FRASER SHIPYARDS, INC.
OSHRC Docket No. 6745
Occupational Safety and Health Review Commission
July 9, 1976
[*1]
Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Herman Grant, Regional Solicitor
Barney B. Barstow, Fraser Shipyards, Inc., for the employer
Albert Martell, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, for the employees
OPINIONBY: BARNAKO
OPINION:
DECISION
BARNAKO, Chairman:
Pursuant to 29 U.S.C. Sec. 661(i), we review a report filed by Judge David H. Harris whereby he would vacate that part of a serious citation which alleges Respondent had violated the standard published at 29 C.F.R. 1915.55(a) n1 and would affirm that part of the citation which alleges a violation of the standard set forth at 29 C.F.R. 1915.66(c). n2 We conclude that his recommendations are appropriate in both instances and adopt his report.
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n1 The standard reads: "1915.66- Use of Gear. (a) Loads shall be safely rigged before being hoisted."
n2 The standard reads: "(c) Tag lines shall be provided on loads likely to swing or to need guidance."
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Respondent is engaged in the business of repairing ships. [*2] On November 14, 1973, one of its cranes was used to lift two steel plates from the flatbed of a truck parked outside a shed and move them into the shed. The plates, one lying on top of the other, were each 103 inches wide and 290 inches long. Each weighed about 4100 pounds. Three of Respondent's employees had rigged the plates for lifting by applying a "Chicago bull-hook" to the edges of the plates. The load had been lifted once or twice to adjust the hooks for balance by positioning them as near to the center of each side of the plates as possible. The plates were then lifted and moved slowly for a distance of 35 to 40 feet. One employee guided the load by hand as it was moved into the shed. Tag lines were not used. The plates fell from the rigging at a point about ten feet from where the plates were to be deposited. The employee who had been hand-guiding them was fatally injured. There was no explanation for the rig's failure. Respondent was cited with the aforementioned violations following an investigation by the Secretary.
Respondent defended against the 1915.66(a) allegation by contending that the language of the standard is so vague as to violate due process requirements. [*3] The Judge rejected the argument and found that the standard was valid but vacated that portion of the citation on the merits. The Secretary neither petitioned for review of the Judge's action nor briefed it on review. We need not, therefore, reach the vagueness issue, and we adopt the Judge's disposition. Abbott-Sommer, Inc., Docket 9507, BNA 3 OSHC 2032, CCH OSHD para. 20,428 (OSHRC 1976).
With respect to the 1915.66(c) allegation the administrative law judge had "no difficulty" in determining that Respondent violated the standard. As he points out, the evidence is that the load was guided and that tag lines were not used. Review was directed on the question whether there was "sufficient evidence to support the Judge's finding that respondent failed to comply" with the standard. n3 Clearly, the evidence referred to by the Judge establishes non-compliance.
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n3 Review was also directed on the question "did the Judge rule correctly on respondent's defense that the said standard [1915.66(c)] was unenforceably vague." The only vagueness defense raised by Respondent was with respect to 1915.66(a), and that is the only vagueness issue pursued by Respondent on review. Accordingly, we do not consider the question of vagueness with respect to 1915.66(c) to be before us.
[*4]
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Respondent does argue that the load was not "likely to swing or to need guidance." The argument seems frivolous. The facts are that the load was guided. Certainly the fact of guidance is probative of the fact that the load needed guidance. Respondent also argues that the standard was not intended to be applied to loads being moved inside of a building. The standard does not make the distinction, and in any event Respondent moved the load in violation of the standard outside of the shed. Finally, Respondent argues that its method of moving the plates is safer. The short answer is that had tag lines been used the deceased employee in all likelihood would not have been crushed by the falling load for he would have been placed at a distance from the load.
The Judge's report is adopted for the reasons he assigns and those stated herein. So ORDERED.
CONCURBY: MORAN (In Part)
DISSENTBY: MORAN (In Part)
DISSENT:
MORAN, Commissioner, Concurring in Part, Dissenting in Part:
I concur with my colleagues' disposition of the charge under 29 C.F.R. § 1915.66(a) for the reasons cited by Judge Harris whose decision is attached hereto as [*5] Appendix A. n4 I dissent, however, from their affirmation of finding the respondent in violation of 29 C.F.R. § 1915.66(c).
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1915.66(a).
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This standard requires the use of tag lines "on loads likely to swing or to need guidance." Tag lines were not being used by the respondent. However, no evidence was introduced to show that the loads in question were "likely to swing or to need guidance." Consequently, complainant has failed to carry its burden of proof and a violation has not been established.
The "loads" at issue in this case were two steel plates. The deceased employee was providing hand guidance for them at the [*6] time of the accident during their movement by a self-propelled crane which travels on rails. The record contains no evidence as to the likelihood of swinging of the two steel plates. To the contrary, because the load was being moved inside a building not subject to variant outside wind conditions, and was test lifted, secured, and safely rigged before transportation, it was reasonable to conclude that it was not likely to "swing."
Likewise, the record contains no evidence that the use of tag lines was needed for "guidance." In fact, the method used by respondent in moving the steel plates was a safer method of operation as evidenced by the following testimony given by its crane and rigger foreman:
Q. Why do you not use tag lines?
A. Well, most of the time they [the steel plates] are traveling such a little distance. And the plate is only three feet off the ground. . . .
Q. And in your opinion, is a hand guide safer in that operation, than a tag line?
A. To me, it is.
Q. And why?
A. Well, you're not raising the plates up there so high that you have got to be reaching up to get a hold of them . . . . And you can guide it easier than trying to pull it around. You might [*7] pull it crossways. And this way you can guide it around and push it and pull it at the same time.
Q. But, you're saying with a tag line --
A. Well, if you have one tag line on it and a guy pulls on it, it's going to swing around.
This uncontroverted evidence demonstrates that compliance with the charged standard would increase the danger rather than protect the employees. As Commissioner Cleary, speaking for the Commission, stated in an earlier case:
"The text of section 5 of the Act must be construed in light of the essential purpose of the Act as expressed in section 2 thereof; i.e., to assure as far as possible every working man and woman safe and healthful working conditions. Thus the purpose of the statute is to augment and not reduce the safety of working conditions. Employers and employees alike should not be required to comply with a standard so sedulously as to follow a course of conduct that is shown by the weight of evidence to be less safe than an existing work practice." Secretary v. Industrial Steel Erectors, Inc., 6 OSAHRC 154, 156-7 (1974).
Regrettably, the Commission has ignored the good sense of the cited decision and in this case requires wooden adherence [*8] to a method of moving loads specified in a safety standard in the face of uncontroverted testimony of an employee with considerable experience in the moving of steel plates that a greater danger to employees would result from such adherence. Another triumph of form over substance!
APPENDIX A
DECISION
Herman Grant, Regional Solicitor and Robert H. Brown, for complainant
Barney B. Barstow, Fraser Shipyards, Inc., for respondent
International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, Employee representative
Harris, Judge, OSAHRC
This case presents for review a citation and a notice of proposed penalty (NPP) issued to Fraser Shipyards, Inc. (Fraser) by the United States Secretary of Labor (complainant) on January 23, 1974, pursuant to 29 U.S.C. Section 658(a).
The citation alleges that on the basis of an inspection of its workplace in Superior, Wisconsin, on January 8, 1974, Fraser was charged with a serious violation of the standard at 29 CFR 1915.66(a), (b) and (c) in that:
Employer failed to provide that loads shall be safely rigged before hoisted. Tag lines shall be provided on loads likely to swing to need guidance, and clips or pads [*9] of ample size shall be welded to the plate to receive the shackle pins when there are no holes in the plate. When it is not possible to make holes in or weld pads to the plate Alligator tongs, grab hooks, grab clamps or screw clamps may be used. In such cases special precautions shall be taken to keep employees from under such lifts; i.e., overhead crane used in Alley #1.
The NPP proposes a penalty of $700. Fraser filed a Notice of Contest on February 10, 1974 and pursuant to 29 U.S.C. Section 659(c), the matter was set down for hearing before the Occupational Safety and Health Review Commission (Commission).