Gulf Stevedore Corporation

Plain-English summary

An administrative law judge affirmed four of five items in a nonserious citation against Gulf Stevedore Corporation. Gulf challenged two items on the ground that its senior site representative did not accompany the OSHA compliance officer during the shipboard portion of the inspection. The Commission held that the argument was waived because Gulf did not raise this nonjurisdictional defense before review. It also rejected the argument on the merits because Gulf's ship superintendent, a managerial employee and competent representative, accompanied the inspector aboard the ship. The Commission affirmed the judge's disposition, leaving four citation items affirmed and one vacated. The release does not identify the cited standards or penalty amounts.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 657(e) governs the inspection-accompaniment issue; the underlying citation standards are not identified.
• Outcome: Mixed. Four nonserious citation items remained affirmed and one remained vacated; the decision does not state the penalty result.
• Key point: An inspection-accompaniment defense is waived if not timely raised, and the statute is satisfied when a competent managerial representative accompanies the inspector.

Full text (OSHRC public release)

Docket No. 76-926

GULF STEVEDORE CORPORATION

OSHRC Docket No. 76-926

Occupational Safety and Health Review Commission

June 28, 1977

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Before BARNAKO, Chairman; and CLEARY, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Norman Winston, Assoc. Regional Solicitor, U.S. Department of Labor

Capt. C. G. Pormetter, Gulf Stevedore Corporation, for the employer

OPINION:

DECISION

BY THE COMMISSION: On August 4, 1976, Review Commission Judge John A. Carlson issued a decision affirming four of the five items in a nonserious citation.
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That decision, which is before this Commission for review pursuant to 29 U.S.C. �
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661(i), is affirmed for the reasons that follow.

In its petition for review, respondent requests reversal of the Judge's disposition of items 4 and 5 of the citation because respondent's senior representative at the site did not accompany the compliance officer during that portion of the inspection. * This contention, however, is untimely because respondent did not raise the issue at any time in the proceedings below.
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The Commission has held that it will generally decline to consider nonjurisdictional issues which have not been expressly or impliedly litigated prior to review.
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See Bechtel Power Corporation, 76 OSAHRC 38/E2, 4 BNA OSHC 1005, 1975-76 CCH OSHD para. 20,503 n. 13(a) (No. 5064,
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1976) and the cases cited therein.
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Moreover, a challenge to the manner in which an inspection is conducted is in the nature of a defense and, therefore, is waived if not timely raised.
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Cf. Gannett Corporation,    OSAHRC   , 4 BNA OSHC 1383, 1976-77 CCH OSHD para. 20,915 (No. 6352, 1976).

• • • • • • • • • • • • • • • • • -Footnotes- - - - - - - - - - - - - - - - - -

• Respondent was entitled, under 29 U.S.C. �
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  657(e), to be given the opportunity to have his representative accompany the compliance officer "during the physical inspection of [his] workplace . . . for the purpose of aiding such inspection."

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In any event, respondent's contention lacks merit.
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The senior representative at the site did not accompany the compliance officer for the phase of the inspection conducted aboard ship, during which the violations alleged in items 4 and 5 were detected.
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However, the inspector was accompanied during that part of the inspection by respondent's ship superintendent, who was himself a managerial employee and competent representative.
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Consequently, the accompaniment requirements of 29 U.S.C.
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657(e) were satisfied.
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See Northewestern Insulation Company,    OSAHRC   , 5 BNA OSHC 1148, 1977-78 CCH OSHD 21,614 (No. 12632, 1977).

Accordingly, the Judge's decision is affirmed.
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