Docket No. 14

CALIFORNIA STEVEDORE AND BALLAST COMPANY

OSHRC Docket No. 14

Occupational Safety and Health Review Commission

September 4, 1973

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This case is before the Commission in accordance with my direction for review filed pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., 84 Stat. 1590, hereinafter referred to as "the Act"), to review a decision rendered by Judge Herbert L. Blume.

By his decision the Judge affirmed a citation for a violation occurring on the vessel Antonino Pacinotti and two citations for violations said to have existed on the vessel La Salle. Having reviewed the record in its entirety, we conclude that the Judge erred in his treatment of each citation. For the reasons given hereinafter respecting the alleged violations at each vessel, we substitute our decision for his.

THE ANTONINO PACINOTTI

Complainant charged that Respondent violated 29 C.F.R. 1918.43(e) n1 by failing to secure a hatch beam in No. 3 hatch while cargo was being worked. The cited standard 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 larger cover, shall be removed from any working section.

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n1 At the time of the alleged violations discussed in this decision, the cited standards were published at 29 CFR 1504.1, et seq. The standards are cited as currently numbered.

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Respondent's employees were emptying cargo from a locker on the fifth deck level of No. 3 hatch. One of the metal beams used in the hatch was located about two feet above their heads, was 19 feet long and weighed at least 1000 pounds. The beam was not bolted or otherwise secured against accidental displacement. The compliance officer testified that when he objected to this condition Respondent's employees removed the beam from the hatch. n2

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n2 Respondent's foreman testified that the ship's winch was unable to remove the beam since it was jammed in place. However, the record establishes that he was referring to a beam located at the aft end of the hatch. Respondent's exhibits identified the beam in question as situated at the extreme forward end of the hatch.

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Since the beam was unsecured and removable, it could have been dislodged accidentally. Respondent's employees were at work directly below the unsecured beam and were exposed to the hazard. Accordingly, we find the violation. See Secretary of Labor v. Portland Stevedoring Company, Secretary of Labor v. Crescent Wharf and Warehouse Company,

We conclude n3 that the violation was serious within the meaning of section 17(k) of the Act. n4 A falling beam of 1000 pounds will almost certainly cause the death of or inflict serious physical harm on anyone in its path of fall. See Secretary of Labor v. Portland Stevedoring Company, supra; Secretary of Labor v. Crescent Wharf and Warehouse Company, supra; Secretary of Labor v. Natkin & Company, Mechanical Contractors, Secretary of Labor v. Standard Glass & Supply Company, In so concluding, we do not consider the evidence introduced to establish there was little likelihood the beam would dislodge. That evidence is a relevant consideration in determining the gravity of the violation and we consider it for that purpose in determining the appropriate penalty. See Secretary of Labor v. National Realty & Construction Company, Inc.,

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n3 We find that the Judge erred by refusing to allow Complainant to amend the citation to allege a serious violation. Complainant moved both at the pre-hearing conference and at the hearing for leave to amend the citation, contending that by clerical error the citation had been issued on the wrong form. This contention is supported by the fact that Complainant proposed the penalty on the section of the penalty notification form reserved for serious violations. Furthermore, the Judge's reason for refusing to allow the amendment is based on a misconception of the Act. Proceedings before the Commission are not, as the Judge said, "quasi-criminal," but are distinctly civil in nature. In the circumstances here presented we find the sought amendment non-prejudicial and that it should have been granted in accordance with Rule 15(a) of the Federal Rules of Civil Procedure. Rule 15(a) applies since the Commission has not adopted a contrary rule. See section 12(g) of the Act.

n4 Section 17(k) provides:

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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As noted in footnote 3, supra, the Judge erroneously classified the violation as non-serious and premised the penalty he assessed on that erroneous conclusion. We have considered the size of the employer's business, the gravity of the violation, the employer's good faith, and its history of previous violations. Balancing those factors, we conclude that a $300 penalty is appropriate.

THE LA SALLE -- CITATION FOR SERIOUS VIOLATION

Complainant alleged a serious violation of 29 C.F.R. 1918.42(b) in that Respondent was lifting hatch beams with open-ended hooks. At one time the hooks had been equipped with safety catches or closures, but they were broken off at the time of the inspection. The cited standard provides:

Bridles for lifting hatch beams shall be equipped with toggles, shackles, or hooks or other devices of such design that they cannot become accidentally dislodged from the beams with which they are used. Hooks other than those herein described may be used only when they are hooked into the standing part of the bridle. Toggles, when used, shall be at least 1 inch longer than twice the longest diameter of the holes into which they are placed.

Judge Blume concluded that the hooks could not be in compliance because they had been designed for use with closures. We cannot agree. This evidence merely establishes the hooks as being open-ended, and open-ended hooks are not forbidden under the standard. Rather, what is forbidden is the use of lifting devices of such design that the beams may be accidentally dislodged.

In this regard, the compliance officer testified that a hook could dislodge if a beam struck a hatch coaming thereby causing the line to the hook to go slack. His testimony was completely rebuted by Respondent's testimonial and photographic evidence. In brief, it was established that the design of the hooks was such as to prevent accidental displacement in the situation hypothesized by the compliance officer. We conclude that the citation for serious violation must be vacated for failure of proof.

THE LA SALLE -- CITATION FOR NON-SERIOUS VIOLATION

Complainant also alleged a non-serious violation of 29 C.F.R. 1918.41(c) for allowing employees to install hatch beams in the No. 4 hatch of the La Salle while standing on a work area less than three feet wide and unprotected by a handline. The cited standard provides:

Trunk hatches and other permanent or semi-permanent structures and spare parts: When bulkheads, lockers, reefer compartments of large spare parts are within 3 feet of the coaming, grab rails or taut handlines shall be provided for the protection of employees handling beams and hatch covers.

It is undisputed that six employees were engaged at the third deck level in positioning hatch beams (weighing 1500 pounds) into sockets. The employees were standing on ledges of 30 inches or smaller width, and handlines or grab rails were not provided. An employee could fall at least 10 feet, bounce off of the ship's drive shaft assembly, and fall onto tanks located approximately 12 feet beneath the assembly.

On these facts the Judge determined the existence of the violation. n5 The Judge opined that the hazard involved might be more in keeping with that of a serious violation. It is therefore implicit in his opinion that the violation carried a greater degree of gravity than that assigned to it by Complainant. Nevertheless, he refused to disturb Complainant's proposed penalty of $60. n6 We believe $60 is inappropriate.

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n5 Respondent argues that it was impossible to comply with the standard. It relies on the fact that the shipowner had not installed grab rails or provided padeyes to which handlines could have been secured. The argument is specious. It ignores the fact that grab rails or padeyes could actually be installed thereby making compliance possible.

n6 See Secretary of Labor v. Baltz Brothers Packing Company,

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On the facts it was distinctly possible that any one of the six affected employees could slip and fall or be knocked off of the narrow ledges upon which they were employed. The fall distance was 22 feet and an obstruction was in the fall path. Consequently, a fall could result in an injury as slight as a contusion or as significant as death. The gravity of the violation was, therefore, moderate. Having also considered Respondent's size (large), its lack of history of previous violations, and its relative good faith we conclude that a civil penalty of $200 is appropriate in the circumstances.

Accordingly, it is ORDERED that Complainant's citation for violation of 29 C.F.R. 1910.43(e) is amended to charge a serious violation; that the citation as amended is affirmed and that a penalty of $300 is assessed for such violation. Complainant's citation and proposed penalty for serious violation of 29 C.F.R. 1918.42(b) are vacated. Complainant's citation for violation of C.F.R. 1910.41(c) is affirmed, and a penalty of $200 is assessed for such violation.

CONCURBY: MORAN (In Part)

DISSENTBY: MORAN (In Part)

DISSENT:

MORAN, CHAIRMAN, concurring in part and dissenting in part: I agree with the Commission that respondent was in violation of the Act by not complying with the requirements listed in 29 C.F.R. 1918.43(e) and that complainant failed to sustain his burden of proof with regard to the alleged violation based upon the provisions listed in 29 C.F.R. 1918.42(b). However, I view the discussion of whether or not the former is a "serious" violation as a meaningless academic exercise.

A decision on the question of whether or not a violation is "serious" within the meaning of section 17(k) of the Act is of no practical effect. This is amply demonstrated in many prior Commission decisions. See, for example, Secretary v. Portland Stevedoring Company, Secretary v. Thorleif Larsen and Son,

The maximum assessment for violations, whether classified as serious or nonserious, is $1,000. There is no minimum amount. In the present case, the Commission could have assessed the same $300 penalty without going through the useless ritual of examining the illusory difference between serious and nonserious violations.

From the standpoint of the respondent, there is no difference between a serious and a nonserious violation. From the standpoint of the Secretary of Labor, there is no difference between a serious and a nonserious violation. From the standpoint of respondent's employees, the protected class under the Act, there is no difference between a serious and a nonserious violation. I am unaware of anyone interested in this "difference" except Review Commission Members who continue to write decisions on such matters.

Under a penalty assessment system which allows an employer to be penalized $235 for a "serious" offense and $500 for an offense which is not serious, n7 there can be no justification for reviewing a Judge's decision in order to distinguish between the two.

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n7 Secretary of Labor v. Federal Glass Company,

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Although I agree that respondent was in violation of the Act by not complying with the requirements listed in 29 C.F.R. 1918.41(c), I disagree with the Commission's action in increasing the penalty to an amount greater than that proposed for this infraction by the Secretary of Labor. In increasing this amount from the $60 proposed by the Secretary to $200, the Commission has exceeded the authority granted to it under the Act.

This Commission has no compliance responsibilities whatsoever. Its role is strictly adjudicatory. Its only function is to serve as the tribunal where employers (and employees in certain limited respects) may seek relief from enforcement actions initiated by the Secretary of Labor with which they disagree.

Under section 17 of the Act the Commission has the sole authority to assess penalties whenever a proposed penalty is properly contested. This authority, however, is limited by the criteria set out in section 17(j) and by the provisions of section 10(c).

When a violation or proposed penalty is contested by an employer, section 10(c) of the Act provides in part that:

. . . the Commission shall afford an opportunity for a hearing . . . in accordance with section 554 of title 5, United States Code . . . .

This language incorporates by reference the Administrative Procedure Act and binds the Commission to its provisions. That Act provides that when matters are submitted to a Federal adjudicatory body for resolution, the agency is authorized to adjudicate only those issues in dispute between the litigants.

The only dispute on this matter between these litigants is whether the proper penalty should be $60 or something less than that. In ruling that the $60 figure is not high enough, the Commission has violated the Administrative Procedure Act by ruling on an issue not submitted. The highest penalty the Commission has the authority to order for this violation is $60. I submit that no valid order can issue against this respondent for this violation in any amount over $60.

Section 10(c) further provides that after the Secretary of Labor has notified the Commission that an employer has contested a proposed penalty and a hearing has been held on that issue:

The Commission shall thereafter issue an order based on findings of fact, affirming, modifying, or vacating the . . . proposed penalty, or directing other appropriate relief . . . (emphasis added).

The respondent in this case is seeking relief from the amount of the penalty. The only question before this Commission is whether or not the respondent should be granted such relief. Clearly, an order directing relief, if appropriate, can only be issued with respect to the question of whether or not the penalty is too high. To contend that a penalty increase of $140 is "relief" is absurd.

Even if the law did not preclude the practice, I submit that the Commission should, as a policy matter, refrain from assessing penalties in amounts greater than those proposed by the Secretary of Labor. The Commission's penalty-increasing tendencies can only have a "chilling effect" on employers who wish to exercise their legal and constitutional rights to obtain a proper hearing and a just decision whenever charges that they have violated the law are filed against them by the Secretary of Labor.

There is no way an employer can be penalized any amount in excess of that proposed by the Secretary if he does not assert his right to a hearing. Should an employer who exercises his constitutional right to a hearing thereby subject himself to the possibility of increased penalties? The Commission says "yes." I say that to hold the threat of increased penalties over the heads of employers who seek justice will surely deter some of them from asserting their legal rights. The function of this Commission is not to discourage those who would seek to avail themselves of the adjudicative process. To do so is to encourage the acceptance of unjust enforcement actions.

This Commission has no compliance responsibilities. Its role is not that of enforcer. That role is filled by the Secretary of Labor. The role of this Commission is to adjudicate only those issues in dispute between the litigants. When a proposed penalty is contested by an employer, the Commission may, after a hearing, affirm that amount, assess a lower amount as the penalty, or authorize no penalty at all. It does not have the power to do what it has attempted to do in this case.

[The Judge's decision referred to herein follows]

BLUME, JUDGE, OSAHRC: Inasmuch as this is a proceeding under a new statute, it would appear appropriate to provide a concise and authoritative statement as to the exact nature of the authority under which this proceeding originates. No better statement of the nature and purpose of this legislation can be found than the formal declaration of the "CONGRESSIONAL FINDINGS AND PURPOSE" in the statute itself -- the "Occupational Safety and Health Act of 1970" (P.L. 91-596, 91st Congress, S. 2193, December 29, 1970) set forth in Sec. 2 of the Act.

Sec. (2) The Congress finds that personal injuries and illnesses arising out of work situations impose a substantial burden upon, and are a hindrance to, interstate commerce in terms of lost production, wage loss, medical expenses, and disability compensation payments.

(b) The Congress declares it to be its purpose and policy, through the exercise of its powers to regulate commerce among the several States and with foreign nations and to provide for the general welfare, 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 --

(1) by encouraging employers and employees in their efforts to reduce the number of occupational safety and health hazards at their places of employment, and to stimulate employers and employees to institute new and to perfect existing programs for providing safe and healthful working conditions;

(2) by providing that employers and employees have separate but dependent responsibilities and rights with respect to achieving safe and healthful working conditions;

(3) by authorizing the Secretary of Labor to set mandatory occupational safety and health standards applicable to businesses affecting interstate commerce, and by creating an Occupational Safety and Health Review Commission for carrying out adjudicatory functions under the Act;

(4) by building upon advances already made through employer and employee initiative for providing safe and healthful working conditions;

(5) by providing for research in the field of occupational safety and health, including the psychological factors involved, and by developing innovative methods, techniques, and approaches for dealing with occupational safety and health problems;

(6) by exploring ways to discover latent diseases, establishing causal connections between diseases and work in environmental conditions, and conducting other research relating to health problems, in recognition of the fact that occupational health standards present problems often different from those involved in occupational safety;

(7) by providing medical criteria which will assure insofar as practicable that no employee will suffer diminished health, functional capacity, or life expectancy as a result of his work experience;

(8) by providing for training programs to increase the number and competence of personnel engaged in the field of occupational safety and health;

(9) by providing for the development and promulgation of occupational safety and health standards;

(10) by providing an effective enforcement program which shall include a prohibition against giving advance notice of any inspection and sanctions for any individual violating this prohibition;

(11) by encouraging the States to assume the fullest responsibility for the administration and enforcement of their occupational safety and health laws by providing grants to the States to assist in identifying their needs and responsibilities in the area of occupational safety and health, to develop plans in accordance with the provisions of this Act, to improve the administration and enforcement of State occupational safety and health laws, and to conduct experimental and demonstration projects in connection therewith;

(12) by providing for appropriate reporting procedures with respect to occupational safety and health which procedures will help achieve the objectives of this Act and accurately describe the nature of the occupational safety and health problems;

(13) by encouraging joint labor-management efforts to reduce injuries and disease arising out of employment.

This proceeding was initiated under the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., P.L. 91-596, 84 Stat. 1590 et seq.) by the Secretary of Labor, hereinafter called the Secretary, who, pursuant to the Act, issued three citations to California Stevedore and Ballast Company, hereinafter called Respondent.

Citation No. 1 was issued on June 9, 1971, and alleged that on June 9, 1971 Respondent violated that safety standard found at 29 CFR 1504.43(e) and promulgated by the Secretary pursuant to Sec. 6(a) of the Act at 29 CFR 1910.16. That safety standard provides as follows:

Citation No. 1 was issued following an inspection of Respondent's place of employment at Pier 26, San Francisco, California, on board the cargo vessel "Antonino Pacinotti," where employees of Respondent were engaged in longshoring operations.

Sec. 17 of the Act prescribes the penalties for violation of the Act. These penalties range from a substantial fine or imprisonment for willful violations causing death of an employee to the imposition of civil penalties of varying amounts depending upon the gravity of the violation. Civil penalties are further classified as "serious" or "not- -- of a serious nature." Sec. 17(k) of the Act describes "a serious violation" as follows:

(k) 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.

Sec. 17(j) of the Act provides for the manner by which the Commission may assess civil penalties.

(j) The Commission shall have authority to assess all civil penalties provided in this section, giving 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.

The violation alleged in Citation No. 1 was not alleged to be "a serious violation" within the meaning of Sec. 17(k) of the Act. It was the contention of the Secretary, nevertheless, both at the pre-hearing stage and during hearing that:

The violation alleged in Citation No. 1 was intended by the Secretary to be alleged as a serious violation, but due to a clerical mistake, the violation alleged in Citation No. 1 was not alleged to be a serious violation (Emphasis added).

The Secretary's motions to amend Citation No. 1 so as to charge "a serious violation" rather than the so-called "other" (not serious) violation were denied by the hearing examiner both during the pre-hearing stage as well as at the close of the hearing as hereinafter set forth.

Citation No. 3 was issued on July 15, 1971, and alleged that on July 1, 1971. Respondent violated that safety standard found at 29 CFR 1504.42(b) and promulgated by the Secretary pursuant to Sec. 6(a) of the Act at 29 CFR 1910.16. That safety standard provides as follows:

Citation No. 4 was, like Citation No. 3, issued on July 15, 1971, and alleged that on July 1, 1971, Respondent violated that safety standard found at 29 CFR 1504.41(c) and promulgated by the Secretary pursuant to Sec. 6(a) of the Act at 29 CFR 1910.16. That safety standard provides as follows:

Trunk hatches and other permanent or semi-permanent structures and spare parts: When bulkheads, lockers, reefer compartments or large spare parts are within 3 feet of the coaming, grab rails or taut handlines shall be provided for the protection of employees handling beams and hatch covers.

Citations No. 3 and No. 4 were issued following an inspection of Respondent's place of employment on July 1, 1971, at Pier 7 West, Oakland Army Base, Oakland, California, on board the cargo vessel "LaSalle," where employees of Respondent were engaged in longshoring operations.

The violation alleged by the Secretary in Citation No. 3 was alleged to be a "serious violation" within the meaning of Sec. 17(k) of the Act. The violation alleged by the Secretary in Citation No. 4 was not alleged to be a "serious" violation" within the meaning of Sec. 17(k) of the Act.

On or about July 15, 1971, the Secretary notified Respondent by certified mail of the penalties proposed to be assessed under Sec. 17 of the Act for the violations alleged in Citations No. 1, No. 3 and No. 4.

The penalty proposed for the violation alleged in Citation No. 1 was $600.00, and was shown on the Notification of Proposed Penalty form (OSHA-3) under the heading, "SERIOUS VIOLATIONS" (although a "serious violation" was not alleged per se ).

The penalty proposed for the violation alleged in Citation No. 3 was $600.00, and was shown on the Notification of Proposed Penalty form (OSHA-3) under the heading, "SERIOUS VIOLATIONS."

The penalty proposed for the violation in Citation No. 4 was $60.00, and was shown on the Notification of Proposed Penalty form (OSHA-3) under the heading, "OTHER VIOLATIONS."

Within 15 days from the date of receipt of the Secretary's notice of proposed penalties, Respondent notified the Secretary that it wished to contest the aforesaid citations and proposed assessment of penalties, pursuant to the provisions of Sec. 10(a) of the Act. The Secretary duly advised the Occupational Safety and Health Commission, hereinafter called the Commission, of such notification and the Commission duly afforded an opportunity for a hearing, pursuant to the provisions of Sec. 10(c) of the Act.

At the pre-hearing conference held in this matter on September 22, 1971, counsel for the Secretary of Labor moved to amend Citation No. 1 to allege a serious violation of the Act, which motion was denied (PHCR 48) n1 subject to renewal (PHCR 53). The motion was renewed at the next pre-hearing conference held on September 29, 1971 (PHCR 161) and ruling thereon was reserved. The motion was denied at conclusion of all the testimony presented at the hearing herein, held on November 1, 2, 3, 4 and 5, 1971 (R. 758). n2

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n1 PHCR is the abbreviation used herein for the Reporter's transcript of the pre-hearing conference.

n2 R is the abbreviation used herein for the Reporter's Transcript of the hearing.

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Pursuant to Sec. 10(c) of the Act, affected employees or representatives of affected employees or representatives of affected employees were provided an opportunity to participate as parties to the hearing held herein (R. 8).

Respondent, California Stevedore and Ballast Company is a California corporation and maintains its principal place of business at Pier 32 (R. 396), San Francisco, California, and is engaged in a business affecting commerce within the meaning of the Act, in that it is a stevedore and employs employees in loading and unloading vessels in commerce (H-VIII, p. 2; H-IX, p. 5). n3

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n3 H-VIII refers to document No. VIII in the official Commission File on this case.

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California Stevedore and Ballast Company is the largest of the eight stevedoring companies in the San Francisco Bay Area (R. 368). It employs approximately 80 permanent managerial and clerical employees (R. 395), in addition to the longshoremen it hires on a day to day basis. In June 1971, Respondent's average weekly longshoreman payroll was $300,000 (R. 373). It employs more longshoremen and operates at more piers than any of the other stevedoring companies in the Bay Area (R. 395).

Respondent has initiated and maintained a safety program indicating a high degree of awareness of the Act (R. 357-393, Resp. Exhs. Nos. 6-10).

The Secretary offered no proof of previous violations of the Act by Respondent.

THE EVIDENCE

CITATION NO. 1

The Antonino Pacinotti is an Italian Line, Savant type cargo vessel (Resp. Exh. No. 15) embodying six cargo hatches. The size of the opening, or square, of the number 3 hatch, forward, is approximately 21 feet fore-and-aft and 20 feet athwartships. The vertical distance in the hatch from the uppermost deck level, or weather deck, to the lowest working and storage surface, or floor of the lower hold, is approximately 38 feet (Resp. Exh. No. 15; R. 48). Between the weather deck and the floor of the lower hold were four deck levels (Resp. Exh. No. 15). For convenience of reference, the deck levels between the weather deck and floor of the lower hold will hereafter be referred to as deck levels 2, 3, 4 and 5.

Occupational Safety and Health Administration Compliance Officer Richard W. Sundstedt inspected hatch number 3 at approximately 3:00 p.m. (R. 14) on June 9, 1971. At that time cargo was being discharged from reefer compartments adjacent to the lower hold of hatch number 3. The small amount of cargo, if any, stowed on deck levels 5, 4, 3 and 2 had previously been discharged. Six employees of Respondent were working in the lower hold loading the cargo to be discharged onto pallets.

On a cargo vessel like the Pacinotti, when a deck level in a hatch has been stowed with all the cargo to be carried on a particular vessel, the hatch opening, or square, next above that deck level, is covered with steel hatch beams which support wooden hatch covers, and on which cargo placed in the higher deck level may be stowed for the voyage.

In hatch No. 3 on the Pacinotti, the steel hatch beams, approximately 19 feet long and weighing 1,000 pounds each (R. 56), were, when in place, suspended over the square in beam sockets (R. 55), which are three sided steel plates, open at the top, welded or riveted to the edge of the hatch opening (R. 27). The beam sockets support the beam at either end; the beams are placed athwartships in the sockets. Four pairs of sockets, spaced approximately four feet apart, commencing approximately four feet from the forward end of the hatch square, were provided to support four hatch beams at each of the deck levels 2, 3, 4 and 5 (R. 493).

The manner in which hatch beams were to be secured in their sockets in the number 3 hatch of the Pacinotti was by placing a toggle bolt on a horizontal plane through one flange of the beam socket, then through the beam, and then through the opposite flange of the beam socket (R. 28).

A number of beams had been left in place in the number 3 hatch while cargo was being discharged from the lower hold. One of these beams was not secured by means of a toggle pin or toggle bolt, and was not otherwise lashed or locked in place. Because the testimony of three eyewitnesses is conflicting as to the number of beams left in place, their location in the hatch, and the location of the unsecured beam, some discussion of the testimony is necessary.

Compliance Officer Sundstedt testified that three beams were in place when he observed the hatch. He testified that the three beams were each approximately five feet from the forward end of the hatch, (R. 53) one each on deck levels 2, 3 and 4; the beams on deck levels 2 and 3 were each secured by means of a toggle pin; the beam on deck level 4 was unsecured (R. 55).

Respondent's witness, ship superintendent, William H. Hogberg, testified that five beams were in place when he observed the hatch on June 9, 1971; two beams were located four and eight feet respectively from the forward end of the hatch on deck level 2, two beams were located four and eight feet respectively from the forward end of the hatch on deck level 3, and one beam was located four feet from the forward end of the hatch on deck level 5 (R. 424, 425). According to Hogberg, the beams on deck levels 2 and 3 were all secured (R. 426, but see R. 503) by toggle pins (R. 504). The beam on deck level 5 was unsecured.

Respondent's witness, Wallace Austin the gang boss for hatch number 3 on June 9, testified at one point that two beams were in place on deck levels 2 and 3 (R. 569) and at another point that four beams were in place on those deck levels (R. 571) when he observed the number 3 hatch on June 9th. He further testified, contrary to both Mr. Sundstedt and Mr. Hogberg, that the unsecured beam was located in the aft end of the hatch on the 5th deck level n4 (R. 578). Mr. Austin's demeanor and general appearance during his testimony raised serious questions as to his then sobriety.

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n4 References in the citation, and references in the transcript by witness Sundstedt to "lower 'tween deck," and references in the transcript by witnesses Hogberg and Austin to the "G" deck are references to deck level 5 in the No. 3 hatch on the Pacinotti.

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Mr. Hogberg testified that if the beam on deck level 5 were to be removed from the hatch, the two beams directly above it on deck levels 2 and 3 would first have to be removed and the whole process would take half an hour, and that if the beams were not in the configuration to which he testified, the beams on the upper deck levels would not first have to be removed (R. 526-529). He further testified that down time, that is time spent in activities other than discharging cargo, of a duration longer than 15 minutes was to be recorded on the daily report for that day, in evidence as Respondent's exhibit 11. Mr. Sundstedt testified he saw the unsecured beam removed (R. 64) and Mr. Austin testified he witnessed an attempt to remove the unsecured beam (R. 576). However, there is no entry of any down time on the daily report after 11:45 a.m. on June 9th.

Mr. Hogberg testified entirely from his memory of conditions existing five months before (R. 482), having never made a written report of the conditions in question (R. 517). He was the ship superintendent of Respondent's stevedoring operations on the Antonino Pacinotti on 25 to 30 -- approximately 28 different voyages during the previous five years (R. 407).

Finally, Mr. Hogberg reported the condition of the number 3 hatch on the Pacinotti to one of Respondent's two safety superintendents, Mr. McCarthy, on June 10, 1971 (R. 518), and Mr. McCarthy described the incident in a written report which was later seen by Mr. Hogberg (R. 521). Mr. McCarthy's written report was not offered in evidence by Respondent. Mr. McCarthy was present throughout the hearings.

At the time of the compliance officer's inspection, the midship boom was spotted above hatch number three (R. 57), and the yard or offshore boom was spotted over the dock (R. 35, 36, 57). When a load was hoisted up through the hatch, it was suspended on one fall line (R. 118). The center of the hook, that is, that imaginary line which would be created by a plumb line hung from the head of the midship boom to the lower hold, was approximately six feet aft of the beams left in place (R. 58) and 11 feet forward of the forward end of the hatch. The base of the midship and yard booms was at the forward end of the hatch, and the winches there located were operated by one winch driver positioned at the forward end of the hatch (Resp. Exh. 15; R. 415).

The distance between the head of the midship boom and the weather deck was approximately 40 feet (R. 69).

Break bulk cargo was being discharged from the lower hold at the time of Mr. Sundstedt's inspection. The cargo consisted of cases of wine (Resp. Exh. No. 11), each case weighing approximately 40 pounds (R. 444). The cargo was discharged on a pallet board four feet wide and six feet long (R. 122), weighing approximately 200 pounds (R. 56). Approximately 30 cases of wine were hoisted per load (R. 453). The weight of each load discharged, including the weight of the pallet board, was approximately 1,400 pounds. One full load of cargo was discharged approximately every six minutes (R. 58).

The cases of wine were placed on a gravity roller from their place of stowage in the reefer compartment adjacent to the aft end of the hatch, and moved thereon into the square of the hatch. The load on the pallet board was built in the square of the hatch (R. 591; R. 444). When the load was built, it was pushed by two longshoremen on a four wheel flat truck to a position beneath the cargo hook (R. 443).

Attached to the cargo hook was a lift board bridle, the bars of which were inserted in the lips of the pallet board by two of the six longshoremen working on the hold prior to the hoist.

As the cargo began its upward journey the two longshoremen steadied the load until it reached face level (R. 454) or until it was above their heads (R. 579).

The vertical distance between the floor of the lower hold and the unsecured beams on deck level five was approximately eight feet (Resp. Exh. No. 15; R. 48).

The unsecured beam on deck level five was adjacent to a section through which cargo was being worked.

Witness Austin testified that the beam on deck level five was wedged in its sockets, and could not be removed by the normal process of lifting it out with the ship's boom and winches (R. 583-589). This testimony is in direct conflict with Compliance Officer Sundstedt's testimony that he saw the unsecured beam removed (R. 64, R. 143). The unsecured beam about which Austin testified was located at the opposite end of the hatch from the unsecured beam about which both Sundstedt and Hogberg testified (R. 583-589) and apparently was removed by the ship's gear.

In computing the proposed penalty for Citation No. 1, the Secretary considered the alleged violation to be a serious violation within the meaning of section 17(k) of the Act. The Secretary proposed an unadjusted penalty of $1,000, and reduced the proposed penalty 20 percent in consideration of the good faith shown by Respondent, and reduced the proposed penalty an additional 20 percent in consideration of Respondent's positive history of no previous violations under the Act. No reduction was given in consideration of the size of Respondent's business (Secty's Exh. No. 7).

CITATION NO. 3

The LaSalle is a C-3 type cargo vessel embodying five cargo hatches. The third deck level or lower 'tween deck in the number 1 hatch was in the process of being covered over at the time of the compliance officer's inspection, which occurred at approximately 2:00 P.M. on July 1, 1971.

The dimensions of the opening or square of hatch No. 1 were 36 feet fore-and-aft and 20 feet athwartships (R. 76). Hatch beams were in the process of being placed in their beam sockets on the third deck level.

The vertical distance from the uppermost deck level, or weather deck, where the beams to be placed in the hatch were located, to the third deck level was approximately 20 feet (R. 76). Between the weather deck and the third deck level was one deck level, hereinafter referred to as the second deck level.

The hatch beams were being hoisted from the weather deck and lowered into the hatch by means of two booms, spotted wing and wing (R. 90), located at the forward end of hatch No. 1 (R. 76), and controlled by two winches operated by one winch driver (R. 91). The beams to be put in place were laying fore-and-aft toward the aft end of the No. 1 hatch on the offshore side of the vessel (R. 77).

The fall lines from each of the two booms were joined by a blacksmith assembly from which a cargo hook was suspended (R. 619). Attached to the cargo hook was a bridle for lifting hatch beams which consisted of two braided wire ropes, approximately 12 feet long, at the end of each of which was permanently affixed a hook (R. 77, Secty's Exh. 11). The gear described in this paragraph was owned and provided by the ship, and will hereinafter be referred to as the hook bridle (R. 702).

The two hooks of the hook bridle were of the size and shape depicted in the photograph received in evidence as Respondent's Exhibit No. 19, that is, they were in the general configuration of the printed capital letter "U", with an enclosed circle resting on the top of the left hand side of the "U". The wire ropes were connected to the hooks through the circle, or eye, of the hook.

The hooks are properly described as open ended hooks, in that there was no joint or safety tongue across the top of the "U" (R. 736). The hooks appeared to have been manufactured for use with a safety tongue (Resp. Exh. No. 11, R. 698), but were not equipped with safety tongues at the time of the inspection. If a safety tongue hook had been used, the hook would have closely resembled the safety hook depicted on Secretary's Exhibit No. 4, and marked with a "B" on that exhibit (R. 232).

The beams which were being hoisted and lowered into place were "I" beams approximately 20 feet long and weighing approximately 1,500 pounds each (R. 83). Lifting eyes, also called staples, were permanently affixed to both sides of the beams, one each approximately 18 inches inward from the ends of the beams (Resp. Exh. No. 23). The lifting eyes also resemble capital letter "U"s; the top of each arm of which is welded to the face of the side of the beam (R. 84). When the beam was in a horizontal position, the angle of the opening in the lifting eye, in relation to the beam, was approximately 25 degrees from the vertical (Resp. Exh. No. 23, R. 696).

In order to hoist and lower the beam, the shanks of the hooks, that is, that portion of the hook from the base center to the terminal end of the hook (R. 298), were inserted through the lifting eyes in a left to right direction (Resp. Exh. No. 19) on either side and end of the beam. The hooks were not hooked into the standing part of the bridle.

Before the compliance officer arrived at the No. 1 hatch, one beam had been hoisted from the weather deck and lowered into place at the third deck level by means of the hook bridle (R. 677). A second beam was in the process of being raised above the weather deck by means of the hook bridle when the compliance officer arrived at the hatch.

Surrounding the No. 1 hatch at the weather deck level was a raised coaming approximately 30 inches high (R. 678).

The beam which was put into place was raised above the weather deck, over the weather deck coaming, and lowered to the third deck level in a horizontal position at approximately a 45 degree angle from the inshore side of the hatch (R. 83). Four longshoremen were waiting at the third deck level to guide the beam into its beam sockets as the beam was lowered in the hatch (R. 75). At least two longshoremen were working around the hatch at the weather deck level while the beam was being hoisted and lowered (R. 92).

In computing the proposed penalty for Citation No. 3, the Secretary proposed an unadjusted penalty of $1,000, and reduced the proposed penalty 20 percent in consideration of the good faith shown by Respondent, and reduced the proposed penalty an additional 20 percent in consideration of Respondent's history of no previous violations under the Act. No reduction was given in consideration of the size of Respondent's business (Secty's Exh. No. 7).

CITATION NO. 4

Compliance Officer Sundstedt inspected hatch No. 4 on the LaSalle shortly after completing his inspection of the No. 1 hatch, on July 1, 1971 (R. 99).

Six longshoremen were working at the third deck level in hatch No. 4, in the process of covering the hatch square at that deck level with hatch beams and hatch covers (R. 103, 105).

The four sides of the hatch square between deck levels 2 and 3 were surrounded by reefer compartments for the storage of perishable cargo (Secty's Exh. No. 5; Resp. Exhs. Nos. 24, 25; R. 102), thus forming a trunk hatch at this level (R. 100).

The reefer compartment walls, or refrigerated bulkheads (R. 31) were located on a horizontal plane 30 inches from the coaming (R. 660) at deck level 3, thus creating a 30 inch ledge on each of the four sides of the hatch.

At the time of Mr. Sundstedt's inspection, three longshoremen were standing on the offshore ledge and three on the inshore ledge (R. 103) awaiting the lowering of hatch beams for placement in the hatch beam sockets (R. 660). Grab rails or taut handlines were not provided for the protection of these employees (R. 105; R. 660).

When the alleged violation at hatch No. 4 was called to the attention of Mr. Minear, one of Respondent's safety superintendents present at the time, he ordered the longshoremen to cease working in hatch No. 4 (R. 660) pending installation of handlines or grab rails (R. 106), thus immediately abating the alleged violation. Therefore, no abatement date was fixed by the Secretary in his Citation.

In computing the proposed penalty for Citation No. 4, the Secretary determined that the gravity of the violation was such that it warranted an unadjusted penalty of $200.00. The Secretary reduced the unadjusted penalty by 40 percent in consideration of the good faith shown by Respondent, and its history of no previous violations under the Act. No reduction was given in consideration of the size of Respondent's business. The adjusted penalty of $120.00 was then further reduced by 50 percent as a credit for abatement of the alleged violation (Secty's Exh. No. 9).

EVALUATION OF THE EVIDENCE

CITATION NO. 1

The essential facts heretofore set out relate the details of the allegations and proof in support of Citation No. 1 at length. Briefly, the ultimate facts in support of Citation No. 1, concern the failure of the respondent, California Stevedore and Ballast Company, the largest stevedoring company in the San Francisco, California Bay Area, to comply with the safety standard found at 29 CFR Sec. 1504.43[e] and promulgated by the Secretary of Labor pursuant to Sec. 6a (of the Act) at 29 CFR Sec. 1910.16 in connection with the failure to lash, lock or otherwise secure a cargo beam in the No. 3 hatch of the cargo vessel Antonino Pacinotti on June 9, 1971 during the unloading of cargo on June 9, 1971, at pier 26, San Francisco, California.

On the day in question, it is alleged that longshoremen working in the hold were placed in a hazardous occupational environment in violation of the quoted sections of the Act when the cargo boom equipment in use that day was such that the steel hatch beams, which were approximately 19 feet long and weighing approximately 1,000 pounds, could have been displaced and thereby become dangerous instrumentalities, constituting a hazard to life and limb of the longshoremen working in the hatch at the time inasmuch as a beam of that size and weight could have fallen and or struck the workers under the circumstances outlined above and resulted in either death or serious injury to one or more of the workers then working in the hatch of the ship.

The Hearing Examiner is not unmindful of the testimony of the claimant's superintendent in charge of the cargo operation, Mr. Hogberg, as well as Mr. Austin, the gang boss, both of whom testified to conditions contrary to that alleged and offered as evidence by the government. The Respondent's version is to the effect that the beam in question was either frozen or locked in position because it was jammed in its sockets and could not be removed from its position in the hatch by the cargo lifting mechanism; or, in the alternative, that the "frozen" cargo beam was in such a position that it could not constitute a hazard as asserted by the government's Compliance Officer, Mr. Sundstedt, who conducted the inspection which served as the basis for the charges. However, on the basis of the sum total of the exhibits and the testimony of Mr. Sundstedt, the Hearing Examiner is pursuaded that the conditions as described in Mr. Sundstedt's testimony, were substantially in existence on the date in question and the hatch beam in question was in the place and condition as alleged by the Secretary in Citation No. 1.

Accordingly, on the basis of the substantial evidence, the Secretary sustained the burden of Citation No. 1 with respect to the Respondent's failure to lash, lock or otherwise secure a beam left in place adjacent to a section through which cargo was being worked so that it could not be displaced by accident in violation 29 CFR Sec. 1504.43(e) as alleged in Citation No. 1.

It will be noted that the Secretary seeks a civil penalty of $300 in connection with the alleged violation of Citation No. 1 by requesting a 50% credit for abatement of other than serious violations (Secretary's Exh. No. 9). The $300 amount proposed penalty is arrived at by starting with a $600 proposed penalty subjected to the 50% reduction. However, inasmuch as a serious violation was not charged, the base figure of $600 appears excessive and a $300 base would appear more reasonable. Applying the 50% credit for abatement for other than serious violations on the basis of the Secretary's aforesaid standards, the $300 base should be reduced by the 50% credit and result in a civil penalty of $150 rather than the $300 sought by the Secretary for violation of Citation No. 1.

CITATION NO. 3

Citation No. 3 charges the respondent with failure to equip a beam bridle for lifting hatch beams with toggles, shackles, hooks, or other devices of such design that they could not become accidentally dislodged from the beams with which they were used in violation of 29 CFR Sec 1504.42(b), constituting an alleged serious violation as defined by Sec. 17(k) of the Act. It was charged by the government that, Respondent knew of the presence of such a hazard constituting the alleged violation and there was reason to believe that the type of hook employed to lift the beam bridle could become dislodged and cause the hatch beams, some 20 feet long and weighing approximately 1500 pounds each to become dislodged and strike one or more of Respondent's employees working in the hold, and, there was substantial probability that death or serious physical harm would result.

The facts in support of Citation No. 3 strongly indicate that on the day in question, July 1, 1971, at approximately 2 P.M., when Compliance Officer Sundstedt inspected the cargo vessel LaSalle, Respondent's employees were engaged in placing hatch beams in their sockets in the third deck level of hatch No. 1 of said ship. The evidence establishes that the general physical facts as to the construction and surrounding circumstances are pretty much in agreement other than the ultimate fact as to the existence of a hazardous condition by virtue of the type of hook then being employed to lift the cargo beam bridle assembly on the day in question. The evidence indicates that the cargo hook in question originally had been constructed with a safety catch or closure to prevent the accidental dislodging of a load from the hook. As originally constructed, the safety catch ordinarily would cover the hook and create a complete closure. However, the evidence clearly indicates that the safety catch portion of the hook was not present on the day in question. Consequently, the lack of the safety catch closure on the hook constituted the hazard charged in Citation No. 3.

While there was considerable testimony offered by Respondent's witnesses to the effect that the configuration of the hook in question, while open, was so constructed as to not require a closure, the substantial evidence indicates that a so-called broken safety hook was in use on that day. The safety catch on the hook had apparently previously been broken and never replaced on this particular hook. Consequently, the substantial evidence establishes that the hook in question employed by the Respondent on this occasion fell short of the necessary equipment safety standards to provide that level of safe working conditions as contemplated by the Act in the particular circumstances charged in Citation No. 3. While considerable evidence was offered by the Respondents as to their very real concern for safety and the maintenance of a broadly based safety program through their supervisory officials, the fact remains that on the day in question, an "I" beam approximately 20 feet long weighing approximately 1500 pounds was being lifted into the ship's hold under circumstances whereby it could have become dislodged and caused serious injury or death to Respondent's employees because of the fact that the hook was of such design that the beam could have been dislodged from the bridle assembly and fallen on the men working in and about the hatch in question.

The evidence shows that the beam, while being lowered into the hatch, could become dislodged in the event of one end of the beam striking the weather deck or other nearby portions of the vessel causing the hook to jar out of the lift "I", and in turn, a 1500 pound beam some 20 feet long could become dislodged and freely fall on men working below or in immediate proximity of the beam.

The Secretary has proposed the penalty for violation Citation No. 3 in the amount of $600 inasmuch as this citation charges a serious violation as defined by Section 17(k) of the Act. It will be seen that Section 17(k) of the Act describes a serious violation as one in which ". . . there is substantial possibility . . . 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."

Inasmuch as the uncontradicted evidence indicates that there were several of Respondent's supervisory personnel (Mr. Hogberg, Mr. Austin) at the scene at the time in question, the substantial evidence establishes that with exercise of reasonable diligence, the Respondent knew or should have known of the presence of the condition constituting the alleged violation. Accordingly, the evidence is such as to sustain a charge of serious violation within the contemplation of Sec. 17(k) of the Act and would authorize the assessment a civil penalty of up to $1,000. However, the Secretary seeks a lesser amount taking into consideration Sec. 17(j) of the Act which provides:

Accordingly, the Secretary's "Penalty Assessment Worksheet" (Sec. Exh. No. 7) sets forth a proposed civil penalty for the alleged violation of Citation No. 3 in an amount less than the $1,000 maximum penalty by way of a reduction of 20% in consideration of the good faith shown by the Respondent, which is demonstrated by this record and a further 20% reduction in consideration of the Respondent's history of no previous violation under the Act. The two reductions of 20% each result in a reasonable penalty adjustment factor in the total amount of 40% by which the unadjusted penalty of $1,000 can thereby be reduced to $600, which is justified by the record.

CITATION NO. 4

The allegations forming the basis of Citation No. 4 likewise occurred on the vessel LaSalle on July 1, 1971 during an inspection by Compliance Officer Sundstedt. As previously stated, sic longshoremen were unloading cargo on hatch No. 4 of said vessel. Part of the work area consisted of a 20" ledge on all four sides of the hatch (R. 103). The Secretary's Exhibit 5, figure 112, substantially depicts the position of the ledge and its elevation above the lower portion of the hatch. The ledges were at least 10 feet above the hatch space below part of which was occupied by the ship's drive shaft and propeller assembly (R. 104). Consequently, the six men in question were working on a narrow (20" wide) unguarded ledge in this hatch at least 10 feet above the so called propeller shaft alley (R. 105). At the time in question the six longshoremen working on the ledge had not been provided with safety devices established by way of applicable safety standards by way of grab rails or taut handlines for protection against falling from the unguarded 20" ledge. Since there is no substantial dispute about the physical facts stated above, nor is there any question that when the alleged violation was called to the attention of Mr. Minear, one of the Respondent's safety superintendents at the time, he ordered the longshoremen to cease working in the hatch pending installation of handlines, the alleged violation was immediately abated.

An examination of "Penalty Assessment Worksheet" (Sec. Exh. No 9) and Secretary's representation in support of this citation, e.g., Citation No. 4, the condition with respect to the unguarded ledge constitutes a so called "non-serious violation." Consequently, the Secretary requested an unadjusted penalty of $200 subject to a 40% reduction in consideration of a 20% reduction for the good faith shown by the Respondent in immediately ceasing work at this spot until grab lines were installed and a further 20% reduction because of Respondent's history of no previous violations under the Act. Accordingly, the adjusted penalty sought by the Secretary computed at $120 was then further reduced by 50% as a credit for the abatement of the violation, resulting in a proposed penalty to be assessed in the amount of $60.

In this connection, while the Secretary asserted a non-serious violation, it should be mentioned in passing, that a possible ten or twelve foot fall of a longshoreman from an unguarded 20" ledge a distance of at least ten or twelve feet into the irregular surface of the propeller shaft area of the ship, might constitute a hazard more in keeping with the so called "serious violation" contemplated by Sec. 17(k) of the Act. However since a serious violation was not charged by the Secretary, neither Citation No. 4 nor the penalty proposed by the Secretary should be disturbed at this juncture.

The Respondent's contentions, both at the hearing and in its brief, seriously challenged the facts as asserted by the government. As the trier of the facts, the Hearing Examiner has resolved the major conflicts in the evidence to reflect the circumstances as asserted by the government's witnesses. That is to say that Compliance Officer Sundstedt's testimony as to the physical facts in support of the three aforesaid citations is accepted as substantially correct. The burden of proof has been met by the government. This burden of proof prescribed by the Administrative Procedure Act requires the government to prove its case by the reliable, probative and substantial evidence (see Administrative Procedure Act Sec. 7(c)). The Secretary has met the burden of proof by providing substantial evidence in support of all of the allegations of the citations in question. The courts have heretofore provided the evidentiary criteria in this regard.

"Substantial evidence is more than a scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217 83 L. Ed. 126 (1938).

Substantial evidence "means evidence which is substantial, that is, affording a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . (I)t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury." NLRB v. Columbian Enameling & Stumping Co., 306 U.S. 292, 300, 59 S.Ct. 501, 505, 83 L. Ed. 660 (1939). The previously cited decisions, while antedating the enactment of the Administrative Procedure Act, continue as respectable authority. Since the enactment of the Administrative Procedure Act, Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L. Ed. 456 (1951), represents the reaffirmation of the previously quoted definition of substantial evidence and requires a choice among "the inevitably variant applications of the standards." 340 U.S. at page 477, 71 S.Ct. at page 459.

Respondents, in their brief (page 31 et seq), argue to the effect that ". . . where the employer is capable of complying with the regulations, he has a duty to do so. But where compliance is physically impossible due to causes beyond the employer's control, no useful regulatory purpose would be served for punishing the employer for not doing what is impossible to do . . ." The Respondent goes on to point out ". . . that compliance was impossible." The basis for the Respondent's contention of "impossibility" principally revolves around the fact that the Respondents do not furnish the gear used in cargo operations by the longshoremen employed by Respondents. For example, Respondents take the position that they did not design the ship nor the details of its construction and hence, should not be held responsible for dangerous conditions under which their employees may have worked. Carrying this argument further, the Respondents argue that the cargo hook referred to in Citation No. 3 was part of the ship's gear and accordingly, the Respondents and their employees had to work with the type of gear that was provided by the ships. This argument is syllogism, and if allowed to stand, shipowners, both foreign and domestic, could regulate conditions of occupational safety for American workers rather than Congress. It is clear that the Act and not the shipowners controls working conditions as to occupational safety.

The "Congressional Findings and Purpose" of the Act makes it manifestly clear that the Congress, under its commerce power and general welfare powers, undertook "to assure so far as possible every working man and woman in the nation safe healthful working conditions and to preserve our human resources --" (Sec. (2)(b)) Consequently, it is the Congress, through the enactment of this Act which has established the criteria for safe and healthful working conditions for the protection of the industrial workers in the Nation. Consequently, the Occupational Safety and Health Act now becomes the standard to assure affected workers safe and healthful working conditions. The facts further establish that the Respondent's employees were within the definition of "employee" within the meaning of Sec. 3(6) of the Act. In each instance of the three several citations involved, a duty of care was imposed on Respondents by the Act as to the Respondent's employees, who, were within that class of persons protected under the Act. Respondent furthermore, is admittedly an "employer" in a business affecting commerce and the hearing examiner so finds. See Powell v. U.S. Cartridge Co., 339 U.S. 497 (1950).

As previously set forth above, there is substantial evidence in support of each of the several citations to form a factual basis to find that the Respondent permitted conditions to exist which were violative of the Act and justified a basis for the penalties sought to be levied. Accordingly, the hearing examiner makes the following "FINDINGS OF FACT."

FINDINGS OF FACT

Upon the basis of all the reliable, probative and substantial evidence of record, the Hearing Examiner makes the following findings of fact:

1) The Occupational Safety and Health Review Commission has jurisdiction of the parties and the subject matter of this proceeding.

2) The Secretary of Labor duly and regularly caused to be issued several citations alleging violation of the initial Occupational Safety and Health Act of 1970, 29 USC 51; to wit:

(a) Citation No. 1 issued on June 9, 1971 alleged violation by the Respondent, California Stevedore & Ballast Company, on June 9, 1971, in connection with stevedoring operations carried on by said Respondent at Pier 26 San Francisco, California, aboard the vessel, Antonino Pacinotti, with respect to failure to lash, lock or otherwise secure a hatch beam to prevent displacement thereof in violation of that safety standard found at 29 CFR Sec. 1504.43(e) and promulgated by the Secretary of Labor pursuant to Sec. 6(a) of said Act at 29 CFR Sec. 1910.16.

(b) Citation No. 3 issued on July 15, 1971 alleged violation by said Respondent, California Stevedore & Ballast Company on July 1, 1971 in connection with stevedoring operations carried on by said Respondent at Pier 7 West, Oakland Army Base, Oakland, California, aboard the vessel, LaSalle, with respect to the failure to equip a cargo beam bridle for lifting hatch beams with toggles, shackles hooks or other devices of such design so as not be become accidentally dislodged in violation of that safety standard found at 29 CFR Sec. 1504.42(b) and promulgated by the Secretary of Labor pursuant to Sec. 6(a) of the Act at 29 CFR Sec. 1910.16.

(c) Citation No. 4 issued on July 15, 1971 alleged violation by Respondent, California Stevedore & Ballast Company, on July 1, 1971 in connection with stevedoring operations carried on by said Respondent at Pier 7 West, Oakland Army Base, Oakland, California, aboard the vessel, LaSalle, with respect to failure to provide grab rails or taut handlines for the protection of employees handling beams and hatch covers working in trunk hatches or other permanent or semipermanent structures or spare parts when bulkheads, lockers, reefer compartments or large space parts are within three feet of the coaming in violation of that safety standard found at 29 CFR Sec. 1504.41 and promulgated by the Secretary pursuant to Sec. 6(a) of the Act at 29 CFR Sec. 1910.16.

3) Respondent, California Stevedore & Ballast Company, is the largest of eight stevedoring companies in the San Francisco Bay Area, employing approximately 80 permanent managerial and clerical employees in addition to longshoremen hired on a day-to-day basis as needed by the requirements of Respondent's business, which had an average weekly payroll of $300,000 in June of 1971 and employs more longshoremen and operates at more piers than any other stevedoring company in the San Francisco Bay Area.

4) All of the acts of omission and commission charged by the Department of Labor in the aforesaid citations took place on the dates set forth in said citations in or about the ports of San Francisco and/or Oakland, California while the Respondents were engaged in commernce within the meaning of the Occupational Safety and Health Act of 1970, hereinafter called the Act.

5) On June 9, 1971, Respondent violated that safety standard found at 29 CFR Sec. 1504.43(e) and promulgated by the Secretary pursuant to Sec. 6(a) of the Act at 29 CFR 1910.16 in connection with longshoring operations carried on by the Respondent that day on the vessel, Antonino Pacinotti, when it failed to lash, lock or otherwise secure a steel hatch beam in the No. 3 hatch on said vessel, which bean weighed approximately 1,000 pounds, in violation of the aforesaid safety standard which provides as follows:

(b) On July 1, 1971, the Respondent violated that safety standard found at 29 CFR Sec. 1504.42(b) and promulgated by the Secretary pursuant to Sec. 6(a) of the Act at 29 CFR Sec. 1910.16, in connection with longshoring operations carried on by the Respondent, on said date, on the vessel LaSalle, when it failed to provide a properly designed hook for lifting a hatch beam bridle assembly in conformity with the applicable safety standards which provides as follows:

(c) On July 1, 1971, Respondent violated that safety standard found at 29 CFR Sec. 1504.41(c) promulgated by the Secretary pursuant to Sec. 6(a) of the Act at 29 CFR Sec. 1910.16 when it failed to provide grab rails or taut handlines for longshoremen working on a narrow ledge in a hatch over an open area aboard the vessel LaSalle, which safety standard provides the following:

CONCLUSIONS OF LAW

1) Pursuant to Sec. 6(a) of the Act, the Secretary, on May 27, 1971, adopted the standards prescribed in Title 29, Part 1504, Code of Federal Regulations, which were established Federal Standards in effect on April 28, 1971.

2) Such standards were effective at all times herein mentioned as to those employers subject to the Longshoremen's and Harbor Workers' Compensation Act, as amended, 33 U.S.C. 941 et seq.

3) Respondent was, prior to April 28, 1971, and at all times mentioned herein, an employer subject to the Longshoremen's and Harbor Workers' Compensation Act, as amended and was and is subject to the aforesaid Safety and Health Regulations.

4) At all times mentioned herein Respondent was and is an employer engaged in a business affecting commerce within the meaning of Sec. 3 of the Occupational Safety and Health Act of 1970.

5) The Occupational Safety and Health Review Commission has jurisdiction of the parties and of the subject matter herein.

6) The standards promulgated by the Secretary under the Act are mandatory (Sec. 2(b)(3)), imposing upon the employer an absolute requirement of compliance therewith. Therefore, if noncompliance with a condition or practice required by a duly promulgated standard is found to have been proved by the Secretary, the citation alleging the violation of that standard must be affirmed.

7) On June 9, 1971, Respondent violated that standard duly promulgated by the Secretary pursuant to Sec. 6(a) of the Act at 29 CFR Sec. 1910.16, and found at 29 CFR Sec. 1504.43(e), as alleged in Citation No. 1 of this proceeding.

8) On July 1, 1971, Respondent violated that standard duly promulgated by the Secretary pursuant to Sec. 6(a) of the Act at 29 CFR Sec. 1910.16 and found at 29 CFR Sec. 1504.42(b), as alleged in Citation No. 3 of this proceeding.

9) On July 1, 1971, Respondent violated that standard duly promulgated by the Secretary pursuant to Sec. 6(a) of the Act at 29 CFR Sec. 1910.16 and found at 29 CFR Sec. 1504.41(c), as alleged in Citation No. 4 of this proceeding.

DECISION AND ORDER

On the record of this proceeding, the findings of fact and conclusions of law herein, it is the decision and order of the Hearing Examiner pursuant to Sec. 10 of the Occupational Safety and Health Act of 1970 that:

1) Citation No. 1 of the Secretary of Labor be and the same is hereby affirmed and that the abatement requirements are likewise affirmed to the extent that a civil penalty in the amount of One Hundred Fifty Dollars ($150.00) is assessed against the Respondent, California Stevedore and Ballast Company.

2) Citation No. 3 of the Secretary of Labor be and the same is hereby affirmed and that the abatement requirements are likewise affirmed to the extent that a civil penalty in the amount of Six Hundred Dollars ($600.00) is assessed against the Respondent, California Stevedore and Ballast Company.

3) Citation No. 4 of the Secretary of Labor be and the same is hereby affirmed and that the abatement requirements are likewise affirmed to the extent that a civil penalty in the amount of Sixty Dollars ($60.00) is assessed against the Respondent, California Stevedore and Ballast Company.