BEFORE THE
OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
DEPARTMENT OF INDUSTRIAL RELATIONS
STATE OF CALIFORNIA

In the Matter of the Appeal of:

MARINE TERMINALS CORPORATION
1601 Pier D Street
Long Beach, CA 90802

                                         Employer

Docket No. 95-R3D5-896

 

 

           DECISION AFTER
           RECONSIDERATION

The Occupational Safety and Health Appeals Board (Board), acting pursuant to authority vested in it by the California Labor Code, and having granted the petition for reconsideration filed in the above-entitled proceeding by the Division of Occupational Safety and Health (the Division) makes the following decision after reconsideration.

JURISDICTION

From September 16, 1994 through February 15, 1995, a representative of the Division conducted an accident investigation at a place of employment maintained by Marine Terminals Corp. (Employer) at 1830 John Gibson Boulevard, San Pedro, California (the site). On February 17, 1995, the Division issued to Employer Citation No. 1, alleging a general violation of section 3466(h) [releasing locks before lifting container from trailer or chassis] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations. The Division proposed a $600 civil penalty for the alleged violation.

Employer filed a timely appeal from the citation contesting the existence of the violation. An administrative law judge (ALJ) of the Board heard the appeal on December 8, 1995, and March 1, 1996. At the hearing, Employer's appeal was amended to include the independent employee action defense.

The independent employee action defense relieves employers of responsibility for violations by employees who "act against their employer's best safety efforts." (Mercury Service, Inc., OSHAB 77-1133, Decision After Reconsideration (Oct. 16, 1980), at page 2.)

To establish the independent employee action defense an employer must prove affirmatively all five of these elements:

1. The employee was experienced in the job being performed;

2. The employer has a well-devised safety program which includes training employees in matters of safety respective to their particular job assignments;

3. The employer effectively enforces the safety program;

4. The employer has a policy of sanctions against employees who violate the safety program; and

5. The employee caused a safety infraction which he or she knew was contra to the employer’s safety requirements." (Ibid. p.3.)

The parties stipulated that the employees involved in the incident giving rise to issuance of the citation were experienced in the jobs they were performing and that Employer had a well devised safety program, satisfying the first two elements. The parties also stipulated that the only contested issue before the Board was whether Employer met the other three elements of the defense.

The ALJ issued a decision dated July 1, 1996, finding that Employer proved the three contested elements of the independent employee action defense and deciding that Employer was relieved of responsibility for the violative act or condition.

On August 1, 1996, the Division filed a petition for reconsideration. On August 30, 1996, Employer filed an answer. On September 3, 1996, the Board issued an order granting the Division's petition for reconsideration and staying the ALJ's decision.

EVIDENCE

In making this decision, the Board relies upon its independent review of the entire evidentiary record in this case, including the tape recordings of the hearing and the exhibits admitted into evidence that are relevant to the issues raised by Employer in its petition for reconsideration. The Board adopts and incorporates by this reference the summary of evidence set forth on pages 2 through 5 of the decision of the ALJ.

SUMMARY OF FACTS

Employer is a stevedoring company primarily engaged in loading and unloading intermodal containers carried on large cargo vessels. On September 9, 1994, a hammerhead crane operator, a signalman, two swingmen, and a truck driver were attempting to lift a container from a truck drawn, chassis-type carriage or trailer on the dock into the mid-ship hold of a cargo vessel. Other employees loading the forward and aft holds were conducting similar operations. Two foremen or dock bosses were supervising the work of the three crews or gangs conducting the operations.

Terry Ann Alverez was driving the truck carrying the container. When the truck reached the loading area, the four corners of the container were secured to the chassis with locking pins. A swingman was stationed on each side of the chassis. One of a swingman's primary responsibilities was to release the two locking pins on his or her side of the chassis so the container could rise freely when lifted by the crane. A swingman failed to fully release one of the locking pins at the front end of the container.

It was the signalman's duty to ensure that the locking pins were released before signaling the crane operator to lift the container. The signalman did not see that one of the lock pins was still engaged and signaled the crane operator to lift the container. Alverez, the driver, was in the truck cab. Since the container was secured to the chassis at one corner, the crane lifted the chassis, along with the container, off the dock. The unreleased or partially unreleased pin on the chassis slipped out of the pin holding device on the container when the chassis had been lifted approximately six feet above the dock. When it dropped back onto the dock, Alverez fell from the truck cab and was injured.

Employer is a member of the Pacific Maritime Association (PMA). PMA is an association of employers who load and unload ships at West Coast ports. A collective bargaining agreement (contract) between PMA and its member employers and the International Longshoremen's and Warehousemen's Union (ILWU) was in effect. Pursuant to section 17.81 of the contract, Employer filed complaints against the swingmen, the signalman, and the crane operator.

As a consequence of the filing of the complaints, the employees who had been dispatched from the PMA-ILWU hiring hall were removed from Employer's job and were ineligible for dispatch to Employer's work sites until the complaints were resolved. The crane operator, a permanent employee, was reassigned to a smaller crane and allowed to continue working.

The complaints were referred to the Joint Labor Relations Committee for adjudication. At the request of Employer's Regional Operations Manager (operations manager), the PMA official who chaired the committee convened a special meeting that the employees were required to attend. Two casual employees whose complaints were to be addressed at a separate proceeding were excepted from attendance.

At the special meeting, the operations manager admonished the employees, and they expressed remorse over the injuries to Alverez, the truck driver. Thereafter, with the agreement of the PMA and ILWU committee members, Employer withdrew the complaints against the employees and sent them letters stating that the complaints were being withdrawn without penalties being assessed and stressing the need to work safely. Copies of the letters were placed in the employees' personnel files.

ISSUE

Does the evidence support the ALJ's finding that Employer proved the third, fourth, and fifth elements of the independent employee action defense?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

The Evidence Supports the ALJ’s Finding that Employer Proved the Third, Fourth, and Fifth Elements of the Independent Employee Action Defense.

Element 3: Effective Safety Program Enforcement

Employer's safety manager Steve Allen testified that Employer enforced its safety program through a variety of means, including "spot checks" that Allen made approximately twice a day; formal inspections; safety training, holding supervisor's accountable for employee safety; rewarding employees for safe work; participating in an accident prevention committee; warning signs; and discipline. His testimony was prima facie evidence of effective enforcement.

The Division stipulated that Employer had an Injury and Illness Prevention Program (IIPP) that was "well-devised" and included "training employees in matters of safety respective to their particular job assignments," as required to establish the second element of the independent employee action defense. Neither at the hearing nor in its petition did the Division challenge the safety manager's testimony concerning Employer's means and methods of enforcing its safety program. Instead, the Division argued (1) that the record shows that Employer was not adequately supervising the loading crew at the time of the accident and (2) that Employer impermissibly delegated safety responsibility to the signalman, who was not a supervisor or manager. The Board disagrees.

Alverez, the injured truck driver, testified that there were two dock bosses supervising work at the fore and aft holds, leaving the mid-ship hold, where she was assigned, without a supervisor. She acknowledged checking in with a dock boss when she arrived. She testified that he told her there was no dock boss available to assign to the mid-ship dock, and she indicated that she considered him to be the dock boss, even though he was supervising at the aft hold.

Employer did not challenge her testimony. However, the operations manager did not agree that assigning two dock bosses to supervise three dock crews loading one ship demonstrated a shortage of dock bosses. According to him, the practice was permitted by the PMA-ILWU contract and was commonly followed.

The Division did not rebut the operations manager's testimony concerning this practice or present evidence tending to prove that assigning two dock bosses to supervise three crews overextended the dock bosses and compromised safety enforcement.

To determine the weight to be given the conflicting testimony of the witnesses the ALJ assessed their credibility. An ALJ's credibility based finding supported by substantial evidence is entitled to great weight because of the ALJ's opportunity to observe the demeanor of the witnesses and weigh their statements in connection with their manner on the stand. (Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal 3d 312.) A finding so supported should not be disturbed unless the party attacking the finding shows that the hearing record contains "contrary evidence of considerable substantialit bby." (See Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal. 3d 274, 280-281 and, e.g., Professional Asbestos Removal Corp., OSHAB 92-1147, Decision After Reconsideration (March 28, 1995).)

The operations manager's unimpeached testimony was substantial evidence of the fact that the assignment of two dock bosses to supervise three crews loading the hold of a ship was an accepted practice and consistent with effective safety enforcement. The truck driver's contrary testimony that a dock boss told her that Employer was short one dock boss that shift or that she did not have one was not shown to be of considerable substantiality. Her testimony that another employee told her that one of the signalmen had only two days of experience was not supported by the PMA’s payroll records. The Board concludes that the Division has not identified sufficient evidence of a shortage of supervision to warrant rejection of the finding that Employer's safety plan was effectively enforced.

The Division also alleges that for Employer to prove effective enforcement of its safety program, it had to show that a supervisor was in the immediate vicinity of the accident "to direct the operation, or to witness the accident." Southern California Gas Co., OSHAB 81-0259, Decision After Reconsideration (Sept. 28, 1984) is cited as authority for that proposition.

In that case, a non-supervisory lead person, a laborer, and a backhoe operator were digging an excavation at a field site to move a gas line. Water collected in the bottom of the excavation as they dug. When it was approximately four feet deep, the crew saw bubbles in the water, indicating a possible gas leak. The lead called a supervisor for advice. The supervisor came to the site, provided advice, and departed. After the supervisor left, the excavation was dug deeper, no protective system was installed, and the lead person was injured when the walls caved in on him.

The Board rejected the employer's independent employee action defense because the water saturated ground made the worksite "potentially hazardous;" the supervisor knew or should have known the crew would have to dig deeper to complete the job in accordance with his advice; the work entailed safety issues that should have been assessed and decided by a "qualified person;" and, by leaving, the supervisor delegated responsibility for making the safety decisions and taking the appropriate actions to the non-management crewmembers. This case presented a unique situation where active supervision was necessary.

North Bay Construction, Inc., OSHAB 85-825, Decision After Reconsideration (Feb. 25, 1987), and Underground Construction Co., Inc., OSHAB 84-374, Decision After Reconsideration (Dec. 31, 1986) are in accord in not requiring constant supervision for all work activities. In both, the potentially hazardous condition of entering an unshored excavation more than five feet in depth was present and "the duty to make responsible decisions concerning safe work practices" was left to the non-management employees doing the work.

In Lockheed-California Company, OSHAB 82-1212, Decision After Reconsideration (May 15, 1985), an accident occurred when part of an unstable crane load, left unsecured by a crane operator, fell on another employee. The crane operator testified that he had not seen his foreman for approximately 20 minutes before the accident. The ALJ rejected the employer's independent employee action defense, for failing to prove effective enforcement, because of the foreman's absence. However, unlike in Southern California Gas, North Bay Construction, and Underground Construction, supra, the work in Lockheed presented no "unusual perils," and there was no showing that the employer had delegated safety decision-making responsibility to non-management employees. The Board reversed the ALJ, stating:

Here the work was routine and presented no unusual peril to the operator's co-worker. The absence from the immediate work site of a supervisor for 15 to 20 minutes is not such a failure to supervise, under the facts of this case, as to rule out the defense of independent employee act. (Ibid. p. 3.)

In this case the loading operation initiated a period of routine work for a crew stipulated to be experienced in the jobs they were performing. No unusually perilous characteristics distinguished this operation from many they had performed before. Peril entered when one of the swingmen failed to fully disengage a locking pin; subsequent acts of the signalman and crane operator contributed to the safety risks.

The assignment of two dock bosses to supervise the three loading crews would, assuming uniform rotation of the dock bosses, result in each crew working without immediate supervision one-third of the time. The Board has held, under the facts of this case, that this assignment scheme is an accepted practice that does not, per se, demonstrate ineffective safety program enforcement. The Board notes that the practice does not necessarily leave crews without immediate supervision for extended lengths of time nor does it wholly isolate them, since a dock boss is never farther away than the distance to the next hold of the ship.

Since the work in this case presented no unusual perils and safety decision-making responsibility was not delegated to a non-management employee while there was no immediate supervision of the crew, the Board does not believe that Southern California Gas and similar decisions compel rejection of Employer's independent employee action defense. The Board concludes that the Division has failed to demonstrate a basis for setting aside the ALJ's finding that Employer proved that it enforced its safety program effectively.

Element 4: Policy of Sanctions Against Employees Who

Violate the Safety Program

The Division alleges that Employer departed from the "policy of sanctions" set forth in the collective bargaining agreement by withdrawing the complaints it had filed against the employees on the loading crew and issuing them non-punitive letters. In the Division's view, the alleged departure demonstrated that Employer does not adhere to a policy of sanctions and compels a finding that employer failed to prove the fourth element of the independent employee action defense.

Section 17 of the contract covered the administration of employee discipline in detail. Section 17.15 provides that the grievance procedure is the "exclusive remedy" for resolving disciplinary disputes and forbids resort to "other remedies . . . until the grievance procedure has been exhausted." However, under section 17.284, the parties may mutually agree to decide disputed matters by "other means."

After the accident, Employer elected, under section 17.71, to discipline all of the loading crew employees who had been hired through the dispatching hall by returning them to the hall. This, under section 17.72, made them ineligible for dispatch to jobs offered by Employer until their cases had been "heard and disposed of before the Joint Port Labor Relations Committee (committee)."

Employer filed complaints against the employees with the union in accordance with section 17.81, and the complaints were referred to the labor relations committee to determine appropriate action under section 17.82. The committee convened a "special meeting" to consider the complaints. All of the loading crew was required to attend except two casual employees whose complaints were subject to different contract provisions.

At the meeting, the operations manager admonished the employees about unsafe work practices, and some or all of them expressed remorse over the accident. The operations manager determined that it would be appropriate for Employer to withdraw the complaints and issue the employees letters stating that the complaints were being withdrawn without penalties being imposed, and stressing the importance of working safely. The operations manager proposed this means of resolving the disputed complaints to the committee. The committee accepted the proposal. Employer withdrew the complaints, reinstating the eligibility of the dispatching hall employees for referral to jobs offered by Employer, and issued the letters with copies to the employees' personnel files.

Section 17.826 prescribes a day of safety training without pay and a letter of warning for an employee who "is found to be in violation of reasonable verbal instructions, posted employer safety rules, and/or the PCMSC [Pacific Coast Marine Safety Code]." Section 1610 of the PCMSC Container Terminal Safety Rules states in part that, "Containers shall not be hoisted from chassis until chassis locks are released." Section 3466(h) of the General Industry Safety Orders, under which Employer was cited, is substantially identical. By limiting its appeal to the affirmative independent employee action defense, Employer admitted that the loading crew had not released the locks before attempting to hoist the container.

Employer’s evidence of a policy of sanctions consisted of section 17 of the contract, the safety manager’s testimony describing how discipline is administered under the contract, a thick stack of complaints Employer had filed against employees for safety infractions before the accident, and the operations manager’s testimony that the complaints filed against the loading crew had been resolved by the parties in a manner consistent with the discretion allowed by section 17. Employer’s evidence established, as a prima facie matter, the existence and consistent application of a policy of sanctions.

For its part, the Division did not prove that Employer, the union, or the labor relations committee violated the "exclusive remedy" requirement of section 17.15. No one sought an outside remedy while the complaints were being disposed of by the labor relations committee within the framework of the grievance procedure. Nor did the Division prove that the dispositive action violated a provision of the contract or demonstrated inconsistent application of the policy of sanctions. No comparative analysis of sanctions imposed was offered to prove arbitrariness or unfairness. Moreover, section 17.284 allows the parties, by mutual agreement, to exercise reasonable discretion in resolving disputes subject to the grievance procedure. In addition, the safety manager, the operations manager, and the union official who was the Division’s witness as to contract administration matters all testified that it was not uncommon for the parties to exercise that discretion.

The Division also asserts that the ALJ wrongly limited the Division's inquiry into the meaning of certain terms of section 17. The issue arose during Division counsel's cross-examination of the operations manager. Division counsel asked the witness if Employer's actions were consistent with the contract, and Employer's counsel objected on the ground the question would lead to impermissible interpretation of the contract by the Board.

At the conclusion of argument on the objection, the point was made that the entire contract was in the record as Exhibit F, and the ALJ informed Division counsel that she could ask the witness "if any particular section [of the contract] applies or should apply in that situation," adding that, "[i]t's only his opinion, not really an interpretation of the contract." Division counsel responded, "Okay." Division counsel’s next comment was that she had "no further questions" to ask the witness. The Board finds no indication of undue or unjust limitation on use by the Division of the contract or its provisions as evidence.

In sum, the Board finds that the record supports the ALJ’s finding that Employer proved it had a policy of sanctioning employees who violated safety rules and, thus, established the fourth element of the defense.

Element 5: The Employee Caused a Safety Infraction which he or

she knew was Contra to Employer’s Safety Requirements.

The Division alleged in the citation that Employer violated section 3466(h) by not ensuring "that the chassis twist locks were released prior to hoisting the container."

The PCMSC is a comprehensive set of safety rules adopted by the ILWU and PMA that, inter alia, is applicable to all ship loading operations performed for employers, like Marine Terminals Corp., who are members of PMA. Rule 1610 of the PCMSC provides, in part, that, "Containers shall not be hoisted from chassis unless chassis locks are released."

It is undisputed that swingmen are responsible for releasing the locks before a container is hoisted from a chassis. The signalman, who was a Division witness, testified that the rule was "common knowledge". He remembered being told by Employer that it was a signalman’s responsibility to ensure that the chassis locks were released before signaling the crane operator to hoist the container, and said that he did this all the time. The crane operator testified that he should not have had a letter placed in his personnel file referring to the complaint against him that had been issued and withdrawn. He said he started hoisting the container with the crane because the signalman directed him to do so. He said he did not know what the swingmen had done and that he believed he was not partially to blame for the accident.

The Division stipulated that the loading crewmembers were experienced in the jobs they were performing at the time of the accident. Employer’s operations manager identified PMA payroll records showing that both swingmen had been working on the docks for several years and had considerable experience in container loading and unloading operations.

Neither of the swingmen was called as a witness and asked if he knew if it was a violation of one of Employer’s safety rules to not release the chassis locks. Nor did Employer present either a witness percipient to instruction the swingmen may have received on the rule or records documenting such training.

In its petition, the Division contends the ALJ erred in finding the swingmen knew that failing to release the locks was a violation of Employer’s safety rules because the finding was based solely on speculation. The Board disagrees for the following reasons.

The connection between releasing the locks, loading the container, and employee safety is apparent. The rule that the locks must be released is a fundamental, published rule. It was undisputed that the principal job of a swingman in chassis-to-ship loading operations is to release the locks. Loading crews regularly perform chassis-to-ship loading operations. Both swingmen had substantial loading operation experience. They could not have gained that experience without learning and following the rule.

The safety manager and operations manager testified to the substantial effort made by Employer on its own, and through PMA, to ensure that employees were aware of safety rules pertaining to their jobs. The two crewmembers who testified, the signalman and the crane operator, were aware of the rule. The signalman said it was "common knowledge" and recalled having been instructed to check the locks to make sure the swingmen had released them.

If the rule was connected only remotely to the safety and efficiency of loading operations or it applied to the work infrequently, circumstantial evidence of employee knowledge would tend to bear less weight. The same would be true if Employer had something to gain by failing to communicate the rule to loading crewmembers, particularly to the swingmen. But Employer had everything to lose and nothing to gain by failing to communicate the rule or by encouraging or condoning violations of it in the interest of expediency or the like.

More direct evidence might have simplified the task of determining if the swingmen knew of the rule. However, in the Board’s view, the accumulation of circumstantial evidence presented by Employer has sufficient probative effect to support the ALJ's finding that the swingmen, and the rest of the crew, knew that failing to release the locks was a violation of Employer's safety rules.

The Division cites California Erectors, Bay Area, Inc., OSHAB 85-713, Decision After Reconsideration (Dec. 12, 1986), in support of its contention that Employer's evidence on this point is insufficient. In California Erectors, a Division inspector observed and photographed two structural steel connectors working in plain view without fall protection. They were on beams at the roof level of a 14-story building under construction. Four other employees identified by the employer's job superintendent as foremen were in positions from which they did or could have observed the violation. The Division classified the violation as serious because the fall distance was 60 feet and the foremen knew or could have known of the violation. It was also classified as a repeat violation because the employer had been cited for a substantially similar serious offense approximately two years before the appealed violation occurred.

At the hearing, Employer's job superintendent and safety coordinator testified that the employer made a substantial effort to communicate and enforce fall protection rules. This included testimony that tying-off had been a topic at safety seminars attended by the two connectors. Neither of the connectors testified that they knew of the fall protection requirement, and the employer produced no sign-up sheets or other documents signed by the connectors to signify that they understood the rule. The ALJ faulted the employer for its lack of direct evidence and found the employer had not met its burden of proof.

The employer petitioned for reconsideration. The Board upheld the ALJ's finding, making specific reference to the employer's failure to produce the connectors as witnesses or written acknowledgements by them that they understood the rule. Upon reconsideration, the Bo ard found that Employer had not identified evidence of considerable substantiality that was contrary to the ALJ's finding and cited Lamb v. Workmen's Comp. Appeals Bd., supra, 11 Cal. 3d 274, 281, as authority for upholding the ALJ.

In the Board’s view, finding that Employer proved the fifth element of the defense in this case is not incompatible with the decision in California Erectors, Bay Area, Inc., supra.

When a repeat/serious safety rule violation is committed by two employees in plain view of more than one supervisor and a Division inspector, it is reasonable to infer that the employees either do not know of the rule or that the employer, intentionally or otherwise, has led the employees to believe the rule is no longer in effect.

With contrary evidence of such substantiality to overcome, the employer's burden of proving employee knowledge of the rule by a preponderance of the evidence becomes heavy indeed. Under those circumstances, as the Board held in California Erectors, Bay Area, Inc., supra, an employer may have to produce direct evidence of employee knowledge to prevail. But in the record of this case there is no comparable contrary evidence tending to prove that the swingmen did not know of the rule. Hence, the weighing of different evidence in the two cases leads reasonably to different results.

Since the Board has concluded that Employer's evidence of employee knowledge of the rule is solid and credible and that the Division has not shown that there is contrary evidence of considerable substantiality, the Board affirms the ALJ's finding that Employer proved the fifth element of the defense.

DECISION AFTER RECONSIDERATION

The relief sought by the Division is denied. The ALJ's decision is affirmed and reinstated.

JAMES P. GAZDECKI, Chairman
BILL DUPLISSEA, Member
OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
SIGNED AND DATED AT WEST COVINA, CALIFORNIA – September 28, 1999