BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

KENAI DRILLING LIMITED
P. O. Box 2248
Orcutt, CA 93457-2248

 

                              Employer

 

 

Docket No.

00-R3D5-2326

 

DECISION AFTER

RECONSIDERATION

The Occupational Safety and Health Appeals Board (Board), acting pursuant to authority vested in it by the California Labor Code and having granted the petition for reconsideration filed in the above-entitled matter by Kenai Drilling Limited (Employer), makes the following decision after reconsideration.

JURISDICTION

Commencing on May 2, 2000, a representative of the Division of Occupational Safety and Health (the Division) conducted an accident inspection at a place of employment maintained by Employer at Well No. UP879, Wilmington Oil Field, Long Beach, California (the site). On June 13, 2000, the Division issued a citation to Employer alleging a serious violation of section1 6580(c) [defective fall protection equipment], with a proposed civil penalty of $16,200.

Employer filed a timely appeal contesting the existence of the violation, its classification, and the reasonableness of the proposed penalty.

On February 28, 2001, a hearing was held before Dale Raymond, Administrative Law Judge (ALJ) of the Board, in Torrance, California. Craig Beardsley, Attorney, represented Employer. Allan Coie, Staff Attorney, represented the Division.

On March 12, 2001, the ALJ issued a decision denying Employer's appeal and assessing a civil penalty of $16,200.

On April 13, 2001, Employer filed a petition for reconsideration. On May 17, 2001, the Division filed an answer. The Board granted Employer’s petition on June 1, 2001.

EVIDENCE

Nirmal Paul (Paul), Associate Engineer for the Division, conducted an accident investigation at Employer’s oil derrick site. Paul learned of the details of the accident from interviews with Employer’s safety coordinator, crew supervisor (tool pusher), and the injured worker.

Paul testified that, Travis Barman (Barman), tool pusher (crew supervisor) for Employer, learned that a lanyard used on the derrick platform had a "sticky" latch on the end hook.2 When something was put into the hook, like a “D” ring, the latch would not close automatically. It had to be pushed closed manually. The day after Barman learned of the sticky latch, he gave a new replacement lanyard to derrick man Mark Davis (Davis) who then gave it to another derrick man Samuel Hodsdon (Hodsdon).

Hodsdon testified that he was involved in the change-out of the safety lanyard and he got the new lanyard from another derrick man Davis. He heard the complaint about the safety latch and saw it. If the latch were pushed in, it would not shut unless it was manually closed. At the beginning of his shift, Hodsdon was told by Davis to take a new lanyard up to the platform, and bring the old one down at the beginning of his shift. Hodsdon took the new lanyard up and used only it. He forgot to bring the old one down at the end of his shift. At the change of his shift, he told Enrique Moreno (Moreno) that the old lanyard with the sticky latch was on the platform. He told Moreno not to use it and to bring it down at the end of his shift. According to Hodsdon, Moreno always inspected his fall protection equipment as a general practice since his life depended upon it.

Hodsdon testified that there was always one lanyard on the derrick. The lanyard normally stays up on the derrick platform. Davis told Hodsdon that the latch was sticky on the old lanyard and said not to use it. Travis Barman was Hodsdon's tool pusher. Hodsdon did not tell Barman or the other tool pusher that he had left the old lanyard up on the derrick platform. The latch on the old lanyard would be effective if it were closed, but he did not recommend using it because of the extra effort to ensure that it is closed and the possibility of error. Hodsdon stated that Employer enforces its safety program because the work is very dangerous. Employer uses a "stop" system where employees are stopped and alerted when they are performing unsafe acts.

According to Paul who interviewed Moreno, Moreno had the next work shift after Hodsdon. Moreno used the old lanyard for routine work. He used the defective lanyard to move two pipe stands from the side of the platform (where they were stored) out to the middle of the platform. When he swung the pipes out to the middle, he leaned forward. The latch on the hook stuck open, so the D ring on his safety harness slipped out of the hook, causing Moreno to fall. Moreno was able to grab the pipe. He fell approximately 55 feet. The pipes were wet, oily, and slippery, which caused Moreno to come down with a great amount of speed. When he hit the ground, Moreno's heels were badly broken, causing him to be hospitalized 10 days for treatment. According to Paul, Moreno told him that he was using the old lanyard and knew that the new one was there. Paul did not get an indication from Moreno that he knew that he had violated Employer's safety program by using the old lanyard.

Carl Hathaway (Hathaway), Safety Coordinator for Employer, testified that he investigated the accident. Pursuant to his investigation, Hathaway learned that a new replacement lanyard for the lanyard with the sticky latch was given to derrick man Davis who gave it to fellow derrick man Hodsdon. Hodsdon put it in place, but did not bring down the old one. At the crew change, Hodsdon told Moreno that the new lanyard was in place and discussed the sticky latch.

Hathaway described drilling operations as dangerous. His job was to enforce safety. As part of Employer's safety program, an employee must do hands-on training with an experienced employee before doing the job alone. Employer had a proactive safety program that included numerous safety meetings and a safety incentive program. Employer had a program of progressive disciplinary actions for employees who violate safety rules. Employees have been terminated for failing to follow proper fall protection.

After the accident, Hathaway spoke to Moreno. Moreno told Hathaway that he used the old lanyard for convenience. Moreno preferred to tie his lanyard on the right or left side of the derrick platform. With only one lanyard, he had to slide it back and forth, depending on whether pipes were being taken from the right or left side of the platform. On the day of the accident, Moreno tied the new lanyard on the left and the old lanyard on the right so he did not have to slide the new lanyard back and forth.


Hathaway testified that Employer's policy was to have only one lanyard. Employer trains all derrick men that the harness and lanyard are their responsibility. No one else is up there with them. A fall from the derrick is most likely to cause severe damage up to and including death.

Based upon the above, Paul issued a citation for a violation of section 6580(c). He classified the violation as serious because the most likely result of an accident that occurred as a result of the violation is a fall. Death or serious physical injury, such as serious fractures and nerve damage, is the most likely result of falls from about 55 feet.

ISSUE

Did Employer establish the Independent Employee Action Defense regarding a violation of section 6580(c)?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

Employer Failed to Establish the Independent Employee Action Defense For Violation of Section 6580(c)

The ALJ found that Employer failed to establish that the independent employee action defense applied to a violation of section 6580(c) in this case,3 and specifically, that Employer failed to meet its burden of proof regarding the fifth element of the defense.4 Employer maintains that the evidence presented at the administrative hearing does not justify the finding of fact that the independent employee action defense does not apply, and further, that the findings of fact do not support the decision rendered by the ALJ.5


The Independent Employee Action Defense is an affirmative defense to the existence of the violation that applies when an employee acts against the best safety efforts of the employer in causing a violation. The defense recognizes that in spite of an employer complying with safety requirements and promoting safety to employees through an effective and enforced safety program, an employee, by affirmative act or omission, may still disregard the established safety measures. Because it is an affirmative defense, the burden of proving it, to a preponderance of the evidence (Central Coast Pipeline Construction Co., Inc., Cal/OSHA App. 76-1342, Decision After Reconsideration (July 16, 1980)) rests upon the employer. (Ernest W. Hahn, Inc., Cal/OSHA App. 77-576, Decision After Reconsideration (Jan. 25, 1984))

The defense is premised upon an employer’s compliance with non-delegable statutory and regulatory duties. (Pierce Enterprises, Cal/OSHA App. 00-1951, Decision After Reconsideration (Mar. 20, 2002)). We have recently noted that “[t]he defense should not be construed as authorization for employers to delegate to rank and file employees sole responsibility for the safety of the materials and tools to be used in their employment. Patent Construction Systems, Cal/OSHA App. 97-1407 (Aug. 2, 2002).

Employer was cited for violation of section 6580(c) in that it failed to remove from service a defective piece of equipment (a lanyard) following notification that it had a sticky latch on its end hook. While the section requires that each employee must inspect the safety belt and lanyard prior to use, the Division correctly points out that the section further requires that a defective piece of equipment shall be removed from service.

We find that the “removal from service” requirement in the section is the employer’s obligation. Subsection (a) of section 6580 requires that “[a] safety belt and lanyard shall be provided for each employee working on a derrick or mast” at a height more than ten feet (10’) above either the derrick or mast floor, or above the ground level if there is no floor. Moreover, the Act itself requires employers to furnish safety devices and safeguards,6 and further, adopt and use practices, means, methods, operations and processes, which are reasonably adequate to render the employment and place of employment safe. (Labor Code sections 6401, 6403) These statutory and regulatory provisions clearly manifest an intent that the employer is affirmatively responsible for safety devices used by employees, including a duty to remove defective devices from service. It follows from this affirmative obligation that an employer cannot place the sole obligation to remove defective safety equipment on its rank and file employees by delegating such task without effective oversight or use of procedures to insure prompt and effective removal.

Employer maintains that the derrick workmen were trained that inspection of the harness and lanyard are their particular responsibility. Such training is consistent with at least one of the requirements in section 6580(c) but does not absolve Employer from its obligation under the regulation to remove from service defective equipment that is brought to their attention. It would undermine the express provisions of the Act to interpret section 6580(c) as placing the obligation to remove defective safety equipment upon employees in view of the above regulatory and statutory provisions and the facts of this case.

The evidence reveals that Employer intended and took steps to remove the defective lanyard from service. However, our review of Employer’s conduct in effectuating the removal of the lanyard reveals that its conduct in the discharge of its obligation for which it was cited was deficient under the facts of this case so as to preclude application of the independent employee action defense.

Employer, after being notified of the condition of the latch on the hook at the end of the lanyard determined that it must be replaced. The safety coordinator, Barman, provided a new lanyard to Davis who then passed it to Hodsdon with instructions to replace and bring down the old lanyard. Hodsdon at the beginning of his shift took the new lanyard to the derrick but failed to bring the old lanyard down at the end of his shift. Rather, he simply told the next derrick workman, Moreno, to bring it down and that the new one was to be used. Moreno apparently set up both lanyards to be used (one at a time) depending on which side of the derrick platform he was working, in violation of Employer’s policy of having only one lanyard for the single worker working on the derrick. Conspicuously absent is any subsequent effort by Employer to ensure that the defective equipment was in fact immediately and effectively removed from service.

We find that the lack of effort by Employer to effectively remove the defective lanyard from service created both time and opportunity for a worker on the derrick to use a defective lanyard in violation of section 6580(c) and that runs counter to Employer’s obligations provided in Labor Code sections 6401 and 6403. Simply delegating the removal to a rank and file worker without subsequent oversight to ensure prompt removal of the defective lanyard does not constitute an employer’s discharge of its obligation under section 6580(c). The accident occurred during the second shift following Employer’s initial action to remove the lanyard (giving a replacement to derrick man Davis who gave it to Hodsdon with instruction to bring the defective lanyard down from the derrick at the end of that shift). Thus, regardless of whether Moreno violated a safety policy by using more than one lanyard on the derrick, the failure of Employer to promptly remove the lanyard allowed a defective safety device on the derrick for use—properly or improperly, by a worker on the derrick.

We do not believe it is wise to elevate the alleged misconduct of an employee to relieve an Employer from liability for a clear violation of its own affirmative obligation under these circumstances. To allow the independent employee action defense in a case where an employer did not discharge a non-delegable safety obligation for which it was cited would not further objectives of the Act which are to promote compliance with safety requirements and encourage employers to provide effective safety devices and equipment at their places of employment.

Additionally, assuming arguendo that there is no impediment to application of the independent employee action defense based upon Employer’s failure to discharge a non-delegable duty to remove defective equipment from service, we agree with the ALJ’s determination that Employer, at a minimum, failed to establish the fifth element of the defense. The fifth element requires that an employer establish that the employee caused a safety infraction, which he or she knew was contra to the employer’s safety requirements.

Employer maintains that the “knowledge” requirement was satisfied based upon Hodsdon’s testimony regarding statements he made to Moreno regarding the old lanyard having a sticky latch and that he told Moreno not to use it and to bring it down at the end of his shift. Employer argues that such “notice” to Moreno establishes Moreno’s knowledge that use of the old lanyard would cause a safety infraction.

However, the ALJ considered the testimony of Hodsdon, and in view of Employer’s position (stated in its written appeal and argued at the hearing) that it did not consider the hook to be defective because the latch could be forced closed, found that even if Moreno knew that he was not supposed to use defective equipment, he may have been “led to believe that use of the old lanyard was not a safety infraction.” Stated another way, notifying Moreno of the sticky latch and indicating that he should not use it does not establish that use of the subject lanyard would constitute a safety infraction. This inference is more evident where, as here, Employer failed to take immediate and effective steps to remove what Employer only now concedes was defective safety equipment.7 Allowing the lanyard to remain on the derrick for at least one complete and one partial work shift, with Employer’s full knowledge of its condition, may have led Moreno to believe that Employer did not regard the sticky latch of the end hook as unsafe.

Hathaway testified that Moreno was still employed by Employer. Employer’s weaker evidence of the employee’s “knowledge” was viewed by the ALJ with distrust since it was within the power of a party to produce stronger and more satisfactory evidence by calling Moreno to testify. (See Evidence Code §412)

Based upon the testimony that the ALJ heard, the demeanor of the witnesses she observed, and the weight she gave to the witness testimony, we do not find a basis for rejecting the findings of the ALJ on the grounds that there exists contrary evidence of considerable substantiality. (Lamb v. Workmen’s Compensation Appeals Board (1974) 11 Cal.3d 274).

Based upon the above, Employer failed to establish applicability of the independent employee action defense to the violation of section 6580(c) in this case.

DECISION AFTER RECONSIDERATION

The Board affirms the ALJ’s Decision denying Employer’s appeal and assesses a civil penalty of $16,200.

MARCY V. SAUNDERS, Member
GERALD P. O’HARA, Member

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: September 23, 2002

1 Unless otherwise specified, all section references are to Title 8, California Code of Regulations.
2 A tool pusher is a first line supervisor. A tool pusher is on the site 24 hours a day. He is responsible for everything that goes on at the site. A driller is in charge of the crew. The crew works for the driller. A derrick man is part of a crew that works for a driller.
3 Section 6580(c) is included in Article 22 - Safety Belts and Lanyards, of the Petroleum Safety Orders – Drilling and Production. The section provides: “Each employee shall use a safety belt in good condition and shall inspect the safety belt and lanyard for defects prior to use. Defective equipment shall be removed from service.”
4 The employer must prove each of the following elements by a preponderance of the evidence to establish this defense and thereby avoid liability for the violation: 1) The employee was experienced in the job being performed; 2) The employer has a well-devised safety program which includes training employees in matters of safety respective to their particular job assignments; 3) The employer effectively enforces the safety program; 4) The employer has a policy which it enforces of sanctions against employees who violate the safety program; 5) the employee caused a safety infraction which he or she knew was contra to the employer’s safety requirement. (Mercury Service, Inc., Cal/OSHA App. 77-1133, Decision after Reconsideration (October 16, 1980).)
5 Employer’s assertion that the findings of fact do not support the decision rendered by the ALJ is read to pertain to Employer’s argument regarding the applicability of the Independent Employee Action Defense raised by Employer as an affirmative defense to the violation of section 6580(c). No other aspect of the ALJ decision, e.g., the existence of the violation, its classification, or the penalty amount is addressed in the petition for reconsideration. Any objection or issue not raised in the petition is deemed waived by the petitioner. (§390)
6 Labor Code section 6306 states: “’safety device’ and ‘safeguard’ shall be given a broad interpretation so as to include any practicable method of mitigating or preventing a specific danger, ....” In this case, the safety order prescribes the use of safety belts and lanyards to prevent employees working on derricks from falling from heights above 10 feet.
7 Also, on cross-examination, Hodsdon testified that the latch would be effective if it was closed but he did not recommend using it because of the extra effort to ensure it was closed and the possibility of error.