TEXLAND DRILLING CORPORATION

OSHRC Docket No. 76-5307

Occupational Safety and Health Review Commission

October 30, 1980

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Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

James E. White, Regional Solicitor, USDOL

Paul McCollum, for the employer

OPINION:

DECISION

BY THE COMMISSION:

The Secretary alleged that Respondent, Texland Drilling Corporation ("Texland Drilling" or "the company"), committed a serious violation of section 5(a)(2) n1 of the Occupational Safety and Health Act of 1970 ("the Act") n2 by failing to comply with the construction standard at 29 C.F.R. §   1926.28(a) n3 or, alternatively, with the general industry standard at 29 C.F.R. §   1910.132(a). n4 In response to Texland Drilling's motion for involuntary dismissal at the close of the Secretary's case, Administrative Law Judge Erwin L. Stuller dismissed these allegations.   Judge Stuller determined that the violation resulted from "erratic and idiosyncratic employee misconduct." The Secretary petitioned for review of the judge's decision, and Chairman Cleary granted the petition pursuant to section 12(j) n5 of the Act.   For the reasons that follow, we affirm the judge's decision.

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n1 29 U.S.C. §   654(a)(2).

n2 29 U.S.C. § §   651-678.

n3 Section 1926.28(a) pertains to personal protective equipment and provides that "[t]he 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."

n4 Section 1910.132(a) also pertains to personal protective equipment and provides in pertinent part that "[p]rotective equipment . . . shall be provided [and] used . . . wherever it is necessary by reason of hazards of processes or environment . . . ."

n5 29 U.S.C. §   666(i).

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On December 3 and 4, 1976, Texland Drilling was engaged in oil drilling work on a derrick near Guthrie, Texas.   The night crew, which worked from 11:00 p.m. to 7:00 a.m., consisted of a "derrick man," Mr. McNeil; two other employees who worked on the derrick floor, Mr. Kirkland and Mr. Trussell; and a "driller," who was the first-line supervisor in charge of the work operations and safety, Mr. Campbell.

At about 2:00 a.m. on the 4th, the crew was bringing the pipe out of the drill hole.   For this, McNeil had to work upon the "derrick board," a platform about six feet square "offset" from the derrick at a height of about 50 feet above the derrick floor. Using the climbing harness secured to the ladder, McNeil climbed to the derrick board.   There, after removing the harness, he put on the safety belt provided for the derrick man's use.   This belt was attached to the derrick with a lanyard capable of being extended and retracted to permit mobility.   As the other crew members pulled the pipe up to him, McNeil was required to secure it.   On occasion, the pipe sways away from the derrick board out of the [*3]   immediate reach of the derrick man.   For those occasions, the derrick man is provided with rope for pulling the pipe back.   In addition, his lanyard extends sufficiently to allow him to go out onto the derrick itself to retrieve the pipe. On this occasion, the pipe got away from McNeil before he could secure it.   McNeil then took off the safety belt and climbed out onto a beam of the derrick approximately five to six feet away from the platform.   From this point he fell and was killed.

The lighting at the derrick was good, and one crew member, Kirkland, clearly saw McNeil out on the derrick without the safety belt. However, he did not mention this to Campbell, the supervisor, who was standing nearby but not watching McNeil.   In his own testimony, Campbell affirmed that he did not see McNeil without the safety belt.

Texland Drilling has a written safety rule about the use of safety belts on the derrick. The rule is that "anyone who goes on the derrick is supposed to be either in their safety harness on the climber, or they are supposed to carry an extra belt if they are going to the derrick. . . ." A copy of the company's written safety rules was posted on the bulletin board at [*4]   the worksite, and Kirkland's testimony that he had seen the posted copy indicates that the employees generally could become familiar with the rule through the posting.

Campbell was instructed by higher company management specifically to tell employees to wear safety belts while working on the derrick board.   He relayed this instruction to the employees as a group.   Campbell admitted he did not personally instruct McNeil in the rule, but he had never seen McNeil or any employee work upon the derrick board without a safety belt. He also considered that McNeil from his 25 years of experience as a derrick man should have known to wear a safety belt. That the requirement to use a safety belt was common knowledge among the employees was the opinion also of both the safety director and the floor hand, Kirkland.   Additionally, Kirkland testified that he was aware of the requirement from safety meetings. n6

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n6 According to the testimony of Texland Drilling's safety director, the company's safety program is implemented and supervised by an outside safety consultant.   The consultant's staff members inspect the company's rigs two to four times each month.   During these inspections, they discuss safety with the crews. At least once a month, the consultant gives to the safety director a written report of its activities at the rigs.

In addition, the company requires its supervisors at the rigs to hold safety classes with the crews. The "tool pusher," who supervises the drillers, routinely holds safety classes and encourages the drillers to do so to the extent that the work at the rigs allows.   On a bi-weekly basis, the tool pushers meet with the company's drilling superintendent and the safety director to discuss the safety program along with other matters.

The safety rules are enforced by firing employees for noncompliance. The drillers have the authority to hire and fire.   Although no employee has been fired for noncompliance with the rule mandating use of a safety belt on the derrick, employees have been discharged for violating similarly critical rules.   Moreover, Kirkland testified he was aware of the policy to enforce safety rules through firing.

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When the Secretary rested his case during the hearing before the judge, Texland Drilling moved to dismiss the citation on the basis that the Secretary failed to establish his case by a preponderance of the evidence. n7 Texland Drilling's supporting argument was that the company did not permit and could not have anticipated McNeil's action, which Texland Drilling characterized as purely "willful, careless, reckless" misconduct by an experienced employee.   In opposition, the Secretary argued that Texland Drilling failed adequately to implement the requirements of the cited standards in that the rule requiring a safety belt while work was performed on the derrick board was not uniformly and effectively communicated to the employees.   Judge Stuller recessed the hearing pending briefs on the motion and his formal, written decision and he indicated that if he finally denied the motion, a hearing would be scheduled for Texland Drilling's case to be presented.   In his decision, however, Judge Stuller granted the motion, essentially agreeing with Texland Drilling's argument of the law and evidence.

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n7 Texland Drilling's precise motion was for an "instructed verdict" on the basis that "a prima facie case has not been made." This should be treated as a motion for involuntary dismissal under Rule 41(b) of the Federal Rules of Civil Procedure.   See, e.g., Morgan & Culpepper, Inc., 77 OSAHRC 29/D12, 5 BNA OSHC 1123, 1977-78 CCH OSHD P21,605 (No. 9850, 1977).

Rule 41(b) provides the following:

(b) Involuntary Dismissal: Effect Thereof.   For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him.   After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief.   The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence.   If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a).   Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.

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Judge Stuller concluded that "[t]his is a classic case of erratic and idiosyncratic employee misconduct that . . . could not have been reasonably anticipated or prevented by the employer or the supervisor." Although not expressly stated in his opinion, it appears that the judge concluded that the affirmative defense of unpreventable employee misconduct was established by the record.   For this defense to be established, the record must show that the employee's action constituting the alleged noncompliance was a departure from a uniformly and effectively communicated and enforced work rule designed to prevent the noncompliance. Laclede Gas Co., 79 OSAHRC 94/E13, 7 BNA OSHC 1874, 1878, 1979 CCH OSHD P24,007 at 29,154 (No. 76-3241, 1979); Jensen Construction Co., 79 OSAHRC 49/D3, 7 BNA OSHC 1477, 1479, 1979 CCH OSHD P23,664 at 28,695 (No. 76-1538, 1979).

On review, the Secretary argues that the defense was not established. n8 The Secretary contends that Texland Drilling did not have a work rule requiring the employees actually to wear a safety belt while upon the derrick and driller Campbell admitted [*8]   he had not actually told the derrick man McNeil to wear a belt while upon the derrick board.   The Secretary also extensively argues that, in general, the company improperly relied on the experience of its employees to substitute for an adequately and consistently implemented and enforced safety program.

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n8 The Secretary also argues that Texland Drilling untimely first raised the affirmative defense in its motion for involuntary dismissal. We reject this argument because the Secretary's introduction of evidence relevant to the unpleaded affirmative defense and his failure to object to cross-examination bearing on the defense both give basis for finding implied consent to try the affirmative defense. See Rodney Fossett d/b/a Southern Lightweight Concrete Co., 79 OSAHRC    , 7 BNA OSHC 1915, 1979 CCH OSHD P23,989 (No. 76-3944, 1979).   Accordingly, Texland Drilling's answer is deemed amended to present the affirmative defense of unpreventable employee misconduct. Fed. R. Civ. P. 15(b); See D. Fortunato, Inc., 79 OSAHRC 69/B12, 7 BNA OSHC 1643, 1979 CCH OSHD P23,781 (No. 76-3103, 1979).

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We disagree.   The Secretary's arguments overemphasize the formal aspects of Texland Drilling's safety program and fail to give proper significance to its substance.   For example, because the written work rule required employees "to carry an extra belt," the Secretary assets that the company did not require the belt to be worn.   However, the rule states in full that "anyone who goes on the derrick is supposed to be either in their safety harness on the climber, or they are supposed to carry an extra belt . . .," which plainly indicates that the belt must be used to give the type of protection supplied by using a safety harness. Moreover, it is clear that the employees were aware of a requirement that a safety belt be worn while upon the derrick and that they consistently complied with the rule at this worksite. McNeil had never been seen on the derrick without a safety belt. Since the employees were trained and experienced, clearly knew of the work rule, and consistently followed it, it cannot reasonably be argued that the employer was required to take further steps to prevent noncompliance.   [*10]   Accordingly, we conclude that Texland Drilling's work rule was effectively communicated and enforced, and that its defense of unpreventable employee misconduct is sustained.

The Secretary also argues that the judge should not have granted the company's involuntary dismissal motion, but rather should have denied it or reserved ruling until the company presented its case and both parties finally rested.   We have repeatedly stated that this is the preferred course for a judge to follow unless it is clear that the Secretary has not proven his case by a preponderance of the evidence.   Boston Gear, A Division of Murray Co. of Texas, 78 OSAHRC 75/B3, 6 BNA OSHC 1955, 1978 CCH OSHD P23,595 (No. 76-967, 1978) and cases cited therein.   We have emphasized that this permits the judge to consider the whole record at one time and greatly reduces the possibility of needless review and remand.   P&Z Co., 77 OSAHRC 211/F5, 6 BNA OSHC 1189, 1977-78 CCH OSHD P22,413 (No. 76-431, 1977).   Nevertheless, these cases do not preclude the granting of a motion for involuntary dismissal when the evidence clearly establishes that the employer did not commit a violation.   In this case, the evidence presented [*11]   during the Secretary's case demonstrates that the incident for which Texland Drilling was cited resulted from unpreventable employee misconduct. Accordingly, the Secretary cannot prevail and the motion was properly granted.

Accordingly, the judge's decision is affirmed.   SO ORDERED.  

CONCURBY: BARNAKO

CONCUR:

BARNAKO, Commissioner, concurring:

I agree that Judge Stuller's decision should be affirmed but for reasons that differ from those stated in the lead opinion.   My colleagues conclude that Texland has established the defense of unpreventable employee misconduct. The initial question that must be answered in considering a motion for involuntary dismissal, however, is whether the Secretary has made out a prima facie case of a violation.   See Boston Gear, A Division of Murray Co. of Texas, 78 OSAHRC 75/B3, 6 BNA OSHC 1955, 1978 CCH OSHD P23,595 (No. 76-967, 1978) (majority and dissenting opinions); Morgan & Culpepper, Inc., 77 OSAHRC 29/D12, 5 BNA OSHC 1123, 1977-78 CCH OSHD P21,605 (No. 9850, 1977).   I conclude that the Secretary failed to establish an element of his prima facie case -- that the employer either knew or, with the exercise of reasonable diligence, could [*12]   have known of the existence of the violative condition.   Dunlop v. Rockwell International, 540 F.2d 1283 (6th Cir. 1976); Brennan v. OSHRC (Alsea Lumber Co.), 511 F.2d 1139 (9th Cir. 1975); Scheel Construction Co., 76 OSAHRC 138/B6, 4 BNA OSHC 1825, 1976-77 CCH OSHD P21,263 (No. 8687, 1976).   Judge Stuller therefore properly granted the motion for involuntary dismissal made by Texland Drilling at the close of the Secretary's case.

It is clear that Texland Drilling lacked actual knowledge of McNeil's failure to have his safety belt tied off at the time of the accident.   McNeil was not observed by the supervisor at the worksite, Mr. Campbell, during the brief period when his safety belt was not tied off.   It is also clear that the company lacked constructive knowledge.   McNeil untied his belt for two to three minutes at most.   During this time, Campbell and the two other employees on the derrick floor were trying to retrieve the pipe which had swayed out of McNeil's immediate reach.   Furthermore, McNeil and other employees had never been seen on the derrick without safety belts, and the requirement to wear and tie off safety belts upon the derrick was both common knowledge [*13]   among the employees and the subject of a written safety rule.   The rule was posted at the worksite and instruction in the requirement for safety belts to be used on the derrick board had been given to the employees as a group.

Moreover, the company assured that the derrick men could perform his tasks on the derrick board while using the safety belt provided for him.   The lanyard could extend sufficiently to allow the derrick man to retrieve any pipe that swayed out of his immediate reach.   Loops of rope were also provided for this purpose.   Additionally, it was normal practice for the floor crew to attempt to retrieve wayward pipes, thus eliminating the need for the derrick man to attempt that task as McNeil did at the time of the accident.   Thus, Texland Drilling had no reason to believe that McNeil's assigned tasks required him to untie his safety belt. Cf. Southwestern Bell Telephone Co., 79 OSAHRC 4/G4, 7 BNA OSHC 1058, 1979 CCH OSHD P23,278 (No. 15841, 1979) (In exercising reasonable diligence, an employer must anticipate the hazards to which employees may be exposed and take any necessary steps to prevent the exposure.).

The record is devoid of any evidence establishing [*14]   that Campbell or any other company employee in a supervisory position could reasonably have expected that an employee would fail to use the safety belt provided for him on the derrick board and, to the best of Campbell's knowledge, McNeil was using the safety belt. I therefore conclude that the Secretary has failed to prove that Texland Drilling knew or, with reasonable diligence, could have known of the violative condition, and would affirm the judge's decision vacating the citation.