“Docket No. 85-0453 SECRETARY OF LABOR, Complainant, v. JONES WASHINGTON STEVEDORING CO., Respondent.OSHRC DOCKET NO. 85-0453ORDERThe Commission grants the Secretary’s motion towithdraw the citation and complaint as to serious citation No. 1.\u00a0 The Commissionaffirms the Judge’s decision affirming other-than-serious citation No. 2.FOR THE COMMISSIONRay H. Darling, Jr. Executive SecretaryDated:\u00a0 February 24, 1987SECRETARY OF LABOR, Complainant, v. JONES WASHINGTON STEVEDORING COMPANY, Respondent.OSHRC DOCKET NO. 85-0453APPEARANCES: 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 WarehouseUnion, Local 19, appearing on his own behalfDECISION AND ORDERChild, Judge, OSHRC:Statement of the CaseThis matter is before the Occupational Safety and Health Review Commission (thecommission) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970,29 U.S.C. ? 651 et seq., (the Act).\u00a0 Complainant seeks affirmance ofCitation No. 1, issued to respondent April 18, 1985, charging one item of seriousviolation of section 5(a)(2) of the Act for failure to comply with the standard at 29 CFR1918.32(b)[[1\/]]\u00a0 Complainant also seeks affirmance of a proposed penalty in the sumof $480.00.The matter was heard at Seattle, Washington, July 23,1985.\u00a0 Notice of the hearing was duly given affected employees. \u00a0 LawrenceHansen, an employee and member of the International Longshoremen and Warehouse Union Local19 and its safety council appeared on his own behalf. (Tr. 6-10)It was stipulated at the hearing that respondent didnot 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 CFR1910.180(h)(3)(v) and that to the extent the notice of contest was interpreted to contestsaid Citation No. 2 it was withdrawn.\u00a0 (Tr. 13, 20)The complainant and the respondent have submittedpost hearing memorandum of points and authorities and brief.\u00a0 Jurisdiction has beenadmitted and is not an issue. (Pleadings)The Issues:The issues to be determined are:A.\u00a0 Was the respondent in violation of the standard at 29 CFR 1918.32(b)?[[2\/]]B.\u00a0 If the respondent was in violation as alleged, was such violation serious?C.\u00a0 What, if any, penalty would be appropriate?Statement of the FactsUncontested Facts:On April 10, 1985, Michael Bonkowski, a compliance officer of the Occupational Safety andHealth Administration (OSHA), inspected respondent’s worksite.\u00a0 He observed sixemployees of respondent working on top of containers being stowed three abreast and fourtiers high on the deck of an ocean going barge.\u00a0 The individual containers were 8feet wide, 8 feet high and 35 feet long. (Tr. 26, 28, 33, 38, 39; Exhibit C-2) The top ofthe first tier of containers would be 8 feet above the deck, the top of the second tierwould be 16 feet above the deck, the top of the third tier would be 24 feet above the deckand the top of the fourth tier where six employees were observed to be working at the timeof the inspection would be thirty-two feet above the deck.\u00a0 (Tr. 40)The work performed by workers at the top of each tieras the loading of containers progressed was (1) to place \”cones\” at each uppercorner of the loaded container, (2) guide incoming containers so that the lower cornerswould seat in the cones previously placed on the prior loaded container on which theincoming container would rest, and (3) placing the upper end of lashing chains at eachcorner of the loaded container so that workers at the deck level could lash the containerto the deck surface.At the time of the inspection no fall protection wasbeing used by the employees nor were any fall protection devices present.\u00a0 There weresafety nets in use, nor were the employees using safety belts or lanyards. (Tr. 41)Similar containers built for and owned by the MatsonLines have a permanent D-ring recessed into the top of the container inboard from eachupper corner.\u00a0 Such D-rings are there to provide an anchor for the lanyard attachedto the employee’s safety belt. However, other container manufacturers do not so equiptheir containers and like railroad box cars these containers move from shipper around theworld to be handled by independent stevedoring companies.\u00a0 The containers beinghandled at the time of the inspection were not equipped with D-rings.\u00a0 (Tr. 42, 44,56, 147, 148)Contested Facts:In the absence of D-ring anchor points the compliance officer testified that cables orstraps could be fastened around the girth or width at each end of the container providinganchor points for lanyards connected to the safety belts of employees working at thecorners.\u00a0 Such cables or straps would be so constructed that they could be withdrawnafter the container was in place.\u00a0 With cones in place there is a small spaceseparating the bottom of a container from the top of the one upon which it is placed.\u00a0 (Tr. 43, 55, 59) Likewise some space existed between the sides of the stackedcontainers.\u00a0 (Tr. 60)DiscussionIssue A:Was the respondent in violation of the standard at 29CFR 1918.32(b)?To prove a violation of section 5(a)(2) of the Actthe Complainant must prove by a preponderance of the evidence an employer’s noncompliancewith an applicable standard and employee exposure to the hazard created by the violativecondition.\u00a0 Otis Elevator Co., 78 OSAHRC 88\/E5, 6 BNA OSHC 2048, 1978CCH OSHD ? 23,135 (No. 16057, 1978).\u00a0 In addition to the foregoing, section 17(k) ofthe Act has been interpreted by the Commission as placing on the complainant the burden ofproving that the employer knew, or in the exercise of reasonable diligence could haveknown of the presence of the violative condition.\u00a0 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 andHealth Regulations for Longshoring.\”\u00a0 The standard here under considerationfalls under \”Subpart D – Working Surfaces.\”Here the evidence is that six employees were exposedto the hazard of falling from the top of containers stacked on the deck of a bargethirty-two feet to the deck below.\u00a0 The evidence further shows that there was no fallprotection present to prevent such falls. Specifically, no safety nets were present. The Commission has held that the standard at 29 CFR1918.32(b) applies to containers stowed on the deck of vessels.\u00a0 See Secretaryv. Seattle Crescent Container Service, 1979 CCH OSHD ? 24,002, OSHRC Docket No.15242-1979.\u00a0 Also Secretary v. Chesapeake Operating Co., 1982 CCH OSHD? 26,142, OSHRC Docket No. 78-1353-1982.In the ordinary scheme of things the complainantmight well have rested on the above proof as making out a prima facie case, leaving to therespondent the burden of establishing that safety nets were infeasible and, if it be thecase, that there were no other means of providing equal protection under the existingcircumstances.\u00a0 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, thecomplainant volunteered and stipulated on the record that in these circumstances safetynets were infeasible.\u00a0 (Tr. 49-51)\u00a0 The complainant as part of its case in chiefoffered evidence to the effect that safety belts and lanyards tied off to cables or strapstemporarily affixed to the containers for that purpose would be a feasible means ofaffording fall protection which would be equal to safety nets. To the citation respondent raises the affirmativedefenses:\u00a0 (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 ofsafety belts and lanyards would create a greater hazard to employees than non-use.\u00a0The burden of proving each of these defenses rests with the respondent.(1)To establish an impossibility defense, the employermust 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.\u00a0 See M.J. LeeConstruction Co., 7 BNA OSHC 1140, 1144; 1979 CCH OSHD ? 23,330, OSAHRC Docket No.15094, 1979, and cases there cited.\u00a0 The defense will not be sustained of an employershows merely that compliance would be difficult, inconvenient, or expensive.\u00a0 See,e.g., Lee Way Motor Freight, Inc., 74 OSAHRC Docket No. 1105, 1974; 1 BNA OSHC1689; 1973-74 CCH OSHD ? 17,693, affirmed 511 F.2d 864 (10th Circuit 1975)Since the complainant concedes that safety nets wouldhere be infeasible, respondent’s burden is restricted to that of proving that thealternative method of fall protection proposed by the complainant, to wit:\u00a0 safetybelts and lanyards tied off to an anchor point would be infeasible in that they would befunctionally impossible to utilize or that they would preclude the performance of requiredwork.Permanent D-rings set inboard of each upper corner ofthe containers would be an obvious anchor point for the lanyards of employees working atthe corners of the tops of these containers.\u00a0 Unfortunately, according to theevidence adduced at the hearing of this matter only the Matson Lines so equip theircontainers.\u00a0 The containers of the Matson Line are owned and exclusively used by thatline.\u00a0 None of the containers being handled by the respondent at the time of thisinspection were so equipped.The problem was pointed up by the testimony ofLawrence J. Hansen, an experienced Longshoreman produced as a witness by the respondent.\u00a0 Mr. Hansen testified:\”First, I feel it unfeasible.\u00a0 Becausethere’s 2.6 million containers running around the world.\u00a0 And there seems to be noway you can police the usage and keep these safety items up to a standard of certificationin the United States.\u00a0 I find that there is no world organization that could forcethe world to create some kind of safety means that is uniform.\u00a0 A container that weare talking about today could be in Saudi Arabia in six months and following that could bein India in eight months.\u00a0 So it’s hard to police these containers.\”\u00a0 (Tr.147-148)It is unfortunate that the industry has not broughtpressure upon the manufacturers of containers to require installation of anchor points topermit employers working at heights to tie-off.\u00a0 Nonetheless, the Act requires eachemployer to furnish to each employee and a place of employment free from recognizedhazards likely to cause death or serious physical harm to such employees.The dereliction of the industry in facing up tosolving this problem cannot relieve the individual stevedoring company of its duty to itsemployees.\u00a0 As the Commission said in the analogous case S&H Riggers andErectors, Inc., OSHRC Docket No. 15855 (1979), 7 BNA OSHC 1260, 1263: \”… Although industry custom and practice areuseful points of reference, with respect to whether a reasonable person familiar with thecircumstances would recognize a hazard requiring the use of personal protective equipment,they are not controlling.\u00a0 (Reversed 5th Circuit – 1981, 659 F.2d 1273)Respondent’s witness testified to the continuingconcern of longshoremen and stevedoring companies to \”coning off\” and working\”aloft on containers\” and the attendant hazard of falling.\u00a0 (Tr. 146-147,155, 156)Complainant offered evidence that the use of safetybelts and lanyards tied off to a fitting on a strap or cable — each end of the containertemporarily installed for that purpose would be feasible and would provide fall protectionequal to —-under the circumstances.A useful discussion of \”feasibility: \u00a0 asit applies to safety standards is set forth in the recent case Forging IndustryAssociation v. Secretary of Labor decided by the United States Circuit Court ofAppeals for the Fourth Circuit, sitting en banc.\u00a0 (No. 83-1420,September 23, 1985)This respondent provided no fall protection to its employees (Tr. 78).\u00a0 Itscargo superintendent (Tr. 77) and its stevedore foreman (Tr. 125) themselves consideredthat a safe place of work had been provided, in spite of the absence of any protection.\u00a0 The only protection the employees had was \”just their own experience andknowledge\” (Tr. 78), \”their own ability to be careful.\”\u00a0 (Tr.134)Respondent’s operations manager testified that no one had\” … come up with a bettersolution than the way we do it today.\”\u00a0 He also acknowledged the hazard to beobvious.\u00a0 (Tr.173)\u00a0 The respondent thus justified itself taking no steps toremove the hazard to which its employees are exposed.Having never tried the method proposed by thecomplainant, respondent attacks its feasibility by offering opinions as to difficultieswhich might present themselves if it were used.\u00a0 It is here noted that nonedifficulties appear to be insurmountable if the respondent were to apply itself to thetask.Respondent urges Exhibit R-1, OSHA Instruction CPL2-1.17 as excusing its failure to provide fall protection.\u00a0 It is true that documentis an acknowledgment by complainant that \”To date there is no overall workable meansto protect longshoremen in all instances of exposure.\” \u00a0 Nonetheless, fiveinstances of accomplished protection are there cited by way of illustration.\u00a0 TheInstruction reminds the respondent of its duty under the standard and divisions of thepotential of being cited when available means of protecting employees from falling fromcontainers are not used.\u00a0 The respondent availed itself of no means whatsoever. Respondent has failed to meet its burden or proving that the use of safety belts andlanyards tied-off in the manner suggested by the complainant would be functionallyimpossible or would preclude performance of required work.(2)To establish a greater hazard defense, the employermust 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 ofemployee protection were either used or unavailable; and (c) application for a variancepursuant to section 6(d) of the Act would be inappropriate.\u00a0 M.J. Lee ConstructionCompany, supra.At page 7 of respondent’s post hearing brief thisdefense is stated:\u00a0 \”The anchoring rings on top of a container and on theproposed 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 theemployee is taking the strap out or putting it on he would not be hooked up.\u00a0 (Tr.105)\u00a0 If this 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.\u00a0 Also there isreason to believe the \”strap\” could be applied or removed without the necessityof having an unprotected employee on the container.\u00a0 (Tr. 44, 103-105)The tripping hazard complained of by the respondentis that of tripping on the lanyard or the girdle\/strap or cable.\u00a0 (Tr. 163)\u00a0 Itmust be noted that in the event of such tripping a fall if it occurred would be no morethan six feet and probably much less.\u00a0 Such a fall would not likely result in seriousinjury whereas an unrestrained fall 32 feet to the deck would in all probability result inserious injury or death.No evidence was presented that respondent had soughta variance from the requirements of the standard or that application for a variance wouldbe inappropriate.Respondent failed to meet its burden of proving agreater hazard defense.Issue B:Six employees were observed to be working at the toplevel of containers stacked three abreast and four high.\u00a0 Each container was eightfeet high.\u00a0 Thus the six employees were working thirty-two feet above the deck ofthis ocean going barge.\u00a0 The deck was metal, covered with wooden planking. \u00a0Although complainant failed to put on evidence as to the probable consequences of such afall it would appear to be self-evident that in all probability the result would beserious injury likely involving broken bones and even death.Issue C:Complainant gave due consideration to therequirements set forth in the Act in arriving at its proposed penalty and the sum of$480.00 is appropriate.\u00a0 (Tr. 45-49)Now, having observed the demeanor of the witnesses and having weighed the credibilitythereof, there are here entered the following:Findings of Fact1.\u00a0 Jones Washington Stevedoring Company is acorporation with offices at 7245 W. Marginal Way S.W., Seattle, Washington. (Pleadings)2.\u00a0 The respondent is and at all times materialhereto was engaged in longshoring operations at a worksite and place of business andemployment located aboard and in the dock side vicinity of the barge ATB#99 located atTerminal 105 in the Port of Seattle, Washington, whereby containers of cargo destined forshipment to the State of Alaska were being loaded aboard said bridge which was thenlocated on the navigable waters of the Duwamish Waterway in Seattle, Washington. \u00a0(Pleadings)3.\u00a0 At all times material hereto respondent wasengaged in the use of materials, machinery and other goods brought to respondent frompoints outside the state of Washington and utilizes the mails, telephone and otherfacilities or interstate commerce.\u00a0 (Pleadings)4.\u00a0 Those factual statements set forth underUncontested Facts in the Statement of the Facts portion of this decision are incorporatedin these Findings of Fact by reference.5.\u00a0 The standard at 29 CFR 1918.32(b) applies tothe work being performed by respondent’s employees at the time of the inspection herein.6.\u00a0 Respondent’s employees working on the top of containers at the time of theinspection were exposed to the hazard of falling thirty-two feet to the wooden plankcovered metal deck below.7.\u00a0 The edge of the containers atop whichrespondent’s employees were working was not guarded by safety nets nor was any other meansof fall protection present.8.\u00a0 Respondent knew or in the exercise ofreasonable diligence could have known of the presence of the violative condition in thatsupervisory personnel were present and respondent’s work practice and procedure was toprovide no fall protection to employees working on top of containers, but rather to relyentirely upon the individual unprotected employees exercising care and caution in theirown behalf.9.\u00a0 Safety nets were not a feasible form of fallprotection under the circumstances prevailing at the time of the inspection herein.10.\u00a0 Safety belts and lanyards tied off to ananchor point to be provided by respondent were a viable means of fall protection whichwould provide protection equal to safety nets under the circumstances here present.11.\u00a0 Safety belts and lanyards worn by employeesworking on top of containers were a feasible form of fall protection and the lanyards wornby employees working on top of containers were a feasible form of fall protection and themethod proposed by the complainant to provide anchor points for the lanyards attached tothe safety belts was feasible.12.\u00a0 The use of safety belts and lanyards tiedoff to anchor points to be provided by the respondent would be functionally possible andwould not preclude performance of the work to be performed at the top of containers.13.\u00a0 Lanyards tied off to an anchor point atfoot level present a tripping hazard, however, the hazard of possibly tripping on alanyard or the point or device to which the lanyard is anchored is not so great as thehazard of falling unrestrained eight feet, sixteen feet, twenty-four feet or thirty-twofeet from the top of containers stacked on the wooden plank covered metal deck.14.\u00a0 The efforts of employees in installinglanyard anchor points in the form of removable straps or cables at either end of thecontainers would not necessarily present a fall hazard and if it did, such a hazard wouldbe limited in duration and not greater than the hazard presented to longshoremen guidingincoming containers, setting \”cones\” and placing lashing chains at the uppercorners of the containers without the benefit of fall protection.15.\u00a0 Should a worker experience an unrestrainedfall thirty-two feet and strike a wooden plank covered metal deck, there is a substantialprobability that death or serious physical harm could result.16.\u00a0 The sum of $480.00 is appropriate penaltyto be assessed respondent for the violation found herein.Conclusions of Law1.\u00a0 Respondent was and is engaged in a business affecting commerce within the meaningof section 3 of the Act.2.\u00a0 Respondent was and is an employer within the meaning of the Act and theCommission has jurisdiction of the persons and the subject matter of this proceeding.3.\u00a0 Other-than-serious Citation No. 2, issued torespondent April 18, 1985, should be affirmed and no penalty assessed thereon.4.\u00a0 Respondent was in serious violation of thestandard 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.\u00a0 Other-than-serious Citation No. 2, issued torespondent April 18, 1985, is AFFIRMED and no penalty is assessed thereon.2.\u00a0 Serious Citation No. 1, issued to respondentApril 18, 1985, is AFFIRMED and penalty of $480.00 is ASSESSED.R. M. Child Judge, OSHRCDated:\u00a0 November 20, 1985FOOTNOTES: [[1\/]] The citation reads:29 CFR 1919.32(b):\u00a0 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 safetynet of adequate strength to prevent injury to falling employee(s) or other means providingequal protection:(a) Lashers working on Barge ATB #99 atop the containers were not provided with any fallprotection exposing employees to a fall of 32 feet to the barge deck. Feasible means of protection are, but not limited to:1.\u00a0 Modifying lashing methods to eliminate the need for employees to work on top ofcontainers.2.\u00a0 Provide means for an employee to tie off with a safety belt and lanyard while ontop of containers.[[2\/]] The standard reads:29 CFR 1918.32 Stowed cargo and temporary landingplatforms. * * *(b) When an edge of a hatch section or of stowed cargo more than 8 feet high is so exposedthat it presents a danger of an employee falling, the edge shall be guarded by a safetynet or adequate strength to prevent injury to a falling employee, or by other meansproviding equal protection under the existing circumstances.* * *”