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Bethlehem Steel Corp. v. Occupational Safety and Health Review Commission and

decided: October 15, 1979.

BETHLEHEM STEEL CORPORATION, PETITIONER
v.
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION AND RAY MARSHALL, SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR, RESPONDENTS



PETITION FOR REVIEW OF AN ORDER OF THE OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

Before Seitz, Chief Judge, and Gibbons and Van Dusen, Circuit Judges.

Author: Gibbons

Opinion OF THE COURT

Bethlehem Steel Corporation (Bethlehem), the operator of a ship repair yard at Hoboken, New Jersey, petitions under section 11(a) of the Occupational Safety and Health Act, 29 U.S.C. § 660(a) (1976) (the Act), for review of an order of the Occupational Safety and Health Review Commission (OSHRC) finding that Bethlehem violated the general duty clause, section 5(a)(1) of the Act, 29 U.S.C. § 654(a)(1) (1976), and a specific safety standard, 29 C.F.R. § 1915.66(c) (1978), promulgated pursuant to section 5(a)(2) of the Act, 29 U.S.C. § 654(a)(2) (1976). We affirm the Commission's Order finding a general duty clause violation, but set aside the Order respecting the violation of the specific safety standard.

I.

On January 20, 1978 five employees of Bethlehem were directed to remove from the hold of the S.S. PENTELI a 300 foot long electric cable used to provide power to the vessel from shore while it was undergoing repairs. During the course of this operation Richard Brown, one of the employees, fell from an upper deck to a lower deck of the S.S. PENTELI, suffering injuries from which he died the same day. As is customary in cases of industrial accidents resulting in death, a Labor Department Compliance Officer conducted an inspection of the site of the accident. At the time of this inspection, the vessel had already sailed and only the pier alongside which it had been moored could be inspected. On March 14, 1978, the Secretary of Labor issued a citation under section 9 of the Act, 29 U.S.C. § 658 (1976), charging Bethlehem with violations of the general duty clause, 29 U.S.C. § 654(a)(1) (1976), of the specific ship repair safety standard requiring elimination of slippery conditions in working areas of shipyards, 29 C.F.R. § 1915.51(c) (1978), and of the specific safety standard requiring the use of tag lines, 29 C.F.R. § 1915.66(c) (1978). Bethlehem filed a timely notice of contest, and the Secretary filed a complaint to the Commission repeating the charges in the citation. A hearing before an Administrative Law Judge resulted in a finding that Bethlehem had violated the general duty clause and the tag line standard, but not the slippery surface standard. When Bethlehem's petition to the Commission for discretionary review was not granted, the Administrative Law Judge's order became the Final Order of the Commission, and the petition for review in this court followed.

The evidence presented at the hearing on the Secretary's complaint disclosed that on January 20, 1978, Hoboken and the vicinity was subjected to a severe snowstorm accompanied by high winds. Shortly after one o'clock in the afternoon, several Bethlehem employees were directed to remove the power cable from the vessel. The cable extended from a power source on the pier over the rail of the vessel and through a skylight on an upper deck to the engine room below. It was fastened to the rail at approximately its midpoint. The method normally used to remove such a power cable is hoisting it out of the engine room by crane through the skylight in several small bites, and depositing each bite on the deck until the bitter end emerges from the skylight. Then the cable is unfastened from the rail and lifted to the pier. Although the evidence might support other conclusions, it was the Secretary's contention that the accident occurred because, as the bitter end emerged from the skylight, the cable swung free, hitting Mr. Brown in the head, and knocking him over the rail to the deck below. Bethlehem argues that the accident did not and could not have happened in that manner, and that neither the adverse wind and snow conditions nor the absence of tag lines on the bitter end of the cable contributed to the accident.

II.

Much of Bethlehem's argument concerning the way in which the accident may have occurred is misdirected, for although the occurrence of a death or serious injury may be relevant to proving a violation of the general duty clause, the statute is violated when a recognized hazard is maintained, whether or not an injury occurs. See, e.g., Allis-Chalmers Corp. v. OSHRC, 542 F.2d 27, 30-31 (7th Cir. 1976); REA Express, Inc. v. Brennan, 495 F.2d 822, 825 (2d Cir. 1974); Brennan v. OSHRC (Vy Lactos ), 494 F.2d 460, 463 (8th Cir. 1974). Moreover, an employer may be found not to have violated the general duty clause notwithstanding the occurrence of a death if the hazard was unforeseeable. See Brennan v. OSHRC (Republic Creosoting Co.) 501 F.2d 1196, 1199-1200 (7th Cir. 1974). Our task on review is not to look for a proximate cause relationship between the accident which preceded the inspection and the specific violation charged, but to determine whether there is substantial evidence in the record supporting the charge that the employer maintained, at the time and place alleged, a recognized hazard to the safety of its employees.

We have no difficulty finding such evidence here. There is evidence that the snowstorm on January 20, 1978 had caused accumulations of 12 to 14 inches of snow on the decks of the vessel, that the mobile crane was frozen in its tracks, that visibility for the crane's operator was limited because the window of the cab had fogged up and the cab lacked wiper blades, and that high wind conditions made it difficult for the operator to control the swing of the boom. There is in evidence a Standard promulgated by the American National Standards Institute (ANSI) and referred to in the citation, which states:

L. Cranes shall not be operated when wind speeds exceed 45 miles per hour or lower velocities if so recommended by the manufacturer.

ANSI, Portal, Tower and Piller Cranes B30.4, § 4-3.1.3L (1973). Although, unlike many ANSI standards, this one has not been promulgated by the Secretary as a specific standard, Bethlehem's safety officer testified that it represented a consensus in the ship repair industry. Also in evidence is the Handbook of Industrial Loss Prevention, an insurance industry publication for general usage, which, with respect to cranes recommends:

Wind-velocity alarms are used on large or important cranes of various types. They should be set ...


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