Catalina Freight Lines

Plain-English summary

Catalina Freight Lines loaded and unloaded cargo vehicles on a barge at its Wilmington, California terminal. Five days after a front loader backed over the bow, OSHA observed forklifts and trailers operating with only an eight-inch angle iron around the deck edge. The ALJ held that Coast Guard vessel-design authority did not exempt Catalina's longshoring work from OSHA and that nonstructural barriers could satisfy the standard without changing the vessel. He affirmed the serious vehicle-rollover item and reduced its proposed penalty from $1,500 to $1,200 based on limited exposure and low likelihood. Catalina also violated the recordkeeping rule by failing to complete and retain an OSHA 200 log even for a year with no recordable cases, and the judge assessed $100. A slippery-deck item involving visible pools of oil was affirmed as other-than-serious with no penalty, while the citation-delay defense failed because Catalina showed no specific prejudice.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1918.73(k), 1904.2(a), and 1918.91(c)
• Outcome: All three items were affirmed, with $1,200 for barge guarding, $100 for recordkeeping, and no penalty for the slippery deck.
• Key point: Coast Guard regulation of vessel design does not displace OSHA longshoring requirements when the employer can use temporary, nonstructural safeguards.

Full text (OSHRC public release)

                        UNITED   STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419

                                                                            FAX:
                                                                            COM (202) 6064050
                                                                            Frs (202) 6064050

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 92-0601
CATALINA FREIGHT LINES
Respondent.

                  NOTICE OF DOCKETING
           OF ADMINISTRATIVE LAW JUDGE’S DECISION
 The Administrative Law Judge’s Report in the above referenced case was

docketed with the Commission on June 25, 1993. The decision of the Judge
will become a final order of the Commission on July 26, 1993 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such etition should be received by the Executive Secreta on or before
July 15, 1B93 in order to ermit sufficient time for its review. y ee
Commission Rule 91, 29 8 .F.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 Litigation
                   Office of the Solicitor, U.S. DOL
                   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 rights may contact the Commission’s Executive
Secretary or call (202) 606-5400.
FOR THE COMMISSION

                                         AQ&~fPfd
                                    )f?zLp$

Date: June 25, 1993 Ray H. Darling, Jr.
Executive Secretary
DOCKET NO. 92-0602
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO8.
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Daniel Teehan, Esq.
Re ional Solicitor
Of&e of the Solicitor U S DOL
71 Stevenson St., 10th’ Fl&
San Francisco, CA 94119

James H. Radcliffe, Esq.
Berth 184
100 West Water Street
Wilmington, CA 90744

James A. Cronin
Administrative Law Jud e
Occupational Safety an l Health
Review Commission
Room 250
1244 North S eer Boulevard
Denver, CO f 0204 3582

00102289790:09
 .

                                          UNITED STATESOF AMERICA
                 OCCUPATIONAL         SAFETY AND HEALTH REVIEW COMMISSION
                                         1244 N. SPEER BOULEVARD
                                                 ROOM 250
                                       DENVER, COLORADO 8020403582

PHONE FAX
COM (303) 844-2281 COM (303) ec4-3759
FE_! FTS (303) 844-3759

                                                           I

SECRETARY OF LABOR,
     Complainant,

          v.                                                        OSHRC Docket No. 924601
CATALINA FREIGHT                LINE, INC.,

           Respondent.


APPEARANCES:

                  For the Complainant:
                          Susanne Lewald, Esq., Office of the Solicitor, U.S. Department   of Labor,
                           San Fran-,    California

                  For the Respondent:
                          James H. Radcliffe, Esq., Berth 184, 100 West Water Street, Wilmington, California

Before:           Administrative    Law Judge James A. Cronin, Jr.

                                       DECISION AND ORDER


           This proceeding     arises under the Occupational        Safety and Health Act of 1970 (29
U.S.C. Section 651 et seq.; hereafter called the “Act”).
                  Respondent,      Catalina Freight Line, Inc. (Catalina), at all times relevant to
this matter      maintained      a workplace      at Berth     184, 100 Water        Street,   Wilmington,
California, where it was engaged in longshoring                activities.   Catalina admits it employs
approximately      16 workers and is engaged in a business affecting commerce (Answer an>.
Catalina, therefore,       is an employer within the meaning of, and subject to, the Act.
           On January 15, 1992, as the result of an Occupational Safety and Health Adminis-
 tration (OSHA)          inspection of respondent’s     Wilmington worksite, Catalina          was issued a
 “serious” citation alleging violation of 51918.73(k) and an “other than serious” citation
 alleging violations of #1904.2(a)        and 1918.91(c) of the Act.

By filing a timely notice of contest, Catalina brought this proceeding before the
Occupational Safety and Health Review Commission (Commission). On February 2,
1993, a hearing was held in Long Beach, California. The parties have submitted briefs
on the contested issues and the matter is ready for decision.
Alleged Violation
Serious citation 1 alleges:
1
29 CFR 191&73(k): Lift trucks or other mechanically powered vehicle(s) were operated
on open deck barges, the edges of which were not suitably guarded by railings, side-
boards, timbers or other means sufficient to prevent vehicles from rolling overboard:

   a) Berth 184, Wilmington: On board the barge “Islander” forklifts, front-end
   loaders, and semi-tractor trailers were operated on deck without suitable means to
   prevent rollovers.

   The cited standard provides:

   When lift trucks or other mechanically powered vehicles are being operated on
   open deck type barges, the edges of the barges shall be suitably guarded by
   railings, sideboards, timbers or other means sufficient to prevent vehicles from
   rolling overboard . . . .

  Other than serious citation 2, item 1 alleges:

1
29 CFR 1904.2(a): The log of all recordable occupational injuries and illnesses (OSHA
Form No. 200 or equivalent), was not maintained at the establishment;

   a) Berth 184, Wilmington:      The employer did not maintain a log of occupational
   injuries and illnesses.

   The cited standard provides:

   Each employer shall, except as provided in paragraph (b) of this section, (1) main-
   tain in each establishment a log and summary of all recordable occupational
   injuries and illnesses for that establishment; and (2) enter each recordable injury
   and illness on the log and summary as early as practicable but no later than 6
   working days after receiving information that a recordable injury or illness has
   occurred. For this purpose form OSHA No. 200 or an equivalent which is as
   readable and comprehensible to a person not familiar with it shall be used. The
   log and summary shall be completed in the detail provided in the form and
   instructions on form OSHA No. 200.


                                           2

Other than serious citation 2, item 2 alleges:

2
29 CFR 191&91(c): Slippery condition(s) were not eliminated as they occurred:

  a) Berth 184,Wilmington; The deck of the barge “Islander” was spotted with oil
  and was not cleaned up or made safe prior to allowing employees on deck to
  handle cargo.

  The cited standard provides:

  Slippery conditions shall be eliminated as they occur.

                                           Issues

1. Whether the January 15, 1992 citation was issued with reasonable promptness?

2. Whether, under 54(b)(l) of the Act, regulations promulgated by the U.S. Coast
   Guard exemot the conditions cited in this matter from OSIIA coverage?
   A w

3. Whether the Secretary has shown, by a preponderance of the evidence, that
   Catalina was in violation of 29 CFR $1918.73(k) on August 7, 1993?

4. Whether the Secretary has shown, by a preponderance of the evidence, that
   Catalina violated §1904.2(a)?

5. Whether the Secretary has shown, by a preponderance of the evidence, that
   Catalina violated $191&91(c)?

                                          Facts
   

   On August 2, 1991, as cargo vehicles were being unloaded from the “Islander II,”
   a seagoing freight barge owned by Seaway Company (Tr. 158, 237), a Catalina employee
   backed a front loader over its wooden chocks, and off the bow of the barge (Tr. 12, 78,
   184-188, 193). As a result of the accident, on August 7, 1991, an OSHA Compliance
   Officer (CO), James Wilson, conducted an inspection of the barge on which the accident
   occurred (Tr. 28, 79). CO Wilson testified that during his inspection he was accom-
   panied by Catalina’s representative at the hearing, Mr. Radcliffe (Tr. 36, 66)‘.

1
The complaint erroneously named the “Islander” instead of “Islander II” as the site of the
August 7,199l inspection; however, in its brief, Catalina concedes that the error “is of no
real moment.” (Respondent’s Brief and Argument, p. 10). Catalina was aware, through its

                                              3

Bill Rubio, Seaway Company’s port engineer and maintenance manager (“I?. 156),
testified that Catalina employees receive and load the cargo traveling between berth 184
and Santa Catalina Island (Tr. 159-64). CO Wilson observed cargo tractor trailers being
driven onto the deck of the barge during the inspection of August 7, 1991 (Tr. 56, 66-69;
Exh. C-6, C-7), and photographed a Catalina employee using a forklift to place a support
under the end of a trailer (Tr. 68; Exh. C-8). Catalina employees then chock the trailer
wheels by hand with wooden blocks (Tr. 169, 199).
The deck of the barge was edged with angle iron which CO Wilson measured at 7-
l/2 to 8” high (Tr. 73, 115116). CO Wilson believes that the perimeter guard would not
prevent the type of vehicles being operated on deck from rolling overboard (Tr. 70, 93),
because of their large diameter tires, some in excess of four feet in height, and their large
mass (Tr. 93).
Promptness
At the hearing, Catalina raised, for the first time, the issue of “reasonable
promptness, ” noting that the citation in this matter was not issued until five months and
eight days after the August 7, 1991 inspection.
The issue of “reasonable promptness” is an affirmative defense that must be
raised in a pleading or motion prior to hearing, or tried by the consent of the parties.
Gannett Cop., 4 BNA OSHC 1383, 197677 CCH OSHD Il20,915 (No. 6352, 1976). The
only testimony on the issue of reasonable promptness is that of CO Wilson, who testified
that the priority of other assignments in his case load caused the delay in the issuance of
the citations (Tr. 60). That testimony was elicited by the hearing judge. Thus, the matter
cannot fairly be said to have been tried by consent of the parties.
Moreover, even if timely raised, Catalina’s defense lacks merit. The Commission
has held that unless an employer establishes prejudice in the preparation or presentation

   representative, Radcliffe, that the barge “Islander II,” the site of the August 2 accident,
   was the subject of the OSHA inspection and citation. See, Meadows Ikdustrks, 1 BNA
   OSHC 1709, 1979 CCH OSHD ll23,846 (No. 764463, 1979) (whether fair notice is pro-
   vided depends on factors external to the citation, including the circumstances of the
   inspection).


                                               4

of its defenses, a citation will not be vacated for the Secretary’s alleged failure to issue it
with reasonable promptness. General Dynamics Cop., 15 BNA OSHC 2122, 1993 CCH
OSHD ll29,952 (No. 874195, 1993). An employer’s unsupported general allegations do
not establish prejudice; the employer must demonstrate specifically the nature of the
prejudice allegedly suffered. National Industial Comtmctors, Inc., 10 BNA OSHC 1081,

1981 CCH OSHD ll25,743 (No. 764507, 1981). In National I’ustriaZ the Commission
held that no prejudice was established where the employer did not indicate that missing
witnesses would have presented testimony different from that in the record. Id. at 1084.
At the hearing Catalina alleged that it was prejudiced by the absence of a witness
who would have testified “favorably to its position,” regarding the August 2 accident, but
who left the country four and one half months after the inspection (Tr. 53). It was not
explained, however, how that testimony would differ from that adduced at the hearing.
In its post hearing brief Catalina appears to abandon its claim of prejudice. No basis
exists on this record to vacate the citation.
Exemption
Catalina maintains that perimeter guarding is governed by Coast Guard regula-
tions covering the design and construction of vessels, and that the cited OSHA standard,
therefore, is inapplicable to the cited conditions. Catalina functionally claims an
exemption under 54(b)(l) of the Act, which prohibits application of the Act to working
conditions over which other Federal agencies “exercise statutory authority to prescribe or
enforce standards or regulations affecting occupational safety or health.”
In order to establish a 54(b)(l) exemption, however, it must be shown that an
agency other than OSHA has the statutory authority to regulate the health and safety of
certain workers, and that the other agency has exercised its statutory authority in such
manner as to exempt the cited working conditions. Alaska Trawl Fisheries, Inc., 15 BNA
OSHC 1699, 1992 CCH OSHD 129,758 (No. 894017, 1992).
Jurisdiction over longshoring activities is expressly delegated to the Secretary. See;
Pub.L. 85-742, Act of August 23, 1958 (33 U.K. 941); 54(b)(2) of the Act. That the
U.S. Coast Guard has no statutory authority to prescribe or enforce occupational health

                                             5

and safety regulations applicable to longshoring work conditions is well settled, CM$o&
Stevedore and Ballast Co., 1 BNA OSHC 1757, 1973-74 CCH OSHD 117,931 (No. 1132,
1974), and was recognized at the present hearing by Commander Joseph P. Brusseau of
the U.S. Coast Guard Marine Safety Office (Tr. 257-8).
Catalina, however, argues that enforcing #1918.73(k) for longshoring personnel
would necessarily result in conflicting dual regulation of vessel design and construction,
responsibility for which is delegated to the Coast Guard pursuant to Title 46 U.S.C. 3301.
This judge finds no such conflict. Permanent railings and sideboards are named in
the standard as means of complying with the perimeter guarding requirement; however,
where longshoring employers do not control the vessel being loaded, they may rely on
non-structural alternatives to fulfill their obligations under the Act. Timbers, for
example, are specifically listed in the standard.
Catalina has failed to establish that its workplace on board the “Islander II” is
exempted from the operation of the Act.
Alleged Violation of $1918.73(k)
Catalina maintains that the eight inch angle iron on the perimeter of the “Islander
II’s” deck was sufficient to comply with the cited standard, in that the plain language of
the regulation requires only that guarding be suitable to prevent unpowered vehicles from
inadvertently rolling overboard.
Catalina’s argument is insupportable. Section 1918.73(k) states that means suffi-
cient to prevent vehicles from rolling overboard be provided when mechanically powered
vehicles are being operated on open deck type barges. Its intent clearly is to protect
against the occurrence of the very kind of accident which took place on August 2, 1991.
The eight inch iron on the “Islander II” was inadequate to prevent a front loader
from being inadvertently backed over the barge’s bow on August 2. No structural
changes were made to the barge between that time and the August 7 inspection (Tr. 199-
200, 216; Exh. C-3, C-7). Catalina employees also operated vehicles on the inadequately
guarded deck on August 7, 1991.
The Secretary has established that Catalina violated 51918.73(k) on August 7,
1991.

                                                   6

Penalty
A penalty of $l,SOO.OO
is proposed. Catalina is a small employer, with 16 workers.
It has no record of prior citations. OSHA gave Catalina no credit for good faith because
of its failure to maintain accident and illness records, and to institute illness and injury
prevention programs required under California law (Tr. 80-82).
The gravity of the violation is moderately severe. The violation was properly
characterized as serious, because drowning and death are the probable results of an
accident (Tr. 82). Only two equipment operators working from the Wilmington terminal
driving cargo trailers onto the barge, however, were exposed to the hazard (Tr. 162), and
the likelihood of an accident occurring is deemed small; in the history of Catalina Freight
Line, no other vehicle has ever gone over the side (Tr. 196).
Taking into account the relevant factors, this judge finds that the gravity of the
violation was overstated. A 20% reduction in the penalty is deemed appropriate. A
penalty of $1,200.00 is assessed.
Alleged Violation of S 1904.2(a\
CO Wilson testified that during the August 7, 1991 inspection he asked to see
Catalina’s accident and illness records, and was told that there were no such records. No
records antedating the accident were subsequently provided (Tr. 75).
Catalina admits that OSHA 200 logs were not maintained prior to the inspection
(Tr. 106), but argues that none were required, as its workers sustained no occupational
illnesses or accidents in 1991 prior to the August 2 accident. Section 1904,2(a)‘s
reporting requirements are not limited, however, to the 1991 calendar year, nor are they
obviated by the absence of recordable injuries or illnesses.
Section 1904.2(a) states that “the log and summary shall be completed in the
detail provided in the form and instructions on form OSHA No. 200.” Those instructions
require that annual summary totals from the last page of the No. 200 log be certified by
a responsible party. “Even though there were no injuries or illnesses during the year, ,

zeros must be entered on the totals line, and the form posted” no later than February 1
of the following calendar year. The logs must be maintained for five years following the
end of the calendar year to which they relate. (Exh. 1, Complainant’s post-hearing brief).
 Catalina failed to certify the absence of recordable injuries or iIlnesses in 1990 on
a form No. 200 or its equivalent, and so is in violation of the cited standard.
A penalty of $300.00 is proposed. As noted above, Catalina is a small employer
with no history of violations. The violation has been abated and Catalina has submitted
its No. 200 form for 1991. The gravity of the violation is low. There is no evidence that
the failure to maintain the required log misled Catalina employees about the nature of
their working conditions. The proposed penalty is deemed excessive. A penalty of
$100.00 will be assessed.
Alleged Violation of $1918.91(c)
The cited section requires that slippery conditions be eliminated as they occur.
During his inspection CO Wilson observed and photographed three pools of oil on
the deck of the barge “Islander II” (Tr. 74; Exh. C-8). The oil was in plain view. CO
Wilson also observed one Catalina employee on the deck of the barge (Tr. 120).
Catalina introduced no evidence in rebuttal.
Citation 2, item 2, alleging a violation of $1918.91(c) will be affirmed as an “other
than serious” violation, without penalty.

                                   Conclusions of Law

1. Complainant’s issuance of the January 15, 1992 citation 5 months and 8 days after
   the OSHA inspection did not prejudice Respondent in the presentation of its case.
   No cause exists to vacate any portion of the citation.

2. No regulations promulgated by the U.S. Coast Guard exempt the conditions cited
   in this matter from OSHA coverage under 54(b)(l) of the Act.

3. The Secretary has shown, by a preponderance of the evidence, that Catalina was
   in violation of 29 CFR #1918.73(k) on August 7, 1991.

4. The Secretary has shown, by a preponderance of the evidence, that Catalina vio-
   lated $1904.2(a).

5. The Secretary has shown, by a preponderance of the evidence, that Catalina vio-
   lated 51918.91(c).
    Findings of Fact
   All findings of fact relevant and necessary to a determination of the contested
   issues have been found specially and appear in the decision above. See Rule 52(a) of
   the Federal Rules of Civil Procedure. Proposed Findings of Fact that are inconsistent
   with this decision are denied.

                                     ORDER
   

6. Serious Citation 1, item 1, alleging violation of 51918.73(k) is AFFIRMED, and a
   penalty of $1,200.00 is ASSESSED.

7. Other than serious Citation 2, item 1, alleging violation of #1904.2(a) is
   AFFIRMED, and a penalty of $100.00 is MESSED.

8. Other than serious Citation 2, item 2, alleging violation of $1918.91(c) is
   AFFIRMED without penalty.

Dated: June 18, 1993