H-30, INC.

OSHRC Docket No. 76-752

Occupational Safety and Health Review Commission

July 8, 1977

[*1]

Before: BARNAKO, Chairman; and CLEARY, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

T. A. Housh, Jr., Reg. Sol., USDOL

Merle Britting, Pres., H-30, Inc., for the employer

William H. Dye, for the employer

OPINION:

DECISION

BY THE COMMISSION: Judge Paul E. Dixon found the respondent, an oil well drilling company, in serious violation of the so-called general duty clause, section 5(a)(1) of the Occupational Safety and Health Act, n1 for allowing its derrickmen to ride a crown block elevator system to a safety platform on an oil rig. The respondent's petition for review raises the following contentions:

(1) Since the compliance officer did not observe any employee of respondent riding the elevator, the Judge erred in affirming the violation;

(2) The record fails to establish that the practice of riding the crown block elevator was "recognized" as hazardous by the oil drilling industry; and

(3) The Judge erred in finding that the practice of riding the elevator exposed the respondent's employees to a hazard "causing or . . . likely to cause death or serious harm."

For the reasons that follow, we reject the respondent's contentions and affirm the Judge's decision. [*2]

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n1 29 U.S.C. 654(a)(1).

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The evidence shows that the driller, who supervised the derrickmen on the site and had the authority to hire and fire them, was the respondent's representative during the walkaround inspection of the worksite. During the inspection, the compliance officer questioned the condition of a ladder leading to the rig's safety platform located 50 feet above ground. The driller told him that when the derrickmen needed to reach the platform they generally ride to it by standing on the elevator's clamp device. The elevator was designed to carry materials, not men. The men wore no safety belts during the ride.

The respondent relies on paragraph D1, Chapter X, of the Secretary of Labor's Field Operations Manual to support its contention that the citation must be vacated because the compliance officer did not actually observe any employee using the elevator. That paragraph provided at the time of the inspection that:

Working conditions that allegedly violate the OSHA safety and health standards [*3] or the general duty requirement shall be cited only when actually observed by a CSHO [compliance officer] during the course of an inspection. . . . n2

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n2 The manual listed two exceptions: accident investigations where the hazardous condition no longer exists at the time of the inspection and inspections where authorized advance notice of the inspection is given to the employer. Neither exception applies to this case. A subsequent change in paragraph D2a(1) of the manual provides that:

[W]here the CSHO's inspection or investigation reveals a violative condition to which the employer's employees were actually or potentially exposed in the past . . . a citation should be issued. (Emphasis added.)

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The Commission recently addressed the significance of the Field Operations Manual in FMC Corporation,    OSAHRC   , 5 BNA OSHC   , 1977-73 CCH OSHD para.     (No. 13155, 1977), and held that:

[T]he guidelines provided by the manual are plainly for internal application to promote efficiency and not to create an administrative [*4] straightjacket. They do not have the force and effect of law, nor do they accord important procedural or substantive rights to individuals.

Noncompliance with instructions in the manual is therefore not a basis for invalidating a citation.

Furthermore, the Judge properly determined that the statements of the supervisor were admissions by the respondent's agent and were therefore admissible and credible. A.J. McNulty & Co., 76 OSAHRC 46/D2, 4 BNA OSHC 1097, 1975-76 CCH OSHD para. 20,600 (No. 2295, 1976); Fed. Rules of Evid. Rule 801(d)(2). The Commission agrees with the Judge's finding that the respondent's employees rode the elevator in the manner alleged.

To establish a violation of section 5(a)(1) of the Act, 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 & Construction Co., Inc. v. OSHRC, 489 F.2d 1257, 1265 (D.C. Cir. 1973).

The respondent contends that the complainant's evidence is insufficient as to the second element of proof because the complainant failed to prove industry recognition of the hazard. [*5] In particular, respondent objects to the Judge's reliance on a standard governing the construction industry as well as standards published by the American National Standards Institute. The respondent's contention is rejected. This element also can be established by proving that the employer had actual knowledge that the cited condition was hazardous. Brennan v. OSHRC and Vy Lactos Laboratories, Inc., 494 F.2d 460, 463-4 (8th Cir. 1974). Judge Dixon properly concluded that the respondent actually knew that riding the elevator was hazardous. That conclusion is supported adequately by the Judge's findings of fact 18 through 23, to which the respondent has not taken exception. The Commission adopts those findings of fact.

The respondent's final contention is also rejected. Its employees were subjected to falls of up to 50 feet without any protection. This was obviously a practice that was likely to cause serious injury or death.

The Judge's decision is therefore affirmed.