## Facts

- The Secretary of Labor issued a longshoring protective-headgear standard requiring protective hats meeting ANSI Z89.1 (1969).  
- In April 1973, an OSHA compliance officer inspected petitioners’ longshoring operations at Camden, New Jersey docks and observed that nearly all longshoremen were working without hardhats.  
- The officer testified that only a small proportion of workers wore hardhats, no injuries were connected to the inspection, and petitioners had not previously been cited under the standard.  
- Enforcement of the hardhat requirement had been informally suspended for roughly 1971 to April 1973 due to union opposition and worker resistance.  
- The Secretary cited petitioners for violating OSHA § 5(a)(2) for failure to comply with the hardhat regulation, proposed civil penalties totaling $455, and ordered immediate abatement.  
- An OSHRC Administrative Law Judge found a violation but vacated the proposed penalties; the Commission affirmed non-serious violations and reinstated penalties and abatement.  

## Issues

1. Whether an employer may defensively challenge the validity of an OSHA standard in an enforcement proceeding after the 60-day period for direct review has expired.  
2. Whether substantial evidence supported the finding that petitioners violated the hardhat standard.  
3. Whether employee and union resistance, and an enforcement moratorium, excused employer noncompliance.  
4. Whether the Commission properly imposed penalties and abatement despite the ALJ’s vacatur and the enforcement history.  

## Decision

- The court denied relief and upheld the Commission’s final order.  
- The court held that invalidity of an OSHA standard may be raised as a defense in an enforcement action despite the expiration of the 60-day direct-review window, but petitioners failed to prove the hardhat standard was unlawful.  
- The court held substantial evidence supported the violation finding based on the observed, widespread nonuse of hardhats.  
- The court rejected union and employee resistance, and prior nonenforcement, as defenses to liability.  
- The court upheld the Commission’s reinstated penalties and abatement order as supported by the record and within the Commission’s discretion.  

## Legal Principles

- The statutory limit on direct, pre-enforcement review of an OSHA standard does not bar an employer from asserting the standard’s invalidity defensively in a later enforcement proceeding.  
- An employer’s duty to comply with OSHA standards is not negated by employee or union refusal to follow safety requirements; widespread employee nonuse may establish employer noncompliance.  
- OSHA enforcement is preventive; absence of injury does not defeat a citation for violation of a safety standard.  
- The Commission may modify an ALJ’s penalty determination and order abatement when supported by record evidence and consistent with statutory penalty factors; reviewing courts defer absent arbitrariness or lack of substantial evidence.  

## Conclusion

The Third Circuit upheld OSHRC’s finding that stevedoring employers committed non-serious violations of the longshoring hardhat standard and affirmed penalties and abatement, holding that employers remain responsible for enforcing safety standards despite worker resistance and that a standard’s validity may be challenged defensively in enforcement proceedings even after the direct-review period has run.


Atl. & Gulf Stevedores, Inc. v. Occupational Safety & Health Review Comm'n, 534 F.2d 541 (3d Cir. 1976)