Docket No. 89-1559

SECRETARY OF LABOR,
Complainant,
v.
WELL SOLUTIONS, INC.,
Respondent.

OSHRC Docket No. 89-1559

DECISION

BEFORE: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.
BY THE COMMISSION:

Well Solutions, Inc. is an oil well servicing company that maintained a worksite designated Rig #37, in Corpus Christi,Texas. On February 15, 1989, an OSHA compliance officer sought to inspect the worksite, but was refused permission because he did not have a warrant. Although he was not allowed to conduct an inspection, the compliance officer did observe several allegedly violative conditions while waiting for the supervisor to be contacted. The compliance officer returned to the worksite on February 18 with a warrant and conducted an inspection. As a result of his two visits to the worksite, respondent was issued two citations, one characterized as serious, the other as other-than-serious.

Item 1 of the serious citation alleges a violation of 29 C.F.R. § 1910.23(c)(1) for failure to guard the perimeter of a rig platform that was 60 inches above ground level. A penalty of $150 was proposed.

Item 2 of the serious citation alleges that respondent violated 29 C.F.R. § 1910.132(a) because employees without head protection were exposed to the hazard of being struck during rig operations. A Penalty of $100 was proposed.[[1]]

The other-than-serious citation alleged that respondent violated 29 C.F.R. § 1910.242(a) by permitting employees to use a 4-pound sledge hammer that was not in a safe condition. No penalty was proposed for this violation.

The case was heard by former Commission Administrative Law Judge Dee C. Blythe. In his decision, Judge Blythe vacated the citations. He suppressed most of the evidence relevant to items 1 and 2 of the serious citation, finding that it was obtained as a result of an illegal search. Judge Blythe considered the evidence relevant to the other-than-serious citation because it was obtained after the warrant was served. However, he vacated the citation on the merits.

For the reasons that follow, we reverse the judge's decision and affirm the citations.[[2]]

I. The Admissibility of Evidence

i
The threshold issue in this case is whether observations made by the compliance officer during his initial visit to the worksite on February 15, 1989 are admissible into evidence.

The compliance officer testified that, to reach the worksite, he had to "go down through a farm road, an unpaved road off of Farm to Market Road 136, and then travel north on another unpaved road about another mile."[[3]] He then parked his car on the road and walked to the worksite in the middle of a plowed field. The compliance officer testified that he did not have to open any gates to get to the site. One of respondent's employees, Gonzales, a "toolpusher" and apparent supervisor, came over to a portable shed and talked to the compliance officer. The shed was outside the guy wires that were supporting the rig. While talking to Gonzales the compliance officer was able to observe the rig, which was approximately 70 feet away. Because the compliance officer did not have a warrant, Gonzales refused to allow the inspection and the compliance officer left the site.

Although he was not allowed to conduct an inspection, the compliance officer observed that the edges of two of the platforms levels on the rig did not have guardrails and that Gonzales and a second employee were not wearing hard hats. When the compliance officer returned to the site with a proper search warrant on February 18, the platforms were guarded and all employees were wearing hard hats.

In addition to the evidence gathered as a result of the February 18 inspection, the Secretary sought to introduce into evidence the compliance officer's testimony regarding the lack of guardrails and hard hats on February 15. Judge Blythe, relying on Laclede Gas Co., 7 BNA OSHC 1874, 1979 CCH OSHD ś 24,007 (No. 76-3241, 1979), suppressed the evidence obtained by the compliance officer on February 15, holding that the testimony did not establish that the compliance officer was in a public place where he had a right to be when he made his observations. In Laclede the Commission held that an employer's Fourth Amendment right to privacy was not violated when the worksite was open to view from a "public thoroughfare." Laclede, 7 BNA OSHC at 1877, 1979 CCH OSHD at p. 29,153. Judge Blythe distinguished this case by the lack of evidence establishing that the roads the compliance officer traveled to get to the worksite were public, as opposed to private, roads.

ii
Generally, an observation by a compliance officer of that which is open to public view does not constitute a search that might infringe on an employer's Fourth Amendment rights. See v. City of Seattle, 387 U.S. 541 (1967). The government's obligation to obtain a search warrant prior to a nonconsensual search extends only to those areas where the party being searched has a reasonable expectation of privacy. Laclede Gas Co., 7 BNA OSHC at 1877, 1979 CCH OSHD at p. 29,153. Where there is no reasonable expectation of privacy, there can be no Fourth Amendment violation. Id. The Commission has held that an employer cannot claim a reasonable expectation of privacy where the worksite is observed from a public thoroughfare, open to public view. Ackermann Enterps., Inc., 10 BNA OSHC 1709, 1712, 1982 CCH OSHD ś 26,090, p. 32,839 (No. 80-4971, 1982); Laclede, 7 BNA OSHC at 1877, 1979 CCH OSHD at p. 29,153; Minnotte Contrac. & Erection Corp., 6 BNA OSHC 1369, 1371-2, 1978 CCH OSHD ś 22,551, p. 27,215 (No. 15919,1978); Environmental Utilities Corp., 5 BNA OSHC 1195, 1197, 1977-78 CCH OSHD ś 21,709, p. 26,074 (No. 5324,1977). This exception from the requirements of the Fourth Amendment has been referred to as the "open fields" doctrine. The "open fields" doctrine may apply even when the government agent technically trespasses on private property to make his observations. Ackermann, 10 BNA OSHC at 1712, 1982 CCH OSHD at p. 32,839. The critical factor in finding the exception is whether the government agent is on land from which the general public is excluded. If the observations are made from an area easily accessible and visible to the general public, Fourth Amendment protections do not apply. Ehlers v. Bogue, 626 F.2d 1314, 1315 (5th Cir. 1980).

iii
The question before the Commission in this case is whether the judge erred in rejecting the application of the "open-fields" doctrine to the aforementioned circumstances. Having reviewed the circumstances, we must conclude that the judge did err. Regardless of whether the roads were public or private, the record establishes that the roads leading to respondent's worksite were open to the public and that the rig was located in a plowed field not set off by a gate or other obstacle. Thus, as in Ackermann, the employer could have no reasonable expectation of privacy with respect to the view of its drilling operation.

II. VALIDITY OF THE CITATIONS

A. Failure to Guard Platforms

Item 1 of the serious citation alleges a violation of 29 C.F.R. § 1910.23(c)(1)[[4]] for failure to guard a rig platform 60 inches above the ground. A penalty of $150 was proposed.

The compliance officer testified that, during his visit to the site on February 15, he observed that the edges of two of the levels of the rig platform were not equipped with railings. He also testified that, although they were not installed, the railings were at the site. The compliance officer was not able to measure the height of the platforms until February 18 when he found them to be 45 and 60 inches [[5]] above the ground. Although the height of the platforms was adjustable and he was approximately 70 feet from the rig on February 15, the compliance officer testified that the platform levels were at the same height on both February 15 and 18.

Since the judge suppressed the evidence obtained by the compliance officer on February 15, he vacated this citation item because there was no other evidence that the platform was unguarded. However, the judge also found that, even if the February 15 observations were admitted in evidence, a question remained as to whether the compliance officer's observations made from a distance of over 70 feet were sufficient to establish that the platform height was the same on February 15 and 18. We disagree.

The judge's concern regarding the accuracy of observations made from a distance of over 70 feet is understandable. However, the evidence at issue is not directed at a height estimate made from great distance. Rather, the testimony focuses on an observation that the height of the platform appeared to have been identical on both days. Estimations of distance based on observations are admissible and may be dispositive in the absence of proof to the contrary. See Fed. R. Evid. 701: Stephenson Enterps., 4 BNA OSHC 1702, 1703,1976-7 CCH OSHD ś 21,120, p. 25,428 (No. 5873, 1976), aff'd, 578 F.2d 1021(5th Cir.1978). This testimony was unrebutted. We therefore find that the compliance officer's testimony, that the height of the platforms did not change between February 15 and February 18 and that on February 18 the height of one of the platform levels was 60 inches, is sufficient to establish that the platform was more than four feet in height on February 15.

Although respondent did introduce evidence that the height of the platforms was adjustable, it never attempted to establish that any height adjustments were made between February 15 and 18. The only testimony regarding any possible change in height came from respondent's safety director who testified that, while it was possible to change the height of the platform, he did not know whether any such adjustment had been made. Because Well Solutions failed to rebut the Secretary's showing that the edge of a platform 60 inches high was unguarded, we find that the Secretary established a violation of section 1910.23(c)(1).

Section 17(k) of the Act, 29 U.S.C. § 666(k), provides that a violation is serious if there is a substantial probability that death or serious physical harm could result from the violation. Here, the compliance officer's testimony, that there was a possibility of broken bones or paralysis if an employee fell, was not rebutted. This is sufficient to establish that a fall from the platform could have resulted in death or serious physical harm. We therefore find that this violation was serious.

The Commission must give due consideration to the size of respondent's business, the gravity of the violation, respondent's good faith and its history of previous violations in assessing a penalty under section 17(j) of the Act, 29 U.S.C. § 666(j). Having considered the evidence relating to those factors as it is set out in the record, we find the proposed penalty of $150 to be appropriate.

B. Failure to Wear Hard Hats.
Item 2 of the serious citation alleges that respondent violated 29 C.F.R. § 1910.132(a)[[6]] because employees without head protection were exposed to the hazard of being struck during rig operations. A penalty of $100 was proposed.

The compliance officer testified that, during his February 15 visit to the site, two employees were wearing soft baseball caps instead of appropriate head protection. When he got to the site, the compliance officer noticed these two employees standing adjacent to the rig, within the area where the guy wires came down. One of the employees, Gonzales, met the compliance officer shortly after his arrival at the job site. The other employee was not identified. The compliance officer testified that, at the time, respondent was picking up 30- to 32-foot sections of pipe and that the two employees were exposed to the hazard of having something fall on them from the rig.

The compliance officer testified that, before Gonzales approached him, Gonzales was standing adjacent to the rig.[[7]] However, respondent's safety director testified that Gonzales told him that he was not wearing his hard hat because he was always in a safe area. When the compliance officer returned to the site on February 18, all employees were wearing appropriate head protection.

The judge vacated the item because he suppressed the compliance officer's testimony that employees were not wearing hard hats during the compliance officer's visit of February 15.

In light of our having found admissible the compliance officer's testimony regarding his observations of February 15, we conclude that the evidence is sufficient to establish the violation. The compliance officer testified that two employees, one of whom was a supervisory employee, were not wearing hard hats while exposed to the hazard of falling objects. The testimony of respondent's safety director that disputes this testimony as to Gonzales is hearsay in its purest sense. Gonzales' "statement" that he was in a safe area was introduced to establish the truth of that proposition, yet Gonzales was not called to testify. Fed. R. Evid. 801(c)[[8]]. The Secretary was, therefore, deprived of the opportunity to cross-examine Gonzales. Moreover, the declaration does not fit into any of the accepted exceptions to the hearsay rule. Furthermore, the statement attributed to Gonzales was completely self-serving and, without subjecting Gonzales to cross-examination, there is no basis for evaluating the inherent trustworthiness of the statement. We therefore conclude that there is nothing in the record to justify the admissibility of the statement. Fed. R. Evid. 803(24)[[9]].

The compliance officer's testimony that death or paralysis have occurred is something had fallen on an employee's head, establishes the seriousness of the violation within the meaning of section 17(k) of the Act. Therefore, we find the proposed penalty of $100 to be appropriate in light of the penalty factors set out in section 17(j) of the Act.

C. Broken Sledge Hammer Handle
The other-than-serious citation alleged that respondent violated 29 C.F.R. § 1910.242(a)[[10]] because employees were exposed to hazards stemming from the use of a 4-pound sledge hammer with a cracked handle. No penalty was proposed for the violation.

The compliance officer testified that, during his February 18 inspection, he observed a 4-pound sledge hammer with a crack that extended halfway down the handle. The hammer was adjacent to a walkway and had mud on it, indicating that it had been used.

The judge vacated the item on the ground that the compliance officer never explicitly stated that the cracked handle rendered the tool unsafe. The judge opined that, without direct evidence that the hammer was unsafe, the question is whether a reasonable inference could be made regarding the unsafe nature of the hammer. Noting the slight and easily met nature of the Secretary's burden on this item, he concluded that it was not proper to leave the matter to inference.

The Secretary urges the Commission to use simple common sense and conclude that a handle that is cracked through a substantial part of its length poses a safety hazard. She contends that the judge erred by ignoring the patently obvious hazards that are connected to the use of a hammer in this condition. We agree.

The judge vacated the item because the compliance officer failed to utter the "magic words" to the effect that the use of the hammer posed a hazard. However, the fact that the compliance officer believed that the use of the hammer posed a hazard because of the potential of breaking is obvious from the citation. Moreover, the record does not indicate that respondent lacked any understanding of the nature of the charge. As the Secretary suggests, the hazardous nature of a 4-pound sledge hammer in such a condition is patently obvious. The photograph introduced at the hearing clearly depicts a badly broken handle. In our opinion, it would not have taken much force for the handle to break and cause the head of the hammer to fly off, creating a hazardous condition.

We therefore find that the judge's reliance on the lack of "magic words" was unnecessarily technical. The charge contained in the citation, combined with the condition of the hammer depicted in the photograph and the testimony of the compliance officer that the hammer was available for use by employees, is sufficient to establish that the hammer was not in safe condition, in violation of section 1910.242(a). Respondent introduced no contrary evidence. Therefore, we affirm the item as other-than-serious. No penalty is assessed.

Ill. ORDER
Accordingly, the judge's decision is reversed. Items 1 and 2 of the serious citation are affirmed. A penalty of $150 is assessed for item 1 and a penalty of $100 is assessed for item 2. Item 1 of the other-than-serious citation is affirmed, and no penalty is assessed.

Edwin G. Foulke, Jr.
Chairman

Donald G. Wiseman
Commissioner

Velma Montoya
Commissioner

Dated: June 18, 1992

SECRETARY OF LABOR,
Complainant,
v.
WELL SOLUTIONS, INC.,
Respondent.

OSHRC DOCKET NO. 89-1559

DECISION AND ORDER
Appearances:

Jerome T. Kearney, Esq., of Dallas, Texas, for the Complainant.

George R. Carlton, Esq., of Dallas, Texas for the Respondent.

BLYTHE, Judge:

PROCEDURAL HISTORY
Pursuant to an inspection warrant, Robert Konvicka, a compliance officer ("CO") of the Occupational Safety and Health Administration ("OSHA"), on February 18, 1989, inspected a workplace 7 miles north of Gregory, Texas, where the respondent, Well Solutions, Inc., was completing an oil well. As the result of this inspection, two citations were issued April 26, 1989, charging respondent with serious and "other" violations of § 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 ("the Act") and the safety standards promulgated thereunder. Respondent timely filed a notice of contest May 3, 1989, thus invoking the jurisdiction of the Occupational Safety and Health Review Commission ("the Commission"). Thereafter the Secretary of Labor ("the Secretary") filed a formal complaint, to which respondent filed an answer. The case came on for hearing March 30, 1990 in Corpus Christi, Texas. Neither party has filed a posthearing brief.

DISCUSSION AND OPINION
I
The CO, accompanied by his supervisor, attempted to inspect respondent's workover rig on February 15, 1989, but the tool pusher demanded an inspection warrant (Tr. 5-6). Before departing, the CO noted that a two-level platform on the rig had no guardrails (Tr. 9). When the CO returned two days later with an inspection warrant, the platform was guarded by guardrails. He measured the height of the two levels and found one to be 48 inches and the other 60 inches above ground level (Tr. 12). He testified that when he observed the platform on February 15, from a distance of approximately 70 to 90 feet, the height of the two levels of the platform appeared to him to be the same as it was on February 18 (Tr. 33-35, 36-37).

Respondent introduced no evidence to contradict the CO, so the question is whether the CO's testimony was sufficient to establish a violation of 29 C.F.R. 1910.23(c)(1).[[1]]

Respondent's rig was in a muddy, plowed field which was reached via a roundabout route (Tr. 18). This route was described by the CO as follows:

"You would have to go down, through a farm road, an unpaved road off of Farm to Market Road 136, and then travel north on another unpaved road about another mile" (Tr. 18). This testimony did not establish that the CO was in a public place where he had a right to be when he made his observations on February 15. Laclede Gas Co., 79 OSAHRC 94/E13, 7 BNA OSHC 1875, 1979 CCH OSHD ś 24,007 (No. 76-3211, 1979).

Even if this testimony would otherwise be competent, I am not convinced that the CO's observation from a distance of 70 to 90 feet is sufficient to establish that the platform height was the same on February 15 as it was on February 18. The Secretary has not met her burden of proof for Item 1, citation 1.

II
When the CO visited respondent's workplace on February 15, 1989, he observed two men near the rig who were wearing baseball caps instead of hard hats (Tr. 17), so a citation was issued (item 2, citation 1) alleging a violation of 29 C.F.R. §1910.132)(a)[[2]]. One of the men was respondent's toolpusher, but the other was never identified (Tr. 19, 39). When the CO returned February 18, 1989, with an inspection warrant, the whole crew was wearing hard hats.

The CO's testimony on this time suffers the same infirmity as it did on the scaffolding items. The "plain view" doctrine does not apply because the CO's observations on February 15 were not made from a place where he had a right to be.

III
Item 3 of citation 1 alleges that Respondent was in serious violation of 29 C.F.R. §1910.151(b)[[3]] in that its employees did not have ready access to first aid by a physician or other person trained to render such aid. The CO testified that the workplace was 45 minutes to an hour from medical treatment by a physician (Tr. 21), whereas the Commission has held that effective first aid must be administered within three minutes. Love Box Co., 76 OSAHRC 45/D5, 4 BNA OSHC 1138, 1975-76 CCH OSHD ś 20,588 (No. 6286, 1976). The tool pusher had been trained in first aid by the Red Cross but his certificate was out of date (Tr. 44). The date of the certificate was not proved.

There is no requirement that a person be trained or certified by the Red Cross to comply with this standard. Snyder Well Servicing, Inc., 82 OSAHRC 10/C5, 10 BNA OSHC 1371, 1982 CCH OSHD ś 25,943 (No. 77-1334, 1982). In fact, it is only required that a person be "adequately trained." I decline the invitation to infer that a lack of up-to-date certification means a lack of adequate training on the part of the tool pusher.

Absent more positive evidence, the Secretary has failed to carry her burden of proof.

IV
Item 1 of citation 2 alleges a non-serious violation of 29 C.F.R.§ 1910.242(a)[[4]] in that a 4-pound sledge hammer had a cracked handle, which is visible in a photograph, exhibit C-3. The cited standard requires employers to maintain tools in a "safe condition". The CO never stated that the cracked handle made the sledge hammer unsafe or hazardous. The question then is whether there is a reasonable inference that this tool's condition was unsafe. The evidentiary requirement is very slight and easily met. However, this is all the more reason why it should not be left to inference. This item is vacated. Cf. Burk Well Service Co., 85 OSAHRC 49/A3, 1984-85 CCH OSHD ś 27,453 (No. 79-6060, 1985). (Some, though slight, evidence is needed to establish that the employer was engaged in commerce).

FINDINGS OF FACT
1. Respondent has admitted the jurisdiction and coverage allegations of the complaint.

2. The CO made observations on February 15, 1989, which he attempted to use to support items 1 and 2 of citation 2, involving conditions on February 18, 1989, although respondent had demanded an inspection warrant. On February 15, 1989, the CO was not in a public place from which he could legally make such observation under the "plain view" doctrine.

3. The tool pusher had received first aid training, and the fact that his card showing this fact was out of date was not controlling.

4. A 4-pound sledge hammer had a cracked handle but there was no evidence that this condition was unsafe.

CONCLUSIONS OF LAW

1. The Commission has jurisdiction of the parties and subject matter of the proceeding.

2. On February 18, 1989, respondent was not in violation of any of the standards alleged in the citation here involved.

ORDER

All citations issued to Well Solutions, Inc., on April 26, 1989, should be and are hereby VACATED.

So ORDERED.

DEE C. BLYTHE
Administrative Law Judge

Date: August 20, 1990

FOOTNOTES:

[[1]] Item 3 of the serious citation alleged a violation of 29 C.F.R. § 1910.151(b) on the grounds that there was neither an infirmary, clinic, or hospital in near proximity of the workplace. The item was vacated on the merits. The Secretary has not sought review of the judge's disposition, and we shall not disturb it.

[[2]] The Secretary has filed a Motion for Default Judgment based on respondent's failure to either file a brief or otherwise respond to the Commission's briefing notice. We hereby deny the motion. We note, however, that when, as here, the non-petitioning party fails to respond to a briefing notice, that party runs the risk of having the Commission decide the case without having had the opportunity to hear its views and arguments to the Commission. 29 C.F.R. § 2200.93(d), Commission Rule 93(d).

[[3]] Although the compliance officer testified that the public had access to the roads, it was not established whether any of these roads were public or private.

[[4]] The standard states in pertinent part:

§ 1910.23 Guarding floor and wall openings and holes.

(c) Protection of open-sided floors, platforms, and runways. (1) Every open-sided floor or platform 4 feet or more above adjacent floor or ground level shall be guarded by a standard railing (or the equivalent as specified in paragraph (e) of this section) on all open sides except where there is entrance to a ramp, stairway, or fixed ladder.

[[5]] The platform that was allegedly 60 inches above the ground is the subject of this item.

[[6]] The standard provides:

§ 1910.132 General requirements.

(a) Application. Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition whenever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.

[[7]] When the compliance officer spoke to Gonzales, they were outside the guy line pattern, in an area safe from falling objects.

[[8]] The rule states:

Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

[[9]] The rule states defines "Other exceptions" as:

A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts, and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial of hearing to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant.

[[10]] The standard states:

§ 1910.242 Hand and portable powered tools and equipment, general.

(a) General requirements. Each employer shall be responsible for the safe condition of tools and equipment used by employees, including tools and equipment which may be furnished by employees.

[[1]] The cited standard provides:

(c) Protection of open-sided floors, platforms, and runways. (1) Every open-sided floor or platform 4 feet or more above adjacent floor or ground level shall be guarded by a standard railing (or the equivalent as specified in paragraph (e) (3) of this section) on all open sides except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a toeboard wherever, beneath the open sides,

(i) Persons can pass,
(ii) There is moving machinery, or
(iii) There is equipment with which falling materials could create a hazard.

[[2]] This standard states:

§ 1910.132 General Requirements.

(a) Application. Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards or processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.

[[3]] The cited standard provides:

(b) In the absence of an infirmary, clinic, or hospital in near proximity to the workplace which is used for the treatment of all injured employees, a person or persons shall be adequately trained to render first aid. First aid supplies approved by the consulting physician shall be readily available.

[[4]] The cited standard provides:

§ 1910.242 Hand and portable powered tools and equipment, general.

(a) General requirements. Each employer shall be responsible for the safe condition of tools and equipment use by employees, including tools and equipment which may be furnished by employees.