BERNARD S. COSTELLO, INC.
OSHRC Docket No. 14354
Occupational Safety and Health Review Commission
April 22, 1977
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Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Albert Ross, Regional Solicitor
Leo F. Glynn, for the employer
OPINION:
DECISION
BY THE COMMISSION: A decision of Review Commission Judge Abraham Gold, dated March 1, 1976, which is attached hereto as Appendix A, n1 was directed for review pursuant to 29 U.S.C. § 661(i) following respondent's petition for review. That decision held that respondent had violated 29 U.S.C. § 654(a)(2) by failing to comply with the occupational safety and health standards codified at 29 C.F.R. § § 1918.35 and 1918.105(a).
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n1 Chairman Barnako does not agree to this attachment.
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Following the direction for review, the respondent notified the Commission that it had paid the assessed penalty and was withdrawing "its contest and assume[d] that the . . . matter is closed." In view of respondent's affirmative indication that it desires to terminate the litigation in this case, the Commission agrees not to review the Judge's decision. [*2] See Secretary v. Union Steel Erectors, Inc., OSAHRC Docket No. 13801, January 6, 1977, and the cases cited therein.
Accordingly, the Judge's decision is affirmed.
APPENDIX A
DECISION AND ORDER
Paul Katz, For Complainant
Leo F. Glynn, For Respondent
Gold, Judge
This case was heard on November 24, 1975 pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 659(c).
On July 30, 1975 Respondent was cited for two nonserious violations for which a total penalty of $95 was proposed by the Secretary of Labor. Respondent filed a notice of intent to contest both charges.
Respondent is Massachusetts corporation, engaged in business as a contract stevedore and terminal operator; pursuant to such business Respondent's employees regularly receive, handle, and work with goods which have moved or which are subsequently moved across state lines in interstate or international commerce; therefore Respondent was at all times pertinent herein engaged in a business affecting commerce, within the meaning of Section 3(5) of the Act (Ans. I). Respondent has about six full-time employees, plus some 50 longshoremen who perform the actual loading and discharging [*3] of cargoes; it is an average sized contract stevedore in New England (Exh. J-1).
29 U.S.C. § 654(a)(2) requires that each employer comply with occupational safety and health standards promulgated under the Act.
Section 666(c) provides that an employer may be assessed a civil penalty of up to $1,000 for each nonserious violation.
Civil penalties can be assessed only after considering the size of business of the employer, the gravity of the violation, the good faith of the employer, and the history of previous violations. 29 U.S.C. § 666(i).
Respondent is charged with violating these standards:
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Part 1918 - SAFETY AND HEALTH |
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REGULATIONS FOR LONGSHORING |
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* * * |
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(Item 1) |
Subpart D - Working Surfaces |
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* * * |
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§ 1918.35 Open hatches. |
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Open weather deck hatches around |
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which longshoremen must work, which |
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are not protected to a height of 24 |
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inches by coamings, shall be guarded |
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by taut lines at a height of 36 to |
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42 inches above the deck except on |
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the side on which cargo is being |
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worked. Any portable stanchions or |
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uprights used shall be so supported |
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or secured as to prevent accidental |
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dislodgement; provided however, that |
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the requirements of this section |
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shall not be deemed to apply to barges |
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or to Great Lakes type bulk carriers |
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(Item 2) |
Subpart J - Personal Protective |
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Equipment |
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* * * |
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§ 1918.105 Head protection. |
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(a) Employees shall be protected |
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by protective hats meeting the |
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specifications contained in the |
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American National Standard Safety |
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Requirements for Industrial Head |
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Protection, Z89.1 (1969). |
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A compliance officer of the Department of Labor inspected Respondent's workplace on July 8, 1975, at which time Respondent's employees were working the cargo of the vessel "TOHBEI MARU" at the Charlestown, Massachusetts terminal (Tr. 4-6).
The inspector observed two employees of Respondent on open weather deck hatches which were not protected by coamings and not guarded by taut lines (Tr. 12-13); these two employees were walking along the aft end of a catwalk which offered no protection against a possible 17 foot fall (Tr. 13). The record establishes a violation of the standard cited in item 1.
As to item 2, the inspecting officer saw employees of Respondent landing and lashing heavy equipment (Exh. C-1, Tr. 7). These employees were not wearing protective hats (hard hats) to protect them against he hazard of falling objects (Tr. 8).
A stipulation of the parties included the following:
7. Respondent is a member of the Boston Shipping Association and is bound together with the three unions as the Port of Boston by a collective bargaining agreement entered into by the Boston Shipping Association and the International Longshoremen's Association.
8. In 1971, the Boston Shipping [*5] Association bought and issued hard hats to each of the longshoremen in the port of Boston.
9. Late in 1971, respondents were advised, through the Boston Shipping Association, that Occupational Safety and Health Administration would issue no citations for violations of the hard hat regulation 29 CFR 1910.105(a).
10. Subsequently, in mid 1973, respondents were advised through the Boston Shipping Association, that Occupational Safety and Health Administration would begin to enforce the hard hat regulation by issuing citations for violations.
11. A representative of the Boston Shipping Association met with Occupational Safety and Health Administration's Regional Director and agreed that on July 2, 1973 the respondents were to make an all-out effort to get hard hats worn on the Boston Waterfront, and that beginning July 2, 1973, the Department of Labor would enforce the hard hat regulation (as opposed to the policy of "voluntary compliance" in the past).
12. The Boston Shipping Association, prior to the July 1973 date, purchased and issued for the second time hard hats to each longshoreman within the Port of Boston and two weeks prior to that date placed notices in the pay envelopes [*6] of each longshoreman informing them that "hard hats must be worn beginning July 2, 1973." Is also placed six or eight large placards at all the pier areas informing the longshoremen that hard hats must be worn and instructed the supervisors of the necessity of wearing hard hats on the job.
13. About the beginning of 1974 the Boston Shipping Association drafted and presented to the union an amendment to the Collective Bargaining Agreement, which amendment is attached here as Exhibit A. The union declined to sign said amendment based upon their position that all disciplinary actions were covered by the Collective Bargaining Agreement in force between the Boston Shipping Association and the union.
The proposed amendment to the Collective Bargaining Agreement referred to in this stipulation, reads:
BSA-ILA GENERAL CARGO AND CLERKS AGREEMENT - AMENDMENT THERETO
Whereas the Department of Labor has adopted a militant enforcement policy requiring the wearing of hard hats during work by longshoremen and
Whereas all of the longshoremen on the Boston Waterfront have been furnished with proper hard hats and notified of the newly adopted enforcement policy of the Department of Labor, [*7]
Now, therefore, the Collective Bargaining Agreement between the undersigned International Longshoremen's Association (AFL-CIO) and its affiliated Locals 799, 800, 805 and the Boston Shipping Association is hereby amended by adding the following provisions:
(1) No longshoreman or clerk, except for those working in an office, shall work on the waterfront without wearing a proper hard hat.
(2) Any longshoreman or clerk who does not wear a proper hard hat while working shall be discharged by his hiring boss forthwith and shall not be re-employed for the duration of the particular vessel.
(3) Any hiring boss who refuses to discharge a longshoreman as required by paragraphs (1) and (2) shall be suspended for five days.
Respondent contends that it has done everything possible to comply with the cited standard and should not be accountable for the deliberate noncompliance of the employees. The Secretary is of the view that Respondent has not taken all reasonable steps to effectuate compliance with the standard, pointing to the failure of Respondent to discipline and longshoreman for failure to wear a hard hat.
Respondent admittedly has never suspended or fired any longshoreman for [*8] not wearing a hard hat (Tr. 60, 61), but notes that there was a work stoppage on three occasions after men were discharged for leaving the job site (Tr. 77). The President of Respondent corporation testified that only a few employees wear hard hats at the Moran Terminal at Charlestown, Massachusetts (Tr. 60, 65).
The Review Commission has ruled, in similar cases, that where the employer has failed to suspend or fire the offending longshoremen, the employer has not taken all feasible measures to prevent the violative conduct of the employees and, as a consequence, the employer must be held to have violated the Act. n1 While I do not endorse this philosophy and do not feel that it will survive judicial scrutiny, nevertheless I feel bound by the Commission ruling. On that basis I find that Respondent was in violation of the cited standard in item 2. The request of Respondent that I adopt his proposed findings of fact and proposed conclusions of law is denied.
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n1 Secretary of Labor v. Atlantic & Gulf Stevedores, Inc., et al., CCH, E.S.H.G. para. 19,526 (1975); petn. for rev. filed, No. 1584, 3rd Cir. June 6, 1975. Secretary of Labor v. Independent Pier Co., CCH, E.S.H.G. para. 20,100 (1975); petn. for rev. filed, No. 2453, 3rd Cir., December 29, 1975. Secretary of Labor v. Atlantic & Gulf Stevedores, Inc. CCH, E.S.H.G. para. 20,101 (1975); petn. for rev. filed, No. 2454, 3rd Cir., December 29, 1975.
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The proposed penalties of $55 for item 1 and $40 for item 2 have been stipulated as reasonable by Respondent (Tr. 42).
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. On July 8, 1975, Respondent was in violation of 29 U.S.C. § 654(a)(2) for failure to comply with the safety standards at 29 C.F.R. § 1918.35 and § 1918.105(a).
3. It is reasonable, pursuant to 29 U.S.C. § § 666(c) and (i), to assess a penalty of $55 for item 1 and $40 for item 2.
ORDER
IT IS ORDERED that items 1 and 2 of the citation and the penalties proposed therefor be and the same are hereby affirmed.
Dated: March 1, 1976
Boston, Massachusetts
ABRAHAM GOLD, Judge, OSAHRC