“SECRETARY OF LABOR,Complainant,v.MARINE TERMINALS CORPORATION,Respondent.OSHRC Docket No. 85-1468_ORDER_The parties’ settlement agreement is approved. This order is issuedpursuant to a delegation of authority to the Executive Secretary. 41Fed. Reg. 37173 (1976), amended at 44 Fed. Reg. 7255 (1979).FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDated: August 5, 1987————————————————————————SECRETARY OF LABOR,Complainant,v.MARINE TERMINALS CORPORATION OFLOS ANGELES,Respondent,INTERNATIONAL LONGSHOREMEN’S ANDWAREHOUSEMEN’S UNION, (ILWU), Local 13,Authorized EmployeeRepresentative.OSHRC DOCKET NO. 85-1468APPEARANCES:For the Complainant:Joseph Bednarik, Esq., Los Angeles, CaliforniaFor the Respondent:William D. Claster, Esq., Newport Beach, CaliforniaFor the Authorized Employee Representative:Frederick William Von Nagel, Wilmington,California_DECISION AND ORDER_Child, Judge:_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 November 29, 1985, charging one item of serious violation ofsection 5(a)(2) of the Act and of the penalty which was proposed thereonin the sum of $350.00.The matter came on regularly for hearing at Los Angeles, California, onthe 22nd and 23rd days of May 1986. Notice of the hearing was dulygiven affected employees. (Tr. 4) Affected employees were representedat the hearing by International Longshoremen’s and Warehousemen’s Union,Local 13 (the ILWU) which appeared through its safety coordinator,Frederick William Von Nagel. The union requested party status in thecourse of the hearing which status was granted. (Tr. 11-16)Complainant and respondent have submitted post-hearing briefs in supportof their positions. Jurisdiction is not an issue. (Tr. 8 & 9; Pleadings)The Issues:The issues raised by the citation and the pleadings to be heredetermined are:A. Did the respondent have knowledge that its employees working aloftwere doing so without being tied-off, thus making out a violation of 29CFR 1918.32(b)?[[1\/]]B. Was the offending conduct here observed an isolated occurrenceresulting from unpreventable employee misconduct?C. What, if any, penalty would be appropriate?_Statement of Facts_Facts stipulated by the parties: (Tr. 16,17; Pre-Hearing Stipulation)1. This court has jurisdiction of the parties and the subject matter ofthis action pursuant to section 10(c) of the Act.2. The respondent, Marine Terminals Corporation of Los Angeleshereinafter referred to as Marine Terminals, is and at all times was acorporation with an office and a place of business located at 1601 WaterStreet, Long Beach, California 90802.3. Marine terminals is and at all times hereinafter mentioned, wasengaged in providing stevedore services in the loading and unloading ofvessels.4. Marine Terminals was and is engaged in the loading and unloading ofvessels while these vessels are in port.5. The vessels referred to in paragraph 4 above were being and arebeing used in transportation of goods and materials in interstate andinternational commerce.6. At all times material hereto Marine Terminals was and is engaged ina business affecting interstate commerce within the meaning of Sections3 and 5 of the Act (29 U.S.C. ? 563 and 565).7. At all times hereinafter mentioned, Marine Terminals was performingwork aboard the M. V. American Lancer, which was docked at Berth 230,Long Beach, California.8. On November 21, 1985, Marine Terminals, was engaged in the unloadingand loading of shipping containers aboard the M. V. American Lancer.9. The containers were made of metal and were 8 feet high, 8 feet wideand either 20 or 40 feet long.10. The shipping containers were stowed below deck as well as abovedeck, that is, on the deck of the vessel.11. Persons performing the various tasks necessary to the unloading andloading of the shipping containers were employed by Marine Terminals.12. The fact situation involved in the instant matter concerns theduties performed by longshoremen designated as cone men, while in theprocess of preparing the containers for unloading.13. The containers were stowed on the deck in rows, with the length ofthe container parallel to the sides of the vessel.14. The containers were stowed eleven across and four high.15. Each container was locked onto or attached to the container, ifany, immediately above, and to the container, if any, immediatelybelow. At each corner of each of the 20 and 40 foot sides of thecontainer there was a corner twist lock; by rotating the locking pin,the container was locked onto or attached to container above or below.16. After the corner twist locks or cones were unlocked and the topcontainer removed it was necessary to remove the cones before the nextcontainer could be removed.17. Each cone man, working independently while standing on top of thetop tier of containers, was to remove two of the four corner twist locksor cones on each container. The cone men here observed were removingtwist locks located on top of the third tier, 24 feet above the deck.18. After the cone men removed all of the corner twist locks on thethird tier of containers in the particular row of containers which wasto be unloaded, they were to be removed from the top of the third tierof containers, by means of a man-cage which was attached to the crane.19. The collecting of cones was performed by the cone men while theywere standing and walking on the top of the container and required thatthey work near the edge and bend down to reach the cones.20. On November 21, 1985, the edge of the containers on which the conemen were working, were open-sided and unguarded, that is, there was norail or barrier, to prevent the cone men from falling from the edge ofthe container.21. On November 21, 1985, Marine Terminals did not provide guarding bymeans of a safety net to safeguard employees from injury in the event ofa fall.On November 21, 1985, Frederick William Von Nagel while performing hisassignment as safety coordinator for the ILWU, Local 13 observed twolongshoremen employees of respondent working as cone men on a singlestack of containers (sometimes referred to as a \”chimney stack\”) on theforward deck of the American Lancer at berth 230 at Long Beach,California. The men were working approximately 34 feet above the decksurface of the vessel and although they were wearing harnesses, theywere not tied-off to anything, thus exposing themselves to a fall of 34feet to the deck below. (Tr. 37, 38)Mr. Von Nagel reported his observation by telephone to the local officeof the United States Occupational Safety and Health Administration(OSHA). George Godzak, a compliance officer, was sent to investigatethe report. When he arrived, he found the men then working aloft to besecured or tied-off. However, he interviewed the two workers who hadbeen observed by Mr. Von Nagel and who were wearing harnesses. Theytold him they had been working aloft at the forward area of the shipthat morning and that they had not been tied-off while working aloft. (Tr. 39, 40, 45, 110, 114)Since June of 1985 both the ILWU and the respondent as a member of thePacific Maritime Association (PMA) had recognized the need for cone menworking aloft to tie-off and that tying-off to the container liftingbeam was the appropriate method. (Exhibits 4, 5, ? 6; Tr. 149)After the agreement of June 29, 1985, the members of the PacificMaritime Association, which is comprised of maritime employers,developed an alternative \”flatrack\” method for tying-off where rows ofcontainers were involved. (Tr. 156; Exhibit R-6)Upon its joint adoption by the ILWU and the PMA in June of 1985,respondent posted a copy of the Container Procedures Rules and Duties(Exhibits R4 & 5) at its office trailers at the various berths and uponthe crane legs, including those at berth 230. (Tr. 152,170, 250) Respondent also had its management review these Container Procedures andRules with its superintendents and its operations personnel. (Tr. 152,251) Foremen and bosses are generally, but not in every instance,steady employees of the specific maritime employer, respondent in thiscase. (Tr. 218)Peter McGivern, general manager for respondent, testified that under thedisciplinary process available to respondent in the collectivebargaining agreement between the ILWU and the PMA respondent wasrequired to inform the offending longshoreman of the problem and makesure that he understands. At that point the offending individual is tobe informed that \” . . . further deviation from the rules will result inimmediate dismissal.\” (Tr. 171, 172) The offending longshoreman hasthe option of complying with the rule or calling the hiring hall andsecuring another individual to replace him on the job. (Tr. 172)Mr. McGivern and his safety director, Ron Mateas, would make spot checksunannounced day and night to see if the new rules regarding containerswere being observed. If he saw a violation, he would contact thesuperintendent on the job and tell him to fix it right away. (Tr. 163) On average he inspected approximately one vessel per day. (Tr. 212)Invariably, when a longshoreman is warned to tie-off aloft, he does so. (Tr. 183) However, on some occasions when the individual was informedthey were not complying and they would have to do so, the employee optedto replace himself rather than be subject to dismissal. (Tr. 209)On average the top of the upper tier of containers stacked four high ona loaded vessel is about 80 feet above the dock. (Tr. 184) Thus thetops of containers stacked on deck are not readily visible to personsworking on the dock near the vessel or working in the office trailer. (Tr. 185; Exhibit R-7)Robert Munoz, respondent’s superintendent at berth 230, has his officein the office trailer, but his duties usually have him moving about thevessel and locating himself centrally where he can see two cranes and onoccasion three cranes in operation. Many times the men working aloftcannot be seen from his position. Generally, however, the hatch boss issupposed to be with the men going aloft. (Tr. 272, 273)On the day in question approximately forty employees of respondent wereworking on the cargo of the American Lancer at berth 230 and two craneswere operating. (Tr. 281) Approximately seven of these would beforemen and about eight would be cone men. (Tr. 314, 315)On occasion when Mr. Munoz has not been able to see aloft from hisposition, he has spoken to the boss aloft on the radio to find out if aflatrack is up there. (Tr. 299)In discussing safety with Mr. Von Nagel, including the need to hook upwhile working aloft, Mr. Munoz has stated that he can’t be a baby-sitter– that it is up to the men to take some responsibility also. (Tr. 301)_Discussion__Issue A_:Did the respondent have knowledge that its employees working aloft weredoing so without being tied-off, thus making out a violation of 29 CFR1918.32(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 ? 22,135 (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).The evidence clearly supports findings that two employees of therespondent were working atop containers 24 to 34 feet above the deck ofthe American Lancer on November 21, 1985, and that they were doing sowithout being tied-off and that no other fall protection was present. Deaths had occurred from such falls (Tr. 111) and it cannot be arguedthat the hazard to which these employee were exposed was other thanserious. (Stipulated fact No. 17; Tr. 37, 38)The only remaining element to make out the violation is employerknowledge of the violative condition. Constructive knowledge is foundwhen in the exercise of reasonable diligence the employer could haveknown of the violative condition.Mr. McGivern, respondent’s general manager, undertook to performapproximately thirty inspections of vessels being loaded or unloadedunder the supervision of Robert Munoz, its superintendent at berth 230. These inspections took place following July of 1985 and approximately 10percent of the time he found longshoremen employees working aloftwithout being tied-off and without the benefit of fall protection. Whenhe called Mr. Munoz’ attention to the violation, he found that in eachinstance Mr. Munoz and the foremen working under him were not aware ofthis ongoing violative conduct. (Tr. 233-236) Indeed, in every instancewhere he would observe employees working aloft without being tied-off,which was about 10 percent of the time, he determined that respondent’ssuperintendent on the job was unaware of the violation in process. (Tr.212, 215, 237) On such occasions the superintendent was told that thecontainer rules were clear, that he was responsible to ensure they werefollowed up and if he was unable to do so, Mr. McGivern would findsomeone capable of doing so. (Tr. 216)Respondent’s safety director visited berth 230 frequently during theperiod between July and the time of this inspection in November 1985. The facility was busy – – with a fresh ship in about every five days. He observed men working aloft without being tied-off on about one-thirdof these vessels he inspected. ( Tr. 253) On each occasion he calledthe situation to the attention of the job superintendent which was Mr.Munoz, and each time he found Mr. Munoz to be unaware of the existinginfraction. (Tr. 260)Again, on November 21, 1985, when Mr. Von Nagel observed the twoemployees working aloft without fall protection and without beingtied-off, which fact was later called to the superintendent’s attentionby the compliance officer, Mr. Munoz professed that he was unaware thatthe employees had again bean exposed to the hazard of falling inviolation of the standard. (Tr. 106, 119).Apparently respondent tolerated such failure on the part of itssuperintendent to keep himself aware and viewed that failure as anacceptable excuse. Such explanation by the superintendent is tooconvenient and acceptance by the employer without imposing sanction orchange of procedure amounted to nothing more than closing its eyes toreality.Reasonable diligence requires a superintendent given the responsibilityof enforcing a safety rule to keep himself reasonably informed. Thesuperintendent carried a radio. The crane operators were equipped withradios and were in position to observe men working aloft. (Tr. 238,262, 323) The foremen and the foremen aloft had radios. Under thesecircumstances the respondent in the exercise of reasonable diligencecould have known of the violative condition and is charged with thatknowledge.The complainant has met its burden of proving by a preponderance of theevidence that the respondent was in violation of the standard at 29 CFR1918.32(b) at the time and place in question. The cases cited byrespondent at pages 15 and 16 of its brief support this conclusion._Issue B_:Was the offending conduct here observed an isolated occurrence resultingfrom unpreventable employee misconduct?In support of this defense respondent cites _Floyd S. Pike ElectricalContractor, Inc_., 6 BNA OSHC 1675 (OSAHRC Docket No. 3069, 1978). There the Commission held that elements to prove such a defense include:1. A demonstration of the employer’s commitment to employee safetyreflected by establishment of work rules that effectively implement therequirements of the standard at issue;2. the effective communication of the work rules to employees; and,3. the effective enforcement of these work rules through supervisionadequate to detect failures to comply with the rules and disciplinesufficient to discourage such violations.The Container Procedures Rules and Duties adopted by the ILWU and thePMA of which respondent was a participating member as modified by the\”flatrack\” procedure permitted in the case of rows of containers stackedside by side effectively implement the requirements of 29 CFR 1918.32(b).Longshoring work is performed in large part by longshore-men assigned torespondent’s worksite by the union. Thus a turnover of longshoremenpersonnel is experienced. Under these circumstances respondent producedtestimony to the effect that the rules including the need to tie-offwhile working aloft were discussed with all employees at the beginningof the shift \” . . . on every occasion that they worked.\” (Tr. 152, 219)Respondent told its superintendents and steady employees to enforcethese safety rules and to direct the men in accordance therewith andtold them \”to talk wherever they went to make sure that the peopleunderstood . . . . .\” (Tr. 180, 181) Respondent told its steadyemployees that those who do not obey the safety rules will be warned toobey in case there is any misunderstanding and if they do not obey, theywill be subject to termination. (Tr. 209, 251)The discussion with men coming on the job would last \”…..a couple ofminutes while the men were forming up.\” The 26 rules set forth inExhibit R-5 would be one of the topics discussed, among many others. (Tr. 220, 221)Mr. Munoz, respondent’s superintendent on this job, testified that hegave the instructions to the longshoremen at the start of this job andspecifically on November 21, 1995, and that the two men later found tobe in violation were present. He stated that instruction included therequirement that when working aloft they must always hook-up to theflatrack or if the flatrack was not available, to the beam. One or theother would always be present. (Tr. 276, 277, 280, 316)Notwithstanding the foregoing, statements taken two weeks after theevent from the two offending longshoremen, who had also worked forrespondent at berth 230 on numerous occasions prior to November 21,1985, and placed in evidence at the hearing by the respondentdemonstrate a lack of instruction from the respondent as to the need totie-off to the crane lifting beam while working aloft on a chimney orsingle stack containers such as they were working when observed by Mr.Von Nagel. (Tr. 315; Exhibit R-8) The attempt in those statements tosuggest that the union was somehow to blame for indecision in the men’sminds won’t wash. The ILWU had been stressing the beam as theappropriate tie-off point since June of 1985. It was the PMA thatdeveloped the \”flatrack\” as an alternative to the beam, and that only insituations not involving a single stack of containers.Obviously, a two-minute general instruction at the beginning of a job orshift in which 26 container rules were one point touched upon failed tomeet the requirement of \”. . .effective communication of the work rulesto employees.\”Finally, it appears that respondent was deficient in its enforcement ofthese work rules. The inadequacy of effort on the part of the jobsuperintendent to detect failures to comply with the rules is discussedunder Issue A, _supra_. Discipline sufficient to discourage suchviolations was non-existent.The collective bargaining agreement would not prevent the respondentfrom terminating an individual for repeated violations and therespondent has its own rule permitting such terminations. (Tr. 175,176) Notwithstanding this, no record is made of violations byindividual longshoremen and names are not taken at the time of warningagainst working aloft without tying-off. (Tr. 175)Prior to November 21, 1985, no terminations had been imposed by reasonof safety violations by persons working aloft nor had any terminationsbeen imposed for that reason up to the time of the hearing of thismatter. (Tr. 239)Respondent has never terminated anyone solely for safety violations. (Tr. 244)Neither Mr. McGivern nor the safety director, Ron Mateas, made writtenreports or kept written account of their findings or inspections. (Tr.246)Mr. Mateas testified that to his knowledge respondent has never had arule that repeated tie-off violations by longshoremen would be cause fortermination. (Tr. 261)When asked, Mr. Munoz could not recall the names of longshoremen who Mr.McGivern and Mr. Mateas found from time to time to be working aloftwithout being tied-off. (Tr. 317)No record was kept by respondent of the names of employees who wereobserved to be in violation of the requirement to tie-off when workingaloft on containers. (Tr. 246, 260, 261, 318)Obviously, where repeated violations would be cause for termination, thefailure to preserve a record to substantiate a claim of repeat undercircumstances of rotating workers is to communicate to those workers alack of concern and inadequate effort to discipline on the part ofrespondent.The necessary elements of a defense based on isolated occurrenceresulting from unpreventable employee misconduct are not here present. _ITO Corporation of Ameriport_, 11 BNA OSHC 1562 (No. 80-2369, 1983)cited by respondent at page 24 of its brief is distinguishable on the facts._Issue C_:What, if any, penalty would be appropriate?Complainant proposed a penalty of $350.00 for this serious violation,but offered no evidence in support thereof. Nor did complainant offerevidence as to how it arrived at the figure of $350.00.Applying the criteria set forth in the Act as to the size of thebusiness of the respondent and the gravity of the violation, and givingdue consideration to the good faith of this respondent not withstandingits lack of diligence in making itself aware and laxity of enforcementdiscipline, it is determined that an appropriate penalty is the sum of$200.00.Now, having observed the demeanor of the witnesses and having weighedthe credibility thereof, there are here entered the following:_Findings of Fact_1. The twenty-one facts stipulated to by the parties and set forth inthe Statement of Facts portion of this decision are incorporated hereinby reference.2. Two employees of respondent were working atop a single or chimneystick of containers between 24 and 34 feet above the deck of theAmerican Lancer on November 21, 1985, without fall protection andwithout being tied-off to prevent falling.3. The hazard of falling to the deck below to which said employees wereexposed could give rise to serious injury or death.4. In the exercise of reasonable diligence respondent could have knownof the failure of its employees to tie-off at the time and place alleged.5. Respondent did not effectively communicate to affected employees thework rule requiring employees working aloft on containers to tie-off tothe beam or alternatively a flatrack.6. Respondent did not effectively enforce its above-mentioned work rulethrough supervision adequate to detect failure of its employees tocomply therewith.7. Respondent did not effectively enforce its above-mentioned work rulethrough discipline sufficient to discourage failure to comply therewith.8. Two hundred dollars is an appropriate sum to be assessed as apenalty against the respondent for the violation here found._Conclusions of Law_1. Jurisdiction of the subject matter of this proceeding is conferredupon the Commission by section 10(c) of the Act and the Commission hasjurisdiction of the parties hereto.2. The standard at 29 CFR 1918.32(b) applies to the work activity forwhich respondent was cited herein.3. The respondent was in violation of the standard at 29 CFR 1918.32(b)as alleged in the citation issued and the complaint filed herein anditem 1 of Serious Citation No. 1, issue to respondent November 29, 1985,should be affirmed.4. A penalty of $200.00 should be assessed for the violation here found._Order_Item 1 of Serious Citation No. 1, issued to respondent November 29,1985, is AFFIRMED and a penalty of $200.00 is ASSESSED.R. M. ChildJudge, OSHRCDated: August 29, 1986FOOTNOTES:[[1\/]] The citation and the standard read:_Citation_129 CFR 1918.32(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.LOCATION: Aboard the M.V. AMERICAN LANCER – employees working on thetops of containers three (3) high, approximately 24 feet, were exposedto the hazard of falling._Standard_? 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 employer falling, theedge shall be guarded by a safety net or (sic) adequate strength toprevent injury to a falling employee, or by other means providing equalprotection under the existing circumstances.”