“Docket No. 85-1468 SECRETARY OF LABOR, Complainant, v. MARINE TERMINALS CORPORATION, Respondent.OSHRC Docket No. 85-1468ORDERThe parties’ settlement agreement is approved.\u00a0This order is issued pursuant to a delegation of authority to the ExecutiveSecretary. 41 Fed. Reg. 37173 (1976), amended at 44 Fed. Reg. 7255 (1979).FOR THE COMMISSIONRay H. Darling, Jr.Executive Secretary Dated:\u00a0 August 5, 1987SECRETARY OF LABOR, Complainant, v. MARINE TERMINALS CORPORATION OF LOS ANGELES, Respondent, INTERNATIONAL LONGSHOREMEN’S AND WAREHOUSEMEN’S UNION, (ILWU), Local 13, Authorized Employee Representative.OSHRC DOCKET NO. 85-1468APPEARANCES: For the Complainant:Joseph Bednarik, Esq., Los Angeles, California For the Respondent:William D. Claster, Esq., Newport Beach, CaliforniaFor the Authorized Employee Representative: Frederick William Von Nagel, Wilmington, CaliforniaDECISION AND ORDERChild, Judge: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 November 29, 1985, charging one item of seriousviolation of section 5(a)(2) of the Act and of the penalty which was proposed thereon inthe sum of $350.00.The matter came on regularly for hearing at LosAngeles, California, on the 22nd and 23rd days of May 1986.\u00a0 Notice of the hearingwas duly given affected employees. (Tr. 4)\u00a0 Affected employees were represented atthe hearing by International Longshoremen’s and Warehousemen’s Union, Local 13 (the ILWU)which appeared through its safety coordinator, Frederick William Von Nagel.\u00a0 Theunion requested party status in the course of the hearing which status was granted. \u00a0(Tr. 11-16)Complainant and respondent have submittedpost-hearing briefs in support of their positions.\u00a0 Jurisdiction is not an issue.\u00a0 (Tr. 8 & 9; Pleadings)The Issues:The issues raised by the citation and the pleadingsto be here determined are:A.\u00a0 Did the respondent have knowledge that itsemployees working aloft were doing so without being tied-off, thus making out a violationof 29 CFR 1918.32(b)?[[1\/]]B.\u00a0 Was the offending conduct here observed anisolated occurrence resulting from unpreventable employee misconduct? C.\u00a0 What, if any, penalty would be appropriate?Statement of FactsFacts stipulated by the parties:\u00a0 (Tr. 16,17;Pre-Hearing Stipulation)1.\u00a0 This court has jurisdiction of the partiesand the subject matter of this action pursuant to section 10(c) of the Act. 2.\u00a0 The respondent, Marine Terminals Corporation of Los Angeles hereinafter referredto as Marine Terminals, is and at all times was a corporation with an office and a placeof business located at 1601 Water Street, Long Beach, California 90802.3.\u00a0 Marine terminals is and at all timeshereinafter mentioned, was engaged in providing stevedore services in the loading andunloading of vessels.4.\u00a0 Marine Terminals was and is engaged in theloading and unloading of vessels while these vessels are in port. 5.\u00a0 The vessels referred to in paragraph 4 abovewere being and are being used in transportation of goods and materials in interstate andinternational commerce.6.\u00a0 At all times material hereto MarineTerminals was and is engaged in a business affecting interstate commerce within themeaning of Sections 3 and 5 of the Act (29 U.S.C. ? 563 and 565).7.\u00a0 At all times hereinafter mentioned, MarineTerminals was performing work aboard the M. V. American Lancer, which was docked at Berth230, Long Beach, California.8.\u00a0 On November 21, 1985, Marine Terminals, wasengaged in the unloading and loading of shipping containers aboard the M. V. AmericanLancer.9.\u00a0 The containers were made of metal and were 8feet high, 8 feet wide and either 20 or 40 feet long.10.\u00a0 The shipping containers were stowed below deck as well as above deck, that is,on the deck of the vessel.11.\u00a0 Persons performing the various tasksnecessary to the unloading and loading of the shipping containers were employed by MarineTerminals.12.\u00a0 The fact situation involved in the instantmatter concerns the duties performed by longshoremen designated as cone men, while in theprocess of preparing the containers for unloading.13.\u00a0 The containers were stowed on the deck inrows, with the length of the container parallel to the sides of the vessel.14.\u00a0 The containers were stowed eleven acrossand four high.15.\u00a0 Each container was locked onto or attachedto the container, if any, immediately above, and to the container, if any, immediatelybelow.\u00a0 At each corner of each of the 20 and 40 foot sides of the container there wasa corner twist lock; by rotating the locking pin, the container was locked onto orattached to container above or below.16.\u00a0 After the corner twist locks or cones wereunlocked and the top container removed it was necessary to remove the cones before thenext container could be removed.17.\u00a0 Each cone man, working independently whilestanding on top of the top tier of containers, was to remove two of the four corner twistlocks or cones on each container.\u00a0 The cone men here observed were removing twistlocks located on top of the third tier, 24 feet above the deck.18.\u00a0 After the cone men removed all of thecorner twist locks on the third tier of containers in the particular row of containerswhich was to be unloaded, they were to be removed from the top of the third tier ofcontainers, by means of a man-cage which was attached to the crane.19.\u00a0 The collecting of cones was performed bythe cone men while they were standing and walking on the top of the container and requiredthat they work near the edge and bend down to reach the cones.20.\u00a0 On November 21, 1985, the edge of thecontainers on which the cone men were working, were open-sided and unguarded, that is,there was no rail or barrier, to prevent the cone men from falling from the edge of thecontainer.21.\u00a0 On November 21, 1985, Marine Terminals didnot provide guarding by means of a safety net to safeguard employees from injury in theevent of a fall.On November 21, 1985, Frederick William Von Nagel while performing his assignment assafety coordinator for the ILWU, Local 13 observed two longshoremen employees ofrespondent working as cone men on a single stack of containers (sometimes referred to as a\”chimney stack\”) on the forward deck of the American Lancer at berth 230 at LongBeach, California.\u00a0 The men were working approximately 34 feet above the deck surfaceof the vessel and although they were wearing harnesses, they were not tied-off toanything, thus exposing themselves to a fall of 34 feet to the deck below. (Tr. 37, 38)Mr. Von Nagel reported his observation by telephoneto the local office of the United States Occupational Safety and Health Administration(OSHA).\u00a0 George Godzak, a compliance officer, was sent to investigate thereport.\u00a0 When he arrived, he found the men then working aloft to be secured ortied-off.\u00a0 However, he interviewed the two workers who had been observed by Mr. VonNagel and who were wearing harnesses.\u00a0 They told him they had been working aloft atthe forward area of the ship that morning and that they had not been tied-off whileworking aloft.\u00a0 (Tr. 39, 40, 45, 110, 114)Since June of 1985 both the ILWU and the respondentas a member of the Pacific Maritime Association (PMA) had recognized the need for cone menworking aloft to tie-off and that tying-off to the container lifting beam was theappropriate method. (Exhibits 4, 5, ? 6; Tr. 149)After the agreement of June 29, 1985, the members ofthe Pacific Maritime Association, which is comprised of maritime employers, developed analternative \”flatrack\” method for tying-off where rows of containers wereinvolved. (Tr. 156; Exhibit R-6)Upon its joint adoption by the ILWU and the PMA inJune 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 upon the cranelegs, including those at berth 230.\u00a0 (Tr. 152,170, 250)\u00a0 Respondent also had itsmanagement review these Container Procedures and Rules with its superintendents and itsoperations personnel.\u00a0 (Tr. 152, 251)\u00a0 Foremen and bosses are generally, but notin every instance, steady employees of the specific maritime employer, respondent in thiscase.\u00a0 (Tr. 218)Peter McGivern, general manager for respondent,testified that under the disciplinary process available to respondent in the collectivebargaining agreement between the ILWU and the PMA respondent was required to inform theoffending longshoreman of the problem and make sure that he understands.\u00a0 At thatpoint the offending individual is to be informed that \” . . . further deviation fromthe rules will result in immediate dismissal.\”\u00a0 (Tr. 171, 172)\u00a0 Theoffending longshoreman has the option of complying with the rule or calling the hiringhall and securing another individual to replace him on the job.\u00a0 (Tr. 172)Mr. McGivern and his safety director, Ron Mateas, would make spot checks unannounced dayand night to see if the new rules regarding containers were being observed.\u00a0 If hesaw a violation, he would contact the superintendent on the job and tell him to fix itright away.\u00a0 (Tr. 163)\u00a0 On average he inspected approximately one vessel perday.\u00a0 (Tr. 212)Invariably, when a longshoreman is warned to tie-offaloft, he does so.\u00a0 (Tr. 183)\u00a0 However, on some occasions when the individualwas informed they were not complying and they would have to do so, the employee opted toreplace himself rather than be subject to dismissal.\u00a0 (Tr. 209)On average the top of the upper tier of containersstacked four high on a loaded vessel is about 80 feet above the dock. \u00a0 (Tr. 184)Thus the tops of containers stacked on deck are not readily visible to persons working onthe dock near the vessel or working in the office trailer.\u00a0 (Tr. 185; Exhibit R-7)Robert Munoz, respondent’s superintendent at berth230, has his office in the office trailer, but his duties usually have him moving aboutthe vessel and locating himself centrally where he can see two cranes and on occasionthree cranes in operation.\u00a0 Many times the men working aloft cannot be seen from hisposition.\u00a0 Generally, however, the hatch boss is supposed to be with the men goingaloft.\u00a0 (Tr. 272, 273)On the day in question approximately forty employees of respondent were working on thecargo of the American Lancer at berth 230 and two cranes were operating.\u00a0 (Tr. 281)\u00a0 Approximately seven of these would be foremen and about eight would be cone men.\u00a0 (Tr. 314, 315)On occasion when Mr. Munoz has not been able to seealoft from his position, he has spoken to the boss aloft on the radio to find out if aflatrack is up there.\u00a0 (Tr. 299)In discussing safety with Mr. Von Nagel, includingthe need to hook up while working aloft, Mr. Munoz has stated that he can’t be ababy-sitter — that it is up to the men to take some responsibility also.\u00a0 (Tr. 301)DiscussionIssue A:Did the respondent have knowledge that its employeesworking aloft were doing 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 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 ? 22,135 (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).The evidence clearly supports findings that twoemployees of the respondent were working atop containers 24 to 34 feet above the deck ofthe American Lancer on November 21, 1985, and that they were doing so without beingtied-off and that no other fall protection was present.\u00a0 Deaths had occurred fromsuch falls (Tr. 111) and it cannot be argued that the hazard to which these employee wereexposed was other than serious.\u00a0 (Stipulated fact No. 17; Tr. 37, 38)The only remaining element to make out the violationis employer knowledge of the violative condition.\u00a0 Constructive knowledge is foundwhen in the exercise of reasonable diligence the employer could have known of theviolative condition.Mr. McGivern, respondent’s general manager, undertookto perform approximately thirty inspections of vessels being loaded or unloaded under thesupervision of Robert Munoz, its superintendent at berth 230.\u00a0 These inspections tookplace following July of 1985 and approximately 10 percent of the time he foundlongshoremen employees working aloft without being tied-off and without the benefit offall protection.\u00a0 When he called Mr. Munoz’ attention to the violation, he found thatin each instance Mr. Munoz and the foremen working under him were not aware of thisongoing violative conduct. (Tr. 233-236)\u00a0 Indeed, in every instance where he wouldobserve employees working aloft without being tied-off, which was about 10 percent of thetime, he determined that respondent’s superintendent on the job was unaware of theviolation in process.\u00a0 (Tr. 212, 215, 237)\u00a0 On such occasions the superintendentwas told that the container rules were clear, that he was responsible to ensure they werefollowed up and if he was unable to do so, Mr. McGivern would find someone capable ofdoing so.\u00a0 (Tr. 216)Respondent’s safety director visited berth 230frequently during the period between July and the time of this inspection in November1985.\u00a0 The facility was busy – – with a fresh ship in about every five days.\u00a0 Heobserved men working aloft without being tied-off on about one-third of these vessels heinspected. ( Tr. 253)\u00a0 On each occasion he called the situation to the attention ofthe job superintendent which was Mr. Munoz, and each time he found Mr. Munoz to be unawareof the existing infraction.\u00a0 (Tr. 260) Again, on November 21, 1985, when Mr. Von Nagelobserved the two employees working aloft without fall protection and without beingtied-off, which fact was later called to the superintendent’s attention by the complianceofficer, Mr. Munoz professed that he was unaware that the employees had again bean exposedto the hazard of falling in violation of the standard.\u00a0 (Tr. 106, 119).Apparently respondent tolerated such failure on thepart of its superintendent to keep himself aware and viewed that failure as an acceptableexcuse.\u00a0 Such explanation by the superintendent is too convenient and acceptance bythe employer without imposing sanction or change of procedure amounted to nothing morethan closing its eyes to reality. Reasonable diligence requires a superintendent giventhe responsibility of enforcing a safety rule to keep himself reasonably informed. \u00a0The superintendent carried a radio.\u00a0 The crane operators were equipped with radiosand were in position to observe men working aloft.\u00a0 (Tr. 238, 262, 323) \u00a0 Theforemen and the foremen aloft had radios.\u00a0 Under these circumstances the respondentin the exercise of reasonable diligence could have known of the violative condition and ischarged with that knowledge.The complainant has met its burden of proving by apreponderance of the evidence that the respondent was in violation of the standard at 29CFR 1918.32(b) at the time and place in question.\u00a0 The cases cited by respondent atpages 15 and 16 of its brief support this conclusion.Issue B:Was the offending conduct here observed an isolatedoccurrence resulting from unpreventable employee misconduct?In support of this defense respondent cites FloydS. Pike Electrical Contractor, Inc., 6 BNA OSHC 1675 (OSAHRC Docket No. 3069, 1978).\u00a0 There the Commission held that elements to prove such a defense include:1.\u00a0 A demonstration of the employer’s commitmentto employee safety reflected by establishment of work rules that effectively implement therequirements of the standard at issue;2.\u00a0 the effective communication of the workrules to employees; and,3.\u00a0 the effective enforcement of these workrules through supervision adequate to detect failures to comply with the rules anddiscipline sufficient to discourage such violations.The Container Procedures Rules and Duties adopted bythe ILWU and the PMA of which respondent was a participating member as modified by the\”flatrack\” procedure permitted in the case of rows of containers stacked side byside effectively implement the requirements of 29 CFR 1918.32(b).Longshoring work is performed in large part bylongshore-men assigned to respondent’s worksite by the union.\u00a0 Thus a turnover oflongshoremen personnel is experienced.\u00a0 Under these circumstances respondent producedtestimony to the effect that the rules including the need to tie-off while working aloftwere discussed with all employees at the beginning of the shift \” . . . on everyoccasion that they worked.\”\u00a0 (Tr. 152, 219)Respondent told its superintendents and steadyemployees to enforce these safety rules and to direct the men in accordance therewith andtold them \”to talk wherever they went to make sure that the people understood . . . ..\” (Tr. 180, 181)\u00a0 Respondent told its steady employees that those who do notobey the safety rules will be warned to obey in case there is any misunderstanding and ifthey do not obey, they will be subject to termination.\u00a0 (Tr. 209, 251)The discussion with men coming on the job would last\”…..a couple of minutes while the men were forming up.\”\u00a0 The 26 rules setforth in Exhibit R-5 would be one of the topics discussed, among many others. \u00a0 (Tr.220, 221)Mr. Munoz, respondent’s superintendent on this job,testified that he gave the instructions to the longshoremen at the start of this job andspecifically on November 21, 1995, and that the two men later found to be in violationwere present.\u00a0 He stated that instruction included the requirement that when workingaloft they must always hook-up to the flatrack or if the flatrack was not available, tothe beam.\u00a0 One or the other would always be present.\u00a0 (Tr. 276, 277, 280, 316)Notwithstanding the foregoing, statements taken two weeks after the event from the twooffending longshoremen, who had also worked for respondent at berth 230 on numerousoccasions prior to November 21, 1985, and placed in evidence at the hearing by therespondent demonstrate a lack of instruction from the respondent as to the need to tie-offto the crane lifting beam while working aloft on a chimney or single stack containers suchas they were working when observed by Mr. Von Nagel.\u00a0 (Tr. 315; Exhibit R-8) \u00a0The attempt in those statements to suggest that the union was somehow to blame forindecision in the men’s minds won’t wash.\u00a0 The ILWU had been stressing the beam asthe appropriate tie-off point since June of 1985.\u00a0 It was the PMA that developed the\”flatrack\” as an alternative to the beam, and that only in situations notinvolving a single stack of containers.Obviously, a two-minute general instruction at thebeginning of a job or shift in which 26 container rules were one point touched upon failedto meet the requirement of \”. . .effective communication of the work rules toemployees.\” Finally, it appears that respondent was deficient in its enforcement of these work rules.\u00a0 The inadequacy of effort on the part of the job superintendent to detect failuresto comply with the rules is discussed under Issue A, supra.\u00a0 Disciplinesufficient to discourage such violations was non-existent.The collective bargaining agreement would not prevent the respondent from terminating anindividual for repeated violations and the respondent has its own rule permitting suchterminations.\u00a0 (Tr. 175, 176)\u00a0 Notwithstanding this, no record is made ofviolations by individual longshoremen and names are not taken at the time of warningagainst working aloft without tying-off.\u00a0 (Tr. 175)Prior to November 21, 1985, no terminations had beenimposed by reason of safety violations by persons working aloft nor had any terminationsbeen imposed for that reason up to the time of the hearing of this matter. \u00a0 (Tr.239)Respondent has never terminated anyone solely forsafety violations.\u00a0 (Tr. 244)Neither Mr. McGivern nor the safety director, RonMateas, made written reports or kept written account of their findings or inspections.\u00a0 (Tr. 246)Mr. Mateas testified that to his knowledge respondenthas never had a rule that repeated tie-off violations by longshoremen would be cause fortermination.\u00a0 (Tr. 261)When asked, Mr. Munoz could not recall the names oflongshoremen who Mr. McGivern and Mr. Mateas found from time to time to be working aloftwithout being tied-off.\u00a0 (Tr. 317)No record was kept by respondent of the names ofemployees who were observed to be in violation of the requirement to tie-off when workingaloft on containers.\u00a0 (Tr. 246, 260, 261, 318)Obviously, where repeated violations would be causefor termination, the failure to preserve a record to substantiate a claim of repeat undercircumstances of rotating workers is to communicate to those workers a lack of concern andinadequate effort to discipline on the part of respondent.The necessary elements of a defense based on isolatedoccurrence resulting from unpreventable employee misconduct are not here present. \u00a0 ITOCorporation of Ameriport, 11 BNA OSHC 1562 (No. 80-2369, 1983) cited by respondent atpage 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 thisserious violation, but offered no evidence in support thereof.\u00a0 Nor did complainantoffer evidence as to how it arrived at the figure of $350.00.Applying the criteria set forth in the Act as to thesize of the business of the respondent and the gravity of the violation, and giving dueconsideration to the good faith of this respondent not withstanding its lack of diligencein making itself aware and laxity of enforcement discipline, it is determined that anappropriate penalty is the sum of $200.00.Now, having observed the demeanor of the witnesses and having weighed the credibilitythereof, there are here entered the following:Findings of Fact1.\u00a0 The twenty-one facts stipulated to by theparties and set forth in the Statement of Facts portion of this decision are incorporatedherein by reference.2.\u00a0 Two employees of respondent were workingatop a single or chimney stick of containers between 24 and 34 feet above the deck of theAmerican Lancer on November 21, 1985, without fall protection and without being tied-offto prevent falling.3.\u00a0 The hazard of falling to the deck below towhich said employees were exposed could give rise to serious injury or death.4.\u00a0 In the exercise of reasonable diligencerespondent could have known of the failure of its employees to tie-off at the time andplace alleged.5.\u00a0 Respondent did not effectively communicateto affected employees the work rule requiring employees working aloft on containers totie-off to the beam or alternatively a flatrack.6.\u00a0 Respondent did not effectively enforce its above-mentioned work rule throughsupervision adequate to detect failure of its employees to comply therewith.7.\u00a0 Respondent did not effectively enforce itsabove-mentioned work rule through discipline sufficient to discourage failure to complytherewith.8.\u00a0 Two hundred dollars is an appropriate sum tobe assessed as a penalty against the respondent for the violation here found.Conclusions of Law1.\u00a0 Jurisdiction of the subject matter of thisproceeding is conferred upon the Commission by section 10(c) of the Act and the Commissionhas jurisdiction of the parties hereto.2.\u00a0 The standard at 29 CFR 1918.32(b) applies tothe work activity for which respondent was cited herein.3.\u00a0 The respondent was in violation of thestandard at 29 CFR 1918.32(b) as alleged in the citation issued and the complaint filedherein and item 1 of Serious Citation No. 1, issue to respondent November 29, 1985, shouldbe affirmed.4.\u00a0 A penalty of $200.00 should be assessed forthe violation here found.OrderItem 1 of Serious Citation No. 1, issued torespondent 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:Citation129 CFR 1918.32(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.LOCATION:\u00a0 Aboard the M.V. AMERICAN LANCER -employees working on the tops of containers three (3) high, approximately 24 feet, wereexposed to 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 feet high is so exposedthat it presents a danger of an employer falling, the edge shall be guarded by a safetynet or (sic) adequate strength to prevent injury to a falling employee, or by other meansproviding equal protection under the existing circumstances.”