SSA Cooper, LLC

Plain-English summary

SSA Cooper performed stevedoring operations aboard a cargo container vessel near Savannah, Georgia. Longshoremen left heavy lashing rods across a 22-inch-wide catwalk while an SSA Cooper foreman repeatedly walked the area to check container placements. The judge found the catwalk was an active work area and that the rods were not necessary to the foreman's work in progress. The infeasibility and greater-hazard defenses failed because the company offered no evidence that alternate storage methods were infeasible, did not explore alternatives, and did not seek a variance. The serious citation was affirmed, and the proposed $1,275 penalty was reduced to $650.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1918.91(a)
• Outcome: The serious longshoring-housekeeping citation was affirmed, and the proposed penalty was reduced from $1,275 to $650.
• Key point: Equipment intended for later use is not necessary to the work in progress when it obstructs an active walkway used for a different current task.

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. 07-1867

SSA Cooper, LLC, Simplified Proceedings

      Respondent.

Appearances:

      Angela F. Donaldson, Esquire, Office of the Solicitor, U.S. Department of Labor, Atlanta, Georgia
              For Complainant

      Edward M. Hughes, Esquire, Callaway, Braun, Riddle & Hughes, P.C., Savannah, Georgia
             For Respondent

Before: Administrative Law Judge Ken S. Welsch

                                           DECISION AND ORDER
      SSA Cooper, LLC, performs stevedoring operations at the Garden City Terminal near

Savannah, Georgia. On September 18, 200 7, Occupational Safety and Health Administration (OSHA)
compliance officer John Vos conducted a planned inspection aboard the maritime vessel CGM Marlin.
During his inspection, Vos observed lashing rods strewn across a catwalk. Vos considered the lashing
rods to be a tripping hazard, and, upon his recommendation, the Secretary issued a citation to SSA
Cooper on November 8, 20 07, alleging a serious violation of 29 C. F. R. § 1918.91(a). The Secretary
proposed a penalty of $1, 275.00 for this item.
SSA Cooper timely contested the citation. In the pre-hearing conference, SSA Cooper asserted
the affirmative defenses of infeasibility and greater hazard. The Commission designated this case for
simplified proceedings pursuant to 29 C. F. R. § 2200.200 - 2200.21 1. The court held a hearing in this
matter on February 12, 2008, in Savannah, Georgia. SSA Cooper stipulated jurisdiction and coverage
under the Occupational Safety and Health Act of 1970 (Act). The parties filed post-hearing briefs.
Upon consideration of the record, the court rejects SSA Cooper’s affirmative defenses, affirms
item 1 of the citation, and assesses a penalty in the amount of $650.00.
Facts
 Compliance officer John Vos arrived at the CGM Marlin at approximately 8:45 a.m. on
September 18, 2007. The CGM Marlin is a cargo container vessel. The night before Vos’s inspection,
longshoremen had begun unloading and loading cargo containers (Tr. 15-18).
SSA Cooper is a stevedoring company. It contracts with a ship’s owner or agent to oversee the
unloading and loading of cargo containers. A stevedore is a foreman who is responsible for verifying
the correct containers are removed by crane to shore, and new containers are correctly placed in the ship
(Tr. 20 ).
Stevedoring companies contract with unions, such as the International Longshoremen’s
Association (ILA), for longshore labor to physically unload and load the cargo containers.
Longshoremen are laborers who work as, among other positions, lashers who remove lashing rods from
or secure lashing rods to containers. Lashing crews, or gangs, work in teams of six, plus a foreman on
the ship’s deck and a foreman on the dock, for a total of eight workers per gang. Occasionally, two
workers are added to a gang (Tr. 35).
Longshoremen use gantry cranes located on the shore to move the containers between the ship
and shore. The longshoremen load the containers into bays. Lashing gangs secure the containers to the
vessel using metal lashing rods to prevent the containers from moving while the vessel is at sea. After
a vessel is loaded, the stevedoring company at the next port receives a faxed schematic showing the
number and size of containers on the vessel, so the company can prepare an unloading (discharge) plan
and a reloading (load) plan (Tr. 150-151, 206-210).
The lashing rods at issue are approximately 8 to 10 feet long and 1 inch in diam eter. The
lashing rods vary in weight from 40 to 50 pounds (Tr. 88, 114). As the lashers on the CGM Marlin
removed the lashing rods from the containers so the containers could be unloaded, they placed the rods
on a walkway (also referred to as a catwalk) (Exhs. C-1, C-2, C-3). The CGM Marlin’s catwalk is
approximately 22 inches wide (Tr. 28).
The foreman for SSA Cooper that day was Edward Spivey. Spivey walked back and forth on
the catwalk for approximately one hour. Spivey was checking the containers being loaded against the
loading plan on his clipboard, a task that required him to look up and down continually. He was not
part of the lashing crew. Lashing rods and 30-pound turnbu ckles (jacks) were scattered across the width
of the catwalk. No other employees were in the area (Tr. 25, 39, 58).
Vos believed the lashing rods posed a tripping hazard to Spivey. As a result of Vos’s inspection,
the Secretary issued the citation that gave rise to this proceeding.

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The Citation
The Secretary has the burden of proving the violation by a preponderance of the evidence.
In order to establish a violation of an occupational safety or health 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., 19 BNA OSHC 2131, 2138 (No. 90-1747, 1994).
Prior to the hearing, SSA Cooper stipulated that § 1918.91(a) applies to the cited conditions and
that, if a violation existed, its foreman Spivey was exposed to it and the company was aware of it. The
only issue presented is whether SSA Cooper complied with the terms of § 1918.91(a).
Section 1918.91 (a)
Section 1918.91(a) provides:
Active work areas shall be kept free of equipment, such as lashing gear, and materials
not in use, and clear of debris, projecting nails, strapping and other objects not
necessary to the work in progress.

    SSA Cooper contends it did not violate the terms of the cited standard because (1) the catwalk

was not an active work area, and (2) the lashing rods were necessary to the work in progress. SSA
Cooper is incorrect on both cou nts.
Active Work Area
The definition section of § 1918 (§ 1918.2) does not define “active work area.” T he plain
meaning of the words indicates an area where at least one employee is required to be in order to perform
an assigned task, for the duration of the time the employee is present and performing his or her task.
SSA Cooper claims the catwalk was not an active area because no longshoremen were in the area during
the inspection. It is undisputed, however, that SSA Cooper foreman Spivey was performing his work
while walking back and forth on the catwalk. Spivey told Vos he had been on the catwalk for
approximately one hour before Vos first saw him (Tr. 39). John Scullion, SSA Cooper’s Ship
Superintendent, testified Spivey’s job required him to walk up and down approximately 100 feet of the
catwalk to check the containers (Tr. 122, 124-125). Vos observed Spivey step over two piles of lashing
rods spread across the catwalk in two different sections (Tr. 76).

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SSA Cooper’s contention that the catwalk was not an active work area is contrary to its pre-
hearing stipulation that Spivey was exposed to the cited condition. Performance of Spivey’s work du ties
required Spivey to walk back and forth on the catwalk. Thus, the catwalk was an active work area for
Spivey during that time.
Area Not Kept Free of Lashing Gear
Besides Vos’s undisputed testimony, photographs taken by Vos show that at least two sections
of the catwalk were not kept free of lashing rods (Exhs. C-2 and C-3).
Lashing Rods Not Necessary to the Work in Progress
The lashers removed the lashing rods from the cargo containers that were to be unloaded from
the vessel. The lashers removed the excess lashing rods that would not be needed for the re-loading
process, and placed them in compartments below deck (T r. 116-117, 147). The lashing rods on the
catwalk were placed there to secure newly loaded containers at a later time. SSA Cooper argues the
lashing rods were necessary to the work in progress because the lashers would use them to secure the
containers once they were loaded.
At the time Vos observed Spivey, no longshoremen were in the process of using the lashing rods
on the catwalk (Tr. 41, 71). No lashing crews were in the area (Tr. 112). The only work in progress
was Spivey’s as stevedore. His work did not require him to use lashing rods.
SSA Cooper’s contention the lashing rods on the catwalk were necessary to the work in progress
is at odds with its claim the catwalk was not an active work area. The Secretary has established the only
work in progress at the time of Vos’s inspection was Spivey’s , and the lashing rods were not necessary
to his job.
The Secretary has proven SSA Cooper was in noncompliance with the terms of § 1918.91(a).
SSA Cooper stipulated to applicability, exposure, and knowledge. The Secretary has established a
violation of § 1918.91(a).
Affirmative Defenses
Infeasibility
SSA Cooper asserts the infeasibility defense. In order to prove infeasibility, the employer must
show: (1) the means of compliance prescribed by the applicable standard would have been infeasible,
in that (a) its implem entation would have been technologically or economically infeasible or (b)
necessary work operations would have been technologically infeasible after its implementation, and (2)

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there would have been no feasible alternate means of protection. V. I. P. Structures, Inc., 16 BNA
OSHC 1830 (No. 91-1167, 1994). The fact compliance is difficult or expensive is insufficient grounds
to excuse compliance from the requirement of the standard. Hughes Brothers, Inc., 16 BNA OSHC
1830 (No. 12523, 197 8). The Commission expects employers to exercise some creativity in seeking
to achieve compliance. Pitt Des Moines, Inc., 16 BNA OSHC 1429 (No. 90-1349, 1993).
Although it is SSA Cooper’s burden to prove infeasibility, it failed to offer even minimal
evidence that compliance with § 1918.91(a) was either technologically or economically infeasible.
When asked if SSA Cooper explored alternate, cost-effective methods for placing the lashing rods, Paul
Harris, SSA Cooper’s East Coast Corporate Safety Director, stated, “We don’t have a problem with
these lashing rods. So why would we explore it?”Tr. 20 0-201).
The Secretary proposed several alternate methods for keeping the work area free of the lashing
rods. These included using “S” hooks to hang rods from railings in the area, stacking the rods to one
side of the catwalk so there is a clear path for employees, or placing the rods at another end of the
catwalk not being used for work (Tr. 29-33, 44, 46, 51, 77). Although SSA Cooper’s witnesses raised
various objections to these alternate methods, the company never showed any of the methods were
technologically or economically infeasible. The objections generally echoed Harris’s sentiment–the
longshorem en had always placed the lashing rods on the catwalk, and they did not want to change.
Habit does not establish an infeasibility defense.
SSA Cooper has failed to prove that keeping the work area free of the lashing rods was
infeasible or that no feasible alternate means of protection existed. Its infeasibility defense is rejected.

                                        Greater Hazard
    SSA Cooper also failed to prove its greater hazard defense. In order to establish the greater

hazard defense, the employer must prove: (1) that the hazards of compliance were greater than
noncompliance; (2) that alternative means of protection were unavailable; and (3) that a variance was
unavailable or inappropriate. Lauhoff G rain Corp., 13 BNA OSHC 1084, 1088 (81-984, 1987).
Safety Director Harris conceded SSA Cooper did not look into alternative means of protection
(Tr. 192, 200). SSA Cooper admitted it never sought a variance (Tr. 12 ). SSA Cooper also failed to
prove the remaining element of the defense, that keeping the work area free of lashing rods created a
greater hazard for the lashing gangs. SSA Cooper argues that it is a greater hazard for lashers to have

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to move the lashing rods off the catwalk, citing “repetitive motion type injuries and strains” that “would
no doubt occur” (SSA Cooper’s brief, p. 8). This is speculation for which SSA Cooper offers no
supporting evidence. The greater hazard defense is rejected.
Classification of Violation
The Secretary classified the violation as serious. Under § 17(k) of the Act, a violation is serious
“if there is a substantial probability that death or serious physical harm could result from” the violation.

     [T]he Secretary need not establish that an accident is likely to occur in order to prove
     that the violation is serious. Rather [s]he must show that “an accident is possible and
     there is a substantial probability that death or serious physical harm could result from
     the accident.” Consolidated Freightways Corp., 15 BNA OSHC 1317, 1324, 1991
     CCH P29,500, p. 39,813 (No. 86-351, 1991)[.]

Flintco, In c., 16 BNA OSHC 1404, 1405 (No. 92-1396, 1993).
Spivey carried with him a loading plan on a clipboard and a two-way radio (Tr. 26). His job
was to check the containers being loaded against the loading plan to ensure the containers were being
correctly placed. Spivey’s job required him continually to look up at the containers and down at his
clipboard . Under these circumstances, it is possible Spivey could be distracted while checking the
containers against the loading plan or talking on his radio and trip over the lashing rods. A fall either
on the catwalk or onto the lashing rods cou ld result in serious physical harm by causing bruises,
lacerations, broken bones, or twisted ankles (Tr. 37).
The Secretary has established the violation was serious.

                                    Penalty Determination
    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.
SSA Cooper employs more than 250 employees. The company had a history of previous OSHA
violations. SSA Cooper demonstrated good faith by having an adequate written safety program (Tr.
39).
The gravity of the violation was moderate. Only one employee was exposed to the hazardous
condition. While Spivey’s focus on the containers and the loading plan distracted him from watching

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his footing, his task did not require him to move quickly over the lashing rods in his path. Based
upon these factors, it is determined the appropriate penalty for the serious violation of § 1918.91(a) is
$ 650.00.
FINDINGS OF FACT AND
CO NCLUSIONS O F 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:
Item 1 of the serious citation, alleging a violation of § 1918.91(a), is affirmed, and a penalty
of $ 650.00 is assessed.

                                            \s\
                                            KEN S. WELSCH
                                            Judge

Date: March 28, 2008

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