I.T.O. Corp. of New England v. Occupational Safety and Health Review Com'n

• Decision Date: 24 August 1976
• Docket Number: No. 76-1070,76-1070
• Citation: 540 F.2d 543
• Parties: 4 O.S.H. Cas.(BNA) 1574, 1976-1977 O.S.H.D. ( 21,040 I.T.O. CORPORATION OF NEW ENGLAND et al., Petitioners, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and W. J. Usery, Jr., Secretary of Labor, Respondents.
• Court: U.S. Court of Appeals — First Circuit

Page 543

540 F.2d 543

4 O.S.H. Cas.(BNA) 1574, 1976-1977 O.S.H.D. ( 21,040

I.T.O. CORPORATION OF NEW ENGLAND et al., Petitioners, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and W. J. Usery, Jr., Secretary of Labor, Respondents.

No. 76-1070.

United States Court of Appeals, First Circuit.

Argued June 3, 1976.

Decided Aug. 24, 1976.

Leo F. Glynn, Boston, Mass., with whom Glynn & Dempsey, Boston, Mass., was on brief, for petitioners.

Dennis K. Kade, Atty., U. S. Dept. of Labor, Washington, D. C., with whom William Kilberg, Sol. of Labor, Benjamin W. Mintz, Associate Sol. Occupational Safety and Health, and Michael H. Levin, for appellate litigation, Washington, D. C., were on brief, for the Secretary of Labor.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

COFFIN, Chief Judge.

This is a petition, brought under § 11(a) of the Occupational Safety and Health Act of 1970 (the Act), 29 U.S.C. § 660(a), to review an order of the Occupational Safety and Health Review Commission (OSHRC), assessing a civil penalty against several stevedores (for purposes of this case, I.T.O. Corporation of New England, hereinafter I.T.O.) ¹ for failure to obtain compliance by their longshoremen employees with a regulation requiring the wearing of hard hats. 29 C.F.R. § 1918.105(a) (1975). I.T.O. contends that it took all economically feasible steps to comply and that OSHRC erred in concluding it violated the regulation. We affirm.

The facts are largely undisputed. I.T.O. is a contract stevedoring corporation which is engaged in loading and unloading ship cargo in the Port of Boston. It obtains its daily work force of approximately sixty longshoremen from the hiring hall of the International Longshoremen's Association (ILA), a union with whom I.T.O. has by virtue of its membership in the Boston Shipping Association a comprehensive collective bargaining agreement. This agreement contained a no strike clause, a clause providing for grievance resolutions and binding arbitration, and a provision making it mandatory for employees to use the safety devices and protective equipment required by applicable law.

When the Act became effective in April, 1971, the federal policy was to stress voluntary compliance with the requirement that longshoremen wear hard hats rather than to enforce it by means of formal citations and fines. In May, 1973, the Department of Labor announced that, beginning on July 2, 1973, it would rigorously enforce the hard hat requirement by citations and fines. I.T.O., thereafter, took a number of steps to induce its employees to comply. It supplied its entire work force with new hats, erected six to eight signs urging compliance, inserted flyers in pay envelopes, instructed the supervisors to urge the longshoremen to wear the hats, held various meetings, and included in the telephone tape recording played to longshoremen calling about jobs an announcement that hard hats were to be worn. I.T.O., however, did not take the additional steps of attempting to induce compliance by threatening or actually disciplining employees who worked without wearing hard hats.

Two weeks after the new enforcement policy went into effect, an Occupational Safety and Health Administration inspector visited the VICTORIA, a ship discharging lumber under I.T.O.'s supervision. He observed that some thirteen men in four of the holds were not wearing hard hats. I.T.O. was cited for a non-serious violation of the Act on July 25, 1973. ² A one day hearing was held on December 19, 1973 before an administrative law judge. I.T.O. defended against the citation, there and here, on the ground that it had taken all economically feasible steps to achieve compliance with the Act on the part of its employees. It maintained that one measure it did not take disciplining employees who violate the regulation would have led to wildcat strikes and, thus, was not economically feasible. The administrative law judge agreed with I.T.O.'s contention, and, on September 29, 1974, issued a decision exculpating I.T.O. Over a year later, OSHRC, which relied upon two earlier decisions, ³ reversed the administrative law judge and issued the citations. Three years after the inspection, we deal with the issues raised by the petition. OSHRC would put it that safety has been forestalled for three long years; petitioners would say that bureaucratic tyranny has been prevented once again by the tribunes of the people on the Boston docks. In any event, the processes of decision have advanced at a stately, if not leisurely, pace.

Federal law requires that longshoremen "be protected by protective hats". 29 C.F.R. § 1918.105(a). There is no disputing that this measure qualifies as a patently reasonable safety requirement. Consistent with the Act's objective of placing the primary responsibility for safety in the work place upon the employer, see, e. g., 29 U.S.C. §§ 654(a)(1), 654(a)(2), federal regulations provide that an employer is responsible for his employees' failures to comply with the hard hat requirement. 20 C.F.R. § 1918.2(a). The employer's liability, however, is not absolute. See National Realty & Construction Co. v. OSHRC, 160 U.S.App.D.C. 133, 489 F.2d 1257 (1973); cf. Cape & Vineyard Division of New Bedford v. OSHRC, 512 F.2d 1148 (1st Cir. 1975). An employer may be held answerable for a violation resulting from his employee's misconduct only when "demonstrably feasible measures" existed for reducing the incidents of such violations but were not taken. See Brennan v. OSHRC, 502 F.2d 946, 951-52 (3d Cir. 1974). The sole substantial issue in this appeal is whether I.T.O., as a matter of law, took all demonstrably feasible measures to induce its employees to comply with the hard hat requirement. ⁴ The narrow question before us is whether OSHRC acted consistently with the Act in rejecting I.T.O.'s claim that disciplinary action was economically unfeasible.

In considering petitioner's claim that further enforcement efforts on its part were economically unfeasible as a matter of law, we have the benefit of a thoughtful opinion from the Third Circuit, squarely rejecting I.T.O.'s position. Atlantic & Gulf Stevedoring, Inc. v. OSHRC, 534 F.2d 541 (3d Cir. 1976). There, the employer's claim that disciplinary action would have been economically unfeasible was far more substantial than petitioner's. Unlike the case at bar, see infra, there clearly was substantial evidence that a walkout was likely if the hard hat requirement were enforced by disciplinary action, and it did not appear so likely that the employer had, under its collective bargaining agreement, the right to discipline employees for violating safety requirements imposed by federal law. On that record, the court held the employer had no defense. Since the Act places primary responsibility for achieving increased safety upon employers and since the acceptance of petitioner's position would have made it easy for employers to evade their responsibilities to urge maximum employee compliance, the court concluded that the Secretary can insist upon employer compliance with a standard which employees are likely to resist to the point of concerted work stoppages. Before an employer has a defense of economic unfeasibility, the Third Circuit reasoned that he must take all available legal steps to secure compliance, including (1) bargaining, perhaps to the point of impasse, for the right to discipline disobedient employees; (2) exercising whatever right he has to discipline noncomplying employees and, in the event work stoppages occur, pursuing his remedies under § 301 and Boys Markets, Inc. v. Retail Clerks, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970), or under the grievance and arbitration procedure; and (3) if an injunction cannot be obtained or if...