RIG NO. 18,

OSHRC Docket No. 81-2529


Before:  BUCKLEY, Chairman; CLEARY Commissioner.

BUCKLEY, Chairman:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act").  The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration ("OSHA").  It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions.  See section 10(c) of the Act, 29 U.S.C. 659(c).

The Moore Petroleum Service Company employs 125 employees who are involved in oil well service and workover.  On October 14, 1981, five Moore employees were removing tubing and fluids from a well at a Texas worksite.  In order to perform their assignments, the Moore employees ascended a ladder to a platform on the well 55 feet above the ground.   Late in the afternoon, one Moore employee, Norman Smart, started down the ladder, slipped and fell.  Three days later, Smart died from the injuries he suffered in the fall.

Shortly after the fatality, an OSHA compliance officer inspected the worksite.  The investigation and undisputed testimony established that this oil rig was not equipped with a landing platform.  However, Moore normally provided its employees with ladder climbing safety devices and instructed the employees in the use of the equipment.  The ladder climbing safety device at this worksite had broken and had not been replaced.  The safety device had been broken "at another job" but it was not established exactly how long the device had been broken.  The members of the Moore safety committee, which consisted of Jesse Moore and Ron Moore, the owners of the company, and Walter Clark, the superintendent and secretary of the corporation, had not been informed and were not aware the device was broken.

The Secretary cited Moore for violating the safety standard at 29 C.F.R. 1910.27(d)(2).  The citation alleged:

Fixed ladder(s) used to ascend to heights exceeding 20 feet, and where cages or wells were not provided, were not provided with a landing platform for each 20 feet of height or fraction thereof:

(a) Workover Rig #18 had neither landing platform nor ladder climbing safety device installed and in use, to reach to or from elevated derrick levels.

The administrative law judge vacated the citation.  The judge reasoned that because the employees at the worksite had not informed company management that the ladder safety device was broken the employer did not have knowledge of the violation.   We reverse the administrative law judge's decision and affirm the citation.

The standard which the Secretary cited, 29 C.F.R. 1910.27(d)(2), provides:

When ladders are used to ascend to heights exceeding 20 feet (except on chimneys), landing platforms shall be provided for each 30 feet of height or fraction thereof, except that, where no cage, well, or ladder safety device is provided, landing platforms shall be provided for each 20 feet of height or fraction thereof.  Each ladder section shall be offset from adjacent sections.  Where installation conditions (even for a short, unbroken length) require that adjacent sections be offset, landing platforms shall be provided at each offset.

The standard requires that an employer provide landing platforms whenever employees use ladders to ascend to heights exceeding 20 feet.  Landing platforms are required even when the employer provides a cage, well or ladder climbing safety device.  The only difference is that when the employer provides such extra safety equipment the employer need only provide landing platforms for every 30 feet of height instead of the usual 20 feet.

Notwithstanding the plain language of the standard requiring landing platforms and not ladder climbing safety devices, Moore successfully argued that the citation should be vacated because it did not know that a ladder climbing safety device it provided was inoperable.  However, Moore knew that landing platforms were not used and makes no contrary claim.  It is the absence of landing platforms that is prohibited by the standard, and Moore's knowledge about the presence or absence of other safety devices is irrelevant to the determination of a violation of this standard.

Moore's argument is based on the Secretary's apparent preference for ladder climbing safety devices over landing platforms as a means of fall protection.  In his brief, the Secretary stated that OSHA considers the lack of a landing platform to be a technical, de minimis violation of 29 C.F.R. 1910.27(d)(2) if ladder climbing safety devices are being used.  A violation is de minimis if it bears such a negligible relationship to employee health or safety that abatement is unnecessary.  See 29 U.S.C. 658(a); Clement Food Co., OSHRC Docket No. 80-0607 (July 17, 1984).  I do not take issue with the propriety of the Secretary's policy favoring ladder climbing safety devices over platforms as a means of fall protection and citing the absence of platforms as de minimis where ladder climbing safety devices are in use.  The Secretary can properly take the position that the absence of platforms is de minimis where an equivalent or more effective device is in use.  OSHA Field Operations Manual 224 (1983).  The Secretary did not cite Moore for a de minimis violation here because the absence of a landing platform coupled with the inoperative condition of the ladder climbing safety device clearly bears more than a negligible relationship to employee health and safety.   Moore's lack of knowledge that the safety device was inoperable is not relevant to that determination, however, and would be an improper basis on which to classify a violation as de minimis under the Act.

Lack of knowledge as to the operability of the ladder climbing safety device is relevant only if the standard required such devices. Thus, to base the decision on the argument of the respondent would be equivalent to judicially amending the standard to set forth the Secretary's preference for ladder climbing safety devices over platforms as a method of fall protection.  Such a change in policy from that embodied in the standard can only be accomplished through rulemaking.  The Commission is not the appropriate forum for such a change in OSHA's rules.  See, e.g., Schwarz-Jordan, Inc. of Dallas, 84 OSAHRC 11 BNA OSHC 2145, 1984 CCH OSHD 26,989 (No. 81-2738, 1984) (the Commission cannot weigh the merits of the policy decisions embodied in standards nor substitute its personal policy choice for that embodied in the standard).   We have frequently held that the plain meaning of a standard cannot be twisted to require of employers more stringent methods of protecting employees than is set forth in the standard. See, e.g., Schwarz-Jordan, Inc., supra, and Lisbon Contractors, Inc., 84 OSAHRC , 11 BNA OSHC 1971, 1974, 1984 CCH OSHD 26,924, p. 35,400 (No. 80-97, 1984).  This same principle precludes the Commission from ignoring the plain language of the standard to excuse an employer's failure to provide the required safety device, a landing platform.

The Secretary established all of the elements necessary to prove a violation of the cited standard.  The ladder on the Moore rig was 55 feet high, but was not equipped with any landing platforms.  Moore knew of its failure to equip the ladder with landing platforms.  The Secretary also established the elements of a serious violation.  As the accident in this case indicates, there was "a substantial probability that death or serious injury could result" in the event someone fell from the unguarded ladder.  The violation has therefore been established.   Accordingly, the citation for serious violation of 29 C.F.R. 1910.27(d)(2) is affirmed.  After considering the factors listed in section 17(k) of the Act, Commissioner Cleary and I assess a penalty of $490.



DATED:  AUG 28 1984

CLEARY, Commissioner, Concurring,

I concur in the disposition of this case.  However, I agree with the Secretary's position that a ladder climbing safety device would have provided alternative protection to employees, and accordingly, the failure to use this device is the gravamen of the violation.

The Secretary noted in his brief to the Commission that he considered the lack of landing platforms to be only a de minimis violation of the standard so long as the employer used ladder climbing safety devices.  The Secretary's enforcement policy recognizes that ladder climbing safety devices are an effective alternative way to protect oil rig workers from fall hazards. Accordingly, the essential questions of this case are whether the ladder climbing safety device was broken on the day of the accident and whether Moore knew the device was broken.

Unrebutted testimony established that the ladder climbing safety device was inoperative on the day of the accident.  The device had broken "at another job" and Moore had started this job with the broken device.  However, in order to prove a violation of the Act, the Secretary must show that the employer knew or could have known, with the exercise of reasonable diligence, of the violation. Prestressed Systems, Inc., 81 OSAHRC 43/D5, 9 BNA OSHC 1864, 1981 CCH OSHD 25,358 (No. 16147, 1981).  Moore contends that it did not know about the violation.  Moore claims that the ladder climbing safety device had broken some time earlier and no one at the site had informed the owners of the company.

Knowledge of a violation does not come solely from the direct knowledge of the employer's owners or officers.  A corporation must function through its employees and supervisors and the owners of any enterprise must delegate authority in order to operate the various aspects of their business.  Where, as here, the responsibility for the functioning of the drilling rig is under the direction of a supervisory official, it is not necessary in order to impute knowledge to show that any particular officials at the company headquarters, or the owners of the company personally were aware of a condition at the drilling site.  As the First Circuit pointed out in Central Soya de Puerto Rico v. Secretary of Labor, 653 F.2d 28 (1st Cir. 1981),

'Knowledge' by a corporate entity is necessarily a fiction; the corporation can only be said to 'know' information by imputing to it the knowledge of natural persons who serve as its agents.

Recognizing this, the courts and the Commission have held that normally an employer will be held responsible for the actions of its supervisors.  See Mountain States Telephone and Telegraph Co. v. OSHRC, 623 F.2d 155 (10th Cir. 1980); Western Waterproofing Co. v. Marshall, 576 F.2d 139 (8th Cir. 1978).  The Secretary makes out a prima facie case of knowledge by showing that supervisors knew of the violation.  H.E. Wiese, Inc., 82 OSAHRC 18/A2, 10 BNA OSHC 1499, 1982 CCH OSHD 25,985 (No. 78-204, 1982), aff'd, 705 F.2d 449 (5th Cir. 1983).

In this case, testimony at the hearing established that Mr. Vann and Mr. Wood knew that the rig did not have a ladder climbing safety device.  Wood was the operator of the rig; his duties included supervising the employees at the site.  Vann was a tool pusher and Wood's supervisor.

The administrative law judge found that Vann had "ultimate supervisory authority over the other employees at the site."  Since Vann and Wood were supervisors who had the authority to enforce safety rules at the jobsite, their knowledge should be imputed to their employer.  See Western Massachusetts Electric Co., 81 OSAHRC 63/B13, 9 BNA OSHC 1940, 1981 CCH OSHD 25,470 (No. 76-1174, 1981); Paul Betty, d/b/a Betty Brothers, 81 OSAHRC 18/B11, 9 BNA OSHC 1379, 1981 CCH OSHD 25,219 (No. 79-4271, 1981).

Since unrebutted evidence established that the ladder climbing safety device was broken on the day of the accident and that supervisors of Moore knew that the device was broken, the Secretary has established that the standard was violated.

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