Moore Petroleum Service Co., Rig No. 18

Plain-English summary

Moore Petroleum employees used a fixed ladder to reach a work platform 55 feet above the ground at an oil well. An employee fell from the ladder and died from his injuries three days later. The rig had no landing platforms, and its usual ladder-climbing safety device was broken. The Commission held that 29 C.F.R. § 1910.27(d)(2) expressly required landing platforms, so Moore's lack of knowledge about the broken safety device did not excuse its known failure to provide the platforms. It reversed the judge, affirmed the serious violation, and assessed a $490 penalty. Commissioner Cleary concurred on the alternative ground that jobsite supervisors knew the climbing device was inoperative and their knowledge was attributable to Moore.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.27(d)(2)
• Outcome: Serious fixed-ladder violation affirmed; $490 penalty assessed.
• Key point: An employer cannot avoid a standard's express landing-platform requirement by relying on an alternative safety device, particularly when that device is inoperative.

Full text (OSHRC public release)

Docket No. 81-2529

SECRETARY OF LABOR,

Complainant,

v.

MOORE PETROLEUM SERVICE CO.,

RIG NO. 18,

Respondent.

OSHRC Docket No. 81-2529

DECISION

Before:  BUCKLEY, Chairman; CLEARY Commissioner.

BUCKLEY, Chairman:

This case is before the Occupational Safety and Health Review Commission
under 29 U.S.C. � 661(i), section 12(j) of the Occupational Safety and Health Act of
1970, 29 U.S.C. �� 651-678 ("the Act").  The Commission is an
adjudicatory agency, independent of the Department of Labor and the Occupational Safety
and Health Administration ("OSHA").  It was established to resolve disputes
arising out of enforcement actions brought by the Secretary of Labor under the Act and has
no regulatory functions.  See section 10(c) of the Act, 29 U.S.C. � 659(c).

I

The Moore Petroleum Service Company employs 125 employees who are involved in oil well
service and workover.  On October 14, 1981, five Moore employees were removing tubing
and fluids from a well at a Texas worksite.  In order to perform their assignments,
the Moore employees ascended a ladder to a platform on the well 55 feet above the ground.
  Late in the afternoon, one Moore employee, Norman Smart, started down the ladder,
slipped and fell.  Three days later, Smart died from the injuries he suffered in the
fall.

Shortly after the fatality, an OSHA compliance officer inspected the
worksite.  The investigation and undisputed testimony established that this oil rig
was not equipped with a landing platform.  However, Moore normally provided its
employees with ladder climbing safety devices and instructed the employees in the use of
the equipment.  The ladder climbing safety device at this worksite had broken and had
not been replaced.  The safety device had been broken "at another job" but
it was not established exactly how long the device had been broken.  The members of
the Moore safety committee, which consisted of Jesse Moore and Ron Moore, the owners of
the company, and Walter Clark, the superintendent and secretary of the corporation, had
not been informed and were not aware the device was broken.

The Secretary cited Moore for violating the safety standard at 29 C.F.R. �
1910.27(d)(2).  The citation alleged:

Fixed ladder(s) used to ascend to heights exceeding 20 feet, and where cages
or wells were not provided, were not provided with a landing platform for each 20 feet of
height or fraction thereof:

(a) Workover Rig #18 had neither landing platform nor ladder climbing safety device
installed and in use, to reach to or from elevated derrick levels.

The administrative law judge vacated the citation.  The judge reasoned
that because the employees at the worksite had not informed company management that the
ladder safety device was broken the employer did not have knowledge of the violation.
  We reverse the administrative law judge's decision and affirm the citation.

II

The standard which the Secretary cited, 29 C.F.R. � 1910.27(d)(2), provides:

When ladders are used to ascend to heights exceeding 20 feet (except on
chimneys), landing platforms shall be provided for each 30 feet of height or fraction
thereof, except that, where no cage, well, or ladder safety device is provided, landing
platforms shall be provided for each 20 feet of height or fraction thereof.  Each
ladder section shall be offset from adjacent sections.  Where installation conditions
(even for a short, unbroken length) require that adjacent sections be offset, landing
platforms shall be provided at each offset.

The standard requires that an employer provide landing platforms whenever
employees use ladders to ascend to heights exceeding 20 feet.  Landing platforms are
required even when the employer provides a cage, well or ladder climbing safety device.
 The only difference is that when the employer provides such extra safety equipment
the employer need only provide landing platforms for every 30 feet of height instead of
the usual 20 feet.

Notwithstanding the plain language of the standard requiring landing
platforms and not ladder climbing safety devices, Moore successfully argued that the
citation should be vacated because it did not know that a ladder climbing safety device it
provided was inoperable.  However, Moore knew that landing platforms were not used
and makes no contrary claim.  It is the absence of landing platforms that is
prohibited by the standard, and Moore's knowledge about the presence or absence of other
safety devices is irrelevant to the determination of a violation of this standard.

Moore's argument is based on the Secretary's apparent preference for ladder
climbing safety devices over landing platforms as a means of fall protection.  In his
brief, the Secretary stated that OSHA considers the lack of a landing platform to be a
technical, de minimis violation of 29 C.F.R. � 1910.27(d)(2) if ladder
climbing safety devices are being used.  A violation is de minimis if
it bears such a negligible relationship to employee health or safety that abatement is
unnecessary.  See 29 U.S.C. � 658(a); Clement Food Co ., OSHRC
Docket No. 80-0607 (July 17, 1984).  I do not take issue with the propriety of the
Secretary's policy favoring ladder climbing safety devices over platforms as a means of
fall protection and citing the absence of platforms as de minimis where ladder climbing
safety devices are in use.  The Secretary can properly take the position that the
absence of platforms is de minimis where an equivalent or more effective
device is in use.  OSHA Field Operations Manual � 224 (1983).  The Secretary
did not cite Moore for a de minimis violation here because the absence of a
landing platform coupled with the inoperative condition of the ladder climbing safety
device clearly bears more than a negligible relationship to employee health and safety.
  Moore's lack of knowledge that the safety device was inoperable is not relevant to
that determination, however, and would be an improper basis on which to classify a
violation as de minimis under the Act.

Lack of knowledge as to the operability of the ladder climbing safety device
is relevant only if the standard required such devices. Thus, to base the decision on the
argument of the respondent would be equivalent to judicially amending the standard to set
forth the Secretary's preference for ladder climbing safety devices over platforms as a
method of fall protection.  Such a change in policy from that embodied in the
standard can only be accomplished through rulemaking.  The Commission is not the
appropriate forum for such a change in OSHA's rules.  See , e.g. , Schwarz-Jordan,
Inc. of Dallas , 84 OSAHRC 11 BNA OSHC 2145, 1984 CCH OSHD � 26,989 (No. 81-2738,
1984) (the Commission cannot weigh the merits of the policy decisions embodied in
standards nor substitute its personal policy choice for that embodied in the standard).
  We have frequently held that the plain meaning of a standard cannot be twisted to
require of employers more stringent methods of protecting employees than is set forth in
the standard. See , e.g ., Schwarz-Jordan, Inc ., supra , and Lisbon
Contractors, Inc ., 84 OSAHRC , 11 BNA OSHC 1971, 1974, 1984 CCH OSHD � 26,924, p.
35,400 (No. 80-97, 1984).  This same principle precludes the Commission from ignoring
the plain language of the standard to excuse an employer's failure to provide the required
safety device, a landing platform.

The Secretary established all of the elements necessary to prove a violation
of the cited standard.  The ladder on the Moore rig was 55 feet high, but was not
equipped with any landing platforms.  Moore knew of its failure to equip the ladder
with landing platforms.  The Secretary also established the elements of a serious
violation.  As the accident in this case indicates, there was "a substantial
probability that death or serious injury could result" in the event someone fell from
the unguarded ladder.  The violation has therefore been established.  
Accordingly, the citation for serious violation of 29 C.F.R. � 1910.27(d)(2) is
affirmed.  After considering the factors listed in section 17(k) of the Act,
Commissioner Cleary and I assess a penalty of $490.

FOR THE COMMISSION

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED:  AUG 28 1984

CLEARY, Commissioner, Concurring,

I concur in the disposition of this case.  However, I agree with the
Secretary's position that a ladder climbing safety device would have provided alternative
protection to employees, and accordingly, the failure to use this device is the gravamen
of the violation.

The Secretary noted in his brief to the Commission that he considered the
lack of landing platforms to be only a de minimis violation of the standard
so long as the employer used ladder climbing safety devices.  The Secretary's
enforcement policy recognizes that ladder climbing safety devices are an effective
alternative way to protect oil rig workers from fall hazards. Accordingly, the essential
questions of this case are whether the ladder climbing safety device was broken on the day
of the accident and whether Moore knew the device was broken.

Unrebutted testimony established that the ladder climbing safety device was
inoperative on the day of the accident.  The device had broken "at another
job" and Moore had started this job with the broken device.  However, in order
to prove a violation of the Act, the Secretary must show that the employer knew or could
have known, with the exercise of reasonable diligence, of the violation. Prestressed
Systems, Inc ., 81 OSAHRC 43/D5, 9 BNA OSHC 1864, 1981 CCH OSHD � 25,358 (No. 16147,
1981).  Moore contends that it did not know about the violation.  Moore claims
that the ladder climbing safety device had broken some time earlier and no one at the site
had informed the owners of the company.

Knowledge of a violation does not come solely from the direct knowledge of
the employer's owners or officers.  A corporation must function through its employees
and supervisors and the owners of any enterprise must delegate authority in order to
operate the various aspects of their business.  Where, as here, the responsibility
for the functioning of the drilling rig is under the direction of a supervisory official,
it is not necessary in order to impute knowledge to show that any particular officials at
the company headquarters, or the owners of the company personally were aware of a
condition at the drilling site.  As the First Circuit pointed out in Central Soya
de Puerto Rico v. Secretary of Labor , 653 F.2d 28 (1st Cir. 1981),

'Knowledge' by a corporate entity is necessarily a fiction; the corporation
can only be said to 'know' information by imputing to it the knowledge of natural persons
who serve as its agents.

Recognizing this, the courts and the Commission have held that normally an
employer will be held responsible for the actions of its supervisors.  See Mountain
States Telephone and Telegraph Co. v. OSHRC , 623 F.2d 155 (10th Cir. 1980); Western
Waterproofing Co. v. Marshall , 576 F.2d 139 (8th Cir. 1978).  The Secretary
makes out a prima facie case of knowledge by showing that supervisors knew of the
violation.  H.E. Wiese, Inc ., 82 OSAHRC 18/A2, 10 BNA OSHC 1499, 1982 CCH OSHD
� 25,985 (No. 78-204, 1982), aff'd , 705 F.2d 449 (5th Cir. 1983).

In this case, testimony at the hearing established that Mr. Vann and Mr. Wood
knew that the rig did not have a ladder climbing safety device.  Wood was the
operator of the rig; his duties included supervising the employees at the site.  Vann
was a tool pusher and Wood's supervisor.

The administrative law judge found that Vann had "ultimate supervisory
authority over the other employees at the site."  Since Vann and Wood were
supervisors who had the authority to enforce safety rules at the jobsite, their knowledge
should be imputed to their employer.  See Western Massachusetts Electric
Co., 81 OSAHRC 63/B13, 9 BNA OSHC 1940, 1981 CCH OSHD � 25,470 (No. 76-1174, 1981); Paul
Betty, d/b/a Betty Brothers , 81 OSAHRC 18/B11, 9 BNA OSHC 1379, 1981 CCH OSHD �
25,219 (No. 79-4271, 1981).

Since unrebutted evidence established that the ladder climbing safety device
was broken on the day of the accident and that supervisors of Moore knew that the device
was broken, the Secretary has established that the standard was violated.

The Administrative Law Judge decision in this matter is unavailable in this
format.  To obtain a copy of this document, please request one from our Public
Information Office by e-mail ( [email protected] ),
telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).