MERCER WELL SERVICE, INC.
OSHRC Docket No. 76-2337
Occupational Safety and Health Review Commission
September 26, 1977
[*1]
Before: CLEARY, Chairman; and BARNAKO, Commissioner.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Ronald M. Gaswirth, Regional Solicitor U.S. Department of Labor
George Carlton, for the employer
OPINION:
DECISION
BY THE COMMISSION: This case is before the Commission for review pursuant to 29 U.S.C. § 661(i). The respondent filed a petition for discretionary review in which it took exception to the finding by Review Commission Judge Harold Kennedy that it had violated 29 U.S.C. § 654(a)(1) n1 by permitting its employee to ride the elevator traveling block of a well servicing rig without the protection of a safety belt. Specific contentions raised in the respondent's petition are as follows:
(a) The record contains no substantial evidence that complainant has met its burden of showing what respondent could have done to eliminate the hazardous condition and that such measures were feasible as is required by applicable case law.
(b) The record contains no substantial evidence that respondent knew or in the exercise of reasonable diligence should have known of the violation due to an inadequate safety program.
(c) The record contains no substantial evidence that respondent could [*2] have reasonably been expected to prevent the hazard.
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n1 Section 654(a)(1) provides that:
Each employer . . . shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.
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Frank Wilcox, a derrick man employed by the respondent, was fatally injured when he fell from the elevator traveling block of well servicing rig number 2 on which he was riding. The deceased had not been wearing a safety belt contrary to the following company safety rule:
Derrick men should wear a safety belt secured to a hook on the elevator bails when riding the elevators into and out of the derrick.
Wilcox possessed a safety belt, but he had left it on top of the rig when he had descended by ladder the prior day. The machine operator, George Paul, knew that Wilcox was not protected by a safety belt when he lifted him on the traveling block.
As a result of this occurrence, the respondent was cited for [*3] an alleged violation of 29 U.S.C. § 654(a)(1), the so-called general duty clause. To establish a violation of the general duty clause, complainant must prove "(1) that the employer failed to render its workplace 'free' of a hazard which was (2) 'recognized' and (3) 'causing or likely to cause death or serious physical harm.' "National Realty and Construction Co., Inc. v. OSHRC, 489 F.2d 1257, 1265 (D.C. Cir. 1973). The respondent does not argue that the complainant failed to sustain its burden as to elements (2) and (3). Indeed, its own safety rule establishes that it had actual knowledge of the hazardous nature of the cited condition. See Brennan v. OSHRC and Vy Lactos Laboratories, Inc., 494 F.2d 460, 463-4 (8th Cir. 1974).
The respondent contends, however, that the evidence does not establish that it failed in its duty to protect its employees while they were riding the traveling block. In this regard, the respondent asserts that the complainant failed to establish what steps the respondent feasibly could have taken to prevent the alleged hazardous condition as required by National Realty. 489 F.2d at 1268. The respondent also argues that it had neither actual [*4] nor constructive knowledge of the violation. In support of its argument that there is insufficient evidence as to constructive knowledge, the respondent contends that it had an adequate safety program and did all that was possible to insure that its safety rule was followed.
The supervisor in charge of respondent's rig was W. I. Hawkins. He was also in charge of two other rigs. He visited each rig three times each day for periods of about 30 minutes and was not present at the time of the accident. When asked who was in charge of rig number 2 when he was not there, Hawkins testified that "I guess George [Paul] would, the crew chief." When away from the rig, Hawkins was in constant radio contact with the rig and would usually contact Paul when he had orders to convey. He also testified that he would hold Paul responsible if his orders were not carried out.
Paul testified that he did not consider himself to be a supervisor and that he had no authority to give any orders other than those given to him by his supervisors. He was not hired as a supervisor and had no authority to hire or fire employees. Paul acknowledged, however, that he was in charge when Hawkins was not present [*5] and was responsible for keeping employees informed of safety regulations. He testified that he would contact Hawkins by radio if any problems arose at the rig. Two other employees on the rig considered Paul to be in charge when Hawkins was absent.
The actions and knowledge of supervisory employees are imputable to their corporate employer for the purpose of establishing employer knowledge of violative conditions and practices. Ocean Electric Corp., 75 OSAHRC 6/C14, 3 BNA OSHC 1705, 1975-76 CCH OSHD para. 20,167 (No. 5811, 1975), aff'd, No. 76-1060, 4th Cir., August 2, 1977. As the Commission held in Iowa Southern Utilities Co., 77 OSAHRC 32/C10, 5 BNA OSHC 1138, 1977-78 CCH OSHD para. 21,612 (No. 9295, 1977), it is the substance of the delegation of authority that is important, not the title of the employee to whom such authority is given. In this case, Paul was considered to be in charge of the crew when Hawkins was not present. Paul maintained radio contact with Hawkins. In this fashion he could relay supervisory orders to crew members and also contact Hawkins if any problems were encountered. For this reason, the Commission finds that Paul could have taken [*6] the steps necessary to prevent the occurrence of the violation. This is an adequate basis for finding that Paul was a supervisory employee. Iowa Southern Utilities Co., supra.
The Commission also stated in Iowa Southern Utilities Co., supra, that "[s]pecific safety instructions and workrules concerning hazards peculiar to the job being performed are the essential foundations of an adequate safety program." To be effective, these instructions and workrules must be communicated to employees and uniformly enforced. Enfield's Tree Service, Inc., 77 OSAHRC 32/B3, 5 BNA OSHC 1142, 1977-78 CCH OSHD para. 21,607 (No. 9118, 1977).
The testimony of Billy and Terry Tarpley both rig crewmembers, shows that employees frequently had ridden the blocks in the past while unprotected. Respondent's president had heard of employees not wearing belts when riding the blocks. Paul knowingly permitted the deceased to ride in this unprotected fashion and testified that he saw no real danger in doing so. It is apparent that the respondent's rule requiring employees to tie off when riding the elevator blocks was not adequately enforced. Accordingly, the Commission finds that the [*7] requisite knowledge has been shown.
The respondent's remaining contentions relate to whether there is sufficient proof of what the respondent could have done to prevent the hazardous conduct. Although no direct evidence was introduced regarding what steps the respondent should have taken to avoid citation and the feasibility and likely utility of these measures, n2 the Judge properly inferred from the evidence that the respondent should have made it clear to Paul that he was not to operate the elevator block while an unprotected employee was on it. n3 The feasibility and likely utility of such a measure is obvious. The testimony of the respondent's president that he had heard that other employees had ridden the elevator blocks without safety belts put the respondent on reasonable notice that enforcement of its safety rule as to elevator block riding was necessary. Paul, as an employee with supervisory responsibility, could reasonably have prevented the hazard by refusing to permit Wilcox to ride the elevator block.
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n2 See National Realty and Construction Co. v. OSHRC, supra.
n3 The respondent contends that this finding constitutes the Judge's own theory, rather than that of the complainant, and is not supported by the evidence of record. The Commission concludes, however, that the Judge's finding is not speculative in nature, is dictated by common sense, and is supported by the record. As the court noted in National Realty, an employer has a heightened duty to ensure the proper conduct of supervisory personnel who set an example for other employees at the worksite to follow. The violation of safety policy by a supervisor who foresees no resulting danger is strong evidence that implementation of the policy was lax. 489 F.2d 1267 n. 38. It also illustrates that employees were not sufficiently warned that a violation of the policy could result in serious injury or death.
[*8]
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Accordingly, the Judge's decision is affirmed.