Rio Doce Pasha Terminal L.P., and its successors

Plain-English summary

Rio Doce Pasha Terminal was unloading steel plate from the vessel Jupiter Light when OSHA observed a longshoreman remaining in the open hold as a load was hoisted overhead. The judge found the worker was in the load's danger zone even if he was not directly beneath it because a failed sling could scatter steel plates across the hold. A foreman in the hold could see the exposed worker and nevertheless signaled the crane operator to continue the lift. The company had a general safety instruction to take a safe position around cargo-handling equipment, but it did not produce the signed documentation of its safety talk or evidence showing efforts to discover and enforce compliance. The unpreventable employee misconduct defense therefore failed. The serious violation was affirmed, and the proposed $2,250 penalty was reduced to $1,500 because only one worker was exposed briefly, most of the crew had taken cover, and the company had no prior OSHA violations.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1918.81(k) (employees must stay clear of overhead drafts and descending lifting gear)
• Outcome: Affirmed. The serious suspended-load violation was affirmed with a $1,500 penalty.
• Key point: The danger zone of a suspended steel load includes areas where plates could scatter after rigging failure, and a general safety rule alone does not establish employee misconduct without proof of monitoring and enforcement.

Full text (OSHRC public release)

                                                                        United States of America
                                      OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                                             1244 North Speer Boulevard, Room 250
                                                                 Denver, Colorado 80204-3582


Phone: (303) 844-3409                                                                                           Fax: (303) 844-3759



  SECRETARY OF LABOR,
                            Complainant,

                                 v.                               OSHRC DOCKET NO. 00-0046
  RIO DOCE PASHA TERMINAL L.P., and its
  successors,
                             Respondent.



APPEARANCES:

            For the Complainant:
                     Stephanie E. Russell, Esq., Office of the Solicitor, U.S. Department of Labor, Los Angeles, California

         For the Respondent:
                  Johnathan L. Wolff, Esq., Timothy M. Gill, Esq., Kelly Gill, Sherburne & Herrera, San Francisco,
California

Before:                 Administrative Law Judge: Benjamin R. Loye

                                               DECISION AND ORDER

            This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C.
Section 651 et seq.; hereafter called the “Act”).
            Respondent, Rio Doce Pasha Terminal L.P., and its successors (RDP), at all times relevant to
this action maintained a place of business on the Vessel JUPITER LIGHT, Berth 145, where it was
engaged in stevedoring. On November 16, 1999 the Occupational Safety and Health Administration
(OSHA) conducted an inspection of RDP’s JUPITER LIGHT work site. As a result of that inspection,
RDP was issued a “serious” citation alleging violation of §1918.81(k) of the Act, together with
proposed penalties. By filing a timely notice of contest RDP brought this proceeding before the
Occupational Safety and Health Review Commission (Commission).
            On March 20, 2000, a hearing was held in San Diego, California. At the hearing, OSHA
Compliance Officer (CO) Jay Larsen testified, without contradiction, that RDP is an employer engaged
in a business affecting commerce and is subject to the requirements of the Act (Tr. 11-12).
        The parties have submitted briefs addressing the violation alleged at citation 1, item 1, and this
matter is ready for disposition.




                                                  Alleged Violations
        Serious citation 1, item 1 alleges:
29 CFR 1918.81(k): The employer did not require employees to stay clear of suspended loads.
        (a)   Rio Doce Pasha Terminal aboard the vessel Jupiter Light. Employees discharging cargo
        from Hatch #4 did not stay of clear the suspended load.

Facts
        CO Larsen testified that on November 16, 1999 he conducted an inspection of RDP’s workplace
aboard the JUPITER LIGHT (Tr. 11). Larsen testified that during the inspection he observed
employees working in a hold, off-loading cargo consisting of plate or sheet steel (Tr. 13, 107). The
employees had placed slings around the load, which was then hoisted out of the hatch (Tr. 13-14).
Larson stated that one longshoreman, identified only as Louie, failed to vacate the area beneath the load
as it was hoisted (Tr. 14-16, 107; Exh. C-1). Larson believed that the longshoreman was getting ready
to sling another load or to pull out some of the 2 x 4's used as spacers (Tr. 15). CO Larson testified
that the load could have fallen directly on the exposed longshoreman. Alternatively, had a sling broken,
the steel plates would have separated and fallen all over the hatch, striking the exposed employee (Tr.
16). Larson testified that Louie should have gone under the wings that overhang the hatch while the
load was being hoisted (Tr. 18, 106-07).1
        CO Larson testified that he pointed out the exposed employee to RDP’s vessel superintendent,
Justin Holmquist (Tr. 75-76, 83).2 Larson stated that the superintendent called down into the hold, and
the longshoreman moved under the wings (Tr. 23). Larson testified that he photographed the exposed
employee as he moved under cover; Larson stated that the load had been hoisted approximately 25 feet
at that point (Tr. 105, 108-09).3


           1
             On rebuttal, CO Larson agreed with RDP’s witnesses that climbing the dock side framework of the hull
   would have been inappropriate (Tr. 67, 87, 106-07).

           2
            Holmquist testified that it was he who accompanied CO Larson on his walkaround, not Barry Pate as
   CO Larson testified (Tr. 12, 23, 29, 83).

           3
               This judge finds that CO Larson’s estimate as to the height of the load conforms to the photographic
                                                                                                              (continued...)

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         Holmquist confirmed that he called down to the foreman in the hold, asking him to make sure
that everybody stayed clear of the load (Tr. 90). Holmquist did not believe that the cited employee was
directly under the load, but could not explain why he was in the open in the hold rather than under the
wings with the other stevedores (Tr. 90-91, 94).
         Holmquist testified that when RDP is discharging steel sheeting, the longshoremen stand over
the load to be hoisted. The crane operator then lowers a spreader bar, which supports “drop legs,” to
which two slings are attached (Tr. 79). One or two employees grab each sling and place them
underneath the load (Tr. 79). The longshoremen then back away, and the foreman contacts the crane
operator, who will “set tight,” i.e., lift the load approximately six feet off the floor of the hold to ensure
that it is level and properly set (Tr. 79-80, 98). Once it is determined that the load is properly set and
balanced, the foreman clears his men away from the load, and the crane operator begins hoisting the
load up and away from the longshoremen (Tr. 80, 86).
          Holmquist stated that there was a foreman in the hold (Tr. 91). Larson stated that the hatch
boss, or foreman, would have been able to see that the longshoreman identified as Louie was still
exposed to the suspended load (Tr. 21).
Discussion
         The cited standard provides that “[t]he employer shall require that employees stay clear of the
area beneath overhead drafts or descending lifting gear.” RDP argues that the Secretary failed to show
1) that its employee was ever underneath a load, or 2) that it failed to require its employees to stay clear
of overhead loads.
         The Violation. In order to prove a violation of section 5(a)(2) of the Act, the Secretary must show by a
preponderance of the evidence that (1) the cited standard applies, (2) there was a failure to comply with the cited standard, (3)
employees had access to the violative condition and (4) the cited employer either knew or could have known of the condition with
the exercise of reasonable diligence. See, e.g., Walker Towing Corp., 14 BNA OSHC 2072, 2074, 1991-93 CCH OSHD
¶29239, p. 39,157 (No. 87-1359, 1991).
         The Secretary has made out a prima facie case, in that the evidence shows that the longshoreman, Louie, was not clear
of the area where a load was being drawn overhead, and so was exposed to hazard the standard was intended to address.
         Employee exposure. RDP argues that the Secretary failed to show that the longshoreman Louie was directly
beneath the load being hoisted, pointing to CO Larson’s photograph, which was submitted as Exh. C-1. However CO Larson
testified, and it is clear from the photograph, that the exposed employee had already begun to move towards cover at the time the

         3
             (...continued)
   evidence and so gives his testimony credence over Holmquist’s “guesstimate” of six feet (Tr. 99).

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photograph was taken, after Larson observed the employee in the hold, and after superintendent Holmquist called down into the
hold. Moreover, in this case, it is not necessary for the Secretary to establish the exposed employee’s exact position in order to
establish the cited violation. It is well established that for the Secretary to establish employee exposure to a hazard, she must only
show that it is reasonably predictable that employees have been, are, or will be in the “zone of danger.” Fabricated Metal
Prods., 18 BNA OSHC 1072, 1998 CCH OSHD ¶31,463 (No. 93-1853, 1997). The zone of danger is “that area surrounding the
violative condition that presents the danger to employees which the standard is intended to prevent.” RGM Constr. Co., 17
BNA OSHC 1229, 1234, 1993-95 CCH OSHD ¶30,754, p.42,729 (No. 91-2107, 1995). CO Larson testified, without
contradiction, that in the event of an accident the steel plates being hoisted would not necessarily fall straight down, but could
ricochet around the hold. Larson’s testimony establishes that the exposed employee was in the zone of danger contemplated by the
standard.
            Employee misconduct. RDP further argues that it does require its employees to stay clear of
the area beneath loads being hoisted. Superintendent Holmquist stated that prior to every job he goes
over RDP’s safety rules with the foremen (Tr. 80, 82, 92). Point number seven on Holmquist’s safety
talk states: “All persons are reminded to be aware of their work area and to always take a safe position
when working around cargo handling equipment.” (Tr. 82, Exh. R-2). Nonetheless, the evidence
establishes that there was a foreman in the hold at the time of the violation who could see the exposed
longshoreman. That foreman signaled the crane operator to proceed with his lift without first requiring
that all the longshoremen vacate the hold.
            Though RDP does not specifically raise the issue of employee misconduct, this judge notes that
in order to establish an unpreventable employee misconduct defense, the employer must establish that it
had: 1) established work rules designed to prevent the violation; 2) adequately communicated those
work rules to its employees (including supervisors); 3) taken reasonable steps to discover violations of
those work rules; and 4) effectively enforced those work rules when they were violated. New York
State Electric & Gas Corporation, 17 BNA OSHC 1129, 1995 CCH OSHD ¶30,745 (No. 91-2897,
1995).
            The only evidence RDP submitted in support of an employee misconduct defense was
Holmquist’s testimony that he did cover the safety rules contained on the vessel safety talk sheet,
submitted as Respondent’s Exhibit 2, prior to the start of the JUPITER LIGHT job (Tr. 92). Holmquist
testified that a signed and dated documentation of his talk was submitted to RDP’s safety manager (Tr.
92). Holmquist could not explain RDP’s failure to produce the signed, dated copy (Tr. 92, 95).
            RDP’s showing is inadequate to make out the affirmative defense of unpreventable employee
misconduct.


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Penalty
        A penalty of $2,250.00 was proposed for this item.
        Larson testified that, in the event of an accident, the falling steel plates would probably crush
and kill an exposed employee (Tr. 23-24). The violation was, therefore, properly classified as “serious.”
Larson stated that he felt the severity of the hazard was high, though the probability of an accident
occurring was lesser (Tr. 24). Larson calculated a 10% reduction in the size of the penalty because
RDP had no history of prior OSHA violations (Tr. 24).
        Only one employee was exposed to the cited hazard, for a matter of seconds. Though RDP
failed to make out an employee misconduct defense, it did establish its good faith, in that it had a work
rule designed to prevent the cited violation. Moreover, the majority of the crew in the hold had taken
cover in compliance with RDP’s safety policy and the OSHA regulation.
        Taking into account the relevant factors, I find that a penalty of $1,500.00 is appropriate and
will be assessed.
                                                      ORDER

1.      Citation 1, item 1, alleging violation of 29 CFR 1918.81(k) is AFFIRMED, and a penalty of $1,500.00 is
        ASSESSED.




                                                                     /s/
                                                               Benjamin R. Loye
                                                               Judge, OSHRC

Dated: May 30, 2000




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