Docket No. 13730

THE MAYRONNE COMPANY

OSHRC Docket No. 13730

Occupational Safety and Health Review Commission

January 5, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Ronald M. Gaswirth, Regional Solicitor, USDOL

Charles F. Seemann, Jr. and Charles K. Reasonover, for the employer

OPINION:

DECISION

This case is before the Commission pursuant to a sua sponte order for review. The parties have filed no objections to the Administrative Law Judge's decision, either by way of petitions for discretionary review or response to the order for review. Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge's decision.

In these circumstances, the Commission declines to pass upon, modify or change the Judge's decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.

The Judge's decision is accorded the significance [*2] of an unreviewed Judge's decision. Leone Constr. Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).

It is ORDERED that the decision be affirmed.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

I would vacate the citation, in its entirety, because the evidence establishes that the alleged violation resulted from a deviation from an established and exemplary safety policy for which respondent cannot be held responsible. See Secretary v. A.J. McNulty & Company, Inc., OSAHRC Docket No. 2295, April 8, 1976; Secretary v. Standard Glass Company, Inc., 1 OSAHRC 594 (1972).

Furthermore for the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, December 20, 1976, I disagree with the manner in which my colleagues are disposing of this case and with their views regarding the significance of decisions rendered by Review Commission Judges.

Since my colleagues do not address any of the matters covered in Judge Brenton's decision, his decision is attached hereto as Appendix A so that the law in this case may be known.

APPENDIX A

DECISION AND ORDER

Richard L. Collier, for the Secretary of Labor

Charles K. [*3] Reasonover, for the respondent

Brenton, Judge

STATEMENT OF THE CASE

Pursuant to the provisions of the Occupational Safety and Health Act of 1970 (29 USC 651) and the regulations promulgated thereunder, complainant, on May 15, 1975, conducted an inspection and investigation of respondent's workover drilling rig 192, because of a reported industrial fatality which occurred on May 4, 1975, when this rig was located on Exxon's "S" platform West Delta Block #30, 100 miles off the coast of Louisiana, in the Gulf of Mexico. At the time of this inspection this rig was in the process of being rigged up at another site, in this Gulf, 35 miles off the Louisiana coast.

Thereafter, on May 27, 1975, complainant issued a citation to respondent charging it with a serious willful violation because of the alleged violation of certain promulgated standards under the Act. The citation was accompanied with a notification of an $8,000.00 proposed penalty for this alleged violation.

On June 12, 1975, respondent notified complainant of its intention to contest the citation and the penalty. Thereupon a complaint and an answer was filed after which this case came on for hearing in New Orleans, Louisiana, [*4] on November 20, 1975.

The citation charges the Act was violated on May 15, 1975, at a place of employment located at West Delta 73B Platform, Gulf of Mexico, in the following respects:

Item 1. "29 CFR 1910.27(c)(4) and 1926.450(a)(5)

Failure to provide proper distance from rungs to the nearest permanent object in back of fixed ladder in the following location:

(a) The fixed access ladder on west side of derrick on Mayronne Rig M-192, located on Exxon's "S" Platform, West Delta Block #30, Well #S 16, in the Gulf of Mexico."

Item 2. "29 CFR 1910.27(d)(5) and 1926.450(a)(5)

Failure to use ladder safety devices on fixed ladders over 20 feet in unbroken length, where cage protection and landing platforms were not provided, in the following location:

(a) The fixed access ladder on west side of derrick on Mayronne Rig M-192, located on Exxon's "S" Platform, West Delta Block #30, Well #S-16, in the Gulf of Mexico."

"THESE ITEMS IN COMBINATION ARE DETERMINED TO PRESENT THE LIKELIHOOD OF DEATH OR SERIOUS PHYSICAL INJURY AND TOGETHER CONSTITUTE A WILLFUL SERIOUS VIOLATION."

The standards alleged to have been violated provide as follows:

Item 1. "Section 1910.27-Fixed Ladders

(4) Clearance in back of ladder. The distance from the centerline of rungs, cleats, or steps to the nearest permanent object in back of the ladder shall be not less than 7 inches, except that when unavoidable obstructions are encountered, minimum clearances as shown in figure D-3 shall be provided."

"Section 1926.450-Ladders

(a) General requirements

(5) Fixed ladders shall be in accordance with the provisions of the American National Standards Institute, A 14.3-1956, Safety Code for Fixed Ladders."

Item 2. "Section 1910.27-Fixed Ladders

(d) Special requirements.

(5) Ladder safety devices. Ladder safety devices may be used on tower, water tank, and chimney ladders over 20 feet in unbroken lengths in lieu of cage protection. No landing platform is required in these cases. All ladder safety devices such as those that incorporate life belts, friction brakes, and sliding attachments shall meet the design requirements of the ladders which they serve."

"Section 1926.450-Ladders

(a) General requirements

(5) Fixed ladders shall be in accordance with the provisions of the American National Standards Institute, A 14.3-1956, Safety Code for Fixed Ladders."

During [*6] the hearing complainant moved to amend paragraph (B) of division IV of his complaint so as to conform the allegation of date of occurrence of the alleged violation with that of his citation which was then and there granted by striking the date "27" from the first line of this paragraph and substituting "15" therefor.

At the conclusion of complainant's case he finally moved to amend the complaint so as to show that the alleged violation occurred on May 4, 1975. Ruling on this motion was reserved until this point in time.

Respondent consistently objected to the introduction of any evidence relating to events occurring on May 4, 1975. Rulings on these objections were likewise reserved.

Respondent steadfastly maintained that it came to the hearing to defend charges relating to violations alleged to have taken place on May 15, 1975, at the place alleged in the complaint. These matters developed because complainant, through his area director and compliance officer, used a standard form to prepare and formulate the citation which was issued. This citation in describing the alleged violation correctly states the place of employment where the alleged violation is alleged to have occurred [*7] which obviously was quoted from respondent's report of a work related death. This report which is exhibit C-1 was required by § 8(c)(2) of the Act and 29 CFR 1904.8. This report initiated the inspection and investigation by complainant. It is apparent complainant was unable to conduct the investigation until after the involved equipment had been moved to a different location. It is also apparent that respondent was aware of the fact that complainant was investigating and inspecting the equipment involved in the fatality on May 4, 1975. With respect to the citation it simply does not allege the date the alleged violation occurred.

The complaint avers that the alleged violation occurred on May 15, 1975, at the place of inspection which of course was in error.

Respondent's objections to the introduction of evidence relating to events occurring on May 4, 1975, were grounded on the proposition that it was not within the issues made by the pleadings. Respondent failed to show during trial that it was prejudiced in maintaining its defense on the merits and there has been no such showing subsequent to the hearing. Moreover, respondent did not request a continuance to meet the evidence [*8] nor has it requested that this cause be reopened for this purpose. In fact and in truth respondent was not surprised and thus there is no actual prejudice in allowing the evidence to remain and grant the amendment.

Therefore respondent's several objections to this evidence hereby are, overruled and the citation and complaint be and each hereby is, amended to show that the alleged violation occurred on May 4, 1975. Further, this tribunal on its own motion amends the complaint so as to show the place of violation conforms to the citation and to the evidence.

On May 4, 1975, during the time a work crew of respondent was engaged in rigging down the derrick of workover rig 192 at its then location in the Gulf of Mexico, one Gary C. Guthrie, a derrickman on this crew, fell from the derrick a distance of 60 or 70 feet to a platform below from which he suffered injuries resulting in his death. Immediately prior to this fall Guthrie and another derrickman, J. W. Ralph Farr, were in the process of moving an item described as a snatch block from one position to another, a part of the process in breaking the derrick down for removal. Farr was working from a position on the girts or [*9] beams while Guthrie was working from a position on a fixel ladder. Farr had handed the snatch block to Guthrie and was about to place himself in position with Guthrie so the block could be tied to Guthrie's body with a chain, thereby freeing Guthrie's hands to clasp the ladder rungs during the necessary manuvers. Guthrie, however, proceeded on his own, with one hand on a ladder rung and the other holding the snatch block, before Farr had reached the desired position, by taking a step upward. In so doing he lost his foothold or slipped from the ladder rung. In this situation he was unable to sustain his one hand grasp.

Prior to these manuvers the top section of the derrick had been telescoped down inside the section then being rigged down. The rung of the ladder, from which Guthrie's foot slipped or became disengaged, as he was in the act of climbing, cleared the girt or beam in back of the ladder by three or four inches horizontally and was one to one and a half inches above the rung.

On May 4, 1975, rig 192 was equipped with a device described as a counterweight system which is a cable working through a shieve. The shieve is attached to the crown or top of the derrick. The [*10] derrickman attaches his safety belt to the cable and on the other end is a counterweight which offsets the weight of the man.

Safety belts were provided by respondent. Among respondent's many safety rules and practices one required the wearing and use of a safety belt by each employee at heights in excess of three feet off the derrick platform. Violation of this rule subjected the violating employee to termination of employment.

Respondent's evidence indicates that its counterweight system ladder safety device which it provided is not usable during the process of rigging down after the top mast is telescoped down. Otherwise stated its evidence tends to show that there is no feasible way to employ the ladder safety device during this process.

At the time Guthrie Tell he was not wearing and using a safety belt and he was not attached to the ladder safety device. Moreover, he violated an employer safety rule by trying to climb with only one free hand.

Respondent is now and was a member of the International Association of Drilling Contractors on October 18, 1973. On this date the members thereof were granted an interim order by the Secretary of Labor (Federal Register, Vol. 38, [*11] No. 201), effective on October 17, 1973. This order authorizes the use of derricks with rungs of fixed ladders which fail to clear a permanent object in back of the ladder by seven inches provided ladder safety devices are also used in lieu of complying with 29 CFR 1910.27(c)(4). This order was in full force and effect on May 4, 1975.

Respondent should have been aware of this variance because the type of ladder safety device, as recommended by its insurance safety engineer, who inspected respondent's rigs about once per month, was installed on each rig about two years prior to November 20, 1975.

The totality of the evidence indicates that respondent's safety program is exemplary and conducted regularly with special emphasis on wearing and using safety belts upon climbing above three feet.

III

On the basis of these foregoing facts the kind of violation, if any, rests.

Complainant argues that it is a serious willful violation because respondent knew that the law required a ladder safety device if it chose to continue to use a fixed ladder on a derrick that did not comply with 29 CFR 1910.27(c)(4). That since it did not comply with the variance then it deliberately violated the [*12] law when it permitted an employee to climb a fixed ladder which was in violation of 29 CFR 1910.27(c)(4) and 29 CFR 1926.450(a)(5), each of which is an identical standard, coupled with a violation of 29 CFR 1910.27(d)(5).

Respondent first argues that complainant failed to prove exposure to a hazard as alleged. Further, the multiple charges together with complainant's bad pleading and weak evidence confused the record to the extent that no case has been made for violation. Respondent's primary thrust, however, centers on the proposition that there is no case for a willful violation.

The evidence has established that respondent used a fixed ladder on a derrick, in a place of employment, with one rung so constituted that it did not comply with the identical provisions of 29 CFR 1910.27(c)(4) and 29 CFR 1926.450(a)(5). The evidence also establishes that at the moment the one employee, Gary Guthrie, was exposed to this rung on this ladder the ladder safety device, which respondent employed on this drilling rig, had been scoped down with the crown into the lower section of the derrick tower and was not being utilized at this stage of the rigging down operation. Further, it shows that [*13] Guthrie was not wearing and using a life belt or safety belt in conjunction with the ladder safety device. Nor was he wearing such belt and attaching its rope to the structure in the process of using this ladder in performance of his tasks.

The variance granted respondent requires the use of the ladder safety device in lieu of complying with 29 CFR 1910.27(c)(4). In this case, however, respondent has not been charged with a violation of the variance regulation except in so far as the provisions of 29 CFR 1910.27(d)(5) may have application. It appears that this latter standard comes into play at such time the kind of ladder is not equipped with a cage or well as required by 29 CFR 1910.27(d)(i)(ii).

Under these circumstances and conditions there is a violation of section 5(a)2 of the Act.

Determination of the kind of violation in this case is rendered difficult because of a dearth of evidence. There are missing links in the testimony such as the role, if any, of Mr. Rodan, the toolpusher and so called foreman, who was on the platform deck. There is an indication in the testimony that he was simply directing operations on the deck.

The Review Commission has held an adjudication [*14] of a willful violation is predicated upon proof that there indeed existed a conscious, intentional, deliberate, or voluntary decision to violate the Act at a place of employment. Secretary v. Intercounty Construction Corporation, 5 OSAHRC 782. The Fourth Circuit U.S. Court of Appeals in affirming the commission in this case interpreted the position adopted by the Commission by stating that under the Act "willful" means action taken knowledgeably by one subject to the statutory provisions in disregard of the action's legality. Intercounty Construction Co. v. OSAHRC, 522 F. 2nd 777 (1975).

In the instant case the evidence falls short of making a case for a willful violation. Here the fixed ladder in question has been shown to have one isolated rung that did not clear an obstruction in back of it by seven inches. This discovery was made by respondent's derrickman at the time Gary Guthrie fell. Whether at this particular time and place one or more persons in charge of the operations then and there being performed actually knew this derrick was being then and there used with a rung in violation of the applicable standard is not answered on the record made in this [*15] case. Mr. Edward B. Robert, Jr., personnel manager for respondent, was totally unfamiliar with the physical structure constituting the derrick. Although there is no direct evidence that Gerald A. Beasley, general manager in charge of operations for respondent, had actual knowledge of the location of this rung on this derrick in violation of the standard, it may reasonably be inferred that he should have known it, because he had caused to be installed on all derricks, upon the recommendation of respondent's insurance safety engineer and inspector, a ladder safety device.

In the process of rigging down respondent's ladder safety device became inoperable by the very nature of the process. During the entire operation, however, respondent had provided safety belts and lanyards and each derrickman knew he was under orders to wear and use this equipment at all times he was climbing above three feet.

"Safety belt" means a device, usually worn around the waist which, by reason of its attachment to a lanyard and lifeline or a structure, will prevent a worker from falling, according to its definition at 29 CFR 1926.107(f).

A "ladder safety device," by definition at 29 CFR 1910.21(e)(13), [*16] is any device, other than a cage or well, designed to eliminate or reduce the possibility of accidental falls and which may incorporate such features as life belts, friction brakes, and sliding attachments.

The truth of the facts alleged have not been demonstrated by the evidence of record as a whole. There is no evidence that any employee on behalf of respondent made a decision, with knowledge that this ladder rung on this particular derrick ladder was in violation, to send the derrickmen, particularly Gary Guthrie, to the place of employment on this ladder where this violative rung was encountered. Otherwise stated the action of respondent was neither intentional, deliberate, conscious, nor voluntary. Moreover, the evidence describing the several operations which are employed in the process of rigging down the derrick is incomplete. Thus, at just what stage the ladder safety device, which was anchored at the crown, became inoperable is not known. Therefore, without such evidence and without knowledge of the rung violation, respondent cannot be held to have willfully violated the Act by failing to have caused its particular attached ladder safety device to be operable and in [*17] use at the time and place alleged.

Furthermore, it is arguable, because of complainant's definition of a safety belt and a ladder safety device, that the safety belts and lanyards provided by respondent each constitute a ladder safety device.

It must be concluded that complainant has failed to show by a preponderance of the evidence that respondent's conduct was a willful or conscious disregard of the standards.

The evidence does establish a serious violation. There is no dispute that there is a substantial probability that death or serious physical harm could result from a fall of 60 or 70 feet. Respondent, with the exercise of reasonable diligence, could have known of the presence of the violative ladder rung. Also, with the exercise of reasonable diligence, it could have known at what stage the attached ladder safety device became inoperable. And, although respondent had a very good safety program, it failed to exercise reasonable diligence to cause the derrickmen at this particular time and place to wear and use safety belts and lanyards.

An appropriate penalty for this serious violation is now determined in accordance with section 17(j) of the Act. Respondent has [*18] no history of previous violations of the Act. It is the smallest oil drilling off shore operator in the Gulf of Mexico, albeit has in excess of 100 employees. It apparently spends considerable sums of money on safety equipment and maintaining an existing safety program for training its employees. With regard to the gravity of the violation the evidence shows exposure of one employee to the violation of 29 CFR 1910.27(c)(4) and 29 CFR 1926.450(a)(5) and exposure of two to the failure to utilize a ladder safety device. There is no evidence of the duration of the exposure in either situation. Precautions had been taken to prevent injury such as safety belts and lanyards and the chain for tying off the snatch block to the body to free the hands. The probability that an injury would occur was thereby significantly reduced. Respondent's unexplained failure to enforce its safety rules on this particular occasion would tend to cause the gravity of the violation to be substantial, however, the fact that respondent has had no prior injuries resulting from operations on derrick ladders should be given some consideration.

In accordance with these penalty considerations $700.00 is an appropriate [*19] penalty for the violation.

CONCLUSIONS OF LAW

1. The Review Commission has jurisdiction to hear and decide this case.

2. Respondent did not willfully violate the Act upon its violation of section 5(a)(2) thereof.

3. Where the evidence fails to show an employer did not know of the presence of a violation but does show he could have known, with the exercise of reasonable diligence, a serious violation is established, where the evidence also shows that there is a substantial probability that death or serious physical harm could result from the conditions which he could and should have found.

4. Objections to the introduction of evidence on the ground that it is not within the issues made by the pleadings will be overruled unless there is an actual showing of prejudice or surprise which cannot be overcome without an adjournment to prepare for the same.

ORDER

Wherefore, it is Ordered that:

The citation and complaint be and each hereby is amended to show that the violation alleged occurred on May 4, 1975.

The citation be and it hereby is, modified by striking therefrom the word "willful" at each place therein it appears which are at 6. TYPE OF ALLEGED VIOLATION(S): [*20] and under 12. Description of alleged violations.

The notification of proposed penalty be and it hereby is, modified by striking therefrom the word "willful" at 5., and 5c. is modified by striking $8,000.00 therefrom and substituting therefor $700,00.

So Ordered.

J. Paul Brenton, Judge

Dated: March 9, 1976

Dallas, Texas