ATLANTIC & GULF STEVEDORES, INC.
OSHRC Docket Nos. 3824; 3870; 4019; 4517; 4997 (Consolidated)
Occupational Safety and Health Review Commission
October 30, 1975
[*1]
Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners
OPINION:
BY THE COMMISSION: Five consolidated cases are before us in which Atlantic and Gulf Stevedores, Inc., the respondent, was cited for violating section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq., (hereinafter referred to as "the Act"). The citations alleged respondent's failure to comply with the occupational safety and health standards published at 29 CFR § 1910.132(a) and 29 CFR § 1918.105(a) n1 because its employees were not wearing "hard hats." The incidents resulting in the citations occurred in the Port of Philadelphia.
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n1 No. 4019 also contained a separate non-serious citation involving 29 CFR § 1918.25(c), for which no penalty was proposed. That citation was not contested and became a final order of the Commission under section 10(a) of the Act.
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The standards provide:
1910.132 -- General Requirements
(a) Application.
Protective equipment, including personal protective equipment for eyes, [*2] face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.
1918.105 -- Head Protection
(a) Employees shall be protected by protective hats meeting the specifications contained in the American National Standard Safety Requirements for Industrial Head Protection, Z89.1 (1969)
In Nos. 3824 and 3870, respondent was cited for non-serious violations. No penalty was proposed in No. 3824 and $45 was proposed in No. 3870. In Nos. 4019, 4517, and 4997, respondent was charged with repeated non-serious violations based on the earlier citations. n2 Penalties of $115, $195, and $375, respectively were proposed.
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n2 The inspection dates and citation dates are as follows:
|
Docket No. |
Inspection Date |
Citation Date |
|
3824 |
June 21, 1973 |
July 10, 1973 |
|
3870 |
July 5, 1973 |
July 13, 1973 |
|
4019 |
July 25, 1973 |
July 27, 1973 |
|
4517 |
August 15, 1973 |
August 28, 1973 |
|
4997 |
October 4, 1973 |
October 11, 1973 |
[*3]
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In his decision dated August 30, 1974, Judge Abraham Gold held that respondent was not citable for repeated violations in Nos. 4019, 4517, and 4997 because the citations upon which they were based had not become final orders of the Commission. Accordingly, he modified the citations to allege simpliciter or non-serious violations. The Judge also vacated all items of the citations alleging a failure to comply with the standard published at 29 CFR § 1910.132(a) because the standard is general and is superseded here by the standard at 29 CFR § 1918.105(a) applying specifically to the wearing of "hard hats" by longshoremen. These holdings are not before us.
Regarding the citations for failure to comply with the standard at 29 CFR § 1918.105(a), Judge Gold held that respondent had done all that it could reasonably be expected to do to cause its employees to wear "hard hats" and, therefore, he vacated the citations. Pursuant to section 12(j) of the Act, review of the Judge's decision was directed.
The sole issue on review is whether respondent was in violation of the Act for failure to comply with the [*4] standard at 29 CFR § 1918.105(a).
In Atlantic & Gulf Stevedores, Inc., et al., Nos. 2818, 2862, 2997, § 2998 (April 11, 1975), on facts closely matching those before us, n3 the Commission held by a divided vote that respondent's attempts to apply the "hard hat" standard among its employees were insufficient. That decision is controlling here. Accordingly, the Judge's contrary decision is reversed, and the respondent is held to be in violation of the Act.
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n3 Much of the hearing in that case has been made part of the record in the instant proceeding through incorporation by reference.
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After weighing the statutory penalty factors, we assess no penalty since the obvious good faith of respondent is entitled to predominant weight.
Accordingly, it is ORDERED that the citations for non-serious violations of 29 CFR § 1918.105(a) in Nos. 3824, 3870, 4019, 4517, and 4997 be affirmed, and no penalties be assessed.
DISSENTBY: MORAN
DISSENT:
MORAN, COMMISSIONER, dissenting: Although the majority members in this case have [*5] overturned many well-reasoned decisions of judges before, I cannot recall any case where they have done so on thinner grounds than those advanced in their opinion in this case.
They taken no notice of the facts developed in this case except to note that they "closely match . . ." those in another case decided more than six months ago. Secretary v. Atlantic & Gulf Stevedores, Inc., 16 OSAHRC 770 (1975).
The findings of fact by the judges who heard these two cases not only do not "closely match . . ." each other, they contradict one another.
The April decision contains a statement that "the Judge notes in his opinion [that] respondents' fears [of wildcat strikes and walkouts] are highly speculative," 16 OSAHRC 770 at 782.
Compare that with Judge Gold's finding of fact (No. 6) in this case:
The only action not taken by Respondent . . . is to fire, or refuse employment to, an offending employee, but since it is reasonable to assume that such action would result in a strike and picket lines, hereby closing down Respondent's operation, Respondent is not required to take this step.
One wonders what "closely matching" findings of fact were discovered by the two members who make [*6] up the majority in this case -- certainly not those which go to the very reason for the contrary disposition in each of these cases by the two judges who heard them.
In my opinion we are seeing here once again a disposition by Messrs. Cleary and Barnako to substitute their view of the evidence for that of the trial judge who alone heard all the witnesses and observed their demeanor at the trial, just as they did most recently in Secretary v. Allis-Chalmers Corporation, 20 OSAHRC 546 (1975).
But in this case they offer no reason for differing from Judge Gold's finding that "respondent had done all that it could reasonably be expected to do to cause its employees to wear 'hard hats'." They merely offer the bland -- but false -- pronouncement that the decision in another case is controlling because of the unspecified "closing matching" facts of the two cases.
I submit that the parties -- as well as the public -- are entitled to detailed and accurately-reported reasons why a judge's decision is being overturned whenever the Commission takes such action. It is clear to me that has not been done in this case.
It is my own view that Judge Gold properly decided these cases, [*7] and his decision should be affirmed. See my opinions in Secretary v. Independent Pier Company, 20 OSAHRC 810 (1975); and Secretary v. Atlantic & Gulf Stevedores, Inc., supra.
[The Judge's decision referred to herein follows]
GOLD, JUDGE: These five consolidated cases were heard at Philadelphia, Pennsylvania, on November 16, 1973, pursuant to 29 U.S.C. § 659(c). Complainant presented two witnesses, Respondent none. The transcript of another hearing n1 was stipulated in evidence (Tr. 38-39). Both parties submitted documentary evidence.
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n1 Atlantic & Gulf Stevedores, Inc., et al., consolidated Docket Nos. 2818, 2862, 2997 and 2998.
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Respondent is a Pennsylvania corporation, with its principal office located at Philadelphia; it is engaged in stevedoring, and in 1972 grossed $7 million (Docket No. 2818, Tr. 23-25). Respondent has an average of 210 employees (Docket No. 2818, Tr. 31-32). It has admitted that it engages in a business affecting commerce, and has conceded that jurisdiction is conferred [*8] upon the Commission (Ans. I, III).
In each case, Respondent was cited for violating 29 C.F.R. 1910.132(a) and 1918.105(a) because its employees were not wearing protective hats. The inspection dates, citation dates, and proposed penalties follow:
|
Docket No. |
Inspection Date |
Citation Issued |
Proposed Penalty |
|
3824 |
June 21, 1973 |
July 10, 1973 |
None |
|
3870 |
July 5, 1973 |
July 13, 1973 |
$45 |
|
4019 |
July 25, 1973 |
July 27, 1973 |
$115 |
|
4517 |
August 15, 1973 |
August 28, 1973 |
$195 |
|
4997 |
October 4, 1973 |
October 11, 1973 |
$375 |
In Docket Nos. 3824 and 3870, Respondent was charged with a nonserious violation; in the other three cases, the Secretary issued a citation for a repeated nonserious violation based on the earlier dated citations listed above. n2
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n2 Docket No. 4019 also contained a separate nonserious citation involving 29 C.F.R. 1918.25(c), for which no penalty was proposed; that citation was not contested and became a final order of the Commission under 29 U.S.C. § 659(a).
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The inspections were conducted [*9] by a compliance officer of the Department of Labor at Piers 38 to 40 on board vessels and on docks at the port of Philadelphia, where employees of Respondent were loading and unloading cargo.
The contested standards read:
SUBPART I -- PERSONAL PROTECTIVE EQUIPMENT
1910.132 -- GENERAL REQUIREMENTS
(a) Application.
Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.
PART 1918 -- LONGSHORING
SUBPART J -- PERSONAL PROTECTIVE EQUIPMENT
1918.105 -- HEAD PROTECTION
(a) Employees shall be protected by protective hats meeting the specifications contained in the American National Standard Safety Requirements for Industrial Head Protection, Z89.1 (1969).
Pursuant to 29 [*10] U.S.C. § 666(j), a serious violation exists if there is a substantial probability that death or serious physical harm could result from the violative condition or conduct, unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.
Under 29 U.S.C. § 666(c), a penalty of up to $1,000 may be assessed for a nonserious violation, while § 666(a) provides that an employer may be penalized not more than $10,000 for each repeated violation.
29 U.S.C. § 666(i) authorizes the assessment of a penalty under the Act only after consideration of the size of the employer's business, the gravity of the violation, the good faith of the employer, and the history of prior violations.
Respondent has moved to dismiss the three citations for repeat violations.
A citation charging a repeat violation of the Act may be likened to the presentation of a charge in a criminal case where the accused is prosecuted as a second or subsequent offender for the purpose of increasing the punishment in the event of conviction. Certain jurisdictions have so-called habitual offender statutes which provide for augmented punishment for repetition of criminal [*11] activity. The prior conviction must be pleaded and established before increased punishment can be imposed for a subsequent offense. Singer v. United States, 278 F. 415 (3 Cir. 1922), cert, denied 258 U.S. 620 (1922). It must be shown that the judgment in the earlier case has become final. Newsom v. State, 123 S.W. 2d 887 (Tex. 1939). The prosecution must prove that the prior conviction has not been appealed, or if appealed, that final disposition has been made. Morse v. State, 77 P. 2d 757 (Okla 1938). Enhanced penalties authorized by such statutes cannot be directed unless there is a finding of fact that the accused has been convicted of an earlier offense. People v. Sarosiek, 32 N.E. 2d 311 (Ill. 1941).
Applying similar logic to the instant matter, this Judge is of the view that in order to establish a repeat violation the Secretary must plead and show n3 that as of the time of the alleged subsequent safety or health violation there was in effect a final administrative or judicial determination that there had been a prior identical violation of th Act by Respondent.
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n3 Unless conceded.
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Since none of the citations in these consolidated cases has become the subject of a final order holding that there was a violation, clearly the citations cannot serve each other as a basis for a citation charging a repeated violation. The Secretary must allege and prove a repeated violation -- what he shows is merely a repeated citation.
In criminal cases, an alleged subsequent offense is subject to treatment as a first offense if the prosecution fails to establish the alleged earlier crime. State v. Laird, 135 A. 2d 859 (N.J. 1957).
Accordingly, it is found that Respondent was not citable in Docket Nos. 4019, 4517, and 4997 as a repeat violator. The repeat charge in each of the citations in said cases is dismissed, and each citation will now be treated as reduced to simply charging a nonserious violation.
Respondent has also moved for dismissal of those portions of the citations charging a violation of 29 C.F.R. 1910.132(a).
In each case, Respondent is cited for violating two standards: 29 C.F.R. § 1910.132(a) and § 1918.105(a), for alleged failure [*13] of employees of Respondent to wear protective hats. 29 C.F.R. § 1910.5(c) declares that "(i)f a particular standard is specifically applicable to a condition, practice, means, method, operation, or process, it shall prevail over any different general standard which might otherwise be applicable . . . ." The two standards were cited because of the alleged failure of longshoremen employees to wear protective equipment for the head ("hard hats").
Both standards deal wit this protective measure. Part 1910 contains safety and health standards of general applicability, whereas Part 1918 sets forth the safety and health regulations specifically for longshoring. While the general industry standards in Part 1910 apply to onshore and offshore hazards not specifically covered by Part 1918, it is abundantly clear that in the cases at hand section 1910.132(a), a general standard, is pre-empted by section 1910.105(a), a standard which relates particularly to the wearing of hard hats by longshoremen.
The Secretary urges (Tr. 21) that the standard at 1910.132(a) applies when a longshoreman is handling cargo on the dock, whereas 1918.105(a) is applicable when he does the same work on [*14] board a vessel. This is illogical, and is contrary to the Secretary's policy as expressed in a 1973 memorandum. n4 Under 29 C.F.R. 1910.5(c), only section 1918.105(a) is applicable in these cases. The motion is granted, and the portions of the citations and complaints charging 29 C.F.R. 1910.132(a) are dismissed.
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n4 OSHA PROGRAM DIRECTIVE #200-21, issued in late 1973, declares (Exh. R-1) at Section 4(a)(9):
(9) Applicable Standards, The following standards will be cited for longshoring violations.
(a) 29 C.F.R. Part 1918 standards shall be cited for all longshoring activities, both onshore and offshore.
Exception: 29 C.F.R. Part 1918 standards that contain limiting words and phrases that confine the scope of the standard to hazards aboard the vessel shall not be cited for that hazard onshore. In these instances, corresponding standards in 29 C.F.R. Part 1910 shall be cited, if applicable.
(b) The general industry standards, 29 C.F.R. Part 1910 shall be applied to onshore and offshore hazards not specifically covered by standards under 29 C.F.R. Part 1918.
(c) Where longshoring hazards are specifically covered by standards in 29 C.F.R. Part 1918, citations of such standards shall be issued under 29 C.F.R. Part 1918 and not under 29 C.F.R. Part 1910 even though at 29 C.F.R. Part 1910 standard covers the hazard. (See Section 1910.5(c).)
[*15]
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With respect to the remaining issue, the alleged violation of 1918.105(a), Respondent has moved for dismissal of the citations on the ground that this standard is unenforceably vague. The regulation requires that employees be "protected" by protective hats. This language is sufficiently clear to give fair notice to a reasonable person that his employee must wear a protective hat whenever necessary to protect himself from injury or death which could be caused by an object striking his head from above or from the side. Respondent's argument is rejected, and the motion to dismiss on this ground is denied.
The Secretary's unopposed motion to amend the transcript of the instant hearing at pages 146 and 147 is granted.
The inspecting compliance officer of the Department of Labor testified that during the inspection of June 21, 1973, he observed that 51 of the 60 longshoremen employed were not wearing hard hats (Tr. 69); that 50% were not wearing the hats during the July 5, 1973, inspection (Tr. 73); that on July 25, 1973, one gang (crew of longshoremen) wore the hats, the other gang did not [*16] (Tr. 83); that on the August 15 inspection about half of the longshoremen were not wearing the hats (Tr. 86); and that on the October 4 inspectin he observed about 120 longshoremen at work, and about 65% of the men were not equipped with hard hats (Tr. 90).
The testimony of the compliance officer and the photographs n5 he took during the inspections show that objects would normally be above the heads of the longshoremen at times during the loading and unloading of cargo, thus exposing the men to the danger of the possibility of falling objects. It is, therefore, found that at Such times protective hats were needed to protect the employees, within the purview of 29 C.F.R. 1918.105(a).
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n5 Exhs. C-2 to C-11, C-14 to C-16, C-18 to C-20, C-22 to C-24, C-27 to C-29.
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Respondent has asserted that it has done everything it can reasonably be expected to do to comply with the standard.
The Philadelphia Marine Trade Association, of which Respondent is a member, is comprised of over 60 members, including steamship operators, [*17] stevedoring companies, or agents, and other concerns rendering services to the maritime industry (Docket No. 2818, Tr. 199). In 1971, the Association purchased, and distributed free of charge, 4,960 hard hats to the longshoremen at the hiring center at Philadelphia; the Association had purchased additional hats for any men who were not available at the time, so that they would be given a hat when reporting to work (Docket No. 2818, Tr. 206-210, 256-258).
The inspecting compliance officer testified that he had heard that if the longshoremen were forced to wear hard hats there would be a work stoppage (Tr. 113); that he attended a 1971 meeting of the Philadelphia Marine Trade Association and there was "almost chaos" when some of the hatch foremen objected to the Association's urging that the foremen urge their men to wear the hats (Tr. 116-117); that the Association holds monthly meetings at which all parties, including labor representatives, are asked to urge the men to wear the hats (Tr. 117); that the employers put messages on the hiring tapes and in the pay envelopes urging the men to wear the hats (Tr. 117, 118); that the companies have posted signs at the various areas [*18] stating that they are hard hat areas and that the hats should be worn (Tr. 118); and that he has been invited to Respondent's safety meetings at which the wearing of hard hats has been urged (Tr. 118). The witness felt that Respondent had made a good faith effort to comply wit the hard hat standard (Tr. 118), but opined that Respondent had not gone "to the maximum length to get the men to wear the hard hats" because no man had been fired ("checked out") (Tr. 115, 125).
At a meeting in the latter part of 1972, the President of Local 1291, the longshoremen local, stated that if an employer were to refuse to put a man to work because he refuses to wear a hard hat "undoubtedly that particular pier would be struck" (Docket No. 2818, Tr. 283-284).
According to the Compliance officer, on June 16, 1973, Assistant Secretary of Labor Stender issued a directive to enforce the hard hat standard in the maritime industry (Tr. 120, 126); this was a change in Department policy; under a previous Assistant Secretary, it was the policy not to issue a citation to an employer whose employees were not wearing the hats if the employer had supplied hard hats to the men, had conducted safety programs, [*19] and had acted in good faith to get the men to wear the hats (Tr. 120).
This record shows that Respondent has done everything within reason to bring about compliance with the standard. The Secretary insists that Respondent take the additional step of firing the longshoremen who refuse to wear hard hats. The resistance of the longshoremen employed by Respondent is widespread. It is one thing to dismiss one employee, or even several employees, in the usual employment setting, n6 but it is quire another situation where there is wholesale defiance by longshoremen and it is reasonable to assume that the employer will be unable to obtain replacements from the union hiring center, or elsewhere, because of a strike and picket lines resulting from the massive firings.
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n6 It is recognized that longshoremen are hired on a daily basis through the union hiring center.
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The basic purpose of the Occupational Safety and Health Act is "to assure so far as possible every working man and woman in the Nation safe and healthful [*20] conditions." n7 The Congress directed that the employer, as well as the employee, shall comply with occupational safety and health standards. 29 U.S.C. § 654 reads, in pertinent part:
(a) Each employer --
(2) Shall comply with occupational safety and health standards promulgated under this Act.
(b) Each employee shall comply with occupational safety and health standards. . . .
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n7 29 U.S.C. § 651(b).
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The Congress, in stating its purpose and policy in enacting this legislation, declared at 29 U.S.C. § 651(b)(2) that "employers and employees have separate but dependent responsibilities and rights with respect to achieving safe and healthful working conditions."
In the light of all circumstances present in this case, it is found that Respondent has taken all feasible measures to prevent the violative conduct of its employees. The employer is not required to fire employees who refuse to comply with the law if it is reasonably certain that a crippling strike will result. Respondent does not have to prove this point [*21] by actually firing people and winding up with a closed place of business.
What we have here is an open, concerted defiance of the Act by the employees, for whose benefit the law was intended. The Act provides for the imposition of monetary penalties for violations only upon an employer, and not upon an employee, for the obvious reason that one would not expect employees to violate laws which promote their safety and health.
[E]very part of a statute must be construed in connection with the whole, so as to make all the parts harmonize, if possible, and give meaning to each. Market Co. v. Hoffman, 101 U.S. 112, 116 (1879).
The legislators could not have intended for employers to be found in violation of a standard where, as here, the employer does everything he reasonably can to foster compliance but the employees refuse to comply. The cited nonserious violation of 29 C.F.R. 1918.105(a) will be vacated in all five cases.
FINDINGS OF FACT
1. Respondent is and at all times pertinent herein was a Pennsylvania corporation providing stevedoring services at the port of Philadelphia, a business affecting commerce.
2. Respondent was cited on July 10, 1973, July [*22] 13, 1973, July 27, 1973, August 28, 1973, and October 11, 1973, as the result of inspections on June 21, 1973, July 5, 1973, July 25, 1973, August 15, 1973, and October 4, 1973, respectively, at worksites under its operation and control at the port of Philadelphia, Pennsylvania.
3. None of the five citations herein has become a final administrative or judicial order and, therefore, cannot serve as a basis for charging a repeat violation.
4. On the dates of the inspections listed in Finding No. 2, at least 50% of Respondent's longshoremen employees at each of those worksites were not wearing protective hats when such hats were necessary to proptect these employees from danger to their heads due to the possibility of falling objects.
5. Respondent has done everything it could reasonably be expected to do to cause its employes to wear protective hats, including distributing protective hats free of charge to the employees, urging the employees to wear the hats by holding safety meetings, posting signs at worksites, placing messages in pay envelopes and on hiring tapes, but most of its longshoring employees continue to refuse to wear the hats.
6. The only action not taken by Respondent [*23] in this regard is to fire, or refuse employment to, an offending employee, but since it is reasonable to assume that such action would result in a strike and picket lines, thereby closing down Respondent's operation, Respondent is not required to take this step.
7. It is unreasonable and unfair, and not within the contemplation of the Act, to hold an employer in violation of the Act where he takes all feasible measures to prevent violation, but his employees persist in widespread, open definance of a safety or health standard.
CONCLUSIONS OF LAW
1. The Occupational Safety and Health Review Commission has jurisdiction over the parties and the subject matter, within the meaning of 29 U.S.C. § § 652 and 653(a).
2. This record does not establish that under 29 U.S.C. § 666(a) Respondent was a repeat violator of 29 U.S.C. § 654(a)(2) on June 21, July 5, July 25, August 15, or October 4, 1973.
3. On said dates, Respondent was not in violation of 29 U.S.C. § 654(a)(2), for failure to comply with the safety standard at 29 C.F.R. 1910.132(a) since this standard is a general industry standard and is pre-empted by 29 C.F.R. 1918.105(a) which applies specifically to onshore and [*24] offshore longshoring activities.
4. On said dates, Respondent was not in violation of 29 U.S.C. § 654(a)(2) for failure to comply with the safety standard at 29 C.F.R. 1918.105(a).
ORDER
It is ORDERED that the citations issued on July 10, July 13, July 27, August 28, and October 11, 1973, and the penalties proposed therefor be and the same hereby are VACATED.