BJ-HUGHES, INC.

OSHRC Docket No. 76-2165

Occupational Safety and Health Review Commission

March 31, 1982

[*1]

Before ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

Arline S. Worsham, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Louis G. LaVecchia is before the Commission for review pursuant to section 12(j), 29 U.S.C. 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act" or "the OSH Act"). Judge LaVecchia affirmed a citation issued by the Secretary of Labor to Respondent, BJ-Hughes, Inc. ("Hughes"), for its failure to require an employee to use a safety belt while exposed to a falling hazard during offshore oil drilling operations. The Secretary alleged noncompliance with the construction safety standard at 29 C.F.R. 1926.28(a). n1

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n1 The standard provides:

1926.28 Personal protective equipment.

(a) The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.

[*2]

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On review, Hughes argues that the construction industry standards found in Part 1926 of 29 C.F.R. do not apply to oil drilling operations. Hughes also, for the first time, moves to dismiss for lack of subject matter jurisdiction. Hughes argues that the Coast Guard has exercised authority over safety conditions on offshore drilling rigs and that section 4(b)(1) of the Act n2 therefore precludes the Secretary from regulating safety conditions on these drilling rigs. Hughes states that the Coast Guard has exercised authority granted by the Outer Continental Shelf Lands Act of 1953, 43 U.S.C. 1331 et seq., by issuing regulations, found at 33 C.F.R. Parts 140-147, concerning safety conditions on offshore drilling rigs. The Secretary contends that Hughes was engaged in construction work but, alternatively, moves to amend the citation to allege that Hughes failed to comply with the general industry standard at 29 C.F.R. 1910.132(a) n3 or section 5(a)(1) of the Act n4 in the event section 1926.28(a) is found not to apply.

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n2 Section 4(b)(1) of the Act, 29 U.S.C. 653(b)(1), provides, in pertinent part:

Nothing in this chapter shall apply to working conditions of employees with respect to which other Federal agencies . . . exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.

n3 29 C.F.R. 1910.132(a) concerns personal protective equipment and provides:

1910.132 General requirements.

(a) Application. Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition 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.

n4 Section 5(a)(1), 29 U.S.C. 654(a)(1), provides:

Sec. 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[.]

[*4]

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We agree with Hughes that the construction industry standards do not apply to oil drilling operations. Accordingly, section 1926.28(a) is inapplicable and the parties' motions remain to be considered. We remand the case to the judge for him to consider the motions.

I

Hughes is a corporation providing cement service work to oil drilling companies. n5 On March 20, 1976, Hughes was cementing pipe at the Nicklos Drilling Rig 30 located about twenty-five miles southeast of Galveston, Texas. An employee, the service engineer, was hoisted by an air hoist cable n6 to the top of the casing surrounding the pipe. The casing was supported by an "elevator" around which ran a one-foot wide ledge. The service negineer disengaged himself from the air hoist cable and stepped onto the ledge. He then proceeded to guide the top cementing plug into the casing while he was not secured by any line, rope, safety belt or other protective device. Shortly thereafter, pressure in the casing propelled the plug out of the casing. The plug struck the service engineer and knocked him off the ledge to the drilling rig floor [*5] fifty feet below. He died from the injuries received in this accident.

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n5 The casings of wells are cemented to isolate the oil zone from possible contamination by water or gas. In this process, concrete is pumped down the inside and up around the outside of the casing and allowed to set. After it sets, some of the concrete is left inside the pipe until the drilling company drills the residue out as the company either completes or continues to deepen the well.

n6 The air hoist is similar to a winch in that it is bolted to the derrick floor and the cable is routed through a pulley up in the derrick. The cable is secured to a riding belt fastened by the employee around his waist and under his hips.

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On March 24, 1976, the worksite was inspected by a United States Department of Labor compliance officer. On April 15, 1976, the Secretary issued a citation alleging that Hughes failed to comply with section 1926.28(a). Judge LaVecchia affirmed the citation. n7 The judge concluded that section 1926.28(a) applies to oil [*6] drilling operations. He further concluded that the facts surrounding the fatal accident demonstrated that Hughes violated the cited standard.

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n7 In prior proceedings in this case, Administrative Law Judge Robert N. Burchmore granted a motion by Hughes to dismiss for lack of proper service. On June 29, 1979, the Commission reversed Judge Burchmore's decision vacating the citation and remanded the case for findings of fact and conclusions of law on the merits. B.J. Hughes, Inc., 79 OSAHRC 49/E6, 7 BNA OSHC 1471, 1979 CCH OSHD P21,515 (1979). Because Judge Burchmore was no longer with the Commission, the case was assigned to Judge LaVecchia.

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II

Hughes filed a petition for discretionary review, which was granted by former Commissioner Barnako. In its petition, Hughes argued that section 1926.28(a) does not apply to oil drilling operations and that, if it does, the standard is not violated. Hughes further argued that the only possibly applicable standard was section 1910.132(a), the general industry standard [*7] on personal protective equipment. However, Hughes argued that a violation of this standard was never charged and was not tried by consent at the hearing.

On review, the Secretary argues that section 1926.28(a) applies because Hughes' cementing work for oil drilling is construction work within the meaning of the definition of "construction work" at 29 C.F.R. 1910.12(b). n8 The Secretary argues that construction work is fabrication or putting parts together to form a complete and integrated object. He concludes that Hughes' cementing process is construction work since it involves the construction of a wall in the hole. The Secretary also points out that Hughes' employees work with pumps, derricks, concrete pouring equipment, and material handling equipment. Since Hughes' work involves equipment typically used in construction work, the Secretary argues that the construction standards apply.

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n8 29 C.F.R. 1910.12(b) provides:

1910.12 Construction work.

* * *

(b) Definition. For purposes of this section, "construction work" means work for construction, alteration, and/or repair, including painting and decorating. . . .

[*8]

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The Secretary also argues that, if section 1926.28(a) does not apply, then section 1910.132(a) applies and requires Hughes to use safety belts to protect employees from fall hazards. The Secretary alternatively argues that he has established a violation of section 5(a)(1) of the Act. The Secretary accordingly moves to amend the citation to allege violations of these provisions. n9

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n9 Hughes opposes the Secretary's motion to amend on the basis that the amendments are prejudicial because four years have passed since the accident. Hughes also argues that section 1910.132(a) does not include safety belts as a form of personal protective equipment. Hughes further contends that amendment to section 5(a)(1) adds new, untried issues and that this amendment is not before the Commission for review because the issue of possible noncompliance with section 5(a)(1) was not included in the direction for review.

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III

We have previously stated that [*9] the construction standards only apply to actual construction work or to related activities that are an integral and necessary part of construction work. Activities that could be regarded as construction work should not be so regarded when they are performed solely as part of a nonconstruction operation. Royal Logging Co., 79 OSAHRC 84/A2, 7 BNA OSHC 1744, 1979 CCH OSHD P23,914 (No. 15169, 1979), aff'd, 645 F.2d 822 (9th Cir. 1981).

As the Secretary argues, the cementing process could be regarded as construction work. However, the process is performed as an integral and indispensable part of drilling an oil well. See Royal Logging Co., supra. Therefore, even accepting the Secretary's position, the question under Royal Logging Co. is whether the entire process of drilling an oil well is construction within the meaning of section 1910.12(b), note 8 supra.

Section 1910.12(b) defines construction work as "work for construction, alteration, and/or repair, including painting and decorating." The terms in this definition are not further defined. However, the standards in Part 1926 of 29 C.F.R., which apply to construction work, indicate the type of work [*10] which the Secretary considered to fall within the definition. Among the standards in Part 1926 that might apply most directly to oil drilling operations are standards covering "Excavations, Trenching, and Shoring" (Subpart P), "Concrete, Concrete Forms, and Shoring" (Subpart Q), and "Tunnels and Shafts, Caissons, Cofferdams, and Compressed Air" (Subpart S). However, there are in these subparts no standards which refer specifically to oil drilling operations. Moreover, the Secretary has not pointed to any standard in Part 1926 which has specific reference to oil drilling or related activities. Thus, we conclude that the Secretary did not specifically consider oil drilling to be construction work when he promulgated the standards in Part 1926.

Moreover, we are not persuaded by the Secretary's argument that Respondent's cementing work for oil drilling operations involves equipment typically used in construction. The same can be said of work which the Secretary has not considered to be construction work. Cf. General Electric Corp., 81 OSAHRC 97/D6, 10 BNA OSHC 1144, 1981 CCH OSHD P25,736 (No. 76-2897, 1981) (citation alleging noncompliance with the general industry standard [*11] requiring a standard railing to guard open-sided floors or platforms, rather than the construction standard stating an identical requirement, where employees were performing drilling and other work on the joints of cast turbine generator shells); Allis-Chalmers Corp., 76 OSAHRC 50/F8, 4 BNA OSHC 1227, 1975-76 CCH OSHD P20,666 (No. 5210, 1976) (citation alleging noncompliance with the general industry floor or platform guarding standard, rather than the construction floor or platform guarding standard, where employees were constructing and testing power transformers). Moreover, for many of the Part 1926 standards that regulate equipment used in construction work, these are corresponding general industry standards in Part 1910 regulating the same type of equipment. n10 Because the Secretary has not shown that the oil drilling process constitutes construction, we conclude that section 1926.28(a) does not apply to Respondent's cement servicing operations. See United Geophysical Corp., 81 OSAHRC 77/D6, 9 BNA OSHC 2117, 1981 CCH OSHD P25,579 (No. 78-6265, 1981), appeal filed, No. 81-4342 (5th Cir. August 26, 1981).

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n10 For example, the general industry scaffolding standards at 1910.28 are very similar to the construction standards at 1926.451.

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IV

Although we conclude that section 1926.28(a) does not apply, the Secretary's motion to amend remains to be resolved. Moreover, Hughes has filed a motion to dismiss relying on section 4(b)(1) of the Act. We conclude that the parties should have the opportunity to present evidence and argument on the merits of the section 4(b)(1) issues raised in the motion. Accordingly, we remand the case for further proceedings. If the judge concludes that section 4(b)(1) does not exempt the cited working conditions from the Act, he should rule on the Secretary's motion to amend the citation to allege violations of either section 1910.132(a) or section 5(a)(1) of the Act. See Texaco, Inc., 80 OSAHRC 68/A2, 8 BNA OSHC 1677, 1980 CCH OSHD P24,574 (No. 77-2014, 1980). SO ORDERED.

CONCURBY: CLEARY

CONCUR:

Cleary, Commissioner, concurring:

I agree with my colleagues that the construction industry standards do not apply to oil drilling operations. I also [*13] agree to remand this case for consideration of Hughes' motion to dismiss based on section 4(b)(1). However, I cannot agree with the conclusory manner in which my colleagues dispose of Hughes' motion and the Secretary's motion to amend the citation.

We have previously held that section 4(b)(1) does not limit the Commission's subject matter jurisdiction, but rather provides an employer with an affirmative defense which must ordinarily be raised before the administrative law judge. Allegheny Airlines, Inc., 81 OSAHRC 37/A14, 9 BNA OSHC 1623, 1981 CCH OSHD P25,339 (No. 14291, 1981), appeal filed, No. 81-1528 (4th Cir. June 19, 1981). Only in extraordinary circumstances will the Commission address a nonjurisdictional issue that was not raised before the administrative law judge. Commission Rule 92(d), 29 C.F.R. 2200.92(d); Willamette Iron & Steel Co., 81 OSAHRC 59/A2, 9 BNA OSHC 1900, 1905, 1981 CCH OSHD P25,427 at p. 31,700 (No. 76-1201, 1981).

In A. Prokosch & Sons Sheet Metal, Inc., 80 OSAHRC 96/A2, 8 BNA OSHC 2077, 1980 CCH OSHD P24,840 (No. 76-406, 1980), the Commission concluded that there were extraordinary circumstances within the meaning of Commission [*14] Rule 92(d) for the Commission to decide an issue not raised until review. The Commission acknowledged that it had decided two other cases in favor of employers on the basis of the issue which Prokosch sought to interject into the case for the first time on review. The Commission concluded, "The goal of uniform application of the Act therefore requires that we consider that issue as it relates to Prokosch." 8 BNA OSHC at 2079, 1980 CCH OSHD at p. 30,627.

Several Courts of Appeals have also considered the question of extraordinary circumstances justifying a party in raising an issue late in the proceedings. n1 The 6th Circuit in RMI v. Secretary of Labor, 594 F.2d 566 (6th Cir. 1979), and the 9th Circuit in Todd Shipyards v. Secretary of Labor, 586 F.2d 683 (9th Cir. 1978), both decided that, where the employers relied upon cases that were decided after the employers had presented their arguments to the Commission, extraordinary circumstances justified consideration of the issues which were raised for the first time on appeal. In RMI v. Secretary of Labor, the court decided that, because the case on which RMI relied held that the Secretary, not the employer, had the [*15] burden of proof on the issue which RMI sought to raise on appeal, it "would be fundamentally unfair to bar RMI" from arguing on appeal an issue which RMI did not earlier know was an element of the Secretary's proof. In Todd Shipyards v. Secretary of Labor, the employer relied on the Supreme Court's decision in Marshall v. Barlow's, Inc., 436 U.S. 307 (1978), which was decided after the employer's appeal to the court. The court expressed concern about precluding an employer from arguing a fundamental question recently addressed in a potentially controlling case. n2

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n1 Section 11(a) of the Act, 29 U.S.C. 660(a), provides, in pertinent part:

No objection that has not been urged before the Commission shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances. . . .

n2 The Court of Appeals for the 5th Circuit in Power Plant Division, Brown & Root, Inc. v. OSAHRC,    F.2d    (No. 79-3677, 5th Cir., Unit B. Oct. 26, 1981), has cited these cases with approval, noting that in each the issues were permitted for the first time on appeal because the employers relied on cases decided after argument to the Commission.

[*16]

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In support of its section 4(b)(1) argument, Hughes relies on a decision of the Federal District Court for the Eastern District of Texas, Marshall v. Nichols, 486 F. Supp. 615 (E.D. Tex. 1980), rev'd on other grounds, 646 F.2d 190 (5th Cir. 1981), which was decided after review was directed in this case. The District Court stated that the Coast Guard, United States Geological Survey, and the Interior Department have issued regulations governing the employment relationship on offshore drilling platforms in its entirety. The court concluded that by enacting the Outer Continental Shelf Lands Act, Congress intended to exclude the working conditions on offshore drilling platforms from the coverage of the OSH Act. Accordingly, that court stated that section 4(b)(1) of the OSH Act precludes the Secretary from asserting jurisdiction over working conditions on the outer continental shelf.

If Marshall v. Nichols is correct, the working conditions in this case are entirely exempt from the coverage of the Occupational Safety and Health Act of 1970. Thus, in relying on Marshall v. Nichols, [*17] Hughes questions the Secretary's authority to apply the OSH Act to any working conditions on the outer continental shelf. The goal of uniform application of the Act requires that we address the questions raised by Hughes. Accordingly, I agree with the majority in remanding this case.

Since both parties' motions to amend their pleadings were made on review for the first time and I would find extraordinary circumstances justifying consideration of Hughes' motion, considerations of fairness require that the Secretary's motion to amend also be addressed. Therefore, I agree with my colleagues' directions to the judge for consideration of this motion.