CAMDEN DRILLING COMPANY
OSHRC Docket No. 14306
Occupational Safety and Health Review Commission
April 17, 1978
[*1]
Before CLEARY, Chairman; BARNAKO, Commissioner.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Ronald M. Gaswirth, Reg. Sol., USDOL
Rick Rogers, for the employer
OPINIONBY: BARNAKO
OPINION:
DECISION
BARNAKO, Commissioner:
A decision of Administrative Law Judge James D. Burroughs is before us for review pursuant to 29 U.S.C. § 661(i). In that decision the Judge affirmed both items of a serious citation issued to Respondent (Camden) following an investigation of an accident on Camden Drilling rig number four, where a barge was being repaired. The citation alleged a serious violation of 29 C.F.R. § 1915.72(a) for failure to ground a fan on the barge and 29 C.F.R. § 1915.72(d) n1 for use of a frayed or worn electric cord on the fan. The Judge assessed a $400 penalty in lieu of the $500 proposed by the Secretary. We affirm.
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n1 29 C.F.R. § 1915.72(a) and (d) provide as follows:
(a) The frames of portable electric tools and appliances, except double insulated tools approved by underwriters' laboratories, shall be grounded either through a third wire in the cable containing the circuit conductors or through a separate wire which is grounded at the source of the current.
(d) Worn or frayed electric cables shall not be used.
[*2]
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On June 9, 1975, Camden's barge was tied to the dock undergoing major repair work. Camden had contracted with Rogers Welding Service to help make the necessary repairs. Three of Rogers' welders were repairing leaks at the bottom of the barge. Camden did not directly supervise the manner in which Rogers performed its work, but Camden's tool pushers were responsible for seeing that the repair work was completed properly.
One of the tool pushers, Young, assigned Camden's employee n2 Anders to assist the welders. In the area where the welders were working, they used an electric fan which was ungrounded and which had a frayed electrical cord. The electric fan was not owned by either Camden or Rogers. While assisting the welders, Anders suffered a fatal accident; he was apparently electrocuted as a result of contacting the fan or the cord. n3
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n2 Before the Judge, Camden argued that Anders was not its employee. The Judge rejected that argument, and Camden does not pursue the matter on review.
n3 The record does not conclusively establish that the fan was the cause of Anders' death. That does not, however, affect the outcome of this case. Anders worked in the vicinity of the fan and was thus exposed to the hazards created by the fan's failure to comply with the cited standards. Whether those violations caused the fatal accident is therefore irrelevant. Concrete Construction Corp., 76 OSAHRC 47/A2, 4 BNA OSHC 1133, 1975-76 CCH OSHD para. 20,610 (No. 2490, 1986).
[*3]
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Judge Burroughs found that Young was aware of the presence of the fan on the barge and of its use by Rogers. He concluded that Young could have taken action to have the hazardous conditions involving the fan corrected before sending Anders to work in the area containing the fan or removed Anders from the job. He therefore found Camden in violation of the cited standards.
Camden argues on review that 1) the Judge erred by finding that Young knew of the use of the fan and 2) that the Circuit Court opinion in Southeast Contractors, Inc. v. Dunlop, 512 F.2d 675 (5th Cir. 1975), relieves it of responsibility for the violations because the violations were created by another contractor.
We reject Camden's arguments. The Judge did not err in finding that Young knew of the fan's use. Although Young testified at one point that he was aware of the presence of the fan in the area where the welders were working but that he did not know that the fan was in use, he later clarified this statement. He stated that "earlier I didn't know it was in operation" but that "later that afternoon I saw the fan running." [*4] Since the accident which killed Anders did not occur until the evening around 8:55 p.m., it is clear that Young knew of the fan's use by employees working near the runway where the fan was located. In any event, it is sufficient that Young knew of the existence of the fan and could have easily discovered the violations. Camden's employee was in the area since Young sent him there to work and Young himself had been in the area during the day. Therefore Young had a duty to assure that Anders' working conditions were safe.
Furthermore, Camden's reliance on Southeast Contractors, supra, is misplaced. In that case, the court vacated a citation for violation of a standard n4 which provided that "no employer shall use any motor vehicle equipment having an obstructed view to the rear. . ." The court concluded that Southeast was not responsible when a vehicle being driven by an employee of another contractor struck Southeast's employee. The court reasoned that Southeast did not violate the standard because it was not responsible for the acts of its subcontractors. n5
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n4 29 C.F.R. 1926.601(b)(4).
n5 We note that in a similar set of circumstances the 10th Circuit in Clarkson, Construction Co. v. OSHRC, 531 F.2d 451 (1976) upheld the cited employer's violation of the Act.
[*5]
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The rationale of the court in Southeast Contractors, supra is contrary to well established Commission precedent that under the Occupational Safety and Health Act of 1970, each employer is principally responsible for the safety of its own employees. n6 Grossman Steel and Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD para. 20,691 (No. 12775, 1975). Regardless of whether Camden was using the fan it was being used on a barge which Camden owned and controlled. Camden could have discovered that the fan Young saw in operation was not grounded and had a frayed cord if Young had exercised reasonable diligence by inspecting the area in which Anders was assigned to work. Camden's ownership and control of the barge on which the fan was used placed Camden in an excellent position to have the fan removed or to have the unsafe conditions corrected. Under these circumstances, Camden had the responsibility to take one of these actions regardless of who owned or used the fan. Chicago and North Western Transportation Co., 77 OSAHRC 30/E4, 5 BNA OSHC 1121, 1976-77 CCH OSHD para. [*6] 21,608 (No. 13071, 1977).
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n6 29 U.S.C. 651 et seq.
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We conclude that the Judge's penalty assessment is appropriate for the reasons he assigned. Accordingly, the Judge's decision is affirmed.