SECRETARY OF LABOR,
ALLEN'S CASING CREWS, INC.,
OSHRC Docket No. 89-3423
This case was directed for review on the issue of whether Administrative Law Judge Louis G. LaVecchia erred in vacating citation 1, item 1, which alleged that Allen's Casing Crews, Inc. ("Allen's") committed a serious violation of 29 C.F.R. § 1910.132(a) by failing to maintain a safety belt lanyard in reliable condition because the latch on the lanyard would not properly lock. The Secretary of Labor argues that the judge relied on the wrong evidence in deciding to vacate the item. Having reviewed the record, we conclude that the judge apparently did err in his consideration of the evidence concerning this item. We remand this case to him to resolve this matter.
A representative of the U.S. Department of Labor's Occupational Safety and Health Administration conducted an inspection of an oil drilling rig that was the site of a fatal accident near Crane, Texas, resulting in the issuance of a citation to Allen's alleging two serious violations. Item 1 of the citation alleged that the inoperable safety catch on a lanyard was in violation of section 1910.132 (a), which provides that "[p]rotective equipment... shall be provided, used, and maintained in a... reliable condition . . . ." As the judge acknowledged at one point in his statement of the facts, "[t]his [lanyard] was not the same equipment that had been used by the deceased employee." Rather, it was used by a member of the replacement crew following the accident.
Item 2 of the citation alleged a serious violation of 29 C.F.R. § 1910.132(c), based on the excessive length of another lanyard, the one worn by the deceased employee at the time of his accident. Section 1910.132(c) requires that "[a] 11 personal protective equipment shall be of safe design and construction for the work to be performed."
In the portion of his decision entitled "Relevant Facts," the judge included the following evidence concerning item 1:
The witness [Barney Marquez] identified exhibits C-7 and C-8 as photographs of the lanyard and belt that he used when he finished the stabbing job. . . . He further testified that the lanyard he used ([exhibits] C-7 and C-8) had a defective snap-hook (missing spring).
During his cross-examination of this witness, the owner of Allen's, appearing pro se, explained that there was no spring in the lanyard latch because "with the spring in it, it would not go over the rope."
The evidence noted immediately above was not mentioned by the judge in the "Discussion" portion of his decision, where he set forth his reason for vacating item 1. Instead, he discussed evidence as to how the lanyard of the deceased employee had broken. Then, he stated that "[i]n its damaged condition no conclusion can be reached to support a finding that the equipment was not properly provided, used, and maintained." (emphasis added). Because the only damaged lanyard was the one involved in item 2, it appears that, the judge relied on evidence that was introduced for that item in vacating item 1, while not considering the evidence in the record addressing item 1, some of which he had previously noted in his statement of the facts.
In light of the discussion above, we set aside the judge's disposition of item 1 and remand this case to the judge to review the record and to consider the evidence presented by both parties concerning item 1. Any amended decision entered by the judge should clearly state what evidence he is relying upon for his disposition of item 1.
Edwin G.Foulke, Jr.
Donald G. Wiseman
Dated: October 8, 1991
SECRETARY OF LABOR,
ALLEN'S CASING CREWS, INC.,
Docket No. 89-3423
For the Complainant: Sara D. Smith, Esq.,
For the Respondent: Larry Allen, Pro Se
DECISION AND ORDER
L. LaVecchia, Judge
This proceeding arises under Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq.), referred to as the "Act."
The respondent was cited by the Occupational Safety and Health Administration, also known as "OSHA," for alleged violations of the safety and health standards promulgated under the Act.
As a result of a fatality investigation made by an OSHA compliance officer on October 18-19, 1989, two citations were issued against the respondent. The first citation, characterized as "serious," alleges that the respondent violated the safety standard set forth at 29 CFR 1910-132(a) for not maintaining protective equipment in a sanitary and reliable condition. Specifically, it is charged that:
The Casing Crew for Unit #7 was operating south of Crane, Texas on Hondo Drilling Rig #9 on or about October 18, 1989. The Rose safety belt Model 502503 and lanyard used by an employee was not maintained in reliable condition. The buckles on the lanyard would not stay closed and the belt's grommets were damaged by storing tools on top of safety equipment. Equipment must be clean, inspected and stored in a safe place. The Casing Stabber (employee) was exposed to a fall from elevation hazard of approximately 40 feet.
It is further charged in the first citation that the respondent violated the safety standard set forth at 29 CFR 1910.132(c) because all personal protective equipment was not of safe design and construction for the work to be performed.
Specifically, it is charged that:
The Casing Stabber was exposed to a fall from elevation hazard of approximately 40 feet while running 5 1/2 inch casing. The lanyard did not limit the fall to less than 6 feet when employee mover, above stabbing board. Protective equipment must be safe while in use from all work positions.
A second citation, issued at the same time, alleged a violation
characterized as "other," but this charge was withdrawn by the complainant after
the hearing. Citation No. 2 will therefore be vacated.
A hearing was held in this matter on July 20, 1990 in Midland, Texas at which time both parties presented evidence in support of their respective positions. Post-hearing briefs were not filed.
The respondent employs about 20 employees and is engaged in performing oil and gas well servicing for the producers of those products (Tr. 14-15). Its annual gross income approximates 1.2 million dollars (Tr. 13).
On or about October 18, 1989 the respondent was engaged in well servicing operations on Hondo Drilling Rig #9 near Crane, Texas when a fatal accident occurred, resulting in the death of one of its employees. The deceased man had been working at the 41-foot level of the oil well rig being serviced on the above date (Exs. C-1, 2, 3). While so engaged he fell to his death. (Ex. C-5)
Don Mills, formerly employed by the respondent, worked for a short time during the period leading up to the fatal accident. He had worked on oil rigs most of his working career, but had never performed any "stabbing" operations which require working at higher levels of the rigs for the installation of casing in wells. However, on the date of the accident he had been scheduled to mount the derrick toward the end of the operations in order to try his hand at "stabbing." This work was being performed by the deceased at the time of his fatal fall from the derrick (Tr. 24-25). The witness recalled having been provided with a safety belt and lanyard, but stated that he had not been given any instructions on how to use them; nor was he given any instructions on how and where to tie off the lanyard (Tr. 28-29). He previously had worked for ten or eleven drilling contractors before the respondent. Since he was a floor hand he was not required to mount the derricks and was given no safety belt training. He mounted a derrick on one occasion only, but other than being told that it had to be worn he received no other training or instructions. (Tr. 30-31).
Larry Steel testified that he was presently employed by a drilling company as a "derrick man." He has had more than 10 years' experience in the field of gas and oil drilling, and was employed in the past by the respondent. He was part of the work force at the time of the fatal accident, working as a "caser." This involves rigging up and running pipe. He had earlier that day worked as a "stabber," which entails mounting the derrick and guiding the pipe down into the well. He "stabbed" about 20 such joints into the well. (Tr. 34-35). He identified in exhibit C-2 a lanyard which had been broken (pulled in two), and from which the safety belt had fallen. (Tr. 37). He identified the traveling blocks shown in exhibit C-3 (red in appearance) and described their function in picking up casing and moving it into position for installation in the well. (Tr. 39). The crew, including the deceased workman (Barnett) took turns using the same lanyard when they alternated working on the derrick in the "stabbing" operation. The lanyard was about 8 or 9 feet long. (Tr. 40-41). It was made of cable, perhaps 1/4 inch size and was sheathed in plastic. (Tr. 41-42). He expressed the opinion that a 6- foot lanyard would be too short to permit the required work when working on a derrick in the described type of operations. (Tr. 42). He felt that it would be unsafe because it would require disconnecting it in order to move about on the derrick from beam to beam, etc. He normally ties off the lanyard to the side of the rig. On the date of the accident, because the derrick was not level (out of plumb) the blocks were hanging "way to one corner" of the rig. The wind was blowing pretty hard that day in the same direction as the blocks, but he did not feel that the wind would have much effect on the blocks. (Tr. 42-44). The blocks usually sway as they are elevated upwards in the derrick. The casing joints being installed were about 32 to 42 feet long. (Tr. 47). The witness identified the broken lanyard in exhibit C-4 as the one he had been speaking of in his testimony. (Tr. 49).
On cross-examination by the respondent's president (pro se) he witness once again described the difficulties involved in moving about the derrick while the lanyard had to be disconnected in order to make the required movements. In the realm of real evidence, the respondent presented the lanyard and safety belt in question for the purpose of showing that there was orange paint on them, indicating that the orange-painted blocks had apparently struck the belt and lanyard, knocking the deceased off the derrick. (Tr. 61-64). (Ex. R-1).
Curtis Lemons has had 10 years' experience in oil field work, and although he was presently employed by another company, he had worked in the past for the respondent. He was a foreman, or crew leader during the 3 or 4 years that he worked for the respondent. The safety belt and lanyard involved in this accident were the personal property of the witness, although the respondent would have provided that equipment upon request. (Tr. 68). He permitted other employees, including the deceased, to use his equipment, but he gave them no instructions with respect to tying off the lanyard, and stated that "I don't think you would find anybody in the oil field that has had any kind of training like that." On the other hand he stated that Mr. Allen conducted safety meetings about once a week. he used the lanyard every day, but did not use a safety belt because he had seen two men fall from derricks while wearing safety belts. One was fatally injured. (Tr. 69). he estimated that his lanyard was 7 or 8 feet in length, but that if it were tied off at some point in the derrick it would be shorter. In further testimony he contradicted himself by stating that he never uses either a lanyard or a safety belt, but that he braced himself against "belly" ropes or "back ropes" in order to keep from falling off the derrick. (Tr. 70) He felt that this accident was caused by the employee's use of the safety belt. (Tr. 72). He further stated that the compliance officer had told him in the past that the belly ropes could be used as safeguards against falling instead of the safety belt. (Tr. 73).
This witness also stated that on the day of the accident the derrick was not as level as it should have been since the blocks did not hang straight down and struck the sides of the derrick when moving in the lifting and positioning of the casing joints. The problem was discussed with the job superintendent or his assistant, but not with Mr. Allen because the latter was not on the jobsite at that time. (Tr. 74-75). The superintendent acknowledged that the derrick was not plumb. (Tr. 75). However, the witness stated that although the stabbing operation was made more difficult by the leaning derrick, he did not feel that it made matters unsafe. The leveling of the rig would be very expensive. (Tr. 76).
The witness had worked on many rigs and stated that something could be found wrong with almost all of them if they were subjected to careful inspection. (Tr.79).
Barney Marquez, recalled by the complainant, stated that he had worked for the respondent about five and a half years, primarily as a stabber. He testified that he had been provided with a safety belt and lanyard by the crew hauler, and that he always used them. He never had received any instructions on how to use that equipment when working for the respondent, but stated that he already knew how to safely use the equipment. (Tr. 83-82). He was not working on the day of the accident, but was called onto the job to finish the stabbing operations later in the day. He worked on the beam, not on the stabbing board, at the 41 or 42-foot level. (Tr. 82-83).
The witness identified exhibits C-7 and C-8 as photographs of the lanyard and belt that he used when he finished the stabbing job. He figured the lanyard to be 7 or 8 feet long. (Tr. 83- 84). This was not the same equipment that had been used by the deceased employee. (Tr. 85- 86). He further testified that the lanyard he used (Exs. C-7 and C-8) had a defective snap-hook (missing spring). He expressed some reservations about using the spring-hook for tying the lanyard off because he felt that it would be difficult to get out of if necessary. He stated that he would rather tie a half-hitch in the lanyard in tying off at some point on the derrick. (Tr. 87-91).
On cross-examination this witness stated that the latch on the lanyard hook was not bent; that the spring in the latch had been removed in order to permit the hook on the latch to fit over the rope. He said the rope was bigger than the latch opening when the spring was not removed. (Tr. 91).
Mr. Bill Goolsby testified that he was employed by Tyler Pipe Industries, in Tyler, Texas, and that he had set up a safety training program for that company. He had had many years of experience in safety matters pertaining to drilling rigs, etc., and had had some of his work published in the oil and gas drilling field. He had worked with the American Petroleum Institute in the evolvement of safety standards used in the drilling industry. (Tr. 95-98). He qualified as an expert witness with respect to oil and gas well drilling matters. (Tr. 98).
The witness had been contacted by OSHA for purposes of testifying in this case and had been made familiar with the incident involved. (Tr. 99). He stated that the industry considers the type of work that was being performed in this case to be hazardous, requiring the use of personal protective equipment. (Tr. 101).
He indicated that the industry practice or custom is to provide equipment to the employees, allowing the employees to choose the point to which the lanyard will be attached. An important factor in the decision as to where to tie off is to consider the length of the fall before the lanyard takes hold--a lanyard of excessive length might fail to halt the fall of an individual. The belly ropes used by men working in the derrick serve to protect the employees from falling from the derrick. The witness stated that it is customary for the employee to use a belt with loops through which attachment to the belly rope can be made for protection. He testified that some employees working on the derricks are reluctant to tie off to anything on the derrick for fear that they might be dragged off the stabbing board by the blocks. (Tr. 103-104).
The American Petroleum Institute recommends that lanyards be at least one-half inch in diameter, of nylon material or equivalent, and be adjusted to permit a maximum fall of 5 feet. (Tr. 108).
The witness expressed the opinion that the deceased employee had tied off the lanyard in the wrong location. He also felt that the personal protective equipment provided by the respondent was not of safe design and construction suitable for the work being performed. He also felt that the missing spring in the lanyard hook was indicative that the equipment was not kept in reliable condition. (Tr. 122-23).
There are some workers who prefer using belly ropes for safety purposes, and there are some who don't like the idea of using safety belts or lanyards or any such equipment -- they want to feel free to move about without restriction. (Tr. 125).
On cross-examination the witness admitted that he had never run
any casing. (Tr. 134).
The safety standard at 29 CFR 1910.132(a) provides:
Protective equipment, including personal protective equipment * * * shall be provided, used, and maintained in a sanitary and reliable condition * * *
The safety standard at 29 CFR 1910.132(c) provides:
All personal protective equipment shall be of safe design and construction for the work to be performed.
In the absence of the compliance officer's testimony it is difficult to reach any conclusions with respect to whether the safety belt and lanyard worn by the deceased were defectively maintained. From the mish-mash of evidence presented by the parties it appears that the accident resulted from the traveling blocks striking the belt or lanyard or both which were being worn by the deceased as he worked at the 41-foot level of the derrick. The reddish-orange paint on the belt and lanyard produced by the respondent at the hearing substantiate the respondent's theory that the blocks, traveling upward, struck the deceased's equipment, pulling him off the derrick, breaking the lanyard, and causing him to fall to his death. In its damaged condition no conclusion can be reached to support a finding that the equipment was not properly provided, used, and maintained. Accordingly, Item 1 of Citation No. 1 (Serious) must be vacated.
Item 2 of Citation No. 1 (Serious) grew out of a charge that
the lanyard on another belt and lanyard combination (owned by the employee using it) had a
lanyard which was long enough to permit a fall of more than 6 feet. But the employee
stated that he preferred not to clip the lanyard to the derrick structure for fear of
being unable to untie himself in the event of an emergency. He would rather wrap the
lanyard around an object in a half-hitch tie-off, on the theory that it would be easier to
free himself from the derrick in the event of a collapse of the structure or other
emergency. The evidence indicates that there is a natural fear among those employees
engaged in working at heights such as those in this case that they might not be able to
extricate themselves from safety belts and lanyards if necessary. Some employees prefer to
work without any safety belts or lanyards on the theory that they are then free to move
without restriction in the event of an emergency. It is also apparent that when a lanyard
is wrapped around a point in the derrick structure it loses much of its length and the
actual drop of an employee's body in an emergency would probably be less than 6 feet. In
the circumstances, this item must also be vacated.
Citation No. 2 having been withdrawn by the complainant, is therefore vacated.
CONCLUSIONS OF LAW
1. The Review Commission has jurisdiction of this matter and the parties.
2. The respondent did not violate the standard at 29 CFR 1910.132(a).
3. The respondent did not violate the standard at 29 CFR
Citations 1 and 2 are vacated.
Louis G. LaVecchia Judge,
DATED: AUG 15, 1991