“\ufeff\t\tHUGHES DRILLING COMPANY, INC., OSHRC DOCKET NO. 76\u20132945 & 76\u20133574\t\t\t\t p.hiddenParagraph { visibility:hidden } p { margin-top:0; margin-bottom:0; font-family:Calibri; font-size:11pt; color:WindowText; } p { font-family:Calibri; font-size:11pt; } p.style_Normal { } span.style_DefaultParagraphFont { } table.style_TableNormal { } table.style_TableGrid { } p.style_FootnoteText { line-height:1; font-size:10pt; } .style_FootnoteText span { } span.style_FootnoteTextChar { font-size:10pt; } .style_FootnoteTextChar span { } span.style_FootnoteReference { position:relative;font-size:0.58em; bottom: 1ex;} .style_FootnoteReference span { position:relative;font-size:0.58em; bottom: 1ex;} p.style_Header { line-height:1; } span.style_HeaderChar { } p.style_Footer { line-height:1; } span.style_FooterChar { } span.X3AS7TOCHyperlink { color:#000000; text-decoration:none; } p.X3AS7TABSTYLE { } span.BulletSymbol { font-family:’Symbol’; } body { margin-left:96px;margin-top:96px;margin-bottom:96px;margin-right:96px;} div.basic { width:16.51cm;height:22.86cm;} p.hiddenParagraph { font-size:2pt; visibility:hidden; } \t\t\t\t\t\t\t\t\tvar useragent = navigator.userAgent;\t\t\t\t\t\t\tvar navigatorname;\t\t\t\t\t\t\tif (useragent.indexOf(‘MSIE’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”MSIE\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Gecko’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tif (useragent.indexOf(‘Chrome’)!= -1)\t\t\t\t\t\t\tnavigatorname=\”Google Chrome\”;\t\t\t\t\t\t\telse\t\t\t\t\t\t\tnavigatorname=\”Mozilla\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Mozilla’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”old Netscape or Mozilla\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Opera’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”Opera\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\t\t\t\t\t\t\t\tfunction symbol(code1,code2)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tif (navigatorname == ‘MSIE’)\t\t\t\t\t\t\t\tdocument.write(code1);\t\t\t\t\t\t\telse\t\t\t\t\t\t\t\tdocument.write(code2);\t\t\t\t\t\t\t}\t\t\t\t\t\t\t\t\t\t\t\t\tUNITED STATES\t\t\t\t\t\tOF\t\t\t\t\t\tAMERICA\t\t\t\t\t\t\t\t\t\tOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSECRETARY OF LABOR,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t Complainant,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t v.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tOSHRC DOCKET NO.\t\t\t\t\t\t\t\t\t76\u20132945 & 76\u20133574\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tHUGHES DRILLING COMPANY, INC.,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t Respondent.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tJuly 23, 1979\t\t\t\t\t\t\t\t\t\tDECISION\t\t\t\t\t\t\t\t\t\tBefore CLEARY, Chairman; BARNAKO, Commissioner; and COTTINE, Commissioner\t\t\t\t\t\t\t\t\t\tThis case is before the Commission pursuant to a\t\t\t\t\t\tsua\t\t\t\t\t\tsponte order for review. The parties have filed no objections to the Administrative Law Judge\u2019s decision, either by way of petitions for discretionary review or response to the order for review. Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge\u2019s decision.\t\t\t\t\t\t\t\t\t\tIn these circumstances, the Commission declines to pass upon, modify or change the Judge\u2019s decision in the absence of compelling public interest. See\t\t\t\t\t\tAbbott-Sommer, Inc., 76 OSAHRC 21\/A2, 3 BNA OSHC 2032, 1975\u201376 CCH OSHD para. 20,428 (No. 9507, 1976);\t\t\t\t\t\tCrane Co.,\t\t\t\t\t\t76 OSAHRC 37\/A2, 4 BNA OSHC 1015, 1975\u201376 CCH OSHD para. 20,508 (No. 3336, 1976). See also\t\t\t\t\t\tKeystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976).\t\t\t\t\t\t\t\t\t\tThe Judge\u2019s decision is accorded the significance of an unreviewed Judge\u2019s decision. See\t\t\t\t\t\tLeone Construction Co., 76 OSAHRC 12\/E6, 3 BNA OSHC 1979, 1975\u201376 CCH OSHD para. 20,387 (No. 4090, 1976).\t\t\t\t\t\t\t\t\t\tIt is ORDERED that the decision be affirmed.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tFOR THE COMMISSION:\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tRay H. Darling, Jr.\t\t\t\t\t\t\t\t\t\tExecutive Secretary\t\t\t\t\t\t\t\t\t\tDATED: JUL 23, 1979\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tBARNAKO, Commissioner, Concurring:\t\t\t\t\t\t\t\t\t\tI agree that in a case such as this one, where the parties have not expressed any interest in obtaining review of the judge\u2019s decision and where there is not any public interest compelling the Commission itself to decide to review that decision, the judge\u2019s decision should be affirmed. See\t\t\t\t\t\tAbbott-Sommer, Inc., 76 OSAHRC 21\/A2, 3 BNA OSHC 2032, 1975\u201376 CCH OSHD \u00b620,428 (No. 9507, 1976).\t\t\t\t\t\t\t\t\t\tI also agree, however, with my dissenting colleague that this case presents a threshold jurisdictional issue. Although I generally agree that the Commission should raise and decide any jurisdictional questions presented by the record, I do not believe this rule should be adhered to blindly, for to do so may exalt form over substance and impair both judicial efficiency and economy. This is true in the case before us.\t\t\t\t\t\t\t\t\t\tMy dissenting colleague suggests that the parties be given the opportunity to present arguments on a preliminary question of jurisdiction.\t\t\t\t\t\tHowever\t\t\t\t\t\tthe parties have already indicated to the Commission by their failure to file any submissions on review that they are no longer even interested in the merits of this case.\t\t\t\t\t\tMoreover\t\t\t\t\t\ta majority of the Commission has decided the case should not be reviewed but that the judge\u2019s decision should be affirmed, according it the precedential value of an unreviewed judge\u2019s decision, pursuant to the disposition set forth in\t\t\t\t\t\tAbbott-Sommer, Inc., supra.\t\t\t\t\t\t\t\t\t\tFurthermore\t\t\t\t\t\tthe jurisdictional question is not one that is so compelling that it should be resolved when viewed in light of the ultimate disposition accorded this case. The issue raised by Commissioner\t\t\t\t\t\tCottine\t\t\t\t\t\tdoes not concern the Commission\u2019s subject matter jurisdiction but rather a timely notice of contest. In the past we have recognized that the statutory period for filing of notices of contest should be extended in certain circumstances,\t\t\t\t\t\tKeppel\u2019s Inc., No. 77\u20133020 (June 12, 1979); see\t\t\t\t\t\tAtlantic Marine, Inc. v. OSAHRC and Dunlop, 524 F.2d 476 (5th Cir. 1975), and even Commissioner\t\t\t\t\t\tCottine\t\t\t\t\t\tquestions whether any interpretation adverse to the Respondent should be applied retroactively.\t\t\t\t\t\t\t\t\t\tThe Commission presently has pending before it a great many cases. Many of these present complex and important legal issues\u2014issues which the parties not only wish us to resolve but issues which should be reviewed by us as quickly as possible. This case does not fall into that\t\t\t\t\t\tcategory and if handled in the manner suggested by Commissioner\t\t\t\t\t\tCottine\t\t\t\t\t\twould only serve to delay resolution of those matters. For the reasons set forth above, I would summarily dispose of this case in the manner outlined by Chairman Cleary, without inquiring into the jurisdictional issue.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tCOTTINE, Commissioner, dissenting:\t\t\t\t\t\t\t\t\t\tMy colleagues affirm the judge\u2019s decision\t\t\t\t\t\ton the basis of\t\t\t\t\t\ta lack of party interest and the absence of compelling public interest in Commission review. However, the majority fails to recognize that\t\t\t\t\t\ta number of\t\t\t\t\t\tsubstantial and novel legal questions involving the Commission\u2019s jurisdiction are present in this case. As a result, I cannot subscribe to their disposition.\t\t\t\t\t\t\t\t\t\tThe Commission must inquire into jurisdictional questions and conclude that jurisdiction exists before reaching the procedural or substantive merits of a case.\t\t\t\t\t\tRock Island Millwork Co. v. Hedges-Gough Lumber Co., 337 F.2d 24, 26\u201327 (8th Cir. 1964). Moreover, it is the duty of the Commission to raise and decide a jurisdictional issue if it is presented by the record. See\t\t\t\t\t\tClark v. Paul Gray, Inc., 306 U.S. 583, 588 (1939); See also\t\t\t\t\t\tAtlantic & Gulf Stevedores, Inc., 75 OSAHRC 47\/A2, 3 BNA OSHC 1003, 1974\u201375 CCH OSHD \u00b619, 526 (No. 2818, 1975), aff\u2019d 534 F.2d 541 (3d Cir. 1976). The jurisdiction of the Commission vests only when a notice of contest is filed within 15 working days1\t\t\t\t\t\tafter receipt of the notification of proposed penalty. 29 U.S.C. \u00a7 659(a) and (c). By summarily affirming the judge\u2019s decision, the majority assumes that the Commission has jurisdiction over this case.\t\t\t\t\t\t\t\t\t\tHowever, the record reveals a significant jurisdictional issue. The Respondent signed a certified mail receipt for the citation and notification of proposed penalty on Saturday, June 12, 1976. The Respondent\u2019s notice of contest is dated\t\t\t\t\t\tJuly 1, 1976, and\t\t\t\t\t\tis postmarked July 6, 1976. At the hearing, the Secretary moved to dismiss the notice of contest as untimely filed. The judge denied the motion. Although this issue has not been renewed on appeal by the Secretary, it must be addressed inasmuch as a timely notice of contest is an absolute prerequisite to the subject-matter jurisdiction of the Commission.\t\t\t\t\t\t\t\t\t\tThe determination of jurisdiction in this case requires resolution of several novel questions of law. First, this case requires the Commission to interpret the regulation published at 29 C.F.R. \u00a7 1903.21(c) to resolve the internal ambiguity of whether the phrase \u2018day of receipt\u2019 refers to the working day of receipt or the actual day of receipt. Second, there is the issue of whether, in the absence of evidence establishing when a notice of contest is mailed, a notice is appropriately deemed to be \u2018filed\u2019 within the meaning of 29 U.S.C. \u00a7 659 on the date of the postmark. Compare J.D. Blum Construction Company, 76 OSAHRC 58\/D14, 4 BNA OSHC 1255, 1976\u201377 CCH OSHD \u00b620,735 (No. 3543, 1976) (clear evidence of when notice of contest was mailed) with\t\t\t\t\t\tKerr-McGee Chemical Corporation, 76 OSAHRC 129\/C14, 4 BNA OSHC 1739, 1976\u201377 CCH OSHD \u00b621, 161 (No. 9890, 1976) (no evidence that notice of contest was mailed within the 15 day period). Finally, the Commission must decide whether any interpretation of \u00a7 1903.21(c) is to be applied retrospectively. See\t\t\t\t\t\tDiebold, Incorporated v. Marshall, 585 F.2d 1327 (6th Cir. 1978).*\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tIn my view, it is incumbent upon the Commission to resolve these issues. However, rather than disposing of these questions on the present record, I would afford the parties an opportunity to present arguments regarding the jurisdictional issues.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tUNITED STATES\t\t\t\t\t\tOF\t\t\t\t\t\tAMERICA\t\t\t\t\t\t\t\t\t\tOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSECRETARY OF LABOR,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t Complainant,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t v.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tOSHRC DOCKET NO.\t\t\t\t\t\t\t\t\t76\u20132945 & 76\u20133574\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tHUGHES DRILLING COMPANY, INC.,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t Respondent.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tJune 21, 1977\t\t\t\t\t\t\t\t\t\tAPPEARING ON BEHALF OF COMPLAINANT:\t\t\t\t\t\t\t\t\t\tROBERT A. FITZ, ESQ., Office of the Solicitor, U. S.\t\t\t\t\t\t\t\t\t\tStates Department of Labor,\t\t\t\t\t\t\t\t\t\t555 Griffin Square Building,\t\t\t\t\t\t\t\t\t\tDallas, Texas 75202\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tAPPEARING ON BEHALF OF RESPONDENT:\t\t\t\t\t\t\t\t\t\tWILLIAM P. WARDEN, ESQ., Linn, Helms, Kirk & Burkett,\t\t\t\t\t\t\t\t\t\t410 Fidelity Plaza, Oklahoma City, Oklahoma\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tPaul E. Dixon, Judge:\t\t\t\t\t\t\t\t\t\tThis is an action under section 10(c) of the Occupational Safety & Health Act of 1970, 29 USC 651, et seq. (hereinafter referred to as the Act), contesting a citation for alleged serious violation of section 5(a)(1) of the Act and alleged other-than-serious violations as the result of an inspection made on April 27, 1976, and an additional investigation, which was conducted by the compliance officer on June 8 and 9, 1976, which resulted in the issuance of the two separate citations, one being issued June 11, 1976, and the other, citation 1 alleging serious violation of section 5(a)(1) of the Act, being issued July 1, 1976.\t\t\t\t\t\t\t\t\t\tSaid inspection and investigation was precipitated by a fatality occurring at respondent\u2019s oil well drilling operation one mile west and three-fourths mile north of Jet, Oklahoma, where respondent was engaged in oil and gas exploration.\t\t\t\t\t\t\t\t\t\tRespondent filed its notice of contest July 6, 1976, as to the citation 1 for serious violation dated July 1, 1976, and filed its notice of contest July 1, 1976, to citation 1 for other-than-serious violations dated June 11, 1976.\t\t\t\t\t\t\t\t\t\tThese notices of contest were filed pro se by respondent\u2019s President.\t\t\t\t\t\t\t\t\t\tDOCKET 76\u20133574\t\t\t\t\t\t\t\t\t\tRuling on Motion\t\t\t\t\t\t\t\t\t\tComplainant moved to have the notice of contest in docket 3574 (other-than-serious violations) vacated for untimeliness.\t\t\t\t\t\t\t\t\t\tIn that the citation was bifurcated, and under the authority of\t\t\t\t\t\tSecretary v. Owens-Illinois, Inc., docket 8859, \u2014\u2014 OSAHRC \u2014\u2014; BNA 4 OSHC 1250 (1976); CCH OSHD \u00b620,706 (1976), and\t\t\t\t\t\tSecretary v. Monroe & Sons, docket 6031, \u2014\u2014 OSAHRC \u2014\u2014; BNA 4 OSHC 2016 (1977); CCH OSHD \u00b619,568 (1977), the motion is denied.\t\t\t\t\t\t\t\t\t\tStipulations\t\t\t\t\t\t\t\t\t\tRespondent withdrew its notice of contest to citation 1, item 1, other-than-serious violation of 29 CFR 1926.50(c) and the proposed penalty of $30; citation 1, item 2, other-than-serious violation of 29 CFR 1926. 152(g)(9), with no proposed penalty; and, item 4, other-than-serious violation of 29 CFR 1926.500(d)(5), with proposed penalty of $30.\t\t\t\t\t\t\t\t\t\tDOCKET 76\u20132945\t\t\t\t\t\t\t\t\t\tComplainant\u2019s Motion to Amend Complaint\t\t\t\t\t\t\t\t\t\tWithout objection complainant amended paragraph IV(a) of his complaint, in connection with the alleged 5(a)(1) violation, to read as follows:\t\t\t\t\t\t\t\t\t\t\u2018(a) At respondent\u2019s workplace on April 24, 1976, when the\t\t\t\t\t\tcatline\t\t\t\t\t\twas used for the lifting of loads, although a qualified workman was assigned to operate the cathead, the driller did not remain at his controls, in violation of section 5(a)(1) of the Act.\u2019\t\t\t\t\t\t\t\t\t\tDOCKET 76\u20133574\t\t\t\t\t\t\t\t\t\tThe Citation\t\t\t\t\t\t\t\t\t\tCitation 1 for alleged other-than-serious violation of 29 CFR 1926.300(b)(2), item 3, states:\t\t\t\t\t\t\t\t\t\t\u2018(Belts), (gears), (shafts), (pulleys), (sprockets), (spindles), (drums), (flywheels), (chains), or (other reciprocating), (rotating), or (moving) parts of equipment were not properly guarded in accordance with American National Standards Institute, B15.1\u20131952 (R 1958); i.e., (a) the fan drive on the\t\t\t\t\t\tdrawworks\t\t\t\t\t\tmotor, (b) the fan drive on the #1 mud pump.\u2019\t\t\t\t\t\t\t\t\t\tCitation 1 for alleged other-than-serious violation of 29 CFR 1910.2127a) (1), item 5, states:\t\t\t\t\t\t\t\t\t\t\u2018Machine guarding was not provided to protect personnel from the hazards of operation; i.e., no Kelly bushing guard.\u2019\t\t\t\t\t\t\t\t\t\tRegarding item 3, an abatement date was given of July 6, 1976, with\t\t\t\t\t\troposed\t\t\t\t\t\tpenalty of $30. As to item 5, an abatement date of July 7, 6, was given, with a proposed penalty of $55.\t\t\t\t\t\t\t\t\t\tThe Standards\t\t\t\t\t\t\t\t\t\t\u201829 CFR 1926.300\u2014General Requirements\t\t\t\t\t\t\t\t\t\t(b) Guarding\t\t\t\t\t\t\t\t\t\t(2) Belts, gears, shafts, pulleys, sprockets, spindles, drums, fly wheels, chains, or other reciprocating, rotating or moving parts of equipment shall be guarded if such parts are exposed to contact by employees or otherwise create a hazard. Guarding shall meet the requirements as set forth in American National Standards Institute, B15.1\u20131953 (R1958), Safety Code for Mechanical Power-Transmission Apparatus.\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u201829 CFR 1910.212\u2014General Requirements for All Machines\t\t\t\t\t\t\t\t\t\t(a) Machine guarding.\t\t\t\t\t\t\t\t\t\t(1) Types of guarding. One or more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks. Examples of guarding methods are\u2014Barrier guards, two-hand tripping devices, electronic safety devices, etc.\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tDOCKET 76\u20132945\t\t\t\t\t\t\t\t\t\tThe Citation\t\t\t\t\t\t\t\t\t\tCitation 1 for alleged serious violation of section 5(a)(1) of the\t\t\t\t\t\tOccupational Safety & Health Act of 1970, item 1, states:\t\t\t\t\t\t\t\t\t\t\u2018On April 24, 1976, employer failed to furnish each of his employees a place of employment which was free from recognized hazards that caused or was likely to cause death or serious physical harm to his employees, i.e., driller or other experienced workman was not required to attend the controls while a manually operated cathead was in use.\u2019\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tSection 5(a)(1) of the Act states:\t\t\t\t\t\t\t\t\t\t\u2018(a) Each employer\u2014\t\t\t\t\t\t\t\t\t\t(1) shall furnish to each of his\t\t\t\t\t\temployees\t\t\t\t\t\temployment 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;\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tAn abatement date was given as immediately upon receipt, with a proposed penalty of $650.\t\t\t\t\t\t\t\t\t\tSTIPULATIONS COMMON TO BOTH DOCKETS 76\u20132945 and 76\u20133574\t\t\t\t\t\t\t\t\t\tIt was stipulated by and between the parties:\t\t\t\t\t\t\t\t\t\t1. The legal name of respondent is Hughes Drilling Co., Inc.\t\t\t\t\t\t\t\t\t\t2. Respondent was engaged in a business affecting commerce at the time of the alleged violation.\t\t\t\t\t\t\t\t\t\t3. Respondent employed one\t\t\t\t\t\t[decedent]\t\t\t\t\t\tat the time of the alleged violation.\t\t\t\t\t\t\t\t\t\t4. Respondent owns rig number 1, which was the drilling rig involved in the alleged violation.\t\t\t\t\t\t\t\t\t\t5. Respondent\u2019s fiscal year ends on September 30, and its gross volume of business during its most recent ended fiscal year was approximately $2 million.\t\t\t\t\t\t\t\t\t\t6. Respondent is a small drilling company.\t\t\t\t\t\t\t\t\t\t7. Respondent had been issued a previous citation for non-serious violations, which was not\t\t\t\t\t\tcontested\t\t\t\t\t\tand which became a final order of the Occupational Safety & Health Review Commission; said citation being issued under date of July 10, 1974, and which was admitted as Exhibit G\u20131. (Docket 76\u20133574)\t\t\t\t\t\t\t\t\t\t8. The average daily number of employees of respondent for the current year was 46.\t\t\t\t\t\t\t\t\t\t9. Respondent has three drilling rigs, all approximately the same size of 7,500 feet.\t\t\t\t\t\t\t\t\t\t10. Respondent posted the citation and notice of time and place of hearing on its employee bulletin board.\t\t\t\t\t\t\t\t\t\t11. There was proper service of the citation and notice of proposed penalty upon respondent.\t\t\t\t\t\t\t\t\t\t12. The medical examiner\u2019s report be admitted as Exhibit G\u20132.\t\t\t\t\t\t\t\t\t\t13. Exhibit 1 (attached to complainant\u2019s request for admissions (docket 76\u20132945) (J\u201310) (3 pages)) is a copy of \u2018Tongs, Slips, Elevators and Catheads\u2019 of Recommended Safe Operating Procedures and Guidelines for Drilling Contractors (Revised Edition, October 1975), prepared by the Safety Committee of the International Association of Drilling Contractors.\t\t\t\t\t\t\t\t\t\tTHE EVIDENCE\t\t\t\t\t\t\t\t\t\tDon R. Hughes, respondent\u2019s President, was called by complainant and described his operations as that of drilling for oil and gas, with rig number 1 having moved to the jobsite on April 20, 1976, some four days before the fatality.\t\t\t\t\t\t\t\t\t\tThe rig operates 24 hours a day, with three eight-hour shifts and four men per shift.\t\t\t\t\t\t\t\t\t\tThe morning shift, when the fatality occurred, is from 11:00 p.m. to 7:00 a.m.\t\t\t\t\t\t\t\t\t\tThe crew on that date was Ralph Stapp, driller; Art\t\t\t\t\t\tKliewer, derrick man; and\t\t\t\t\t\tGayland\t\t\t\t\t\tDay and\t\t\t\t\t\t[the decedent], floor men. Garland Taylor was a floor man and F. F. Fore was the tool pusher, with Fore\t\t\t\t\t\tbeing in charge of\t\t\t\t\t\trig number 1. (T. 18)\t\t\t\t\t\t\t\t\t\tRespondent testified that its firm was not large enough to have a\t\t\t\t\t\tfull time\t\t\t\t\t\tsafety employee, and it utilizes the consulting firm that inspects their rigs twice a month and sets up their program, with respondent having safety meetings for its employees. Accidents are discussed and how to prevent them.\t\t\t\t\t\t\t\t\t\tRespondent tries to maintain one safety meeting for every well, with a well completing its drilling from 12 to 17 days, with the safety meetings averaging out to approximately two per month.\t\t\t\t\t\t\t\t\t\tHughes has been in the drilling industry for 27 years, working in various capacities as a roughneck, driller, tool pusher, drilling superintendent and contact man, in the States of Oklahoma, Mexico, New Mexico, Kansas, Texas and Colorado. (T. 131\u2013132)\t\t\t\t\t\t\t\t\t\tHughes does not consider it hazardous for a workman to operate a cathead and\t\t\t\t\t\tcatline\t\t\t\t\t\twhile the driller is not standing right at the controls; nor does he instruct his crews to never operate a\t\t\t\t\t\tcatline\t\t\t\t\t\tunless a driller is there.\t\t\t\t\t\t\t\t\t\tHughes recalled one incident involving a\t\t\t\t\t\tcatline\t\t\t\t\t\twhere an insecure hook released, jerking the operator\u2019s arm into the cathead.\t\t\t\t\t\t\t\t\t\tHughes was the driller and shut down the rig immediately, which did not prevent the cathead from revolving, taking up the slack rope along with a man\u2019s arm.\t\t\t\t\t\t\t\t\t\tDescribing the procedure for handling a cathead and\t\t\t\t\t\tcatline, Hughes emphasized that the load must be hooked securely; that all slack\t\t\t\t\t\thas to\t\t\t\t\t\tbe taken out of the line, and then the rope placed over the divider one wrap. The first wrap is pulled tight, and then additional wraps are added until\t\t\t\t\t\tsufficient\t\t\t\t\t\twraps are on the divider to lift the load.\t\t\t\t\t\t\t\t\t\tAll of Hughes\u2019 employees were instructed in the proper use of the cathead and\t\t\t\t\t\tcatline, and when a new man is employed on the cathead Hughes has someone standing at the controls and someone standing beside the new employee telling him how to operate.\t\t\t\t\t\t\t\t\t\tThe driller has the responsibility of training new men, and safety checks are handled through the chain of command, with respondent checking the tool pushers, the tool pushers checking the drillers, and the drillers checking their men.\t\t\t\t\t\t\t\t\t\tHughes explained that even with the driller standing at the controls, he is not operating the cathead, in that it is the individual who is doing the\t\t\t\t\t\tcatheading\t\t\t\t\t\twith the driller acting as lookout watching in front where the load is being lifted and watching where the load is going.\t\t\t\t\t\t\t\t\t\tIf a\t\t\t\t\t\tcatline\t\t\t\t\t\toperator follows the proper procedures, there would not be any chance of injury in Hughes\u2019 opinion.\t\t\t\t\t\t\t\t\t\tHe mentioned by way of illustration that if a line were to break with an overstressed load, the\t\t\t\t\t\tcatheader\t\t\t\t\t\twould release the rope and step back and be out of danger.\t\t\t\t\t\t\t\t\t\tIn the event of mishap, the driller could jerk the high clutch in and hold the brake down stalling the torque converter, with the time element involved depending upon the reaction time of the driller. (T. 132\u2013136)\t\t\t\t\t\t\t\t\t\tHe had a personal experience where he was on the controls when a\t\t\t\t\t\tcatline\t\t\t\t\t\tfouled, and although he shut down immediately the\t\t\t\t\t\tcatline\t\t\t\t\t\toperator was pulled into the cathead.\t\t\t\t\t\t\t\t\t\tCompliance Officer Billy J. Blackwell, with some 16 1\/2\t\t\t\t\t\tyears experience\t\t\t\t\t\tin the field of safety with a background of approximately 70 oil well inspections, 65 of which were drilling rigs and five service rigs, testified on behalf of complainant.\t\t\t\t\t\t\t\t\t\tHe described a service rig as a small rig that is mounted on a truck or trailer, with a drilling rig being described as much heavier and bigger and going from 3,500 to 26,000 feet in depth.\t\t\t\t\t\t\t\t\t\tBlackwell made the fatality inspection on rig number 1, following the report of an employee becoming tangled and fouled in the\t\t\t\t\t\tcatline\t\t\t\t\t\tApril 24, 1976.\t\t\t\t\t\t\t\t\t\tBlackwell arrived at the rig on April 27, 1976, at approximately 2\u20132:30 p.m., and met with Fore and Ed Morris, respondent\u2019s safety consultant. Blackwell found that Hughes Drilling held safety meetings as needed; that over a period of a year they would have approximately 30\u201350 meetings, with employees, such as tool pushers and drillers, participating with the employees.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tIt also contracted services of Morris, who gave safety talks at the rigs.\t\t\t\t\t\t\t\t\t\tUpon Blackwell\u2019s inspection, he found that the equipment was in good shape and the drilling rig was set up and operational, having been operational approximately eight days prior to the inspection.\t\t\t\t\t\t\t\t\t\tHe photographed the cathead involved, Exhibit G\u20133, and the driller\u2019s position at the machine.\t\t\t\t\t\t\t\t\t\tHe inspected the cathead for any unusual wear, found it had a rope guard, and found nothing unusual or out of the ordinary about the cathead. (T. 21\u201331) The drillers\u2019 station office was located approximately 5 feet from the cathead machine.\t\t\t\t\t\t\t\t\t\tFollowing his inspection and going through various manuals when writing his report, among said manuals being the International Drillers Association Accident Prevention Manual, Blackwell concluded that a 5(a)(1) violation was not present.\t\t\t\t\t\t\t\t\t\tIn his report to his superiors he did not recommend that respondent be cited for a 5(a)(1) violation; nor did he feel that there was any serious violation present at the drilling rig that could be cited.\t\t\t\t\t\t\t\t\t\tFrom that point, a discussion was held with Blackwell\u2019s senior compliance officer and the Acting Area Director a day or so later, with Blackwell presenting his views on why he did not cite a 5(a)(1) violation.\t\t\t\t\t\t\t\t\t\tFollowing a call from the Acting Area Director to the Regional Office on May 11, 1976, Blackwell was instructed to make an additional investigation.\t\t\t\t\t\t\t\t\t\tBlackwell made the subsequent additional investigation on June 8 and June 9, 1976, to gather information from other employees of other rigs, including Hughes employees, about the operation of a cathead. These inspections were made on the instructions of his senior compliance officer and Acting Area Director.\t\t\t\t\t\t\t\t\t\tBlackwell found that the cathead and\t\t\t\t\t\tcatline\t\t\t\t\t\toperation was recognized as a hazard if not properly used, and had mixed findings where some drillers stay in close proximity to the driller\u2019s operating panel, with a small percentage of companies requiring a man to stay and others who do not require a man to stay at the operator\u2019s position, but in close proximity.\t\t\t\t\t\t\t\t\t\tAs to his findings as to\t\t\t\t\t\twhether or not\t\t\t\t\t\ta driller should be standing by the machine, the majority of the people that in interviewed felt that it was no bigger hazard if he was 5 feet or whatever or some short distance from the controls. (T. 42)\t\t\t\t\t\t\t\t\t\tHughes felt that in some qualified situations under certain circumstances, certain rigs, the way the draw works were built, including the breaking and clutching, it would be a hazard with a driller not standing at the controls. (T. 43)\t\t\t\t\t\t\t\t\t\tAs far as Hughes\u2019 operation, Blackwell\u2019s feelings remain the same, that the driller being approximately 5 feet away from in controls did not add to the hazard that was already existent in operating the cathead and\t\t\t\t\t\tcatline.\t\t\t\t\t\t\t\t\t\tReferring to docket 76\u20133574, his inspection of April 27, 1976, which resulted in some five other-than-serious cited violations, with respect to item 3 (29 CFR 1926.300(b)(2)), Blackwell noted that the fan drive on the number 1 mud pump, which was on the ground floor, was not adequately guarded with the fan drive on the draw works motor partially guarded, in that the periphery of the fan blade was not completely guarded.\t\t\t\t\t\t\t\t\t\tThe partial guard did not cover the nip points and the exposed points of the belt and pulleys.\t\t\t\t\t\t\t\t\t\tBlackwell could not remember whether they had two or three V\u2013belt drives on the pulleys, which are located\t\t\t\t\t\tsimilar to\t\t\t\t\t\tan automobile engine right behind the cooling radiator. The fan pulley is larger than the crankshaft pulley, with the crankshaft pulley approximately 3 feet off the floor surface. The fan pulley was approximately 4 1\/2 feet from the floor surface.\t\t\t\t\t\t\t\t\t\tBlackwell did not observe any Hughes Drilling employees in the proximity to the belt drive and pulleys, although it was possible for them to do so, in that the machine was located in a normal\t\t\t\t\t\tworkarea\t\t\t\t\t\tand the motor man has to get in and around the motors for inspection, upkeep and oiling.\t\t\t\t\t\t\t\t\t\tThe hazard perceived was inadvertently getting a hand into the fan blade or nip points or a portion of his clothing, with the most extreme hazard being that of perhaps a loss of fingers.\t\t\t\t\t\t\t\t\t\tBlackwell noted that some companies, depending upon the make of the motor, completely encaged the fan and most drilling companies fabricate guards when they are needed and if the manufacturer does not make a guard. (T. 46\u201351)\t\t\t\t\t\t\t\t\t\tHughes did not have a welder on the premises, but there were contractors in the Enid area who provide such services. The fan drive on the number ?? mud pump was not adequately guarded, with the water pump pulley being approximately 3 1\/2\u20134 feet from the ground, and with the drive shaft 3 1\/2\u20132 1\/2 feet from the ground.\t\t\t\t\t\t\t\t\t\tThe fan drive of the water pump pulley was partially guarded. The crankshaft pulley was not, as was the drive belt. (T. 54)\t\t\t\t\t\t\t\t\t\tThis would be the normal\t\t\t\t\t\tworkarea\t\t\t\t\t\tfor the motor men, and the hazard again was perceived that the motor men could get entangled in the belt\u2019s pulleys while doing routine maintenance or\t\t\t\t\t\tcome in contact with\t\t\t\t\t\tnip points.\t\t\t\t\t\t\t\t\t\tAgain, he felt abatement could be accomplished by the fabrication of a guard in the field.\t\t\t\t\t\t\t\t\t\tRespondent utilized a\t\t\t\t\t\tkelley\t\t\t\t\t\tbushing, Exhibits G\u20134 and G\u20135, which sits atop the rotary table with further description of the drilling operation setup. (T. 58)\t\t\t\t\t\t\t\t\t\tBlackwell felt that because the\t\t\t\t\t\tkelley\t\t\t\t\t\tbushing had indentations or projections as it turns, it should be covered by a conical semicircle described as piano-hinged in the back and hinged flap in front for pinning to cover the indentations and projections of the\t\t\t\t\t\tkelley\t\t\t\t\t\tbushing.\t\t\t\t\t\t\t\t\t\tBlackwell circled the\t\t\t\t\t\tkelley\t\t\t\t\t\tbushing in red ink at Exhibit G\u20135, and\t\t\t\t\t\tdepicted the mouse hole at Exhibit G\u20134 with green ink.\t\t\t\t\t\t\t\t\t\tThe mouse hole is alternatively called the rat hole, where a length of pipe is stored awaiting the next connection. (T. 53\u201360)\t\t\t\t\t\t\t\t\t\tThe rig\u2019s tongs were circled in blue ink on Exhibit G\u20135.\t\t\t\t\t\t\t\t\t\tWhen pipe is changed or employees on the drilling platform are adding a joint of drill pipe to the length of the drill stem, a\t\t\t\t\t\tkelley\t\t\t\t\t\tbushing does not turn and there is no hazard during the operation.\t\t\t\t\t\t\t\t\t\tExhibit G\u20134 depicted the\t\t\t\t\t\tkelley\t\t\t\t\t\tbushing in operation, with the hazard perceived of employees having to walk across the area from time to time and that there was potential of loose rope or loose chain being kicked into the\t\t\t\t\t\tkelley\t\t\t\t\t\tbushing and caught, and due to the rotation an employee being whipped to death.\t\t\t\t\t\t\t\t\t\tBlackwell added that he did not see any of these problems at the Hughes rig, noting\t\t\t\t\t\tthe their\t\t\t\t\t\thousekeeping was good.\t\t\t\t\t\t\t\t\t\tThere are companies that fabricate shields for the\t\t\t\t\t\tkelley\t\t\t\t\t\tbushing in the Enid area. (T. 68)\t\t\t\t\t\t\t\t\t\tBlackwell described the motors in item 3 as being approximately 6 feet by 3 feet, with the pulley being up to 3\u20134 inches from the engine.\t\t\t\t\t\t\t\t\t\tBlackwell conceded that the likelihood for someone in fact to get his hand caught in the motor belts would be remote, in that in Blackwell\u2019s estimate the motor men would spend approximately 6 hours a week tending the motors.\t\t\t\t\t\t\t\t\t\tWith reference to item 5, 29 CFR 1910.212(a)(1), Blackwell pointed out two areas where rope or chain could catch on the\t\t\t\t\t\tkelley\t\t\t\t\t\tbushing. These were where the roller cone is located where there are slots that could entangle lengths of chain, although Blackwell had doubts that a rope would be involved in an entanglement.\t\t\t\t\t\t\t\t\t\tBlackwell\u2019s experience had developed information of two employees that had stepped on the rotating table and had fallen, but he did not know if they were inexperienced or experienced employees.\t\t\t\t\t\t\t\t\t\tBlackwell did not cite respondent for not protecting the rotary table, but only for failing to have a\t\t\t\t\t\tkelley\t\t\t\t\t\tbushing guard, noting that they are commercially available in Oklahoma City.\t\t\t\t\t\t\t\t\t\tThe\t\t\t\t\t\tkelley\t\t\t\t\t\tguard\t\t\t\t\t\twas described as being\t\t\t\t\t\tof 1\/8-inch steel, its size depending upon the size of the bushing and rotary table, with an estimate that such a guard for rig number 1 would weigh approximately 75\u2013110 pounds, depending upon the gauge steel used. (T. 78\u201379)\t\t\t\t\t\t\t\t\t\tThe guard is hinged on one half and pinned on the\t\t\t\t\t\tother, and\t\t\t\t\t\tstays in one place during the drilling operation.\t\t\t\t\t\t\t\t\t\tHowever, during the connecting operation of adding additional pipe, some drillers leave the\t\t\t\t\t\tkelley\t\t\t\t\t\tguards suspended on top of the\t\t\t\t\t\tkelley\t\t\t\t\t\tbushing while others unpin the guards, separate the hinge and put them off to one side.\t\t\t\t\t\t\t\t\t\tDuring the drilling operation and connection operation the\t\t\t\t\t\tkelley\t\t\t\t\t\tbushing and guard is raised, and while changing joints Blackwell acknowledged that if the pins became disengaged and the\t\t\t\t\t\tkelley\t\t\t\t\t\tguard would come off it would be dangerous should it fall and hit an employee and would cause injury.\t\t\t\t\t\t\t\t\t\tHughes, with 27\t\t\t\t\t\tyears experience\t\t\t\t\t\tin the drilling business, expressed familiarity with the\t\t\t\t\t\tkelley\t\t\t\t\t\tbushing based upon his personal experience.\t\t\t\t\t\t\t\t\t\tHe noted that the older models, of which there were some still in existence, had J-bolt projections which were dangerous, in that people with loose fitting clothes could get caught by the bolts as they rotated with the older models also\t\t\t\t\t\tproned\t\t\t\t\t\tto the danger of having ropes snagged in them.\t\t\t\t\t\t\t\t\t\tHughes, in his operations, chose the current type\t\t\t\t\t\tkelley\t\t\t\t\t\tbushing because of the safety features, and felt that the\t\t\t\t\t\tkelley\t\t\t\t\t\tguards presented a hazard.\t\t\t\t\t\t\t\t\t\tBecause of its weight it involves an additional operation of the\t\t\t\t\t\tcatline\t\t\t\t\t\tto pick up the bushing guard, in that employees would be subject to\t\t\t\t\t\tbacksprain\t\t\t\t\t\tif they manually manipulated the guard.\t\t\t\t\t\t\t\t\t\tSecondly, he agreed with the compliance officer\u2019s assessment that should a pin come loose while the guard was in place and the\t\t\t\t\t\tkelley\t\t\t\t\t\tbushing operating, the guard would fall and could injure someone below.\t\t\t\t\t\t\t\t\t\tHughes has never had such an occurrence in his\t\t\t\t\t\toperation, but\t\t\t\t\t\thas heard of the bushings falling in other operations.\t\t\t\t\t\t\t\t\t\tHughes uses\t\t\t\t\t\tkelley\t\t\t\t\t\tguards as a result of the citation, and found they weigh between 100\u2013120 pounds.\t\t\t\t\t\t\t\t\t\tIn Hughes\u2019 association with other contractors, he found they did not use the bushing guard, and so\t\t\t\t\t\tfar\t\t\t\t\t\tas he knows Oklahoma is the only State where citations have been issued for not using the guards.\t\t\t\t\t\t\t\t\t\tIn the particular area of rig number 1, the drilling operation ranged from 40 rpm up to 175 rpm depending on the ground formation encountered, which would have the guard spinning in the air and should it become unhinged it could fly off and afford the potential of killing someone\t\t\t\t\t\t\t\t\t\tAlso, during the period of time when they elevate the\t\t\t\t\t\tkelley\t\t\t\t\t\tbushing to make a change of pipe, there are two workmen standing on the platform with tongs on the pipe which they remove to unscrew the joint, which in turn has the\t\t\t\t\t\tkelley\t\t\t\t\t\tbushing and guard rotating above the workman\u2019s head while the operation is taking place, namely, the unscrewing of the\t\t\t\t\t\tkelley\t\t\t\t\t\tjoint for the replacement of additional length of pipe.\t\t\t\t\t\t\t\t\t\tAlso, there is the operation of washing down the mud from the drilling table after a connection has been made, which again would have the\t\t\t\t\t\tkelley\t\t\t\t\t\tbushing and guard rotating above the workman\u2019s head. (T. 137\u2013149)\t\t\t\t\t\t\t\t\t\tHarold Morris Hopkins was familiar with the type of\t\t\t\t\t\tkelley\t\t\t\t\t\tbushing utilized by Hughes, and in his\t\t\t\t\t\topinion\t\t\t\t\t\tit did not present a danger of a rope or chain snagging in it. (T. 121\u2013122)\t\t\t\t\t\t\t\t\t\tBlackwell explained that the citation for other-than-serious was delayed until June 11, 1976, because of the amount of research and discussion on whether a section 5(a)(1) citation would be issued.\t\t\t\t\t\t\t\t\t\tBlackwell needed very little time to make a judgment on the alleged other-than-serious violations.\t\t\t\t\t\t\t\t\t\tDuring the period of the delay, a letter was received from one Charles M. Freedman, Assistant Regional Administrator for Federal and State operations, noting that a section 5(a)(1) citation should be issued, in that:\t\t\t\t\t\t\t\t\t\t\u2018The driller or the qualified operator did not maintain his controls, or have a watchman designated while the employee was at the cathead.\t\t\t\t\t\t\t\t\t\t\u2018We recommend that you review this\t\t\t\t\t\tfile, and\t\t\t\t\t\tsee if a 5(a)(1) citation might be in order.\u2019\t\t\t\t\t\t\t\t\t\tThereafter, Blackwell received a note from his Acting Area Director on June 24, 1976, stating: \u2018Prepare a 5(a)(1) citation\u2019, which Blackwell proceeded to do. (T. 83)\t\t\t\t\t\t\t\t\t\tFerrice\t\t\t\t\t\tF. Fore was called on behalf of complainant.\t\t\t\t\t\t\t\t\t\tHe is a tool pusher for Hughes Drilling, and has been assigned to rig number 1 for five years.\t\t\t\t\t\t\t\t\t\tHe described having three crews, consisting of a driller, three hands, and a derrick man.\t\t\t\t\t\t\t\t\t\tHe was not at the rig location at the time of the fatality on April 14, 1976.\t\t\t\t\t\t\t\t\t\tAt that time, Stapp was a driller, Day was the derrick man, and\t\t\t\t\t\t[the decedent]\t\t\t\t\t\twas working the floor.\t\t\t\t\t\t\t\t\t\tThe crew came on at 10:30 p.m. to be relieved at 6:30 a.m.\t\t\t\t\t\t\t\t\t\tFore had last been at the drill at 7:30 that evening, after which the driller, Stapp, was in charge. (T. 85\u201387)\t\t\t\t\t\t\t\t\t\tFore has been in the drilling industry for 34 years, working from\t\t\t\t\t\tfloorhand\t\t\t\t\t\tto deckhand to driller. He drilled from 1950 to 1970.\t\t\t\t\t\t\t\t\t\tThe\t\t\t\t\t\t[decedent]\t\t\t\t\t\tfatality was the only accident involving personal injury out of use of a cathead that Fore was acquainted with any company he had worked for, although he had heard of incidents elsewhere.\t\t\t\t\t\t\t\t\t\tThe type of accident\t\t\t\t\t\t[decedent]\t\t\t\t\t\twas involved in was described by Fore as being very uncommon.\t\t\t\t\t\t\t\t\t\tFore did not consider it a hazard to operate the cathead\/catline\t\t\t\t\t\twhile a driller was not standing right there at his controls.\t\t\t\t\t\t\t\t\t\tAll the employees are trained to stop the cathead if anything goes out of the ordinary, such as worn machinery, guard fouling or material out of place.\t\t\t\t\t\t\t\t\t\tOtherwise, the only cause of such an accident would be negligence.\t\t\t\t\t\t\t\t\t\tThe cathead was described as serving the purpose of lifting heavy objects and moving them from place to place, and it\t\t\t\t\t\tis in continuous motion at all times.\t\t\t\t\t\t\t\t\t\tThe Hughes cathead rig was equipped with a clutch kickout, and Fore\t\t\t\t\t\twas of the opinion that\t\t\t\t\t\tthe cathead wouldn\u2019t turn more than half a round after declutching.\t\t\t\t\t\t\t\t\t\t[Decedent]\t\t\t\t\t\thad worked for Hughes approximately three months prior to the fatality. He had had some roughneck experience, and the driller trained him in the operation of the cathead.\t\t\t\t\t\t\t\t\t\tWhen the cathead is operated, one wrap of the\t\t\t\t\t\tcatline\t\t\t\t\t\tis put on the cathead to take out slack.\t\t\t\t\t\t\t\t\t\tThen another wrap is placed on the cathead, and then another wrap until such time as the friction is\t\t\t\t\t\tsufficient\t\t\t\t\t\tto make the lift. If wraps are made on the cathead without the end of the line being attached to a weighted object, it would be a careless operation.\t\t\t\t\t\t\t\t\t\tOn the Hughes rig, the cathead was equipped with a torque converter and was designed to pick up a light load, in that with a heavy load the converter would stall the cathead out. (T. 85\u201393)\t\t\t\t\t\t\t\t\t\tRalph David Stapp was called on behalf of complainant, an eight-month employee of Hughes Drilling, and was the morning driller on rig number 1 the day of the fatality.\t\t\t\t\t\t\t\t\t\tHe worked along with Day,\t\t\t\t\t\t[the decedent]\t\t\t\t\t\tand Taylor.\t\t\t\t\t\t\t\t\t\tDay was the derrick man,\t\t\t\t\t\t[the decedent]\t\t\t\t\t\tthe motor man, and Taylor the sample catcher.\t\t\t\t\t\t\t\t\t\tUpon his arrival at 10:15 p.m., the\t\t\t\t\t\tkelley\t\t\t\t\t\tbushing was low, indicating that another pipe connection had to be made.\t\t\t\t\t\t\t\t\t\tThe connection was\t\t\t\t\t\tmade\t\t\t\t\t\tand Stapp went inside and set his automatic driller and started it drilling.\t\t\t\t\t\t\t\t\t\tHe observed that the cathead was being prepared to operate, whereupon he returned to his controls.\t\t\t\t\t\t\t\t\t\tShortly thereafter, he heard someone holler, and as he looked out the\t\t\t\t\t\tdoor\t\t\t\t\t\the saw that\t\t\t\t\t\t[the decedent]\t\t\t\t\t\thad fouled the cathead and was in trouble.\t\t\t\t\t\t\t\t\t\tStapp hollered at\t\t\t\t\t\t[the decedent], who had a hold of the rope, and the rope was going around the cathead with some rope flying around.\t\t\t\t\t\t\t\t\t\tStapp hollered at\t\t\t\t\t\t[the decedent]\t\t\t\t\t\tto let go of the rope and headed for the controls, and when he did\t\t\t\t\t\t[the decedent]\t\t\t\t\t\twas pulled into the cathead.\t\t\t\t\t\t\t\t\t\t[The decedent]\t\t\t\t\t\twent around the cathead, but Stapp was unable to say how many times before he kicked the clutches out and to where the cathead would slow down to where he could stop it.\t\t\t\t\t\t\t\t\t\tThere are two catheads on rig number 1, with one being on the opposite side of the driller\u2019s controls.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tStapp\u2019s driller control station is located some 5 or 6 feet in what is termed the \u2018dog house\u2019 from the cathead machine, with his position in the dog house another 2 or 3 feet inside.\t\t\t\t\t\t\t\t\t\tStapp had instructed\t\t\t\t\t\t[the decedent]\t\t\t\t\t\tin the operation of the cathead, which was to the effect that he was to make sure that he was tied onto something on the other end; to take the slack out, pull it out with your hands first; then put one wrap on the cathead after he had made sure he was tied off to something; and then by feel, make a determination of how many wraps are necessary around the cathead.\t\t\t\t\t\t\t\t\t\t[The decedent]\t\t\t\t\t\twas going to put another pipe in the mouse hole for a later connection.\t\t\t\t\t\t\t\t\t\tStapp\t\t\t\t\t\twas of the opinion that\t\t\t\t\t\t[the decedent]\t\t\t\t\t\tdid not look to see if he was tied off, because he went ahead and put some wraps on the cathead when he wasn\u2019t tied off to anything.\t\t\t\t\t\t\t\t\t\tThe other end of the rope had not been tied off; nor was it broken.\t\t\t\t\t\t\t\t\t\tIf he had been tied off, he would have been tied off to one 30-foot joint of pipe.\t\t\t\t\t\t\t\t\t\tStapp\t\t\t\t\t\twas in charge of\t\t\t\t\t\tthe rig in Fore\u2019s absence, and prior to the occurrence\t\t\t\t\t\t[the decedent]\t\t\t\t\t\thad assisted in making the connection.\t\t\t\t\t\t\t\t\t\t[The decedent]\t\t\t\t\t\thad been at Hughes approximately one month before\t\t\t\t\t\tStapp, and\t\t\t\t\t\twas described by Stapp as not being real experienced, but learning real well and knowing his job.\t\t\t\t\t\t\t\t\t\tStapp again reiterated the training he gave\t\t\t\t\t\t[the decedent]\t\t\t\t\t\tin the operation of the cathead by tying off to something, handing gradual stages, letting him pick something completely up in order to learn the feel of the\t\t\t\t\t\tcatline.\t\t\t\t\t\t\t\t\t\tAs his training progressed, he was thereafter observed and allowed to operate on his\t\t\t\t\t\town, and\t\t\t\t\t\thad been doing pretty good. In addition to Stapp, there were two others who instructed\t\t\t\t\t\t[the decedent]\t\t\t\t\t\tas to the proper way of operating the cathead and\t\t\t\t\t\tcatline, particularly with respect to tying off to something and taking the slack out of the line before making wraps.\t\t\t\t\t\t\t\t\t\tStapp has operated a cathead without accident, although he has fouled it.\t\t\t\t\t\t\t\t\t\tHe felt that it could be hazardous for someone to operate the cathead and\t\t\t\t\t\tcatline\t\t\t\t\t\twithout someone standing at the driller\u2019s\t\t\t\t\t\tcontrols, but\t\t\t\t\t\twould depend on what was being lifted and the experience of the person operating the cathead.\t\t\t\t\t\t\t\t\t\tStapp considered\t\t\t\t\t\t[the decedent]\t\t\t\t\t\ta competent\t\t\t\t\t\tcatline\t\t\t\t\t\toperator, but\t\t\t\t\t\tfelt that he should have watched him closer.\t\t\t\t\t\t\t\t\t\tNormally, if he would be standing at his controls, he would be observing the object being lifted and its direction and not the cathead, or he would be glancing back and forth.\t\t\t\t\t\t\t\t\t\tThe rope was whipping around through the driller\u2019s station, and it could have possibly wrapped Stapp if he had been standing there.\t\t\t\t\t\t\t\t\t\tThe instructions Stapp had given was that the cathead was not to operate until he had the pipe on the bottom and was drilling with the next\t\t\t\t\t\tpipe\t\t\t\t\t\tthey put in the mouse hole after he was drilling and after he was out of the doghouse.\t\t\t\t\t\t\t\t\t\tThese were the instructions given his crew at that time, and the instructions he still gives currently.\t\t\t\t\t\t\t\t\t\tHad Stapp been at the operator\u2019s control, he was not sure\t\t\t\t\t\twhether or not\t\t\t\t\t\the could have detected either visually or by operation of the cathead that the other end of the rope was not attached.\t\t\t\t\t\t\t\t\t\tIt was Stapp\u2019s opinion that the accident occurred by\t\t\t\t\t\t[decedent\u2019s]\t\t\t\t\t\tfailure to make sure by looking to see that the end of the rope was attached onto something. (T. 93\u2013106)\t\t\t\t\t\t\t\t\t\tGarland Taylor was called by complainant and was employed by respondent on April 24, 1976, as a backup tong operator, also known as a sample catcher. (T. 106)\t\t\t\t\t\t\t\t\t\tWhen he began his shift, he checked his oilers on the rig, and then the connection was made; then he and\t\t\t\t\t\t[the decedent]\t\t\t\t\t\twere bringing three joints up to the feed door. The\t\t\t\t\t\tcatline\t\t\t\t\t\tgot snagged on the derrick, so\t\t\t\t\t\t[the decedent]\t\t\t\t\t\twent up and tied off the\t\t\t\t\t\tcatline\t\t\t\t\t\twhile Taylor was to wrap the rope around the three joints on the catwalk.\t\t\t\t\t\t\t\t\t\tTaylor did not have enough slack because of\t\t\t\t\t\t[the decedent\u2019s]\t\t\t\t\t\tprevious tie-off to make a tie. Taylor observed\t\t\t\t\t\t[the decedent]\t\t\t\t\t\tlooking at him for about a second, with Taylor thinking that\t\t\t\t\t\t[the decedent]\t\t\t\t\t\twas going to give him some slack to he could get the pipes hooked up.\t\t\t\t\t\t\t\t\t\tThe next thing he observed the chain was going up and he grabbed.\t\t\t\t\t\t\t\t\t\tThe three joints were to be raised up to the feed door for easier handling, and in order that a pipe not have to be put in the mouse hole each time.\t\t\t\t\t\t\t\t\t\tAs connections are made, the\t\t\t\t\t\tkelley\t\t\t\t\t\tbushing is pulled up over to the mouse hole, picking up the joint, and then lowering the joint after it is connected to the rest of the pipe.\t\t\t\t\t\t\t\t\t\tAfter every three connections, three additional joints are brought up to the feed door.\t\t\t\t\t\t\t\t\t\tTaylor was aware that Stapp was in the doghouse when he and\t\t\t\t\t\t[the decedent]\t\t\t\t\t\twere attempting to pick up the three joints, but not exactly where.\t\t\t\t\t\t\t\t\t\tTaylor received no instructions on picking up the three joints, it was just the regular work routine.\t\t\t\t\t\t\t\t\t\tTaylor was never given instructions about not taking up joints of pipe without Stapp being at the controls. Taylor had never been given any instructions that the cathead was not to be used for lifting when Stapp was not at the controls. (T. 106\u2013113)\t\t\t\t\t\t\t\t\t\tHarold M. Hopkins was called on behalf of respondent. He is company-wide safety coordinator for the Noble Drilling Co. in Tulsa, Oklahoma, which operates 40 rigs.\t\t\t\t\t\t\t\t\t\tHopkins takes care of the rig inspections and helps with the training and tries to keep\t\t\t\t\t\tup-to-date\t\t\t\t\t\ton publications.\t\t\t\t\t\t\t\t\t\tHe has been with the Noble Drilling Co. since 1947, with some roughnecking experience prior to that. Besides being a roughneck, he had drilled, pushed tools and was a safety supervisor and is currently safety coordinator\t\t\t\t\t\tcompany-wide.\t\t\t\t\t\t\t\t\t\tIt was Hopkins\u2019 opinion that it was not a recognized hazard in the drilling industry for a workman to operate a\t\t\t\t\t\tcatline\t\t\t\t\t\tand cathead without a driller being stationed right at his controls during the operation.\t\t\t\t\t\t\t\t\t\tHopkins\u2019 company does not have their drillers at the controls when their\t\t\t\t\t\tcatlines\t\t\t\t\t\tand catheads are operated.\t\t\t\t\t\t\t\t\t\tHe is familiar with the operation of\t\t\t\t\t\tcatlines\t\t\t\t\t\tand\t\t\t\t\t\tcatheads, and\t\t\t\t\t\tdescribed the operation as essentially the same as prior witnesses, emphasizing that the line has to be tied on properly before applying wraps around the cathead, and then only enough wraps to handle the load.\t\t\t\t\t\t\t\t\t\tHopkins described the operation of a\t\t\t\t\t\tcatline\t\t\t\t\t\twithout hooking onto an object as a very dangerous procedure. For the past 15 years after the addition of the divider to the cathead, such an accident as befell\t\t\t\t\t\t[the decedent]\t\t\t\t\t\twas not common, although prior to the addition of the divider Hopkins had heard of\t\t\t\t\t\ta number of\t\t\t\t\t\taccidents.\t\t\t\t\t\t\t\t\t\tThe divider keeps the first wrap away from the subsequent wraps that are placed on the cathead, preventing the line from balling up.\t\t\t\t\t\t\t\t\t\tThe driller operations would require normally that the driller be facing whatever the operation was taking place, whether picking up a joint of pipe or load.\t\t\t\t\t\t\t\t\t\tHe would not be facing the\t\t\t\t\t\tcatline\t\t\t\t\t\toperator because of the danger of the load swinging in and hitting him.\t\t\t\t\t\t\t\t\t\tOf the two, the load is the most dangerous and\t\t\t\t\t\thas to\t\t\t\t\t\tbe observed\t\t\t\t\t\tmoreso\t\t\t\t\t\tthan the cathead.\t\t\t\t\t\t\t\t\t\tHopkins identified respondent\u2019s equipment as an \u2018Idaco\u2019.\t\t\t\t\t\t\t\t\t\tWhen the machine is in operation all catheads will be turning, although there are a few models that have a clutch for the cat shaft.\t\t\t\t\t\t\t\t\t\tHopkins was also familiar with the\t\t\t\t\t\tkelley\t\t\t\t\t\tbushing (depicted in Exhibit G\u20134), and\t\t\t\t\t\twas of the opinion that it did not present a high danger of the rope or chain snagging at it.\t\t\t\t\t\t\t\t\t\tHe is acquainted with\t\t\t\t\t\tkelley\t\t\t\t\t\tbushing guards and has seen pictures of them.\t\t\t\t\t\t\t\t\t\tHopkins went into full time safety work in June of 1970 as a safety supervisor.\t\t\t\t\t\t\t\t\t\tHis company is a member of the International Association of Drilling\t\t\t\t\t\tContrators, of which he is a member of the safety committee, as well as several of the subcommittees.\t\t\t\t\t\t\t\t\t\tHe reiterated that he did not feel there was any hazard involved in the lifting of loads with the use of the\t\t\t\t\t\tcatline\t\t\t\t\t\tand cathead when a driller is not at the controls.\t\t\t\t\t\t\t\t\t\tHis company does not encourage the drillers to remain at the controls when the cathead is being used; nor do they use guards on their\t\t\t\t\t\tkelley\t\t\t\t\t\tbushings and rotary table. (T. 106\u2013124)\t\t\t\t\t\t\t\t\t\tGene Porter was called on behalf of the respondent.\t\t\t\t\t\t\t\t\t\tPorter is self-employed in the drilling business, operating one rig, and has been in the drilling business for 35 years performing all the various jobs, such as roughneck, driller and tool pusher in many states.\t\t\t\t\t\t\t\t\t\tPorter is very familiar with catheads and\t\t\t\t\t\tcatlines, and\t\t\t\t\t\twas of the opinion that it is not a recognized hazard to operate a\t\t\t\t\t\tcatline\t\t\t\t\t\toff a cathead with a driller not at his controls.\t\t\t\t\t\t\t\t\t\tHe\t\t\t\t\t\twas of the opinion that\t\t\t\t\t\teveryone operates without a driller being at the controls, and that the operation is not considered dangerous.\t\t\t\t\t\t\t\t\t\tHe is familiar with the Hughes Drilling rig number\t\t\t\t\t\t1, and\t\t\t\t\t\thas been to its jobsite.\t\t\t\t\t\t\t\t\t\tWith Hughes\u2019 equipment, you can disengage the drum clutch and hold the brake down to stop the cathead.\t\t\t\t\t\t\t\t\t\tTwo different levers\t\t\t\t\t\thave to\t\t\t\t\t\tbe operated, and the cathead will continue to spin for a few seconds after the disengagement.\t\t\t\t\t\t\t\t\t\tPorter has never been involved in a cathead\/catline\t\t\t\t\t\taccident and testifies that this is not a common occurrence in the drilling industry, although they were years ago.\t\t\t\t\t\t\t\t\t\tHe felt that it would take two to four revolutions of the cathead to cause an injury to a person.\t\t\t\t\t\t\t\t\t\tPorter corroborated the other witnesses\u2019 testimony that the driller would be watching the load operation rather than the cathead in any event.\t\t\t\t\t\t\t\t\t\tPorter is a member of the International Association of Drilling Contractors and was unaware of what the Accident Prevention Manual said about\t\t\t\t\t\tcatlines\t\t\t\t\t\tfor lifting of loads, noting that it is a very common practice for loads to be lifted without the driller at his controls.\t\t\t\t\t\t\t\t\t\tDOCKET 76\u20133574\t\t\t\t\t\t\t\t\t\tDiscussion\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tOther-than-serious violation, item 3, 29 CFR 1926.300(b)(2), alleged inadequate guarding of fan drive on\t\t\t\t\t\tdrawworks\t\t\t\t\t\tmotor and fan drive on number 1 mud pump.\t\t\t\t\t\t\t\t\t\tCitation for violation of construction standards described in 29 CFR 1926 has been previously discussed in the case of\t\t\t\t\t\tSecretary v.\t\t\t\t\t\tArd\t\t\t\t\t\tDrilling Co., Inc., and\t\t\t\t\t\tBahaney\t\t\t\t\t\tDrilling Co., docket 15854\/15969, \u2014\u2014 OSAHRC \u2014\u2014, CCH OSHD \u00b6 21,021 (1976), where Judge Burchmore, in making an analysis of the applicability of the standards concluded that they were inapplicable to a fully operational oil and gas drilling rig, as is present in the instant case. The undisputed evidence disclosed that respondent at the time of the fatality was engaged in the business of drilling oil and gas wells and that the inspection of April 27, 1976, was of a stationary drilling rig and its appurtenances following a fatality.\t\t\t\t\t\t\t\t\t\tThe rig had been fully operational for some four\t\t\t\t\t\tdays, and\t\t\t\t\t\twas engaged in drilling at the time of the fatality.\t\t\t\t\t\t\t\t\t\tSafety requirements applicable to the construction industry are set out in 29 CFR 1926. The Secretary of Labor promulgated 29 CFR 1926 pursuant to the Contract Work Hours and Safety Standards Act. (See 29 CFR 1926.1) These standards were subsequently adopted as occupational safety & health standards for the construction industry. It is provided in 29 CFR 1910.12 that:\t\t\t\t\t\t\t\t\t\t\u2018(a) Standards. The standards prescribed in Part 1926 of this chapter are adopted as occupational safety and health standards under section 6 of the Act and shall apply, according to the provisions thereof, to every employment and place of employment of every employee engaged in construction work. Each employer shall protect the employment and places of employment of each of his employees engaged in construction work by complying with the appropriate standards prescribed in this paragraph.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t(b) Definition. For purposes of this section, \u2018construction work\u2019 means work for construction, alteration, and\/or repair, including painting and decorating. See discussion of these terms in \u00a7 1926.13 of this title.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t(c) Construction Safety Act distinguished. This section adopts as occupational safety and health standards under section 6 of the Act the standards which are prescribed in Part 1926 of this chapter.\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tAs respondent correctly states, a fully operational oil and gas drilling rig is not work for \u2018construction, alteration, and\/or repair\u2019; rather, 29 CFR 1926.300(b)(2) is part of subpart (i) of 29 CFR 1926.\t\t\t\t\t\t\t\t\t\tSubpart (i) provides for \u2018Tools\u2014Hand and Power\u2019, and when subpart (i) is read\t\t\t\t\t\tas a whole it\t\t\t\t\t\tbecomes obvious that the subpart is applicable to tools and tools alone. A\t\t\t\t\t\tdiesol\t\t\t\t\t\tengine could hardly\t\t\t\t\t\tbe considered to be\t\t\t\t\t\ta tool. More appropriately, a citation charging such alleged violation would appear more appropriate to be covered by 29 CFR 1910.219\u2014\u2018Mechanical Power-Transmission Apparatus\u2019 and its various subparts.\t\t\t\t\t\t\t\t\t\tMoreover, it cannot be said that this issue was tried by the mutual consent of the parties, in that from the onset, respondent denied the violation both in its notice of contest and in its answer. (See concluding paragraphs in Ringland-Johnson, Inc., Petitioner v. John T. Dunlop, Secretary of Labor, U. S. Department of Labor and OSAHRC, 76\u20131687 (8th Cir., 1977), which specifically comments on the confusion created by such citations.)\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t(See also,\t\t\t\t\t\tSecretary v. Fairbanks Well Service, Inc.,\t\t\t\t\t\tdocket 76\u20134297, \u2014\u2014 OSAHRC \u2014\u2014, CCH OSHD \u00b621,740 (1977), and\t\t\t\t\t\tSecretary v. R. B. Montgomery Drilling, Inc. and K\/S\t\t\t\t\t\tScanpet\t\t\t\t\t\tScandinavian\t\t\t\t\t\tPetrolium\t\t\t\t\t\tA\/S Co. partners d\/b\/a Scandinavian Montgomery Drilling, docket 76\u20132131, \u2014\u2014 OSAHRC \u2014\u2014, CCH OSHD \u00b6 21,755 (1977), also holding that the construction standards are inapplicable to oil and gas production.)\t\t\t\t\t\t\t\t\t\tConclusion of Law\t\t\t\t\t\t\t\t\t\tCitation 1, item 3, alleging other-than-serious violation of 29 CFR 1926.300(b)(2), is vacated on the basis that the cited standard is inapplicable to respondent\u2019s oil and gas drilling operation.\t\t\t\t\t\t\t\t\t\tDOCKET 76\u20133574\t\t\t\t\t\t\t\t\t\tDiscussion\t\t\t\t\t\t\t\t\t\tCitation 1, item 5, alleged other-than-serious violation of 29 CFR 1910.212(a)(1), failure to install\t\t\t\t\t\tkelley\t\t\t\t\t\tbushing guard.\t\t\t\t\t\t\t\t\t\tThe hazard perceived in respondent\u2019s use of the\t\t\t\t\t\tkelley\t\t\t\t\t\tbushing was described by the compliance officer as minimal; that is, should a chain be accidentally kicked into the\t\t\t\t\t\tkelley\t\t\t\t\t\tbushing it would whip about with a potential cause of causing injury.\t\t\t\t\t\t\t\t\t\tHowever, the compliance officer went on the say that at the Hughes rig the housekeeping was good and he did not see any problems.\t\t\t\t\t\t\t\t\t\tThe bushing guard weighs 75\u2013110 pounds. It is hinged on one half and pinned on the other and is suspended from the\t\t\t\t\t\tkelley\t\t\t\t\t\tbushing when pipes are changed, and it was conceded by the compliance officer that should the\t\t\t\t\t\tkelley\t\t\t\t\t\tbushing be in operation with the guard in place and should the pin become disengaged the guard could fall and hit an employee and cause injury.\t\t\t\t\t\t\t\t\t\tBoth Hughes, with 27\t\t\t\t\t\tyears experience, and Hopkins a professional safety man, perceived the\t\t\t\t\t\tkelley\t\t\t\t\t\tguard as more hazardous than operating the bushing without the guard.\t\t\t\t\t\t\t\t\t\tFindings of Fact\t\t\t\t\t\t\t\t\t\tBased upon the preponderance of the credible evidence, the following findings of fact are made:\t\t\t\t\t\t\t\t\t\t1. Respondent operates its oil drilling rig with a\t\t\t\t\t\tkelley\t\t\t\t\t\tbushing, which has rounded protuberance.\t\t\t\t\t\t\t\t\t\t2. The hazard perceived by the compliance officer was minimal, in that respondent maintains good housekeeping.\t\t\t\t\t\t\t\t\t\t3. The\t\t\t\t\t\tkelley\t\t\t\t\t\tbushing guard presents a greater hazard than the operation of the\t\t\t\t\t\tkelley\t\t\t\t\t\tbushing without the guard.\t\t\t\t\t\t\t\t\t\t4. There is a hazard of employees injuring themselves in attaching and detaching the guard.\t\t\t\t\t\t\t\t\t\t5. There is the additional hazard of the guard becoming unpinned and falling during a pipe change operation where employees are working under the guard.\t\t\t\t\t\t\t\t\t\t6. The addition of the guard because of its weight requires an extra operation on respondent\u2019s part in utilizing the\t\t\t\t\t\tcatline\t\t\t\t\t\tand cathead to lift the guard.\t\t\t\t\t\t\t\t\t\t7. There is an additional hazard, in that while the drilling rig is in operation and the guard in a rotating configuration and it becomes unhinged and\t\t\t\t\t\tflys\t\t\t\t\t\toff of\t\t\t\t\t\tthe bushing, it could seriously injure or kill someone.\t\t\t\t\t\t\t\t\t\tConclusion of Law\t\t\t\t\t\t\t\t\t\tCitation 1, item 5, alleging other-than-serious violation of 29 CFR 1910.212(a)(1), is vacated on the basis that the use of the\t\t\t\t\t\tkelley\t\t\t\t\t\tbushing guard would be more hazardous in respondent\u2019s operation than operating the\t\t\t\t\t\tkelley\t\t\t\t\t\tbushing without the guard.\t\t\t\t\t\t\t\t\t\tDOCKET 76\u20132945\t\t\t\t\t\t\t\t\t\tDiscussion\t\t\t\t\t\t\t\t\t\tCitation 1 alleged serious violation of the general duty clause, in that respondent is charged with having a qualified operator assigned to operate the cathead with the driller not at his controls, in violation of section 5(a)(1) of the Act.\t\t\t\t\t\t\t\t\t\tSection 5(a)(1) of the Act provides as follows:\t\t\t\t\t\t\t\t\t\t\u2018(a) Each employer\u2014\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t(1) shall furnish to each of his\t\t\t\t\t\temployees\t\t\t\t\t\temployment 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:\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe gravamen of the charge is that respondent did not have an operator at the controls of the diesel engine\t\t\t\t\t\toff of\t\t\t\t\t\twhich the cathead operated.\t\t\t\t\t\t\t\t\t\tIn order to sustain a 5(a)(1) violation, the 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.\t\t\t\t\t\t\t\t\t\tA hazardous condition is not, by itself,\t\t\t\t\t\tsufficient\t\t\t\t\t\tto sustain a violation.\t\t\t\t\t\t\t\t\t\tSection 5(a)(1) requires the elimination of preventable hazards. The complainant must also demonstrate that there were feasible steps that the employer could have taken to avoid citation. (See\t\t\t\t\t\tNational Realty & Construction Co., Inc., v. OSAHRC & Secretary, 489 F.2d 1257 (D.C. Cir., 1973))\t\t\t\t\t\t\t\t\t\tActual knowledge of a hazard on part of the employer satisfies the general duty clause requirements of recognition. (See\t\t\t\t\t\tSecretary v. OSAHRC and\t\t\t\t\t\tVy\t\t\t\t\t\tLactos\t\t\t\t\t\tLaboratories, Inc., 494 F.2d 460 (8th Cir., 1974))\t\t\t\t\t\t\t\t\t\tThe totality of all the credible evidence, starting with Blackwell, with 16 years of safety experience; Hughes, 27 years in all capacities in oil drilling; and, Fore, with 34 years in the drilling business, was to the effect that the only recognized hazard in the operation of a cathead was the improper operation of a cathead.\t\t\t\t\t\t\t\t\t\tThe recognized hazard perceived was an operator pulling on the cathead line without the line being attached to the object to be lifted. Without the attachment, the cathead has a reverse effect, creating a fouling and in turn pulling the\t\t\t\t\t\tcatline\t\t\t\t\t\toperator toward the cathead.\t\t\t\t\t\t\t\t\t\tComplainant conceded that deceased was an experienced\t\t\t\t\t\tcatline\t\t\t\t\t\toperator.\t\t\t\t\t\t\t\t\t\tFore, with 34\t\t\t\t\t\tyears experience, characterized deceased\u2019s accident as \u2018uncommon\u2019, and the only cathead accident he knew of. Fore, of all the witnesses, correctly categorized the occurrence as one of \u2018negligence\u2019.\t\t\t\t\t\t\t\t\t\t[The decedent]\t\t\t\t\t\treceived gradual training by respondent and supervision in the operation of the\t\t\t\t\t\tcatline.\t\t\t\t\t\t\t\t\t\tHe was taught and instructed never to operate the\t\t\t\t\t\tcatline\t\t\t\t\t\twithout the line being attached to the object to be lifted.\t\t\t\t\t\t\t\t\t\tStapp, who saw the fouled rope, called to deceased to let go the line, but nevertheless, deceased maintained his hold on the\t\t\t\t\t\tcatline\t\t\t\t\t\twhich led to his fatality.\t\t\t\t\t\t\t\t\t\tStapp characterized deceased as a man who \u2018knew his job\u2019 and was a competent\t\t\t\t\t\tcatline\t\t\t\t\t\toperator.\t\t\t\t\t\t\t\t\t\tArgument is made by complainant that if an operator was at the controls of the diesel, a fatality could have been averted.\t\t\t\t\t\t\t\t\t\tAll of the credible evidence is contrary to this proposition, in that 1) the diesel operator referred to as the driller is watching the load to prevent injury to himself; 2) there is reaction time involved from the commencement of the line fouling and the operator becoming aware of the fact and operating the kickout clutch; and, 3) while there was some dispute, the preponderance of the credible evidence is that the cathead continues rotation for a period of time after it is declutched.\t\t\t\t\t\t\t\t\t\tThe testimony of Taylor is significant, in that after the\t\t\t\t\t\tcatline\t\t\t\t\t\tsnagged,\t\t\t\t\t\t[the decedent]\t\t\t\t\t\ttied off the operator\u2019s end leaving insufficient slack for Taylor to tie off and merely glanced at Taylor before he commenced wrapping the\t\t\t\t\t\tcatline\t\t\t\t\t\tcontrary to his training and company rules.\t\t\t\t\t\t\t\t\t\tHopkins, with 29\t\t\t\t\t\tyears experience\t\t\t\t\t\tand safety coordinator for 40 oil rigs, testified that it was not a recognized hazard not having an operator at the controls, but the recognized hazard was the incorrect operation of the\t\t\t\t\t\tcatline\t\t\t\t\t\tby wrapping without being attached to a load.\t\t\t\t\t\t\t\t\t\tPorter, with 35\t\t\t\t\t\tyears experience, found no hazard with an operator not at the controls, and that\t\t\t\t\t\t[decedent\u2019s]\t\t\t\t\t\tfatality was not a common occurrence.\t\t\t\t\t\t\t\t\t\tFurther, under the testimony of this case, there is strong evidence that had the driller been at the controls he could\t\t\t\t\t\tof\t\t\t\t\t\tconceivably been wrapped by the\t\t\t\t\t\tcatline\t\t\t\t\t\thimself.\t\t\t\t\t\t\t\t\t\tComplainant, in his brief, places reliance on a statement contained in the Recommended Safe Operating Procedures and Guidelines for Drilling Contractors, to the effect that:\t\t\t\t\t\t\t\t\t\t\u2018. . . a qualified workman should be assigned to operate the cathead so that the driller may remain at his controls. If the driller is unable to watch all lifting operations at the same time, a signalman should also be available.\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThis clearly is advisory and was not acknowledged by any of the witnesses as being any type of guideline in the operation of their oil rigs, and if read carefully indicates that what is required is that there should not be operation of the\t\t\t\t\t\tcatline\t\t\t\t\t\tby the driller who is responsible for the operation of the diesel controls. Further, by use of the word \u2018should\u2019 the publication is merely advisory or cautionary. (See\t\t\t\t\t\tSecretary v. U. S. Steel Corp., docket 10825\/10849, \u2014\u2014 OSAHRC \u2014\u2014; CCH OSHD \u00b619,915 (1975))\t\t\t\t\t\t\t\t\t\tComplainant further argues that kicking out of the clutch would have instantly stopped that cathead. This opinion was given by one witness contrary to the majority of the testimony that there would be continued revolutions of the cathead, and most importantly of all failed to take into account the reaction time of the operator and failed to take into account that the operator, as in this particular instance, could have been exposed to a wrapping of the\t\t\t\t\t\tcatline\t\t\t\t\t\thimself.\t\t\t\t\t\t\t\t\t\tIt is felt that this clearly was an example of an \u2018isolated occurrence\u2019, due to employee negligence or inadvertence, as defined by the Commission in\t\t\t\t\t\tSecretary v. Murphy Pacific Marine Salvage Co., 75 OSAHRC 28\/A3; 15 OSAHRC 1; BNA 2 OSHC 1464 (1975); CCH OSHD \u00b616,229, 19,205 (1975), where there is 1) deviation 2) from a company\t\t\t\t\t\tworkrule\t\t\t\t\t\tor\t\t\t\t\t\tinstructions 3) which are enforced, and 4) that the deviation was unknown to the employer. (See also,\t\t\t\t\t\tSecretary v. Everglades Sugar Refinery, Inc., docket 76\u20132643, \u2014\u2014 OSAHRC \u2014\u2014, CCH OSHD \u00b6 21,603 (1977)).\t\t\t\t\t\t\t\t\t\tFindings of Fact\t\t\t\t\t\t\t\t\t\tBased upon the preponderance of the credible evidence, the following findings of fact are made:\t\t\t\t\t\t\t\t\t\t1. Respondent maintained an ongoing and continuing safety program consisting of regular meetings and discussions of accidents and the prevention thereof, employed a safety professional to visit its various operations, and further, trained its employees.\t\t\t\t\t\t\t\t\t\t2.\t\t\t\t\t\t[Decendent]\t\t\t\t\t\twas an experienced, trained and competent cathead operator.\t\t\t\t\t\t\t\t\t\t3. He had been advised of the company\u2019s safety rules and trained to the effect not to operate a\t\t\t\t\t\tcatline\t\t\t\t\t\twithout the line being attached to the load.\t\t\t\t\t\t\t\t\t\t4. The operation of a\t\t\t\t\t\tcatline\t\t\t\t\t\twithout the load being attached is a recognized hazard.\t\t\t\t\t\t\t\t\t\t5. The absence of the driller from the controls was not a recognized hazard, nor would it have affected the outcome of the fatality in this case.\t\t\t\t\t\t\t\t\t\t6.\t\t\t\t\t\t[Decedent]\t\t\t\t\t\twas cautioned to release the\t\t\t\t\t\tcatline\t\t\t\t\t\twhen the line became fouled.\t\t\t\t\t\t\t\t\t\t7.\t\t\t\t\t\t[Decedent]\t\t\t\t\t\tfailed to release the\t\t\t\t\t\tcatline, which would have prevented him from being drawn into the cathead.\t\t\t\t\t\t\t\t\t\t8. Had the operator been at the controls, he would have been exposed to the additional hazard of being wrapped by the\t\t\t\t\t\tcatline\t\t\t\t\t\tand drawn into the cathead.\t\t\t\t\t\t\t\t\t\tConclusions of Law\t\t\t\t\t\t\t\t\t\t1. Respondent\u2019s employee met his death through deviate, idiosyncratic and negligent conduct.\t\t\t\t\t\t\t\t\t\t2. Respondent did not know, or could not have known, that its employee would, in violation of his training and experience as a competent\t\t\t\t\t\tcatline\t\t\t\t\t\toperator, operate the\t\t\t\t\t\tcatline\t\t\t\t\t\twithout its being attached to its load.\t\t\t\t\t\t\t\t\t\t3. Respondent was not in serious violation of section 5(a)(1) of the Occupational Safety & Health Act.\t\t\t\t\t\t\t\t\t\tORDER\t\t\t\t\t\t\t\t\t\tBased upon the foregoing findings of fact and conclusions of law, it is ORDERED:\t\t\t\t\t\t\t\t\t\t1. Citation 1, item 3, for other-than-serious violation of 29 CFR 1926.300(b)(2), is vacated.\t\t\t\t\t\t\t\t\t\t2. Citation 1, item 5, for other-than-serious violation of 29 CFR 1910.212(a)(1), is vacated.\t\t\t\t\t\t\t\t\t\t3. Citation 1, item 1, for serious violation of section 5(a)(1), is vacated.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tPaul E. Dixon\t\t\t\t\t\t\t\t\t\tJudge, OSHRC\t\t\t\t\t\t\t\t\t\tDATE: June 21, 1977\t\t\t\t\t\t\” \t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t1 \t\t\t\t\t\u2018Working days\u2019 is defined in 29 C.F.R. \u00a7 1903.21(c) as follows:\t\t\t\t\t\t\t\t\t\t(c) \u2018Working days\u2019 means Mondays through Fridays but shall not include Saturdays, Sundays, or Federal holidays. In computing 15 working days, the day of receipt of any notice shall not be included, and the last day of the 15 working days shall be included.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t*Contrary to my concurring colleague\u2019s assertion, my opinion does not suggest that this case raises the issue of whether an extension of the statutory period to contest the citation is proper. Compare\t\t\t\t\t\tKeppels, Inc., 78 OSAHRC \u2014\u2014, 7 BNA\t\t\t\t\t\tOSHC 1442, 1979 CCH OSHD \u00b6\u2014\u2014 (No. 79\u20133020, 1979) (statutory period tolled under certain factual circumstances). Rather, this case presents a novel jurisdictional question concerning the commencement of the statutory period to contest. In addition, there is compelling public interest to resolve this novel question of law involving the statutory basis for Commission jurisdiction. Finally, the view that the Commission may decline to consider a jurisdictional issue and may \u2018summarily dispose of this case\u2019 because \u2018a great many cases\u2019 are pending before us is simply a derogation of duty.\t\t\t”