EXECUTIVE SUMMARY

OCCUPATIONAL SAFETY AND HEALTH
APPEALS BOARD

Summary of Marine Terminals Corporation - DAR


A pin locking cargo container attached to a truck was not released before a crane lifted the container. The truck rose and fell injuring the driver. A general violation of section 3466(h) was alleged. Employer raised the independent employee action defense. The ALJ found for Employer. The Division sought reconsideration regarding elements 3, 4 and 5. The Board upheld the defense. Two foremen for three crews was sufficient for routine work and no delegation of safety decision making authority to non-supervisory employee so enforcement acceptable. Employer’s safety complaints against the employees, grievance procedure and manner in which it was used prove an adequate policy of sanctions. Locking pins have to be pulled for every ship loading operation. The employees responsible for pulling the pins were experienced but did not testify. Published safety rule. Other crew members testified they knew. The evidence supports an inference that the responsible employees knew the rule.

MARINE TERMINALS CORPORATION  95-R3D5-896
September 28, 1999