EVERETT STEVEDORING COMPANY
OSHRC Docket No. 13906
Occupational Safety and Health Review Commission
January 14, 1977
[*1]
Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Robert A. Friel, Assoc. Regional Solicitor
Jack P. Hogan, Dir. of Safety, Everett Stevedoring Company, for the employer
OPINION:
DECISION
This case is before the Commission pursuant to a sua sponte order for review. The parties have filed no objections to the Administrative Law Judge's decision, either by way of petitions for discretionary review or response to the order for review. Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge's decision.
In these circumstances, the Commission declines to pass upon, modify or change the Judge's decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.
The Judge's decision is accorded the [*2] significance of an unreviewed Judge's decision. Leone Constr. Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).
It is ORDERED that the decision be affirmed.
DISSENTBY: MORAN
DISSENT:
MORAN, Commissioner, Dissenting:
The citation should be vacated because the evidence establishes that respondent did all that could be expected under the Act to require compliance by its recalcitrant employees with the "hard hat" standard codified at 29 C.F.R. § 1918.105(a). Secretary v. John T. Clark & Son of Boston, Inc., OSAHRC Docket No. 10554, December 22, 1976 (dissenting opinion). Furthermore, for the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, December 20, 1976, I disagree with the manner in which my colleagues are disposing of this case and with their views regarding the significance of decisions rendered by Review Commission Judges.
Since my colleagues do not address any of the matters covered in Judge Donegan's decision, his decision is attached hereto as Appendix A so that the law in this case may be known.
APPENDIX A
DECISION AND ORDER
Charles G. Preston, U.S. Department of Labor, for the Complainant
Jack P. [*3] Hogan, Safety Director, Everett Stevedoring Company, for the Respondent
Donegan, Judge: This is a proceeding pursuant to section 10(c) 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).
The longshoring activities of the Respondent's employees at the time of the inspection on June 10, 1975 involved the loading of logs on board the vessel "Thames Maru" at Pier F in the Port of Everett, Washington.
The Respondent contested a citation number one for a repeated violation and a proposed penalty of $150 therefor, issued on June 12, 1975 as a result of the inspection of this worksite by an OSHA compliance officer.
The description of the alleged violation of 29 CFR 1918.105(a) is set forth in citation number one for a repeated violation as follows:
"Three employees working as longshoremen on or in conjunction with the loading of the vessel "Thames Maru" were observed not wearing protective hats. In each case they were working directly beneath the ship's cargo gear, which was in operation.
1. One man at hatch #5, starboard side.
2. One man at hatch #4, starboard side.
3. One man on the log raft adjacent to [*4] the starboard side of the ship, servicing hatch #5."
It is stated in the citation that the alleged violation must be corrected immediately upon receipt of the citation.
The cited section of the longshoring safety and health regulations provides as follows:
"29 CFR 1918.105(a)
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)."
No affected employees or authorized representatives of affected employees have elected to participate as parties in this proceeding.
A post-hearing brief has been submitted by the Complainant.
FINDINGS
The "Thames Maru" is a large ocean-going vessel of foreign registry designed for the transportation of logs to the Orient. At the time of the inspection, the vessel was located on navigable waters in the Port of Everett. The logs that were being hoisted to the deck from the water on the starboard side of the vessel were to be carried outside of the State of Washington (T. 23, 28-29).
When the inspector observed the three longshoremen who were [*5] not wearing protective hats, these employees were engaged in the operation of hoisting logs from the water for the purpose of finishing off the loading of the vessel (T. 24, 74).
The logs were hoisted from the water to the deck with the ship's gear (Thompson gear) adjacent to each hatch. This gear consisted of revolving cranes, cables, blocks, shackles, and slings. The slings were secured around each end of the logs by inserting the knob at the end of the sling into the slot of the fitting (bell) attached to the shackles at the lower end of the short cables (pendants). The gear attached to the lifting cables of the crane located at hatch five is pictured in exhibits C-2 and C-3. At the time of the inspection, logs were also being hoisted from the water to the deck by similar gear at hatch four (T. 28-30, 32, 37-39, 46-48, 73-76, 80-90).
Of the three longshoremen who were not wearing protective hats at the time of the inspection, one was working on the starboard side of the deck at hatch four and another at hatch five. They were both working on the deck within the swing area of the ship's gear that was being operated for the purpose of hoisting the logs from the water to the [*6] deck. There was a foreman assigned to each hatch. The third longshoreman was working on the log boom in the water adjacent to hatch five. This employee and the three other longshoremen on the log boom, who were wearing protective hats, were placing slings under the ends of the logs (usually under ten at a time, depending upon the size of the logs) (T. 25-32, 39-42, 69, 75, 78, 86).
After the logs are released, the gear will swing over an area of the deck and the log boom as it is lowered over the side of the ship. Each of the three employees not wearing protective hats were exposed to the hazard of a blow to the head from the crane's gear and particularly from the slings. There is also the hazard of accidental head injuries from falling debris while a load of logs is hoisted from the water to the deck of the ship (T. 52, 54, 69, 71-72, 77).
The proof of the exposure of an employee to the hazard is not dependent upon a showing that an employee, not wearing a hard hat, was under the ship's gear while it was operating. The evidence is clear that these three employees had access to this hazardous area n1.
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n1 See: Secretary v. Underhill Construction Corporation, 7 OSAHRC 134 (1974), 513 F.2d 1032 (2nd Cir. 1975).
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The Respondent's representative, who is also the safety director of this Company and the Seattle Stevedore Company, offered in evidence copies of four documents (marked for identification in the record as R-1 to R-4 inclusive). The documents, which include correspondence between the Seattle Stevedore Company and the Seattle regional director's office of OSHA, relate to the application and enforcement of the hard hat standards. The Respondent made no showing of the relevancy or materiality of these documents to the issues in this case and they were not accepted in evidence.
Apparently these exhibits were offered by the Respondent's representative to show a conflict in the wording of the standard (29 CFR 1918.105(a)) and the enforcement of this standard by the Seattle regional office of OSHA. The Respondent's representative read aloud at the hearing a portion of one of the letters (Exhibit marked for identification R-3), which in substance states that the standard (29 CFR 1918.105(a)) [*8] requiring the wearing of protective hats would be enforced only when the employee is exposed to a hazard. Enforcement of the cited standard in this case is not defective because the standard does not spell out the criteria of "exposure to a hazard" as contended by the Respondent's representative (T. 60-67).
Based on a preponderance of the substantial evidence of record, it is concluded that the Respondent's three employees working at the locations identified in the citation were not wearing protective hats and were exposed to the hazard of head injuries from the ship's cargo gear and falling debris as described in this decision. n2
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n2 See: Secretary v. Atlantic & Gulf Stevedore, Inc. 16 OSAHRC 770 (1975); Secretary v. J.A. McCarthy, Inc., Nos. 6565, 7177 & 7522 (January 20, 1976).
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If any one of the three employees had suffered an accidental head injury, there was a substantial probability that it could have been of a serious nature. This was a serious violation within the meaning of section 17(k) of the Act. n3 [*9]
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n3 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 the result of an inspection on June 13, 1973 of the Respondent's worksite at Pier one in the Port of Everett, Washington, the Respondent was cited for a violation of 29 CFR 1918.105(a) for failing to require employees to wear protective hats while off loading lumber from a barge. The Respondent did not contest this citation or the proposed penalty of $30 for this violation. Consequently the citation and proposed penalty became a final order of this Commission (T. 12, Exhibit C-1). The violations in 1973 and [*10] in 1975 of the cited standard (29 CFR 1918.105(a)) involved longshoring activities by the Respondent in the Port of Everett. Although separated by a period of approximately two years, the circumstances of each violation of the same standard are sufficiently similar to sustain a finding that the Respondent's violation of 29 CFR 1918.105(a) on June 10, 1975 was a repeat of the violation on June 13, 1973.
The failure of the Respondent to comply with the cited standard (29 CFR 1918.105(a)) as charged in the citation in this case was a repeated violation within the meaning of section 17(a) of the Act. n4
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n4 See: Secretary v. Bethlehem Steel Corporation 20 OSAHRC (1975).
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The Respondent, Everett Stevedoring Company, is a wholly-owned company of Seattle Stevedore Company. There are two stevedoring companies in the Port of Everett, Washington and the Respondent provides approximately 50% of the stevedoring services in that port. There are four permanent employees, and longshoremen are employed as needed through the [*11] Port of Everett union hall. The Respondent's gross revenues for the year 1974 were $500,000 (T. 13-15; Exhibit R-5).
On the day of the inspection (June 10, 1975), the Respondent had 41 employees at the worksite where the "Thames Maru" was being loaded with logs in the Port of Everett, Washington. Three employees were exposed to risk of injury as a result of the Respondent's failure to comply with 29 CFR 1918.105(a).
It is concluded from an evaluation of the evidence of record in relation to the penalty criteria of section 17(j) of the Act that $100 is an appropriate penalty for this repeated violation. n5
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n5 Section 17(j) provides: "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."
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CONCLUSIONS OF LAW
1. The Respondent, Everett Stevedoring [*12] Company, was at all times material to this proceeding an employer engaged in business affecting interstate commerce within the meaning of section 3 of the Act.
2. The Occupational Safety and Health Review Commission has jurisdiction over the parties and the subject matter of this proceeding as provided in section 10 of the Act.
3. The place of employment maintained by the Respondent on board the "Thames Maru" at Pier F in the Port of Everett, Washington was inspected by an authorized employee of the Secretary of Labor on June 10, 1975, in accordance with section 8 of the Act.
4. The Respondent was not in compliance with 29 CFR 1918.105(a) as charged in the citation issued on June 12, 1975, and thereby was in violation of section 5(a)(2) of the Act.
5. This violation of 29 CFR 1918.105(a) was a serious violation within the meaning of section 17(k) of the Act, and was a repeated violation within the meaning of section 17(a) of the Act. Pursuant to the provisions of section 17(j) of the Act, an appropriate civil penalty for this violation is $100.
ORDER
Based on the foregoing findings of fact and conclusions of law, it is ORDERED:
1. That citation number one for a repeated [*13] violation issued to the Respondent on June 12, 1975 be, and is hereby affirmed.
2. That the proposed penalty of $150 for this repeated violation be vacated and that a penalty of $100 be assessed therefor, and that the same be, and are hereby vacated and assessed accordingly.
THOMAS J. DONEGAN, Judge
Dated: March 4, 1976
Seattle, Washington