Baroid Division of N. L. Industries Inc. (Commission decision, January 29, 1982)

Plain-English summary

The Commission had earlier found that Baroid violated the general duty clause by failing to protect its mud man, Boden, from fire and explosion hazards caused by natural gas accumulation at an oil drilling site. Part of that holding was that Baroid had not trained Boden well enough to detect and evaluate gas accumulation and to know when he should leave the site.

The Tenth Circuit reviewed that decision in Baroid Division of NL Industries, Inc. v. OSHRC, 660 F.2d 439 (10th Cir. 1981). It rejected the other theories of liability. On the remaining question, whether employees can be trained to detect hazardous gas levels by smell, the court declined to rule. That basis was not stated in the citation, so the court held the parties should be able to reopen the record on it.

The Commission now returns the case to Judge James A. Cronin, who heard it originally. He is to take further evidence and argument on the remanded issue, make findings, and dispose of the section 5(a)(1) citation accordingly. Under the court's order the Secretary may present evidence only on training employees to detect gas by smell, and not on other detection methods such as electronic monitors. If that training is feasible the citation stands; if it is not, the citation falls.

Chairman Rowland was not on the Commission when the earlier decision issued. He expresses no view on the merits and joins the remand only because the Tenth Circuit's decision is the law of the case. Commissioner Cleary concurs.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1), the general duty clause.
• Outcome: Remanded to the administrative law judge for further proceedings on the court's limited issue.
• Key point: Where a court of appeals identifies a basis of liability that
  was never stated in the citation, the remedy is to reopen the record on that issue rather than to decide it on the existing record.

Full text (OSHRC public release)

Docket No. 16096

BAROID DIVISION OF NL INDUSTRIES, INC.

OSHRC Docket No. 16096

Occupational Safety and Health Review Commission

January 29, 1982

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Before ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

Stephen S. Livingston, for the employer

OPINION:

ORDER

BY THE COMMISSION:

This case is before the Commission on remand from the United States Court of Appeals for the Tenth Circuit.

Baroid Division of NL Industries, Inc. v. OSHRC, 660 F.2d 439 (10th Cir. 1981).

In a previous decision in this case, n1 the Commission determined that Respondent, Baroid Division of NL Industries ("Baroid"), violated section 5(a)(1) n2 of the Occupational Safety and Health Act of 1970, 29 U.S.C.

651-678, in that Baroid failed to protect its employee working at an oil drilling site from fire and explosion hazards resulting from natural gas accumulation. Among other things, the Commission found that Baroid had failed to adequately train its "mud man," Boden, concerning the detection and evaluation of natural gas accumulation hazards so that Boden would know under what circumstances it would be necessary to leave the oil drilling site.

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n1 79 OSAHRC 45/A9, 7 BNA OSHC 1466, 1979 CCH OSHD P23,661 (No. 16096, 1979).

n2 Section 5(a)(1) provides:

Sec. 5.(a) Each employer --

(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

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In its decision, the Tenth Circuit refrained from ruling on whether it was feasible to train Baroid's mud man to detect hazardous levels of gas accumulation by sense of smell. n3 Because this basis of liability was not mentioned in the citation, the court determined that the parties should be afforded the opportunity to reopen the record to present evidence on this issue.

The court stated:

We therefore remand this case for further development of the record through a hearing on the issue whether training employees to measure hazardous levels of gas accumulation by sense of smell is feasible. If the evidence shows that detection by employees of hazardous levels of gas accumulation by sense of smell is feasible, and if training employees to so detect the gas accumulations is feasible, then the citation will stand.

If, on the other hand, the evidence does not show that training to detect hazardous levels of gas accumulation by sense of smell is feasible, the citation must fall.

Both parties will be permitted on remand to supplement the record through the presentation of evidence.

The Secretary, however,

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will be limited to presenting evidence on the issue of training employees to detect gas accumulations by sense of smell, and may not present evidence on training in other detection methods such as the use of electronic monitors.

660 F.2d at 448.

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n3 The court concluded, however, that other theories of liability that were advanced in this case did not establish a violation of

5(a)(1).

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Accordingly, this case is remanded to Judge James A. Cronin, the judge who initially heard and decided this case. n4 The judge shall permit the parties to present further evidence and argument with respect to the remanded issue.

He also shall make findings of fact on the issue and shall enter an order disposing of the section 5(a)(1) citation consistent with those findings and with the court's remand order.

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n4 Chairman Rowland was not a member of the Commission when the prior decision was issued in this case.

He expresses no opinion on the merits of the case and joins in the instant remand order for the limited reason that the decision of the Tenth Circuit has established the law of the case.

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SO ORDERED.

CONCURBY: CLEARY

CONCUR:

CLEARY, Commissioner, concurring:

I concur.