CORMIER WELL SERVICE

OSHRC Docket No. 8123

Occupational Safety and Health Review Commission

April 6, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Ronald M. Gaswirth, Regional Solicitor, U.S. Department of Labor

Lynwood Sanders, Cormier Well Service, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

On May 10, 1974, respondent, Cormier Well Service, was issued a citation for violation of section 5(a)(1) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 654(a)(1). This citation, issued by complainant, the Secretary of Labor, described the alleged violation as follows:

Failure to provide a place of employment which was free from a recognized hazard that was likely to cause death or serious physical harm, in that the employee was in the derrick, standing to one side of the monkey board and not wearing a safety belt and life line.

After respondent's filing of a timely notice of contest to the citation and $500 proposed penalty, a hearing was held before Administrative Law Judge William J. Risteau. In a decision dated October 10, 1974, Judge Risteau affirmed the citation, and assessed a $500 penalty.

This decision is now before us pursuant to section 12(j) of the Act. The issues specified in the order for review are the following:

(1) Was there [*2] sufficient evidence to establish that respondent violated 29 U.S.C. 654(a)(1) as charged?

(2) Did complainant specify the particular steps respondent should have taken to avoid citation for the said offense and demonstrate the feasibility and likely utility of those measures? National Realty and Construction Co. v. OSAHRC et al., 489 F.2d 1257 (D.C. Cir. 1973).

Upon consideration of the record, including the briefs of the parties, n1 we affirm the Judge's disposition of this case for the reasons set forth below.

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n1 In response to the invitation for briefs respondent filed a brief with the full Commission. Complainant, however, informed the Commission by letter that he would rely on the brief he submitted to Judge Risteau.

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Respondent is engaged in the business of oil-well drilling and servicing. The citation at issue arose out of conditions allegedly existing at an oil-drilling operation controlled by respondent.

Respondent does not dispute the Judge's findings regarding the events that led to a fatal accident [*3] at its worksite on April 8, 1974. n2 On that day respondent's on-site supervisor, B. F. Snyder, allowed the deceased employee, Floyd Birch, to ascend to a working platform on an oil rig in order to "learn derrick." The working platform, also called a "monkey board," was situated about 65 feet above ground level and about 55 feet above the "floor" of the derrick. It was the regular working station of the "derrick man." The entire platform assembly measured approximately eight feet by seven feet and was guarded on three sides by a tubular railing. The fourth side of the assembly faced the derrick and was not protected by a railing. The floor of the assembly was comprised of a single two-foot by eight-foot platform at the rear of the assembly and seven evenly spaced metal "fingers" projecting from either side of the assembly. n4 These fingers measured about five inches by eighteen inches.

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n2 Although the Judge's findings refer to events occurring "on or about April 4, 1974," it seems clear that the hearing involved circumstances allegedly existing on April 8, 1974.

n4 In other words the floor of the platform was largely open.

[*4]

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In order to learn the derrick man's job, employee Birch stood on the platform and observed the derrick man performing his assigned duties. These duties included removing drill pipe from an "elevator," racking the pipe on the platform, and changing drill bits. While performing his duties, the derrick man wore a safety belt secured to a lifeline. Birch, however, was not secured against falling in this manner. He was standing on one of the metal fingers near the derrick, and was holding by hand to the rail at the edge of the platform. There was no safety belt on the platform available for his use.

The fatal accident occurred when an equipment failure caused a 100-pound iron ball near the platform to become dislodged. It struck Birch, causing him to fall to his death.

In order to establish a violation of section 5(a)(1) n5 of the Act, the so-called general duty clause, complainant must prove:

(1) that the employer failed to render its workplace 'free' of a hazard which was (2) 'recognized' and (3) 'causing or likely to cause death or serious physical harm.'

National Realty & Construction Co., [*5] Inc. v. O.S.H.R.C., 489 F.2d 1257, 1265 (D.C. Cir. 1973). Complainant must also demonstrate that there were feasible steps that the employer could have taken to avoid the situation. National Realty & Construction Co., Inc. v. O.S.H.R.C., supra at 1268.

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n5 Section 5(a)(1) of the Act provides:

Each employer 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.

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The existence of a hazard cognizable under the general duty clause is clear on this record. Indeed, as Judge Risteau observed in his decision:

A person standing 55 feet above ground on a 4 1/2 to 5 inch wide steel rail and relying for support on a handhold to another rail is subjected to a significant falling hazard whether or not an accident actually occurs. n6

Thus, the hazard in this case was the practice of standing on the platform without being protected by a safety belt secured to a lifeline. [*6] Respondent failed to render its workplace free of this hazard when, through its on-site supervisor, it allowed employee Birch to remain on the platform without being secured by a safety belt and lifeline.

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n6 In its brief, respondent argues that the accident that took the life of Birch was an unforeseeable instance of equipment failure. The Judge properly eschewed this argument when he stated that the existence of a hazard does not depend on the occurrence of an accident.

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As noted above, however, complainant must also show the existence of feasible steps the employer could have taken to abate the hazard and, therefore, avoid citation. Complainant maintained that it was possible for respondent to install an additional safety belt and lifeline on the platform for use by employees observing the derrick man perform his duties. The compliance officer testified that it was feasible to install an additional safety belt. Respondent's on-site supervisor supported the compliance officer's testimony when he testified that [*7] multiple safety belts could have been installed on the platform. However, respondent's drilling superintendent testified that there was no workable method of installing a safety belt system that would protect trainees at all positions on the platform. His testimony conflicts with that of respondent's on-site supervisor and the compliance officer. Judge Risteau resolved this conflict in favor of complainant. We agree, and conclude that the record shows that feasible steps were available to respondent that would have abated the hazard.

There was significant dispute between the parties as to whether the practice of allowing a trainee to remain on a derrick was a "recognized hazard" within the oil-drilling industry. Respondent asserted that it was customary within the industry for trainees to remain unprotected on the platform. Several of respondent's employees testified that they had "learned derrick" without the protection of safety belts and lifelines. On the basis of this evidence, respondent asserts that the hazard was not "recognized" within the meaning of section 5(a)(1) of the Act. We disagree.

Charles F. Hacquest, complainant's compliance officer, testified that oil-industry [*8] practices require the use of safety belts and lifelines at heights above ten feet. In other words, the industry has recognized a hazard to those employees required to perform duties at heights. n7 It is significant to note that the derrick man always wore a safety belt while on the platform. This fact evinces a recognized hazard to the derrick man assigned to the platform. We therefore conclude that respondent either recognized the hazard of falling to any employee, including a trainee, present on the platform, or should with reasonable prudence have recognized this hazard. Cf. Cape & Vineyard Div. of the New Bedford Gas v. O.S.H.R.C., 512 F.2d 1148, 1152 (1st Cir. 1975).

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n7 Respondent states that the compliance officer's opinion on industry recognition of the hazard must be rejected because it is based solely on provisions contained in a safety manual published by the International Association of Drilling Contractors which was excluded from evidence by Judge Risteau.

We find no merit in this assertion. The record shows that Compliance Officer Hacquest had a degree in petroleum engineering and had five years of oil industry experience. Thus, it is clear that his opinion is broadly based and his qualifications are adequate.

[*9]

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A final question remains as to whether the failure to provide safety belts constitutes a condition "causing or . . . likely to cause death or serious physical harm . . ." to respondent's employees. n8 Without the protection of a properly secured safety belt an employee on the platform is exposed to a fall of approximately 55 feet, which could obviously result in death or serious physical harm.

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n8 See note 5 supra.

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We hold that a violation of section 5(a)(1) of the Act has been proved. Accordingly, we affirm Judge Risteau's order affirming the citation at issue.

Complainant proposed and the Judge assessed a $500 penalty for this violation. We have examined the evidence in light of the criteria set forth in section 17(j) of the Act and affirm the assessment of a $500 penalty for the reasons assigned by the Judge.

So ORDERED.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

I disagree with my colleagues' disregard of the nature of the [*10] charge against the respondent and their affirmance of a violation despite the fact that the evidence does not establish that the violative condition alleged in the citation was a recognized hazard nor that it was feasible for Floyd Birch to use a safety belt and lifeline at the time of the fatal accident. Accordingly, I would vacate the citation.

The citation avers that the respondent violated 29 U.S.C. 654(a)(1) the so-called general duty clause, Birch "was standing to one side of the monkey board and not wearing a safety belt and lifeline." Birch was in this position because he had requested and obtained permission to go up onto the platform in order to learn the duties of the "derrick man." He ascended to the platform by climbing a ladder. One safety belt attached by a line to the rear of the platform was left on the platform at all times for use by the derrick man. When Birch arrived at the platform, the derrick man, Lynn Spurlock, was wearing the safety belt while stacking pipes. Upon Birch's arrival on the right side of the platform, Spurlock told him to wait there until Spurlock had completed stacking some pipes before proceeding to his point of observation at [*11] the rear of the platform. At that time, Birch was standing on a lower rail that was about five inches wide and holding onto a handrail. While he was standing there, a previously unheard-of equipment failure occurred when "the elevator hung upon the pipe and the bail [a heavy piece of iron] came out of the block and hit him and knocked him off" the platform.

As my colleagues acknowledge, the complainant must establish that the alleged violative condition constitutes a "recognized" hazard "that [is] causing or [is] likely to cause death or serious physical harm" to the respondent's employees in order to prove a violation of 29 U.S.C. 654(a)(1). However, a condition constitutes a recognized hazard only when the evidence shows that it is commonly known by the public in general or in the cited employer's industry as a hazard of such a type. See National Realty and Construction Company, Inc. v. OSAHRC, 489 F.2d 1257, 1265 n. 32 (D.C. Cir. 1973). Additionally, there is no violation of section 654(a)(1) unless the complainant's evidence establishes "the particular steps a cited employer should have taken to avoid citation, and . . . demonstrate[s] the feasibility and [*12] likely utility of those measures." National Realty and Construction Company, Inc. v. OSAHRC, supra at 1268. I depart company with the majority's findings as to the sufficiency of the evidence regarding the last two rules as announced in National Realty because the complainant clearly failed to establish by a preponderance of the evidence, as he is required to do, that the failure of Birch to use a safety belt and lifeline was a recognized hazard, as defined above, and that their use by Birch was a feasible measure. See Secretary v. Armor Elevator Company, 5 OSAHRC 260 (1973).

The complainant's inspector testified that the usual practice among oil field employees was for the derrick man to wear a life belt and lifeline anchored to a guardrail at the rear of the platform. He did not testify, however, as to the usual practice of trainees which is the issue here. He also testified that the hazard of falling from a monkey board is generally recognized in the oil well drilling industry and that employees working thereon generally used safety belts and lifelines as protective measures. In his opinion, safety belts and lifelines should be used when an oil [*13] field worker is working at an elevation of 10 or more feet above a solid surface. His opinions, however, were apparently based on provisions contained in a safety manual published by the International Association of Drilling Contractors which the Judge refused to admit into evidence. The inspector's opinion was supported by the testimony of the area director who expressed the strictly personal opinion that Birch should have been protected by a safety belt immediately after mounting the platform.

B. F. Snyder, the person in charge of the derrick crew at the time of the accident, testified that the standard procedure for the derrick man was to climb the ladder, walk around the side of the platform, and put on the safety belt after reaching the rear of the platform. When he was trained as a derrick man, he did not tie himself off with a lifeline.

Spurlock expressed the opinion that Birch was standing in a safe location at the time of the accident. The training procedure that was being followed with Birch was the same as that used when Spurlock was trained as a derrick man.

Birch's stepfather, John Hart, who was employed by the respondent as a driller, testified that standard [*14] procedure was being followed in training Birch as a derrick man. The safety practices that were used in training Birch were the same as those Hart had observed on all other rigs on which he had worked during his 20 years of experience in the oil business. Hart had been trained as a derrick man in the same manner.

Leonard Bradley, the respondent's drilling superintendent, testified as follows at the hearing:

"Q. As a result of this particular accident, have you taken any -- have you changed any of your practices on this rig for your own safety?

A. I have added to some of the practices. We now have two belts in the derrick in case a man wants to go up and learn to work derricks, but I don't feel like . . . in this specific case it would have prevented that accident, the fact that I have the other belt.

Q. Because the man would still have to get that --

A. It's not accessible from the point where he was standing and then if he had it on he couldn't get to the place where he needed to be to observe it.

Q. In this case, Mr. Bradley, if there was some way to make it safe and get them a ladder in the back of the board, would you be willing to institute it?

A. Definitely. [*15]

Q. Has anybody suggested to you that what you consider to be a workable method of solving this problem?

A. Not a workable solution, no." (Emphasis added.)

At the conclusion of his testimony, Bradley stated that he was not aware of any device that could have been used to prevent Birch's accidental fall.

The evidence, as shown in the summary above, not only fails to establish that Birch's failure to wear a safety belt and lifeline is a recognized hazard but, to the contrary, supports an opposite conclusion. Even the complainant himself seems to agree with this conclusion in his brief that was submitted to the Judge after the hearing where he states:

"Mr. Birch, while he was standing there watching the derrick man, Mr. Spurlock, was following what apparently was the industry practice in the oil drilling industry, in the same manner as others had done, e.g. Mr. Snyder . . . and Mr. Spurlock . . . ." n8

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n8 The record indicates good reason for the industry practice. The derrick man is in danger of falling because he has work to perform on the platform. However, the same danger does not exist for the trainee who is merely an observer. As Snyder indicated in his testimony, the derrick man needs the safety belt because it is necessary for him to brace himself with it while performing his duties.

[*16]

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Additionally, there is no evidence that shows that it was feasible for Birch to use a safety belt and lifeline in moving from the ladder to the rear of the platform. My colleagues contend that Bradley's testimony conflicts with that of the inspector and Snyder. That is simply incorrect. The inspector testified that a safety belt would have prevented a fall. However, this statement was made without considering Birch's position on the platform at the time of the accident. He did not render any opinion as to how Birch could move from where he was located at the time of the accident to his intended position at the rear of the platform with a safety belt or that entanglement with the pipe would not result from an attempt to do so. Snyder's testimony indicates only that another safety belt could be attached "[b]ehind the monkey board." Therefore, Bradley's testimony that no workable solution had been suggested stands unrebutted.

Finally, I am constrained to comment on footnote 6 of the lead opinion which rejects respondent's contention that the accident was unpreventable. Congress did not intend for [*17] the Act to impose strict liability upon employers and, therefore, unpreventable hazards are not recognized under the general duty clause. National Realty and Construction Company, Inc. v. OSAHRC, supra at 1265-1266. Accordingly, an employer cannot be held in violation thereof where the hazard in issue was not reasonably foreseeable. Cape and Vineyard Division of the New Bedford Gas and Edison Light Company v. OSAHRC, 512 F.2d 1148 (1st Cir. 1975). There is not one scintilla of evidence in this case which indicates that anyone had previously heard of an accident of the type which caused Birch's death. To the contrary, those witnesses who were questioned on the matter, testified that they had no knowledge of any similar occurrence. Accordingly, I find it difficult to understand how my colleagues conclude that "[t]he Judge properly eschewed" the respondent's contention.

Since this decision does not discuss all the matters covered by Judge Risteau's decision, the same is attached hereto as Appendix A.

Appendix A

DECISION AND ORDER

Arnold Battise, for the Secretary of Labor

Lynwood Sanders, for the Respondent

RISTEAU, Judge

STATEMENT OF THE CASE

This is [*18] a proceeding pursuant to section 10(c) of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereafter called the Act), contesting a citation issued by the complainant on May 10, 1974, against the respondent under authority vested by section 9(a) of the Act. The citation alleges that as the result of an inspection on April 11, 1974, of a workplace under the ownership, operation or control of the respondent, located at W. T. Belcher A-#40 Lease, Brazoria County, Texas, and described as an "Oil well service," respondent violated section 5(a)(1) of the Act. The description of the alleged violation in the citation is as follows:

SERIOUS VIOLATION

Item No.

Standard

Description

1

Section 5(a)(1) of

Failure to provide a place of employment

the Occupational

which was free from a recognized hazard

Safety and Health

that was likely to cause death or serious

Act of 1970

physical harm, in that the employee was in

the derrick, standing to one side of the

monkey board and not wearing a safety belt

and life line.

Pursuant to the enforcement procedure set forth in section 10(a) of the Act, respondent was notified by letter dated May 10, [*19] 1974, from Thomas T. Curry, Director of Area 3280, Occupational Safety and Health Administration (OSHA), United States Department of Labor, that he proposed to assess a penalty for the violation alleged in the following amount:

SERIOUS VIOLATION:

Item No. 1

$500

Total

$500

After respondent contested this enforcement action and a complaint had been filed, the case came on for hearing at Houston, Texas, on August 6, 1974. No question concerning the respondent's status as an employer as defined in the Act or the jurisdiction of this Commission has been raised.

DISCUSSION

The facts here are not complicated. A member of respondent's work crew climbed to the platform of an oil rig, about 65 feet above ground level and about 55 feet above the "floor" (Tr. 19) where he intended to "learn derrick" (Tr. 69-70). He was not secured by a safety belt or lifeline, (Tr. 69-70) but was holding on to a rail on the edge of the platform and was standing on another rail about 4 1/2 or 5 inches wide (Tr. 113, 125). When an unexpected equipment failure occured, he was swept to his death below (Tr. 85-86, 100-101). Only one man is regularly stationed on the platform and the deceased [*20] was at that location of his own volition and not engaged in performance of assigned duties (Tr. 69-70, 80-81).

On these facts, it must be determined whether, in the language of section 5(a)(1) of the Act, respondent met the requirement that he:

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.

Respondent urges that this provision is inapplicable, relying on Rule 1(e) of the Commission Rules of Procedure, which defines an "affected" employee as one "who is exposed to the alleged hazard described in the citation, as a result of his assigned duties." Other references to the term "affected employee" in the Rules, however, cover only service and notice (Rules 8, 35, and 100), party status at hearings held under the Act, (Rule 20) and representation of parties at such hearings, (Rule 22) matters clearly not here applicable. It would appear, therefore, that the use of the adjective "affected" in the Rules does not alter the requirements of section 5(a)(1), which as pointed out above, uses the broad unqualified term "employee" in setting forth [*21] its scope.

Moreover, there is no doubt that the deceased was respondent's "employee," as that term has been defined by the Commission in Secretary v. Gilles & Cotting, Inc., No. 504, October 9, 1973, whether or not he was engaged in his assigned duties at the time of his death. Finally, he was permitted to mount to his exposed position with the knowledge and approval of his supervisor (Tr. 69-70, 80-81); he was by no means on a frolic of his own.

It must also be decided whether the deceased was exposed to a "recognized" hazard as that term is used in section 5(a)(1). That there did exist a real hazard to an unprotected person aloft can be ascertained by mere examination of pictures of the rig (Ex. C-1 and R-1).

With respect to the "recognized" aspect of the hazard, complainant's inspector testified that industry practices require the use of lifelines at heights of over 10 feet (Tr. 37, 41-42, 54-55) and it also appears that the employee regularly stationed on the platform was equipped with a safety belt (Tr. 69-70, 94). Respondent's evidence on the point consisted of the testimony of employees who stated that they had received their training on the platform in the same way as [*22] the deceased. (Tr. 88, 108, 124, 146)

Considering the evidence as a whole, it would appear that the hazard here is covered by section 5(a)(1). To find otherwise would permit an employer, by disclaiming liability when an employee exposes himself to danger of his own volition, to raise a defense closely akin to assumption of risk, a concept alien to the purposes of the Act and rejected by this Commission and the Courts. See: National Realty & Construction Company, Inc. v. Occupational Safety and Health Review Commission, 489 F. 2d 1257, 1266, Fn. 36 (D.C. Cir. 1973); REA Express, Inc., v. Brennan, 495 F. 2d 822, 825 (2d Cir. 1974).

Nor does the fact that the equipment failure which resulted in the fatal accident was an unusual or unique event detract from respondent's responsibility. A person standing 55 feet above ground on a 4 1/2 to 5 inch wide steel rail and relying for support on a handhold to another rail is subjected to a significant falling hazard whether or not an accident actually occurs. Even the "monkey board" in the center of the platform, which is somewhat larger than the rail on which the deceased was standing, is not a particularly substantial or safe station [*23] without additional protection (Tr. 20, 149).

Respondent's drilling superintendent testified that a lifeline would have been of limited usefulness in preventing the accident because the deceased would have occupied positions at more than one spot on the platform (Tr. 166). The record does not indicate, however, that it would have been impractical to put two or more lines in place to protect the trainee from the considerable hazard presented (Tr. 78). Accordingly, the citation must be affirmed.

With respect to penalty, it appears that respondent is a relatively small employer, that its safety program was considered satisfactory by the enforcement officials and that it had no record of violations under the Act. Under the circumstances, the proposed penalty of $500 is appropriate.

FINDINGS OF FACT

1. On or about April 4, 1974, employees of respondent were at work on an oil drilling operation in Manvel, Brazoria County, Texas.

2. While engaged in such work, one employee climbed to a platform on a drilling rig about 55 feet above ground level. While at that level he relied for support on a handhold to the rig or to a railing; he stood on a metal rail about 4 1/2 to 5 inches [*24] wide. He was not protected by a safety belt or lifeline.

3. There existed a recognized hazard of falling from the platform under the circumstances described in Finding 2, above. This hazard resulted in a substantial probability of death or serious physical harm. Respondent knew or could with the exercise of reasonable diligence have known of the existence of this hazard.

4. Respondent is a relatively small employer with a reasonably adequate safety program and no history of violations of the Occupational Safety and Health Act of 1970.

CONCLUSIONS OF LAW

1. Respondent is, by admission, an employer engaged in a business affecting commerce as defined in the Occupational Safety and Health Act of 1970.

2. On or about April 4, 1974, respondent was in violation of section 5(a)(1) of the Occupational Safety and Health Act of 1970 [29 USC 654 (a)(1)] in that it failed to furnish to each of its employees employment and a place of employment free from recognized hazards which were likely to cause death or serious physical harm. Violation of this statutory provision constitutes a serious violation, as defined in the Act.

3. A penalty of $500 for the above violation is proper. [*25]

ORDER

On the basis of the preceding Findings of Fact, Conclusions of Law, and the entire record, it is hereby ORDERED that the citation for Serious Violation, issued on May 10, 1974, be AFFIRMED, along with the proposed penalty of $500.

Dated: October 10, 1974

WILLIAM J. RISTEAU, ADMINISTRATIVE LAW JUDGE