HARVEY WORKOVER, INC.  

OSHRC Docket No. 76-1408

Occupational Safety and Health Review Commission

August 23, 1979

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Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

H. T. Porter, Jr., Vice President, Harvey Workover, Inc., for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Chairman:

On March 8, 1976, the Secretary of Labor cited Harvey Workover, Inc. (respondent), for failing to comply with the standard at 29 CFR §   1915.11(c)(1)(ii) n1 by permitting employees to enter a sealed compartment on a barge before a qualified person tested the atmosphere to discover if at least 16.5 percent of its volume was oxygen. The Secretary characterized the alleged violation of section 5(a)(2) of the Act n2 as serious, and proposed that a $550 penalty be assessed.   The citation and proposed penalty were contested, and the case was heard by Administrative Law Judge Robert N. Burchmore.   The judge vacated the citation on the ground that respondent did not know, and could not have known with the exercise of reasonable diligence, that respondent's employees would enter the compartment. The Secretary petitioned for review of the judge's decision.   The petition was granted and review of the decision was directed pursuant to   [*2]   the authority conferred by section 12(j) of the Act.   We reverse the judge and find respondent in violation of the cited standard.

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n1 The standard reads:

§   1915.11 Precautions before entering

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(c) Oxygen deficient atmospheres.

(1) Before employees are initially permitted to enter any of the ship's spaces designated in paragraphs (c)(1)(i) through (v) of this section, the atmosphere in the spaces to be entered shall be tested by a competent person with an oxygen indicator or other suitable device to ensure that it contains at least 16.5 percent oxygen.

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(ii) Compartments which have been sealed.

n2 The Occupational Safety and Health Act of 1970, 29 U.S.C. §   651 et seq.

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The events that gave rise to this action are not in dispute.   Respondent drills and reworks oil wells in inland waters.   Included in the equipment owned by respondent to perform this work is an oil rig that is attached to and transported by a barge. During the second week in February 1976, the barge was docked to permit [*3]   respondent's five-man crew to perform routine maintenance on the barge and drilling rig, such as painting and engine repair.

A welder (Wheeler) was hired to repair a leak in a water jet line, a pressurized line that removes water from compartments below deck. n3 Although a formal work assignment was not made, one of respondent's crewmen (Gaspard) assisted Wheeler.   When Wheeler came aboard, Gaspard asked the employee supervising respondent's crew (McDuff) which jet line needed repair, and McDuff identified the line.   The line ran through a sealed compartment below deck.   Gaspard and Wheeler opened the compartment in order to discover if the jet line was welded inside.   Gaspard had intended to enter the compartment with Wheeler, but left to obtain a flashlight because the compartment was dark.   Upon returning, Gaspard discovered Wheeler lying unconscious on the floor of the compartment. Two of respondent's crewmen joined Gaspard in an attempt to rescue Wheeler, but all three fell unconscious immediately upon entering the compartment. Two more crewmen succeeded in removing the four unconscious workmen.   Wheeler drowned in the water on the floor of the compartment, and the unsuccessful [*4]   rescuers were hospitalized for one to five days for oxygen deficiency.   There is no evidence that atmospheric tests of the compartment were made at any time.

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n3 The nature of Wheeler's employment status is discussed more fully infra.

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The Secretary bears the burden of proving four elements in order to establish that respondent is in serious violation of section 5(a)(2) of the Act.   The existence of conditions that did not comply with a standard must be shown.   Armor Elevator Company, Inc., 73 OSAHRC 54/A2, 1 BNA OSHC 1409, 1973-74 CCH OSHD P16,958 (Nos. 425 & 426, 1973), pet. for rev. dismissed, No. 73-2249 (6th Cir., February 27, 1973).   It is undisputed that a sealed compartment on respondent's barge was opened and untested before it was entered by respondent's employees and Wheeler.   This alone is not, however, a condition that fails to comply with the standard.   An employer's obligation under the standard is to test newly unsealed compartments before permitting employees to enter.   Permission often [*5]   is used to mean knowing consent, but also may mean a failure to prevent.   The latter meaning is especially common where the permitting party has the authority or ability to control the permitted party.   An employer, of course, enjoys a great measure of control over employees, as Congress recognized.   See Senate Committee on Labor and Public Welfare, 92d Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970, at 9 and 21 (1971).   We therefore interpret the word "permitting" to mean "failing to prevent." Whether respondent permitted employees to enter the compartment before it was tested depends on whether respondent prevented employees from being exposed or having access to the compartment prior to testing.

Employee exposure or access to noncomplying conditions is the second element the Secretary bears the burden of proving.   Gilles & Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 1975-76 CCH OSHD P20,448 (No. 504, 1976).   While employers generally are held responsible for the exposure or access of only their employees, the Commission has developed an exception restricted to multi-employer construction sites at which an employer that   [*6]   creates or controls noncomplying conditions is held responsible if employees of other employers are exposed or have access to the conditions.   Grossman Steel & Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD P20,691 (No. 12775, 1976); Anning-Johnson Company, 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD P20,690 (Nos. 3694 & 4409, 1976).   Construction sites were distinguished from other worksites on the ground that the work of one employer's employees often requires those employees to work in or pass through areas where work has been performed by another employer's employees.   Thus, one employer's employees easily may be exposed to hazards created or controlled by another employer.   See Grossman Steel & Aluminum Corp., supra.

The number of employers at a construction site has not been shown to have a bearing on the movement of employees, and has not influenced application of the principles announced in the Grossman Steel and Anning-Johnson opinions.   See Northeast Marine Terminal Company, 76 OSAHRC 113/A2, 4 BNA OSHC 1671, 1976-77 CCH OSHD P21,053 (No. 8221, 1976), pet. for rev. den., No. 76-4228 (2d Cir., October 21,   [*7]   1976) (two employers); Cottner & Cottner, Inc., 7 OSAHRC 208/C1, 6 BNA OSHC 1163, 1977-78 CCH OSHD P22,403 (No. 16174, 1977) (two employees), appeal docketed, No. 77-3312 (5th Cir., November 21, 1977); 4 G Plumbing & Heating, Inc., 78 OSAHRC 29/D8, 6 BNA OSHC 1528, 1978 CCH OSHD P22,658 (No. 12892, 1978) (three employers).   The movement of employees of one employer into areas where hazardous conditions are created or controlled by another employer is not restricted to construction sites, however, as the facts of this case demonstrate.   See also Camden Drilling Company, 78 OSAHRC 33/A2, 6 BNA OSHC 1560, 1978 CCH OSHD P22,687 (No. 14306, 1978); Williamette Iron & Steel Company, 77 OSAHRC 83/A2, 5 BNA OSHC 1478, 1977-78 CCH OSHD P21,839 (No. 12516, 1977); Central of Georgia Railroad Company, 77 OSAHRC 42/A2, 5 BNA OSHC 1209, 1977-78 CCH OSHD P21,688 (No. 11742, 1977), aff'd, 576 F.2d 620 (5th Cir. 1978).

We no longer find the distinction between construction sites and other worksites valid.   The safety of all employees can best be achieved if each employer at multi-employer worksites has the duties to (1) abate hazardous conditions under its control [*8]   and (2) prevent its employees from creating hazards. n4

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n4 The following cases are overruled to the extent that they are inconsistent with this principle: Central of Georgia Railroad Company, supra; Martin Iron Works, Inc., 74 OSAHRC 44/A2, 2 BNA OSHC 1063, 1973-74 CCH OSHD P18,164 (No. 606, 1974); Hawkins Construction Co., 74 OSAHRC 31/C1, 1 BNA OSHC 1761, 1973-74 CCH OSHD P17,851 (No. 949, 1974).

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There can be no dispute that Gaspard, the employees who assisted Gaspard in the attempt to rescue Wheeler, and the employees who rescued Gaspard were exposed to the newly opened compartment. In addition, Gaspard had access to the untested compartment as soon as he and Wheeler opened it.   Gaspard's decision to obtain a flashlight before entering the compartment proved to be fortuitous, but has no relevance to his access to the compartment. Gaspard testified that he had intended to enter the compartment with Wheeler and respondent took no steps to prevent that intended entry.   Finally, it is unfortunately [*9]   too clear that Wheeler had unrestricted access and was exposed to the compartment.

Although respondent has not filed a brief with us, it is clear from respondent's notice of contest and statements at the hearing that respondent considers Wheeler to have been exclusively an independent contractor. Wheeler's access and exposure to the compartment is relevant, of course, only if Wheeler was an employee.   Specific criteria are used to ascertain whether a person is an independent contractor. See generally Griffin & Brand of McAllen, Inc., 78 OSAHRC 48/C13, 6 BNA OSHC 1702, 1978 CCH OSHD P22,829 (No. 14801, 1978).   The record does not support a finding that Wheeler was an independent contractor. n5 Respondent's comptroller testified that respondent contracted with a welder named Joe Welch to repair the faulty jet line, and that he (the comptroller) believed, but did not know, that Welch subcontracted the work to Wheeler, to whom Welch paid an hourly wage.   There is nothing else in the record with regard to Wheeler's employment status.   We therefore conclude that the record will not support the conclusion that Wheeler was an independent contractor.

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n5 The judge found that Wheeler was an independent contractor. The judge did not explain his finding, which we reject for the reasons given above.

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It appears that Wheeler was either Welch's employee or a craftsman hired for a short term to perform specialty work on a single project.   We find that Wheeler was an employee for the purposes of the Act.   Congress sought ". . . to assure so far as possible every working man and woman in the Nation safe and healthful working conditions." Section 2(b) of the Act.   There would be a wide gap in the coverage of the Act if people situated similarly to Wheeler were not treated as employees for purposes of the Act.   Moreover, the economic burdens on interstate commerce caused by occupational injuries and illnesses that Congress sought to reduce by promulgation of the Act will occur whether an incapacitated worker is employed by others or by himself. n6 Respondent is, therefore, responsible for Wheeler's access and exposure to the untested compartment.

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n6 The Congress finds that personal injuries and illnesses arising out of work situations impose a substantial burden upon, and are a hindrance to, interstate commerce in terms of lost production, wage loss, medical expenses, and disability payments.

Section 2(a) of the Act.

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The judge vacated the citation on the ground that the third element of the alleged violation, employer knowledge, was not proven. Knowledge of the existence of noncomplying conditions is an element of a serious violation of the Act.   Shaw Construction, Inc., 78 OSAHRC 9/B6, 6 BNA OSHC 1341, 1978 CCH OSHD P22,524 (No. 3324, 1978).   Knowledge may be actual or knowledge that could have been gained through the exercise of reasonable diligence. Section 17(k) of the Act.   It is the latter type that is at issue in this case.   Judge Burchmore specifically found that respondent reasonably could not have anticipated that its employees would enter the compartment because their rescue attempts were spontaneous and necessitated by the work of another employee (Wheeler).   The judge erred.

Respondent's supervisor,   [*12]   McDuff, knew that the faulty jet line ran through a compartment that had been sealed for more than three years.   He was, in fact, placed on notice that work on the line was about to begin when Gaspard inquired about the location of the line.   It was only logical to have anticipated that work on the faulty line would necessitate opening and entering the compartment. Respondent had a duty to protect employees against access and exposure to the compartment after it was opened and before its atmosphere was tested because respondent owned the barge and, therefore, controlled the potential hazard. See Camden Drilling Co., supra. The duty to protect employees extended to Wheeler even if he was not employed by respondent.   See Springfield Steel Erectors, Inc., 78 OSAHRC 7/A4, 6 BNA OSHC 1313, 1978 CCH OSHD P22,498 (No. 15388, 1978).   McDuff failed to exercise reasonable diligence by not having the atmosphere tested, or at a minimum, not ascertaining whether Wheeler had or intended to test the atmosphere of the compartment before entering. n7 Cf. REA Express, Inc., 495 F.2d 822, 826 (2d Cir. 1974). Had McDuff made such an effort, he would have learned that [*13]   Wheeler had not intended to test the compartment or was not competent to test it.   McDuff's conduct and knowledge are, of course, imputed to respondent.   See Packerland Packing Company of Texas, Inc., 77 OSAHRC 203/A2, 6 BNA OSHC 1126, 1977-78 CCH OSHD P20,366 (No. 13315, 1977); The Kansas Power & Light Company, 77 OSAHRC 39/A2, 5 BNA OSHC 1202, 1977-78 CCH OSHD P21,696 (No. 11015, 1977).   Thus, respondent, with the exercise of reasonable diligence, could have learned of the violative condition.

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n7 There is no evidence that Wheeler, or the welder (Welch) who hired him, knew that the compartment in which the faulty jet line was located had been sealed for a substantial period of time.   Nor is there any evidence that either man understood the danger of enterinig a compartment immediately after unsealing it.

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The fourth and final element the Secretary must prove to establish a serious violation is that there was a substantial probability that employees exposed to the untested compartment could have died or [*14]   suffered serious physical harm.   Section 17(k) of the Act; Usery v. Hermitage Concrete Pipe Company, 584 F.2d 127 (6th Cir. 1978). The compliance officer testified that an atmosphere with only 16.5 percent oxygen, the minimum permitted by the standard, will barely sustain life, and that breathing in an atmosphere void of oxygen probably will cause immediate death.   Respondent does not dispute this testimony.   As noted above, the employees who did not succeed in rescuing Wheeler fell unconscious immediately upon entering the compartment and were hospitalized for oxygen deficiency for up to five days.   This evidence establishes that there was a substantial probability that death or serious bodily injury could have resulted from exposure to the untested compartment. The Secretary has, therefore, proven that the violation is serious.

To summarize, the Secretary has proven that there was a substantial probability that the employees whose safety respondent had a duty to assure could have died or suffered serious bodily injury because of their access and exposure to a condition, the existence of which respondent could have known by exercising reasonable diligence, that was not in   [*15]   compliance with the standard at 29 CFR §   1915.11(c)(1)(ii).   We conclude that this serious violation of the Act warrants assessing the $550 penalty proposed by the Secretary.   Penalties are assessed on the basis of,

. . . the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.

Section 12(j) of the Act.   Respondent is a small employer that has not violated the Act previously.   There is nothing in the record demonstrating respondent's good faith, or lack of it.   It was likely that Wheeler would be exposed to the oxygen deficient compartment and that he and respondent's employees would either die or suffer serious injury as a result of their exposure. The gravity of the violation is, therefore, severe.   See Nacirema Operating Company, Inc., 72 OSAHRC 1/B10, 1 BNA OSHC 1001, 1971-73 CCH OSHD P15,032 (No. 4, 1972).

Accordingly, the citation is affirmed and a penalty of $550 is assessed.  

CONCURBY: BARNAKO

CONCUR:

BARNAKO, Commissioner, Concurring:

I would affirm the citation on the basis that Respondent permitted Gaspard, who was Respondent's employee, to be exposed to the hazard of entering   [*16]   the sealed compartment without the air of the compartment being tested for oxygen content.   Therefore, I find it unnecessary to address whether Respondent can also be held liable for a violation of the Act n1 based upon the exposure of Wheeler and those employees who engaged in the rescue attempt.   Similarly, I find no need to address at this time whether the expansion of liability and the additional defense which we have held to obtain in multi-employer construction worksites n2 also should be applicable to multi-employer worksites involving activities other than construction. n3

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n1 Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 (1970).

n2 Grossman Steel & Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD P20,691 (No. 12775, 1976); Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD P20,690 (Nos. 3694 & 4409, 1976).

n3 In concluding that the citation should be affirmed based upon Wheeler's exposure to the violative conditions, the majority addresses Wheeler's status as an employee.   My colleagues conclude that the record will not support the conclusion that Wheeler was an independent contractor. They further state that Wheeler was "either Welch's employee or a craftsman hired for a short time to perform specialty work on a single project." I note, however, that the record contains little evidence with respect to Wheeler's status and that it is therefore impossible to determine what type of employment relationship existed between Wheeler and Respondent.   Yet such a determination is critical to the multi-employer worksite issue which my colleagues address.   If Wheeler was Respondent's employee, as the majority seem to imply in characterizing his as a craftsman, Respondent was the employer of all workers on the jobsite and no multi-employer worksite was present.   If such were true, there would be no need to address the multi-employer worksite issue.

  [*17]  

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