UNITED GEOPHYSICAL CORPORATION

OSHRC Docket No. 78-6265

Occupational Safety and Health Review Commission

July 28, 1981

[*1]

Before: CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

Rene' A. Curry, Jr., for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Joe D. Sparks 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"). Judge Sparks vacated a citation, as amended by the Secretary's complaint, alleging that United Geophysical Corporation (United) violated 29 C.F.R. 1910.132(a) or in the alternative 29 C.F.R. 1926.103(a) n1 in that United's linesman attempted to swim across a gravel pit without using a life jacket or without being provided a flotation device or boat. The judge concluded that the standard at 1926.106(a) was not applicable for the reason that United is not engaged in construction work and is not otherwise subject to the construction standards. n2 He further concluded that while the general industry standard at 1910.132(a) did apply to the type of work in which United was engaged, that standard does not require the use of life jackets, flotation devices, or boats in the circumstances [*2] of this case.

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n1 These standards provide as follows:

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.

1926.106 Working over or near water.

(a) Employees working over or near water, where the danger of drowning exists, shall be provided with U.S. Coast Guard-approved life jacket or buoyant work vests.

n2 The standards in Part 1926 apply only to employment and places of employment of employees engaged in construction work. See 29 C.F.R. 1910.12(a) and note 8 infra.

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Commissioner Cottine directed review on the issues whether the judge erred in concluding that life vests are not personal protective equipment within the meaning of 29 C.F.R. 1910.132(a), whether the judge erred in concluding that United was not engaged in construction work within the meaning of 29 C.F.R. 1910.12, and whether the judge erred in denying the Secretary's pretrial motion to amend the citation to allege in the alternative a violation of 29 U.S.C. 654(a)(1), which requires that the employer keep his workplace "free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees." For the reasons that follow, we agree with the judge that the construction standard is inapplicable but reverse his conclusion that life jackets are not required under 1910.132(a), and we find United in violation of the latter standard. In view of this disposition, we do not reach the issue whether the judge erred in denying the motion to amend.

United is engaged in the geophysical exploration for oil. This work requires the use of equipment known as geophones to detect and measure vibrations underground. Workers assigned [*4] to a "recording crew" insert geophones into the ground and handle the connecting cables. However, geophones cannot be used in water. Therefore, if a recording crew encounters a body of water which is too wide to cross with a geophone cable without resulting in the immersion of the geophone, the water must be bridged with a special cable known as a "jumper" cable.

At the time relevant to this proceeding, United had a recording crew of six employees who were part of a larger crew of approximately 45 employees, known as Party No. 460. This party was performing activities related to seismic operations in the vicinity of the Amite River in East Baton Rouge Parish, Louisiana. At approximately 4:30 P.M. on November 15, 1978, the recording crew encountered a body of water about 70 yards wide, described as a gravel pit, which required the use of a jumper cable. Charles Gandy, one of two head linesmen assigned to the recording crew, inquired whether any member of the crew could swim across the pit. The other head linesman, Ricky Ainsworth, n3 volunteered to do so although life jackets were not available at the site. Instead, life jackets and boats were kept at United's office between [*5] 30 and 40 miles from the jobsite. Ainsworth drowned in attempting to swim across the pit while pulling a jumper cable. Ainsworth's supervisor, Otis Wilkerson, the manager of Party No. 460, was not present at the jobsite at the time of the fatality. Although he had been at the site earlier that day, he was not aware that employees would have to cross the gravel pit because United's survey crew had not surveyed the work area prior to the day of the fatality.

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n3 As head linesmen, Gandy and Ainsworth had equal status. Both had the authority to supervise the other members of the recording crew and were considered the equivalent of foremen.

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United's safety rule requires that life buoys or rings be available where employees are exposed to the hazard of drowning or that each employee so exposed wear a life vest. This rule is communicated to employees both through the dissemination of safety literature and at safety meetings which are conducted weekly by head linesmen and party managers, including Wilkerson. Wilkerson [*6] testified that Ainsworth had attended meetings at which the use of appropriate safety equipment for work on or near water was discussed, and the employees who worked with Ainsworth on the recording crew all testified that they were aware of the requirements of United's rule.

United's employees also testified that no employee had previously failed to use a boat or attempted to swim without a life jacket. n4 Ainsworth himself had previously used a boat or life jacket when laying cable or jumpers over water and on one occasion about a month prior to the accident Ainsworth had obtained a boat and life jackets for use on a creek encountered during the course of the work. At the time of the accident, Ainsworth was aware that boats and life jackets were available at United's office.

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n4 Two employees testified, however, that they had never encountered water deep enough to require use of either a boat or life jackets.

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The parties disputed before the judge whether the standard at 29 C.F.R. 1910.132(a) is applicable to the [*7] circumstances existing at Respondent's worksite. United contended that the standard is inapplicable because it contains no reference to working conditions in or around water nor any reference to life jackets, flotation devices, boats, or any type of buoyant object for use on or around water. Rather, according to United, the standard is limited by its plain terms and by the terms of other associated standards n5 to situations involving physical contacts or inhalation of airborne substances. The Secretary contended, first, that 29 C.F.R. 1926.106(a), whiich refers specifically to flotation devices for work over or near water, is applicable rather than 1910.132(a) for the reason that "site preparation . . . by geophysical exploration" is a construction operation. Second, the Secretary contended that assuming the general industry standard at 1910.132(a) rather than the construction standard at 1926.106(a) is applicable, drowning is encompassed within the terms of the general industry standard, and its requirements include flotation devices.

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n5 United refers to 29 C.F.R. 1910.133-.137 which pertain to eye and face protection, respiratory protection, head protection, foot protection, and electrical protective devices.

[*8]

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The parties also disputed whether United should be held responsible for Ainsworth's failure to use protective equipment. According to United, Ainsworth, an experienced, supervisory employee, failed to use a flotation device n6 even though such devices were available for use and even though Ainsworth was aware that United's safety rules required the use of such devices where a danger of drowning existed. In United's view, the Secretary failed to satisfy his burden to prove that United knew or could have have known of Ainsworth's actions. Alternatively United contended that as a matter of defense it established that Ainsworth's actions constituted unpreventable employee misconduct which it could not have anticipated. On the other hand, the Secretary contended that flotation devices were not available for use because they were stored a considerable distance from the worksite and that, assuming such devices were available, United had knowledge of Ainsworth's failure to use the equipment because the actions of supervisory employees are imputed to the employer unless the employer demonstrates that the [*9] employee's conduct was not preventable. In the Secretary's view, United failed to meet its burden because its supervisory employees were themselves not adequately supervised.

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n6 While the citation alleged that United's employee was not protected with either a life jacket, flotation device, or boat, the Secretary concedes that boats are not a type of personal protective equipment within the meaning of 1910.132(a). We will use the term "flotation device" to refer to any type of personal equipment, such as life jackets and life rings, which an employee can use to protect himself from drowning while in water.

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In concluding that the general industry standard at 29 C.F.R. 1910.132(a) is applicable rather than the construction industry standard at 29 C.F.R. 1926.106(a), Judge Sparks noted that decisions of other Commission judges conflict on the question whether the business of drilling oil and gas wells constitutes construction work. n7 However, he distinguished this case from those involving drilling on the basis [*10] that United's work, the geophysical exploration of possible sites for the production of oil and gas, is "merely exploratory and preparatory to the actual well drilling." He reasoned that this work is not included in the definition of "construction work" set forth in 29 C.F.R. 1910.12(b) n8 and therefore is governed under the general industry standards of the Act.

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n7 The judge cited Circle Bar Drilling Co., 78 OSAHRC 82/D4 (No. 77-3581, 1978) (ALJ) (employer engaged in drilling oil and gas wells but not in the production of oil and gas is not engaged in construction work within the meaning of 29 C.F.R. 1910.12) and Fred Wilson Drilling Co., 78 OSAHRC 67/D2 (No. 77-3578, 1978) (ALJ), aff'd in part and vacated in part without review of the issue, 624 F.2d 38 (5th Cir. 1980) (drilling a well is part of an installation for the extraction of oil and therefore constitutes construction work). Since the Commission did not review these judges' decisions, they have no precedential value. Leone Constr. Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD P20,387 (No. 4090, 1976).

n8 This provision states that for the purposes of 1910.12, "'construction work' means work for construction, alteration, and/or repair, including painting and decorating."

[*11]

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Having determined that 29 C.F.R. 1910.132(a) is the applicable standard in the circumstances of this case, the judge concluded that the standard is limited on its face to conditions which cause injury to the body through absorption, inhalation, or physical contact, citing other unreviewed decisions of Commission judges holding that this standard does not require protection against the hazard of a fall. The judge expressly rejected the Secretary's contention that drowning by inhalation of water is within the terms of the standard, characterizing the Secretary's argument as a "highly strained" and "extraordinary construction" of the term "inhalation." Accordingly, the judge vacated the citation. In view of this disposition, he expressly declined to address United's affirmative defense of unpreventable employee misconduct.

Before us on review the parties essentially reiterate their contentions before the judge. According to the Secretary, the drilling of oil wells itself constitutes construction work. In the Secretary's view, United, while not actually engaged in construction work, performs work [*12] "directly and vitally" related to the construction of oil wells since without prior exploration the proper siting of wells could not be accomplished. Accordingly, the Secretary contends that the construction standards apply under the principle announced by the Commission in Royal Logging Co., 79 OSAHRC 84/A2, 7 BNA OSHC 1744, 1979 CCH OSHD P23,914 (No. 15169, 1979), aff'd, Nos. 79-7622 & 79-7628 (9th Cir. May 18, 1981), where the Commission stated that an employer not directly engaged in construction work is nevertheless subject to the construction standards if its operations are a necessary and integral part of construction work.

Assuming, however, that United's work is not within the construction standards in Part 1926, the Secretary contends that the judge erred in concluding that the general industry standard, 1910.132(a), does not require the use of flotation devices. Specifically, the Secretary argues that the standard does not by its plain terms expressly exclude flotation equipment, and indeed covers personal protective equipment which is not specifically delineated in the standard. The Secretary further argues that the gravel pit may reasonably be considered [*13] within the scope of the standard as a hazard of the environment which caused death through the inhalation of water. In the Secretary's view, such an interpretation best effectuates the remedial purposes of the Act. The Secretary also contends that United violated the standard by failing both to provide and to insure the use of appropriate protective equipment in that life jackets were not available to the employees at the worksite and United did not effectively enforce its rules requiring that such devices be worn.

United, while conceding that the "actual erecting" of oil and gas wells may be subject to the construction standards, contends that nevertheless some construction work as defined at 1910.12(b) must actually be performed in order for the construction standards to apply. According to United, its geophysical exploration work is not directly related to actual well drilling or erection; United asserts that once it takes its seismic recordings at any particular site the site may be abandoned and no further exploration nor any drilling conducted. In United's view, the Commission's decision in Royal Logging, supra, that the logging industry is not integrally related [*14] to construction work, is analogous and dictates a similar conclusion with respect to the activity of geophysical exploration at issue in this case. United further contends that the judge properly determined for the reasons he gave that the general industry standard, 1910.132(a), does not require the use of equipment to protect against the hazard of drowning.

Our precedents apply the construction standards only to those employers directly engaged in construction work or whose operations are an integral and necessary part of such work. Royal Logging, supra, 7 BNA OSHC at 1747 n.7, 1749-50, 1979 CCH OSHD at 28,993 n.7, 28,996, and cases cited therein. n9 The record in this case shows that United's operations consist of detecting underground vibrations through the use of listening devices inserted into the ground. Since these operations do not in themselves involve the erection, modification or repair of a building or structure, they do not constitute construction work as that term is defined at 29 C.F.R. 1910.12(b). n10 The question remains, however, whether they are sufficiently related to the performance of construction work to justify applying the construction standards [*15] to United.

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n9 The judge correctly noted the Commission precedent in Royal Logging, supra. However, although the judge characterized United's work as "preparatory" to well drilling, his decision does not discuss whether this relationship with drilling work is sufficient to subject United to the construction standards under the rule of Royal Logging.

n10 See note 8 supra. We note that neither party contends that the geophysical exploration for oil is itself construction work.

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Both parties make arguments before us regarding the relationship of United's activities to the locating and subsequent drilling of oil wells. United asserts basically that geophysical exploration is a wholly independent activity whereas the Secretary argues that it is an essential element of the process of developing an oil well. We reject both parties' arguments because there is no evidence to support the view of either party. The evidence contains no facts regarding the process by which an oil well is developed beyond [*16] the initial stage represented by United's operations at issue in this case. Furthermore, there is no evidence concerning the nature of the information obtained by United's employees or the manner in which that information is used in the siting and drilling of wells. Accordingly, we cannot on this record determine whether or not United's activities are an integral part of the process of developing an oil well. Therefore, even if we assume, as the Secretary argues, that drilling of oil wells constitutes construction work, we still could not hold United subject to the construction standards for the reason that United's activities are not shown to be integrally related to the drilling operation.

It is well-settled that the burden of proof to demonstrate that a particular standard applies to the facts is on the Secretary. Belger Cartage Service, Inc., 79 OSAHRC 16/B14, 7 BNA OSHC 1223, 1979 CCH OSHD P23,440 (No. 79-1480, 1979); Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD P20,690 (Nos. 3694 & 4409, 1976). On the record before us the Secretary has failed to establish that the construction standard at 29 C.F.R. 1926.106(a) is applicable to United's [*17] operations. For this reason, we conclude that the Judge did not err in holding the construction standard inapplicable in the circumstances of this case.

However, we do not agree with the judge that flotation devices are not included within the terms of the general industry standard at 1910.132(a). We recently considered an analogous issue regarding the scope of 1910.132(a) in Ed Cheff d/b/a Ed Cheff Logging, 81 OSAHRC    , 9 BNA OSHC 1883, 1981 CCH OSHD P25,431 (No. 77-2778, 1981). In that case the employer contended that seat belts to protect the operator of a tracked vehicle from being crushed if the vehicle were to roll over are not a required form of protective equipment within the language of the standard. In rejecting that contention, we concluded that the phrase "hazards of processes or environment" must be interpreted in view of the remedial purpose of the Act. Noting that in common usage the word "environment" refers to surroundings, we held that 1910.132(a) includes the rollover hazard created by the operation of tracked vehicles over uneven terrain. We further concluded that seat belts are a form of protective equipment within the meaning of 1910.132(a) [*18] for the reason that the use of the word "including" in this standard indicates that the enumeration of various types of personal protective equipment was intended only as an example of some kinds of protective equipment, not as a limitation on the scope of the standard. We also noted that there is no indication that the drafters of the standard otherwise intended to exclude seat belts.

Applying this reasoning to the case now before us, we conclude that the hazard of drowning in the gravel pit in issue is a hazard of the environment within the meaning of 1910.132(a) since the gravel pit is part of the surroundings in which United's employees worked. Similarly, there is no indication that equipment to protect against this hazard, specifically flotation devices, was intended to be excluded from the scope of the standard.

The standard, however, be its terms applies only to hazards which result in injury through "absorption, inhalation or physical contract." United contends, and Judge Sparks concluded, that drowning is not a hazard of this type. We do not agree. Although the record does not indicate the precise cause of Ainsworth's death in clinical terms, drowning is commonly [*19] understood as death by suffocation in water or some other liquid. E.g., Webster's Third New International Dictionary, (1971 ed.) Considering, as discussed above, that the standard is to be interpreted in light of the statutory purpose, the language "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" is sufficiently broad to include the hazard of death by suffocation resulting from physical contact with water. n11 Accordingly, we conclude that the standard may properly be read to encompass flotation devices to protect against the hazard of drowning.

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n11 In this regard, we expressly reject United's argument and the judge's conclusion that the term "inhalation" does not encompass inhalation of water. United's reliance on the respiratory protection requirements at 29 C.F.R. 1910.134 in support of its contention that "inhalation" is limited to the inhalation of airborne contaminants is misplaced. The specific requirements of that standard are in addition to, and do not limit the scope of, the general protective equipment provision at 1910.132(a).

[*20]

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Nevertheless, the breadth of 1910.132(a) requires that its application to a particular case be limited to conditions that would be recognized as hazardous by a reasonable person familiar with the circumstances. Ed Cheff, supra, 9 BNA OSHC at 1888-89, 1987 CCH OSHD at 31,711, and cases cited therein. The record shows that United had obtained flotation devices for use by its employees and indeed required that either such devices or boats be used by employees who are exposed to the hazard of drowning. It is clear, therefore, that United recognized the existence of a hazard warranting the use of protective equipment. is not vague as applied in such circumstances).

United, however, contended before the judge that it could not have known nor anticipated that an experienced, supervisory employee, Ainsworth, would commit an act in violation of its safety rule. The Secretary contends that United must be held responsible for the actions of its supervisory employee absent a showing that it effectively enforced its safety policy. The Commission has recently reaffirmed its prior precedent that a violation of the Act cannot be affirmed unless the Secretary establishes as part of his case that the employer knew or with the exercise of reasonable diligence could have known of the presence of the violation. Prestressed Systems, Inc., 81 OSAHRC    , 9 BNA OSHC 1864, 1981 CCH OSHD P25,358 (No. 16147, 1981); General Electric Co., 81 OSAHRC    , 9 BNA OSHC 1722, 1981 CCH OSHD P25,345 (No. 13732, 1981).

However, the actions and knowledge of supervisory employees in violation of the Act are imputed to the employer, and the employer is responsible for the violation, unless the employer demonstrates that the supervisor was adequately supervised regarding safety matters. Wright and Lopez, Inc., 80 [*22] OSAHRC 36/A2, 8 BNA OSHC 1261, 1980 CCH OSHD P24,419 (No. 76-3743, 1980), petition for review filed, No. 80-1569 (D.C. Cir. May 27, 1980); Connecticut Natural Gas Corp., 78 OSAHRC 60/B3, 6 BNA OSHC 1796, 1978 CCH OSHD P22,874 (No. 13964, 1978). Accordingly, when, as in this case, a supervisory employee commits a violation, a prima facie case of knowledge is shown, n12 and the burden shifts to the employer to defend by affirmatively demonstrating that the employee's misconduct could not have been prevented. Floyd S. Pike Electrical Contractor, Inc., 78 OSAHRC 50/E1, 6 BNA OSHC 1675, 1978 CCH OSHD P22,805 (No. 3069, 1978). Contra, Mountain States Telephone & Telegraph Co. v. OSHRC, 623 F.2d 155 (10th Cir. 1980).

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n12 We note further that an employer has a duty to take measures to ascertain any hazards peculiar to the operation in which its employees are engaged. Southwestern Bell Telephone Co., 79 OSAHRC 4/F10, 7 BNA OSHC 1058, 1979 CCH OSHD P23,278 (No. 15841, 1979). United failed to discharge this duty to its employees since Gandy's and Ainsworth's supervisor, Wilkerson, had not attempted to determine whether the recording crew would be likely to encounter any hazardous conditions in the course of its work. Therefore, we also conclude that United had constructive knowledge of Ainsworth's actions in view of its failure to ascertain whether the employees would be required to cross any body of water such as the gravel pit and failure to take the requisite measure to insure their safety. Southwestern Bell, supra.

[*23]

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In order to establish its defense that Ainsworth's actions were unpreventable, United must establish that it effectively communicated work rules to employees and that its rules were effectively enforced through supervision adequate to detect failures to comply with the rules and discipline sufficient to discourage such violations. Floyd S. Pike, supra. While United had instituted a safety rule and had taken measures to communicate the rule to its employees, the actions of both of United's supervisory employees at the site, Gandy and Ainsworth, indicate that this rule had not been effectively implemented. By inquiring whether any employee could swim across the pit at a time when no protective equipment was available at the site, Gandy demonstrated that he was willing to expose an employee to the hazard of drowning in order to accomplish the assigned work. Similarly, Ainsworth disregarded United's rule by agreeing to attempt the swim. As we have said, the fact that a supervisor would feel free to breach a company safety policy is strong evidence that the implementation of the policy is lax. [*24] Jensen Construction Co., 79 OSAHRC 49/D3, 7 BNA OSHC 1477, 1979 CCH OSHD P23,664 (No. 76-1538, 1979). Indeed, that conclusion is even more strongly compelled in this case since the facts demonstrate that two supervisory employees jointly agreed to violate the safety rule. Finally, we note that there is no evidence that United enforces its safety rules by the imposition of disciplinary measures.

Therefore, we conclude that United has failed to establish that it took all necessary precautions to prevent the occurrence of the violation and accordingly affirm the citation for violation of 29 C.F.R. 1910.132(a). n13 The Secretary proposed a penalty of $420 for the violation. We consider this amount appropriate under the criteria specified in section 17(j) of the Act, 29 U.S.C. 666(i). The gravity of the violation is high. On the other hand, United demonstrated good faith by taking some measures to implement a safety program. The only evidence as to United's size is that it had at least 45 employees at the time of the inspection, and the record does not show any history of prior violations.

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n13 Since we affirm the citation on the basis of United's failure to insure the use of flotation devices, we need not decide whether, as the Secretary argues, United is also in violation for failing to provide appropriate protective equipment. However, protective equipment kept at a central location as much as 30 miles from the jobsite, as in this case, cannot be considered available for use by the employees at the site.

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Accordingly, the judge's decision is reversed, the citation is affirmed insofar as it alleges a violation of 29 C.F.R. 1910.132(a), and a penalty of $420 is assessed therefor. SO ORDERED.