GULF STEVEDORE CORPORATION

OSHRC Docket No. 76-926

Occupational Safety and Health Review Commission

June 28, 1977

� [*1] �

Before BARNAKO, Chairman; and CLEARY, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Norman Winston, Assoc. Regional Solicitor, U.S. Department of Labor

Capt. C. G. Pormetter, Gulf Stevedore Corporation, for the employer

OPINION:

DECISION

BY THE COMMISSION: On August 4, 1976, Review Commission Judge John A. Carlson issued a decision affirming four of the five items in a nonserious citation. � That decision, which is before this Commission for review pursuant to 29 U.S.C. � � 661(i), is affirmed for the reasons that follow.

In its petition for review, respondent requests reversal of the Judge's disposition of items 4 and 5 of the citation because respondent's senior representative at the site did not accompany the compliance officer during that portion of the inspection. * This contention, however, is untimely because respondent did not raise the issue at any time in the proceedings below. � The Commission has held that it will generally decline to consider nonjurisdictional issues which have not been expressly or impliedly litigated prior to review. � See Bechtel Power Corporation, 76 OSAHRC 38/E2, 4 BNA OSHC 1005, 1975-76 CCH OSHD para. 20,503 n. 13(a) (No. 5064, � [*2] � 1976) and the cases cited therein. � Moreover, a challenge to the manner in which an inspection is conducted is in the nature of a defense and, therefore, is waived if not timely raised. � Cf. Gannett Corporation,    OSAHRC   , 4 BNA OSHC 1383, 1976-77 CCH OSHD para. 20,915 (No. 6352, 1976).

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* Respondent was entitled, under 29 U.S.C. � � 657(e), to be given the opportunity to have his representative accompany the compliance officer "during the physical inspection of [his] workplace . . . for the purpose of aiding such inspection."

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In any event, respondent's contention lacks merit. � The senior representative at the site did not accompany the compliance officer for the phase of the inspection conducted aboard ship, during which the violations alleged in items 4 and 5 were detected. � However, the inspector was accompanied during that part of the inspection by respondent's ship superintendent, who was himself a managerial employee and competent representative. � Consequently, the accompaniment requirements of 29 U.S.C. � [*3] � � � 657(e) were satisfied. � See Northewestern Insulation Company,    OSAHRC   , 5 BNA OSHC 1148, 1977-78 CCH OSHD 21,614 (No. 12632, 1977).

Accordingly, the Judge's decision is affirmed. �