                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                              March 8, 2004
                       FOR THE FIFTH CIRCUIT
                       _____________________             Charles R. Fulbruge III
                                                                 Clerk
                            No. 03-60508
                       _____________________

GREY WOLF DRILLING COMPANY L. P., RIG 865,

                                                         Petitioner,

                              versus

OCCUPATIONAL SAFETY AND HEALTH REVIEW
COMMISSION; ELAINE CHAO, SECRETARY,
DEPARTMENT OF LABOR,

                                                     Respondents.
________________________________________________________________

              Petition for Review of an Order of the
        Occupational Safety and Health Review Commission
_________________________________________________________________

Before JOLLY, DUHÉ, and STEWART, Circuit Judges.

PER CURIAM:*

     We affirm the final order of the Occupational Safety and

Health Review Commission (“the Commission”) upholding a citation

issued to Grey Wolf Drilling Company, L.P. (“Grey Wolf”), for the

following reasons:

     First, although the arguments of Grey Wolf were well-presented

and vigorously argued, we nevertheless find substantial evidence to

support the Commission’s conclusion that Grey Wolf violated the

“general duty clause” of the Occupational Health and Safety Act by

failing to furnish a place of employment free from recognized

     *
       Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
hazards likely to cause death or serious injury to employees.            29

U.S.C. § 654(a)(1).       In reaching this conclusion, we have taken

into account Grey Wolf’s vigorous contention that the use of a

“swamper” in these circumstances would not have constituted a more

effective    means   of   abatement   than   the   precautionary   measures

already in effect at the time of the accident.          That argument has

some force, especially given the peculiarities of this particular

accident.    However, we find substantial evidence in the record to

support the Commission’s findings that instead of the “swamper”

riding inside the unloaded wench truck, the “swamper” walking

outside on the passenger side at the rear of the vehicle when it is

in reverse motion is a feasible means of abating the risks of a

“struck-by” hazard.

     Second, we hold that the petitioner’s contention that it is

entitled to the affirmative defense of employee misconduct fails in

this case.      As an element of such a defense, Grey Wolf must

demonstrate that it had a safety program in place that adequately

addressed the hazard at issue.        For the reasons stated above, Grey

Wolf does not satisfy this element here.

     Accordingly, we affirm the final order of the Commission in

all respects.



                                                                   AFFIRMED.




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