UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 5991
PENROD DRILLING COMPANY
Respondent.

September 9, 1976

DECISION

BEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

MORAN, Commissioner:

A decision of Review Commission Judge Henry F. Martin, Jr., dated December 3, 1974, is before this Commission for review pursuant to 29 U.S.C. § 661(i). By that decision respondent was held not to be in violation of 29 U.S.C. § 654(a)(1).[1] For the reasons set forth below, we affirm.

The citation described the violation of 29 U.S.C. § 654(a)(1) in the following manner:

The employer failed to furnish his employee working on a derrick . . . a place of employment which was free from recognized hazards that were causing or were likely to cause death or serious physical harm to his employees in that the employer failed to require his employees to wear a safety belt when rigging the bridle to put it in position for the rigging down operation, from approximately 125 feet above the ground . . .

The Judge concluded that the evidence failed to establish the existence of a condition or practice which was recognized as hazardous by either the respondent involved or its industry. We agree with that conclusion for the reasons assigned in the Judge’s decision which is attached hereto as Appendix A.[2] Complainant therefore failed to sustain his burden of proving an essential element of his allegation. See Brennan v. OSAHRC and Vy Lactos Laboratories, Inc., 494 F.2d 460 (8th Cir. 1974); National Realty and Construction Company, Inc. v. OSAHRC, 489 F.2d 1257 (D.C. Cir. 1973). Accordingly, the citation was properly vacated.

On review, complainant has moved for the first time to amend the charge to allege that the respondent violated 29 U.S.C. § 654(a)(1) by failing to provide safety nets or, in the alternative, to allege that respondent violated 29 U.S.C. § 654(a)(2) by failing to comply with the occupational safety standard codified at 29 C.F.R. § 1926.28(a). Respondent opposes these motions. We conclude that it would be improper to allow either amendment at this late stage of the proceedings.

Complainant contends that the issue of respondent’s failure to provide safety nets was tried by respondent’s implied consent. He bases that contention on the fact that his inspector at one point in his testimony referred in general to the use of a safety net as another possible means of protection. We do not construe respondent’s failure to object to this innocuous testimony as implying that it was consenting to a trial on its failure to provide a safety net. Secretary v. Marquette Cement Manufacturing Company, OSAHRC Docket No. 4725, January 27, 1976. Furthermore, neither the citation nor the complaint refers to safety nets. It is a completely new charge. Therefore, it would be improper to allow this amendment because respondent was not put on notice that its failure to provide a safety net would be an issue at the hearing. Secretary v. P. & M. Sales, Inc., OSAHRC Docket No. 3443, May 3, 1976.

The motion to amend to allege noncompliance with 29 C.F.R. § 1926.28(a) is also inappropriate. The standards contained in 29 C.F.R. Part 1926 apply only where an employer has employees who are ‘engaged in construction work.’ 29 C.F.R. § 1910.12(a). The evidence in this case does not establish that respondent’s employees were so engaged. As the citation indicates, respondent’s activities involved dismantling an oil derrick.

For the foregoing reasons, complainant’s motions to amend are denied, and the Judge’s decision is affirmed. It is so ordered.

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

DATED: SEP 9, 1976

CLEARY, Commissioner, DISSENTING:

Before setting forth my reasons for disagreeing with the majority’s disposition of this case, a statement of the essentially undisputed facts will be useful.

On November 18, 1973, Penrod Drilling Company (Penrod) was preparing to disassemble the derrick of a rotary drilling rig in order to move it to another location. This operation, referred to in the drilling industry as ‘rigging down’ the derrick, required three employees to ascend the derrick for the purpose of attaching a bridle to the upper portion of the derrick so that the derrick could eventually be lowered into a horizontal position. In order to attach the bridle, the employees were required to stand on a girder that was about eight-feet long and one-foot wide. The girder was 125 feet above the ground and 95 feet above the derrick floor. None of the three employees was equipped with safety belts and lanyards so as to enable them to tie-off to the derrick. Indeed, Penrod did not require the wearing of personal protective equipment during the performance of this operation even though safety belts and lanyards were available for use.

The ‘rigging down’ of the derrick was to be accomplished using a bull line and bridle that were attached to a block and sling. As the bridle was raised, it became apparent that the bridle lines were too short to be handled by the employees from their positions on the girder. One of the employees stepped onto the block and sling assembly to ride it up. The sling broke, for reasons unexplained in the record, and the employee riding the sling fell to his death. This accident precipitated the Secretary of Labor’s (Secretary) investigation of Penrod that ultimately led to the issuance of a citation alleging a violation of section 5(a)(1) of the Act.[3]

Following a hearing on the merits, Judge Martin issued a decision vacating the citation. He held that the Secretary had failed to prove that the cited hazardous condition was ‘recognized’ within the meaning of section 5(a)(1) of the Act. The majority adopts the Judge’s decision. I would not because in my opinion the Judge’s analysis does not comport with applicable precedent.

In framing the issue of whether the hazard was ‘recognized’, Judge Martin stated as follows:

In order to establish a violation of the general duty clause, [section 5(a)(1) of the Act], it is necessary to prove that the hazard in question was ‘recognized’. It must be a hazard recognizable in the industry or it must be shown that the employer himself has actual knowledge of a hazardous condition.

Applying this analysis to the evidence adduced at the hearing, the Judge concluded that the Secretary had not proved that the hazard was ‘recognized.’

It was concluded that the drilling industry did not recognize the hazardous nature of the cited working condition. The Judge noted that the evidence showed that the drilling industry did not require the wearing of safety belts for all employees whose tasks required them to ascend the derrick. Only ‘derrick men’ were required to wear personal protective equipment. This was because ‘derrick men’ remain aloft for extended periods of time and must use both their hands while performing their duties. Employees engaged in ‘rigging down’ the derrick, however, were not required to wear safety belts because they had a free hand with which to rely upon for support, and remained aloft for shorter periods of time than derrick men.

The Judge noted two additional reasons advanced within the industry for not requiring the wearing of safety belts in the cited operation. First, it was shown that members of the industry regarded the use of safety belts during the operation as inconvenient because the safety lines might become tangled and hinder the employees’ performance of their tasks. Second, it was urged that the industry did not generally require the use of safety belts in any operation that requires constant movement within the derrick. In support of this practice the Judge noted the applicability of a proposed occupational safety and health standard drafted by the Texas State Department of Health. This proposed rule reads as follows:

Every employee, when engaged in work at 10 feet or more above the derrick floor, shall wear a safety belt with an attached lanyard properly secured, except when the work being performed requires constant movement within the derrick (emphasis added).

In reaching his conclusion that the cited hazard was not ‘recognized,’ Judge Martin apparently accepted Penrod’s assertion that the cited activity fell within the proposed rule’s exception. He noted that the deceased employee was ‘within the derrick’ at the time of the fatal accident. It was also noted that, according to testimony of a safety expert testifying for Penrod, the cited operation required ‘considerable moving around,’ and thus fell within the proposed rule’s exception.

Based upon the above, Judge Martin concluded that the existence of a ‘recognized’ hazard was not established. He never squarely addressed the issue of whether Penrod itself actually knew whether the condition was hazardous. Presumably Judge Martin regarded Penrod’s reasons for either not recognizing or knowing of the hazard as corresponding to the reasons advanced within the industry for not requiring the use of safety belts during the cited operation.

The Commission recently issued a decision in Cormier Well Service, 4 BNA OSHC 1085, 1975–76 CCH OSHD para. 20,583 (No. 8123, April 5, 1976), in which we affirmed a violation of section 5(a)(1) of the Act involving an alleged failure of an employer to require the wearing of safety belts by certain employees required to ascend an oil derrick. The principles of law applied in Cormier regarding the question of whether the hazard was ‘recognized’ within the meaning of section 5(a)(1) are applicable to the instant case. The analysis in Cormier reveals the error of Judge Martin’s analysis here. Indeed, in Cormier we rejected the very arguments of the employer that the Judge relied upon in the instant case.

The violative condition found to exist in Cormier involved the employer’s practice of allowing trainees for the job of ‘derrick man’ to remain on a working platform on the derrick without the protection of a safety belt. Specifically, the trainee stood 55 feet above the ground on a 5-inch-wide steel rail. We rejected the employer’s assertion that this work practice was not hazardous. In so doing we quoted with approval, Judge Risteau’s observation that:

A person standing 55 feet above ground on a 4 ½ 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. Cormier Well Service, supra (footnote omitted).

The above quotation suggests that the condition in the instant case must also be considered as posing a significant falling hazard. Penrod permitted three employees to depend solely upon a handhold while standing on a one-foot-wide girder that was 125 feet above ground. Thus, as in Cormier, the existence of a significant hazard likely to cause death or serious physical harm is obvious.

In Cormier, despite the obvious nature of the hazard, the employer maintained that the practice was not a ‘recognized hazard’ because it was customary in the oil-drilling industry for trainees to remain unprotected while on the derrick. We rejected this type of argument in Cormier, and should reject Penrod’s similar argument here.

In both Cormier and the instant case, evidence adduced at the hearings indicated the existence of a patently hazardous working condition that was not, however, regarded as hazardous within the drilling industry. Moreover, both records contain evidence indicating that oil industry practices require the use of safety belts and lifelines at heights above ten feet.[4] In Cormier we stated that such evidence showed that ‘. . . the industry has recognized a hazard to those employees required to perform duties at heights.’ Cormier Well Service, supra (footnote omitted). It follows logically that it should be concluded in the instant case that Penrod’s industry has recognized hazards to employees required to work at heights.

Viewed from this perspective it is clear, therefore, that the drilling industry perceives the obvious dangers attendant to the performance of duties on an oil derrick, but for various ‘practical’ reasons chooses not to protect employees that are required to perform certain tasks at great heights on the derrick. Contrary to the Judge’s reasoning, however, this fact does not mean that the hazard in the instant case is not ‘recognized’ within the meaning of section 5(a)(1) of the Act.

That industry practices or customs do not require the abatement of a patently hazardous condition only means that an obvious hazard is unremedied. It does not mean that the hazard is not ‘recognized.’ Indeed, when faced with a hazardous condition as obvious as the one in the instant case, it is error to attach any significance to an industry custom of not remedying the condition even though the means of abatement are readily available.[5]

Nevertheless, this is precisely the result arrived at by Judge Martin. In affirming the Judge, the majority is apparently adopting a rule of law that countenances intra-industry concerted refusals to remedy patently hazardous conditions. My colleagues are placing too much emphasis upon safety precautions actually taken within a particular industry.

Safety precautions relative to a specific hazard need not find general usage within an industry before their absence gives rise to a violation of section 5(a)(1) of the Act. National Realty & Constr. Co., Inc. v. O.S.H.R.C., 489 F.2d 1257, 1265 n.37 (D.C. Cir. 1973). Industry practices will not always establish an acceptable standard of conduct under the general duty clause. An employer may be held to a higher standard of conduct than that accepted within his industry if his industry fails to take reasonable precautions against hazards.[6] cf. Cape & Vineyard Div. of the New Bedford Gas v. O.S.H.R.C., 512 F.2d 1148, 1152 (1st Cir. 1975).

Clearly, this possibility of holding an employer to a higher standard of care than that observed within his industry must be applied where, as here, the employer’s industry chooses to ignore an obvious hazard than can be easily corrected. Accordingly, I would reverse the Judge and find a ‘recognized hazard’ cognizable under the general duty clause.

In any event, the factors relied upon by the Judge to negate the existence of a ‘recognized hazard’ were erroneous. In the first place, he apparently accepted Penrod’s contention that the employees were ‘protected’ because they had a free arm with which they could hold onto the derrick. We, however, rejected this ‘handhold’ argument in Cormier Well Service, supra as an acceptable method of abating an obvious hazard.

Judge Martin also seemed to accept Penrod’s contention that the short time involved in the ‘rigging down’ operation cuts against the use of safety belts and lanyards. I would not. The employees were aloft in one position for at least ten minutes and could have easily tied off to the derrick. For this reason I also would reject Penrod’s arguments that the constant movement required during the process of hooking-up the bridle rendered the use of protective equipment infeasible. Similarly Penrod’s argument that safety belts and lanyards were not feasible because they ‘might’ become tangled should have been rejected by the Judge. When balanced against the potential for a 125 foot fall, any possible inconvenience flowing from the use of fall protection is outweighed by the severity of the hazard and should not serve to lessen a requirement of using safety belts and lanyards.

Finally, the Judge improperly assessed the probative value of the proposed occupational safety and health standard drafted by the Texas State Department of Health. The Secretary asserts that this standard should not be given any weight in this matter because it was merely a proposed rule that was not certified as acceptable by the Secretary inasmuch as the Texas State plan, at the time of the hearing, had not been approved under section 18 of the Act. I would not go as far as the Secretary. The proposed standard may have some probative value on the limited issue of industry recognition of the hazard, but not very much.

The evidence showed that the cited working condition—working without protection from an exterior girder on the derrick—did not fall within the language of the proposed rule’s exception from the safety belt requirement ‘when the work being performed requires constant movement within the derrick (emphasis added).’ It is clear that the Judge improperly focused upon the actions of the deceased employee in reaching his conclusion that the draft exception applied to the cited hazard. While it is true that the deceased employee was moving within the derrick at the time of his fatal fall, the two surviving employees, however, remained standing on the ten-foot long exterior girder. Clearly, at least as to these two employees, the draft exception would not apply.

Accordingly, I would reverse the Judge and affirm a violation of section 5(a)(1) of the Act. I would not reach the issue relating to the Secretary’s request for an amendment in the event a violation of the general duty clause was not found. I, therefore, express no opinion on the majority’s disposition of the amendment issues presented in this case.

APPENDIX A

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 5991
PENROD DRILLING COMPANY
Respondent.

FINAL ORDER DATE: January 2, 1975

DECISION AND ORDER

Appearances:

Mr. Robert A Fitz USDOL, Office of the Solicitor Room 7C52, Federal Building Dallas, Texas 75202 Attorney for Complainant

Mr. Marshall Ballard 1010 Commons Street New Orleans, Louisiana 70112 Attorney for Respondent

MARTIN, Judge:

This is a proceeding brought pursuant to section 10(c) of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq.), hereinafter referred to as the Act, contesting a citation issued by complainant on December 12, 1973, against respondent under authority set forth in section 9(a) of the Act. The citation alleges that respondent violated section 5(a)(1) of the Act as the result of an inspection on November 20, 1973, of a work place under the operation and control of respondent located on FM 2050, approximately 10-miles north of Bruni, Texas, on drilling rig No. 6. The alleged serious violation was described in the citation as follows:

Standard Abatement	Description	Date
Section 5(a)(1) of the Occupational Safety and Health Act of 1970	The employer failed to furnish his employee working on a derrick, FM 2050, approximately 10 miles North of Bruni, Texas, a place of employment which was free from recognized hazards that were causing or were likely to cause death or serious physical harm to his employees in that the employer failed to require his employees to wear a safety belt when rigging the bridle to put it in position for the rigging down operation, from approximately 125 feet above the ground from a girder, on Fig #6.	Immediately upon receipt of this citation.

On December 12, 1973, respondent was notified by means of a notification of proposed penalty from Thomas T. Curry, Area Director of the Occupational Safety and Health Administration, Houston, Texas, whereby it was proposed that a civil penalty of $550 be assessed for the aforementioned alleged violation. On December 27, 1973, respondent, through its safety director, filed a notice of contest with reference to the alleged violation of section 5(a)(1) and also contested the proposed penalty.[7]

Following the filing of the notice of contest, complainant filed a formal complaint in this matter, setting forth substantially the same information as that contained in the citation. Following the answer submitted by respondent’s safety director, this matter was scheduled for hearing in Dallas, Texas, on May 20, 1974. Appearing for complainant was Mr. Robert Fitz, of the Regional Solicitor’s Office in Dallas. Respondent was represented by its safety director, Mr. George Sparkman, and its attorney, Mr. Marshall Ballard, of New Orleans, La. No other person entered an appearance or sought to intervene in this proceeding. Following the hearing counsel for both parties submitted briefs for the undersigned Judge’s consideration.

The investigation which resulted in the issuance of this citation was precipitated by a work related accident on a drilling rig, Penrod 6, which occurred on November 18, 1973. Respondent had a new and modern rotary drilling rig, Penrod 6, and employees of respondent were getting ready to move it to a new location. In the process of doing so it is necessary to lay the derrick down in a horizontal position. In order to lower the derrick workmen are required to go up on a girder which is 8 or 10 feet long and 1 foot wide and about 90 feet above the derrick floor, or approximately 125 feet above ground level. Three of respondent’s employees were on the girder in order to perform a hook up of the bridle preparatory to laying the derrick down. The employees were J. C. Valdras, the derrick man, Daniel E. Kubala, the driller, and the deceased, Fernando Hernandez, the motor man. None of these employees were wearing a safety belt, however, Mr. Valdras did have on a climbing belt which was not attached to the derrick. The three employees were standing on the girder some 30 feet or so below the crown of the derrick. A sling was attached from the block to the bridle. As the bridle was raised it was discovered that the bridle lines were too short for Kubala or Valdxas to be able to place the disengaged bridle lines in the proper pin holes. At this point the deceased, Fernando Hernandez, stepped on the bridle which was approximately 2 feet x 4 feet in size and rode it up slowly until it reached a point about 4 feet above the girder where he had been standing. At this particular moment the sling holding the bridle to the block broke and Hernandez fell to the ground. Subsequent investigation failed to disclose the reason the sling broke.

The question to be determined herein is 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 was free from ‘recognized hazards’ that are causing or are liable to cause death or serious physical harm to his employees. As previously indicated, complainant has charged respondent with violating section 5(a)(1) of the Act, generally referred to as the ‘general duty clause,’ in that the employer did not require the use of safety belts while an employee was on a girder approximately 125 feet above the ground while rigging the bridle to put it in position for the rigging down operation of Penrod 6.

Following the fatal accident the compliance officer, Mr. Bobbie Lee Perry, visited the drilling site in question and conducted his investigation, which included the interviewing of respondent’s safety director and two of the employees who were on the derrick, Valdras and Kubala. It was ascertained that none of the three employees were wearing safety belts at the time they were on the girder to perform the rigging down operation.[8] Mr. Perry testified that in his opinion there was a recognized hazard and that in the event of a fall from such a height death or serious physical injury would occur. He stated that this could have been prevented by the use of safety belts and lanyards or some sort of boatswain’s chair. He further indicated that a net or a catch platform could have been utilized.

On cross examination Mr. Perry stated that he had some experience with drilling operations involving smaller derrick structures while he was employed by an insurance company as well as with OSHA and indicated that he had seen derricks raised and lowered by means of the bridle. He indicated, however, that he had not seen safety belts used in this operation, stating that it was normally a ‘one hand’ operation. He advised that he did not recommend safety belts to the insurance carrier. Mr. Perry advised that there would be very little difference in the result of a fall from an 80 foot derrick or from a 125 foot derrick. Mr. Perry indicated that he had not has any experience on rotary drilling rigs as large as the Penrod 6. When questioned about the practices of the motormen, drillers, and derrick men with reference to wearing safety belts and lanyards, Mr. Perry stated as follows:

‘It’s a non-practice, sir. As I have found, it has been a non-practice within the drilling industry and service industry to wear the safety belts. Even sometimes the derrick men working on his board up there, he feels that he doesn’t need it.

But we don’t have specific standards for the—to my knowledge, for the drilling industry. And we’re called on to use their particular standards and get familiar with their industry and what’s called for in their industry.

I have seen a safety belt used to do certain operations, to make some inspections, or to make some repairs up by the crown at the top of the derrick structure. I have seen the derrick man using the safety belt and lanyard while working at his station on the derrick floor, racking pipe and bringing pipe out of the rack to put in the hole. I have seen it used, sir. But not all of the other men.

No, sir, I haven’t seen them using a safety belt or lanyard, unless they were performing some specific job as far as repair, or performing something that they had to go up and kinds hang on for a period of time, or something like this.

Other than that, no, sir. Not for going up and making an inspection, or making a check, no, sir.’ (Tr. 66, 67)

The gist of Mr. Perry’s testimony was that a hazard existed on the Penrod 6 derrick and that safety belts and lanyards should have been worn by employees while working on the derrick girders when performing the bridle hook up operation, it being his opinion that it would be necessary for them to work on the ‘inside’ of the derrick. He felt that it would be easier for employees to fall inside the derrick on such a large rig because the structural members for holding on were further apart than on smaller rigs and because the bridle assembly had to be pushed or moved. He stated that although a man might perform the ‘hooking on’ operation from the girder on the outside of the derrick, he was informed that the deceased stepped on to the bridle inside the derrick because of the shortness of the bridle lines.

Mr. Daniel Kubala, the driller, testified that he and the other two employees were preparing to lay the derrick down in order to move it to a new location. He stated that none of the three employees had on safety belts, although Mr. Valdras had on a climbing belt. He advised that the ‘laying down’ operation would normally consume approximately 5 minutes or so. It was his testimony that Mr. Hernandez was ‘riding’ the bridle and that the sling line broke, causing him to fall. He stated that this was not a unusual procedure, however. He advised that everything looked ‘fine’ to him and that he would have ridden the bridle himself as they had never had any trouble with it or found anything unsafe about connecting or disconnecting the bridle. He stated that there was no suggestion of any unsafe condition which would warrant the wearing of safety belts while on the girders. It was his opinion it is better to walk on the girders without safety belts because the lines might get tangled up. He stated that there was no requirement that workmen on the derrick wear safety belts and that he had never worked for a company that required safety belts to be worn on the derrick other than when working with pipe.

Mr. Joe C. Valdras testified substantially the same as Mr. Kubala, stating that he, Hernandez, and Kubala were engaged in rigging down the derrick. He stated that he had no reason to suspect that anything was wrong and that as far as he knew no other drilling contractors or companies had ever required safety belts for the rigging down operation. He did indicate, however, that derrick men would be expected to wear one while performing those duties.[9] It was Mr. Valdras’ conclusion that no recognized hazard was present on Penrod 6 on November 18th. It was also his opinion that all work could have been performed from the outside of the derrick if it hadn’t been for the shortness of the bridle lines.

Mr. Cecil Jenkins, vice president in charge of engineering, Lee C.Moore Corporation, Tulsa, Oklahoma, testified that his company developed the Penrod 6 type of derrick and that safety was always a factor to be considered in designing derricks. He indicated that he had never experienced any problems with the bridle apparatus. He testified that he had never seen safety belts used in the ‘rigging down’ operation. Mr. Jenkins stated that due to the design of the bridle that it is not necessary to exert any force on the bridle or to push or shove it. Relative to the rigging down operation it was Mr. Jenkins’ view that employees could make the necessary connections and perform the rigging down operation from the outside of the derrick rather than having to move to the inside.

Mr. Ellis T. Hammett of Dallas, Texas, safety director for the International Association of Drilling Contractors, testified that he had some 37 years of experience in the oil fields as a drilling engineer and production engineer.[10] He testified that in his present job he is responsible for such matters as safety and standards. He stated that he has been around drilling rigs for over 20 years and that he has not heard of an employee ever falling off of the girder in a rigging down procedure. He stated that men are ‘used to that sort of thing,’ that is, being up in derricks without safety belts. He pointed out, however, that it is appropriate for the derrick man to wear a safety belt because he is ‘up there’ for a long period. Mr. Hammett stated that the reason the derrick man should be tied on is because he has to reach out with both hands to pull an object in, such as a piece of pipe. In other words, the derrick man would not have an opportunity to use one arm like the others in order to hold on to a structural member.

In contending that the employer failed to furnish a place of employment free from recognized hazards likely to cause death or serious physical harm, complainant has cited a provision from the accident prevention manual (p. 38) of the International Association of Drilling Contractors which provides in part as follows:

‘A safety belt and life line should be provided for each employee and the employee should wear the safety belt and keep the life line secured to a derrick member or other support when working on a walking beam and in or on a derrick or mast at an elevation 10 feet or more above the derrick or mast floor.’

Complainant contends that this provision applies to the more modern rotary type derricks. However, there is no evidence in the record to this effect.

Mr. Hammett testified that the accident prevention manual was prepared in 1950 and has been modified very little since then—the last revision having occurred in 1968. He stated that the fact that the term ‘walking beam’ is used indicates that it was drafted to apply to the old type derricks (cable tool derricks) and not to large rotary type derricks which do not have ‘walking beams.’ He stated that with the cable tool derricks workmen would rarely, if ever, go up in the derrick except to repair something and that most of the work was performed at the ‘walking beam’ level.[11]

Mr. Hammett testified further that the process of bridle hook up requires moving around on the derrick and that the short time involved in such a process would dictate against the use of safety belts and lanyards. According to Mr. Hammett there is a clear distinction between cable tool derricks and rotary derricks in that the former requires very little work on the derrick whereas with rotary rigs it is common practice to perform some work in the derrick itself.

Complainant has also referred to a proposed occupational safety standard promulgated by the Texas State Department of Health which provides as follows:

‘Every employee, when engaged in work at 10 feet or more above the derrick floor, shall wear a safety belt with an attached lanyard properly secured, except when the work being performed requires constant movement within the derrick.’

It is clear from Mr. Hammett’s testimony that the rigging down operation, as conducted on November 18th, was one requiring considerable moving around which would in his opinion fall within the exception to the aforementioned proposed standard. It appears that the unfortunate accident which occurred here was the result of an isolated and unforeseen situation. This derrick was being lowered for the first time and it was then discovered that the bridle lines were too short, resulting in Mr. Hernandez riding the bridle to complete the hook up. There is no indication that the project supervisor had any knowledge that this rigging operation would make it necessary for any employee to go ‘inside’ the derrick.

Mr. Kubala and Mr. Valdras (the brother-in-law of the deceased) were of the opinion that safety belts and lanyards would not be helpful when performing the type of operation which was undertaken on November 18th. It was their view that safety belie and lanyards might hinder the performance of their tasks and that such safety devices should be required only of employees who are working in potentially dangerous areas for long periods of time. It was Mr. Jenkins’ opinion that safety belts are not necessary in performing the bridle hook up operation; that the derrick was designed so that no great amount of force has to be exerted to engage in this operation and, further, that this rigging down operation is customarily done from the outside of the derrick. There is no evidence in this record to show that any employees on Penrod 6 would ordinarily have to step from the girder outside the derrick on to the bridle to work inside the derrick, or to push or move equipment in the derrick, except under the circumstances which occurred on November 18th where the bridle lines were found to be too short to be reached from the outside.

In order to establish a violation of the general duty clause, it is necessary to prove that the hazard in question was ‘recognized’. It must be a hazard recognizable in the industry or it must be shown that the employer himself has actual knowledge of a hazardous condition. There is no evidence in the record to show that accidents, similar to the one which occurred here, have happened before. It is noted that although oil drilling operations have been conducted for many years, there is no safety standard which would cover this precise situation. However, it is customary in the drilling industry for derrick men to wear safety belts and lanyard while in the derrick performing their usual duties because they are there for long periods of time. It has also been pointed out that the proposed standard, previously referred to, does not provide for safety belts and lanyards where a particular job requires constant moving about in the derrick.

While the compliance officer felt that a recognized hazard was present here, it is of interest to note that when he was previously employed by an insurance company and witnessed drilling operations where oil drillers did not wear safety belts and lanyards, he admittedly made no recommendation that they do so. His present view is undoubtedly influenced by the fact that the Penrod 6 is a much larger drilling rig. Safety director Hammett testified that he had never seen workmen with safety belts on when they were putting the bridle on. The two coworkers of the deceased did not view the rigging down operation as a hazardous undertaking. It was their feeling that it might be better to walk on the girders without belts because of the possibility of entanglement. They saw nothing unsafe about their working conditions on November 18th.

After carefully considering all of the testimony, exhibits and pleadings herein, it must be concluded that complainant has failed to establish by a preponderance of reliable and probative evidence that a recognized hazard existed on November 18, 1973, and therefore respondent was not in violation of the general duty clause in section 5(a)(1) of the Act.

Respondent has also contended that complainant’s charging and penalizing respondent for a violation of the general duty clause cannot be allowed to stand since it violates the legislative intent of that section and all notions of constitutional due process. There is no merit to respondent’s contention in this regard.

FINDINGS AND CONCLUSIONS

The entire record herein supports the following findings of fact and conclusions of law.

1. On November 18th, 1973, respondent, Penrod Drilling Company, was engaged in a rigging down operation on its derrick, Penrod 6, at its work place on FM 2050, 10 miles north of Bruni, Texas, and respondent had approximately 21 employees working at said location.

2. On the aforesaid date respondent was an employer engaged in a business affecting commerce within the meaning of the Act and is subject to the jurisdiction of the Review Commission.

3. Three employees were engaged in the rigging down operation of Penrod 6 at a height of approximately 125 feet above the surface and one employee, while riding the bridle and attempting to hook up the bridle or sling line preparatory to lowering the derrick, fell to his death when the sling holding the bridle to the block broke for some unexplained reason. Said employees were not wearing safety belts or lanyards while engaging in this procedure.

4. From the evidence presented it is concluded that it is not customary for workmen in rotary type derricks to wear safety belts and lanyards when performing the rigging down operation.

5. It has not been established by a preponderance of reliable and probative evidence that respondent failed to provide its employees with a place of employment free from a recognized hazard likely to cause death or serious physical harm and consequently respondent did not violate section 5(a)(1) of the Act.

ORDER

In accordance with the foregoing findings and conclusions it is ORDERED that the citation for serious violation and the notification of proposed penalty be and the same are hereby vacated.

HENRY F. MARTIN, JR.

JUDGE, OSHRC

Dated: December 3, 1974

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[1] That section of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq.), the so-called general duty clause, provides that:

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.

[2] Chairman Barnako does not agree to this attachment.

[3] The Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. [hereinafter cited as ‘the Act’]. For the text of section 5(a)(1), see note 1 supra in the majority opinion.

[4] In Cormier this evidence of industry practice consisted of expert testimony of a compliance officer who had five years of oil industry experience. Cormier Well Service, supra n.6 and accompanying text.

In the instant case this evidence took the form of a provision in ‘The Accident Prevention Manual’ of the International Association of Drilling Contractors. This provision was read into evidence by the Secretary. It provides as follows:

A safety belt and life line should be provided for each employee and the employee should wear the safety belt and keep the life line secured to a derrick member or other support when working on a walking beam and in or on a derrick or mast at an elevation of ten feet (10′) or more above the derrick or mast floor.

[5] There was little dispute on this record that, absent insurmountable practical difficulties, Penrod could have protected its employees with safety belts and lanyards. This record clearly indicates that ‘. . . there were feasible steps that the employer could have taken to avoid the situation.’ Cormier Well Service, supra (citation omitted).

[6] I submit that the Judge’s interpretation of the duty imposed on employers by section 5(a)(1) of the Act renders the section meaningless. If the concerted failure of an industry to take feasible steps to abate an obvious hazard establishes that the hazard is not ‘recognized’ within that industry, then the Secretary can never require members of the industry to upgrade safety precautions taken within the industry unless he promulgates a specific standard to cover the hazard. There is in effect a delegation of legislative authority to the industry which is in itself of questionable legality. This result merely serves to preserve the status quo within an industry. This is alarming inasmuch as Congress in passing the Act obviously found that the efforts of American industry in the field of safety and health were insufficient to meet the Nation’s ‘on-the-job health and safety crisis.’ H.R. Rep. No. 91–1291, 91st Cong., 2d Sess. 14 (1970).

[7] The citation also alleged a nonserious violation of section 29 CFR 1910.151(b) relating to first aid supplies, however, the same was not disputed by respondent and this item has become final. Respondent’s letter of December 27, 1973, indicated, however, that standard had been fully complied with.

[8] The actual drilling operation had been completed.

[9] When questioned about wearing belts, Mr. Valdras stated, ‘When I work derricks, I wear a safety belt setting pipe but during that kind of operation (rigging down) you never use a safety belt.’ (Tr. 105).

[10] Mr. Hammett testified that he set the standards and helped write the safety manual for Sinclair back in the early forties.

[11] In the foreword to the accident prevention manual it is noted that the provisions therein are termed suggestions and recommendations and further that the same should not be considered as setting up arbitrary minimum or maximum standards and further that the hand book should not be deemed to establish a legal standard of conduct or legal duty.