SECRETARY OF LABOR,
Complainant,
v.
I.T.O. CORPORATION OF AMERIPORT,
Respondent.
OSHRC DOCKET NO. 80-2369
DECISION
Before: Rowland, Chairman; Cleary, Commissioner.
BY THE COMMISSION:
I.T.O. Corporation of Ameriport ("I.T.O.") was charged with a serious violation
of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678, in that,
contrary to the requirements of the standard at 29 C.F.R. § 1918.105(a), six of its
longshoremen allegedly were not wearing hardhats while unloading cargo from the hold of
the vessel Charlottenboro. Administrative Law Judge Mary E. Cerbone affirmed the citation
and I.T.O. petitioned for review. We reverse.
I
I.T.O. is the second largest stevedoring company in the port of Philadelphia, employing
from 200 to 600 employees daily. I.T.O. was engaged in unloading the vessel Charlottenboro
at I.T.O.'s Tioga Marine Terminal on February 1, 1980, when its operations were inspected
by Occupational Safety and Health Administration ("OSHA") compliance officers
Sullivan and Leedom. After observing longshoring "gangs" in hatches nos. 1 and 3
of the Charlottenboro and seeing nothing amiss, Sullivan and Leedom checked hatch no. 5.
There they observed longshoremen loading cartons onto pallets and guiding the pallets as
they were lifted in and out through the hatch by crane. Each loaded pallet contained
forty- five cartons of frozen fish. The hatch opening was 8 by 10 feet or 10 by 10 feet,
and the pallets were about 4 by 6 feet.
Compliance officer Sullivan, who went into the hatch, testified that there were six
longshoremen in the hatch including the gang foreman, Collins, none of whom was wearing a
hardhat. Collins, however, testified that there were thirteen longshoremen including
himself in the hatch, and that all but two of the longshoremen were wearing hardhats. He
denied that he had not been wearing a hardhat. He stated that he had arrived in the hatch
only a few minutes before Sullivan and had not noticed that two employees were without
hardhats until Sullivan pointed them out to him. He then told them to get their hardhats,
which they had left in their cars. Sullivan acknowledged that, of the 200 I.T.O. employees
working in the terminal that day, he saw only six not wearing hardhats.
OSHA issued a citation to I.T.O. charging it with a serious violation of the longshoring
standard at 29 C.F.R. § 1918.105(a). The citation stated:
Employee(s) were not protected by protective hat(s) meeting
the specification(s) contained in the American National Standards Safety Requirements for
Industrial Head Protection Z89.1(1969):
a) In Motor Vessel Charlottenboro, Number five hold six employees not wearing head
protection while working in the square of the hatch, subjecting the employees to being
struck by falling objects 29 C.F.R. § 1918.105(a) states: "Employees shall be
protected by protective hats meeting the specifications contained in the American National
Safety Requirements for Industrial Read Protection, Z89.1 (1969)." OSHA proposed a
penalty of $700, which it later reduced to $350.
At the subsequent hearing, I.T.O. presented extensive evidence concerning its safety
program on use of hardhats. I.T.O.'s safety policy includes the following provision on
head protection:
Head Protection
When there is a danger of objects falling on the head, Head Protection is needed.
Longshoremen working on the ship or pier are expected to wear Safety Hats. These hats must
meet the American National Standard Z89.1 (1969).
Here the hat normally considered is a rigid helmet which will resist penetration and
cushion impact. It also has resistance to electric shock and burn. Metal hats are not
proper.
Lump Caps do not meet the standard and only serve the limited purpose their name implies.
The waterfront activity where they might be of value would be driving care on or off
ships.
The Philadelphia Marine Trade Association, of which I.T.O. is a member, was a party to a
1976 industry-wide labor-management policy statement on hardhats, which provided as
follows:
Re: Union-Management Joint Program for Compliance with OSHA Hardhat Regulation
TO: ALL LONGSHORE EMPLOYEES ON THE EAST AND GULF COASTS OF THE UNITED STATES
We are writing to you to urge your compliance with the Federal Safety Act (OSHA) which was
enacted for your safety and protection.
In some port areas parts of the OSHA Act are being ignored by employees. This has resulted
in injuries to the employees involved and has caused serious problems dealing with the
enforcement of the Safety Act.
Specifically, the Federal Act required the wearing of hard hate where there are hazards of
head injuries. In some ports employees have refused to wear hard hats which have been
supplied to them by their employers. The law places responsibilities on both the employer
and the employee with respect to the wearing of hard hats. It is essential, therefore,
that there be full compliance with this Federal Regulation in all port areas on a national
basis.
Accordingly, we wish to advise you that a national program has been agreed to by both
management and labor on the East, Gulf and West Coasts of the United States to implement
the Federal Regulations regarding the wearing of hard hats and to establish full
compliance with those regulations.
Under the new program all employees working on marine terminals and vessels will be
required to wear hard hats at all times except employees employed in the following areas
and employees engaged in the operation of the following equipment:
a. Offices on piers or marine terminals;
b. Rest rooms and cafeterias;
c. Cranes with enclosed cabs;
d. Vehicles with adequate overhead protection.
Please note that when employees leave the above cranes, vehicles, offices, rest rooms and
cafeterias to work on a marine terminal or aboard a vessel they must wear their hard hats.
This new program will be started as of January 1, 1976. After that date, employees who do
not comply with the Federal Regulations and this national program by wearing hard hats
where required will be refused employment until they comply with the Federal Safety Act.
I.T.O. uses a number of means to communicate its hardhat policy to its employees. I.T.O.
maintains a tape-recorded telephone message that its longshoremen call in order to
ascertain their work assignments. Since 1972 or earlier, I.T.O. has included a statement
at the beginning of the recording that I.T.O. requires all employees engaged in dock or
terminal operations to wear hardhats, that this requirement is strictly enforced, and that
anyone failing to comply will not be allowed to work and will be "checked out,"
i.e., suspended from work for the day. The trade association to which I.T.O. belongs
distributed hardhats free of charge to longshoremen in 1971 and 1975. Also, on several
occasions starting about 1972, I.T.O. put "envelope stuffer" messages in its
employees' pay envelopes informing employees that they must wear hardhats on the job. When
I.T.O. began operating the Tioga Terminal in 1975, it put signs at the terminal's gates
and within the terminal stating that the terminal is a hardhat area.
I.T.O. put more emphasis on its hardhat rule beginning in 1979. On September 6, 1979,
I.T.O. Vice-President Castagnola issued a memo to the heads of its various departments
including the Terminal Department stating that I.T.O. had been fined by OSHA more than
once for violating the hardhat standard, that I.T.O.'s numerous requests that hardhats be
worn had been largely ignored. and that compliance was essential. Therefore, as of
September 10, all I.T.O. employees engaged in longshore or terminal operations were
required to wear hardhats and anyone not complying would not be allowed to work and would
be "checked out." On the same date Castagnola sent another memo concerning the
hardhat rule to I.T.O. superintendents stating in part that "in contrast to some of
our past efforts, this is a definite and serious attempt to attain compliance...." On
September 21, 1979, I.T.O.'s Tioga Terminal manager sent a letter to I.T.O.'s safety
supervisor, Keene, stating that I.T.O. was engaged in a concerted effort to obtain full
compliance with the hardhat rule and asking that Keene instruct employees to wear their
hardhats in the terminal. Keene holds safety meetings for supervisors at least once a
month, at which I.T.O.'s rule on hardhats is discussed.
Collins himself stated that I.T.O.'s hardhat policy was to "have the hats at all
times while you're on the pier, on the terminal, on the ship." He said that over the
fourteen years that he had been a gang foreman he had often seen men not wearing hardhats;
he had told them to get their hats and they had done so. Collins indicated that employees
often "conveniently forgot" their hardhats in their cars, knowing that their
gang foreman will send then back to retrieve their hardhats and they could thereby avoid a
few minutes of work. In January 1980, Collins "checked out" for the day his
assistant gang foreman, Delahaney, because Delahaney left his hardhat at home and refused
Collins' instructions to get an extra hardhat from the "mechanic's shift."
Collins testified that the "company was hollering because the guys were forgetting
their hats. "
Vice-President Castagnola testified that a checker at I.T.O.'s Broadway Terminal in
Camden, New Jersey, reported for work without his hardhat on February 23, 1980, refused
instructions to get it, and was "not hired" or "checked out."
Castagnola stated that before September 1979, the port community, including I.T.O., made
numerous attempts to enforce the wearing of hardhats, but the programs started off well
and then deteriorated. Until the September 1979 hardhat memos were issued, I.T.O. enforced
the hardhat requirement by telling and encouraging the men to wear hardhats, telling them
why they had to wear hardhats, and, to a certain extent, threatening to dismiss those who
did not comply. I.T.O. took more severe action after the memos were issued, according to
Castagnola; I.T.O. tried "a number of ways to get the laws enforced and where they
weren't succeeding, we kept getting stronger and stronger in our terms and consequence for
failure to conform." He stated that compliance with the hardhat rule had improved
greatly since he issued the September 1979 memos. Castagnola also visits the piers and
ships and sees what is going on. If he sees a man not wearing his hardhat, Castagnola
"raises hell" with the supervisor, even if the man immediately puts on his
hardhat. If individuals continue not to wear their hardhats, supervisors are told to
"check them out." I.T.O. chief stevedore superintendent Baston testified that if
he sees a longshoremen not wearing a hardhat, he tells the man to get his hardhat and then
"gets after" the ship foremen and the gang foremen to see that they carry out
the rule. Baston added that I.T.O. requires all ship foremen and gang foremen, such as
Collins, to set an example by wearing hardhats.
Union business agent Anderson testified that the union's position is that all men are to
wear hardhats and it does not oppose I.T.O. sending an employee home for the day if he
refuses to wear a hardhat. He also stated that the union would not authorize a strike or
work stoppage over an employee being disciplined for not wearing a hardhat.
II
Judge Cerbone affirmed the citation and imposed a penalty of $350. She credited the
testimony of Sullivan that six employees, including gang foreman Collins, were not wearing
hardhats, and discredited Collins' contrary testimony because he was responsible for
assuring that the employees wore hardhats and "his interest in the result of the
trial must be considered...." The judge also found employee access to the hazard and
imputed to I.T.O. gang foreman Collins' knowledge that the employees were not wearing
hardhats. The judge held that I.T.O.'s hardhat rule was ineffective, stating:
"Respondent's argument that it has done all it feasibly can to achieve compliance
with the standard is also negated by the very fact that the programs instituted have
achieved a large measure of compliance in the wearing of hardhats." The judge also
found that "there was no cogent showing" that I.T.O. believed that employees
would engage in strikes or walkouts if I.T.O. attempted to enforce the standard.
III
On review, I.T.O. takes issue with the judge's finding that additional efforts were
required of I.T.O. to secure compliance with its hardhat rule while failing to specify
what those additional efforts are. I.T.O. also contends that under Atlantic & Gulf
Stevedores, Inc. v. OSHRC., 534 F.2d 541 (3d Cir. 1976), I.T.O. can be held liable for a
violation resulting from employee misconduct only when demonstrably feasible measures
exist for materially reducing the incidence of such misconduct, and I.T.O. asserts it has
taken all the measures that the court said it should take in Atlantic & Gulf other
than seeking a variance: it has bargained for the right to discharge or discipline
noncomplying employees and has discharged or disciplined employees who violated the
hardhat rule or has threatened to do so. I.T.O. also maintains that the failure to wear
hardhats in this case was idiosyncratic, unpreventable employee misconduct. I.T.O. also
contends that the judge's crediting of Sullivan's testimony over that of Collins was
erroneous and that the Secretary is bound by Collins' testimony, because he was the
Secretary's witness.
The Secretary argues that the Commission should affirm the citation because, even
according to Collins' testimony, two employees did not have hardhats with them on the
vessel and Collins could have prevented the violation by checking that these employees had
head protection when they started work. The Secretary further asserts that the fact that
an entire six-man crew, including the foreman, would work without hardhats shows that the
employees did not regard the possibility of detection and discipline to be very serious.
The Secretary notes that employees seen without hardhats received only verbal reprimands
and were not disciplined unless they refused instructions to get their hardhats. The
Secretary contends that I.T.O. failed to adequately supervise its foremen to insure that
they were complying with the hardhat rule and were requiring the employees in their gangs
to do likewise.
IV
In view of the basis for our decision we need not decide whether Judge Cerbone erred in
holding that the Secretary was not bound by Collins' testimony and in crediting Sullivan's
testimony. If Collins' testimony is correct that he was wearing a hardhat and that, having
just arrived in the hatch, he had not yet noticed that two employees were without hardhats
until Sullivan pointed them out, then he had no actual knowledge of the violation. He also
would have had no opportunity to detect the violation. In this regard, Collins testified
that he ordered the two employees to go get their hardhats upon Sullivan's pointing them
out. Under these circumstances, Collins would have no knowledge that can be imputed to
I.T.O. Thus, if we were to credit Collins' testimony, the citation must be vacated for
lack of knowledge that can be imputed to I.T.O.
On the other hand, if Sullivan's testimony is correct that six employees in the hatch,
including Collins, were not wearing hardhats, then the judge correctly held that, as a
supervisor, Collins' knowledge of violative conduct could be imputed to I.T.O. However,
the judge erred in finding that I.T.O. did not successfully rebut the prima facie
imputation of knowledge in this case. We find that it did.
To rebut the prima facie imputation of knowledge, an employer can affirmatively
demonstrate that a supervisory employee's misconduct could not have been prevented. In
particular, the employer must demonstrate that it effectively communicated its workrule
requiring the wearing of hardhats to employees and that the rule was effectively enforced
through supervision adequate to detect failures to comply and discipline sufficient to
discourage violations. H.E. Wiese, Inc., 82 OSAHRC 18/A2, 10 BNA OSHC 1499, 1982 CCH OSHD
¶25,985 (Nos. 78-204 & 78-205, 1982), aff'd, No. 82-4202 (5th Cir. Apr. 27, 1983);
Floyd S. Pike Electrical Contractor, Inc., 78 OSAHRC 50/E1, 6 BNA OSHC 1675, 1978 CCH OSHD
¶22,805 (No. 3069, 1978).[[*/]] The Secretary concedes, in his brief on review, that
I.T.O.'s workrule effectively implemented the requirements of the hardhat standard and
that I.T.O. effectively communicated this workrule. Thus, the remaining question is
whether I.T.O. effectively enforced its hardhat rule.
Out of the 200 I.T.O. employees present at the time of the inspection, compliance officer
Sullivan saw only six who were not wearing hardhats. Additionally, the evidence shows that
I.T.O. forcefully implemented a program to effect a hardhat rule as evidenced by I.T.O.'s
memos concerning the use of hardhats and the testimony by I.T.O. Vice-President
Castagnola. Castagnola and I.T.O. chief stevedore superintendent Baston monitored
compliance with I.T.O.'s hardhat rule and reprimanded supervisors and gang foremen if any
of their men were not wearing a hardhat. Longshoremen who started work without hardhats
were sent back to their cars to retrieve their hardhats. Employees who refused to wear
hardhats were "checked out" for the day. We do not agree that the high degree of
compliance with the hardhat rule that I.T.O. has accomplished negates I.T.O.'s argument
that it has done all it feasibly could to achieve compliance. There is no evidence of what
additional measures I.T.O. could have taken. We, therefore, conclude that any failure of
Collins and five members of his gang to wear hardhats at the time of the inspection was
unpreventable and that I.T.O. therefore succeeded in rebutting the Secretary's evidence
concerning knowledge of the violative conduct. See Daniel Construction Co. of Alabama, 81
OSAHRC 71/A2, 9 BNA OSHC 2002, 1981 CCH OSHD ¶ 25,553 (No. 13874, 1981).
Accordingly, under either view of the testimony, the Secretary has failed to establish
knowledge of the violation on the part of I.T.O., an essential element of his proof. We,
therefore, vacate the citation and penalty.
SO ORDERED.
FOR THE COMMISSION
Dated: 6/13/83
Ray H. Darling, Jr.
Executive Secretary
The Administrative Law Judge decision in this matter is unavailable in this format. To obtain a copy of this document, please request one from our Public Information Office By e-mail ( lwhitsett@oshrc.gov ), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).
FOOTNOTES:
[[*/]] Chairman Rowland notes that Commission precedent permits an employer to rebut the
Secretary's showing of knowledge based on imputation of the actions of a supervisory
employee by showing that the employer both communicated and enforced a workrule pertaining
to the conduct in issue. Since I.T.O. satisfied its burden under Commission precedent,
Chairman Rowland does not find it necessary to consider whether that precedent is correct
insofar as it imposes on the employer a duty to enforce as well as communicate workrules
to non-supervisory employees. See H.E. Weise, Inc., 10 BNA OSHC at 1508 n.8, 1982 CCH OSHD
at p. 32,617 n.8 (dissenting opinion). With respect to supervisory employees, see Chairman
Rowland's opinion in Farthing & Weidman, Inc., 82 OSAHRC 75/A2, 11 BNA OSHC 1069, 1983
CCH OSHD ¶ 26,389 (No. 78-5366, 1982).