UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
|
SECRETARY
OF LABOR, |
|
|
Complainant, |
|
|
v. |
OSHRC
DOCKET NO. 13973 |
|
BIG ‘6’ DRILLING COMPANY, |
|
|
Respondent. |
|
August 1, 1977
DECISION
Before: BARNAKO, Chairman
and CLEARY, Commissioner.
CLEARY, Commissioner:
This case is before the Commission by my order granting complainant’s
petition for discretionary review pursuant to section 12(j) of the Occupational
Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. [hereinafter ‘the Act’].
The petition raised the following issues:
(1) Whether the Administrative Law Judge erred in
concluding that the citations in this case are properly before the Commission
for disposition?
(2) Whether the case should be remanded for further
hearing for the purpose of receiving evidence concerning the alleged
violations?[1]
Having considered the parties’ submissions and reviewed
the entire record, we conclude that the citations are properly before the
Commission and remand the case for further hearing.
Respondent, Big ‘6’ Drilling Company, was issued two
citations following a June 16, 1975, inspection of its oil and gas well
drilling rig in Silsbee, Texas. The first citation alleged eight nonserious
violations of section 5(a)(2) of the Act. The second citation alleged a serious
violation of section 5(a)(1) of the Act. Penalties totaling $805 were proposed
for three of the nonserious violations and the serious violation.
On July 1, 1975, respondent filed a pro se notice of
contest stating in pertinent part:
. . . We have
taken immediate steps to have all of these alleged violation
corrected to the standards requested by your investigator. We believe we have
everything in order.
We do, however, feel that your
proposed penalties of $805 are excessive, and we would like to present our case
at a hearing in an attempt to have this violation
penalty waived. Our company is taking great pride in providing safe working
conditions, and each month we spend several hundred dollars for safety awards
to our employees . . ..
The Secretary’s complaint was duly filed. It explicitly
stated that the violations were not in issue, and that ‘the violations have
become a final order of the Commission by operation of section 10(a) of the
Act.’ The complaint also included a ‘Notice to Respondent’ which informed the
respondent, ‘ . . . you must plead or otherwise answer
this complaint, either denying or admitting the allegations, within 15 days of
your receipt of this complaint. Failure to do so may result in dismissal of
your notice of contest.’
Respondent timely filed a pro se ‘answer’ consisting of a
one paragraph letter stating in pertinent part as follows:
This letter is to
ask for a hearing so that we may express our objections in connection with the
inspection conducted June 16, 1975 and the resulting penalties. We provide a
safe place for our employees to work and feel the penalty is not appropriate
At the hearing, complainant argued that only the
penalties were at issue, the citations having become final by operation of law.
Respondent was represented by counsel at the hearing. Respondent’s representative
disputed the finality of the citations, arguing that both the notice of contest
and answer had been written pro se and should therefore not be narrowly
construed so as to preclude respondent from contesting
the merits of the citations. Although at the time of the hearing Florida
East Coast Properties Inc., 74 OSAHRC 5/C7, 1 BNA OSHC 1532, 1973 74 CCH
OSHD para. 17,272 (No. 2354, 1974) was the controlling
precedent, the Administrative Law Judge never specifically ruled on the issue
of the finality of the citations. The Judge remarked as follows:
Well, of course,
in coming to the penalty question, there has to be a
violation before any penalty can be assessed, so it has to be gone into,
anyway.
Before Judge Brenton filed his decision in this case, we
had decided Turnbull Millwork Co., 75 OSAHRC 16/A13, 3 BNA OSHC 1781,
1975 76 CCH OSHD para. 20,221 (No. 7413, 1975), in
which a divided Commission held that notices of contest that are limited to the
penalty would be construed to include a contest of the citation if a respondent
indicates in a later pleading that it was its intent to also contest the
citation. Applying Turnbull to the instant case, the Judge, in his
decision, referred to the language of respondent’s pro se answer requesting a
hearing in order to express objection to the ‘inspection’ and ‘resulting
penalties.’ He regarded this as an expression of respondent’s intent to contest
the citation and found the citations to be before him for disposition. The
Judge proceeded to affirm four of the nonserious violations and to vacate the
remaining violations on the basis of the existing
record.
In his petition for review, complainant argues that Turnbull
is not dispositive of the instant case because respondent’s answer did not deny
complainant’s allegation of the citation’s finality. Complainant maintains that
the citations had become final by operation of law. Alternatively, complainant
contends that, if the citations are properly before the Commission, the case
should be remanded for further hearing because the Secretary was prejudiced in
presenting his case by the Judge’s failure to rule on the scope of the notice
of contest. Complainant asserts that the Judge’s failure to rule on the scope
of the issues before him at hearing led complainant to limit his proof to
evidence relevant to the proposed penalties.
On review, respondent argues that it had not intended to
admit the citation, but instead contested the citation when it asked for a
hearing to consider ‘our case’ and a chance to ‘express our objections in
connection with the inspection . . . and resulting penalties.’ Respondent also
asserts that there should be no remand because complainant had fair notice of
respondent’s intent to contest the citation by its notice of contest, answer, and
oral representation at hearing, but instead chose to limit his proof to the
‘penalties’ issue.
We affirm the Judge’s decision that the citations are
properly before us for disposition. This case is controlled by Turnbull
Millwork Co., supra. Here, respondent elaborated upon its notice of contest
in its answer by asking for a hearing ‘to express our objections in connection
with the inspection conducted June 16, 1974 and the resulting penalties.’ We
find that request to be an indication of respondent’s original intent to
contest the citations.
We rule that complainant was prejudiced by the Judge’s
failure to rule on the scope of the notice of contest at hearing, thereby
resulting in complainant adducing evidence only as to the proposed penalty.
Accordingly, we remand the case for further hearing so that additional evidence
may be adduced concerning the alleged violations vacated by Judge Brenton. On
remand, complainant shall be allowed to amend the citation for violation of
section 5(a)(1) of the Act to allege a violation of the rule issued pursuant to
the variance procedure of section 6(d) of the Act.
It is ORDERED that the Judge’s decision vacating the
citations he reversed and the case remanded for
proceedings consistent with this decision.
FOR THE COMMISSION:
William S. McLaughlin
Executive Secretary
DATED: AUG 1, 1977
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
|
SECRETARY
OF LABOR, |
|
|
Complainant, |
|
|
v. |
OSHRC
DOCKET NO. 13973 |
|
BIG ‘6’ DRILLING COMPANY, |
|
|
Respondent. |
|
February 10, 1976
DECISION
AND ORDER
APPEARANCES:
Allen Prince,
Esq., of Dallas, Texas, for the Secretary of Labor
Elmer H. Jheis, Esq., of Houston, Texas, for the Respondent
Brenton, Judge
I
This cause of action arose pursuant to the provisions of
the Occupational Safety and Health Act of 1970 (29 USC 651).
On June 16, 1975, complainant, as authorized by § 8(a)(1)
and (2) of this, Act, inspected one of respondent’s drilling rigs which was in
operation on location near Sillsbee, Texas.
On June 20, 1975, in accordance with § 9(a) of this Act,
complainant issued two citations to respondent alleging certain violations of
the Act. On the same date, pursuant to § 10(a) of this Act, complainant issued
to respondent a notification of proposed penalty for the alleged violations in
the amount of $805.00. Whereupon, on July 2, 1975, complainant received
respondent’s pro se notice of contest which was dated July 1, 1975. This notice
briefly discussed the alleged violations, however, it purported to contest only
the proposed penalty.
Complainant’s complaint was docketed on July 24, 1975,
after which respondent on July 28, 1975, by letter answered, pro se, and
therein and thereby requested a hearing so it could express its objections to
the inspection and the resulting penalties.
Thereafter this cause came on for hearing in Houston,
Texas, on October 22, 1975, at which time respondent appeared with counsel.
The issues are: (1) Jurisdiction. (2) Propriety to
adjudicate the alleged violations. (3) If adjudication is proper did respondent
violate the Act in any respect as alleged. (4) What amount, if any, should be
assessed as an appropriate penalty for the violations, if any there be.
II
Jurisdiction to hear and decide a case may be raised at
any stage of the proceedings, even after judgment.
This issue was presented to this tribunal in Secretary
v. Ted Breihan, d/b/a Ted Breihan
Electric Co., OSAHRC Docket No. 12459 under the same or similar facts and
circumstances and is dispositive of this issue here. Inasmuch as Breihan, supra, may not have become a final
order of the Review Commission at this writing the discussion and holding there
is repeated here in this to wit:
The Review
Commission, by electing not to review Secretary v. J. A. Walder,
Inc., 2 OSAHRC 881, (March 14, 1973), has long ago settled the
jurisdictional issue presented here. This case stands for the proposition that
the Act is applicable to each and every business that
has employees. This conclusion is based upon Congressional constitutional
authority to enact the Act under clause 18 of Article I, par. eight of the
United States Constitution which confers upon Congress the power to make all
laws necessary and proper for carrying into execution its power to regulate
interstate commerce. Thus, it has the power to regulate intrastate activities
when necessary for protection of interstate commerce. Congress determined by §
2 of the Act that injuries and illnesses arising out of the work situation
imposed a substantial burden upon interstate commerce. [Also see Heart of
Atlanta Motel, Inc. v. U.S., 379 U.S. 241 (1964); U.S. v. Darby, 312
U.S. 100 (1942); Lipinski v. U.S. 251 Fed 2nd 53 (1958)]
Where, as here, an activity falls within a class of
activities and this class is within the reach of congressional plenary power
then the fact that respondent’s activity may have been solely in intrastate
commerce is not a bar to jurisdiction.
Moreover, fact that respondent purchased and used goods
and equipment that were in interstate commerce prior to its acquisition affects
commerce within the meaning of § 3(3) of the Act.
Therefore, respondent is an employer within the meaning
of § 3 (5) of the Act. Thus, the same
conclusion reached in Breihan should be and is
adopted in the instant case.
III
The citations in this case are properly before the
Commission for disposition even though the notice of contest on its face is
limited to the penalty.
As recently as December 15, 1975, the Commission in
Secretary v. Turnbull, d/b/a Turnbull Millwork Co., OSAHRC Docket No. 7413,
departed from its rule in Secretary v. Florida East Coast Properties,
Inc. 6 OSAHRC 404 (1974) which is that where a notice of contest is clearly
limited solely to the penalties, the citation itself becomes a final order of
the Commission under § 10(a) of the Act. The rule announced in Turnbull,
supra, is that a notice of contest which is limited only to the penalty
will also be construed to include a contest of the citation, if a respondent
indicates at a later time that it was his actual and
true intent to also include a contest of the citation.
In the instant case it appears reasonable to conclude
that the language used by respondent in its pro se answer of July 28, 1975,
which is:
This letter is to
ask for a hearing so that we may express our objections in connection with the
inspection conducted June 16, 1975, and the resulting penalties.
expresses its actual and
true intent to contest the citations.
IV
Having determined that the Review Commission has
jurisdiction to hear and decide this case and that respondent made its case for
contest of the citations the charges as alleged and the duties proscribed by
the Act hereby are, delineated.
Citation 1 charges respondent with eight non-serious
violations of § 5(a)(2) of the Act which are described by complainant as
follows:
Item 1. 29 CFR
1910.132(a) The employer failed to provide protective equipment for
extremities, require its use and maintain same in a sanitary and reliable
condition, where it was necessary by reason of chemical hazards capable of causing
injury or impairment in the function of any part of the body through
absorption, inhalation or physical contact, mixing of dry caustic soda and water
without impermeable gloves.
Item 2. 29 CFR
1910.219(e)(3)(i) Vertical and inclined belts were not
properly guarded; i.e., the belt guard on the Gardner Denver Compressor (Serial
No. 633711) located in the generator house.
Item 3. 29 CFR
1926.102(a)(1) Failure to provide eye and face protection equipment when
machines or operations present potential eye or face injury from physical,
chemical, or radiation agents.
Item 4. 29 CFR
1926.150(a)(3) All firefighting equipment provided by the employer was not
conspicuously located; i.e., should be near drillers station on rig
floor—should be near rig motors—should be near diesel tank.
Item 5. 29 CFR
1926.150(a)(4) All firefighting equipment was not periodically inspected and
maintained in operating condition (nor was defective equipment immediately
replaced); i.e., failure to periodically inspect and maintain in operating
condition all firefighting equipment and immediately replace defective
equipment.
Item 6. 29 CFR
1926.152(d)(2) A portable fire extinguisher having a rating of 20B units or
more was not provided between 25 and 75 feet from flammable liquid storage
areas at the following locations: i.e., failure to provide at least one
portable fire extinguisher having a rating of not less than 20–B units, located
not less than 25 feet, nor more than 75-feet, from and flammable liquid storage
area located outside.
Item 7. 29 CFR
1926.500(d)(1) Failure to guard by a standard railing, or the equivalent, on
all open sides except where there is entrance to a ramp, stairway or fixed
ladder the open sided rig floor 6 feet or more above adjacent floor or ground
level.
Item 8. 29 CFR
1926.500(d)(2) The runways 4 feet or more above floor or ground level were not
guarded by a standard railing or the equivalent.
The standards alleged to have been violated by this
citation provide as follows:
Item 1. Section
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 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.
Item 2. Section
1910.218—Mechanical Power-Transmission Apparatus
(e) Belt, rope, and chain drives.
(3) Vertical and
inclined belts.
(i) Vertical and inclined belts shall be enclosed by a guard
conforming to standards in paragraphs (m) and (o) of this section.
Item 3. Section
1926.102—Eye and Face Protection
(a) General
(1) Employees
shall be provided with eye and face protection equipment when machines or operations
present potential eye or face injury from physical, chemical, or radiation
agents.
Item 4. Section
1926.150—Fire Protection
(a) General
requirements
(3) All
firefighting equipment, provided by the employer, by the employer, shall be
conspicuously located.
Item 5. Section
1926.150—Fire Protection
(a) General requirements
(4) All
firefighting equipment shall be periodically inspected and maintained in
operating condition. Defective equipment shall be immediately replaced.
Item 6. Section
1926.152—Flammable and Combustible Liquids
(d) Fire control
for flammable or combustible liquid storage
(2) At least one
portable fire extinguisher having a rating of not less than 20–B units shall be
located not less than 25 feet, nor more than 75 feet, from any flammable liquid
storage area located outside.
Item 7. Section
1926.500—Cranes and Derricks
(d) Guarding of
open-sided floors, platforms, and runways
(1) Every opensided floor or platform 6 feet or more above adjacent
floor or ground level shall be guarded by a standard railing, or the
equivalent, as specified in paragraph (f)(i) 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 standard toeboard wherever, beneath the open sides, persons can
pass, or there is moving machinery, or there is equipment with which falling
materials could create a hazard.
Item 8. Section
1926.500—Cranes and Derricks
(d) Guarding of
open-sided floors, platforms, and runways
(2) Runways shall
be guarded by a standard railing, or the equivalent, as specified in paragraph
(f) of this section, on all open sides, 4 feet or more above floor or ground
level. Wherever tools, machine parts, or materials are likely to be used on the
runway, a toeboard shall also be provided on each
exposed side.
The
proposed penalties for these violations are $55.00 for item 3, $70.00 for item
5, $30.00 for item 8, and zero for each of the remainder.
Citation
2 charges respondent with a serious violation of § 5(a)(1) of the Act which is
described by complainant as follows:
Item 1. § 5(a)(1)
of the Occupational Safety and Health Act of 1970.
The employer
failed to provide a place of employment which was free from a recognized hazard
that was likely to cause death or serious physical harm, in that a safety
climbing device was not installed on the ladder or derrick to protect the derrickman
from the hazard of a fall while going to and from his work station on the
monkey board.
§ 5(a)(1) of the Act which is alleged to have been
violated by citation 2 provides as follows:
Item 1. Ԥ 5(a) Each
employer—
(1) 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:’
The
proposed penalty for this alleged violation of this general duty clause is
$650.00.
V
The
non-serious charges will be discussed in sequence with respect to the order in
which they appear in citation 1.
At the hearing complainant was given every opportunity by
this tribunal, respondent’s vice-president, and respondent’s counsel, Mr. Theis, to present evidence with respect to the merits of
the citations. Complainant insisted that the penalty was the sole issue to be
considered nevertheless he did elicit evidence upon the merits of the citations
except with respect to item 2 of citation 1.
In complainant’s attempt to justify the $55.00 proposed
penalty for item 3 of citation 1 he included the alleged violation at item 1
because allegedly each had to do with exposure to a caustic material as it
would be mixed. There is no evidence that he saw any employee so exposed on
this job site. In fact there is no evidence that there
was caustic or any other material on this location that when used would require
hand and face protection. The most the evidence shows, is that upon inquiry by
the inspector for complainant he was apparently told by someone, unidentified,
that gloves [rubberized] were not provided. Moreover, even if a violation had
been shown of either standard there is no evidence upon which to evaluate the
gravity thereof if any there was.
Complainant simply failed to make a case for violation of
29 CFR 1910.132(a) or 29 CFR 1926.102(a)(1). His evidence for a penalty here,
had there been a violation, was totally inadequate.
Even though complainant did not allude to the alleged
violation of item 2 of citation 1, complainant was given unlimited opportunity
to bring it out by respondent requesting the inspector to relate, in detail and
in sequence, his procedures and findings during the entire course of his
inspection of the drilling rig. At no time did the inspector mention any
encounter with a compressor, belts, or guards although according to his
testimony he spent at least 45 minutes in and about the generator house where
these items were located according to the allegation of the citation.
Complainant ignored respondent’s letter of July 28, 1975,
and its repeated intent to make issue on the citations at the hearing. Nevertheless due process of law was afforded complainant in
that he had an opportunity to be heard upon this alleged violation but failed
to avail himself thereof. Therefore, there being no proof of the charge under
29 CFR 1910.219(a)(1) it should be vacated.
Upon consideration of items 4, 5, and 6 of citation 1 the
evidence shows that respondent’s fire extinguishers were stored in the tool
house except one which had been allowed to lie outside and adjacent to the
generator house. The evidence further shows that this latter part. ??
extinguisher was in a discharged condition and had not been recharged. This
extinguisher had been used to consume a fire, however, whether respondent had
been afforded a reasonable opportunity to make it operable thereafter is
unknown, thus the better inference is that it did. Therefore, respondent should
be found in violation of 29 CFR 1926.150(a)(4).
Complainant predicates his case for violation of 29 CFR
1926.150(a)(3) upon the proposition that respondent’s firefighting equipment
was not accessible on the rig floor, to the rig motors, and to the diesel
tanks. The command of this standard is that they shall be conspicuously located
which means located so they may be easily seen. Accessible is not synonymous
with conspicuous. The former means easily reached whereas the latter means
easily visible. The fact that these extinguishers may not have been easily
reached from these locations does not prove that they were also not readily
visible from their location. They were approachable, thus access to them was
maintained. Accordingly under the evidence here
neither 29 CFR 1926.150(a)(3) nor 29 CFR 1926.150(a)(2) was violated by
respondent.
Respondent did maintain diesel fuel in tanks on or about
the rig. Because of the fire fighting equipment being
housed in the tool house and the fact that respondent, during the time of the
inspection, located the extinguishers in accordance with the inspector’s
wishes, it may reasonably be inferred therefrom that none had been located less
than 25 feet, nor more than 75 feet, from such flammable liquid. This then is a
violation of 29 CFR 1926.152(d)(2).
The proposed penalty determination by complainant was
predicated upon these three alleged fire hazards although the notice thereof
places the penalty for violation of 29 CFR 1926.150(a)(4). In any event
complainant was not impressed that an injury to an employee by fire was likely
to occur. Rather he would expect that, if there was any inability to fight a
fire, the fire area would be vacated. In this situation the degree of
probability of an injury by fire because this one extinguisher was inoperable
is in all common probability non-existent. Likewise
with respect to the violation of 29 CFR 1926.150(d)(2). The $70.00 proposed
penalty for this item of the citation is inappropriate and should be vacated.
The rig floor was guarded with a standard railing,
however, at the time of the inspection one end had been removed to permit
materials to be transported to the floor above, and
had not been immediately replaced. Exposure from this opensided
floor was a fall of 10 or 12 feet. A
runway was not guarded at one end which could expose an employee to a fall, but
the record is void as to the height of this runway above floor or ground level.
There is a dearth of evidence concerning these alleged fall hazards,
nevertheless it is apparent that the parties did not consider the height of
this runway from floor or ground as an issue and therefore it may properly be
inferred that it was four or more feet. Moreover, there is also a dearth of
evidence as to the exposure to either of these hazards. The only evidence
pertaining to rig floor exposure is the inspector’s observation of one employee
on the rig ladder thus it may be inferred that this employee had to mount the
rig floor to ascend this ladder and could have been exposed. Inasmuch as the
runway was there it may properly be inferred that it was used for some purpose,
thus since the end had never been guarded it is reasonable to conclude that a
fall would be possible.
Although the evidence on these two falling alleged
violations is extremely skimpy there is just enough to tip the scales by a
preponderance to make a case for violation in each instance. It is otherwise,
however, with regard to the $30.00 proposed penalty
for violation of 29 CFR 1926.500(d)(2). Complainant’s testimony on this point
was given by an experienced witness with skill and knowledge concerning the
operations on and about drilling rigs. He said, ‘a fall in either of these
locations is unlikely.’ (Tr. 48). Therefore, the gravity of the violation is
nil which makes any amount inappropriate as a penalty for the violation.
VI
Citation 2 is an alleged general duty clause violation of
the Act. Complainant based his grounds for violation thereof on the proposition
that because respondent had been granted a variance from complying with the
regulations at 29 CFR 1910.27(b)(1)(i), (ii), (iii),
and (c)(4) it was required by § 5(a)(1) of the Act to require its employees to
use ladder safety devices as mentioned in 29 CFR 1910.27(d)(5). Complainant did
not at any time specifically allude to 29 CFR 1910.27(d)(5). He was bent on
bringing out the variance which he had granted to members of International
Association of Drilling Contractors which became effective on October 17, 1973,
as published in the Federal Register, Vol 38, No. 201. His stated purpose for
introducing this evidence was to show that respondent, being a member of the
Association, had knowledge thereof. Further, because the variance required
ladder safety devices on derrick ladders respondent could not avoid having
knowledge that each derrick ladder, exempt from the provisions of 29 CFR
1910.27(b)(1)(i), (ii), (iii), and (c)(4), was a
recognized hazard in the drilling industry when used without the installation
of a ladder safety device.
Although counsel for respondent was brought into this
case a few days prior to the hearing and thereby was forced to grope along his
way in defense it is apparent that, in effect, on behalf of respondent, he
defended against the allegations of a § 5(a)(1) of the Act violation on the
proposition that a variance rule applied. Whereas complainant, although he
insisted that the only matters at issue were the penalty considerations, maintained
without any deviation that the general duty clause applies. At no time did he
advocate the applicability of a standard, rule, or regulation upon which his
proposed penalty would properly apply for the violation alleged.
The variance rule granted respondent became an
Occupational Safety and Health Standard on October 17, 1973, in accordance with
the definition of this kind of a Standard, under § (3)(8) of the Act. It was in
full force and effect on June 16, 1975. Therefore, inasmuch as complainant’s
evidence shows that the derrick ladder in question was one of the kind contemplated by the variance rule, as promulgated under
§ 6(d) of the Act, and further that an employee was permitted to ascend this
ladder without a ladder safety device attached, this conduct of respondent is a
§ 5(a)(2) violation of the Act.
Under the facts and circumstances here the parties did
not try the issue of a violation of this standard nor the issue of the proposed
penalty as applicable to this standard by either express or implied consent.
The Review Commission has held that Congress did not
intend that the general duty clause be used when a standard applies. Further,
when this is the case then, unless Rule 15(b) of the Federal Rules of Civil
Procedure may be invoked, the citation is invalid and both it and the proposed
penalty should be vacated. Secretary v. Godwin Bevers
Co., Inc., 14 OSAHRC 723.
FINDINGS
OF FACT
1. Respondent’s intrastate activities affect interstate
commerce.
2. Respondent’s pleadings, written and oral, after filing
its notice of contest to the proposed penalty expresses its intent to contest
the citations.
3. There was no evidence that respondent mixed dry
caustic soda or any caustic material at or upon this job site.
4. Respondent’s fire fighting equipment
was approachable within the tool house. There was no evidence that it could not
be easily seen within that house.
5. One fire extinguisher was inoperable.
6. A portion of the guard rail on the rig floor had been
removed and not immediately replaced.
7. One end of a runway was not guarded by a standard
railing or equivalent.
8. Complainant maintained throughout the entire
proceedings the applicability of § 5(a)(1) of the Act to citation 2
alleging a serious violation for failure to provide ladder safety device on the
fixed derrick ladder.
9. The effect of respondent’s defense to the alleged
general duty clause violation was to assert the applicability of a violation of
the variance granted by the Secretary.
10. The degree of probability of any injury occurring
because of any existing violation was miniscule.
CONCLUSIONS
OF LAW
1. The Review Commission has jurisdiction to hear and
decide this case.
2. Where respondent’s pleadings, subsequent to his notice
of contest which is limited to the penalty, shows its intent to contest the
citations the initial notice will be construed to include a contest of the
citations.
3. Respondent did not violate 29 CFR 1910.132(a) nor 29
CFR 1926.102(a)(1).
4. Failure by complainant to prove up a case for
violation of 29 CFR 1910.219(e)(3)(i) subjects same
to being vacated.
5. The proof failed to show a violation of 29 CFR
1926.150(a)(3).
6. Respondent violated 29 CFR 1926.150(a)(4), 29 CFR
1926.152(d)(2), 29 CFR 1926.500(d)(1), and 29 CFR 1926.500(d)(2).
7. The variance granted respondent by the Secretary on
October 17, 1973, was, by virtue of the provisions of § 3 (8) of the Act, an
occupational safety and health standard in full force and effect on June 16,
1975.
8. A charge for violation of the general duty clause of
the Act will not lie where there exists a standard which is applicable.
9. An amendment to the pleadings in order to make an
issue conform to the evidence will not lie where the parties have not
demonstrated on the record that such issue was tried by consent.
ORDER
Wherefore it is Ordered
that:
Items 1, 2, 3, and 4 of citation 1 be and each hereby is,
vacated.
Items 5, 6, 7, and 8 of citation 1 be and each hereby is,
affirmed.
Citation 2 be and it hereby is,
vacated.
The notification of proposed penalty to be assessed in
the amount of $805.00 be and it hereby is, vacated.
J. Paul Brenton
Judge
Date: February 10, 1976