CRESCENT WHARF & WAREHOUSE CO.
OSHRC Docket No. 1
Occupational Safety and Health Review Commission
April 27, 1973
Before VAN NAMEE and BURCH, Commissioners
OPINIONBY: VAN NAMEE
OPINION:
VAN NAMEE, COMMISSIONER: This matter is before the Commission upon my order directing review of a decision rendered by Robin S. Heyer, A.L.J. In accordance with his decision Judge Heyer ordered affirmance of a citation for a serious violation of 29 C.F.R. 1504.43(e) and of Section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq., hereinafter "the Act"). A civil penalty in the amount of $600 was assessed against the Respondent.
In his decision Judge Heyer touched upon matters of Commission procedure. He also interpreted the Act's provisions in areas not pertinent to the ultimate disposition of the case. However, we had issued our interim rules of procedure prior to the issuance of the Judge's decision in this case and they answer procedural questions raised by the Judge. Similarly, matters of law treated in the decision and not necessary thereto are merely dicta.
We have reviewed the record, the Judge's decision and the briefs of the parties. On the basis of such review the decision of the Judge is affirmed only to the extent that it is consistent herewith.
On June 2, 1971, Respondent had employees engaged in the loading of flour into the hold of the Indian ship Vishva Vikran at Seattle, Washington. The operation was accomplished by loading pallets with sacks of flour and then using a hook and bridle assembly suspended from a powered boom to transfer each pallet from a dock through a deck hatch and into the ship's hold. Respondent's employees working in the hold would unload the flour from the pallets, stow the flour, and stack the empty pallets in a section of the hold. After the foregoing operation was completed the hook and bridle assembly was returned through the hatch for another load. On occasion, empty pallets and dunnage would make up a return cargo. The hooks used in the operation were suitable for handling loads of at least two and one-half tons.
On the date mentioned, the Secretary, by his safety and health Compliance Officer, inspected Respondent's operation. The officer observed the loading operation at hatches one through four and noted that two MacGregor pontoons were covering a portion of hatch number 4. The pontoons were not secured to the coaming or the deck, and Respondent employed about ten men in the ship's hold thirty feet beneath the pontoons. The pontoons were rectangular metal pieces weighing approximately two tons each.
Respondent had actual knowledge that the pontoons had not been secured. Its walking boss, who supervised hatch number 4, testified that he was first informed of the situation by his superior at least two hours prior to the safety and health compliance inspection. He stated that he had not gotten around to securing the pontoons.
The record reflects that if the pontoons were dislodged they would fall into the hold and the men working therein would have little chance to escape being hit by them. Respondent has conceded that if the unsecured pontoons were accidentally dislodged, serious injury would result to the men working in the hold.
On these facts there can be no question that Respondent was in violation of 29 C.F.R. 1504.43(e) (subsequently redesignated 29 C.F.R. 1918.43(e)) and of Section 5(a)(2) of the Act. In pertinent part the standard is as follows:
Any beam or pontoon left in place adjacent to a section through which cargo, dunnage, equipment or any other material is being worked, shall be lashed, locked, or otherwise secured so that it cannot be displaced by accident.
The pontoons on number 4 hatch were not lashed, locked, or otherwise secured, and cargo was being worked through the hatch. The Secretary established the possibility of displacement. Respondent did not contend otherwise; its evidence went to the remoteness of the possibility. Accordingly, a violation is established. See: United States v. Grace Lines, Inc., 221 F. Supp. 339 (S.D.N.Y. 1963).
The question that remains is whether the violation was serious within the meaning of Section 17(k) of the Act. n1
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n1 Section 17(k) is as follows:
"For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation."
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Respondent contended that such violation could only be established upon proofs showing (1) that it is substantially probable that an accident could occur as the result of a violative condition and (2) that it is substantially probable that death or serious physical harm will be incurred as a result of the accident. The Secretary contended that he need only establish the second of the two afore-named elements of proof. Both parties adduced evidence on the first-named element.
In this regard, it was the opinion of the Compliance Officer that during the loading operation the bridle assembly always swings and could dislodge a pontoon by striking it horizontally. He also opined that during the return operation (particularly when dunnage was being off-loaded) the hook and bridle assembly could catch and dislodge a pontoon as the assembly is lifted through the hatch. He observed a return load of empty pallets swing under and very close to one unlashed pontoon at hatch number 4. Another of the Secretary's witnesses corroborated the opinion evidence of the Compliance Officer. Moreover this witness knew of an instance where an unsecured pontoon had been dislodged during an unloading operation.
Respondent's walking boss gave his opinion that dislodgement was possible but not probable in view of the care taken to eliminate swing of the hook and bridle asembly. Respondent's stevedoring superintendent was of the opinion that the pontoons could not be dislodged during the loading operations observed by the Compliance Officer. He did allow, to a certain extent, that the safety of the operation was in the hands of the winch operator. And, he was of the view that Respondent employed fairly prudent winch drivers.
By his decision, Judge Heyer accepted Respondent's argument in part. He, in essence, held that the term "substantial probability" means reasonably foreseeable, and he applied it to both elements of proof named by Respondent. That is, he said it must be reasonably foreseeable that an accident will occur and reasonably foreseeable that the result of the accident will be death or serious physical harm.
The Judge's definition of the term "substantial probability" is in error. The error occurs because the Judge did not give the words of the term their ordinary meaning as is required when a statute does not provide a specific definition. Helvering v. Hutchings, 312 U.S. 393 (1941); Malat v. Riddell, 383 U.S. 569 (1966). On the other hand, we will not attempt a universal definition since both words of the term "substantial probability" do not have a precise meaning in the abstract. What is probable and what is substantial depends entirely on the facts of the case to which an attempt is made to apply the term.
The Judge also erred by requiring proof concerning the probability of an accident occurring as the result of an existing violative condition. His decision in this regard and Respondent's proposal are in error for the reason that they contravene the statutory purpose by altering the legislative scheme for civil enforcement.
The fundamental purpose of this Act is "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions." n2 It is a matter of common knowledge that the accomplishment of such purpose is best obtained by the voluntary efforts of those who are required to comply with the provisions of the law. Thus, civil enforcement provisions such as those prescribed in the Act are primarily intended to induce voluntary compliance. Therefore, they must be construed in a manner so as to best accomplish that end.
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n2 29 U.S.C.A. 651(b).
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Our review of the civil enforcement provisions indicates that each such provision was carefully drafted by the Congress so as to fit the means for inducing voluntary compliance to the occupational safety and health conditions covered by each provision. The entirety of the provisions provides a total scheme for accomplishing the desired end. The scheme is best understood through an examination of the individual provisions.
Section 9(a) provides for the issuance of a de minimis notice in those cases where a violation does not bear a direct and immediate relationship to safety or health. Such relationship may be characterized as one in which the violation does not itself produce or through the action of some other immediate means produce an injury or illness. No penalties are provided for de minimis violations.
The second step in the civil enforcement scheme is provided for by section 17(c). That is, discretionary penalties for violations of other than a serious nature may be assessed. A definition is not provided for this violation. However, since express definitions are provided for both de minimis and serious violations the definition of a non-serious violation must be intermediate of the other two. Accordingly, a non-serious violation is one in which there is a direct and immediate relationship between the violative condition and occupational safety and health but not of such relationship that a resultant injury or illness is death or serious physical harm.
It is apparent that the legislative scheme as illustrated up to this point distinguishes between types of violations on the basis of the type of injury or illness that may be incurred from an unabated violative condition. Respondent's proposed construction of section 17(k) would necessarily change the scheme by classifying some violative conditions as non-serious when they can, in fact, produce death or serious physical harm. Such construction ignores the fact that accidents do not normally happen just because a violative condition exists. Rather, accidents are caused by other forces operating on the violative condition.
The facts of this case are illustrative. The pontoons were not secured, but since they were seated they would not fall unless some other force made them fall. One such force is supplied by the hook and bridle assembly as operated by Respondent's winch operator. Obviously, some winch operators are more skilled than others. Accordingly, given the violative conditions of this case the probability of an accident occurring will vary from one winch operator to another. It may therefore be concluded that as to some winch operators there is a substantial probability that they will operate the hook and bridle assembly so as to dislodge a pontoon or hatch beam. See Secretary of Labor v. H & H Ship Service Company, United States v. Grace Lines, Inc., supra. Thus under Respondent's proposed construction a violation of the type involved in this case may be serious or non-serious as determined, inter alia, by the ability or lack thereof of a winch operator.
There can be no doubt than the proposed construction relegates to the category of non-serious violations conditions that can be productive of death or serious physical harm. Such construction is contrary to the civil enforcement scheme as illustrated to this point.
Moreover, as a practical matter of proof, the proposed construction would almost always restrict the category of serious violations to those wherein it can be shown that an accident is imminent. The reason is that in such situations the operative effect of the other force, unlike the varying abilities of winch operators, is reasonably certain and therefore fairly susceptible of proof. For example, if it is known that explosive concentrations of gas are present it is reasonably certain that an explosion will occur if sources of ignition are brought into contact with the gas. Hodgson v. Greenfield & Associates, 1 BNA OSHR 1015 (not officially reported) (E.D. Mich., 1972). Similarly, if the side walls of a trench dug in loose material are nearly vertical and not supported (by shoring for example) it is reasonably certain that natural forces will operate to effect a cavein. Hodgson v. A.G. Pinkston Company, CCH ESHG par. 15,498 (not officially reported) (E.D. Va., 1972); Brennan v. Dye Construction Company, Inc., Docket No. C 4834 (D. Col. March 23, 1973).
The Congress was specifically concerned about imminent danger situations and by section 13 it specifically provided for the abatement of hazardous conditions in such situations. Under that section the United States district courts are authorized to issue temporary restraining orders and provide injunctive relief when it is shown that death or serious physical harm is imminent as the result of a condition existing in a place of employment.
It is clear that if Congress had intended that section 17(k) be limited as Respondent proposes then the language of section 17(k) would have been worded like section 13 to reflect that intention. The language is different and so too the intent.
For the foregoing reasons we conclude that section 17(k) is to be interpreted so as to preclude a requirement that the Secretary prove to a substantial probability that an accident will occur from a violative condition. It is our conclusion that the section requires proof of a substantial probability that the consequences of an accident resulting from a violative condition will be death or serious physical harm.
In this case there is no question that the result of an accident will be death or serious physical harm. Nor is there any question that Respondent knew of the existence of the violation. n3
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n3 The second element of proof of a serious violation is that the employer knew, or with exercise of reasonable diligence could have known, of the presence of the violation. Although it is not necessary for disposition of this case we would point out that the statutory scheme changes with the definition of Section 17(k). That is, the element of knowledge or the ability to obtain knowledge is added. It will be noticed that knowledge is the predominant factor in considering whether a violation is willful or repeated. ( Secretary of Labor v. Wetmore and Parman, Inc., Similarly, in failure to abate situations under section 17(d) the employer has been put on notice of the existence of a violation since a citation for such had previously issued.
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For these reasons we conclude that Respondent was in serious violation of the standards prescribed by 29 C.F.R. 1504.43(e) and of section 5(a)(2) of the Act.
We turn now to the assessment of an appropriate penalty. The record shows that the Secretary proposed a penalty of $600 and in arriving at this amount considered the Respondent's size, history of previous violations and good faith. No credit was accorded for the gravity of the violation as the proposed penalty was reached by taking the maximum unadjusted penalty of $1,000 and reducing it in accordance with weighted credit allowed for the three aforementioned factors.
Judge Heyer re-evaluated the penalty proposed by the Secretary. In doing so he considered all four factors set forth in section 17(j) of the Act and concluded that under the circumstances a penalty of $600 was appropriate. We find no error in the final weight accorded Respondent's size, history of previous violations, good faith and the gravity of the violation.
Accordingly, it is ORDERED that the citation for serious violation be affirmed and that a civil penalty of $600 be assessed against Respondent.
[The Judge's decision referred to herein follows]
HEYER, JUDGE, OSAHRC: This matter came on regularly for hearing on July 29, 1971, at Seattle, Washington, before the undersigned Robin S. Heyer, as Hearing Examiner for the Occupational Safety and Health Review Commission of the United States, upon written notice given on July 12, 1971, and further written notice revised and given on July 19, 1971.
On June 2, 1971 and United States Secretary of Labor issued to the contestant, Crescent Wharf and Warehouse Company, a "Citation for Serious Violation," identified as Citation Number 1, alleging violation of the Occupational Safety and Health Act of 1970 (29 U.S.C. section 651 et seq., hereinafter sometimes designated "The Act" or "O.S.H.A.") on the ground that "hatch weather deck center pontoons, left in place, next to forward and after sections where cargo [was] being worked [had not been] secured against accidental displacement," in asserted violation of 29 C.F.R. section 1504.43(e) "as adopted by 29 C.F.R. section 1910.16."
The Secretary also issued a "Notification of Proposed Penalty" in the amount of $600.00 on June 9, 1971, on the basis of the citation just mentioned.
On the following day the contestant notified the Secretary of Labor that it intended to contest both the citation and the proposed assessment of penalty before the Occupational Safety and Health Review Commission. The Commission assigned the case to the present hearing examiner for hearing and determination, and without further formal pleadings the matter proceeded to hearing as noted above. No affected employees or representatives of the same have formally appeared as parties. Evidence, oral and written argument, proposed findings, and a motion to dismiss have been presented, and the matter is taken under submission on all matters at issue.
GENERAL CONSIDERATIONS
Contestant's counsel correctly points out (Memorandum, page 3, 11. 26-30) that it "is entitled to an impartial decision upon the record of evidence adduced at the hearing just as if this . . . case . . . [were being] adjudicated a dozen years after the . . . passage" of the Occupational Safety and Health Act under a five-digit docket number. That the same standards of adjudication must be applied to all parties similarly situated is the fundamental concept of the rule of law. A relatively complete explanation of the nature of those standards, however, may be especially helpful in early cases arising under a new statute. Several aspects of the case are therefore examined below which future decisions will not need to repeat.
PROCEDURAL DESIGNATION OF THE PARTIES
Respective counsel have for convenience referred variously to the contestant as "defendant," suggested by the analogy of civil actions before the courts, and "respondent," by analogy to administrative proceedings related to regulatory business licensing and others, where the initiating party is respectively plaintiff or petitioner. In this proceeding, however, the statute does not give the Commission effective power to exercise its discretion by reason of the filing of a complaint or petition by the Secretary, but only by reason of the cited employer's notifying the Secretary of intent to contest (29 U.S.C. section 659; section 10 of the Act).
Although the Secretary is a party to the proceeding before the Commission (cf. 29 C.F.R. section 2200.5, although technically this rule was not yet in force at the time of the hearing of the present case), he is also a sort of lower tribunal, in the sense that he issues a citation and fixes a penalty which both become final if no notice of intent to contest is timely given. Such a final citation is "deemed" a final order of the Commission, but the Commission may in fact and lawfully never know of it and has in such case no actual power to act on it, modify it, etc. (29 U.S.C. section 659; section 10 of the Act).
Further, use of the term "defendant," regardless of whether it is considered technically correct in criminal cases, has to the lay ear a criminal ring, which Congress seems to have intended to avoid by expressly designating the penalty involved here as a civil rather than a criminal one [29 U.S.C. section 666 (section 17 of the Act), subsections (b) and (c)]. Furthermore, the employer does not so much "respond" as "initiate" the active intervention of the Commission by his notice of intent to contest, which in a sense is a species of appeal. Therefore neither of the terms used above seems suitable.
The statute itself uses the term employer to designate that party. On that basis the hearing examiner initially inclined to use of that term, and the Commission itself used that designation on its printed notice forms. Yet the very question before the Commission in some case could be whether the party contesting the citation which named it as an employer is actually an employer as that term is used in the Act. To use the term in such a case might give the unfortunate impression of prejudgment, or create confusion, or both. Hence a less loaded term seems preferable. Appellant seems inappropriate, despite the comment above about the appellate nature of the proceeding, because the case is heard de novo rather than on a record of some previous hearing.
The statutory reference to notice of intent to contest suggests that the party is contesting, and hence should be designated as contestant. Where necessary, the designation can also indicate whether the contestant (1) was cited as an employer, or (2) appears as an affected employee, or representative of one or more affected employees [29 U.S.C. section 659(c), first example]. Such is therefore the designation in this document.
BURDEN OF PROOF: VIOLATION
This proceeding arises under the Occupational Safety and Health Act, codified at 29 U.S.C. sections 651 ff. Section 10(c) of the Act [29 U.S.C. section 659(c)] provides for a hearing in accordance with 5 U.S.C. section 554, which in turn requires the hearing and decision to accord with 5 U.S.C. section 556, imposing the burden of proof on "the proponent of . . . [an] order," except as otherwise provided by statute [but see Day v. N.T.S.B. (1969) 414 F.S. 950]. The principal statute, O.S.H.A., does not provide otherwise; under it the Secretary's issuance of a citation initiates a proceeding which may result in issuance of an order by the Commission [cf. Kirby v. Shaw (1966) 358 F. 2d 446; Concrete Materials Corp. v. Federal Trade Commission (7 Cir.) 189 F. 2d 359]. While the contestant's affirmative request implied by the notice of intent to contest also proposes an order [cf. Stewart v. Penny (1965) 238 F.S. 821; Overnight Transportation Co. v. U.S. (1967) 266 F.S. 88; and Ryan v. Fleming (1960) 187 F.S. 655], the contest is fundamentally in the nature of an answer to charges brought by the Secretary.
The ordinary presumption that the law has been obeyed and that a person is innocent of wrongdoing [see, for example, Concrete Materials Corp. v. F.T.C., supra; Pacific National Fire Insurance Company v. Mickelson (8 Cir. 1956) 235 F. 2d 425, 428] impose the burden of proof,, relating to a charge of wrongdoing, upon the party so asserting, which means no more than that, if evidence does not show that the charge is true, the finding must be the same as though the charge were shown to be untrue.
This presumption and the charging nature of the Secretary's role are more fundamental and significant here than the presumption of correctness of official action, which arises from the same basic premise, and is the reason behind the other aspect of the statutory allocation of burden of proof, i.e., that the party seeking affirmative relief must normally bear the burden of proving entitlement to such relief.
That the statutory allocation of burden of proof arose from these origins, was not intended to disturb the "traditional" refinements in their application worked out over the centuries in common-law procedure, and could be applied in measure and differentially to different issues in the same proceeding, even before administrative agencies, is well shown by N.L.R.B. v. Mastro Plastics Corporation (1965) 354 F. 2d 170, where the court applied the predecessor of 5 U.S.C. section 556 (5 U.S.C. section 1006) in such a way as to distinguish between the fundamental "burden of proof," often now called the "fisk of nonpersuasion," on one hand, and on the other the "burden of producing evidence," or burden of going forward, thus upholding the administrative Board in requiring the respondent to produce evidence on "affirmative defenses" in order to prevail with respect to them, once the evidence established the charge prima facie (354 F. 2d at 175-6).
The court there also gave weight to the practical consideration that "the burden of going forward normally falls on the party having [a consistent significant advantage in opportunity for] knowledge of the facts involved" ( ibid., p. 176). In this respect, only the Secretary can know precisely what facts constitute the charge and the basis for the penalty, but the contestant best knows its own degree of good faith, and size of business, while the parties are essentially on an equal footing in knowing the history of previous violations and the elements affecting the gravity of the violation.
The proper reconciliation and application of these principles to the present type of case first requires proof of the violation of the law -- a finding of such violation can be made only if the evidence, fairly viewed, so establishes by a preponderance of the evidence.
BURDEN OF PROOF: PENALTY
The size of the penalty is determined initially by the Secretary, exercising fairly broad discretion. The statute does not prescribe a precise formula. By giving the Secretary this power to make an initial determination of penalty, Congress showed that it did not intend the Secretary merely to perform a role comparable to that of a traffic officer, who arrests or cites and leaves the penalties solely to the court, but rather intended to entrust the Secretary with discretion, subject to review to assure fairness. The penalty imposed by the Secretary therefore should be upheld unless evidence shows that it is unfair.
The Congress did however give the Commission the power and duty to review the penalty, and specified major factors to take into consideration in doing so. The Commission must therefore examine the penalty for fairness and to determine whether it represents the result of consideration of the factors intended by Congress, or disregard of them in favor of others.
But if only the Secretary's agents know how the decision was reached, and conceal this information from the Lcommission, they preclude the Commission from performing its statutory duty. Such a defeat of the will of the American people as expressed by their elected representatives in the Act would clearly contravene public policy. Therefore public policy requires that the manner by which the penalty was computed or determined must be revealed by the Secretary if the penalty is to stand, unless for some reason the Secretary cannot show how this was done (as might happen, for example, if no standard existed and the individual officials were dead or otherwise unavailable, having left no record). The only fair alternative to such a rule, affording meaningful review, would be for the Commission to establish its own standard, ignoring what the Secretary has done. While the commission has the power to adopt such a course, judicious reserve is appropriate in the initial stages of a new program.
Therefore, the burden of proof must initially fall on the Secretary to show how the penalty was determined, and to that extent to show that the process was rational and included giving appropriate weight to the factors which Congress required to be considered. Only in this way can the Congressional will that these factors govern be given effective protection. This approach is also consistent with broader Congressional intent that the basic standards for public action be open to the public [5 U.S.C. section 552, especially clauses (a)(1) and (2); Epstein v. Resor (9 Cir. 1970) 421 F. 2d 930, cert. den. 398 U.S. 965; Wellford v. Hardin (1971) 444 F. 2d 21; La Morte v. Mansfield (1971) 438 F. 2d 448; Bristol-Myers Co. v. F.T.C. (1970) 424 F. 2d 938, cert. den. 400 U.S. 824].
Once having shown, however, that the penalty was reached by a rational process giving due weight to the relevant and required factors, the Secretary has satisfied this special burden imposed by public policy. If he has shown that his agents were thinking of the right factors and weighing them in acceptable proportions, he is not bound to prove that in regard to these factors they were correct in their judgments. The burden of proof as to the objective factual soundness of their judgments rests on the party who would attack them.
In evaluating the penalty, then, two successive burdens apply: (1) Unless the Secretary can prove inability to show how the determination of penalty was made, his determination cannot be upheld unless he does show it was made rationally, on consideration of the matters Congress intended to have considered; but (2) when this has happened, and the Secretary's agents have revealed what they considered and how they applied that consideration, their determination must be upheld unless the evidence affirmatively shows that the determination was improper, either because the law was not followed, or because the facts (say, size of enterprise or extent of previous experience) which they believed to be true and on which they relied are proven false, or because of inconsistent application of standards, or for some other demonstrated reason. In this sense, the burden of proving factors which would affirmatively show the impropriety of the penalty determination rests on the party attacking the proposed penalty.
If the violation is established but the Secretary's penalty proposals do not meet the statutory standards, then the Commission must determine (1) whether a penalty is appropriate, and (2) if so, its proper amount.
NATURE OF PROOF
Under section 9 of the Act (29 U.S.C. section 658) a citation is issued for violating:
"a requirement
[1] of section 5 of this Act,
[2] of any standard, rule [,] or order promulgated pursuant to section 6 of this Act, or
[3] of any regulation prescribed pursuant to this Act . . ."
Section 5 imposes two duties on employers:
(1) furnishing to his employees "employment and a place of employment . . . free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees," and
(2) complying with occupational safety and health standards promulgated under the Act.
Section 6 authorizes the Secretary to promulgate, as an occupational safety or health standard, any existing scandards of certain types, or new standards, rules, and orders, following prescribed procedures.
In the absence of proof of inadequacy of the procedure followed, it will be presumed that the rules, standards, and regulations purportedly adopted by action published in the Federal Register or the Code of Federal Regulations have been validly promulgated and remain in force. If the matter is not asserted as an issue, official notice will be taken of matters published in the Federal Register and in The Code of Federal Regulations.
In the absence of objection made on or before the hearing date, or evidence offered at the hearing, it will be presumed that the parties are in no way prejudiced, disadvantaged, or otherwise adversely affected by, and therefore waive objection to, any defect of mere form, including the absence of more formal pleadings than the citation, notice of proposed penalty or amendments thereof, and notice of intent to contest.
The basic burden of the Secretary is to prove violation of a standard adopted by the Secretary under the Act, and that his proposed penalty is reasonable. Prima facie the Secretary satisfies this burden if the evidence shows failure to comply with the standard identified, and determination of the penalty from a rationally weighted consideration of appropriate factors.
As contestant's counsel ably explains, section 17 of the Act (29 U.S.C. section 666) separates violations of standards into three classifications:
(a) Willful and repeated;
(b) Serious; and
(c) Non-serious.
While a larger penalty may be imposed for a willful and repeated violation, curiously the same maximum penalty -- $1,000 -- is enacted for a single violation classified either as serious or non-serious.
Subsection (k) of the same section of the Act [29 U.S.C. section 666(j)] provides that "a serious violation is deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from . . . [practices], means, methods, operations, or processes . . . adopted or . . . in use . . . in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation."
Contestant contends that these provisions require the Secretary to prove "a substantial probability that death or serious physical harm could result from such violation" (memorandum, page 8, 11. 14-15, and pp. 7-9, passim ), since a serious violation is charged; that the likelihood of occurrence of an event resulting in injury, as well as the likelihood that any injury resulting would be serious, must be considered; and that "probable" means "more than half," citing Price v. Neyland (1963) 320 F. 2d 674, 678. The Secretary contends that he need prove only the reasonable foreseeability or anticipation of serious harm resulting from an accident which could in turn result from a condition forbidden by regulation but permitted by the employer-contestant, where the regulation was designed to protect against that type of accident.
These contentions will be examined seriatim.
PURPOSE
The Secretary is correct in saying that the purpose of the statute is "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources," which presumably means our people and their unimpaired capacities (29 U.S.C. section 651); i.e., to reduce the number of work-related injuries (3 U.S. Code Congressional and Administrative News, 91st Congress, 2d sess., 1970, p. 5177; 116 Congressional Record 38367), n1 and that one intended means of promoting this goal is "an effective enforcement program" [ ibid., clause (b)(9)]. Contestant is correct in countering that Congress intended to avoid arbitrary enforcement procedure disregarding the relative severity of individual violations of safety regulations. Congress clearly intended to protect the interests of both employers and employees in a fair, balanced, and workable manner.
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n1 Mr. Steiger's proposals on the Commission were not adopted (3 U.S.C.C.A. News, 91st Congress, Second Session, 1970, p. 5236), although similar ones were. The main tenor of his remarks in the area mentioned by counsel seems to have been to favor greater specificity and precision, for which he proposed "specific standards" as the proper solution, dictated by experience (116 Congressional Record 38371). More basically, however, he points out Congressional intent to adopt a statute which "must guarantee to every American worker a mechanism for developing and enforcing safe and healthful working conditions; and it must guarantee to each employer objectivity, fairness, and due process" ( ibid., p. 38370). He also favored a board, which proposal was rejected, but his method of getting greater justice seemed to be to rely more heavily on objective standards ( ibid., p. 38371), and he favored requiring a citation for non-serious as well as serious violations ( ibid., p. 38373). Equally significant, Mr. Steiger's reference to the standard of hazards "readily apparent" (116 Cong. Record, pp. 38371-2) was later rejected (3 U.S.C.C. and A. News, 91st Cong. 2d session 1970, p. 5229), and his proposal for limiting enforcement to "hazards . . . likely to cause death or serious physical harm" was to apply only where no specific standard would apply (116 Cong. Rec. pp. 38371-2).
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Contestant also is correct in arguing that the Secretary establishes a serious and willful violation not merely by proving a literal violation, but only by also proving that the particular facts involved constitute "a substantial probability that death or serious physical harm could result" from the violation. Mere proof of violation, with nothing more, proves only a non-serious violation.
Both parties recognize the remaining limitation that the violation is not serious if the employer is both unaware of the facts constituting the violation and even with reasonable diligence could not have known of it. That element has not however become a major issue in this case.
The distinction between the terms "substantial probability" and "foreseeability" asserted by the parties is more apparent than real; capacity to foresee, and the reasonableness of such foresight, is essentially another way of stating (adjudged) probability, and both are based on extrapolation from past experience. [In view of the purpose of the language in 29 U.S.C. section 654(a)(1) to cover situations not involving specific standards only to an extent more apparent than under specific standards (see Cong. Record pp. 38371-2, cited in the preceding footnote), it appears unlikely that the standard of "substantial probability" in 29 U.S.C. section 666(j) was intended to be any more severe that the standard of "likely" used in 29 U.S.C. section 654(a)(1).]
An important distinction does exist, however, between the Secretary's view that probability need only be shown for the seriousness of injury which would result if the accident which the regulation is designed to forestall should occur, and contestant's view that the probability of occurrence of the accident must also be considered. The converse of the saying that "hard cases make bad law" is that extreme, obvious examples sometimes can help clarify difficult points. If we imagine an extreme case, where an accident is so remote as to be fairly regarded as virtually impossible, but if occurring would likely be serious, two conclusions become patent; that total disregard of the probability of occurrence of the accident is not rational, and that evaluation of that probability cannot reasonably follow the lines suggested by contestant's counsel.
As to the first point, moreover, the statute does not say:
a serious violation . . . exists[s] . . . if there is a substantial probability that death or serious physical harm would result from any accident which might be caused by, or result from a condition . . .,
but rather it says:
a serious violation . . . exist[s] . . . if there is a substantial probability that death or serious physical harm could result from . . . a condition [itself] . . .
By omitting the underscored words, which Congress could easily have included, that body failed to adopt the standard for which the Secretary contends -- the substantial probability must tie the condition to the serious injury, not merely tie the anticipated accident to the injury.
Contestant therefore is correct on that point, and on the further point that mere existence of the standard, i.e., its promulgation as a regulation, does not itself conclusively establish the seriousness of the danger. The fact of the existence of the regulation is, however, entitled to some persuasive force in evaluating the likelihood, foreseeability, "recognized" nature, and probability of occurrence of the type of accident which the regulation was designed to forestall. More must be said on the question of how that probability is to be evaluated.
Foreseeability, after all, is not an absolute, but a matter of degree, for it is a matter of probability. It is difficult to imagine a human action or a set of circumstances which precludes or avoids every danger, i.e., for which some danger is not "foreseeable" in the sense of being conceivable in the event of the concurrence of some imaginable combination of possible events and circumstances. In view of this basic consideration, the terms "recognized hazards" and "likely to cause" as used in 29 U.S.C. section 654(a) and "substantial probability" do not merely mean "barely exist" in some abstract sense, but mean great enough to constitute an "unreasonable" risk in the sense that the risk is great enough that present public policy and a concern for the safety of workers dictates taking the precaution of avoiding the particular practice or condition.
In a sense this sounds tautological, for the conclusion is merely that these phrases apply to practices or conditions which are risky enough to deserve attention, without precisely defining what these are. Some meaning is involved, however, because the words used imply that any degree of danger great enough to be significant is "foreseeable," "likely," a "recognized" hazard, or subject to a "substantial probability." That interpretation is consistent with the Congressional intent as revealed by rejection of narrower tests earlier proposed (3 U.S.C.C. and A. News, loc. cit., p. 5229) and by the goal of the statute to reduce injuries (116 Cong. Rec. p. 38367) after a history of significantly increasing rate of industrial injury (see below).
That standard does not agree with contestant's argument that "substantial probability" means more than 50% chance. In the first place, that argument is meaningless without distinguishing the time period involved.
This is illustrated by figures used in the discussions leading to enactment of the present law. Senate (Committee) Report No. 91-1282 pointed out that at least 2.2 million workers are disabled on the job annually (3 U.S.C.C. and A. News, loc. cit., p. 5178), which is consistent with, but nevertheless also numerically contrasts with, the following remarks attributed to Mr. Steiger in the House of Representatives:
In the last 25 years more than 400,000 Americans were killed by work-related accidents and disease and close to 50 million more suffered disabling injuries on the job (116 Congressional Record p. 38370).
The figures are perfectly consistent with each other; the difference in their size is a consequence of the different time periods to which they refer. Converted directly into mathematical probability, one indicates that he chance of any worker's being disabled by industrial injury in any one year is one in a few score, but that the chances are greater than half that he will suffer a disabling injury sometime in his life. Both assertions may be true, but look statistically different.
This example illustrates the general truth that "probability" in any statistical sense is utterly without meaning unless the time period is specified. Contestant specified none. Contestant's argument thus collapses, for Congress surely had something definite in mind. Yet Congress likewise specified no period of time -- the harm to be eschewed is not, for example, to occur with a "probability greater than 50% if the exposure were extended over the average working life" or other definable and meaningful statistical standard, though Congress could have so expressed itself if it had so intended. It is inferred that Congress did not so intend.
From the legislative history previously discussed, it is concluded that Congress meant by "substantial probability" of harm from a violation, merely that the probability should be great enough to make prohibition of the action or condition, as accomplished by the regulation, reasonable, i.e., a practical and realistic standard of appropriate precaution, rather than a statistical formulation which, however, simple and rational it might be in theory to express, is not likely to be amenable of accurate proof one way or the other within the limitations of knowledge existing now or likely to exist within the foreseeable future.
Several further considerations, besides those of legislative history and statutory declaration set forth earlier, support this view. First, the language used in 29 U.S.C. section 666(j) is not probability that a specific degree of injury would or will occur, but that it "could" occur. Such language implies an effort to foresee reasonably, and reduce the likelihood of, injuries, not to compute their mathematical probability.
Secondly, the enactment of the statute, the comments of the Congressmen in their deliberations and reports, and their use of the figures mentioned above suggests that they considered those figures as revealing excessive danger, for they enacted the statute to correct a situation which they regarded as unsatisfactory. It would seem to follow that risk exceeding the existing overall average risk -- more than 50% in an average working life -- would be unacceptably great. Perhaps by such reasoning such a statistical standard could be applied in those cases where such information is obtainable. Someday it may be for certain industrial illnesses; research in the latter direction is already in motion and some results are known, as in the area of pneumoconiasis and similar pulmonary irritations, where the conditions tend to be essentially constant over many years.
Workers normally however are not exposed continuously for years to accident-causing circumstances of the type involved here, so that dependable statistics can hardly be expected without a cold-blooded, intentional experiment which any decent public policy precludes.
Thirdly, counsel adverts to the word "probable" as meaning "more than half," and "substantial" as meaning, in effect, "a little more than that." However that might be in some contexts, that analysis is unsound in the present context. Nouns and adjectives of quality in the English language do not bear such simple relationships to each other. To say, when being precise and scientific, that an object possesses substantial heat or is characterized by substantial motion, or that air contains substantial humidity, is not equivalent to saying that they are quite hot, active, or humid, respectively, but only that the temperature or degree of heat differs perceptibly from absolute (0 (-270 degrees centigrade), that the object is not perfectly motionless, that the air differs measurably from 0% humidity, i.e., absolutely dry. In other words, the adjective "probable" may mean "more likely than not in some specified period of time," but "probability" merely means the degree of likelihood, which is mathematically a fraction which may vary, theoretically from 0 to 1, actually within a range between those limits, and for most phenomena is normally unknown.
In the present case, then, "probability" merely identifies the type of scale we are using, not where the critical mark is. That mark is made by use of the word "substantial." Its meaning here is similar to its use in the familiar legal expression, also applicable to this case, "substantial evidence." It does not mean "a little more so;" much less does it mean "a lot more so." It means enough to be significant; "not a mere scintilla" or slightest remote possibility, but a genuine, meaningful risk against which precaution is reasonable.
"Substantial probability" of serious injury then means a situation from which a foreseeable danger of serious injury exists, with great enough likelihood to make a requirement of the specified precaution reasonable. Adoption of the regulation raises a (rebuttable) presumption that the accident is sufficiently likely to occur; other evidence may affect the finding on this issue, and other evidence is necessary to establish that such accident is sufficiently likely to cause serious injury.
Such standards are not mathematically exact, or easy to reduce to convenient, simplistic rules of thumb; they require judgment and discretion to apply, and require careful consideration of Congressional intent to the varied circumstances of each case; that is in the nature of the multiplex structure of real human problems, and therefore necessarily of attempts of the law to deal with them. To deal with this diversity and further the goal of the legislative program, Congress, as mentioned above, divided violations into three general classes according to severity, and within those classes allowed for varying penalties. The only statutory difference in effect of a finding that an offense is serious is to preclude total elimination of a penalty. The factors governing the amount of penalty should however also be considered in some detail before turning to the specifics of the present case. n2
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n2 The only statutory difference in the effect of determining whether an offense is serious or not is that a serious offense must result in penalty, whereas discretion is allowed in the case of a non-serious offense, as to whether any penalty is assessed.
If a penalty is assessed, the Secretary initially and the Commission ultimately have the same discretion to determine the amount of penalty up to the same maxima. The words "shall" and "may" in the statute so imply [29 U.S.C. section 666, subsections (a) and (b)], and the legislative history shows this choice to have been deliberate with that intent ( 3 U.S. Code Congressional and Administrative News, 91st Congress, Second Session 1970, p. 5237).
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PENALTY STANDARDS
Evaluating danger to human life and limb in terms of dollars disturbs the emotions and offends the sense of values of a human being sensitive to the suffering of others, and at first glance appears an attempt to compare incommensurables. In one logical and philosophical sense such a reaction is justified, but Congress, as the elected representatives of the people, has expressed the will of the nation to be that a money penalty shall be imposed, and that the amount may vary from case to case n3 even though the ideal upon which the nation was founded has always been fair, equal, and even-handed justice, as expressed in the constitutional demand for equal protection of the laws. n4
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n3 Occupational Safety and Health Act of 1970, section 17.
n4 U.S. Constitution, Article XIV of Amendments.
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These reflections do not lead to any real anomaly, however, because sound practical reasons exist for imposing a financial penalty upon businesses for endangering human safety and health, and for varying the penalty. If the penalty is to be varied, the basis for the variation should be a set of principles, for the sake of fairness and equal justice; and, for the sake of accomplishing its purpose and conforming to its justification, the penalty fee should depend upon principles related to the reasons for imposing that type of penalty.
Those practical reasons for imposing a monetary penalty are that (1) in terms of the whole economy a fine is less burdensome (because it is a mere transfer rather than destruction of economic value) than imprisonment, revocation of licenses, and other conceivable means of enforcement; (2) it is less disruptive of the individual business than more drastic penalties; (3) identifying the individual at fault in the complex business structures typical at the present time is difficult, so that penalizing the business operation as such is regarded as more effective; (4) saving money, or the pressure of monetary competition, is often the reason for creating, or failing to correct, a condition endangering the safety of workers; (5) businesses ultimately are controlled by, and business managements are responsible to, persons whose interest in the business is largely financial, and often remote in all other respects, so that increasing the cost of allowing dangerous conditions may well prove the most effective deterrent to their prevalence; and (6) monetary competition ultimately determines the survival of businesses.
The purpose of the law, and therefore of each part of it, is to reduce the number and severity of work-related injuries and illnesses, which despite existing efforts remain at levels described to the Congress as "high" (116 Congressional Record p. 38366) by encouraging employers and employees to reduce the number of occupational safety and health hazards at their places of employment [29 U.S.C. section 651(b)(1)], through mandatory occupational safety and health standards "set" by the Secretary of Labor [29 U.S.C. section 651(b)(3)] and through effective enforcement [ ibid., clause (10)].
These purposes require a higher standard of preventive care than previously existed. The penalties are therefore expressly civil (29 U.S.C. section 666) rather than criminal, to emphasize their corrective, standard-raising role, in contrast to criminal penalties which are imposed for intentional, traditional wrongs of public interest or gross negligence in obvious and long-familiar relationships.
Some fundamental principles corollary to these purposes consequently are that the penalties:
(1) Should be high enough so that the business entity involved does not gain financially by violating the standard and risking detection;
(2) Should be high enough to deter the type of violation in question;
(3) Should not be substantially higher than an amount which will deter such violation;
(4) Should not be unequal or unfair, i.e., should not reflect differences from other penalty assessments other than differences based on principles consistent with the purposes of the Act;
(5) Should reflect consideration of all factors relevant to those principles which follow from the purposes of the Act; and
(6) Should reflect the urgency of deterrence of the particular violation.
These principles are broad, difficult of application, and incomplete. Experience will lead to elucidation of greater completeness, but the initial committee report on consideration of the Act when it was a bill before Congress recognized that "the complexities of modern industry . . . do not lend themselves to any simple determination as to the amount of civil penalty to be assessed" for any particular violation (3 U.S. Code, Congressional and Administrative News, 91st Congress, Second Session, 1970, p. 5192). The committee accordingly intended the Secretary to have, "within the framework of the . . . penalty provisions [of the statute] . . . as much flexibility as possible to enable him to assess the amount of civil liability which he deems appropriate to the violation in question," and expected him, for the purpose of exercising this discretion in a fair, consistent, reasonable, and principled manner, "to develop an internal manual or guide which would include a set of principles to follow in determining the proper amount of civil penalties to be applied . . ." ( ibid., pp. 5192-3; emphasis added).
Except that the Secretary's discretion in this area is now subject to similar discretion in the Commission [29 U.S.C. section 666(i)], these considerations still apply to the statute as adopted. No neat formula can be adopted, but the general principles mentioned above apply. Within limits set in the statute, the Secretary initially applies them, according to a manual setting forth his preliminary estimate of the weight to be given to the most commonly-expected factors, and the Commission will refine the application through careful consideration on a case-by-case basis, as an independent adjudicatory authority.
The limits expressed by Congress up to now consist of the three categories of violation [29 U.S.C. section 666 subsections (a), (b), and (c)], maximum penalties for the particular classes of violation [same section, clauses (a), (b), (c), (d), and (h)], and the naming of a few specific factors to be considered. In view of the wording and history of the Act, the naming of some factors does not appear to be intended to preclude consideration of all others which in fact bear, under the principles listed above, provided only that the Secretary and the Commission, as commanded by Congress, in each case give "due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations" [29 U.S.C. section 666, subsection (i)].
It is readily apparent that the need to consider each of the four factors expressly mentioned by Congress is a mere partial limitation on the general power to set the particular penalties (in light of the basic purpose of the statute). Thus, for example, the "gravity of the violation" relates to the urgency of prevention to the extent that this statutory phrase reflects the amount of harm which may result; to the extent that "gravity" of the offense refers to the elements of (a) the ease with which the violation could have been avoided and (b) the degree of familiarity with the danger, that "gravity" appears rationally and directly related to the amount of penalty necessary to accomplish compliance or deter violation. If the latter two elements are properly included only within the aspect of employer good faith, the same reasoning still applies to them, as to good faith generally. The same argument also applies to the history of previous violations -- if they were numerous, the previous penalties may not have been high enough, whereas a smaller penalty may be sufficient to deter an employer with a long record of operation without violation.
The factor of employer size is a two-edged sword. On one hand, a record of a million man hours worked without violation, or with any particular number of violations, is better (and therefore presumably requires less deterrence) than an employer whose record shows the same number of violations but spread over only 10,000 man-hours of work. On the other hand, while statistical considerations alone are undependable with one or two inspections, over a long period of experience the ratio of violations found to violations existing in any given work location will approach the ratio of the amount of time during inspections to the total time worked at that location. Since that ratio will normally be small where a large employer is involved, discovery of a few violations may imply existence of many, which might, all other considerations being equal, require a larger penalty to constitute a deterrent, because in the larger operation the cost of prevention might be greater than in a small one, the economic gain from not making the correction accordingly greater, and thus more difficult to offset.
Doubtless these considerations, consciously entertained or intuitively felt, lay behind the Congressional fiat to consider these factors. Some time will elapse before experience is great enough under this law to identify the varying degrees appropriate, and a suitable method of combining them, to apply to all appropriate considerations. In the meantime, considerable discretionary leeway in application must be allowed, with continually focused attention on the principles to be followed in applying the various factors, and on ultimate objectives.
National standards adopted by the Secretary in some internal manual, easily changed as experience grows, to assure even-handed justice throughout the country, having been expected and intended by Congress, is not per se objectionable, unless the standards somehow conflict with the mandate of the law, either through (1) disregarding, actually or virtually, a factor which must be considered, (2) giving weight to an improper consideration, (3) giving arbitrarily or unreasonably disproportionate weight to one or more factors, (4) applying the factors inconsistently with principles following logically from the Congressional purpose, or (5) in some other way conflicting with Congressional intent and purpose.
SPECIFIC PROBLEMS OF THE PRESENT CASE
SPECIFIC STATUTES AND REGULATIONS
The Secretary in this case has charged violation of 29 C.F.R. section 1504.43(e), as adopted by 29 C.F.R. section 1910.16, and has proposed a penalty of $600 under the authority of section 10(a) of the Occupational Safety and Health Act of 1970 [29 U.S.C. section 659].
The last-cited section authorizes the Secretary to propose assessment of penalties for violations of what 29 U.S.C. section 658 describes as a "requirement of section 654" or of any standard, rule, or order promulgated under 29 U.S.C. section 655. Section 655 in turn authorizes the Secretary to promulgate occupational safety and health standards, and section 654 imposes two duties:
that of complying with such standards [subsection (b)], and that of providing employment and a place of employment free from recognized hazards causing, or likely to cause, death or serious physical harm to employees [subsection (a)].
The examiner understands the requirement of section 5(a) of the Act [29 U.S.C. section 655(a)] to be separate from and independent of the requirements of subsection (b), covering not only a purpose similar to that of (b), but also specific cases not covered, or not adequately covered, by subsection (b). (This separateness of concept is apparent from a full reading of the legislative history, as e.g., 3 U.S. Code Congressional and Administrative News 91st Congress, Second Session, 1970, pp. 5175-5241; 116 Congressional Record (Part 28) pp. 38366-38403, and elsewhere, especially at 38367 and 38371, center column, and elsewhere; as well as from the wording of the statute itself).
29 C.F.R. section 1910.16 is a regulation promulgated by the Secretary of Labor n5 adopting by reference, as occupational safety and health standards, various regulations previously promulgated under other laws, including Part 1504 of 20 C.F.R., which had originally come into existence some years earlier as a regulation issued under the authority of the Longshoremen's and Harber Worker's Compensation Act. Regulation section 1504.43(e) is in this part of 29 C.F.R. The regulation applies to longshoring operations or related employment [29 C.F.R. 1910.16(a)], which is defined to include ". . . loading, unloading, moving, or handling of cargo, ship's stores, gear, . . . into, in, on, or out of any vessel . . ." [ ibid., subsection (b)].
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n5 36 Federal Register No. 105, Saturday May 29, 1971, pp. 10466 and 10469.
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29 C.F.R. section 1504.43(e), violation of which the citation and proposed assessment charge, provides:
Any beam or pontoon left in place adjacent to a section through which cargo, dunnage, equipment, or any other material is being worked, shall be lashed, locked, or otherwise secured so that it cannot be displaced by accident. All portable, manually handled hatch covers, including those bound together to make a hatch cover, shall be removed from any working section.
An earlier portion of 29 C.F.R. section 1504.43 states in pertinent part:
Only paragraphs (f)(2), (h), and (i) of this section apply to folding, sliding, or hinged metal hatch covers or to those hatch covers handled by cranes carried for that purpose.
PROCEDURAL PRELIMINARIES
Pleadings
The interim procedural rules of the Commission first became effective with respect to "proceedings before the Commission initiated after" September 30, 1971 (36 F.R. No. 169, Tuesday, August 31, 1971, p. 17409). Accordingly, since the citation, notice of proposed penalty, and notice of intent to contest all predate the effective date of these rules, they do not precisely apply. These documents are deemed sufficient pleadings, the parties having failed to object to or otherwise raise the issue of their sufficiency [cf. F.R.C.P. 12(h)] and these documents substantially having served to notify the parties and tribunal of the issues, and having been supplemented with evidence and argument, written and oral [cf., e.g., DeWitt v. Pail (9 Cir. 1966) 366 F. 2d 682; Barber v. Motor Vessel (1967) 372 F. 2d 626; Wood v. Putterman (1970) 316 F.S. 646, aff'd 400 U.S. 859]. The Federal Rules of Civil Procedure, except to the extent preempted by statute or Commission rules, applies [29 U.S.C. section 661(g); 29 C.F.R. section 2200.2]. Until the adoption of 29 C.F.R. Chapter XX Part 2200 by the Commission, the statutory provision for initiating a proceeding before the commission by citation, notice of proposed penalty, and intent to contest superseded, before the Commission or its hearing examiners, the usual method under F.R.C.P. Rule 7 intended for District Courts.
Demand for Evidence
At the hearing contestant demanded production of the general instructions, guidelines, or standards used by the Secretary's agent in determining the proposed penalty. The Secretary initially resisted this demand and the accompanying motion. The matter was assigned to be argued and resolved after the hearing. In lieu of submitting written argument, however, the Secretary has submitted documents purporting to constitute the material demanded by contestant. Contestant has raised no objection to this approach, and has argued the appropriate penalty. It therefore appears appropriate to receive such documents into evidence, in response to contestant's demand and motion, and the Secretary's acquiescence.
Motion for Dismissal
Contestant has also moved for dismissal on the ground of failure to prove a violation of the regulation as charged, on the grounds that the regulation does not apply to folding, sliding, or hinged metal covers, and that the proof only dealt with such covers. This motion, like that mentioned above, has been taken under submission. Both parties have submitted written argument on the motion.
A dismissal for failure of proof is an adjudication on the merits, but is normally appropriate before the answering party -- here the contestant -- has presented its evidence [F.R.C.P. Rule 41(b)]. Dismissal with prejudice is generally to be avoided if an equally just alternative is available [ Davis v. Operation Amigo (1967) 378 F. 2d 101]. The statute here authorizes "affirming, modifying, or vacating the Secretary's citation or proposed penalty, or directing other appropriate relief" [29 U.S.C. section 659(c)].
Since the motion to dismiss was made after the evidence had been received from both parties, rests on the same ground as the ultimate decision of the case on its merit, and offers no relief or advantage not obtainable through a decision on the merits of the case directly vacating the citation and notice of proposed penalty, and since Congress by its language in 29 U.S.C. section 659(c) evidently intended that a decision finding no violation should result in an order "vacating the citation or proposed penalty," it is concluded that the motion should be denied, in favor of directly either affirming, vacating, or modifying the citation and proposed penalty, each respectively.
Transcript Correction
The reporter has misunderstood three technical terms in preparing the transcript:
1. Where the transcript shows "phalange," the word "flange" was intended and spoken at the hearing.
2. Wherever the transcript shows "combing," the word "coaming" was intended by the persons using the word at the hearing.
3. Wherever the word "towardships" appears in the transcript, the word actually spoken and understood at the hearing was "athwartship."
The hearing examiner so finds, and orders that the transcript be deemed corrected so to read.
Affected Employees
Notices relating to the proceeding were posted and inquiry was made in open hearing whether any affected employee, or representative of the same, cared to appear formally or participate in the proceeding as such, or whether anyone present was aware of any employee or representative of employees wishing so to participate. Numerous spectators were present in the hearing room, but no one has formally appeared or requested to participate as an interested employee, nor has the hearing examiner been informed that any such person desires so to participate.
The unofficial presence of an official of the union of which the affected employees were members was noted during the hearing. He expressly refrained from requesting formal participation by the union (Transcript, p. 51).
Citation
(The document identified throughout this decision as the "citation" has the words "amended citation" appearing on its face.)
Issues
The general issues are:
(1) Whether contestant, on or about June 2, 1971, violated Section 5(a) of the Occupational Safety and Health Act of 1970 [29 U.S.C. section 654(a)(2)] by violating 29 C.F.R. section 1504.43(e) as adopted by 29 C.F.R. section 1910.16, and
(2) If so, what the proper penalty for this violation is.
The specific issues raised are:
(1) Whether the objects lying across the hatchway were exempted from the coverage of 29 C.F.R. 1504.43(e), hereinafter sometimes designated simply as "the standard," because they were "folding, sliding or hinged metal covers," or did the standard cover each of them as a "pontoon;"
(2) If a violation of the standard occurred, whether it was "serious," i.e., whether there was a "substantial probability that death or serious physical harm could result from" the violation;
(3) What significance the determination of the second question has; and
(4) If a penalty is to be imposed, how it should be determined and what it should total.
UNDISPUTED FACTS
On June 2, 1971, contestant was an "employer" as that word is used in the Act [29 U.S.C. section 652(5); transcript, page 4] of employees employed and working for that day aboard the Vishva Vikram, a cargo ship, at Fisher's Mill Dock on Harbor Island at Seattle, Washington. The affected employees, members of an International Longshore and Warehouseman's Union local identified as number 19, were loading flour in the hold under several hatchways.
With the aid of booms operated by a power winch, pallets loaded with sacks of flour were moved from the dock to a position over the hatches of the ship, and then down into the hold, where the affected employees unloaded pallets, stowed the sacks of wheat, stacked groups of pallets for return to shore, perhaps occasionally returned some dunnage, and regularly removed the pallets and sacks from the suspended bridle boards to allow the winch driver to raise the hook and empty bridle boards for a new load.
The pallets were suspended from the booms by a cable, hook, bridle-wires, bridle boards, and ancillary attachments. The hooks were judged suitable for at least 2 1/2 tons of load. The velocity of the vertical component of load motion was eight to ten feet per second.
Several employees were working directly under the hatchway. Several dozen were working somewhere on the vessel.
The contestant employer employed at this work site a "walking boss" who supervised part of the operation and was himself under higher supervision by employer's managing personnel.
The hatches were provided with what were initially identified as "MacGregor-type hatch-cover pontoons" (Tr., p. 14). Some of these objects had been removed, stored, and secured out of the way, permitting access for the operations described above, but some remained partially covering the opening thus providing a base for support of fabric tenting to protect the cargo from rain.
An inspector on behalf of the Secretary inspected the ship and found the objects named in the preceding paragraph to be adequately secured at all hatches but one. Several such hatch-cover-pontoons normally would completely cover this one hatch. All but two had been removed and stored. The remaining two covered a portion of the hatch opening. The "walking boss" of the affected employees asked the inspector whether these hatch-cover-pontoons were required to be secured. The inspector replied that this was necessary (pp. 14-15). The inspector recommended citation because, when he first saw them, the objects were not secured to the coaming or deck (though they were chained to each other (Tr. p. 94, 1.16), but were merely resting with their edges on the deck and within the guides (track). Their wheels were retracted (Tr., p. 111, 1.3).
The walking boss who had accompanied the inspector in his inspection, promptly on being advised to do so by the inspector, secured the unlatched objects by lashing to the deck -- to the inspector's complete satisfaction (Tr. p. 16). The interview was without open rancor or conflict. The inspector described the walking boss as "a fine, cooperative man" (Tr. p. 46).
The walking boss had been informed earlier in the morning that the objects had not been secured. He testified that he had intended to secure them, but by the time of the inspection, shortly before noon, he had not yet "got around to securing it" (Tr., pp. 93-94, exp. 94 11. 6-7), about 2 1/2 to three hours after the contestant-employer, through an agent, first became aware of the unlocked condition of the objects in question (Tr., pp. 132-133, especially 133 1. 3).
The walking boss' wages were $5.76 per hour, and he spent 10 to 15 minutes securing the objects. He would have received wages for those minutes whether performing that task or not.
The MacGregor hatch-cover pontoon is a rectangular piece of metal, fitted with retractable rollers, a wire runner or chain to draw it from place to place rolling on the rollers, a chain-hinge to attach to another similar object edge-to-edge, and a lock or latch to permit temporary but secure bolting to the deck.
These objects are designed so that, when in place over the hatchway, the length of the object extends across the width of the hatch and far enough beyond so that, when lowered, the wheels can roll in a track on the deck at the sides of hatchway. n6 The objects can thus be rolled into or out of position. Several of these objects, attached edge to edge, would cover the hatchway in question. When the wheels are raised, the object lies on the coaming, extending over a few inches, with the coaming fitting into a groove on the underside of the hatch-cover-pontoon to help keep it in place. Another ridge also helps guide the wheels or casters when they are lowered.
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n6 i.e., more precisely, on the hatch coaming (Tr. p. 16, 11. 18-20, where the reporter has "combing"). Although for stylistic reasons the hearing examiner has used the words "hatch" as well as "hatchway," the opening is intended in both cases.
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The objects in the present case could not be "dogged down" to the deck with the latch made for that purpose because they did not properly fit the attachments on the ship which were intended to attach to the latch fittings or "dogs" on the hatch-cover pontoons.
At that time the contestant-employer employed several dozen longshoremen on the ship in question, a dozen in office and management or other permanent positions in Seattle, several hundred on any day in the total of four Pacific Coast port areas, and a total of roughly 400,000 annual man-hours in Seattle. Contestant's Seattle operation was classed as the smallest of three companies in its field in the Seattle area. Seattle was described as the third most active port on the Pacific Coast of the United States.
The weight of a fully-loaded pallet board, including its load, was estimated at 1 1/2-2 tons (Tr. p. 15) or 1500-2000 pounds, depending on whether the bags were 100 or 200 pounds each.
The weight of a MacGregor hatch-cover pontoon was estimated at around two tons (1 1/2 to "maybe a little over two tons" -- Tr. p. 17, 11. 20-22).
The proposed penalty was worked out according to the reasoning as described below.
The need to secure the objects arose from the chance that they might be dislodged (Tr. p. 54, 11. 11-16). If dislodged, they would fall into the hold. If they fell, men working below "would have little chance of escaping", i.e., moving from under the objects before being hit by them. If hit by the falling objects, the men would be killed or seriously injured (Tr. p. 54, 11. 15-22) because of the weight of the objects (Tr. p. 76) and perhaps also the sharp flanges (Tr. pp. 24-25).
The Secretary had estimated a standard guide providing that penalties for serious violations of the Occupational Safety and Health Act of 1970 should be computed by:
(1) Starting at $1000, the maximum lawful penalty;
(2) Allowing reductions up to:
(a) 20% of the maximum for good faith;
(b) 20% of the maximum for a favorable history under the Act for this employer;
(c) 10% of the maximum for size, i.e., if the employer employs fewer than 20 employees, five percent if between 20 and 100 inclusive.
This standard guide also contains detail not set forth here and calls for exercise of judgment within the guideline limits (Exhibit G, and testimony). Apparently a different standard exists for other types of citation, as for wilful, nonserious, imminent danger, failure to correct, etc. A partial copy of this guideline is set forth at the end of this section as Appendix 1.
In this instance the full 20% was allowed for good faith because the contestant's representative corrected the situation promptly when the inspector saw it, and the contestant-employer was regarded as generally desirous of complying with standards and avoiding excessive danger. The full 20% reduction was also allowed for previous history, because the Secretary had not issued this contestant (or anyone else, apparently, since this with Citation No. 1) any previous citations under this (relatively new) Act (Tr. pp. 54-55).
Thus the penalty assessed was 60% of maximum, or $600. No further reduction was given on the basis of company size, on the ground that the employer had more than 100 employees (Tr. p. 65, 11. 15-20).
APPENDIX 1: PARTIAL PENALTY GUIDE (EXHIBIT G)
5. The categories shown under this item are to be used for determining the penalty adjustment factors. The firm will be rated according to "employer attitude," ["] business size," and "history" of previous violations. You must exercise professional discretion and judgment [sic] for determining the amount of adjustment to be applied for these factors. Your decision should be based on the OVERALL COMPLIANCE PICTURE obtained from the case file and the various OSHA forms. The amount of the reduction, based on these factors, will be applied to the $1,000 "unadjusted penalty" for each cited violations listed under "Item 2."
(a) Good faith and adequacy of the safety and health program.
(1) A 20 percent reduction will be given if the employer has a GOOD or EFFECTIVE safety and health program.
(2) A ten percent reduction will be given if the employer has an AVERAGE or FRAGMENTARY safety and health program -- i.e. the program is deficient in some or many aspects.
(3) No reduction will be given if the employer has NO EFFECTIVE program.
(b) Size:
(1) A ten percent reduction will be given if firm employs LESS THAN 20- EMPLOYEES.
(2) A five percent reduction will be given if firm employs 20 to 100 EMPLOYEES.
(3) No reduction will be given if firm employs OVER 100 EMPLOYEES.
(c) History:
(1) A 20 percent reduction will be given if this is an INITIAL SURVEY having ORIGINAL VIOLATIONS.
(2) A ten percent reduction will be given if NEW VIOLATIONS of a different type and/or FEW, if any REPEAT VIOLATIONS were found in a subsequent investigation.
(3) No reduction will be given if there are a NUMBER OF REPEAT VIOLATIONS, or the PREVIOUSLY CITED VIOLATIONS were not ABATED.
6. This is the amount of the proposed penalty to be assessed under section 17(b) of the Act. Compute for each cited violation listed under "Item 2." Each figure so compute [sic] will be listed on the OSHA-3 ("Notification of Proposed Penalty") under "serious violations."
EVIDENCE ON FACTUAL ISSUES
According to the inspector, he and the walking boss agreed that the pallet passed through the hatch opening in question with two feet of clearance from the "pontoon" on one side and five feet on the other. The pallet itself is four by five feet.
The walking boss testified that the hooks themselves had five and 12 feet of clearance respectively. The inspector described the hatch-cover pontoon as about five feet wide and 30 feet long, the hatchway as approximately 30 feet wide, 35 feet long, and 40 feet above the working deck or hold. The walking boss estimated 40 feet by 25 for the hatchway.
The inspector testified that swing always occurs in both lowering a load and raising the hook with its load of bridle board and sometimes also empty pallets and dunnage, since the hook and cradle board are each suspended by cables and free to swing. He attributed part of the initial direction of swing to athwartship motion resulting from moving the load from dock to ship or back (Tr., p. 45 11. 1-19 where the reporter has "towardships" for "athwartship"), part to intentional efforts by the operator to land the cargo in a place convenient for unloading (Tr., p. 38, 1. 14 to p. 39, 1. 2), part (on return) to the fact that the bridle board is not directly under the point, on the boom, from which the hook cable runs, when lifted ("released") for return to shoreside (Tr., p. 44, 11. 22-25).
He further testified that while he observed it, a load of empty pallet boards swung under and "very close" to the unlatched hatch-cover pontoon (Tr., p. 45, line 20, to p. 46, line 12), without actually striking.
The inspector expressed the opinion that a swinging load or a rising batch of pallet boards or dunnage could "easily" dislodge the unlatched hatch-cover pontoon (Tr., p. 43-44) by bumping horizontally or catching while rising. Another experienced person supported this opinion (Tr., p. 76, 1. 15, to p. 77, 1. 4; pp. 70-80). That the accidental dislodgment of pontoons can and does occur is shown in the record (Tr. p. 73, 11. 20-25), resulting in a fall which damaged "some automobiles . . . quite seriously " (Tr. p. 74, 11. 13-16).
Testimony also showed that:
(1) workers usually stand in a position not directly under the load being lowered;
(2) winch drivers usually try to minimize excessive swing of the load;
(3) hooks and loads tend to swing farther athwartship than in a fore-and-aft direction, but swing somewhat in both directions;
(4) two MacGregor pontoons attached together are more difficult to dislodge than one alone;
(5) an object of the type here mentioned would be more easily dislodged with the rollers retracted than down;
(6) the winch driver can stop the load, and would ordinarily discontinue raising or lowering if he became aware that continuing the motion threatened immediate danger; and
(7) the object would have to rise a half inch to move athwartship.
Although contestant objected to testimony regarding other types of objects used similarly to those in question here (Tr., p. 74, 1. 18-p. 75, line 10), he later elicited testimony that "normal pontoons . . . handled by hoistings rather than rolling would be very difficult to dislodge sideways by striking them with a load because they're protected . . . [in contrast to] the MacGregor type [which] has no protection against" [such an accident] (Tr. p. 84, 1. 16-p. 85, 1.2). Only a few inches of displacement are required to dislodge the objects in question. No specific comparative figures were available between MacGregor and other types of object having similar purposes (Tr. p. 75, 1.10).
The walking boss testified that dislodgment was possible, but not probable (Tr. p. 102), but he also testified that the track (two ridges consisting of coaming and another guide) would prevent the objects from being displaced. Another individual experienced in shiploading expressed the opinion that the objects "could not be dislodged" (Tr. p. 122, 1. 23). He also testified however that he intended these objects to be secured.
A witness also testified that the loads in the case at hand were swinging only in athwartship directions and not parallel with the keel (Tr. p. 100-101), while another testified to utter absense of swing (Tr. p. 124, 1.1), and that tipping the load would be more likely than dislodging the overhead pontoons during raising of a load of dunnage or pallet boards (Tr. p. 125).
REASONS FOR FINDINGS, CON CLUSIONS, AND ORDERS
Violation
The first question to be resolved in this case is whether the unlatched objects were covered by the safety standard regulation cited. This is a matter of construing legislative and quasi-legislative intent.
The preamble to 29 C.F.R. section 1504.43 states:
"Only paragraphs (f)(2), (h), and (i) of this section apply to folding, sliding, or hinged metal hatch covers or to those hatch covers handled by cranes carried for that purpose."
The applicable subsection (e) is not one of these. It reads:
"Any beam or pontoon left in place adjacent to a section through which cargo, dunnage, equipment, or any other material is being worked, shall be lashed, locked, or otherwise secured so that it cannot be displaced by accident. All portable, manually handled hatch covers, including those bound together to make a larger cover, shall be removed from any working section."
The two objects concededly were unlocked and unlashed for a few hours over a location which the greater weight of the evidence shows to have been worked in sufficient proximity so that workmen would be endangered by any dislodgment of the objects. Cargo was being loaded and material moved through the hatch near these objects. The objects were therefore "adjacent to a section . . ." in the sense intended by the regulation, in view of its purpose.
The question is raised whether the objects were pontoons on one hand or, on the other, folding, sliding, or hinged metal hatch covers. No contention is made and no evidence shows that they were either beams or "hatch covers handled by cranes carried for that purpose."
Contestant in effect argues that the objects were called sliding metal hatch covers by percipient witnesses. This argument is significant, because usage makes the meaning of symbols, including words. The evidence, however, does not really support the argument. Counsel cites Capitain Skolmen's testimony at pages 37-38 of the transcript, but the witness never used the term; he merely acquiesced in a description used by counsel in a context and manner suggesting to the witness vague and imprecise wording, perhaps even creation of a terminology of counsel's own. Similarly, in the other testimony cited by contestant to establish that the objects were hatch covers rather than pontoons, none of the witnesses used the term hatch cover, though they acquiesced in its usage. The emphasis in their testimony, so far as terminology is concerned, was on the word "MacGregor." At no time did any witness distinguish between the terms "hatch cover" and "pontoon."
Before any question had yet been raised or any special point made of the precise name of the objects in question, the inspector, with long experience in maritime operations, called them "MacGregor type hatch cover pontoons" (thus using "hatch-cover" as a modifier of the type of pontoon), and "pontoons" in his testimony (Tr. p. 14), "pontoons" in the citation, "pontoon" in further testimony (Tr. p. 15, 1. 23), "MacGregor type pontoons" (Tr. p. 16, 1. 16), and pontoon ( ibid., 1. 18). When directly and neutrally asked about the uncertainty which had arisen from use of both the terms "pontoon" and "hatch cover," this witness said that "only the pontoons" were used here, that he meant pontoons.
They are called "sliding metal hatch covers" only by contestant's counsel until the witness is led into accepting the term without his attention having been drawn to the distinction being attempted (Tr. p. 38, 11. 3-5, where the testimony is merely, "Yes"). This circumstance is not a reason for ignoring the testimony, but considerably dissipates its persuasiveness. Just as judicial comments must be considered in context and not used to resolve problems which the judge did not have in mind when he made the remarks, technical terminological distinctions are not very convincing unless used in a way which shows intention to make the distinction of which the testimony is offered as proof.
Contestant's own witnesses used the term "hatch cover" only after counsel led them into doing so with repeated unexplained use of the term, often joined with other words (such as MacGregor) distracting attention from the words which contestant now asserts are important (Tr. pp. 92, 93, 95, 96, 97, 98, 101, and 119), and even then his own witnesses initially used the word "pontoon" (Tr. p. 95, 1, 3; p. 105, 1. 1; p. 119, 1. 16) before the term "hatch cover" was finally first used in the last third of the hearing (Tr., p. 120, 1. 6). Even then the witness voluntarily continued to refer to the objects as pontoons (Tr., p. 120, 11. 7, 8, 10, 11; p. 121, 11. 1 and 16; p. 124, 11. 18 and 24; p. 125, 1. 1; p. 126, 11. 9 and 10; p. 139, 1. 12, etc.).
From the testimony it appears that the actual usage of individuals in the industry and familiar with the objects is to call the individual objects pontoons, although a complete set closing a hatchway constitutes a hatch cover. Terms of a particular trade are normally to be given the meaning understood in the trade, if used in a law directed to the trade (82 C.J.S. p. 654, "Statutes," section 330).
Of course the testimony does show that these pontoons are designed to be placed over the hatchway and can be drawn across it. In this sense they might be loosely described as sliding hatch covers in the literal etymological sense of the individual words separately, but it is elementary that phrases in real language cannot be analyzed in that manner: etymologically the meaning of "coveralls" and "overalls" is similar, but in practice the two words are not synonymous, and one of these items of apparel does not cover all, being sleeveless and essentially backless. Similarly, the objects here in question did not actually "cover" the hatch, though resting "over" part of it.
In common usage the word "cover," when used as a noun, has been defined in various contexts as meaning that which encloses ( Neal v. Thomas Organ Co. 325 F. 2d 978 at 982; U.S. v. Burnell 75 F. 824 at 829), caps ( Gibbs v. Tifton Cotton Mills, 82 S.E. 921, at 923), or envelops the surface (Burnell case, supra) among other things, but usually implies coverage in some total sense, as the entire surface, upper surface, or opening.
It is therefore commonly used as a synonym for "lid" (e.g., "lid" is one of several definitions of the noun "cover" in several editions of Webster's dictionaries). In this mechanical sense the word "cover" implies opening and closing ( Mergenthaler Linotype Co. v. International Type-Setting Machine Co., 299 F. 407).
Now, the purpose of a hatch is to permit access to and from the respective decks which it connects ( Jones v. Moran Bros. Co., 88 P. 626). The ordinary meaning of a hatch cover would seem to be essentially a lid, i.e., some movable object which is designed to close the entire hatch and shut off access through the aperture. That meaning is the basic idea of a hatch cover. Individual sections or pontoons do not coincide with that picture, nor do the two of them even if attached together. Most simply, one pictures a small hatch which is closed by a single hinged piece, essentially a trap door. One may imagine a larger hatchway involving double doors, hinged or entirely removable, but beyond that type of arrangement, it is difficult to stretch separate sections into the concept of a cover.
Of course in some broad sense the fabric rain tent "covered" the hatch, being literauly over it, but certainly the regulation was not meant to include such an object within the term "hatch cover."
In addition to ordinary usage and technical jargon of a particular occupation, discussed above, a third factor must be considered -- the purpose of the regulation and the nature of the scheme contemplated by the regulatory body. The purpose of this regulation quite clearly is to reduce the danger that "booms or pontoons . . . in place in a working area without being lashed, locked, or otherwise secured, . . . during the cargo operations . . . either [because of] the action of the boom and its hook or . . . carelessness of some [person] . . . may become displaced and fall into the area where the men are working" [ United States v. Grace Line, Inc. (1963) 221 F.S. 339 at 341].
Consonant with this purpose, beams and pontoons, including the ones in question here, are commonly equipped with fittings to latch or lock them to the deck. The object in question, when "in place," must have been expected by the authority promulgating the standarrd to be "in place" in a location above working areas, held up over a space through which it can fall. In this respect a hatch cover -- extending over the entire opening -- obviously presents a far different and smaller likelihood of being dropped into the hold, than is true of some object which covers only a part of the opening and extends only a little beyond the edges of the hatchway, such as beams and the type of pontoon here involved. A hatch cover has to be moved away from two edges, and probably also rotated, to fall into the opening, whereas a few inches of rotation achieved by striking or catching the end of a long narrow object suffices to drop it into and through the opening.
Perhaps even more significant, a closed hatch cover cannot have objects moving past it into the hatch it closes, whereas a hatch cover which is open enough to permit work past it also will be likely to have a substantial part of its bulk directly on the deck away from the opening if it is a sliding type.
Clearly, in these significant respects the objects involved in the present case are more like beams and other pontoons than like hatch covers -- they are long, narrow, cover only a fraction of the opening, and will necessarily fall into it if either end is moved a number of inches horizontally, unless the other end slides correspondingly. Certainly the purpose of the regulation indicates intent to cover this type of object.
The regulation does not even exempt all hatch covers. It expressly covers portable and manually handled ones, which could be dropped through, though excluding the hinged cover, which, like any door, will be held by its hinges to the deck, or those handled by special cranes. The evidence does not indicate that the MacGregor pontoon is handled by a special crane, but rather that it is rolled on wheels along a track by drawing a cable or chain.
It is argued that the flexible connection between the two pontoons makes them a hinged cover. As already shown above, they were not a cover. In addition, they were not "hinged" in the sense intended by the regulation. Language in a law must be given a reasonable rather than an absurd construction. The presence of a hinge on the open side of a pontoon -- or cover -- constitutes no safety feature. To say that an unattached hinge exempts a pontoon, or even a cover, is absurd. Yet the bare words can mean this as reasonably as "hinged to another like piece," as contended by contestant. Obviously the regulatory intent was to exempt one type of hatch opening -- the common, small hatch hinged to the deck at the time in question, so that the hinge itself locks the cover so that it cannot fall further than its own swing at worst; and if the hatch cover opens only upward and exceeds the width of the hatchway, it cannot fall below the hatchway at all. n7
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n7 For example, the word "hinged' 'is clearly used as the alternative to "wholly removable" in reference to hatch covers in the following quotation:
"The large openings that appear in the decks of vessels for the admittance of cargo are called hatches. They are bordered by perpendicular wood or metal frames, varying in height, which support hinged or wholly removable covers. During rough weather tarpaulins are battened down over the hatches to keep out the rain and salt water" (Gene Johnson, Ship Model Building, 2d Ed., 1953, Cornell Maritime Press-Cambridge, Maryland, page 91; emphasis added).
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A folding cover would be continuous, held in place by its sections which had been folded back.
Finally, if all this were not clear enough, the regulation even more explicitly includes "hatch covers . . . bound together to make a larger cover . . ." Thus, if an object could be a cover by itself (as contestant contends) for one size of hatch, if bound to others to make a larger cover for a larger hatch, it must be removed entirely. This provision has no sensible application if such covers are encompassed within the folding, sliding, or hinged covers described at the beginning of the section. Exceptions in regulations can exist, but normally the parts of one law are to be construed as a consistent whole if possible. n7a Here the parts are not inconsistent expressions constituting exceptions to one another, but coherently say that large total covers which cannot fall into the hatchway by reason of their nature are not covered, but narrow pieces must be secured, and other types of covers must be completely removed.
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n7a 82 C.J.S. pp. 705-717, "Statutes," section 346, and the copious precedents there cited). Moreover, words in a statute or regulation are normally construed with reasonable reference to the other words in the context (loc. cit., section 331).
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The objects in this case did not in fact cover the hatch, nor was there any position to which they could be moved (like a sliding or folder cover) in which could have covered the hatch over which they were placed. They therefore did not constitute a cover. From more pieces a cover might have been made; but with more pieces a number of things might be made. Two tiles are not a roof; two bricks are not a building.
The agency and the individuals involved regarded them as pontoons. The contestant did not remove them from the area, and therefore did not regard them as covers bound together to make larger covers; and if they were, this too would have constituted a violation of the regulation, of no less gravity than the one charged. Such an argument is therefore unconvincing in fact. (In addition, it is ultimately unavailing in law. No ruling is made on the equitable policy aspects of alleging a violation of equal severity in opposition to a charge, since the facts do not show that the objects were hatch covers of any sort, but were pontoons.)
(It may be added that the pontoons were not "sliding" objects -- they were not designed to slide. Despite loose use of language at a point in the testimony, its whole tenor was that movement was accomplished by lowering the wheels and rolling, not sliding. Moving an object on wheels or casters is not sliding. At the time in question, the wheels were up and the objects were obviously not intended to be slid or otherwise moved, but for the purpose of determining whether a violation occurred, the position of the wheels does not change the nature of the object.)
In U.S. v. Garce Line Inc. (1963) 221 F.S. 339, the predecessor of the regulatory safety standard here at issue was found to prohibit a situation in which a reefer beam, weighing approximately 2700 pounds, was lifted into sockets on the sides of the coaming at a hatch adjacent to the section through which cargo was being removed, but was not locked or lashed in place. The employer in that case contended that the socket fitting amounted to securing the beam, and argued that longshoremen would not have worked if they thought themselves in danger, and that the circumstances would not have permitted dislodgment, but the district court rejected these contentions and found a violation (221 F.S. at 341). The court also found that lashing one pontoon which lay on another did not secure both pontoons ( ibid., at p. 342), saying in passing:
"The requirement . . . is not met by depending on the weight of the object to prevent it from being dislodged."
It is evident that the danger there involved was essentially the one here involved, against which the regulation was aimed. The weight of the pontoons, their being attached to each other, and their resting on shallow grooves and ridges no more removes them from the category of unsecured pontoons in the present case than the greater weight, the firm attachment of one pontoon resting on another, and the socket fitting removed them in the Grace case cited above.
It is therefore concluded that the regulation was violated. The objects were pontoons, n8 despite some conflict on this point; were unsecured adjacent to a section being worked; and were not hatch covers. The next question is whether the violation was "serious."
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n8 In common parlance pontoons are floats, but floats would not be expected "in place" above a hatchway, or "adjacent to a section through which cargo . . . is being worked," so the regulation certainly meant, not that, but some gross object, such as a shaped beam or plate. The witnesses referred to the objects in question as pontoons, and their nature is clearly within the purpose of the regulation.
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Seriousness
If the pontoons should be dislodged, workmen beneath would likely be killed or seriously injured.
On the record, as a virtual objection and in support of objection, to testimony on the seriousness of potential injury, contestant conceded serious injury in case of dislodgment (Transcript, p. 76, 11. 5-8).
Counsel's comment constituted a binding concession, of similar force to a concession made in formal pleading, removing the matter from issue or need for proof. The concession was accepted on that basis (Tr. p. 76, 11.9-10; p. 77, 11. 19-20) and relied on in excluding further evidence on the point (Tr., p. 76, 1. 18 to p. 177, 1. 20), and in any case, as counsel points out, is obviously true.
Substituting supposition and common assumptions for real proof is generally to be eschewed in careful adjudication, but sadly, human injury from falling objects is an occurrence of sufficiently frequent and general experience to establish as a matter of common knowledge of which judicial and official or "administrative" notice may be taken that the probability of serious injury is high if an object weighing on the order of thousands of pounds falls a number of feet upon a human being.
The seriousness of injury in the event of dislodgment is therefore patent and established. Dislodgment is clearly the risk against which the regulatory standard was aimed. The violation is therefore serious if the likelihood of dislodgment reached the level of substantial probability as earlier described. The Grace case, cited earlier, found the purpose of the regulation to be prevention of dislodgment and found dislodgment to be a genuine risk. Two witnesses in the present case testified that they regarded it so, another as only a possibility, another as not a possibility. One had seen such an event. The Grace case mentions a similar example. Of course the circumstances doubtless vary from place to place, time to time, accident to accident. Yet probability, likelihood, foreseeability, are all aspects of judging the future on the basis of past experience and present circumstance. Neither can be excluded from consideration.
The evidence as to the current circumstances and past experience, and the judicial history of the section, show that the danger is a real one, of a type which has resulted in accidents. The employer-contestant has a right to offer proof to show that the regulation is unreasonable, or that the danger is so remote as to be insubstantial, or that the potential injury is likely to be slight. It has not done so as to the first and last points, and its efforts on the second point are unconvincing. Contrary evidence is more convincing on all three points.
The winch and hook had the power to dislodge; the position of load, freedom of cable, and location of the various parts presented the risk of contact; a slight movement of the pontoons would dump them. They were firmer when joined together than either would have been separately, but only supported by a few inches at the ends. The ridges and ruts would provide some safety, but the retracted wheels would not help. The chance of injury on that day and place -- as at any day and place -- would be small, if everyone acted prudently. This is generally true. Probability is a statistical average -- on any one day accidents will not occur in most places, and in any place accidents usually do not occur on many days.
But as pointed out in the Grace case, the danger is that several events out of the ordinary will coincide to produce the accident. That is how accidents occur. Any safety system, like any other sound system dealing with important matters, must include at least some margin for error or allowance for contingencies, for departures from normal in some components, for the simple reason that no system can be perfect. In military parlance such provision may be a "second line of defense" or general reserve, in information theory it is called "redundancy," in engineering an alternate or regulator or "back-up system," in personal economics it is insurance and an emergency savings reserve for a "rainy day."
Even a well-run organization sometimes will employ a man who makes a mistaken judgment, a winch which malfunctions, a maneuver which goes awry in an emergency. On any day anywhere such an event has small statistical probability, but over sufficient time -- such as the working life of these workmen -- such an event is virtually certain; workmen will be unusually fortunate if such events do not happen a number of times in their lives. Unless the other contributing factors are also controlled -- such as the locking of overhead pontoons, the workers will at such times be injured. Congress has said this happens too often, and must be improved. If the probability is greater than that which Congress considered unacceptable, it is too great. That was the reason for the legislation.
The argument that existence of a rule or safety regulation creates a rebuttable presumption that the accident against which the safety standard is aimed is sufficiently "likely" to require a finding of substantial probability of occurrence of that accident is generally sound.) In the present case however that argument must be viewed with caution because the applicabiliity of the standard itself has been called into question; hence, it cannot be circularly reasoned that the danger is substantial because the rule applies, if it is also to be argued that the rule applies because the danger of injury is substantial.
In the present case however the evidence is sufficient to show that the danger was genuine and substantial. Statistical records certainly would be material and admissible in such a proceeding, but in a numerical sense no such evidence was offered. Congress in enacting the statute however did not use a numerical yardstick, being fully aware that the present state of human knowledge does not make available that kind of evidence in most situations, and thus manifested its intent that such numerical evidence is not required. The circumstances, experience, and opinions in the record sufficiently establish the required substantial probability of great physical harm from the risk against which the regulation was designated.
The next question that may be raised is:
What difference does the finding of a serious violation make?
Primarily, such a finding merely requires a penalty; neither Secretary nor Commission have discretion to omit penalty. The penalty may not exceed $1000.
Secondarily, the penalty is determined by consideration of several factors, as discussed earlier. One of these is "gravity."
"Gravity" would seem to be difficult to distinguish from "seriousness," so apparently finding a "serious" offense should weigh in the "gravity" scale for determination of penalty. The Secretary seems to take this view, for the instruction to his agents mentions the other statutory factors in determining penalty, but does not provide for a discretionary category of "gravity" comparable to those for size, history, and good faith. It must be assumed that by creating a separate instruction for assessing penalties for serious violations he has intended to distinguish "gravity" into the three degrees mentioned in 29 U.S.C. section 666:
(a) Willful or repeated;
(b) Serious; and
(c) Nonserious.
The presumption of proper performance of official duty entitles him to that rebuttable presumtpion. In the absence of a motion for taking of further evidence on the point, and of any evidence to rebut that presumption, it must be accepted.
It is questionable that Congress intended this three-degree categorization of gravity to be the only allowance made, ignoring all intermediate degrees, or that actual application in individual cases can completely ignore intermediate degrees of gravity in determining the percentages to be allowed for the other factors. The Secretary's standard, therefore, while simple to apply in "gravity" terms, is probably a rule of thumb which departs from principle in failing directly to allow for intermediate degrees of severity, and to that extent defective.
Secretary's Penalty Evaluation
The remaining statutory factors are covered to varying degrees, though no allowance is made for additional factors mentioned in the general discussion of those matters above. This also would appear to be a shortcoming of the system, which is more a rule of thumb than a set of principles. Its resultant minimum penalty, however, is not objectionable, in view of the fact that Congress provided that some penalty is mandatory for serious violations and that the maximum is the same for both serious and nonserious violations.
Defects in the standard of penalty assessment do not necessarily establish erroneous results, and do not require remand. The Commission has the power to set penalties, and in the interest of justice should do so without further litigative delay. The penalty is therefore reviewed and redetermined here.
Penalty Reevaluation
As observed earlier, the basic consideration in determining penalty is: What is the least cost which will induce compliance with the desired promptness? Since human, natural, capital, and temporal resources are finite, management decisions must always be choices among various alternative applications of those limited resources toward various desired objectives. Therefore, to avoid spending time on a minor safety matter to the neglect of a major and more urgent one, the process of determining the degree of promptness "desired" by the national will or intended by the national policy necessarily includes setting priorities.
Measured against these yardsticks, Congress has specified four factors which must be considered in assessing penalty. These apply to the present case as described below.
The gravity of the present violation was serious. The danger of dislodgment was substantial; likelihood of injury in case of dislodgment was high; any resulting injury would very probably have been quite serious; fatality is well within the realm of reasonable and substantial probability; and the danger threatened several persons. These are all elements of the factor of gravity. This violation did not reach the highest level of gravity, not only because it was not found to be wilful so as to be subject to the $10,000 maximum, as the Secretary recognized, but also because the number of persons endangered was not extremely large and the length of time of exposure was only a limited fraction of the total length of the job, and was limited in an absolute sense.
Obviously the number of endangered men, the degree of danger to each one, and length of exposure time to the danger all directly affect the probability of injury and of its extent. By these measures the gravity of this violation was rather high on the scale, but not at the summit by a substantial distance. Unless the most severe penalties are limited to the most severe cases, the priority-setting value of the variable penalty will be lost.
The men were exposed to the danger for a few hours. As stated above, this is a factor of gravity. During that time the employer, through its appropriate agent, was aware of the facts constituting the violation, and although the evidence on the point is equivocal, the employer appears at least to have suspected, and in fact to have known, that these facts constituted a violation: the inspector had previously given related warnings; the man responsible for making the correction had been directed to do so; he intended to do so and he asked the inspector whether the regulation so required. The basis for an inference of scienter is present. Such knowledge is not an element of the violation, but is an element in the determination of the penalty, whether it be regarded as an element in the gravity of the violation, i.e., to show whether or not this danger was great enough to require giving it higher priority than he did, or as an element of good faith.
In either case, measuring the danger involved against the time and cost required to correct it, the penalty should suggest that the correction should have been made sooner. Obviously the man responsible had other duties. The penalty should be sufficient to establish that financially, to the employer-contestant, removing the danger to the lives of the workmen was more important than those other duties.
On the other hand, the employer is entitled to the benefit of its lack of previous record of violations under the present Act, to the uncontested judgment of the inspector and his supervisor that this contestant does generally attempt to minimize its accidental injury rate, and to the prompt correction at the time of inspection. These also are factors of gravity, reducing it significantly below the maximum.
As to company size, various measures are conceivable -- number of man-hours employed, average number of employees, maximum number of employees, number of employees at the time of violation, gross dollar business, net income, net worth, number of business locations, volume of goods handled, total work area, etc. Whether any one measure is adequate for all industries, or even for any one case, is dubious. On the other hand, giving primary weight to the number of employees at the time of the injury seems reasonably consonant with using that factor in judging profitability of compliance or noncompliance at any particular cost level.
While the Secretary's instruction does not pin down the time period intended, the rule suggested in the last sentence above would appear to be its meaning, and the record reflects evidence on actual employment numbers at the time, on the average, the range, and the total man-hours, Considering all of them, in light of the cost of correction and the other circumstances, seems to give enough information on size to permit the hearing examiner to make an adequate independent judgment as to significance of the factor of size in this case. The range of number of crews working simultaneously, and number of shifts, has also been mentioned and considered.
The employer is large enough that, although precise fiscal information is not in the record, the size of one penalty does not appear likely to put it out of business, but on the other hand the evidence suggests that the employer is sufficiently concerned that the maximum penalty will not be necessary in order to secure full compliance in cases of comparable severity in the future.
Weighing all these factors together, including history as discussed earlier, the hearing examiner finds that the $600 civil penalty imposed by the Secretary was not unreasonable for this case, and appears the appropriate penalty, though, as outlined above, for somewhat different reasons from those advanced by the Secretary.
PRELIMINARY ORDERS
I. Three manual instruction sheets are marked and received into evidence as Exhibit G.
II. Motion for dismissal is denied.
III. The transcript is deemed amended to substitute, wherever the words in Column A occur, the words in column B below:
|
A |
B |
|
phalange |
flange |
|
combing |
coaming |
|
towardships |
athwartship |
FINDINGS OF FACT
From a careful examination of the entire record the facts are found to be as set forth immediately below.
1. On June 2, 1971, the United States Secretary of Labor issued to the contestant an amended citation alleging a serious violation of the Occupational Safety and Health Act of 1970, by failing to secure against accidental displacement some #4 hatch weather deck center pontoons left in place "next to" sections where cargo was being worked, on the ground that such action violated 29 C.F.R. section 1504.43(e), as adopted by reference by 29 C.F.R. section 1910.16.
2. The foregoing citation was issued after an inspection of the premises therein mentioned, to wit: the ship, M. V. Vishva Vikram, at Fisher's Mill Dock, Seattle, Washington, under the authority of the said Secretary and of the said Act.
3. On June 9, 1971, the Secretary notified the contestant of the proposed civil penalty of $600 under the Act for the stated violation.
4. On June 10, 1971, the contestant notified the Secretary of its intent to contest both the citation and the proposed penalty.
5. The matter was heard without further pleadings on July 29, 1971, at Seattle, Washington, a date acceptable to all counsel, before the undersigned hearing examiner; further evidence has been submitted and received as requested by contestant; motions have been made; written argument, proposed findings, conclusions, order, and decision offered; all matters taken under submission; and certain rulings hereinbefore made.
6. Contestant was an employer of employees working at the premises mentioned in finding 2 above at the time of the inspection mentioned in that finding, as the words "employer," "employee," "working," and "inspection" are used in the named Act.
7. Certain of these employees, designated hereinafter as the affected employees, were engaged in loading cargo into the above-named vessel, and in moving gear and material out of the same vessel on June 2, 1971, in contestant's employ.
8. For more than two hours within the three-hour span between 8:30 a.m. and 11:30 a.m. on June 2, 1971, during the work described in Finding Paragraph 7, two pontoons were left in place adjacent to the section or sections through which the cargo, hook, cradleboard, dunnage, and pallet boards were being worked.
9. Throughout the period exceeding two hours mentioned in Finding Paragraph 8, the said two pontoons:
(a) Were neither locked, lashed, nor otherwise secured from accidental displacement;
(b) Were resting across the open hatchway on their ends, with open space and no support on two sides of the pair;
(c) Were attached to each other;
(d) Were directly above several of the affected employees of contestant, previously mentioned;
(e) Were heavy enough to kill or seriously injure a workman if either were to fall on him;
(f) Extended only a few inches over the supporting weather deck, without additional support along most of their length;
(g) Rested loosely, with their wheels retracted, upon the coaming, which was only about a half-inch high; and
(h) Were unconnected and unsecured to any stable object or other pontoon except each other.
10. Hooks, cargo, cradleboards, and pallet boards, with attached cables and fixtures, moved vertically past the said pontoons on both sides.
11. The equipment being used was capable of dislodging the pontoons, causing them to fall to the area where the affected employees were working.
12. A substantial probability existed that death or serious physical harm could result from the condition described in Finding Paragraphs 7, 8, and 9.
13. Contestant knew of the condition in sufficient time to correct it, but did not do so before inspection. The contestant was able to correct the condition in 10 minutes, at a cost of about $1.00 worth of time, but chose to wait over two hours, until the Secretary's inspection.
14. The contestant at the times, mentioned in the preceding five paragraphs employed several score of employees in the Seattle area, and others elsewhere on the United States Pacific Coast, a total of about 400,000 man-hours annually, with substantial variations from time to time according to workload.
15. The contestant had not previously been cited for violation of the same Act, but had been advised about similar conditions in the previous five months.
16. The contestant maintained a safety program in an effort to minimize injuries on the job in its employ.
17. The said pontoons did not cover the full hatchway at the time, nor could they in any position, were not designed to be operated by cranes carried for that purpose, but rather were designed to be drawn by a pull-chain or cable along a track consisting of the coaming and a guide ridge, rolling on wheels, when the wheels are lowered to operating position by engaging the track, but the wheels were not lowered to engage at the times mentioned herein.
18. All other objects similar to the pontoons here in question had been removed from the working section and area, or were secured.
19. After the inspector noted the unlocked pontoons, the employer-contestant secured them.
20. The loads moved at speeds approximating 8-10 feet per second (approaching seven miles per hour) vertically, had some freedom to swing on the cable, and could but did not strike and move the pontoons horizontally or lift them vertically.
21. The $600 penalty proposed by the Secretary was based upon an unadjusted penalty of $1000, diminished 20% for the presumed good faith of the employer and an additional 20% because of the history of the employer under the Act which showed no violations since the effective date of the Act. No reduction was made for the size of the employer. The record shows that Crescent had approximately 400,000 man-hours per year, or an average throughout the work year of approximately 200 employees per day. This penalty determination procedure was based upon administrative guidelines.
22. The use of guidelines was per se reasonable. The precise guidelines used do not seem adequate to cover all the necessary considerations. Nevertheless the resulting penalty is reasonable.
23. The gravity of the violation was high, but not the very highest.
24. The contestant's good faith is fairly high, but correction was not as prompt as the degree of danger warranted.
25. The size of the company was such that:
(a) The penalty here involved is not likely to affect its ability to stay in business;
(b) The problems of control by management, extensive places of work, and activities are significant;
(c) The likelihood, that the violation found is an isolated one, is not great;
(d) The maximum penalty is not likely to be required to secure compliance in cases of comparable severity with this company in the future.
26. The employee organization to which all affected employees belonged at the time of events material herein was aware of the present proceedings and afforded an opportunity to participate as a party, but did not do so.
27. The parties were not prejudiced by any procedural defects of this proceeding, were adequately prepared to go to hearing, and did so.
CONCLUSIONS OF LAW
1. Crescent Wharf and Warehouse Company is an employer within the meaning of the Act.
2. On June 2, 1971, the employer violated Section 5 of the Occupational Safety and Health Act of 1970 (29 U.S.C. section 654) by violating 29 C.F.R. section 1504.43(e) as adopted by reference by 29 C.F.R. section 1910.16.
3. This violation constituted a serious violation.
4. The administrative guidelines for penalty determination do not appear to cover fully all the factors, elements, and principles of their application in accordance with the intent of Congress.
5. The proper penalty, independently appraised and assessed according to the principles described herein, is $600.
ORDER
It is therefore hereby ORDERED:
1. Citation #1 of the Secretary of Labor is affirmed.
2. Contestant has violated 29 C.F.R. section 1504.43(e), an occupational safety standard under the Occupational Safety and Health Act of 1970.
3. The violation is serious.
4. The proposed penalty is modified as to reasoning, but affirmed as to result.
5. The penalty is fixed at $600.
6. The contestant shall pay the same to the Secretary within 10 days after this Order becomes final.
7. This order shall become the final order of the Commission 30 days from the date hereof unless within such period any Commission Member has directed that it be reviewed by the Commission.