Luis A. Ayala Colon Sucrs., Inc.
Repeat safety-shoe violation at a Puerto Rico pier affirmed, $320
Apply this to your situation
This order from 1994 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.
Plain-English summary
Luis A. Ayala Colon Sucrs., Inc. was a stevedoring company unloading a vessel at the Ponce Municipal Pier in Puerto Rico. During a May 1993 inspection, an OSHA compliance officer saw two stevedores working on the pier apron, close to trucks and cargo slings, without safety shoes. The company settled all items except one repeat citation for not directing employees to wear safety shoes. The company argued the officer confused work on the ship, where safety shoes were only encouraged, with work on the apron, where the stricter marine terminal standard required them, and that it had directed its workers to wear the shoes. Administrative Law Judge Irving Sommer credited the officer's testimony, found the employer presented no witnesses to rebut it, and held that one memo directing safety shoes was dated after the citation. Because the same company had a prior final order for the identical violation, the judge classified this one as repeated. The citation was affirmed with a $320 penalty.
Decision snapshot
- Cited standard(s): 29 C.F.R. § 1917.94(a)
- Outcome: The one litigated item, a repeat safety-shoe violation, was affirmed with a $320 penalty; all other items were resolved by partial settlement.
- Key point: Work on a pier apron is governed by the stricter marine terminal standard, which requires the employer to direct and enforce safety-shoe use; a prior final order for the same violation supports a "repeat" classification.
Full text (OSHRC public release)
UNITED STATES Of AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COt/!ib!lSSlON
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 2003643419
SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 93-1863
LUIS A. AYALA COLON SUCRS., INC.
Respondent.
NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Re art in the above referenced case was
docketed with the Commission on July f 8, 1994. The decision of the Judge
will become a final order of the Commissron on August 29, 1994 unless a
Commission member directs review of the decision on or before that date. Ak
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such etition should be received b the Executive Secretary on or before
August 1? ) 1994 in order to ermit sud cient time for its review. See
Commission Rule 91, 29 C.3 .R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
.Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOH.
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
havmg questions about review nghts may contact the Commission’s Executive
Secretary or call (202) 606-5400.
Date: July 28, 1994
DOCKET SO. 934563
NOTICE Is GIVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Re ‘onal Trial Liti ation
gi:kitor, U.S. DOI&
Office of the SO
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
Patricia Rodenhausen, Esq.
Re ional Solicitor
Of&e of the Solicitor U.S. DOL
201 kick, Room 707
New York, NY 10014
Jose A. ‘Silva-Confersi, Esq.
Fiddler, Gonzalez & Rodnquez
Attorneys and Counsellors at Law
P.O. Box 363507
San Juan, PR 00936 3507
Irvin Sommer
Chie P Administrative Law Judge
Occupational Safety and Health
Review Commission .
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419
00017984501:02
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIE W COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419
..
.. a
SECRETARY OF LABOR,
..
Complainant, l
.
..
.
v. l
Docket No. 934863
..
LUIS A. AYALA ..
COLON SUCRS., INC., ..
.
Respondent. ..
.
.
Appearances:
. Jane S. Brunner, Esq. Jose A. Silva Cofresi, Esq.
U.S. Department of Labor Fiddler, Gonzalez & Rodriguez
New York, New York San Juan, Puerto Rico
For the Complainant For the Respondent
Before: Administrative-Law Judge Irving Sommer
This is a proceeding under Section IO(c) of the Occupa-
tional Safety and Health Act of 1970, 29 U.S.C. section 651 at
seer* J (“the Act" >, to review citations issued by the Secretary
of Labor pursuant to section 9(a) of the Act, and the proposed
assessment of penalties therein issued, pursuant to section 10(a)
of the Act.
-2-
Respondent is a corporation which was engaged in
stevedoring and related activities. On or about May 13, 1993,
the worksite at Pier Number 8, Ponce Municipal Pier, Ponce,
Puerto Rico was inspected by an OSHA compliance officer.
Subsequently, on June 11, 1993) the company received two
citations resulting from this inspection. Respondent filed a
timely notice of contest to the citations and penalties.
Thereafter, the parties reached a partial settlement, resolving
all issues except Citation 2, item 1. A hearing was held on
December 9, 1993, in Hato Rey, regarding the Puerto Rico,
remaining issue. Both parties were represented at the heari&
and both parties have filed post-hearing briefs. Ho s
jurisdictional issues are in dispute. The matter is now before
.
the undersigned for a decision on the merits.
At the hearing on December 9, 1993, the compliance
officer, Radames Sant isteban, testified that at the time of the
inspection, the Respondent was engaged in unloading containers
from a vessel, the Nedlloyd Neellandia. The compliance officer
noted that during the inspection, he observed two stevedores
employed by the Respondent who were working on the apron of the
pier, but were not wearing safety shoes. The employees were
working on the apron attending the cargo that was coming down
from the vessel to be locked onto the chassis and connecting the
slings to the spreader-bar. Mr. Santisteban further testif ied
that the employees were exposed to being hit by the slings of the
wheels of trucks and chassis in the area. These employees were
only inches away from the trucks and chassis (transcript,
l?. 6-10, Secretary's brief, p. 2-4).
- 3-
The Secretary asserts that 1 clearly Respondent violated
the cited standard as it failed to direct its employees to wear
safety shoes on the date in question. The employees were readily
exposed to the hazard of falling objects or puncture hazards.
Respondent could have known and should have observed that its
employees were working on the apron without wearing safety shoes.
In addition, Respondent’s violation of the standard cited is
characterized as repeated, as the company was previously
cited
for the very same violation by OSHA on September 7, 1980. In the
previous case (Docket No. W-2651), the same violation was
affirmed and resolved by the parties in a settlement agreement
which became a final order of the Commission on Mar 6, 1991. -
(exhibits, C-5, C-6, C-7). Further, the Secretary’s cat38 is
.
supported by photographic evidence (exhibits, C-l and C-Z),
t bough admittedly the compliance officer took the pictures of
Respondent’s employees on the vessel rather than on the apron of
the pier, where he saw the violation of the standard cited. The
compliance officer explained that he had merely forgotten to take
additional pictures of the same employees working on the apronI
who had previously been working on the vessel.
At the hearing, the compliance officer argued that the
employees he observed not wearing safety shoes were working on
the apron of the pier and not ‘just on the ship. This assertion
is significant as activity on the ship is governed by 29 C.F.R.
section 1918, while activity on the apron of the pier is covered
by 29 C.F.R. section 1917. The relevant standard under 29 C.F.R.
section 1918’is less strict in that it only mandates an employer
to make safety shoes available to its employees and promote their
use. The relevant standard under 29 C.F.R. section 1917 more
strictly mandates an employer to require its employees to wear
safety shoes and have an enforcement policy to ensure their use.
The compliance officer also noted that he met with
two of Respondent's supervisory officials, Mr. Martinez and Mr.
Bennazar. He discussed with them the necessity of having the
employees working on the apron of the pier wear safety shoes.
During his testimony, Mr. Santisteban noted that though tennis
shoes, as those worn by the employees, could sometimes be
characterized as safety shoes, the specific tennis shoes that he
saw Respondent's employees wearing while working on the apron
were not safety shoes in this
sure of this instance. He could be
as he had touched the toes of the shoes that the men were wearing
and determined that they were not protected with steel shields to
qualify them as safety shoes (transcript, p. 11-32, Secretary's -
brief, p. 4-9).
Respondent asserts that it is not guilty of violating
the standard as cite,d here. The Respondent argues that the
Secretary’s case is based solely on the testimony of the
compliance officer, Radames Santisteban, who conducted the
inspection. Respondent asserts that the compliance officers
testimony at the very least is inconsistent and not supported by
the weight of evidence in this case.
First, Mr. Santisteban claims to have seen Respondent’s
employees working on the dock without wearing safety shoes.
However, the only evidence produced by the compliance officer to
support this claim are two photos of Respondent's employees
working on board the vessel wearing tennis shoes. Mr .
Santisteban even acknowledges that the photos do not in
themselves depict a violation, as employees working on board the
vessel are not even required to wear safety shoes by the
applicable standard. Further, Mr. Santisteban’s explanation of
why he did not take additional photos Respondent’s
of employees
actually working. on the dock without wearing safety shoes, that
he merely forgot as he simply got caught up in the inspection, is
not very plausible considering the vast experience of the
compliance officer.
Second, Mr. Santisteban had no proof to support his
testimony that he observed Respondent’s same employees do work &I
the vessel then go down and do work on the apron of the pier. -
Clearly, the compliance officer is mistaken about what he saw as
.
Respondent’s employees are divided into work gangs t each
responsible for doing work in a different area. For example, the
stevedores who work on board the vessel do not work landside as
well.
Third, the compliance officer offered no proof that the
tennis shoes that were worn by Respondent’s employees working on
the apron were not in fact safety shoes in conformance with the
standard. His mere assertion that the shoes worn by the
employees were not safety shoes does not prove that there was a
violation.
Finally, Respondent argues that since the standard
requires that the employer direct its employees to wear safety
shoes, it has complied with the standard. To support its claim
of compliance, Respondent refers to exhibits C-3 and C-4, which
are two memorandums to its employees from its Operations Manager
regarding the wearing of safety shoes. In addition, Respondent
submitted exhibits R-l - R-5 to support its case (transcript, p.
33-41, Respondent's brief, p. 2-5).
Repeat Citation 2, item 1 alleges:
The employer did not direct that employees exposed to
impact, falling objects, or puncture hazards wear safety shoes,
or equivalent protection.
L
The primary question to consider here is whather or not
the Respondent violated the particular standard for which it was a
cited.
The Secretary asserts that during his inspection he
observed Respondent's employees working on the apron of the pier
without wearing the required safety shoes in violation of the
cited standard. Further, Respondent did not direct its employees
to wear the required safety shoes.
Respondent argues that it was not in violation of the
standard as its employees were not working on the apron without
safety shoes. Further, it directed its employees to wear safety
shoes in compliance with the standard.
In this case, it is evident from a review of all the
record evidence) that though Respondent disagrees with the
testimony presented by the compliance officer, the Respondent
presented no witnesses whatsoever to refute the compliance
officer’s view that Respondent’s employees were indeed working on
the apron of the pier date of the inspection.
on the Also,
Respondent produced no evidence to support its claim that its
workers were wearing safety shoes on the day in question.
Another question to consider is whether or not
Respondent l ‘directed” its employees to wear safety shoes.
The Respondent asserts that it did “direct” its
employees to wear safety shoes. The Secretary counters that
Respondent did not “direct” its employees to wear safety shoes.
The term “direct” is defined
Third New in Webster’s
International Dictionary (p. 640, 1986) as to supervise and guide:
or to prescribe by formal or mandatory instruction. In thij:
matter, since the standard cited does not elaborate any exotic3
definition for the term “direct”, I understand the terar to be
used as commonly understood and utilized.
Both parties touched on this issue at the hearing and
in their post-hearing briefs. In addition, the two exhibits (C-3
and C-4) which the company submits show that the Respondent did
direct its employees to wear safety shoes are not persuasive to
that position. Exhibit C-3 does not drect. the employees to wear
safety shoes, as it only Den& that employees wear safety
shoes. Exhibit C-4 daes direct that employees wear safety shoes,
but it is dated May 18, 1993, a date after the citation was
issued in this case. Consequently, the totality of the evidence
leads to the conclusion that Respondent did not ’ direct” its
employees to wear safety shoes.
A final question to consider is whether or not the
violation is properly classified as repeated.
As the Commission has previously held, a repeated
violation is established if, at the time of the alleged repeated
violation, there was a Commission final order against the Same
employer for a substantially similar violation. See Skwetar\r 04.
.
at 3 '7BNA OSHC 1061 (No. 16183, 1979).
A review of this case record as well as Commission precedent
reveals that this same Respondent was previously cited for the
very same violation by OSHA on September 7, 1990. In the
previous case (Docket No. QO-2851), the same violation was
affirmed and resolved by the parties in a settl8ln8Slt agreement
which became a final order of the Commission on May 6, 1991
(exhibits, C-5, C-6, C-7). Accordingly, the violation is -
properly classified as repeated.
Despite Respondent's protestations to the contrary, the
facts in this case indicate that the company was in violation of
29 CAR. section 1917.94(a). Clearly, it has been shown that
the employer here failed to direct its employees to wear safety
shoes while working on the apron on the date of the inspection.-
compliance officer in this
The case gave his testimony
in a straightforward, frank and convincing manner and appeared to
be truthful and honest. Mr. Santisteban's testimony is
sufficient to make out a prima facie case of a violation of the
standard at issue. His testimony was not discredited in any way,
nor contradicted by direct evidence, nor by any legitimate
inferences from the evidence.
Therefore, taking into consideration all the record
evidence and credible testimony presented regarding this
citation, I find that the Secretary has established a violation
of the standard by a preponderance of the evidence presented.
- 9-
The evidence further reflects that the Respondent knew or should
have known of the hazard to its employees. The violation was
obvious and discernible by mere observation. A review of all the
relevant factors, the hearing transcript, and the original case
record fully establishes that a penalty of $320 is appropriate
for this citation.
All findings of fact and conclusions of law relevant
and necessary to a determination of the contested issues haite
been found specifically and appear herein. See Rule 52(a) of the -
Federal Rules of Civil Procedure. Proposed Findings of Fact or
. Conclusions of Law inconsistent with this decision are denied.
Based upon the Findings of Fact, Conclusions of Law, and the
entire record, it is hereby ordered:
1. Citation 2, item 1, alleging a repeat violation of 29
C.F.R. section 1917.94(a), is affirmed and a penalty of
$320 is assessed.
\\
L+-4
IRVING SOMMER
-
Judge, OSHRC
Washington, D.C.
Get today's answer for your situation
You just read what one judge decided for one employer in 1994, and it binds only those parties. Ezel checks the current OSHA standards and Commission precedent and answers your specific situation, with citations.
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