Docket No. 78-1353

CHESAPEAKE OPERATING COMPANY

OSHRC Docket No. 78-1353

Occupational Safety and Health Review Commission

June 30, 1982

[*1]

Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

Marshall H. Harris, Reg. Sol., USDOL

William R. Dorsey, III, for the employer

OPINION:

DECISION

BY THE COMMISSION:

The Secretary of Labor ("the Secretary") issued to Chesapeake Operating Company ("Chesapeake") a citation alleging that Chesapeake had willfully violated two longshoring safety standards. Administrative Law Judge Joseph L. Chalk vacated one item of the citation and affirmed the other as a non-serious, rather than willful, violation. The Secretary petitioned for review of the judge's decision as to both items, and Commissioner Cleary directed review under 29 U.S.C. § 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § § 651-678 ("the Act"), on all issues raised in the Secretary's petition, including:

1. Whether the administrative law judge erred by concluding that the standard at 29 CFR § 1918.32(b) does not apply to cargo stowed on the deck of a ship; and

2. Whether the administrative law judge erred by concluding that Chesapeake Operating Company did not commit a willful violation . . . because the failure to comply with the standard at 29 [*2] CFR § 1918.105(a) was caused by a non-supervisory employee.

The first item of the citation alleged a willful violation for failure to comply with 29 C.F.R. § 1918.32(b), which states:

§ 1918.32 Stowed cargo and temporary landing platforms.

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(b) When an edge of a hatch section or of stowed cargo more than 8 feet high is so exposed that it presents a danger of an employee falling, the edge shall be guarded by a safety net of adequate strength to prevent injury to a falling employee, or by other means providing equal protection under the existing circumstances.

Chesapeake, a stevedoring company operating in Baltimore, Maryland, had two gangs of nineteen employees each loading parts of modular homes onto a ship. Since the employees had filled all the holds on the ship that would accommodate the modules, they were loading them on the deck. The slanted roofs of the modules were covered with snow and ice, and Chesapeake had employees working on top of the modules clearing away the snow. At the time of the alleged violation, these employees had no fall protection; an employee could have fallen from the roof of one of the modules to the pier or the water 40 feet or more [*3] below.

After the hearing, Chesapeake submitted a motion to supplement the record with a copy of a letter written by Edward C. March of the Office of Maritime Standards of OSHA to an official of the Oregon Area Accident Prevention Committee, Pacific Maritime Association. The letter stated in part:

This is in response to your letter of June 22, 1977 relative to the intent of Sections 1918.32(b) and 1918.54(f) of 29 CFR Part 1918. Frankly, we are surprised at the need for such advice at this time as these regulations have been in effect for many years and a record search indicates only one prior instance in the case of each of these rules when some sort of interpretation was required.

Section 1918.32(b) was developed to handle circumstances when men were required to work either at the edge of a partially opened hatch section or of a block or unit of stowed cargo in a hold under the circumstances described. It is meant to apply only to those "hold" situations, and not to deck cargo situations, that matter specifically coming under section 1918.33.

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This reply has been coordinated with our Directorate of Compliance who are responsible for the dissemination of interpretations, [*4] and who concur.

Judge Chalk found that the standard does not apply to deck cargo and vacated this item. He held that section 1918.33 n1 governs cargo carried on the deck, while section 1918.32 applies only to cargo stowed below decks. The judge denied Chesapeake's motion to supplement the record even though the Secretary had not objected to it. He reasoned that, because the question could be resolved without the proffered evidence, n2 it was more expeditious to deny the motion than to reopen the hearing to afford the Secretary an opportunity to object to the letter or to submit rebuttal evidence.

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n1 That section provides:

§ 1918.33 Deck loads.

(a) Employees shall not be permitted to pass fore and aft over or around deck loads unless there is a safe passage.

(b) Signalmen shall not be permitted to walk over deck loads from rail to coaming unless there is a safe passage. If it is necessary to stand at the outboard or inboard edge of the deckload where less than 24 inches of bulwark, rail, coaming, or other protection exists, any signalman shall be provided with a suitable means of protection against falling from the deck load.

n2 The judge relied on the plain wording of the standard. In addition to concluding that cargo on deck is expressly governed by section 1918.33, he read section 1918.32(b) together with section 1918.32(c), which refers to employees working on different levels "in the same hatch." Accordingly, he concluded that the entire section 1918.32 is intended to apply only to cargo stowed in the holds of ships.

[*5]

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The Secretary argues that the judge erroneously interpreted the standard and that section 1918.32(b) does apply to cargo on deck as well as in the hold. Chesapeake argues that the judge's interpretation is correct and is consistent with the maritime industry's understanding of the term "stowed cargo." Citing Mr. March's letter, Chesapeake maintains that the applicability of section 1918.33 to deck loads indicates that section 1918.32 does not apply to deck loads, and argues that under both the Occupational Safety and Health Act and the Longshoremen's and Harbor Workers' Compensation Act ("LHWCA"), section 1918.32(b) has consistently been interpreted to apply only to hold cargo.

After Judge Chalk issued his decision, the Commission fully considered this issue in Seattle Crescent Container Service, 79 OSAHRC 91/A2, 7 BNA OSHC 1895, 1979 CCH OSHD P24,002 (No. 15242, 1979), and unanimously interpreted section 1918.32(b) as applicable to cargo carried on the deck of a ship. That decision is controlling here.

In Seattle Crescent, a copy of the letter by Mr. March was submitted to the Commission [*6] while the case was on review, and the Commission denied the employer's motion to supplement the record. Here, the letter was submitted to the judge, who denied the motion because he found the letter unnecessary to his conclusion. In this case, however, we are confronted with a Commission precedent that is contrary to the judge's interpretation. Chesapeake has in effect renewed its motion by referring to the March letter in its brief in opposition to the Secretary's petition and in its brief on review. The Secretary has not objected to Chesapeake's references to the letter even though he moved to strike statements made in Chesapeake's reply brief, and he has not sought the opportunity to present evidence to rebut Mr. March's letter. We will therefore consider the motion to admit the letter.

Motions to reopen the record and receive additional evidence are not precisely covered by the Federal Rules of Civil Procedure. See Caracci v. Brother International Sewing Machine Corp., 222 F. Supp. 769 (E.D. La. 1963), aff'd per curiam, 341 F.2d 377 (5th Cir. 1965); 6A Moore's Federal Practice P59.04[13] (1979). Professor Moore has observed:

In passing on the motion, the [*7] time when the motion is made, the character of the additional testimony, and the effect of granting the motion are pertinent factors for consideration.

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A [trial] court, then, should consider a motion to reopen to take additional testimony in light of all the surrounding circumstances and grant or deny it in the interest of fairness and substantial justice.

6A Moore's Federal Practice, at pp. 59-33, 59-36. We are of the opinion that the interests of fairness, substantial justice, and adjudicative efficiency would be better served by our considering the letter now, rather than fostering the uncertainty and litigation that could ensue if we awaited a case in which the letter was admitted.

Mr. March's interpretation conflicts with that of the Secretary in this case and in Seattle Crescent. Mr. March did not state that the term "stowed cargo" was used in any particular sense, and he supplied no reasons or authority for his interpretation. His letter constitutes merely an informal advisory opinion, which is not binding on either the Secretary or the Commission. See Bethlehem Steel Corp., 81 OSAHRC 108/A2, 10 BNA OSHC 1264, 1981 CCH OSHD P25,839 (No. 16067, 1981). [*8] Cf. Holman Erection Co., 77 OSAHRC 196/A2, 5 BNA OSHC 2078, 1977-78 CCH OSHD P22,318 (No. 13529, 1977) (opinions of compliance officers cannot bind Secretary of Commission). Having considered Mr. March's letter, we find nothing in it that convinces us to change our fully-considered interpretation in Seattle Crescent.

Nor are we persuaded by the argument that deck cargo is governed exclusively by section 1918.33. Although the caption of section 1918.33 indicates that it applies to deck cargo, we look primarily to the standard itself rather than its caption to determine its scope. See Wray Electrical Contracting, Inc., 78 OSAHRC 78/A2, 6 BNA OSHC 1981, 1978 CCH OSHD P23,031 (No. 76-119, 1978), aff'd, 633 F.2d 220 (6th Cir. 1980). Section 1918.33 has a very narrow scope. Neither part of section 1918.33 applies to the working condition cited here: Chesapeake's employees were not signalmen and are therefore not covered by section 1918.33(b); and section 1918.33(a) does not apply because the employees were on the modules working to clear away ice and snow, not traveling over or around them. Because no more specific standard applies to be working condition [*9] cited here, section 1918.32(b) applies. See 29 C.F.R. § 1910.5(c); Brown & Root, Inc., 81 OSAHRC 44/A2, 9 BNA OSHC 1833, 1981 CCH OSHD P25,366 (No. 76-190, 1981); Bristol Steel & Iron Works, Inc. v. OSHRC, 601 F.2d 717 (4th Cir. 1979). We therefore reaffirm Seattle Crescent's holding that section 1918.32(b) applies to cargo carried on the deck of a ship.

Although Commissioners Cleary and Cottine find that the standard applies, Commissioner Cleary concludes that this item of the citation should nevertheless be vacated. n3 Commissioner Cleary finds that Mr. March's letter gives credence to Chesapeake's argument that the maritime industry was not aware that section 1918.32(b) applied to cargo stowed on deck when the violation occurred. Due process of law requires that an employer must have notice of what is required by a standard before a violation can be found. See Diebold, Inc. v. Marshall, 585 F.2d 1327, 1335-37 (6th Cir. 1978). Commissioner Cleary finds that Chesapeake lacked sufficient notice of the requirements of section 1918.32(b). He therefore votes to vacate this item. Commissioner Cleary emphasizes that this disposition does not relieve employers [*10] from their obligation to comply with section 1918.32(b), since the Commission has held that the standard applies to cargo stowed on deck. Id. at 1338.

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n3 Commissioner Cottine's individual views on the proper disposition of this item are set forth in his separate opinion.

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Chairman Rowland also votes to vacate this item. For the reasons stated in his separate opinion, he agrees with Judge Chalk's finding the section 1918.32(b) does not apply to the cited working conditions. The judge's vacation of this item is therefore affirmed. n4

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n4 The Secretary argues in his brief that if the cited standard does not apply, the pleadings should be amended under Rule 15(b) of the Federal Rules of Civil Procedure to allege a violation of § 5(a)(1) of the Act, 29 U.S.C. § 654(a)(1). Because a majority of the Commission holds that the standard does apply, amendment to § 5(a)(1) is inappropriate. Brisk Waterproofing Co., 73 OSAHRC 30/E1, 1 BNA OSHC 1263, 1973-74 CCH OSHD P16,345 (No. 1046, 1973). Accordingly, we need not reach Chesapeake's argument that the amendment to § 5(a)(1) may not be granted because it was not raised before the judge. Cf. Commission Rule 92(d), 29 C.F.R. § 2200.92(d) (Commission review ordinarily limited to issues raised below).

[*11]

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The second item of the citation alleged a willful violation of 29 C.F.R. § 1918.105(a), which requires that employees be protected by protective hats. n5 When the compliance efficer arrived at the site, he noticed three employees working without hardhats. The judge found a violation but concluded that it was not willful. The Secretary petitioned for review of the judge's finding that the violation was not willful. Chesapeake concedes that there was a violation but argues that it was not willful. We agree.

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n5 That standard provides:

§ 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).

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When work began on the morning of the inspection, one of Chesapeake's crews was seven employees short. At the gang leader's request, Chesapeake requested that seven more workers [*12] be sent from the union hiring hall. When these workers arrived, sometime between nine and ten o'clock that morning, none of them had a hardhat. The gang leader realized that the employees needed hardhats, so he went to the ship foreman, Dave Bogdan, to request hardhats.

Bogdan replied that he would get the hardhats but instructed the employees to work without them in the meantime. When the compliance officer arrived about 1:30 p.m., the employees still had not been given hardhats. The compliance officer asked Bogdan why he had not gotten hardhats for the employees, and Bogdan replied that he had not had time.

The compliance officer testified that he had been at the marine terminal the two days immediately before the inspection for another purpose and had not then inspected Chesapeake's workplace. On both days, however, he had noticed Chesapeake employees working without hardhats and had stopped at Chesapeake's offices each day to relate his observations. The compliance officer also testified that Chesapeake had received two prior citations for violating section 1918.105(a), both of which had become final orders.

The witnesses generally agreed that longshoremen resist wearing [*13] hardhats and that the requirement to do so is difficult to enforce. Chesapeake has numerous signs posted around its work areas reminding employees to wear hardhats, frequently reminds its supervisors to enforce Chesapeake's hardhat rule and has sent employees home for refusing to wear hardhats. Every Chesapeake supervisor is given a copy of the OSHA regulations and is told to enforce them.

Chesapeake presented evidence that Bogdan had recently been hired as a foreman through the union, which apparently selected Bogdan because he was the senior applicant for the position. Bogdan was still in his probationary period at the time of the inspection and was restricted to supervising the work on the dock because Chesapeake did not trust him on the ship. On board the loading was supervised by Bogdan's superior, the ship superintendent, who immediately ordered hardhats for the employees when he was informed of the situation.

A week or two before the inspection, Bogdan had attended a meeting of all supervisory personnel at which the hardhat rule and problems with its enforcement were discussed. During that meeting, the gang leader who would later ask Bogdan to get hardhats for the employees [*14] inquired, "[I]f I send a man home for not wearing a hardhat, who would pay this man when he came back -- . . . When the union delegate comes to me and says I've got to pay this man, who's going to back me up?" He was told that, "Yes, the company would back him to the fullest." At the end of his probationary period. Bogdan was fired, largely for, among other things, his poor safety record, including the incident in question here.

The judge found that Bogdan was "not a foreman in the ordinary sense of the word," but was a "trainee-foreman." He held that Bogdan's conduct could not be imputed to Chesapeake because Bogdan was not the supervisory employee in charge of the worksite. Judge Chalk found that the ship superintendent had no actual knowledge of the violation but that he had constructive knowledge because he could have observed the situation with the exercise of reasonable diligence. However, he determined that the ship superintendent's conduct was not willful in nature.

On review, the Secretary argues that Bogdan's actions should be imputed to Chesapeake because he was a supervisor. In order to defend on the ground that a supervisor's misconduct was unforeseeable, the [*15] Secretary asserts, the employer must prove that the supervisor was adequately trained and supervised on matters of safety. The Secretary argues that Chesapeake should be held responsible because its workrule was inadequately enforced, asserting that an employee caught without a hardhat would merely be told to wear the hardhat without being subject to any punishment. According to the Secretary, an employee would be disciplined only if he refused to obey such an instruction from a supervisor, and the Secretary further claims that no supervisor had ever been punished for failing to enforce the rule. Finally, the Secretary asserts that Bogdan's misconduct should be imputed because Chesapeake's hiring practices were inadequate, in that Bogdan was hired and placed in charge of 40 to 50 employees with no check on his past work history. The Secretary does not dispute the judge's conclusion that the violation cannot be found willful based on the conduct of the ship superintendent.

Chesapeake argues that Bogdan's actions should not be imputed because he was not a true foreman and had limited responsibility in view of his probationary status. Chesapeake also contends that Bogdan's conduct [*16] in any event was unforeseeable behavior for which Chesapeake cannot be held responsible. Chesapeake maintains that longshoremen resist wearing hardhats, that the requirement is difficult to enforce, and that Chesapeake has made diligent efforts to obtain compliance with its rule requiring hardhats to be worn. n6

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n6 Because we find that Chesapeake adequately enforced its rule requiring that hardhats be worn, it is unnecessary here for Chairman Rowland to examine whether Commission precedent is correct insofar as it requires employers to enforce as well as communicate work rules. For a discussion of whether an employer should be required to do anything more than instruct employees on safety procedures, see General Electric Co. v. OSHRC, 540 F.2d 67, 69 (2d Cir. 1976); Borton, Inc., 82 OSAHRC , 10 BNA OSHC 1462, 1982 CCH OSHD P25,983 (No. 77-2115, 1982) (dissenting opinion).

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For the reasons below, we affirm Judge Chalk's finding that the violation was not willful. We find that, even if Bogdan had been [*17] a supervisor and even if his conduct had been willful, Chesapeake did not commit a willful violation because it did everything it could to enforce its workrule requiring that hardhats be worn.

Conduct is considered willful if it was done with either intentional disregard or plain indifference to the requirements of the Act. Lukens Steel Co., 81 OSAHRC 96/A2, 10 BNA OSHC 1115, 1981 CCH OSHD P25,742 (No. 76-1053, 1981). The Commission has held that a supervisor's willful violation will be imputed to his employer unless the supervisor's behavior was contrary to a consistently and adequately enforced workrule. See Constructora Maza, Inc., 78 OSAHRC 6/E2, 6 BNA OSHC 1309, 1312, 1977-78 CCH OSHD P22,487, p. 27,115 (No. 13680, 1978).

The record shows that Bogdan's behavior was untypical of Chesapeake's supervisory personnel. Chesapeake had a rule requiring the use of hardhats, communicated it by signs around the workplace, reminders in the pay envelopes and other means, and vigorously enforced it in the face of the employee opposition. The gang leader for example, respected the rule, for he attempted to obtain hardhats for the employees as soon as they reported to him. [*18] Bogdan was aware that the company expected its supervisors to enforce its hardhat rule and would stand behind them. His behavior on this occasion was not shown to be common among Chesapeake's supervisors. Bogdan was disciplined for this incident in that his dismissal was based partly on this misconduct. n7 Although Chesapeake might have checked Bogdan's work record before placing him in charge of so many employees, this hardly shows, in view of the other evidence, that Chesapeake intentionally disregarded or was plainly indifferent to the requirements of the Act. Accordingly, the judge's vacation of the "willful" characterization of the violation is affirmed.

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n7 The Commission has considered evidence of discipline imposed after an inspection in determining whether an employer has effectively enforced its workrules. See R. Zoppo Co., 81 OSAHRC 18/A2, 9 BNA OSHC 1392, 1396 N.7, 1981 CCH OSHD P25,230, p. 31,184 n.7 (No. 14884, 1981); Asplundh Tree Expert Co., 78 OSAHRC 77/E12, 7 BNA OSHC 2074, 1980 CCH OSHD P24,147 (No. 16162, 1979).

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In his petition for discretionary review, the Secretary moved to amend the pleadings under Federal Rule 15(b) to allege that the violation was repeated if it is not found to be willful. The motion was renewed in his brief.

At the hearing the compliance officer testified that Chesapeake had received two prior citations at this terminal for noncompliance with section 1918.105(a). This testimony was presented to show that Chesapeake was aware of the requirements of the standard, which is relevant to the willful characterization. Chesapeake introduced copies of these two prior citations for the purpose of showing that hardhat violations have previously been cited as other than serious and that no penalty or a small penalty has been proposed for them in the past. No allegation was made before or during the hearing that the violation was repeated within the meaning of section 17(a), and there is no indication that the parties considered the evidence to relate to matters other than willfulness.

Under these circumstances, Chairman Rowland would deny the motion to amend. In his view, it is enough to note that the parties did not recognize at the hearing [*20] that they were trying the issue of whether the violation was repeated. See Crawford Construction Co., 82 OSAHRC 16/A2, 10 BNA OSHC 1522, 1527, 1982 CCH OSHD P25,984, p. 32,607 (No. 79-928, 1982) (dissenting opinion). As Chairman Rowland has stated:

A litigant has the right to fair notice of the issues to be tried, so that he can adequately prepare and present his case. Pleadings may therefore be amended under Rule 15(b) only when the parties recognize that they are trying unpleaded issues. "[I]t cannot be fairly said that there is any implied consent to try an issue where the parties do not squarely recognize it as an issue in the trial." 3 Moore's Federal Practice P15.13[2] at 992 (2d ed. 1974), quoted in Usery v. Marquette Cement Manufacturing Co., 568 F.2d 902, 907 (2d Cir. 1977). See Vicon Corp., 81 OSAHRC 98/C4, 10 BNA 1153, 1158, 1981 CCH OSHD P25,749, p. 32,160 (No. 78-2923, 1981) (concurring opinion), appeal filed, No. 81-2359 (8th Cir. December 10, 1981).

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[I]n my view it is unrealistic and unfair to expect an employer to anticipate every unpleaded charge which the Secretary might subsequently attempt to inject into the case. It is equally [*21] unfair to require the employer to attempt to limit the purpose for which evidence is adduced in order to avoid the implication of consent to try issues raised after the close of the hearing.

Snyder Well Servicing, Inc., 82 OSAHRC 10/C5, 10 BNA OSHC 1371, 1380-81, 1982 CCH OSHD P25,943, pp. 32,515-16 (No. 77-1334, 1982) (dissenting in part).

Commissioner Cleary would also deny the motion to amend. He notes that to establish that a violation is repeated, the Secretary must show that the employer had previously been cited for substantially similar violation and that the earlier citation had become a final order before the violation in question occurred. See Potlatch Corp., 79 OSAHRC 6/A2, 7 BNA OSHC 1061, 1063, 1979 CCH OSHD P23,294, p. 28,171 (No. 16183, 1979). The Secretary can establish substantial similarity by showing that the prior and the current violation resulted from noncompliance with the same standard. Once this prima facie showing has been made, the burden of rebutting that showing shifts to the employer. See Chapman Construction Co., 80 OSAHRC 122/D9, 9 BNA OSHC 1175, 1177, 1981 CCH OSHD P25,024, p. 30,928 (No 76-2677, 1980).

Pleadings are to [*22] be amended under Rule 15(b) if an unpleaded issue has been tried with either the express or the implied consent of the parties. The Commission has held that consent will be implied where the party opposing the amendment will not be prejudiced by the amendment and has either introduced evidence relevant to the unpleaded issue or failed to object to such evidence. If the amendment would not be prejudicial, it makes no difference that the evidence is relevant both to the unpleaded issue and to a pleaded issue. See Crawford Construction Co., 10 BNA OSHC at 1525, 1982 CCH OSHD at pp. 32,605-06 (lead opinion).

Although the two prior citations and the present citation all allege a violation of the same standard, Commissioner Cleary cannot say that the parties focused on substantial similiarity. The two prior citations indicate that the conditions cited took place in the holds of ships, while the violation here occurred on the pier. The record does not disclose what the cargo was at the time of the prior violations or whether the cargo was being loaded or unloaded. Except that one of the prior citations alleged that employees were exposed to "falling debris," there is no evidence [*23] as to what hazards of head injury Chesapeake's employees were exposed to. Given the sparseness of the record on the issue of substantial similarity, the parties' failure to focus on the issue, and the prospect that additional evidence might have been presented if the repeated allegation had been pleaded, Commissioner Cleary cannot say that Chesapeake would not be prejudiced. Cf. Mississippi Power & Light Co., 79 OSAHRC 109/D12, 7 BNA OSHC 2036, 2040-41, 1980 CCH OSHD P24,146, pp. 29,341-42 (No. 76-2044, 1979) (parties did not recognize issue during hearing and did not present evidence; prejudice found).

Finally, under the circumstances here, Commissioner Cleary would not remand this case to cure any possible prejudice. He notes that only the characterization of the violation and the amount of the penalty would be affected. Because of the policy favoring finality in adjudication he would decline to remand. See Daniel Construction Co., 81 OSAHRC 71/A2, 9 BNA OSHC 2002, 2007, 1981 CCH OSHD P25,553, p. 31,864 (No. 13874, 1981), quoting Texaco, Inc., 80 OSAHRC 68/A2, 8 BNA OSHC 1677, 1679, 1980 CCH OSHD P24,574, p. 30,146 (No. 77-2014, 1980). He would therefore [*24] deny the motion to amend.

Accordingly, the Secretary's motion to amend the pleadings to allege a repeated violation is denied.

III

Judge Chalk considered the factors mandated by section 17(j) of the Act, 29 U.S.C. § 666(i), and found that a penalty of $50 was appropriate for the hardhat violation. Neither party has disputed that $50 is an appropriate penalty if the violation is not found to be willful, and the assessment appears to be appropriate.

Accordingly, item 1 of the citation, is vacated. Item 2 is affirmed as an other than serious violation; a penalty of $50 is assessed.

SO ORDERED.

CONCURBY: ROWLAND (In Part)

DISSENTBY: ROWLAND (In Part); COTTINE (In Part)

DISSENT:

ROWLAND, Chairman, concurring in part and dissenting in part:

I agree with the finding in Part II C of the lead opinion that Chesapeake did not willfully violate the hardhat standard and with the denial in Part II D of the Secretary's motion to amend the pleadings to allege that the hardhat violation was repeated. I also join with Commissioner Cleary in vacating the citation alleging a violation of section 1918.32(b), but I do so for a different reason. I agree with Judge Chalk that section 1918.32(b) does not apply to cargo carried [*25] on deck, and I further agree with the judge that the issue of applicability may be decided without regard to the letter of Mr. March. Therefore, I do not join in Part I B of the lead opinion regarding the admissibility and evidentiary value of the letter.

Although the term "stowed cargo" is not defined in Part 1918, section 1918.32 and other provisions of Part 1918 plainly indicate that "stowed cargo" does not refer to deck loads. First, the sense of section 1918.32 itself is that stowed cargo is cargo carried below deck. Section 1918.32 addresses two matters: stowed cargo (in paragraphs (b) and (c)) and temporary landing platforms (in paragraph (a)). Inasmuch as paragraph (c) deals only with fall protection with respect to cargo carried below deck, I agree with Judge Chalk that when paragraphs (b) and (c) are read together, the inference is raised that the stowed cargo provisions refer to cargo carried below deck.

Second, it is evident from reading the maritime standards together that they use maritime terminology and words in their maritime senses. This is understandable, for the standards were written for maritime employers to comprehend and follow. I therefore find it [*26] significant that the only definition of "stow" referring specifically to cargo in R. Kerchove, International Maritime Dictionary 795 (2d ed. 1961), is "to arrange compactly the goods or cargo in a ship's hold, and 'tween decks." The other definitions ("to furl or roll up as a sail, an awning, and so forth" and "to put anything away for sea[; t]o put gear in its proper place") are more general, do not deal with cargo, and are therefore less pertinent. I also note that in L. Probst & K. DeGross, Transportation Dictionary 106 (1979), "stowage" is defined as "a marine term referring to the loading of freight into a vessel's hold." Indeed, the majority's broader definition in Seattle Crescent makes the word "stowed" superfluous, for all cargo is somehow put away on a ship and transported.

Third, Judge Chalk pointed out here what the Commission overlooked in Seattle Crescent: There is a standard in Part 1918 specifically dealing with the hazard of falling from deck loads -- section 1918.33, which is entitled "Deck loads." That section 1918.33 deals specifically with falling from deck loads signifies that section 1918.32 does not, since the use of different terminology in [*27] the standards is evidence that the Secretary made an intentional distinction. See Lankford v. LEAA, 620 F.2d 35 (4th Cir. 1980); United States v. Wong Kim Bo, 472 F.2d 720 (5th Cir. 1972). The majority's interpretation makes section 1918.33 superfluous and gives unintended breadth to section 1918.32.

The majority's reasons for dismissing the importance of section 1918.33 are specious. That section 1918.33 does not require fall protection in the particular circumstances of this case is beside the point. What is critical here is that section 1918.33 addresses the subject of falling from deck loads; whether it is sufficiently stringent to cover this case is not an appropriate inquiry. John T. Brady & Co., 82 OSAHRC 9/D10, 10 BNS OSHC 1385, 1386-7 n.7, 1982 CCH OSHD P25,941, p. 32,503 n.7 (No. 76-2894, 1982) (view of Chairman Rowland). See also Daniel Construction Co., 82 OSAHRC 23/A2, 10 BNA OSHC 1549, 1555, 1982 CCH OSHD P26,027, p. 32,675 (No. 16265, 1982). Section 1918.33 represents the considered judgment of the Secretary, arrived at after receiving the views of safety experts and affected persons, that protection from the hazard of falling from [*28] deck loads is warranted in some circumstances and unwarranted in others. See Daniel International, Inc., 82 OSAHRC 23/D3, 10 BNA OSHC 1556, 1558-59, 1982 CCH OSHD P26,033, p. 32,683 (No. 78-4279, 1982); A. Prokosch & Sons Sheet Metal, Inc., 80 OSAHRC 96/A2, 8 BNA OSHC 2077, 2082, 1980 CCH OSHD P24,840, pp. 30,629-30 (No. 76-406, 1980). To stretch section 1918.32 to cover gaps deliberately left by the Secretary is to negate that judgment. It is for the Secretary, not the Commission, to determine whether and how the gaps ought to be filled. Improvements to employee safety and health should not be accomplished by a strained interpretation of a standard. See Berglund-Cherne General Contractors, 82 OSAHRC 25/D9, 10 BNA OSHC 1644, 1646, 1982 CCH OSHD P26,039, p. 32,696 (No. 79-4374, 1982).

It was stated in Seattle Crescent that the emergence of containerized cargo has caused major adjustments in cargo transportation and longshoring operations since this standard was originally adopted under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901-950. If this is so, the standard may need revision. But it is not the role of the Commission to [*29] modernize the Secretary's standards. "The responsibility to promulgate clear and unambiguous standards is upon the Secretary." Bethlehem Steel Corp. v. OSHRC, 573 F.2d 157, 161 (3d Cir. 1978). I would therefore overrule Seattle Crescent and vacate this item of the citation.

COTTINE, Commissioner, dissenting in part:

I would affirm a violation of § 1918.32(b) in this case and would find that Chesapeake's hardhat violation was willful.

The admission of Mr. March's letter in evidence does not warrant a different result in this case than in Seattle Crescent Container Service, 79 OSAHRC 91/A2, 7 BNA OSHC 1895, 1979 CCH OSHD P24,002 (No. 15242, 1979), where the Commission unanimously affirmed a violation. Administrative agencies are not estopped from protecting the public interest because of the past mistakes of their agents. University of Pittsburgh, 80 OSAHRC 12/C11, 7 BNA OSHC 2211, 2218 n. 32, 1980 CCH OSHD P24,240, p. 29,502 n. 32 (No. 77-1290, 1980); Udall v. Oelschlaeger, 389 F.2d 974 (D.C. Cir.), cert. denied, 392 U.S. 909 (1968); Spencer v. Railroad Retirement Bd., 166 F.2d 342 (3d Cir. 1948); N.L.R.B. v. Baltimore Transit Co., 140 F.2d [*30] 51 (4th Cir.), cert. denied, 321 U.S. 795 (1944). Thus, the Secretary is not estopped from enforcing an otherwise valid standard according to its terms because of a mistaken interpretation issued by one of his agents. Of course, a party who has actually relied in good faith on a mistaken interpretation should not be penalized, though compliance with the law must be required. See General Electric Co., 81 OSAHRC 42/A2, 9 BNA OSHC 1722, 1729, 1981 CCH OSHD P25,345, p. 31,455 (No. 13732, 1981) (Cottine, Commissioner, concurring in part and dissenting in part) (monetary penalties are inappropriate where the employer lacks knowledge of a violation, though an abatement order may be entered.) However, there is no evidence that Chesapeake knew about Mr. March's letter or the opinions expressed in it until after the hearing when Chesapeake submitted the letter to the judge. Thus, there is no evidence that Chesapeake actually relied on Mr. March's letter in any way at the time of the alleged violation. As a result, Mr. March's letter does not affect this case.

There is no other due process bar to our applying the cited standard here as we did in Seattle Crescent. The standard [*31] is reasonably clear in its application to cargo stored on deck when read in light of the remedial purposes of the Act. The only maritime dictionary definitions of the word "stow" that have been urged in opposition to this view actually are consistent with it. See Seattle Crescent, supra. n1 Thus, standing alone, § 1918.32(b) gives a constitutionally adequate warning of its requirements.

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n1 Chairman Rowland's reliance on maritime dictionaries to support his concurrence in this case is mistaken, just as was the employer's reliance on them in Seattle Crescent. The Chairman quotes from R. de Kerchove, International Maritime Dictionary 795 (2d ed. 1961), but one of the three definitions of "stow" there is "to put anything away for sea." This definition is consistent with applying the term to deck cargo, as we stated in Seattle Crescent. The term "stowage" is a different term whose connotations do not control the meaning of the word "stow." Thus, the definition of "stowage" in L. Probst & K. De Gross, Transportation Dictionary 106 (1979), quoted by Chairman Rowland, does not necessarily limit the meaning of "stow." Also, that definition contrasts with the definition of "stowage" in the International Maritime Dictionary:

Stowage is that important branch of the art of seamanship which applies to the loading of a vessel and has for its aims the handling, placing and packing of goods, in such a manner as to ensure the preservation of crew and ship from danger and injury arising from the manner in which the cargo is stowed . . . .

Id. at 796. Nothing in that definition limits "stowage" to cargo below deck. It is erroneous to adopt a restrictive interpretation of the term "stow" where another reasonable interpretation is more consistent with the remedial purposes of the Act. See Seattle Crescent, supra.

[*32]

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Nor do any other factors preclude applying the standard to Chesapeake. The only factor cited by Commissioner Cleary is that "Mr. March's letter gives credence to Chesapeake's argument that the maritime industry was not aware that section 1918.32(b) applied to cargo stowed on deck when the violation occurred." Slip op., Part IC. However, Commissioner Cleary has not cited, and we have not found, any reference to this argument on review or before the judge. Furthermore, any argument that Chesapeake, or a reasonable person similarly situated, lacked fair notice of the standard's applicability to deck cargo is undermined by the fact that Chesapeake never raised that issue until after the hearing in this case when it submitted Mr. March's letter to the judge. Chesapeake's failure to raise the issue before becoming aware of the letter tends to indicate that the standard provided adequate notice of its requirements to Chesapeake. I would affirm the citation.

I would also conclude that the hardhat violation was willful. Bogdan, the ship foreman, had been placed in charge of 40 or more employees. He [*33] ordered some of the employees to work without head protection, knowing it to be a violation of the standard. This constitutes willful misconduct by a supervisor, and it is imputable to Chesapeake in this case.

It is clear that Bogdan was a supervisor. The fact that he was still in his probationary period and had limited responsibilities does not outweigh the fact that Chesapeake placed him in charge of 40 to 50 employees. Although Bogdan was not the supervisor in charge of the entire worksite, he was nevertheless the sort of managerial employee whose acts and knowledge may be imputed to his employer. See Safeway Stores, Inc., 77 OSAHRC 209/A13, 6 BNA OSHC 1176, 1977-78 CCH OSHD P22,400 (No. 14173, 1977) (produce manager was a supervisory employee); Georgia Electric Co., 77 OSAHRC 30/A2, 5 BNA OSHC 1112, 1977-78 CCH OSHD P21,613 (No. 9339, 1977) (assistant project manager and job superintendent both warned foreman of danger but foreman's willful disregard imputed to employer), aff'd, 595 F.2d 309 (5th Cir. 1979).

Chesapeake's reliance on the limited nature of the ship foreman's responsibilities is similar to that of the employer in Iowa Southern Utilities [*34] Co. ., 77 OSAHRC 32/C10, 5 BNA OSHC 1138 1977-78 CCH OSHD P21,612 (No. 9295, 1977). There, the Commission held that a "temporary working foreman" who had some degree of authority over the other crew members, including the power to order those steps necessary to complete the job properly, was a supervisor. The Commission stated, "It is the substance of the delegation of authority over other employees that is of primary importance, and not the title of the employee to whom the authority is given." 5 BNA OSHC at 1139, 1977-78 CCH OSHD at p. 25,945. The ship foreman alone was entrusted with the responsibility for the loading operation being performed on the pier and is therefore a supervisor.

The ship foreman's conduct was willful. Under Commission precedent willfulness is established by conscious, intentional conduct that shows disregard for or plain indifference to the requirements of the Act. Kus-Tum Builders, Inc., 81 OSAHRC 97/B2, 10 BNA OSHC 1128, 1981 CCH OSHD P25,738 (No. 76-2644, 1981). Chesapeake knew of the standard's requirements because it previously had been cited under it and had been warned about noncompliance on other occasions. Chesapeake gave all of its [*35] supervisors, including the ship foreman, copies of the standards and communicated the hardhat requirement in meetings, on signs throughout the workplace and in other ways. Also, it is clear that Bogdan knew that the law requires hardhats to be worn when he ordered the employees to begin working without them after the gang leader had requested additional hardhats. The record is replete with references to the opposition among longshoremen to wearing hardhats and to the controversy in the longshoring industry engendered by OSHA's enforcement of the hardhat requirement. As the senior applicant for the foreman's job, Bogdan was an experienced longshoreman familiar with the hardhat requirement.

The willful misconduct of a supervisor is imputed to his employer unless the employer shows that the misconduct was contrary to a consistently and adequately enforced workrule. Constructora Maza, Inc., 78 OSAHRC 6/E2, 6 BNA OSHC 1309, 1977-78 CCH OSHD P22,487 (No. 13680, 1978). The majority erroneously focuses on whether Chesapeake, taken as a corporate entity, engaged in willful misconduct. It implicitly requires the Secretary to show that Bogdan's misconduct was a common occurrence [*36] among Chesapeake's supervisors. Inasmuch as Bogdan was a supervisor, the question is whether Bogdan's misconduct was willful and, if so, whether Chesapeake has shown that his misconduct should not be imputed to it.

Chesapeake has established that it had a workrule requiring that hardhats be worn and that it had adequately communicated the rule by a number of methods. However, the record indicates that the rule was not effectively enforced. Longshoremen regularly failed to wear hardhats. Nevertheless, the evidence indicates that Chesapeake did not discipline the longshoremen unless they were specifically ordered to wear hardhats and refused. This indicates inadequate enforcement as does the conduct of the ship foreman. When Bogdan was informed by the gang leader that employees did not have hardhats, he issued instructions for the employees to begin work anyway. The majority nevertheless finds that Chesapeake's hardhat requirement was "vigorously enforced . . . in the face of employee opposition," citing the gang leader's conduct as demonstrating that Chesapeake's workrule was effectively communicated and enforced. It is much more significant, however, that the gang leader's [*37] superior felt free to instruct the employees to go ahead and violate the Act. "That a foreman feels free to breach a company safety policy is strong evidence that implementation of the safety policy is lax." Bill C. Carroll Co., 79 OSAHRC 87/C13, 7 BNA OSHC 1806, 1811, 1979 CCH OSHD P23,940, p. 29,033 (No. 76-2748, 1979). The fact that an employee in a position of responsibility thought that deviation from a safety workrule was acceptable conduct is persuasive evidence that a requirement to comply with the rule was not effectively enforced by the employer. See Western Massachusetts Electric Co., 81 OSAHRC 63/B13, 9 BNA OSHC 1940, 1945, 1981 CCH OSHD P25,470 at p. 31,766 (No. 76-1174, 1981).

Chesapeake argues that the ship foreman's lax behavior was not characteristic of its other supervisors' conduct. However, Chesapeake hired Bogdan for the job without any substantial check of his credentials. When Chesapeake finally inquired into his background, it received unfavorable reports. Chesapeake has not shown effective enforcement of safety rules where the record shows it hired a supervisor (even on a probationary basis) without determining his ability to perform the [*38] duties of his job, which include the enforcement of workrules designed to promote employee safety. n2 See National Realty & Construction Co. v. OSAHRC, 489 F.2d 1257, 1266-67 n. 37 (D.C. Cir. 1973). In view of this evidence, I cannot agree with the majority's finding that the rule was consistently and adequately enforced. Accordingly, because Chesapeake has not proven that the ship foreman's willful misconduct was unpreventable, that conduct is properly imputed to Chesapeake and the violation should be affirmed as willful.

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n2 Chesapeake argues that because Bogdan was referred by the union, Chesapeake should therefore not be responsible for Bogdan's misconduct. In its reply brief on review, Chesapeake asserts that under its contract with the union involved, its foremen are selected by the union. The record does not reveal whether Chesapeake is contractually required to employ any individual selected by the union. However, even if the contract so provided, Chesapeake could not be permitted to contract away its legal obligations under the Act. Central of Ga. R.R. v. OSAHRC, 576 F.2d 620, 624 (5th Cir. 1978). An employer has responsibility for providing a safe and healthful workplace and delegation of that responsibility to employees is inconsistent with the purposes and policies of the Act. PBR, Inc., v. Sec'y of Labor, 643 F.2d 890, 895 (1st Cir. 1981); Empire Detroit Steel Division v. OSHRC, 579 F.2d 378, 385 (6th Cir. 1978); Atlantic & Gulf Stevedores, Inc. v. OSHRC, 534 F.2d 541, 553-54 (3rd Cir. 1976). Chesapeake was responsible for the adequacy of the ship foreman's safety training and for his conduct on the job.

[*39]

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