International Transportation Service, Inc.

Plain-English summary

International Transportation Service operated a marine terminal where containers were being unloaded from a vessel. During an OSHA inspection, a hatch boss came to the unguarded edge of a hatch cover to speak with a senior manager and stood within three feet of a drop exceeding nine feet without fall protection. The judge found the compliance officer's distance estimate reliable, rejected the argument that a 16-inch deck lip eliminated the hazard, and held that the brief conversation was still work covered by the standard. The serious citation was affirmed because a fall to the steel deck could cause serious injury and supervisory personnel knew of the condition. Based on the exposure of one employee for less than two minutes, the judge reduced the proposed $975 penalty to $200.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1918.85(l)
• Outcome: The serious fall-protection item was affirmed, and the penalty was reduced from $975 to $200.
• Key point: A brief task at an unguarded edge remains covered work, and a narrow intermediate lip does not remove the fall hazard when it cannot serve as a safe adjoining surface.

Full text (OSHRC public release)

                                         United States of America
          OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                          1924 Building - Room 2R90, 100 Alabama Street, SW
                                      Atlanta, Georgia 30303-3104

Secretary of Labor,
Complainant,
v. OSHRC Docket No. 08-1428
International Transportation Service, Inc.,
Respondent.

Appearances:
Isabella M . Finnerman, Esquire, San Francisco, California
For Complainant

   W illiam N. Broo ks, II, Esquire, Lon g Beach , California
   For Respondent

Before: Administrative Law Judge Ken S. Welsch

                                     DECISION AND ORDER
   International Transportation Service, Inc. (ITS) operates a marine terminal facility at the Port

of Long Beach, California. On June 11, 2008, Occupational Safety and Health Administration
(OSHA) Compliance Officer John Reich inspected the ITS facility while containers aboard the
marine vessel “Shanghai Bridge” were being unloaded.
As a result of the OSHA inspection, ITS received a serious citation on August 21, 2008,
alleging a violation of 29 C.F.R. § 1918.85(l). The citation states the hatch boss was exposed to a
fall of 9 feet, 2 inches to a steel deck when he was working within 3 feet of the unguarded edge of
the hatch cover. The citation proposes a penalty of $975.00. ITS timely contested the citation.
The hearing, on April 8, 2009, was held in Long Beach, California. The parties stipulated
jurisdiction and coverage (Tr. 4). The parties filed post hearing briefs.
ITS denies the alleged violation of § 1918.85(l) and asserts that a fall hazard did not exist
and the hatch boss was not “working” at the time of his alleged exposure. ITS, also, denies the
serious classification and the reasonableness of the proposed penalty. ITS withdraws the
unpreventable employee misconduct defense alleged in its answer (Tr. 4-5).
For the reasons discussed, the violation of §1918.85(l) is affirmed and a penalty of $200.00
assessed.
The Inspection
ITS operates a marine terminal at the Port of Long Beach, California, loading and unloading
shipping containers for transport via marine vessels, over-the-road trucks or railroad. The
employees including foremen are members of the International Longshore and Warehouse Union.
The terminal employs 100 to 200 union employees depending on the number of vessels being loaded
or unloaded. ITS also employs superintendents and other management staff to oversee the
terminal’s operation. At the time of the OSHA inspection, William Carson was the ITS senior
manager of safety and security compliance (Tr. 63, 77, 80, 82).
On June 11, 2008, OSHA Compliance Officer Reich conducted a “planned” inspection of
the ITS terminal. He arrived at approximately 1:00 p.m. He held an opening conference with
Carson. After the conference, Reich and Carson went aboard the marine vessel “Shanghai Bridge”
which was being unloaded (Tr. 11-13, 36, 55).
Once on the main deck of the vessel, Carson called foreman Jack Russo, who was working
as the hatch boss on top of the hatch cover directing the unloading of containers, over to the edge
of the hatch cover to notify him of the OSHA inspection and inquire of any safety problems aboard
the vessel (Exhs. C-1, C-2; Tr. 15, 90, 114). The edge of the hatch cover was unguarded and Russo
was not wearing personal fall protection (Tr. 29, 31). The conversation between Carson and Russo
lasted less than 2 minutes (Tr. 39, 91). After the conversation, Russo resumed his work in the
middle of the hatch cover and was never again observed working near the edge (Tr. 39-40). The
hatch cover measured 9 feet, 2 inches above the main deck and was approximately 90 feet by 130
feet (Tr. 26, 106).
Upon observing Russo near the edge of the hatch cover, Reich testified he climbed one or
two rungs on a ladder leaning against the hatch cover. From this vantage point on the ladder which
Reich described as “a foot below the hatch cover surface,” Reich estimated Russo was 1 to 2 feet
from the edge. Reich, who did not access the top of the hatch cover, did not measure Russo’s
distance from the edge. Reich described Russo as a person of average height and a stocky build and
testified he was leaning over the edge of the hatch cover while talking to Carson. Reich estimated
he was approximately 10 feet from Russo and a foot below the hatch cover surface when he took

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the photographs (Tr. 22-23, 32, 39, 99, 103). No other employees were apparently observed near
an unprotected edge during OSHA’s inspection.
Carson testified that he did not believe Russo was within 3 feet of the unguarded hatch cover
edge when he was talking to him. Carson estimated that Reich was more than 20 feet from Russo
when he took the photographs (Tr. 93, 116).
Also, the record shows that the top of the hatch cover was approximately 2 to 3 feet above
the hatch deck (Tr. 26). With the hatch cover in place as during OSHA’s inspection, there was a 16­
inch lip of the hatch deck protruding below the top of the cover (Exh. C-3; Tr. 23, 25, 59). The lip
was unguarded (Tr. 29).
ITS was issued the serious citation on June 11, 2008, alleging the lack of fall protection as
required by 29 C.F.R. § 1918.85(l).
Discussion
In order to establish a violation of a safety standard, the Secretary has the burden of proving:
(a) the applicability of the cited standard, (b) the employer’s
noncompliance with the standard’s terms, (c) employee access to the
violative conditions, and (d) the employer’s actual or constructive
knowledge of the violation (i.e., the employer either knew or, with
the exercise of reasonable diligence could have known, of the
violative conditions). Atlantic Battery Co., 16 BNA OSHC 2131,
2138 (No. 90-1747, 1994).

   The parties agree that 29 C.F.R. Part 1918 is applicable to ITS longshoring activities aboard

the “Shanghai Bridge” in discharging the containers. Section 1918.85(l) is applicable to
containerized cargo operations. ITS does not dispute that if a violation is found, it had knowledge
of the condition. The hatch cover was unguarded and Russo was not utilizing personal fall
protection while talking to Carson at the edge of the hatch cover.
The issues in dispute are whether Russo was within 3 feet of the unguarded edge of the hatch
cover and whether Russo was exposed to a fall hazard because of the 16-inch hatch lip and the short
duration of the exposure. Also in disputes is whether Russo was “working” as required by the
standard when he was allegedly exposed to a fall hazard.
Alleged Violation of § 1918.85(l)

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   The citation alleges the hatch boss Russo was exposed to a fall of 9 feet, 2 inches to a steel

deck when he was working within 3 feet of the unguarded edge of the hatch cover. Section
1918.85(l) provides:
Working along unguarded edges. The employer shall provide, and
ensure that the employee use, fall protection meeting the
requirements of paragraph (k) of this section whenever the employee
works along an unguarded edge where a fall hazard exists (see §
1918.2).

   Section 1918.2 defines “fall hazard” as in the following situations:
             (1) Whenever employees are working within three feet (.91 m) of the
             unprotected edge of a work surface that is 8 feet or more (2.44 m)
             above the adjoining surface and twelve inches (.3 m) or more,
             horizontally, from the adjacent surface; or
             (2) Whenever the weather conditions may impair the vision or sound
             footing of employees working on top of containers.

   The Secretary agrees that subparagraph (2) of the “fall hazard” definition, involving the

weather conditions, does not apply in this case (Tr. 63). The weather during the OSHA inspection
did not impair the vision or footing of Russo while on top of the hatch cover.
In finding a violation of § 1918.85(l), the following discussion addresses the issues raised
by ITS.
Russo was Within Three Feet of the Edge
ITS contends OSHA failed to present sufficient evidence showing Russo was within 3 feet
of the unguarded edge. ITS argues Reich had an “affirmative obligation” to measure the distance
in question.
Despite Reich’s failure to take an actual measurement of Russo’s distance from the hatch
cover’s edge, the Court finds the Secretary has met her burden in establishing that Russo was within
3 feet of the edge when he conferred with Carson. ITS’s reliance upon Chief Judge Sommer’s
decision in Universal Maritime Service Corp., 20 BNA OSHC 1853, 1856 (No. 03-0399, 2004) for
the proposition that measurements must be made, is misplaced. In the Universal case, the
compliance officer’s estimate of 8 feet to the top of a container allowed no margin for error in
establishing a “fall hazard” which § 1918.2 defines as 8 feet or more. Also, a catwalk upon which
the employee was working when he fell, may have been “lower than the top of the container by 1

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to 3 inches.” Based upon the record in the Universal Maritime case, an accurate measurement was
crucial to establishing the violation.
In this case, Reich did measure the height of the hatch cover from the main deck to be 9 feet,
2 inches. Although he did not measure the distance Russo was from the edge, Reich’s estimate of
1 to 2 feet is well within the standard’s requirement of 3 feet from an unprotected edge (Tr. 22, 42).
Reich explained that he did not take a measurement on top of the hatch cover because of personal
safety concerns (Tr. 26).
Reich’s estimate of Russo’s closeness to the unprotected edge is accepted based on his
vantage point and a review of the photographs. The photographs show Russo at the unguarded edge.
From the angle of the photographs, only Russo’s feet are not shown. The photographs confirm
Reich’s observations regarding Russo’s exposure. Reich’s vantage point on a ladder approximately
10 feet to the side of where Russo was standing was sufficient for him to make this estimate (Tr. 39).
Also, his estimate is deemed reliable based on Reich’s 40 years of experience with the general
conditions aboard a vessel and his 10 years with OSHA estimating distances and measurements (Tr.
11, 22-23).
Carson’s testimony, on the other hand, is not given weight because he was on the main deck
standing below and looking up at Russo. He was more focused on his conversation with Russo and
not where Russo was standing. Considering Carson’s vantage directly below Russo and the 16-inch
lip of the hatch deck, Russo may have appeared further from the edge. In his deposition offered by
the Secretary, Russo was unable to recall his distance from the edge (Exh. C-4, p. 64, 66).
Reich’s estimate that Russo was less than 2 feet from the edge of the unguarded hatch cover
is accepted.
A Fall Hazard of 9 Feet Existed
ITS contends that a fall hazard did not exist because the work surface upon which Russo was
standing had a lower adjoining surface, the 16-inch lip of the hatch deck, that was less than 3 feet
below the top of the hatch cover. ITS argues the fall hazard was, therefore, less than 8 feet as
required by the definition of “fall hazard.”
ITS’s argument is rejected. The 16-inch lip of the hatch deck did not negate the fall hazard
of more than 9 feet to the main deck. The lip did not constitute a lower adjoining surface as
contemplated by the definition of “fall hazard.” The lip was unguarded and provided less than 3 feet

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of surface upon which an employee could fall. Reich testified that an employee who fell from the
hatch cover would probably fall to the main deck and not be able to land and stay on the 16-inch lip
(Tr. 32, 51).
The Secretary’s definition of “fall hazard” establishes less than 3 feet as the basis for
requiring fall protection to prevent a fall hazard. Therefore, the lip needed to be at least 3 feet or
more in order to be considered an adjoining surface. There is no official agency interpretation (Tr.
50). The Court, considering the Secretary’s responsibility under the Occupational Safety and Health
Act (Act) to provide a safe workplace, is applying a common sense interpretation. Any other
interpretation would render the definition vague if it considered the probability of an employee
falling off the lip due to its size or distance from the work surface.
Carson agreed. Carson testified that if Russo was within 3 feet of the unguarded edge of the
hatch cover, he would have considered Russo exposed to a fall hazard to the main deck (Tr. 117).

    The 16-inch lip did not constitute an adjoining surface and a fall hazard in excess of 8 feet

is established.
The Short Duration of the Exposure is Immaterial
There is no dispute that Russo’s exposure was of less than 2 minutes (Tr. 39, 91). However,
the short duration of an exposure does not negate a violation. Although Russo’s exposure may have
been comparatively brief, it is still sufficient to support the finding of a violation or its seriousness.
Flint Engineering & Construction Co., 15 BNA OSHC 2052, 2056 (No. 90-2873, 1992). An
accident can happen without notice.
Russo Was Working
ITS argues Russo was not “working” at the time he was observed by Reich at the unguarded
edge of the hatch cover talking to Carson. Carson testified the only reason Russo was near the
unguarded edge was to ascertain the identity of the OSHA inspector and whether there were any
safety concerns. Once that was done, Russo returned to his regular duties as hatch boss away from
the edge (Tr. 91, 113).
Carson asked Russo to come to the unguarded edge (Tr. 114). As a foreman, Russo was
working as a hatch boss directing the unloading of containers. Carson’s request was part of Russo’s
work responsibilities to know who was aboard ship and the reason (Tr. 88, 91). Russo was

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responding to a request of a senior manager. Also, Russo testified that during the conversation, he
was continuously looking over to the containers being loaded by the crane which was part of his
duties as the hatch boss. Russo’s exposure is considered work within the standard.
A violation of § 1926.760(a)(1) is established.
The Serious Classification
The violation of § 1918.85(l) is classified as serious. A violation is serious under
section 17(k) of the Act, 29 U.S.C. § 666(k), if it creates a substantial probability of death or serious
physical harm and the employer knew or should have known of the violative condition. The issue
is not whether an accident is likely to occur, but rather, whether the result would likely be death or
serious harm if an accident should occur. Whiting-Turner Contracting Co., 13 BNA OSHC 2155,
2157 (No. 87-1238, 1989).
The serious classification in this case is appropriate. Carson, who is a senior manager, knew
Russo was at the unguarded edge of the hatch cover without fall protection (Tr. 77). Also. Russo
was a foreman assigned to work as the hatch boss (Tr. 81, 88). Russo’s duties included directing
the unloading of the vessel. Carson’s and Russo’s knowledge of Russo’s exposure to an unguarded
edge is imputed to ITS. ITS concedes that Carson was aware of the 3-foot standard associated with
fall protection based upon his duties as senior manager of safety (ITS Brief, p. 3).
ITS is chargeable with knowledge of conditions which are plainly visible to its supervisory
personnel. A.L. Baumgartner Construction Inc., 16 BNA OSHC 1995, 1998 (No 92-1022, 1994).
When a supervisory employee such as Carson or Russo has actual or constructive knowledge of the
violation conditions, knowledge is imputed to the employer. Dover Elevator Co. 16 BNA OSHC
1281, 1286 (No. 91-862, 1993).
There is not dispute that an employee’s fall in excess of 9 feet to the steel main deck could
cause serious injuries including a fracture, contusion or concussion (Tr. 32-33, 117).
Penalty Consideration
The Commission is the final arbiter of penalties in all contested cases. In determining an
appropriate penalty, the Commission is required to consider the size of the employer’s business,
history of previous violations, the employer’s good faith, and the gravity of the violation. Gravity
is the principal factor to be considered.

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   ITS is a large employer with approximately 250 employees (Tr. 56, 80). It is entitled to

credit for history and good faith. There is no record of ITS receiving a citation for safety violations
within the preceding two years (Tr. 34). According to Reich, ITS has a good safety program. It is
noted that Reich’s four hour inspection of ITS facility found only one violation of OSHA standards.
A penalty of $200.00 is reasonable for violation of § 1918.85(l). One employee was exposed
for less than 2 minutes to a fall hazard in excess of 9 feet. Russo’s exposure was initiated by the
senior manager, but was the result of OSHA being on board. Other than this short duration of
exposure, there is no evidence Russo or any other employee was exposed to the unguarded edge of
the hatch cover.
FINDINGS OF FACT AND
CONCLUSIONS OF LAW

   The foregoing decision constitutes the findings of fact and conclusions of law in accordance

with Rule 52(a) of the Federal Rules of Civil Procedure.
ORDER
Based upon the foregoing decision, it is ORDERED that
Citation No. 1, Item 1, alleged serious violation of § 1918.85(l), is affirmed and a penalty
of $200.00 is assessed.

                                            /s/
                                           KEN S. WELSCH
                                           Judge

Date: June 26, 2009

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