FRY'S TANK SERVICE INC.; CITIES SERVICE OIL COMPANY
OSHRC Docket Nos. 4447; 4648
Occupational Safety and Health Review Commission
August 13, 1976
[*1]
Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
T. A. Housh, Jr., Regional Solicitor
Robert R. Reis, CITIES SERVICE OIL COMPANY, for the employer
Clifford R. Holland, Jr., for the employer
Mr. Anthony Mazzocchi, Director, Mr. Stephen Wodka, Legislative Asst., Citizenship-Legislative Dept., OIL, CHEMICAL & ATOMIC WORKERS, International Union, for the employees
A. E. Lawson, UNITED STEELWORKERS OF AMERICA AFL-CIO, for the employees
Daniel K. Mayers and Robert R. Morris, American Iron & Steel Institute, for the employees
OPINIONBY: BARNAKO
OPINION:
DECISION
BARNAKO, Chairman:
A July 15, 1974 decision of Review Commission Judge Vernon Riehl is before this Commission for review pursuant to 29 U.S.C. § 661(i). Judge Riehl affirmed the citations alleging violations of § 5(a)(1) n1 of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq., hereinafter "the Act") against both Respondents (Fry's and Cities). He also assessed a penalty of $600 against Cities and $500 against Fry's. We have reviewed the entire record, including the briefs filed on review by Cities and by the Oil, Chemical and Atomic Workers International Union, AFL-CIO, and its Local 5-474 (OCAW) [*2] on behalf of Cities' employees. n2 For the reasons which follow, we adopt the Judge's decision with respect to Fry's but vacate the citation issued to Cities.
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n1 This section, 29 U.S.C. § 654(a)(1), states:
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.
n2 Complainant has not filed a brief on review, but has stated that he relies on the Judge's report. Fry's has neither filed a brief nor otherwise indicated any disagreement with the Judge's recommendations.
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The facts relevant to both citations concern an accident which occurred on an oilfield, described as the Stoltenberg Lease, operated by Cities in Kansas. Located on the field was a free water knockout tank (hereinafter "the tank") in which crude oil was placed for the purpose of separating water from the oil before the oil was delivered to a pipeline. The tank was in the shape of a cylinder, [*3] seven feet in diameter and twenty-two feet long. It was placed horizontally on the ground. In operation, the tank contained a number of anodes, consisting basically of fifty pound blocks of magnesium. Their function was to neutralize impurities in the crude oil to prevent the tank from corroding. n3
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n3 The field contained a number of other tanks used for the same purpose, but none of the others had the same configuration as the tank involved in this case. In particular, this was the only tank for which entry into the tank was necessary in order to replace the anodes.
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It was necessary to periodically clean the tank and replace the anodes. Cities did not have its own employees do this type of work on the Stoltenberg Lease, but instead hired independent contractors. On this occasion, it arranged with Fry's to clear the tank and replace the anodes. The arrangements were made with Fry's employee Thach. At that time, Thach was Fry's only employee in addition to Mr. and Mrs. Swalley, it owners and officers. Fry's [*4] had never before done any work for Cities on the Stoltenberg Lease. Prior to the time he had gone to work for Fry's, however, Thach had his own business in which he had cleaned tanks, including the one involved here, for Cities. The tank was cleaned about every two years. Since the tank had been placed in service, it had been cleaned five or six times, and always by Thach. At the time of the accident, Thach had worked for Fry's for about two years, and during this time he had never before worked on this particular tank.
When Thach had been self-employed, he had also done other work for Cities which required entry into a type of tank known as a stock tank. In doing such work, he would only enter the tanks while wearing a safety belt, and with somebody outside the tank holding a safety line attached to the belt.
On the day of the accident, Thach and a crew of four Cities employees went to the tank. The Cities employees were there to assist Thach in removing the hatch plate covering the tank, and were also to clean a certain valve on the tank. They also took the new anodes to the site. After the hatch plate was removed and the tank was cleaned, Thach prepared to install the [*5] new anodes. He stood on a ladder leading into the tank. and the Cities employees handed the first anode to him. As he entered the tank, Thach collapsed and fell to the bottom. A series of rescue attempts resulted in the death of Thach and three of Cities' employees. It was later determined that they died as a result of the inhalation of hydrogen sulfide gas.
The oil produced on the Stoltenberg Lease was known as "sour crude," meaning that it contained a detectable amount of dissolved hydrogen sulfide. When exposed to the air, the hydrogen sulfide would be released in gaseous form. Hydrogen sulfide gas is highly toxic, and, in sufficient concentration, can cause almost instant death.
Both Fry's and Cities were aware of the hazard that hydrogen sulfide presented in oil fields producing sour crude. Additionally, at least Cities was aware of other hazards that could be encountered by entering the tank, including hydrocarbon vapors and oxygen deficiency. Because it knew of these hazards, Cities instructed its employees that they were not to enter tanks on the Stoltenberg Lease. Cities also made tank entry by its employees unnecessary by hiring independent contractors to do all [*6] work requiring entry into tanks. In other locations, where its employees were required to enter confined spaces, it was Cities' policy to take precautions such as testing the atmosphere before entry, using breathing equipment where necessary, using safety lines, and having at least one worker outside the vessel in constant communication with the workers inside. There is no indication in the record that the prohibition against entering tanks on the Stoltenberg Lease was ever breached except on this occasion.
Fry's also had a policy against employees entering tanks. Mr. Swalley, Fry's President, testified that he instructed his employees not to enter tanks, and had so instructed Thach. Swalley did not however, know that part of this particular job involved replacing the anodes and that this required entry into the tank. On the evening before the accident, Thach informed Swalley that Cities had contacted him about performing this work. Swalley himself had had no contact with Cities, but approved of Thach accepting the job. Thach had at least as much experience as Swalley working in oil fields, and it was common for Thach to accept and perform jobs about which Swalley knew nothing. [*7] Swalley stated that "at the time the job was done I didn't know anything about it, which is common."
The citations alleged that both Respondents violated § 5(a)(1) due to the exposure of their employees to a confined space incapable of supporting human life. There is no question on this record that the employees were so exposed, and that both employers recognized the hazards involved. Thus, the element of hazard recognition necessary to find a § 5(a)(1) violation is present. Brennan v. OSHRC (Vy Lactos Laboratories, Inc.) 494 F.2d 460 (8th Cir. 1974). Additionally, the record establishes that feasible means existed to protect against the hazard, such as testing the atmosphere in the tank before entry, and the use of breathing equipment and safety lines. National Realty & Construction Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973). Both employers, however, claimed that, by prohibiting their employees from entering tanks, they had fulfilled the duty placed on them by the Act with respect to the hazard, and that they should therefore not be found liable.
With respect to Fry's we agree with the Judge's finding that a violation occurred. n4 An employer's duties under the [*8] Act runs to experienced as well as inexperienced employees. See National Realty & Construction Co. v. OSHRC, supra. All employees must receive supervision concerning the hazards inherent in their employment. Butler Lime and Cement Co., 520 F.2d 1011 (7th Cir. 1975). The experience of an employee is, however, relevant in determining the degree of supervision necessary, and close supervision of experienced employees is not required. Breenan v. OSHRC (Hanovia Lamp Division), 502 F.2d 946 (3rd Cir. 1974). But even where an experienced employee is involved, an employer does not fulfill its duty if it fails to make any attempt to ascertain the hazards to which the employee may be exposed. Getty Oil Co., 16 OSAHRC 108, BNA 2 OSHC 1687, CCH OSHD para. 19,437 (1975), affirmed, 530 F.2d 1143 (5th Cir., April 23, 1976). Even though Swalley instructed Thach not to enter tanks, without knowing whether the work Thach was doing required tank entry or whether his instruction was being followed, such an instruction cannot be considered a sufficient precaution against the extreme hazard involved in this case. Butler Lime and Cement Co., supra.
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n4 As noted in footnote 2, supra, Fry's has not taken exception to the Judge's report. Normally, we will not decide an issue where the party aggreived by the Judge's report at no time indicates disagreement with Judge's recommended disposition. Abbott-Sommer, Inc., Docket No. 9507, BNA 3 OSHC 2032, CCH OSHD para. 20,428 (Feb. 17, 1976).
In this case, however, the exposure of Cities' employees to the hazard occurred only because they attempted to rescue Fry's employee. As will be discussed infra, in determining whether the exposure of Cities' employees was foreseeable, one relevant factor is whether the need for the rescue attempt resulted from a violation of the Act by Fry's. It is therefore necessary to consider the merits as to Fry's in order to decide the case with respect to Cities.
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Cities also had a policy against its employees entering tanks on the Stoltenberg Lease. Even though its employees did enter the tank on this occasion, Complainant and OCAW do not argue that its basic policy was inadequate. Instead, they argue that [*10] despite this policy, Cities should have foreseen the possibility that its employees might enter the tank in a rescue attempt, and should have provided for this eventuality. Thus, the gravamen of the charge n4a against Cities is that it should have had rescue equipment, such as breathing equipment and lifelines, present at the site so that a rescue could have been conducted without endangering its employees, Judge Riehl found that, since Cities knew that somebody was to enter the tank, n5 the possibility that its employees might also enter the tank in order to effect a rescue was also foreseeable, and that rescue equipment should therefore have been provided. n6 In reaching his conclusion, the Judge relied on the Commission decision in Aro, Inc., 5 OSAHRC 914, BNA 1 OSHC 1453, CCH OSHD para. 17,084 (1973).
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n4a In partial dissent, Commissioner Cleary rephrases the issue to one that has not been argued by any party in this case. He starts with the premise that Fry's worked "hand-in-hand" with Cities such that they merged to become "a single entity." He then concludes that Fry's or its employee Thach are Cities' responsibility as if they are employees of Cities. In this regard he cites precedents which in the main deal with violations under the special duty clause (29 U.S.C. 554(a)(2)) whereas here the violation is alleged under the general duty clause (29 U.S.C. 554(a)(1)). The rephrased issue therefore raises new questions which have not been advanced or argued in this case. As my colleague has previously indicated OSHRC should not rest its decisions on new grounds without first affording the parties an opportunity to address the new issues. See: D. Federico Company, Inc., Dkt. 4395, BNA 3 OSHC 1970, CCH OSHD para. 20,422 (R.C. 1976), pet. for review filed No. 76-1084, (1st Cir., February 26, 1976).
To illustrate, the general duty clause limits an employer's duty to "his employees." Thus the question of whether Fry's is truly an independent contractor is of great importance since if it is Cities Service is not by the very terms of the Act responsible for the safety of Fry's employees.
n5 Cities argues that the Judge erred in finding that its supervisory personnel knew that somebody was going to enter the tank. The record, however, fully supports the Judge's finding.
n6 The Judge also found that the danger of tripping and falling into a tank when employees are working around the top is a recognized hazard. This finding was based on a single question asked by the Judge himself to a witness whose expertise was in geology and geochemistry. No issue concerning the possibility of falling into the tank was raised by the pleadings or tried by the parties. The only work that Cities' employees were required to do on top of the tank consisted of loosening the bolts on the hatch cover, during which the opening was covered, and repairing a valve which was located in an area separated from the opening by a guardrail.
[*11]
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In Aro, an employee entered an enclosed vessel in which the atmosphere had not been tested for oxygen sufficiency. The employee was overcome due to a lack of oxygen, and other employees tried to rescue him even though no rescue equipment was available. The Commission held that the failure to test the atmosphere before the first employee entered was a violation of § 5(a)(1). The Commission also held that, under the circumstances, the possibility of a rescue attempt was reasonably foreseeable, and that the failure to furnish rescue equipment was a separate § 5(a)(1) violation. The only distinction between this case and Aro is that, in this case, the employer charged with failing to furnish rescue equipment is not the same one that committed the violation which led to the necessity for the rescue attempt.
Cities argues that the distinction is crucial. As Cities states in its brief:
In any oil field operation, there is likely to be a situation in which an independent contractor is on a Cities' Lease performing certain contract work, Perhaps, he is working dangerously close to high-voltage [*12] electric lines running across the Lease and he negligently comes in contact with such wires. Or perhaps, he is working near some flammable substance which he accidentally or negligently sets on fire, thereby endangering his own life. Does the Act require Cities to have rescue equipment available to retrieve from danger any independent contractor who may have made an error in judgment or otherwise placed himself in a hazardous position?
A necessary element of a § 5(a)(1) violation is that the employer must have been able to foresee the hazard to its employees. Brennan v. OSHRC (Republic Creosoting Co.), 501 F.2d 1196 (7th Cir. 1974). The Judge found that, because Cities knew that somebody was going to enter the tank, the possibility that Cities' employees might enter the tank in a rescue attempt was reasonably foreseeable. But the need for a rescue arose, not simply because Thach entered the tank, but because he entered the tank under conditions which constituted a § 5(a)(1) violation on Fry's part. Thus, in order to determine whether the entry of Cities' employees was reasonably foreseeable, we must inquire whether Cities could reasonably have foreseen that Fry's would perform [*13] the work in such an unsafe manner as to constitute a violation of the Act and give rise to the need for a rescue attempt. n7
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n7 In Aro, Inc., supra, the employer should have anticipated the rescue attempt because it was chargeable with knowledge of its own violation which led to the need for one of its own employees to be rescued. That is not, however, the case here.
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Normally, when an employer hires an independent contractor to perform certain work, it relies on the contractor's expertise to perform the work correctly. Generally, such an arrangement will be entered into because the contractor has greater expertise than the hiring employer in performing the work involved. We agree with Cities that it would constitute an unreasonable burden for a employer to be required to anticipate every violation an independent contractor might commit which results in a rescue attempt by its own employees. In general, the hiring employer is only responsible when it has reason to foresee that the independent contractor might [*14] perform the work in an unsafe manner.
The record does not establish that Cities should reasonably have foreseen the violation committed by Fry's. Cities knew that the tank cleaning the anode replacement was to be performed by an experienced worker who had successfully performed the work a number of times in the past. In some of the work he had performed for Cities, Thach had used protective equipment which, had he used it on this occasion, would have negated the necessity for Cities' employees to enter the tank in a rescue attempt. Thus, Cities had no reason to foresee that Thach would perform the work in a manner such that employees of Cities would be endangered in attempting to rescue him.
The facts of this case are certainly tragic. In retrospect, it is possible to determine how any accident could have been prevented. But in order to find a violation, it must be shown that exposure of employees to hazard was reasonably foreseeable prior to the time such exposure occurred. Otherwise, an accident is not preventable by the employer, and the purposes of the Act are not served by finding the employer in violation. National Realty & Construction Co. v. OSHRC, supra; Ocean [*15] Electric Corp., Docket No. 5811, BNA 3 OSHC 1705, CCH OSHD para. 20,167 (1975).
Accordingly, in Docket No. 4447, the citation and notification of proposed penalty issued to Fry's are affirmed. In Docket No. 4648, the citation and notification of proposed penalty issued to Cities are vacated. It is so ORDERED.
CONCURBY: MORAN (In Part); CLEARY (In Part)
DISSENTBY: MORAN (In Part); CLEARY (In Part)
DISSENT:
MORAN, Commissioner, Concurring in Part, Dissenting in Part:
I do not think a violation has been established against either of these respondents.
In the case against Fry's Tank Service, Inc., the evidence fails to establish that the employer possessed the requisite knowledge of the alleged violative conditions - an essential element of proof for any violation of the Act. Although I agree with the lead opinion's disposition of the charge against the other respondent, Cities Service Oil Company, I consider it necessary to expound at some length on that charge because the facts are somewhat different from those reported by Chairman Barnako and because the Judge's affirmance of that charge was based on several grounds which are not fully explored in the lead opinion. Additionally, there are some fundamental [*16] differences between my views and those of Chairman Barnako concerning what the complainant is required to prove in a prosecution under the Act.
The basis for the charge against each employer was exposure of its employees "to an atmosphere in a confined space incapable of supporting human life" in the performance of work "on a free water knock out tank at a location . . . known as the Stoltenberg lease."
The evidence establishes that a Fry's employee, Jim Thach, and three employees of Cities died as the result of hydrogen sulfide inhalation while working on one of Cities' free water knock out tanks. Fry's had been engaged by Cities to clean the tank and install new anodes therein. Four Cities' employees were assigned the task of repairing a back pressure valve while the tank was being cleaned. Neither the cleaning of the tank nor the repair of the valve required the workers to enter the tank.
When the cleaning of the tank was completed, Thach descended on a ladder into the tank to install an anode. Thereafter, he passed out on the ladder with his body partially above the top of the tank. Subsequent rescue efforts ultimately resulted in the four deaths inside the tank.
In addition [*17] to repairing the valve, Cities' employees assisted Thach with his job. They did so by removing the hatch plate from the top of the tank, securing a hose that entered the tank through the hatch, preparing the anodes for installation, placing the ladder in the tank, and handing an anode to Thach.
Thach had been employed by Fry's for slightly more than two years. He had previously been an independent contractor in the tank cleaning business for 18 to 20 years. In that capacity, he had cleaned this tank and installed anodes therein on five or six prior occasions at two-year intervals. However, this was the first time he had worked at the Stoltenberg lease as a Fry's employee.
Fry's is regularly engaged in the business of tank washing and saltwater hauling from oil storage tanks. It is not in the business of installing anodes. Fry's president, who also serves as a truck driver, had not installed an anode during the 25 years he had been in the business and did not know that Thach had previously installed anodes for Cities. During the preceding eight years, Fry's had not billed any customer for installation of any anodes. At the time of the accident, Thach was the only other [*18] employee of Fry's who performed tank services. The president routinely advised all employees that they were not to enter any tanks, and Thach had been given this same instruction.
Knowledge of the existence of a violation, either actual or constructive, is an essential element of any violation of the Act. Horne Plumbing and Heating Company v. OSAHRC, 528 F.2d 564 (5th Cir. 1976); Brennan v. OSAHRC and Raymond Hendrix, d/b/a Alsea Lumber Company, 511 F.2d 1139 (9th Cir. 1975); Secretary v. Mountain States Telephone & Telegraph Co., 2 OSAHRC 168 (1973). Therefore, the complainant's case must establish that Fry's knew or reasonably could be presumed to know of the existence of the condition or practice upon which this violation is based.
Thach's death occurred as the result of his disobedience of the express orders of Fry's president. Although Fry's president testified that he could not deny having previously stated that Thach had told him that he was going to change the anodes in the tank, the evidence does not establish that he was in fact told this by Thach. Even if he was, however, there is no evidence whatsoever which shows that the president knew that Thach would [*19] enter the tank for this purpose. Furthermore, as the Judge noted, this tank was different from others in the area as it required entry from the top to replace the anodes. It was not necessary to enter the other tanks to replace their anodes as that was accomplished by pushing them into a hatch on the bottom side of the tank. Under these circumstances, the evidence is insufficient to establish that Fry's possessed the requisite knowledge of the violation. See Secretary v. Arnold Hansen, d/b/a Hansen Brothers Logging, 1 OSAHRC 869 (1972).
The Act requires that "each employee shall comply with . . . orders issued pursuant" to the Act. 29 U.S.C. § 654(b). Obviously, Congress did not contemplate that an employer be held responsible where a violation results from an employee's willful misconduct in disobeying the employer's direct orders not to do a certain act. This is particularly true in a case such as this where the employer's only endangered employee is the one who violates the order. A contrary holding would make insurers of employers, something that has previously been held not to be intended by the Act. See, e.g. Horne Plumbing and Heating Company [*20] v. OSAHRC, supra; Secretary v. Standard Glass Company, Inc., 1 OSAHRC 594 (1972).
It was reasonable for Fry's president to expect that Thach would comply with this order. See Secretary v. High Voltage Systems, Inc., 7 OSAHRC 282 (1974); Secretary v. Hart-McCowan Foundation Company, Inc., 6 OSAHRC 558 (1974). Thach had worked with oil tanks for approximately 20 years and could be expected to know of the dangers inherent in entering a tank. Fry's did not perform work which required tank entry, and its president had no reason to believe that Thach would disobey his orders.
I now turn to the case against Cities. At the outset, it is appropriate to discuss some general propositions of law for the purpose of placing that case in the proper perspective.
As alluded to in the foregoing discussion concerning Fry's, § 654(a)(1) does not impose strict liability on employers. National Realty and Construction Company, Inc. v. OSAHRC, 489 F.23d 1257, 1265-1266 (D.C. Cir. 1973). An employer is liable under the Act only when his own employees are exposed to a hazard. He is not liable when workers employed by another employer are exposed to a hazard even if it happens [*21] at his worksite. Secretary v. Gilles & Cotting, Inc., 4 OSAHRC 1080 (1973), rev'd on other grounds, 504 F.2d 1255 (4th Cir. 1974). Upon these principles, Cities could not be in violation as a result of the hazardous exposure of Thach. The case against it must rest on the exposure of its own employees.
The Judge found that Cities was derelict in not advising its employees of the dangers of hydrogen sulfide gas, not testing for the presence thereof in the tank, and not providing its employees with gas masks and lifelines. He premised his findings on the grounds that Cities' employees in performing their jobs on the exterior of the tank were exposed to tripping and falling hazards which might cause them to accidentally enter the tank and that their entry into the tank for the purpose of rescuing another worker was a foreseeable possibility.
The citation which was issued against Cities by complainant charged that Cities had failed to provide its employees a safe workplace because it exposed them "to an atmosphere in a confined space incapable of supporting human life." The evidence, however, conclusively establishes that the duties of Cities' employees did not require them [*22] to enter the tank, and there is no evidence that they were exposed to hazardous atmospheric conditions while working on the exterior of the tank. More importantly, the charge does not aver that the employees were exposed to tripping or falling hazards on the exterior of the tank. Therefore, the Judge's findings regarding the tripping and falling hazards were beyond the scope of the charge against Cities. As the Circuit Court observed in National Realty and Construction Company, Inc. v. OSAHRC, supra, at n.31:
"Obviously an employer cannot be penalized for failing to correct a condition which the citation did not fairly characterize. Thus, before penalizing a failure to correct a cited condition, the Commission must satisfy itself that the citation defines the 'uncorrected' violation with particularity. 29 U.S.C. § 658(a)."
I also disagree with the Judge's determination the Cities had not adequately advised its employees of the dangers of hydrogen sulfide gas. Cities had distributed a handbook entitled "Safety Guide to its employees and made them responsible for reading it. Pages G-XII-3 and 4 of the handbook classify hydrogen sulfide as a hazardous gas and discuss [*23] the dangers of such gases in significant detail. Pages G-XVIII-1 and 2 enumerate safety procedures for entering any vessel or tank. Considering this, along with Cities' local policy concerning tank entry, it is clear that Cities' employees were sufficiently advised of the hazardous nature of hydrogen sulfide gas.
For ten years prior to this incident, Cities' local policy had prohibited employees from entering any tank, and this had been discussed "a number of times" with the employees at monthly safety meetings. Since the surviving Cities' employee was fully aware of the policy, it is fair to assume that the deceased employees were also aware of it. The evidence tends to indicate that Cities' employees were reliable workers. Three of the four employees had been employed by Cities for 25 years or more. Under these circumstances, Cities had no reason to believe that they would violate the policy of no tank entry in the normal course of duties which did not require tank entry. See Secretary v. Republic Creosoting Co., 2 OSAHRC 400 (1973), aff'd, 501 F.2d 1196 (7th Cir. 1974).
The remaining question is therefore whether Cities is liable for failing to provide test [*24] equipment, gas masks, and lifelines on the theory that it should have foreseen that these items would be needed in connection with the rescue of Thach. n8 I agree with Chairman Barnako that such an eventuality was not reasonably foreseeable by Cities.
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n8 In this regard, the Judge found that Cities' handbook encouraged its employees to rescue fellow workers. The basis of the conclusion was that page ii of the handbook provided that one safety responsibility of a Cities' employee was to protect himself and his fellow workers from injury. I do not consider this to be any more than a restatement of what is normally expected of all workers.
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It would totally unreasonable to require an employer to provide his employees with rescue equipment for the purpose of rescuing the employees of every independent contractor that performs work at the employer's worksite. Such a rule would place an astronomical burden on employers and would digress from the enforcement scheme chosen by Congress to implement this Act: that each employer [*25] shall be responsible for the safety of his own employees. The potential situations in which an employer would be responsible for anticipating the possible need to rescue an independent contractor's employees is limited only by the imagination. Requiring this anticipatory action by employers would make it necessary for them to implement infeasible measures, and that is not required by the Act. See National Realty and Construction Company, Inc. v. OSAHRC, supra at 1266.
Additionally, the evidence in this case indicates there was no good reason for Cities to expect that it would be necessary to rescue Thach from the tank. Thach had changed the anodes in this tank in the same manner on five or six prior occasions over a period of about 12 years with no ill effects. There was no unusual odor detected when the tank was opened on the date of the fatal accident. Furthermore, Cities' experience over the preceding 58 years indicated that hazardous quantities of hydrogen sulfide gas were not a problem in western Kansas where the Stoltenberg lease was located. Its records dating back to 1939 showed no injuries resulting in lost time as a result of gas inhalation during normal [*26] production activities. Under these circumstances, it would be unreasonable to expect Cities to anticipate that there would be any necessity for its employees to attempt to rescue Thach. Because of the remoteness of this possibility, Cities' is not liable under the Act for failing to foresee that its employees would enter the tank for that purpose. Secretary v. Norman R. Bratcher Company, 2 OSAHRC 725 (1973).
CLEARY, Commissioner, CONCURRING IN PART AND DISSENTING IN PART:
I would find both employers in violation of section 5(a)(1) of the Act. Therefore, I agree with the lead opinion only insofar as it affirms the citation and proposed penalty issued to Fry's Tank Service, Inc.
In its brief on review, the appropriate portion of which can be found quoted in the lead opinion, Cities Service poses the following rhetorical question:
Does the Act require Cities to have rescue equipment available to retrieve from danger any independent contractor who may have made an error in judgment or otherwise placed himself in a hazardous position?
Such questions are designed to produce an effect and not to draw an answer. In this case, with due credit to the skill of respondent's counsel, [*27] the desired effect was achieved as evidenced by Commissioner Moran's statement that:
It would be totally unreasonable to require an employer to provide his employees with rescue equipment for the purpose of rescuing the employees of every independent contractor that performs work at the employer's worksite.
I agree with Commissioner Moran's statement. If respondent actually desired an answer to its question, I too would respond in the negative. It would be unreasonable to require Cities Service to take such action with respect to every independent contractor that enters respondent's worksite. My problem with this position, quite simply, is that the factual predicate employed by respondent in its "question" - and unforunately adoped by my colleagues as the basis for their decision to vacate the citation and proposed penalty issued to Cities Service - does not accurately portray the issue before us.
The issue, without the distortion created by the rhetorical question of Cities Service, should be stated as follows:
Does the Act require Cities Service to provide rescue equipment and to make appropriate safety tests in those instances when its employees combine with, or work [*28] "hand-in-hand" with, an "independent contractor" such that they form one work crew - a single entity? n9
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n9 In this regard, I am constrained to comment on Commissioner Moran's description of the law for multiple-employer worksites. He states:
An employer is liable under the Act only when his own employees are exposed to a hazard. He is not liable when workers employed by another employer are exposed to a hazard even if it happens at his worksite. Secretary v. Gilles & Cotting, Inc., 4 OSAHRC 1080 (1973), rev'd on other grounds, 503 F.2d 1255 (4th Cir. 1974).
This is at odds with the Second Circuit's opinion in Secretary of Labor v. O.S.H.R.C. and Underhill Constr. Corp., 513 F.2d 1032 (2d Cir. 1975) wherein the Court held that:
. . . to prove a violation of OSHA the Secretary of Labor need only show that a hazard has been committed and that the area of the hazard was accessible to the employees of the cited employer or those of other employers engaged in a common undertaking (emphasis added).
513 F.2d at 1038.
This Commission has held recently that it agrees with the position taken by the Second Circuit in Underhill. Anning-Johnson Company, Nos. 3694 & 4409, BNA 4 OSHC 1193, CCH OSHD para. 20,690 (1976); Grossman Steel & Aluminum Corp., No. 12775, BNA 4 OSHC 1185, CCH OSHD para. 20,691 (1976). The matter is therefore settled. Further discussion is a waste of time, paper, and ink. Moreover, to note merely that Gilles & Cotting, Inc., was reversed on other grounds is, of itself, somewhat misleading. As to the issue of an employer's joint responsibility for the workers of others, the Fourth Circuit actually concluded that since the matter could be decided either way and since the Commission is "intimately familiar" with the realities of the situation, the Court would accept the decision of the Commission. Commissioner Moran's statement of the "law" accurately reflects the position taken by the Commission majority at the time of the Fourth Circuit's Gilles & Cotting decision. Times have changed, however, and the "law" given by Commissioner Moran represents only his view of the matter and not that of the Commission majority. See, e.g., Anning-Johnson Company, supra; Grossman Steel & Aluminum Corp., supra. Furthermore, the law developed in this line of cases thus far has found application only in those cases involving the construction industry. The Commission has not extendced this body of law to general industry cases nor do I seek to do so at this time. These comments are being made specifically to clarify Commissioner Moran's statement of the law.
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The facts clearly demonstrate the relationship between the employees of Fry's Tank and those of Cities Service. Their functions were inextricably intertwined. The employees of Cities Service were intructed to assist the Fry's Tank employee in replacing the anodes. Indeed, since he lacked the equipment to do the job alone, the Fry's employee had to be assisted. The anodes themselves came from the Cities Service warehouse. It was a Cities Service truck that lifted the lid off of the tank at the start of the cleaning operation. The ladder used by the Fry's employee belonged to Cities Service. Furthermore, the president of Fry's Tank testified that, as a practical matter, he considered his employee to be an employee of Cities Service and under its control while on the lease. We have the following colloquy:
Q. Well, have you considered yourself at any time or your employees under you as employees of Cities Service and that is what you are billing them for on August 16th or prior to that day? In other words, if I might make a further question: You consider yourself a businessman operating Fry's [*30] Tank Service?
A. Yes. My understanding in working for somebody, I send a man or a truck out there and the lowest man in the company [Cities Service] is the boss over him. In other words, if he's doing something wrong the pumper can come out and tell him to get off the lease and he's got to go. n10
My colleagues have neatly avoided the single entity nature of the work crew at issue by dipping their pens into the common law inkwell of employer-employee relationships. It seems as though they recognize the close working relationship, yet they turn away and call Fry's Tank an "independent contractor". In the past, this Commission has been criticized for employing common law employer-employee concepts in assigning duties under the Act. Secretary of Labor v. Gilles & Cotting, Inc. and O.S.H.R.C., 504 F.2d 1255, 1261 (4th Cir. 1974). In truth, such common law concepts must yield in the interpretation of remedial social legislation.
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n10 Transcript at 187.
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The lead opinion discusses the Commission decision in [*31] Aro, Inc., 5 OSAHRC 914, BNA 1 OSHC 1453, CCH OSHD para. 17,084 (1973). The decision was relied upon by the Judge in reaching his decision to find both respondents in violation of the Act. The lead opinion states that:
The only distinction between this case and Aro is that, in this case, the employer charged with failing to furnish rescue equipment is not the same one that committed the violation which led to the necessity for the rescue attempt.
Here again, the inaccurate factual predicate employed by my colleagues leads to a distinction that does not actually exist. Cities Service knew that its employees were going to assist the Fry's employee with the tank cleaning procedure. It knew that the Fry's employee had to enter the tank to replace the anodes. It knew that hydrogen sulfide gas is a recognized hazard in the Stoltenberg area of Kansas. It knew or should have known that employees who are working together as a team, regardless of prior instruction concerning entry into tanks, will set aside a specified course of conduct and react humanly to save the life of a fellow worker. See Akron Brick & Block Co., No. 4859, BNA 3 OSHC 1976, CCH OSHD para. 20,302 [*32] (1976). Furthermore, the record reveals that both qualitative and quantitative tests for hydrogen sulfide could have been performed easily by the employees on the worksite had Cities Service provided the equipment and a minimal instruction period. Indeed, since the time of the accident, Cities Service has initiated a new procedure that requires the testing of all confined spaces to be entered on its jobsite regardless of whose employees are involved. n11 Finally, it failed to provide appropriate safety equipment that, admittedly, would have enabled the Cities Service employees to rescue their fellow worker with a minimum of danger to themselves.
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n11 Evidence of subsequent measures taken to eliminate a violative condition is admissible and probative to demonstrate the feasibility and utility of such measures. Boeing Airplane Co. v. Brown, 291 F.2d 310, 315 (9th Cir. 1961); see Fed.R.Evid. 407.
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Despite the overwhelming evidence that Cities Service failed to render its workplace free of a hazard which [*33] was recognized and actually caused the needless death of four workers, and despite the demonstrated availablity of feasible measures that would have significantly reduced the liklihood of this tragic accident, my colleagues refuse to find respondent Cities Service in violation of the Act. To put it simply, they err.