deck level could lash the container to the decksurface.At the time of the inspection no fall protection was being used by theemployees nor were any fall protection devices present. There weresafety nets in use, nor were the employees using safety belts orlanyards. (Tr. 41)Similar containers built for and owned by the Matson Lines have apermanent D-ring recessed into the top of the container inboard fromeach upper corner. Such D-rings are there to provide an anchor for thelanyard attached to the employee’s safety belt. However, other containermanufacturers do not so equip their containers and like railroad boxcars these containers move from shipper around the world to be handledby independent stevedoring companies. The containers being handled atthe 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 testifiedthat cables or straps could be fastened around the girth or width ateach end of the container providing anchor points for lanyards connectedto the safety belts of employees working at the corners. Such cables orstraps would be so constructed that they could be withdrawn after thecontainer was in place. With cones in place there is a small spaceseparating the bottom of a container from the top of the one upon whichit is placed. (Tr. 43, 55, 59) Likewise some space existed between thesides 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 mustprove by a preponderance of the evidence an employer’s noncompliancewith an applicable standard and employee exposure to the hazard createdby the violative condition. _Otis Elevator_ _Co_., 78 OSAHRC 88\/E5, 6BNA OSHC 2048, 1978 CCH OSHD ? 23,135 (No. 16057, 1978). In addition tothe foregoing, section 17(k) of the Act has been interpreted by theCommission as placing on the complainant the burden of proving that theemployer knew, or in the exercise of reasonable diligence could haveknown 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 forLongshoring.\” The standard here under consideration falls under\”Subpart D – Working Surfaces.\”Here the evidence is that six employees were exposed to the hazard offalling from the top of containers stacked on the deck of a bargethirty-two feet to the deck below. The evidence further shows thatthere 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) appliesto containers stowed on the deck of vessels. _See_ _Secretary v.Seattle Crescent Container Service_, 1979 CCH OSHD ? 24,002, OSHRCDocket 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 restedon the above proof as making out a prima facie case, leaving to therespondent the burden of establishing that safety nets were infeasibleand, if it be the case, that there were no other means of providingequal 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 complainantvolunteered and stipulated on the record that in these circumstancessafety nets were infeasible. (Tr. 49-51) The complainant as part ofits case in chief offered evidence to the effect that safety belts andlanyards tied off to cables or straps temporarily affixed to thecontainers for that purpose would be a feasible means of affording fallprotection 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 andsafety belts and lanyards tied off to an anchor point were infeasible,and (2) use of safety belts and lanyards would create a greater hazardto employees than non-use. The burden of proving each of these defensesrests with the respondent.(1)To establish an impossibility defense, the employer must prove that (a)compliance with the requirements of the cited standard would befunctionally 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. Thedefense will not be sustained of an employer shows merely thatcompliance would be difficult, inconvenient, or expensive. See, e.g.,_Lee Way Motor Freight, Inc._, 74 OSAHRC Docket No. 1105, 1974; 1 BNAOSHC 1689; 1973-74 CCH OSHD ? 17,693, affirmed 511 F.2d 864 (10thCircuit 1975)Since the complainant concedes that safety nets would here beinfeasible, respondent’s burden is restricted to that of proving thatthe alternative method of fall protection proposed by the complainant,to wit: safety belts and lanyards tied off to an anchor point would beinfeasible in that they would be functionally impossible to utilize orthat they would preclude the performance of required work.Permanent D-rings set inboard of each upper corner of the containerswould be an obvious anchor point for the lanyards of employees workingat the corners of the tops of these containers. Unfortunately,according to the evidence adduced at the hearing of this matter only theMatson Lines so equip their containers. The containers of the MatsonLine are owned and exclusively used by that line. None of thecontainers being handled by the respondent at the time of thisinspection were so equipped.The problem was pointed up by the testimony of Lawrence J. Hansen, anexperienced Longshoreman produced as a witness by the respondent. Mr.Hansen testified:\”First, I feel it unfeasible. Because there’s 2.6 million containersrunning around the world. And there seems to be no way you can policethe usage and keep these safety items up to a standard of certificationin the United States. I find that there is no world organization thatcould force the world to create some kind of safety means that isuniform. A container that we are talking about today could be in SaudiArabia in six months and following that could be in India in eightmonths. So it’s hard to police these containers.\” (Tr. 147-148)It is unfortunate that the industry has not brought pressure upon themanufacturers of containers to require installation of anchor points topermit employers working at heights to tie-off. Nonetheless, the Actrequires each employer to furnish to each employee and a place ofemployment free from recognized hazards likely to cause death or seriousphysical harm to such employees.The dereliction of the industry in facing up to solving this problemcannot relieve the individual stevedoring company of its duty to itsemployees. As the Commission said in the analogous case _S&H Riggersand Erectors, Inc_., OSHRC Docket No. 15855 (1979), 7 BNA OSHC 1260, 1263:\”… Although industry custom and practice are useful points ofreference, with respect to whether a reasonable person familiar with thecircumstances would recognize a hazard requiring the use of personalprotective equipment, they are not controlling. (Reversed 5th Circuit -1981, 659 F.2d 1273)Respondent’s witness testified to the continuing concern of longshoremenand stevedoring companies to \”coning off\” and working \”aloft oncontainers\” and the attendant hazard of falling. (Tr. 146-147, 155, 156)Complainant offered evidence that the use of safety belts and lanyardstied off to a fitting on a strap or cable — each end of the containertemporarily installed for that purpose would be feasible and wouldprovide fall protection equal to —-under the circumstances.A useful discussion of \”feasibility: as it applies to safety standardsis set forth in the recent case _Forging Industry Association v.__Secretary of Labor_ decided by the United States Circuit Court ofAppeals 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 theemployees had was \”just their own experience and knowledge\” (Tr. 78),\”their own ability to be careful.\” (Tr.134) Respondent’s operationsmanager testified that no one had\” … come up with a better solutionthan the way we do it today.\” He also acknowledged the hazard to beobvious. (Tr.173) The respondent thus justified itself taking no stepsto remove the hazard to which its employees are exposed.Having never tried the method proposed by the complainant, respondentattacks its feasibility by offering opinions as to difficulties whichmight present themselves if it were used. It is here noted that nonedifficulties appear to be insurmountable if the respondent were to applyitself to the task.Respondent urges Exhibit R-1, OSHA Instruction CPL 2-1.17 as excusingits failure to provide fall protection. It is true that document is anacknowledgment by complainant that \”To date there is no overall workablemeans to protect longshoremen in all instances of exposure.\” Nonetheless, five instances of accomplished protection are there citedby way of illustration. The Instruction reminds the respondent of itsduty under the standard and divisions of the potential of being citedwhen available means of protecting employees from falling fromcontainers are not used. The respondent availed itself of no meanswhatsoever.Respondent has failed to meet its burden or proving that the use ofsafety belts and lanyards tied-off in the manner suggested by thecomplainant would be functionally impossible or would precludeperformance 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 citedstandard are greater than those resulting from noncompliance; (b)alternative means of employee protection were either used orunavailable; 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 proposedalternative – – a girdle\/strap – – still embrace a serious trippinghazard, namely, that of a line that is behind you exerting a downward pull.\”Respondent cites us to testimony that when the employee is taking thestrap out or putting it on he would not be hooked up. (Tr. 105) Ifthis were the case it would not be a greater hazard, but the same hazardalthough not necessarily at the corner or edge of the container top. Also there is reason to believe the \”strap\” could be applied or removedwithout the necessity of having an unprotected employee on thecontainer. (Tr. 44, 103-105)The tripping hazard complained of by the respondent is that of trippingon the lanyard or the girdle\/strap or cable. (Tr. 163) It must benoted that in the event of such tripping a fall if it occurred would beno more than six feet and probably much less. Such a fall would notlikely result in serious injury whereas an unrestrained fall 32 feet tothe deck would in all probability result in serious injury or death.No evidence was presented that respondent had sought a variance from therequirements of the standard or that application for a variance would beinappropriate.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 containersstacked three abreast and four high. Each container was eight feethigh. Thus the six employees were working thirty-two feet above thedeck of this ocean going barge. The deck was metal, covered with woodenplanking. Although complainant failed to put on evidence as to theprobable consequences of such a fall it would appear to be self-evidentthat in all probability the result would be serious injury likelyinvolving broken bones and even death._Issue C_:Complainant gave due consideration to the requirements set forth in theAct in arriving at its proposed penalty and the sum of $480.00 isappropriate. (Tr. 45-49)Now, having observed the demeanor of the witnesses and having weighedthe credibility thereof, there are here entered the following:_Findings of Fact_1. Jones Washington Stevedoring Company is a corporation with officesat 7245 W. Marginal Way S.W., Seattle, Washington. (Pleadings)2. The respondent is and at all times material hereto was engaged inlongshoring operations at a worksite and place of business andemployment located aboard and in the dock side vicinity of the bargeATB#99 located at Terminal 105 in the Port of Seattle, Washington,whereby containers of cargo destined for shipment to the State of Alaskawere being loaded aboard said bridge which was then located on thenavigable waters of the Duwamish Waterway in Seattle, Washington. (Pleadings)3. At all times material hereto respondent was engaged in the use ofmaterials, machinery and other goods brought to respondent from pointsoutside the state of Washington and utilizes the mails, telephone andother facilities or interstate commerce. (Pleadings)4. Those factual statements set forth under Uncontested Facts in theStatement of the Facts portion of this decision are incorporated inthese Findings of Fact by reference.5. The standard at 29 CFR 1918.32(b) applies to the work beingperformed by respondent’s employees at the time of the inspection herein.6. Respondent’s employees working on the top of containers at the timeof the inspection were exposed to the hazard of falling thirty-two feetto the wooden plank covered metal deck below.7. The edge of the containers atop which respondent’s employees wereworking was not guarded by safety nets nor was any other means of fallprotection present.8. Respondent knew or in the exercise of reasonable diligence couldhave known of the presence of the violative condition in thatsupervisory personnel were present and respondent’s work practice andprocedure was to provide no fall protection to employees working on topof containers, but rather to rely entirely upon the individualunprotected employees exercising care and caution in their own behalf.9. Safety nets were not a feasible form of fall protection under thecircumstances prevailing at the time of the inspection herein.10. Safety belts and lanyards tied off to an anchor point to beprovided by respondent were a viable means of fall protection whichwould provide protection equal to safety nets under the circumstanceshere present.11. Safety belts and lanyards worn by employees working on top ofcontainers were a feasible form of fall protection and the lanyards wornby employees working on top of containers were a feasible form of fallprotection and the method proposed by the complainant to provide anchorpoints for the lanyards attached to the safety belts was feasible.12. The use of safety belts and lanyards tied off to anchor points tobe provided by the respondent would be functionally possible and wouldnot preclude performance of the work to be performed at the top ofcontainers.13. Lanyards tied off to an anchor point at foot level present atripping hazard, however, the hazard of possibly tripping on a lanyardor the point or device to which the lanyard is anchored is not so greatas the hazard of falling unrestrained eight feet, sixteen feet,twenty-four feet or thirty-two feet from the top of containers stackedon the wooden plank covered metal deck.14. The efforts of employees in installing lanyard anchor points in theform of removable straps or cables at either end of the containers wouldnot necessarily present a fall hazard and if it did, such a hazard wouldbe limited in duration and not greater than the hazard presented tolongshoremen guiding incoming containers, setting \”cones\” and placinglashing chains at the upper corners of the containers without thebenefit of fall protection.15. Should a worker experience an unrestrained fall thirty-two feet andstrike a wooden plank covered metal deck, there is a substantialprobability that death or serious physical harm could result.16. The sum of $480.00 is appropriate penalty to be assessed respondentfor the violation found herein._Conclusions of Law_1. Respondent was and is engaged in a business affecting commercewithin the meaning of section 3 of the Act.2. Respondent was and is an employer within the meaning of the Act andthe Commission has jurisdiction of the persons and the subject matter ofthis 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 CFR1918.32(b) and Serious Citation No. 1, issued to respondent April 18,1985, should be affirmed and a penalty of $480.00 should be assessedthereon._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, isAFFIRMED and penalty of $480.00 is ASSESSED.R. M. ChildJudge, OSHRCDated: November 20, 1985FOOTNOTES:[[1\/]] The citation reads:29 CFR 1919.32(b): The edge of a hatch section or of stored cargo, morethan eight (8) feet high, presented the danger of employee(s) fallingand was not guarded by a safety net of adequate strength to preventinjury to falling employee(s) or other means providing equal protection:(a) Lashers working on Barge ATB #99 atop the containers were notprovided with any fall protection exposing employees to a fall of 32feet to the barge deck.Feasible means of protection are, but not limited to:1. Modifying lashing methods to eliminate the need for employees towork on top of containers.2. Provide means for an employee to tie off with a safety belt andlanyard 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 feethigh is so exposed that it presents a danger of an employee falling, theedge shall be guarded by a safety net or adequate strength to preventinjury to a falling employee, or by other means providing equalprotection under the existing circumstances.* * *”