“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 8221 NORTHEAST MARINE TERMINAL COMPANY, ? \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0August 31, 1976DECISIONBEFORE BARNAKO, Chairman: MORAN and CLEARY,Commissioners.MORAN, Commissioner:A decision of Review Commission JudgeJoseph Chodes, dated January 30, 1975, is before this Commission for reviewpursuant to 29 U.S.C. ? 661(i). That decision vacated two citations allegingthat respondent failed to comply with the requirements of seven differentoccupational safety standards. Review was directed on the following issues:(1) What effect if any should be given inthis case to Brennan v. Gilles & Cotting, Inc. and OSAHRC, 504 F.2d1224 (4th Cir. 1974), and Brennan v. OSAHRC and Underhill Construction Corp.,513 F.2d 1032 (2d Cir. 1975)?[1](2) Whether the Administrative Law Judgeerred in finding that respondent?s employees were not shown to have beenexposed to the hazards contemplated by the standards at 29 C.F.R. ?1910.178(m)(3), 29 C.F.R. ? 1910.22(a)(1), and 29 C.F.R. ?1910.106(e)(2)(iv)(b)?For the reasons that follow, we affirm theJudge?s decision which is attached hereto as Appendix A.[2]Complainant?s inspector was the onlywitness at the hearing. He testified that he conducted the inspection ofrespondent?s worksite, a marine terminal, under the assumption that the entireworksite was under the control of the Northeast Marine Stevedoring Company andoccupied solely by its employees. In actuality, the worksite was also occupiedby respondent, a company which is corporately separate from Northeast MarineStevedoring Company and which hires its own employees. Because of thiserroneous assumption, the inspector, upon observing noncompliant conditions,failed to inquire as to which company was responsible for the conditions andwhich company employed the workers who were exposed to the hazards caused bythose conditions. The only significant testimony he was able to give regardinghis observations of the three alleged violations enumerated in the seconddirected issue[3]is as follows:29 C.F.R. ? 1910.178(m)(3).[4] A high-low truck wascoming out of a shed on which two men were riding. The truck was equipped withonly one seat. One of the riders was a Mr. Lennon, the ?foreman of the pier.??29 C.F.R. ? 1910.22(a)(1).[5] Debris was scattered in astoreroom and in the garage. In the maintenance area of the garage, parts andmachines blocked access route for employees in the area.?29 C.F.R. ? 1910.106(e)(2)(iv)(b).[6] In the garage area,various machine parts were dripping gasoline. Employees were working in thearea which was blocked off for security reasons.Subsequent to the inspector?s notation ofthese violative conditions, he discovered that respondent was also an employeron the site. Upon this discovery, he and a Mr. Kiplock, who had identifiedhimself previously as the safety director for Northeast Marine StevedoringCompany, attempted to rectify the error by apportioning the violations betweenthe two companies. The inspector testified as follows regarding Mr. Kiplock?sviews on the equitable allocation of the violations:[D]uring the discussion, Mr. Chiplock[sic] suggested there were too many [violations] to lay off on the Stevedoreand they should be separated between the Stevedore and the Terminal operationbecause the Stevedore did not function and the Terminal did another function.Where the terminal made repairs and provided proper roadway and fire equipmentand whatever was necessary to maintain a good place to work and the buildingand shed and equipment, whereas the Stevedore?s primary function was to loadand discharge vessels and store the cargo and remove it from the sheds and loadand discharge trucks.?The Judge determined that the evidence wasinsufficient to prove that employees of respondent were exposed to thehazardous conditions. He concluded:[T]here is no probative evidence in therecord showing that the violations established exposed employees of therespondent, Northeast Marine Terminal Co., to the hazards contemplated by thestandards . . . While the compliance officer obtained the names of some of theemployers involved, he did not ask or otherwise determine for whom they wereworking . . . The failure of the compliance officer to obtain informationconcerning the employment status of the individuals affected by the violationsis understandable in light of his initial unawareness that more than oneemployer was involved at the worksite. Unfortunately, this does not cure thedeficiency in the evidence.?Violations of the Act cannot be predicatedon an arrangement between a compliance officer of the complainant and thesafety director of an employer who is not the respondent in this case, albeithe did have some overall supervision of the worksite.\u00a0We find that complainant has failed toestablish by a preponderance of the evidence[7] that any employee ofrespondent was actually exposed to the alleged hazardous conditions or hadaccess thereto. In view of that failure, we agree with the Judge?s dispositionof the exposure question.Moreover, we cannot infer from theevidence that respondent created the noncompliant conditions or was responsibletherefor. The inspector?s only information regarding respondent?sresponsibilities was from Mr. Kiplock. That evidence is much too inconclusiveand unreliable for us to conclude that respondent was the responsible employer.Mr. Kiplock simply outlined to the inspector the general functions ofrespondent and the general working areas of respondent?s employees. There wasno direct evidence from which we can reasonably infer that respondent was theemployer responsible for the alleged functions of respondent are inherentlyunreliable because his authority to of Mr. Kiplock on the professed functionsof respondent are inherently unreliable because his authority to representrespondent was not clearly shown. On the other hand, the Judge?s distrust ofMr. Kiplock?s allocation of the violations was justifiable since his authorityto represent the Northeast Stevedoring Company has not been questioned.Finally, we note our basic disapproval ofthe procedures followed by the inspector in this case. He should not haveattempted to correct his mistake by simply dividing up the violations,especially since he was dependent solely on the judgment of Mr. Kiplock to doso. It would have been more equitable, and simpler in the long run, for him tohave retraced his steps and determined for himself who was actually responsiblefor the conditions and whose employees were exposed to the resulting hazards.Because of the aforementioned evidentiarydeficiencies in complainant?s case on the responsibility and exposurequestions, the Judge?s decision holding that the citations must be vacated isaffirmed.?FOR THE COMMISSION:?William S. McLaughlinExecutive SecretaryDATED: AUG 31, 1976?CLEARY, Commissioner, DISSENTING:The Secretary of Labor has successfullycarried his burden of establishing respondent?s violation of section 5(a)(2) ofthe Act[8] for its failure to complywith the standards at 29 CFR ? 1910.178(m)(3), 29 CFR ? 1910.22(a)(1), and 29CFR ? 1910.106(e)(2)(iv)(b).[9] Hence, I do not agree withmy colleagues? disposition of this case.Our point of disagreement does not centeron whether the standards cited by the Secretary apply to the conditions atissue, nor, I believe, do we disagree that there has been a failure to complywith the cited standards. Indeed, Judge Chodes found that violations of the Actdid exist. Furthermore, I doubt seriously, based upon the record before, us,that my colleagues would argue that no employees were exposed to the hazardsoccasioned by the admittedly present violative conditions. In short, I submitthat the majority (a) knows the cited standards apply to the conditions atissue, (b) knows there has been a failure to comply with the cited standards,and (c) knows there are employees exposed to the hazards created by thesenoncomplying conditions. Yet, by all but ignoring essential facts, mycolleagues manage to vacate the citations.The majority concludes that it cannotinfer from the evidence that respondent created the noncomplying conditions orwas responsible therefor. The only way my colleagues can reach this conclusionis to discount completely the statements made to the Secretary?s complianceofficer (CO) by respondent?s safety director, Mr. Kiplock.[10]At the conclusion of the two dayinspection, respondent?s safety director told the CO[11] that Northeast MarineTerminal was responsible for providing and maintaining the roadway, work sheds,buildings, and equipment in the terminal. On the other hand, the safetydirector continued, Northeast Marine Stevedoring was responsible for loadingand discharging vessels, storing and removing cargo from sheds, as well as loadingand discharging trucks.[12]In addition to these general descriptions,respondent?s safety director assisted the CO in determining the responsibilityunder the Act for each noncomplying condition. Regarding both the poweredindustrial truck item [29 CFR ? 1910.178(m)(3)] and the housekeeping item [29CFR ? 1910.22(a)(1)], the safety director noted that Northeast Marine Terminal(respondent) was the proper party to cite since no ships were ?working? at thetime. In other words, there was no loading or unloading being done?the functionperformed by Northeast Marine Stevedoring. As to the flammable liquid item,respondent?s representative made it known that the gasoline was being used byNortheast Marine Terminal to clean equipment as part of its repair andmaintenance function.Even if respondent?s representative hadnever said a word to the CO, the safety director?s actions concerning the citeditems illustrate respondent?s control of the hazardous conditions.[13] Upon discovering thepowered industrial truck and housekeeping violative conditions, Mr. Kiplock,respondent?s safety director, ordered and obtained immediate abatement.As noted previously, the third violativecondition, that involving the flammable liquid, concerned the cleaning andmaintenance of certain equipment by Northeast Marine Terminal for eventual useby Northeast Marine Stevedoring. It is clear to me that respondent controlled,if it did not create, the physical conditions that resulted in the citations.Hence, we have an employer who controls hazards to which the employees ofanother employer engaged in work at the same site are exposed. Under suchcircumstances, I would extend the multiple employer precedent developed by theSecond Circuit in Brennan v. O.S.H.R.C. and Underhill Construction Corp.,513 F.2d 1032 (2d Cir. 1975)[14] and would find NortheastMarine Terminal Co. in violation of the Act for its failure to comply with thestandards at 29 CFR ? 1910.178(m)(3), 29 CFR ? 1910.22(a)(1), and 29 CFR ?1910.106(e)(2)(iv)(b).\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 8221 NORTHEAST MARINE TERMINAL COMPANY, ? \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 January 30, 1975DECISION AND ORDER?APPEARANCES:Theodore T. Gotsch, Esq., of New York, N.Y., for the Secretary of Labor\u00a0William M. Kimball, Esq., of New York, N.Y., for the Respondent\u00a0Joseph Chodes, Judge, OSAHRC?STATEMENT OF THE CASEThis is a proceeding pursuant to section10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. ? 651 et seq.)in which the respondent is contesting a citation issued by the complainantunder the authority vested in complainant by sections 9(a) of the Act (29U.S.C. ?\u00a0658(a)). After a complaint and an answer had been filed by theparties, the case came on for hearing at New York, New York on September 13,1974.The citation, which was issued on May 14,1974, following an inspection on April 3 and 4, 1974 of a place of employmentat the Marine Terminal at the foot of 39th Street, Brooklyn, New York, allegedthat the respondent violated section 5(a)(2) of the Act (29 U.S.C. ? 654(a)(2))by failing to comply with certain occupational safety and health standardspromulgated by the Secretary of Labor pursuant to section 6 of the Act (29U.S.C. ? 655) and codified in 29 Code of Federal Regulations, Chapter XVII,Parts 1910 and 1918.Specifically, the respondent was chargedwith a repeated violation and with nonserious violations as follows: Repeated Violation \u00a0 29 C.F.R. ? 1910.178(m)(3) in that respondent failed to prevent unauthorized personnel from riding on powered industrial trucks. \u00a0 Nonserious Violations \u00a0 1. 29 C.F.R. ? 1910.27(f) in that respondent failed to maintain all ladders in a safe condition and inspect all ladders regularly with the intervals between inspections being determined by use and exposure. ? 2. 29 C.F.R. ? 1910.22(a)(1) in that respondent failed to keep all places of employment clean and orderly and in a sanitary condition. ? 3. 29 C.F.R. ? 1910.213(h)(1) in that respondent failed to equip a radial arm saw with a lower blade guard in building 111A storeroom. ? 4. 29 C.F.R. ? 1918.25(e) in that respondent permitted the use of a portable straight ladder which failed to extend at least 36 inches above the upper landing surface in the garage from a platform to the 10 foot blockhouse. ? 5. 29 C.F.R. ? 1918.25(f) in that respondent failed to lash, block or otherwise secure a portable straight ladder in the garage used from a platform to the 10 foot blockhouse to prevent shifting or slipping. ? 6. 29 C.F.R. ? 1910.106(e)(2)(iv)(b) in that flammable or combustible liquids were used or handled in the garage machine repair area without providing means to dispose promptly and safety of leakage or spills. \u00a0 \u00a0Pursuant to the enforcement procedure setforth in section 10(a) of the Act (29 U.S.C. ?\u00a0659(a)), the respondent wasnotified by letter dated May 14, 1974, from Nicholas A. DiArchangel, AreaDirector of the New York area, Occupational Safety and Health Administration,U. S. Department of Labor, of the assessment of proposed penalties for theviolations totalling $620.PRELIMINARY MOTIONSThe respondent moved to vacate thecitations and proposed penalties on the grounds that the citation was notissued ?with reasonable promptness? as required by section 9(a) of the Act (29U.S.C. ? 658(a)). The authority relied on was Secretary v. Chicago Bridge& Iron Co., 6 OSAHRC 244 (1974). That case held that the issue ofreasonable promptness was an affirmative defense. In the absence of evidencethat the citation was issued more than three days after the complainant or hisauthorized agent had formed his belief that a violation had occurred (the rulefollowed in the Chicago Bridge case) the motion was denied (T?8).Another motion to vacate the citation andproposed penalties was made by respondent. It was contended that the citationsin the instant case should be vacated because a citation was issued to anotheremployer for alleged violations at the same worksite involved herein about amonth prior to the issuance of the citations in the instant case. The motionwas denied since any action taken by complainant against another employer isnot considered to be relevant to the disposition of this case (T?12).AMENDMENT OF CITATIONAt the hearing a motion to amend item 4 ofthe citation for nonserious violations to read ?29 C.F.R. 1918.25(e)? wasgranted (T?91).SUMMARY OF EVIDENCE ANDDISCUSSIONOn April 3 and 4, 1974, Joseph D. Martino,one of the claimant?s compliance officers, inspected Marine Terminal at thefoot of 29th Street, Brooklyn, New York, comprising several piers consolidatedinto one complex (T?14, 15). He met with Mr. Kiplock, safety director for theNortheast Stevedoring Co. (a different company from Northeast Marine TerminalCo., the respondent herein) and Mr. Viola, vice president of NortheastStevedoring Co. (T?15, 16, 19). Mr. Martino was accompanied on his inspectionby Mr. Kiplock, and Mr. Ciccone and Mr. Santos, shop stewards for Local 1814,I.L.A. (T?23, 24). Initially, Mr. Martino did not know that another company,the respondent Northeast Marine Terminal Co., Inc. was also working at theterminal.At the conclusion of the inspection, Mr.Martino held a closing conference with Mr. Kiplock during which they discussedabout 27 alleged violations observed during the inspection. Mr. Kiplock statedthat there were too many violations to ?lay off? on Northeast Stevedoring Co.and suggested that, since Northeast Stevedoring Co. performed one function atworksite (loading and discharging vessels, storing and removing cargo fromsheds, and loading and discharging trucks) while the respondent NortheastMarine Terminal Co. performed other functions (repairs, maintenance and care offire equipment), the violations should be divided between the two companies.Mr. Martino and Mr. Kiplock went down the list of violations and agreed tocharge the respondent with the violations relating to the operational featuresat the terminal and to charge Northeast Stevedoring Co. with the otherviolations (T?26, 27). The determination with respect to which violations wouldbe charged against each employer was made by mutual agreement between Mr.Martino and Mr. Kiplock acting as representatives of management for bothemployers (T?67, 83, 85).Following Mr. Martino?s inspection, acitation was issued against Northeast stevedoring Co. on April 15, 1974 for 14or 15 violations (T?85) and later, on May 14, 1974, citations were issuedagainst the respondent which are the subject of this proceeding.Mr. Martino, who was the only witness atthe hearing, testified to facts from which violations of the standards chargedagainst the respondent could be inferred. However, there is no probativeevidence in the record showing that the violations established exposedemployees of the respondent, Northeast Marine Terminal Co., to the hazardscontemplated by the standards.There is evidence that Mr. Magna, who isvice-president of Northeast Marine Terminal Co., the respondent herein, abateda violation involving an unauthorized rider on a powered industrial truck, butthe identity of the employer of the employees involved was not elicited (T?49,50). The compliance officer was not sure who hired the employees (T?52). Mr.Magna also ordered abatement involving a ladder violation, but here again,there is no definite evidence indicating for whom the involved employees worked(T?92, 93). While the compliance officer obtained the names of some of theemployers involved, he did not ask or otherwise determine for whom they wereworking (T?31, 75). The failure of the compliance officer to obtain informationconcerning the employment status of the individuals affected by the violationsis understandable in light of his initial unawareness that more than oneemployer was involved at the worksite. Unfortunately, this does not cure thedeficiency in the evidence.Violations of the Act cannot be predictedon an arrangement between a compliance officer of the complainant and thesafety director of an employer who is not the respondent in this case, albeithe did have some overall supervision of the worksite. This is particularly sowhere the determining factor as to which employer to cite was the nature of thework employees were performing at the time the violation was observed, ratherthan the identify of the employer whose employees were exposed to the hazard.Absent proof that the violations foundexposed employees of this respondent to the hazards contemplated by thestandards violated, a citation against the respondent cannot be sustained. Theprinciple was expressed by Chairman Moran in Secretary v. Otis Elevator Co. No.688 (October 8, 1974) as follows:This Commission has consistently held thatjust because a condition on the worksite fails to comply with thespecifications of a standard, a violation of the Act has not been established.There must be evidence that employees of respondent have been exposed to thehazard as a result of noncompliance. Secretary v. Hawkins Construction Co.,OSAHRC Docket No. 949 (May 20, 1974); Secretary v. City Wide TuckpointingService, OSAHRC Docket No. 247 (May 24, 1973).?FINDINGS OF FACTOn the basis of the citations,notification of proposed penalty, notice of contest, pleadings and therepresentations of the parties, it is concluded that on the basis of the recordas a whole, a preponderance of the evidence supports the following findings offact:1. The respondent is an employer engagedin a business affecting commerce (respondent?s answer, paragraph 2).2. On May 14, 1974, the complainant issuedcitations for a repeat violation and for nonserious violations as set forthabove under the heading ?Statement of the Case? and at the same time therespondent was notified of the proposed penalties totalling $620.3. On May 28, 1974 the respondent filedwith the complainant a notice of contest of the citations and proposed penaltyreferred to in paragraph 2 above.4. An inspection of a workplace at theMarine Terminal at the foot of 29th Street, Brooklyn, New York, made on April 3and 4, 1974, revealed that the standards set forth above under the heading?Statement of the Case? had been violated, but the evidence does not establishthat any of the respondent?s employees were affected by the violations orexposed to the hazards contemplated by the standards.CONCLUSIONS OF LAW1. The respondent at all times materialhereto was engaged in business affecting commerce within the meaning of section3 (5) of the Occupational Safety and Health Act of 1970.2. The respondent at all times materialhereto was subject to the requirements of the Occupational Safety and HealthAct and the standards promulgated thereunder, and the Commission hasjurisdiction of the parties and of the subject matter herein.?3. The respondent did not violate thestandards set forth above under the heading ?Statement of the Case?.ORDERUpon the basis of the foregoing findingsof fact and conclusions of law, and upon the entire record, it isORDERED that the citations issued on May14, 1974 for violation of 29 C.F.R. sections 1910.178(m)(3); 1910.27(f);1910.22(a)(1); 1910.213(h)(1); 1918.25(e); 1918.25(f); and1910.106(e)(2)(iv)(b) and the proposed penalties totaling $620 are herebyvacated.?JOSEPH CHODESJUDGE, OSAHRCDated: January 30, 1975?New York, New York[1] This issueconcerns the liability of employers on multi-employer worksites. In Secretaryv. Anning-Johnson Co., OSAHRC Docket No. 3694, May 12, 1976, and Secretaryv. Grossman Steel & Aluminum Corp., OSAHRC Docket No. 12775, May 12,1976, a divided Commission held that an employer on a multi-employerconstruction site who creates or controls a hazard to which employees of anyemployer are exposed is liable. The Commission further held that an employerwho did not create or control a hazard but whose employees were exposed theretowas also liable under certain circumstances. A divided Commission has also heldthat exposure is to be determined by a rule of access. Secretary v. Gilles& Cotting Inc., OSAHRC Docket No. 504, Feb. 20, 1976.In this case, we find a failure ofproof both as to whether respondent created or controlled the hazardousconditions shown to exist and whether respondent?s own employees were exposedto the hazards. Therefore, respondent is not responsible under any theory ofliability and further discussion of this matter is obviated. Consequently, thedivergent positions Chairman Barnako and I both took in the above decisions inno way are inconsistent with our agreement in this opinion.[2] Chairman Barnakodoes not agree to this attachment.[3] The complainantargues in his review brief that only these three violations are in issue andrequests reversal of the Judge?s decision only as to those violations.\u00a0[4] This standardprovides that:Unauthorizedpersonnel shall not be permitted to ride on powered industrial trucks. A safeplace to ride shall be provided where riding of trucks is authorized.\u00a0[5] This standardprovides that:Allplaces of employment, passageways, storerooms, and service rooms shall be keptclean and orderly and in a sanitary condition.[6] This standardprovides that:Where flammable or combustible liquids areused or handled, except in closed containers, means shall be provided todispose promptly and safely of leakage or spills.[7] See OlinConstruction Co. v. OSAHRC, 525 F.2d 464 (2d Cir. 1975); Secretary v.Armor Elevator Co., 5 OSAHRC 260 (1973).[8] 29 U.S.C. ?654(a)(2).\u00a0[9] The standardshave been set out in the majority opinion.\u00a0[10] The majoritystates that Mr. Kiplock?s ?authority to represent respondent was not clearlyshown.? I disagree. There is unrebutted testimony establishing that Mr. Kiplockwas the safety director for both Northeast Marine Stevedoring Company andNortheast Marine Terminal Company (respondent). In addition, he was named assuch in a letter from respondents counsel to Judge Chodes. The letter, inpertinent part, reads as follows:\u00a0Respondent may call as a witness itssafety director, P. Kiplock, who is an expert on terminal activities andwho may testify concerning specific facts of each claimed violation . . .(emphasis added).[11] The testimony ofthe compliance officer with respect to the safety director?s statements isarguably hearsay. These statements, however, were admissions of aparty-opponent by an employee concerning a matter within the scope of hisemployment. See McCormick, Handbook of the Law of Evidence, Sec. 267 (2ded. 1972). As such, the statements are reliable and probative. See 5 U.S.C. ?556(d). Furthermore, the Federal Rules of Evidence characterize such admissionsas non-hearsay, F.R.E. 801(d)(2), and freely admissible to prove the truth ofthe matter asserted.[12] This breakdown ofassigned responsibilities comports with the commonly recognized stevedorefunctions. indeed, ?stevedore? as a term is defined as ?to work at or undertakeresponsibility for the loading and unloading of a ship.? Webster?s Third NewInternational Dictionary (unabridged, 1971).\u00a0[13] In determining ifone has control of a hazardous condition, the Commission considers whether theemployer ?realistically had the means to rectify the condition in the mannercontemplated by the cited standard? (footnotes omitted). Anning-JohnsonCompany, Nos. 3694 & 4409, BNA 4 OSHC 1193, CCH OSHD para. 20,690(1976). The ?means to rectify? refers not only to actual physical capability,but includes also the ability to order abatement. See Anning-JohnsonCompany, supra.[14] The Commissionhas stated previously that it will follow the Second Circuit?s Underhilldecision. Anning-Johnson Co., Nos. 3694 & 4409, BNA 4 OSHC 1193, CCHOSHD para. 20,690 (1976); Grossman Sheet & Aluminum Corp., No.12775, BNA 4 OSHC 1185, CCH OSHD para. 20,691 (1976).”