Collins Well Service Company

Plain-English summary

OSHA investigated Collins Well Service after an employee suffered a fatal fall while riding an oil-derrick elevator without a tied-off safety belt. The judge found that this was a recognized hazard likely to cause death or serious harm, affirmed a general duty clause violation, and assessed a $480 penalty. Commissioner Cleary would have affirmed because the evidence supported the judge's conclusions about the hazard and the company's safety program. Chairman Buckley would have vacated because the Secretary did not prove that Collins lacked and failed to enforce a rule requiring safety belts on the elevator. The Commissioners affirmed the judge's decision to resolve their deadlock, but gave it only the precedential value of an unreviewed judge's decision.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1)
• Outcome: General duty clause citation and $480 penalty affirmed without Commission precedential value on the disputed merits.
• Key point: The equal division left the judge's ruling in place but produced no binding Commission holding on whether the Secretary proved inadequate safety rules.

Full text (OSHRC public release)

Docket No. 81-2617

SECRETARY OF LABOR,

Complainant,

v.

COLLINS WELL SERVICE COMPANY,

Respondent.

OSHRC Docket No. 81-2617

DECISION

Before:  BUCKLEY, Chairman, and CLEARY, Commissioner.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission
pursuant to former Chairman Rowland's direction for review issued 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.  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).

At issue in this case is whether Administrative Law Judge Ramon M. Child
erred in concluding that Collins Well Service Company ("Collins") violated
section 5(a)(1) [[1]] of the Act by allowing its employees to ride the elevator on an oil
derrick without wearing tied-off safety belts.

The only witness who testified at the hearing was the compliance officer from
the Occupational Safety and Health Administration who investigated an accident in which a
Collins employee suffered a fatal fall.  The compliance officer testified that he was
told by Gary Whiteside, an employee of Collins, that Whiteside had observed the deceased
employee riding the elevator without wearing a safety belt.  The compliance officer
testified that it was apparently a common practice among Collins' employees to ride the
elevators without wearing a tied-off safety belt and that he received this information
from Whiteside.  A written statement signed by Whiteside, introduced into evidence by
the Secretary, said that employees on occasion rode the elevators without safety belts.
Whiteside had worked for Collins for one month.  The compliance officer also
testified that he had spoken with Nathan Brown, Collins' safety director, during the
inspection.  On cross-examination the following testimony was elicited from the
compliance officer:

Q. In your talking with the people at the site or at the company, as a matter
of fact Mr. Brown told you that there was indeed a safety belt on the rig, was there not?

A. Yes, there was a safety belt.

Q. He also told you that it was the company safety policy not to allow what happened that
caused the accident, riding the blocks unprotected?

A. (No response.)

Q. Is that correct?

A. He didn't say that to me. I don't recall that he said that.

Q. You didn't cover whether or not this was a violation of company safety policy?

A. He didn't have a safety policy as I remember.  He was in the process of writing
one.

Judge Child concluded that riding the elevator without wearing a tied-off safety belt was
a recognized hazard in the oil well servicing industry based on the American Petroleum
Institute's ("API") RP 54: "Recommended Practices for Occupational Safety
and Health for Oil and Gas Well Drilling and Servicing Operations," an exhibit in the
case.  Moreover, he determined that the hazard was likely to cause serious physical
harm or death and that Collins could have abated the hazard by establishing and enforcing
a work rule that requires employees riding the elevator to wear a tied-off safety belt or
by requiring employees to ascend the derrick by way of the ladder attached to it using a
climbing assist.  The judge ruled that Collins had knowledge of the allegedly
violative conduct and the employee's riding of the elevator without a tied-off safety belt
was foreseeable and not unpreventable employee misconduct.  He therefore ruled that
there was a violation of section 5(a)(1) and assessed a penalty of $480.

Commissioner Cleary would adopt the judge's decision and thus affirm the
citation.  He agrees that riding the elevator without wearing a tied-off safety belt
is a recognized hazard in the oil well servicing industry and is likely to cause death or
serious physical harm.  In his opinion, this case concerns whether Collins took
adequate steps to prevent such conduct by implementing an adequate safety program.  
See General Dynamics Corp., Quincy Shipbuilding Division v. OSHRC, 599 F.2d 453 (1st Cir.
1979).

Commissioner Cleary notes that, with respect to the compliance officer's
reference to what Whiteside told him, hearsay evidence is admissible in Commission
proceedings and can be used as probative evidence, while the weight assigned to it depends
on its reliability.  Power Systems Division, United Technologies Corp., 81 OSAHRC
40/C13, 9 BNA OSHC 1813, 1981 CCH OSHD � 25,350 (No. 79-1552, 1981).  Commissioner
Cleary concludes that, in this case, there is no reason to doubt the truth of the
statement Whiteside made to the compliance officer or that the compliance officer
accurately related the statement in his testimony. The judge determined that the
compliance officer was credible, and Whiteside had no ostensible reason to lie to the
compliance officer.  Commissioner Cleary also notes that Collins had every
opportunity to call witnesses in its behalf but chose not to do so.  See Astra
Pharmaceutical Products, Inc. v. OSHRC, 681 F.2d 69 (1st Cir. 1982) (less evidence needed
when unrebutted by opponent with full possession of the facts than in a case where there
is contrary evidence).

Concerning the compliance officer's statement that Brown had told him that
Collins did not have a safety program, Commissioner Cleary determines that it is not
hearsay and is admissible under Rule 801(d)(2)(D) of the Federal Rules of Evidence.  
Brown was Collins' safety director, so his statement was within the scope of his
agency.  Commissioner Cleary concludes that the judge was justified in relying on
this unrebutted evidence.

Chairman Buckley would reverse the judge and vacate the citation.  He
agrees with the judge that riding the elevator without a safety belt is a recognized
hazard in view of the evidence of the API's recommended practice RP 54.  This case is
thus distinguishable from H-30, Inc. v. Marshall, 597 F.2d 234 (10th Cir. 1979), in which
the Tenth Circuit vacated a similar citation for lack of evidence of industry recognition
of the alleged hazard.  Chairman Buckley also agrees that the hazard is likely to
cause serious physical harm or death.  However, he concludes that the Secretary's
evidence was otherwise insufficient to make a prima facie showing of a violation.  In
addition to establishing that an alleged hazard is likely to cause death or serious
physical harm and is recognized to be a hazard, the Secretary has the burden of producing
evidence that the cited employer's safety practices failed to free the workplace of the
hazard to the extent an accident was preventable.  See, e.g., Baroid Division of NL
Industries, Inc. v. OSHRC, 660 F.2d 439 (10th Cir. 1981); National Realty and Construction
Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973). Thus, in this case, the Secretary would have
to prove that Collins did not have an effectively implemented work rule requiring its
employees to use tied-off safety belts while riding the elevator of an oil derrick.  
In Chairman Buckley's view, the Secretary failed to demonstrate this.

The compliance officer had no personal knowledge of Collins' safety program,
but testified only as to what he was told by one of Collins' supervisors, the safety
director, and by one of its employees, the crew member working at the well site.  The
compliance officer's account of his conversations with these two individuals establishes
that Collins provided safety belts to its workers at this site.  According to the
compliance officer, he was told that a safety belt was maintained on the platform.  
He did not or could not testify whether other belts were provided or available.   The
compliance officer did testify that industry custom was to have other safety belts at this
worksite in addition to that on the platform.  No evidence was introduced even
suggesting that Collins deviated from industry practice.[[2]]

Nor did the Secretary prove that Collins did not have and enforce a workrule requiring
employees to wear a safety belt while riding the elevator or that the safety director or
any Collins supervisor was aware of any failure of employees to use safety belts while
riding the elevator.  See, e.g., National Realty, 489 F.2d at 1267, n. 40 (Secretary
has burden of proving allegation that employer failed to issue appropriate instructions).
  The compliance officer testified that, as he recalled, there was no safety program
and that one was being written.  But the compliance officer did not specify whether
the safety director told him this, and the testimony indicates that he was unsure of his
memory.  Moreover, the testimony is vague.  The compliance officer said there
was no program, but seems to have meant that there was no written program.  He did
not specify that there was no rule in existence at all, such as one communicated orally to
the employees, and the Secretary introduced no evidence indicating the value of written
instructions relative to oral instructions.  Id.

In contrast to the testimony on which the Secretary relied, the compliance
officer testified that Collins had monthly safety meetings, posters, and safety manuals
and rated the safety program as average.  Although one safety manual did not include
a rule about safety belts on the elevators, the compliance officer did not know if such a
rule was included in a second safety manual, the Associated Oil Servicing Contractors'
Safety Manual, which he acknowledged was provided to employees.  The compliance
officer never reviewed this manual.  Finally, the compliance officer's testimony as
to what employee Whiteside told him and the written statement signed by Whiteside
indicates that employees on "occasion" rode elevators of derricks without safety
belts, but there was no testimony showing the frequency of these occurrences or that
Collins permitted, condoned, or was even aware of the practice.

These gaps in the record could have been cured by the testimony of someone
familiar with Collins' practices.  The record is devoid of such testimony.  
"Having the burden of proof, the Secretary must be charged with these evidentiary
deficiencies." National Realty, 489 F.2d at 1267.  The Secretary failed to
establish in this case that Collins did not have a work rule prohibiting the riding of
elevators without a safety belt and thus did not prove that Collins failed to free its
workplace of a recognized hazard.[[3]]

The two Commission members are divided on whether the judge erred in his disposition in
this case.[[4]]  To resolve this impasse and to permit this case to proceed to a
final resolution, the members have agreed to affirm the judge's decision but accord it the
precedential value of an unreviewed judge's decision.  See Life Science Products Co.,
77 OSAHRC 200/A2, 6 BNA OSHC 1053, 1977-78 CCH OSHD � 22,313 (No. 14910, 1977), aff'd sub
nom.  Moore v. OSHRC, 591 F.2d 991 (4th Cir. 1979).

FOR THE COMMISSION

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED:  OCT 19 1984

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).

FOOTNOTES:

[[1]] Section 5(a)(1) provides:

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

[[2]] Contrary to Collins' claim, the compliance officer's testimony regarding what safety
director Brown told him was not hearsay. Rule 801(d)(2)(D) of the Federal Rules of
Evidence excludes from the category of hearsay "a statement by his [a
party-opponent's] agent or servant concerning a matter within the scope of his agency or
employment, made during the existence of the relationship." E.g., Power Systems
Division,United Technologies Corp., supra; H-30, Inc., 77 OSAHRC 156/A2, 5 BNA OSHC 1715,
1977-78 CCH OSHD � 22,050 (No. 76-752, 1977), rev'd on other grounds, 597 F.2d 234 (10th
Cir. 1979). The most that can be gleaned from the compliance officer's testimony
concerning the number of safety belts is that he was not told by the safety director that
there were other belts on the worksite.  However, the compliance officer did not
clarify whether he actually asked the safety director about this or whether he learned
from the safety director that there were not any other belts.  Thus, the only record
evidence establishes that at least one safety belt was provided and that probably others
were provided as well.

[[3]] Respondent objects to the testimony of Whiteside as hearsay.  
Chairman Buckley would agree that the employee's statements were hearsay since these
statements do not qualify as admissions of a party under Fed. R. Evid. 801(d)(2)(D).
  The characterization of evidence as hearsay or non-hearsay is not the sole
determinant of admissibility.  Hearsay is admissible and may be given weight in
administrative proceedings provided there is some indicia of reliability.  Under Rule
801(d)(2)(D) the statements of an agent within the scope of employment are deemed to have
the requisite degree of reliability, since the statement is made against interest.  
In the OSHA context, however, an employee statement made about the employer's worksite is
not made against interest.  Indeed, in proceedings before the Commission the
interests of the employee ostensibly are represented by the Secretary with the employer as
adversary.  See sections 8(a), (e), and (f) of the Act, 29 U.S.C. �� 657(a), (e),
and (f) (inspections and the opportunity for employees to consult with and advise the
Secretary about matters of safety and health in the workplace); section 9(a) of the Act,
29 U.S.C. � 658(a) (citations).  The adversary proceedings under the Act cannot be
presumed to sufficiently provide the "guarantee of trustworthiness" for the
statements of employees that can be presumed to exist in the usual civil proceedings with
which the Federal Rules of Evidence are concerned.  See Fed. R. Evid 801 advisory
committee note.  Thus, the statements in this case by employee Whiteside are
hearsay.  Cf. United States v. Kampiles, 609 F.2d 1233, 1246 (7th Cir. 1979)
(statements not a product of the adversary process).  The judge did not err, however,
in admitting this evidence.  The evidence simply does not establish a violation.

[[4]] As established by the Act, the Commission is composed of three members.
  Section 12(a), 29 U.S.C. � 661(a).  Under section 12(f) of the Act, 29 U.S.C.
� 661(e), official action can be taken by the Commission with the affirmative vote of at
least two members.  Because of a vacancy, the Commission is currently composed of two
members.