SSA Pacific, Inc.

Read the official release (oshrc.gov)

Plain-English summary

SSA Pacific was unloading vehicles from a ship when someone tied a short plank to a midship gangway that had been designated unsafe and raised out of service. The plank lacked required rails and obstructed passage, and a superintendent used it while trying to have the condition corrected. The judge found that the longshoring standards covered the plank and that their terms were violated. OSHA did not prove how long the unexpected condition existed, while the company had directed workers to use a different entrance and had communicated and enforced that rule. Both citation instances were vacated because employer knowledge was not established and the superintendent's conduct was unforeseeable.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1918.22(b); 29 C.F.R. § 1918.22(g)
• Outcome: Both gangway citation instances vacated; no penalty assessed.
• Key point: An open condition does not establish constructive knowledge without evidence that it existed long enough for a reasonably diligent employer to discover it.

Full text (OSHRC public release)

                      United States of America
      OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

                  Complainant,                            OSHRC Docket No. 14-1450

                         v.

SSA PACIFIC, INC.,

                  Respondent.

Appearances:

   Niamh E. Doherty, Esq., U.S. Department of Labor, Office of the Solicitor, San Francisco,
   California,
        For Complainant

   Joseph M. Galosic, Esq., Law Offices of Joseph M. Galosic, Irvine, California,
       For Respondent

Before: Administrative Law Judge Peggy S. Ball

                                DECISION AND ORDER

I. Procedural History

   This proceeding is before the Occupational Safety and Health Review Commission (“the

Commission”) under section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C.

§ 659(c) (“the Act”). On July 30, 2014, the Occupational Safety and Health Administration

(“OSHA”) conducted an inspection of Respondent’s worksite, which was located at the Port of

Benicia, Benicia, California. (Tr. 10). Respondent was engaged in longshoring operations,

which, on the day of the inspection, involved the discharge of over 1,600 General Motor vehicles

from the marine vessel known as the Madame Butterfly. (Tr. 31; Exs. C-1). OSHA issued a

Citation and Notification of Penalty (“Citation”) to Respondent alleging two serious violations
and a proposed penalty of $2,550.00. Respondent timely contested the Citation. The case was

designated for Simplified Proceedings pursuant to Subpart M of the Commission Rules of

Procedure. See 29 C.F.R. § 2200.200 et seq.

      The trial took place on May 27, 2015, in Los Angeles, California. Four witnesses

testified at trial: (1) Lisa Trecartin, Compliance Safety and Health Officer (“CSHO”); (2) Dustin

Sullivan, Respondent’s Lead Superintendent; (3) Jason Coelho, another superintendent for

Respondent; and (4) Matt Bekes, Respondent’s Terminal Manager. Both parties timely

submitted post-trial briefs. After reviewing the parties’ arguments and the record, the Court

issues the following Decision and Order.

II.      Stipulations 1

      The parties stipulated to the following:

1. The worksite or job site was located at Port of Benicia, Benicia, California on or about

July 30, 2014.

2.    Inspection Number 987333 was conducted by the Occupational Safety and Health

Administration at Port of Benicia, Benicia, California, on July 30, 2014.

3. The regulation at 29 C.F.R. § 1918.22 is at issue.

4. The regulation at 29 C.F.R. § 1952.172 is at issue.

III. Factual Background

      On July 30, 2014, Respondent, a longshoring company, was in the process of discharging

over 1,600 motor vehicles from the marine vessel Madame Butterfly. (Tr. 31). That same day,

pursuant to its Local Emphasis Program (LEP) on longshoring operations, Complainant

1. The parties’ stipulations can be found in the parties’ Joint Stipulation Statement, which was filed with the Court
   on May 15, 2015. These stipulations were read in open court and can be found on page 10–11 of the transcript.

                                                    2
   

   dispatched CSHOs Lisa Trecartin and Jack Reich 2 to Respondent’s worksite, which was located

at berth 95 in the Port of Benicia. (Tr. 30; Ex. C-1). After conducting an opening conference, the

CSHOs proceeded to inspect Respondent’s work operations, which included carbon monoxide

exposure testing, a review of OSHA 300 logs, and observation of the discharge process. (Tr. 31–

32). Most of the inspection took place inside the ship, which was accessed by the stern ramp at

the back (aft) of the vessel. (Tr. 30, 66, 131; Ex. C-1). It was not until CSHO Trecartin exited

the vessel and returned to Respondent’s dockside office that she observed a plank that had been

haphazardly lashed to the gangway 3 at the midpoint of the ship (midship), roughly 300 feet away

from the stern ramp. (Tr. 33–34; Ex. C-1, C-2, C-5, C-6). This plank had been lashed to the

gangway in an apparent attempt to facilitate entry onto the gangway, which, without the plank,

rested two-to-three feet above the dock. (Tr. 102–104; Ex. C-5, C-6, C-7). After observing an

unidentified individual wearing a green vest and Superintendent Coelho utilize the ramp, CSHO

Trecartin determined that a violation had occurred.

    On the morning of July 30, 2014, Dustin Sullivan, Respondent’s lead superintendent,

boarded the Madame Butterfly by using the gangway described above. (Tr. 134). At that time,

the gangway (sans plank) was flush with the “bull rail”, which is a raised curb at the edge of the

dock. (Tr. 134–35). Sullivan boarded the ship to perform his daily walkthrough and to meet with

the Chief Mate of the ship to exchange paperwork and discuss any issues of concern. (Tr. 133–

34, 143). On this particular day, Sullivan and the Chief Mate determined they would not be able

to use the gangway due to obstructions, the rising tide, and the fact that the winch that controls

the height of the gangway was broken and could not lower the gangway any further. (Tr. 144–

2. CSHO Reich did not testify at hearing.
3. At various points in the transcript, the “gangway” was also referred to as the “accommodation ladder”.
   According to 29 C.F.R. § 1918.22, a “gangway” is “any ramp-like or stair-like means of access provided to enable
   personnel to board or leave a vessel, including accommodation ladders, gangplanks, and brows.” For the sake of
   simplicity, the Court shall refer to the ladder as a gangway.

                                                  3
   

   46). Accordingly, at the request of Sullivan, the Chief Mate agreed to raise the gangway so that it

could not be used as a point of ingress or egress. (Tr. 146–47).

    After meeting with the Chief Mate, Sullivan met with his walking bosses, who were

responsible for directing the work of the union labor. 4 (Tr. 126). During that meeting, Sullivan

discussed any unusual circumstances with the vessel, how the operation would be implemented,

and in what order vehicles would be removed from the vessel. (Tr. 125). One of the

superintendents, also known as the lead dock boss, was in charge of giving a safety talk at the

beginning of the shift, when the longshoremen arrived. (Tr. 128; Ex. R-4, R-5). According to

Sullivan, the safety talk on July 30, 2014 included a discussion of the proper means of access to

the vessel—the stern ramp—which did not include the gangway. (Tr. 147–148, 152). The other

superintendents, as well as the terminal manager, were notified about the gangway issues as well.

(Tr. 161).

    The longshoremen who work for Respondent are not permanent employees. (Tr. 124).

Instead, they report to their local union hall in the morning, line up, and wait for their names to

be called. (Tr. 124). When called, they receive a ticket, which indicates to whom they will report

and where they need to do so. (Tr. 124). The longshoremen provide those tickets to the lead

walking boss, who records their names in a log for the purposes of payroll. 5 (Tr. 155; Ex. R-7).

After reporting to the walking boss, the longshoremen participate in the aforementioned safety

talk and then report to their workstations on the ship. (Tr. 125, 130).

    CSHO Trecartin arrived after discharge operations had begun. After meeting with Bekes,

CSHO Trecartin was on board the Madame Butterfly approximately four hours. (Tr. 72). After a

4. The walking bosses are also longshoremen who report to a local union hall; however, they report to a different
   hall than the longshoremen engaged in general labor. (Tr. 125).
5. The longshoremen report to the walking bosses (also union labor), who in turn report to the superintendents,
   which are permanent employees of Respondent. (Tr. 117, 125, 215–18).

                                                  4
   

   lunch break, Bekes asked Coelho to take CSHO Trecartin to the observation deck at the top of

the ship. (Tr. 210). The easiest way to accomplish this was by way of the elevator next to the

gangway entrance. (Tr. 180–81). Coelho drove CSHO Trecartin down to the gangway entrance

from the dock office, which was located by the stern ramp. When they arrived at the gangway,

Coelho and CSHO Trecartin observed it had been lowered and a plank had been attached to its

lower edge. (Tr. 181). CSHO Trecartin asked whether any of Respondent’s employees used the

gangway, and Coelho told her that only the ship’s crew members used that entrance. 6 (Tr. 36).

Due to the gangway’s condition, Coelho and CSHO Trecartin drove back to the stern ramp and

entered from there. (Tr. 181). As they entered the vessel via the stern ramp, Coelho spoke with a

crew member and asked him to raise the gangway so that it could not be accessed. (Tr. 182). In

addition, Coelho walked to the gangway entrance (from the inside) and checked the door, which

was padlocked. 7 (Tr. 183).

    After Coelho and CSHO Trecartin exited the ship, Coelho left CSHO Trecartin at the

dock office. Although the actual sequence of events is not entirely clear, there is no dispute that,

at this time, CSHO Trecartin observed an individual wearing a neon vest access the gangway to

enter the ship. (Tr. 36–37; Ex. C-3, C-4). Shortly thereafter, she also observed Coelho walk up

the gangway as well. (Id.). Coelho acknowledged that he made a mistake by accessing the

gangway with the short ramp attached, but testified that he was only attempting to quickly abate

the hazard identified by CSHO Trecartin. (Tr. 185). CSHO Trecartin pointed out the violation to

Bekes, who recognized the issue and directed the crew of the ship to remove the plank from the

6. The ship’s crew members are not employees of Respondent.
7. According to Sullivan, Coelho and Bekes, Respondent’s employees do not have access to the controls that lower
   or raise the gangway, nor do they have keys to unlock the door at the top of the gangway. (Tr. 133, 139, 192, 204–
   205)

                                                   5
   

   gangway, which abated the hazard. (Tr. 58, 215, 222). Coelho was disciplined by Respondent

for accessing the gangway in that condition. (Tr. 219).

     At the conclusion of the inspection, CSHO Trecartin advised Bekes that she would be

recommending the issuance of a citation for the gangway. The Citation was issued on August

26, 2014.

IV. Jurisdiction

     Respondent disputes that Complainant has jurisdiction over the cited condition.

Specifically, Respondent contends that the plank, which is not a permanent fixture of the vessel,

falls under CalOSHA jurisdiction because the plank “was portable, not part of the ship’s means

of access and merely led to or connected the ship’s means of access to the dock.” Resp’t Br. at 4.

In other words, Respondent asserts Complainant’s jurisdiction ends at the bottom of the

gangway, and CalOSHA’s jurisdiction begins at the plank. The Court disagrees.

     Longshoring operations are defined as “loading, unloading, moving or handling of cargo,

ship’s stores, gear, or any other materials, into, in, on, or out of any vessel” and are governed by

Part 1918 of the Code of Federal Regulations. 29 C.F.R. § 1918.2. A “gangway” is defined as

any ramp-like or stair-like means of access provided to enable personnel to board or leave a

vessel, including accommodation ladders, gangplanks, and brows.” Id. (emphasis added). On

the face of it, Respondent’s activities on July 30, 2014 were subject to Complainant’s

jurisdiction, and the gangway should be regulated as such.

     Respondent contends, however, that the plank is neither part of the ship nor part of its

regular means of access and, therefore, not subject to Complainant’s jurisdiction. This argument

is specious at best. According to 29 C.F.R. § 1952.172, which outlines the contours of the

jurisdictional agreement between Complainant and CalOSHA, “The U.S. Department of Labor

                                             6

will continue to exercise authority, among other things, with regard to . . . longshore operations

on vessels from the shore side of the means of access to said vehicles.” 29 C.F.R. §

1952.172(b)(2)(i). This understanding is reflected in the recently revised agreement between

Complainant and CalOSHA, which preserves federal jurisdiction over “[l]ongshore operations

on all vessels from the shore side of the means of access to said vessels.” (Ex. C-8).

   To suggest, as Respondent has, that the plank in this case is not part of the shore side of

the means of access is absurd. It matters not whether the plank was a permanent fixture of the

boat or whether the definition of “gangway” includes portable items that connect a ship’s means

of access to the dock. Regardless of whether the definition of “gangway” includes explicit

references to portable items or temporary steps, the definition is expansive enough on its face to

cover the plank at issue in this case. As noted above, a “gangway” refers to “any ramp-like or

stair-like means of access provided to enable personnel to board or leave a vessel, including

accommodation ladders, gangplanks, and brows.” 29 C.F.R. § 1918.2 (emphasis added). The

definition starts by providing broad-based categories of implements that can be used as a means

of access; in fact, by the use of the term “any”, the definition casts as broad a stroke as possible.

The subsequent examples provided—accommodation ladders, gangplanks, and brows—are not

intended to establish the limits of what is regulated by Part 1918; rather, they are merely

examples of ramp-like or stair-like means of access.

   The plank that was lashed to the accommodation ladder may not be a permanent part of

the vessel, but that is of little consequence—the definition provides no indication that the shore

side means of access must be a permanent part of the ship. Rather, at its most basic, the plank is

a ramp-like means of access that was intended to enable personnel to access the vessel from the

shore side. This was made clear by the fact that CSHO Trecartin observed two individuals use

                                             7

the plank to access the ship. (Ex. C-3, C-4). To suggest otherwise would disregard the expansive

definition of “gangway” provided by 29 C.F.R. § 1918.2. Further, the plank, though not

physically a part of the ladder, was intentionally lashed to it to facilitate access onto the vessel.

In other words, the Court views the plank as nothing more than an extension of the access point

to the vessel, which, under the terms of the regulations, constituted the means of access from the

shore side to the vessel. Accordingly, the Court finds that Complainant properly asserted

jurisdiction over the condition.

    Additionally, based on the record, the Court finds that it has jurisdiction over this

proceeding and that Respondent was an employer engaged in a business affecting commerce

within the meaning of § 3(5) of the Act, 29 U.S.C. § 652(5). Slingluff v. OSHRC, 425 F.3d 861

(10th Cir. 2005).

V. Applicable Law

    To establish a violation of an OSHA standard, Complainant must establish that: (1) the

standard applies to the facts; (2) the employer failed to comply with the terms of the standard;

(3) employees were exposed to the hazard covered by the standard, and (4) the employer had

actual or constructive knowledge of the violation (i.e., the employer knew, or with the exercise

of reasonable diligence could have known, of the violative condition). Atlantic Battery Co., 16

BNA OSHC 2131, 2138 (No. 90-1747, 1994).

VI. Discussion

       A. Citation 1, Item 1

    Complainant alleged a serious violation of the Act in Citation 1, Item 1a as follows:

    29 CFR 1918.22(b): Each side of the gangway, and the turntable if used, did not
    have a hand rail with a minimum height of 33 inches (0.84 m) (measured
    perpendicularly from rail to walking surface at the stanchion) and a mid-rail.




                                             8

a. Port of Benicia, “Madame Butterfly”, Berth 95, third hatch – On 7/30/14 it
was observed that a plank over water and leading to the accommodation
ladder of PCC Madame Butterfly, was not equipped with handrails thereby
creating a fall hazard.

   The cited standard provides:

   Each side of the gangway, and the turntable, if used, shall have a hand rail with a
   minimum height of 33 inches (.84 m) measured perpendicularly from rail to
   walking surfaces at the stanchion, with a midrail. Rails shall be made of wood,
   pipe, chain, wire, rope, or materials of equivalent strength and shall be kept taut
   always. Portable stanchions supporting railings shall be supported or secured to
   prevent accidental dislodgment.

29 C.F.R. § 1918.22(b).

               i. The Standard Applies

   According to the scope and application paragraph of Part 1918, “The regulations of this

part apply to longshoring operations and related employments aboard vessels.” 29 C.F.R. §

1918.1(a). The Court previously found, and the parties do not dispute, that Respondent was

engaged in longshoring operations on the day of the inspection. Further, as discussed above in

Section IV, supra, the Court also finds that the makeshift plank and accommodation ladder,

taken as a whole, constitutes a gangway for the purposes of 29 C.F.R. § 1918.22(b). Thus, the

Court finds that the standard applies.

               ii. The Terms of the Standard were Violated

   Further, the Court has no problem finding that the terms of the standard were violated.

Insofar as the plank was a part of the gangway, it is subject to the same requirements as the

accommodation ladder to which it was attached. That means, pursuant to 29 C.F.R. § 1918.22(b),

the plank was required to have a suitable handrail and midrail, which it did not have.

Accordingly, the Court finds that the terms of the standard were violated.

                                            9

iii. Respondent Did Not Know, nor Could it Have Known, of the
Violative Condition

   The essence of this case hinges on the question of knowledge. Complainant offers two

separate bases upon which knowledge can be found. First, Complainant contends that the

condition was open and obvious and, therefore, should have been seen by Respondent. Second,

Complainant contends that Respondent had direct knowledge of the condition because Coelho,

one of Respondent’s superintendents, actually walked up the unprotected gangway. In response,

Respondent argues that it had no reason to believe that the condition existed because Sullivan

had discussed the issue with the vessel’s Chief Mate, who had agreed to raise the gangway to

prevent access to it—and had, in fact, done so prior to the beginning of Respondent’s operations.

Further, as to Coelho’s knowledge, Respondent contends that it would be improper to impute his

knowledge of his own wrongdoing to Respondent because it was not foreseeable that he would

access the gangway. For slightly different reasons, the Court agrees with Respondent that

Complainant failed to establish actual or constructive knowledge of the violation.

   As a general rule, “[t]he actual or constructive knowledge of an employer’s foreman can

be imputed to the employer.” Dun Par Engineered Form Co., 12 BNA OSHC 1962, 1965 (No.

82–928, 1986). “An employee who has been delegated authority over other employees, even if

only temporarily, is considered to be a supervisor for the purposes of imputing knowledge to an

employer.” Paul Betty, d/b/a Betty Brothers, 9 BNA OSHC 1379, 1381–82 (No. 76–4271,

1981). Thus, Complainant “establishes a prima facie showing of knowledge by proving that a

supervisory employee was responsible for the violation.” Aquatek Systs., Inc., 21 BNA OSHC

1400 (No. 03-1351, 2006). However, Respondent may rebut Complainant’s prima facie showing

of knowledge “with evidence that it took reasonable measures to prevent the occurrence of the

violation.” Id. (citing Dover Elevator, 16 BNA OSHC 1281, 1286 (No. 91-862, 1993)). “In

                                            10

particular, the employer must show that it had a work rule that satisfied the requirements of the

standard, which it adequately communicated and enforced.” Id.

   With respect to Complainant’s argument that Respondent could have known of the

condition due to its open and obvious nature, the Court finds that Complainant failed to establish

how long the condition existed. In response to Respondent’s claim that the condition did not

exist for any appreciable amount of time, Complainant, citing to L.R. Willson & Sons, Inc.,

argued even brief exposure to a hazard can constitute a violation and that duration of exposure is

more properly considered in the penalty assessment context. Compl’t Br. at 8 (citing L.R. Willson

& Sons, Inc., 773 F.2d 1377 (D.C. Cir. 1986). First, the holding in L.R. Willson regarding the

duration of exposure had nothing to do with the issue of constructive knowledge; rather, it

addressed the applicability of competing fall protection standards and determined that the

duration of the hazard does not impact the determination of whether the terms of the standard

were violated. L.R. Willson, 773 F.2d at 1386. Second, whether brief exposure to a hazard can

constitute a violation says nothing about whether a condition existed long enough for

Respondent to be aware of it. Third, contrary to Complainant’s argument, the Commission has

held that the length of time that a condition exists has a direct impact on whether Respondent

could have, with the exercise of reasonable diligence, known of the condition. See Cranesville

Block Co., Inc./Clark Division, 23 BNA OSHC 1977 (No. 08-0316 et al., 2012) (holding that

complainant’s failure to introduce evidence regarding length of time condition existed,

respondent’s inspection program, or its exercise of reasonable diligence precluded a finding of

constructive knowledge).

   In this case, Respondent utilized every possible opportunity to prevent the occurrence of

this hazard. Sullivan discussed the gangway with the ship’s Chief Mate upon his arrival onsite.

                                           11

The Chief Mate agreed to raise the gangway to prevent its use and did so. Sullivan

communicated this issue to the walking boss in charge of the daily safety talk, which is given to

the longshoremen prior to the beginning of work. This message was communicated to all

longshoremen and Respondent’s full-time employees, such as Bekes and Coelho. Employees

were admonished to use the stern ramp where the vehicles were being unloaded, and not to use

the gangway, which was located at midship. (Tr. 147–48, 152). This admonition appears to have

been followed because nobody, not even the CSHO, observed a violation until the afternoon,

which was hours after the inspection began. (Tr. 64–67). No evidence was tendered to establish

when or by whom the gangway was lowered or when the plank was tied to the bottom of the

gangway. There simply was no credible evidence to suggest that the violative condition of the

gangway existed long enough that Respondent’s representatives could have noticed it but failed

to do so. At the point when Coelho did become aware of the condition, he acted immediately to

remedy it. Thus, there was no independent evidence to suggest constructive knowledge should be

imputed to Respondent.

    That said, it is clear that Coelho had actual knowledge of the hazardous condition on the

gangway. Not only did he observe the hazard, but, in an attempt to abate it, he ended up

exposing himself to it. (Ex. C-4). Coelho testified that part of his duties as superintendent

includes the supervision of the longshoremen, their work, and ensuring they are working safely.

(Tr. 172). Thus, as stated by the Commission in Aquatek, Complainant established a prima facie

showing of knowledge “by proving that a supervisory employee was responsible for the

violation.” Aquatek, 21 BNA OSHC 1400. However, that prima facie showing can be rebutted

by Respondent “with evidence that it took reasonable measures to prevent the occurrence of the

violation.” Id.

                                           12

As noted above, Respondent instituted a work rule, which required longshoremen to use

the stern ramp for ingress/egress and to avoid the gangway ramp at midship. (Tr. 147–48, 152).

This rule was designed to prevent the use of a gangway when such use was unsafe and was

implemented whenever there was an impediment to lowering the gangway at midship. 8 (Tr. 139).

In this particular case, the Chief Mate and Sullivan noted multiple impediments, including the

bollard, 9 the broken winch, and the rising tide. As a result, the decision was made to raise the

gangway to make it unavailable for use. That decision was then communicated to everyone,

from the ship’s crew to Respondent’s superintendents to the longshoremen. Thus, all of

Respondent’s employees had been informed the gangway was supposed to be raised and the

proper means of ingress and egress was the stern ramp. Given this communication, and in light

of the fact that the gangway entrance was over 300 feet away from Respondent’s primary work

area, the Court finds Respondent acted with reasonable diligence to prevent the occurrence of

these violations.

     Further, the testimony was undisputed that this particular configuration was an outlier—

in other words, all of Respondent’s witnesses testified that they had never previously seen a

plank strapped to the end of the gangway. (Tr. 169–70, 222–23). Thus, in terms of enforcement,

Respondent had not been confronted with the need to discipline anyone for a violation of this

particular work rule prior to this occurrence. See Aquatek, 21 BNA OSHC 1400 (“[The

foreman] normally monitored his employees’ compliance with safety rules by making daily visits

to worksites, and had never discovered employees violating [respondent’s] fall protection rule.”);

see also Dover Elevator, 16 BNA OSHC at 1287 (holding that increased efforts to monitor

8. The Commission has never required an employer to reduce its safety rules to writing. See Capform, Inc., 16 BNA
   OSHC 2040, 2043 (No. 91-1613, 1994) (Commission does not require safety rules to be written as long as rules are
   clearly and effectively communicated to employees).
9. A bollard is a short, thick post that is located on the dock. The lines from the ship are secured to the bollard in
   order to keep the ship secured to the dock. (Tr. 138; Ex. C-4, C-5, C-7).

                                                    13
   

   employee compliance not required where employees involved had good safety record and had

not previously been found in violation of safety rules). Coelho took it upon himself to access

this ramp in an attempt to abate the condition, which was the first documented instance of an

employee violating Respondent’s work rule. In response, Coelho received a verbal reprimand

for abrogating the rule. (Tr. 219).

   Under this particular set of facts, the Court finds Respondent should not be charged with

knowledge, actual or constructive, of the hazardous condition. At the point when the condition

was discovered by CSHO Trecartin, Coelho was the only representative of Respondent who was

aware of the condition, or who even could have been aware of the condition through the exercise

of reasonable diligence. Acting with good intentions, and a fair amount of haste, Coelho

exposed himself to the hazardous condition on the gangway in order to abate such condition. His

actions in that moment were contrary to a clear and adequately communicated work rule, which

Respondent had not previously needed to invoke as a basis for discipline because it had not

encountered this unusual circumstance. The Court does not find these facts establish Respondent

had knowledge of the hazard and failed to prevent the violation from occurring.

              iv. Respondent’s Employees were Exposed to the Hazard

     Although it is clear that at least one of Respondent’s employees—Coelho—was

exposed to the violative condition, in the interests of being complete the Court here addresses

Complainant’s arguments regarding the other “employee” CSHO Trecartin saw using the

gangway and also the gangway’s potential use as an emergency exit.

   “To establish exposure, ‘the Secretary . . . must show that it is reasonably predictable

either by operational necessity or otherwise (including inadvertence), that employees have been,

are, or will be in the zone of danger.’” Delek Ref., Ltd., 25 BNA OSHC 1365 (08-1386, 2015)

                                           14

(citing Fabricated Metal Prods., Inc., 18 BNA OSHC 1072, 1074 (No. 93-1853, 1997)). See also

Gilles & Cotting, Inc., 3 BNA OSHC 2002 (No. 504, 1976).

    One of the key elements of the foregoing test is that the individual exposed must be an

employee. The individual CSHO Trecartin observed walking on the gangway/plank contraption

was not specifically identified at the time of the violation, nor did CSHO Trecartin undertake any

further investigation to identify the purported employee in the neon vest. 10 Bekes testified that

the ship’s crew members—who are not employees of Respondent—were on the ship at the time

of the inspection. 11 (Tr. 223). Without more information regarding the individual’s identity, the

Court cannot determine whether that person was an employee of Respondent or a crew member.

Thus, the Court finds that Complainant failed to prove employee exposure to the hazard based

upon the presence of the worker in the neon vest.

    As to Complainant’s argument that employee exposure to the hazard was reasonably

predictable by virtue of potential use of the gangway as an emergency exit, the Court is equally

suspect. According to the safety talk given on the morning of July 30, 2014, Respondent’s

employees were directed to use the nearest exit during an emergency, including the gangway.

Thus, on the face of it, Respondent’s employees could have been exposed to the makeshift,

hazardous gangway plank if an emergency had occurred. However, as Coelho testified, the

gangway exit from the ship was padlocked from the inside. In the event of an emergency, this

exit would have been unavailable to Respondent’s employees. As such, it was not reasonably

predictable that an employee could have been exposed to the hazard. This conclusion is

10. No explanation was established as to why this individual was able to enter the ship through a door which
    Respondent employees testified they could not enter because it was locked.
11. In fact, according to Bekes, each of the entryways onto the ship is required to be manned by a crew member for
    security purposes. (Tr. 223).

                                                   15
    

    bolstered by the fact that Respondent’s employees were told not to use the gangway, which was

over 300 feet away from the designated entrance, during work operations.

   In light of Complainant’s failure to establish actual or constructive knowledge of the

hazardous condition, the Court finds that Complainant failed to prove a violation of the cited

standard. Accordingly, Citation 1, Item 1a is hereby VACATED.

       B. Citation 1, Item 1b

   Complainant alleged a repeat violation of the Act in Citation 1, Item 1b as follows:

   29 CFR 1918.22(g): Gangways were not kept clear of supporting bridles and
   other obstructions which impeded employee passage.

   a. Port of Benicia, “Madame Butterfly”, Berth 95, third hatch – On 7/30/14 it
      was observed that a plank leading to the accommodation ladder of PCC
      Madame Butterfly obstructed the landing platform adjacent to the ladder
      thereby contributing to a fall hazard.

   The cited standard provides:

   Gangways shall be kept clear of supporting bridles and other obstructions, to
   provide unobstructed passage. If, because of design, the gangway bridle cannot
   be moved to provide unobstructed passage, then the hazard shall be properly
   marked to alert employees of the danger.

29 C.F.R. § 1918.22(g).

   The foregoing citation item is also directed at the plank described in Citation 1, Item 1a.

See Section VI.a, supra. In this instance, however, Complainant alleges that the plank created an

obstruction to the accommodation ladder, thereby creating a trip-and-fall hazard. (Ex. C-5, C-6).

Although the Court agrees the plank appears to present an obstruction to the gangway that could

pose a tripping hazard, the Court finds Complainant has failed to prove a violation for the same

reasons described above in Section VI.a.iii, supra. Accordingly, Citation 1, Item 1b is hereby

VACATED.

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VII. Affirmative Defenses

     In addition to asserting that it did not have knowledge, actual or constructive, of the

violative condition, Respondent has also claimed that the violation was the product of

unpreventable employee misconduct. Although the Court has already determined that the

foregoing citation items should be vacated, it nonetheless addresses the employee misconduct

defense, because it provides additional impetus for vacating the citation items alleged by

Complainant.

     The defense of unpreventable employee misconduct requires “that the violative conduct

of the employee was idiosyncratic and unforeseeable.” L.E. Meyers Co., 16 BNA OSHC 1037,

1040 (No. 90-945, 1993). In order to prevail on this defense, Respondent must prove that: (1) it

has work rules designed to prevent the violation; (2) that it has adequately communicated those

rules; (3) that it has taken steps to discover violations; and (4) that it has effectively enforced the

rules when violations were discovered. Burford’s Tree, Inc., 22 BNA OSHC 1948 (No. 07-1899,

2010).

     As discussed above, the Court has already found that Respondent had a work rule

designed to prevent the violations and adequately communicated such rule to supervisors and

rank-and-file employees. See Section VI.a.iii, supra. The Court also found that the rule was

effectively enforced when violations were discovered. Although Respondent did not introduce a

hard copy of its disciplinary policy, Bekes testified that such a policy was in place with respect to

his full-time employees, who were the superintendents. (Tr. 215). Respondent’s policy has

graduated methods of discipline, ranging from verbal to written, that can lead to termination.

Bekes testified he has fired employees for violations in the past. (Tr. 215). Bekes also testified

that the process is somewhat similar with respect to the union labor (longshoremen), though he

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admitted that when a longshoreman is “fired” it usually means that they are fired from the

employer they are working for that day but that they will just go back to the union hall for a

different assignment the next day. (Tr. 216–17). In either case, Respondent’s witnesses testified

that it does not have an extensive history of discipline on this rule because it had never been an

issue until the day of the inspection. That said, in this instance, Respondent acted consistently

with its stated enforcement policy by disciplining Coelho for accessing the make-shift plank in

an attempt to abate the hazard. See Aquatek, 21 BNA OSHC 1400 (holding that reprimand of

foreman after discovering he had violated safety rule demonstrates effective enforcement).

   Finally, the Court also finds that Respondent took reasonable steps to discover violations

of the work rule at issue. As Sullivan testified, not only did he meet with the Chief Mate to

discuss and remedy the gangway issue, but he also testified that he, as well as other

superintendents, performed a walk-through of the vessel to ensure that everything was in order

and that no hazards were present. The superintendents, as well as longshoremen, were informed

of the gangway issue and were directed to use only the stern ramp for accessing and exiting the

ship. Further, Respondent employs its superintendents, as well as walking bosses, to observe the

work being performed to ensure that it is done safely and in accordance with procedure. (Tr.

120–26, 176).

   Supervisor Coelho’s attempt to protect employees and remedy the hazard by using the

defective gangway to ask a crew member through the ship entrance to raise the gangway back up

to an unusable posture constitutes the sum and substance of established employee exposure. As

noted above, the gangway entrance was located 300 feet away from the stern ramp entrance

where Respondent’s work was being performed, and the longshoremen had been directed to use

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only the stern ramp. 12 There was no evidence that this rule had ever been violated in the past,

nor was there any reason to believe that anyone working for Respondent should reasonably have

been expected to use the gangway to perform their work. 13 According to CSHO Trecartin, her

interviews revealed that Respondent’s employees were well-versed in their jobs and the rules

that governed them. (Tr. 32). See Dover Elevator, 16 BNA OSHC at 1287 (holding that

increased efforts to monitor employee compliance not required where employees had good safety

record and had not previously been found in violation of safety rules). When Coelho observed

the condition, he immediately informed a member of the crew to have it remedied. Based upon

this set of facts, the Court is not convinced Respondent could have taken any additional actions

to prevent this condition from occurring. Even though a supervisor’s involvement in a violation

typically indicates that an employer’s safety program is lax, in this instance the Court finds

Coelho’s actions to be idiosyncratic, unforeseeable, and inconsistent with the work rule

governing access to the gangway.

12. Respondent’s superintendents actually drove a vehicle between the stern ramp and the gangway (which was
    adjacent to the main office) due to the distance. (Tr. 179, 181, 189).

13. The same cannot be said of the vessel’s crew; however, they are not employees of Respondent.

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    ORDER

    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. Based upon the foregoing

Findings of Fact and Conclusions of Law, it is ORDERED that:

1. Citation 1, Item 1a, and its associated penalty, are hereby VACATED.

2. Citation 1, Item 1b is VACATED.




   SO ORDERED


                                              /s/
                                              Peggy S. Ball
                                              Judge, OSHRC

Date: December 7, 2015
Denver, Colorado

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