BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

PACIFIC ERECTORS, INC.

2196 American Avenue

Hayward, CA 94545

                              Employer

 

 

Docket No.

00-R1D4-118 and 119

 

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 petitions for reconsideration filed in the above-entitled matter by Pacific Erectors, Inc. (Employer) and the Division of Occupational Safety and Health (the Division), makes the following decision after reconsideration.

JURISDICTION

Employer is a contractor engaged primarily in the installation of sheet metal decking in multi-story steel frame buildings, and was the decking subcontractor for such a building at 5601 Arnold Drive, Dublin, California (the site).

On July 13, 1999, one of Employer's employees was laying out decking panels at the perimeter of the second story of the unenclosed building frame. The fall distance from the building’s perimeter to the ground was approximately 16 feet. Along the edge of the deck, the steel erection contractor had suspended a wire rope safety cable from building support columns. The employee slipped or tripped and fell toward the deck edge. The cable appeared to be reasonably taut. But when the employee fell against and grabbed the cable it went slack for reasons unknown and he fell off the deck edge holding onto the cable. After the employee had fallen a few feet the cable stopped slackening abruptly and tore free of his hands. He continued falling and was injured when he struck the ground.

After investigating the accident, the Division charged Employer with four alleged violations. Employer appealed all four violations. Two were resolved by agreement of the parties. One of the two that was not resolved, Citation No. 1, Item 3, alleged that Employer committed a general violation of section 1511(b)1 [thorough pre-work survey of site conditions for predictable hazards] by not checking the security of the safety cable thoroughly before allowing the employee to work next to the edge of the deck. The other, Citation No. 2, alleged that Employer committed a serious violation of section 1710(e)(3) [wire rope cables along edges of temporary metal-decked floors at building periphery] because the second floor wire rope cable was not located between 42 and 45 inches above the floor.

An Appeals Board Administrative Law Judge (ALJ) heard Employer's appeals on August 10, 2000, and on August 21, 2000 the ALJ issued a decision denying Employer's appeal from the pre-work survey violation [Citation No. 1, Item 3] while granting its appeal from the cable height violation [Citation No. 2].

With respect to Citation No. 1, Item 3, the ALJ found that, prior to the presence of employees, Employer's foreman visually inspected the safety cable and, upon seeing that the cable did not sag or "belly" in the horizontal space between the columns supporting it, concluded that the cable was properly secured, ceased his "survey" of that site condition, and knowingly allowed employees to work at the deck edge. The ALJ further found that the foreman's visual inspection was not the "thorough survey" required by section 1511(b). Additionally, the ALJ stated that pulling on the cable and checking with the steel erection contractor who put it up to ensure the installation was complete and intact were measures reasonable to include in a "thorough survey."

Concerning Citation No. 2, the ALJ found that section 1710(e) requires a wire rope guard only around the periphery of temporary metal-decked floors that exceed 30 feet in height.2 Since the deck in question was only 16 feet high, the ALJ granted the appeal.

Employer petitioned for reconsideration of the ALJ's decision to uphold the pre-work survey violation [Citation No. 1, Item 3]. The Division petitioned for reconsideration of the ALJ's decision to dismiss the cable height violation [Citation No. 2]. On November 2, 2000, the Appeals Board granted both petitions.


Docket No. 00-R1D4-118
Citation No. 1, Item 3, section 1511(b)

ISSUES

1. Is section 1511(b) enforceable?

2. Did Employer violate section 1511(b) by not thoroughly surveying conditions at the edge of the second floor deck before allowing employees to work there?

1. Section 1511(b) is Enforceable.

Section 1511(b) reads as follows:

(b) Prior to the presence of its employees, the employer shall make a thorough survey of the conditions of the site to determine, so far as practicable, the predictable hazards to employees and the kind and extent of safeguards necessary to prosecute the work in a safe manner in accordance with the relevant parts of Plate A-2-a and b of the Appendix.

Employer argues that section 1511(b) is unenforceable because it does not, with reasonable clarity and specificity, notify employers of what they must do to comply, and can be read to impose an unreasonable burden.

We disagree. In our view, the Standards Board used commonly understood terms in section 1511(b) to craft a practical and reasonable standard.

A "thorough survey" means surveying measures that are "practicable" or feasible. The goal is to determine or find unsafe conditions and practices that pose a "predictable" hazard to the subcontractor's employees.

None of the quoted words are defined in the safety orders. They are not "technical words…[or] phrases…or …[other words or phrases that] may have acquired a particular and appropriate meaning in law"; therefore, they are to be "…construed according to the context and the approved usage of the language…." (See Civil Code section 13, California Drive-In Restaurant Assn. v. Clark (1943) 22 Cal. 2nd 287, and Sierra Production Service, Inc., Cal/OSHA App. 84-1227, Decision After Reconsideration (Aug. 13, 1987).)

"Thorough" is defined in Webster's Third International Dictionary (1981) p. 2380, as "marked by completeness" and as "marked by sound systematic attention to all aspects and details…." It is defined in The Random House College Dictionary (Revised Edition 1984) p. 1367, as "executed without negligence or omissions." We see nothing obscure about the Standards Board's intended meaning of "thorough" in the context of section 1511(b). It means that the survey should be complete, systematic, and attentive to detail.

The first definition for "survey" in Webster's New World Dictionary (3rd college ed. 1989) p. 1348, is, "to examine for some specific purpose; inspect or consider carefully; review in detail." Employer argues that the definition of "survey" in Webster's Encyclopedic Unabridged Dictionary of the English Language (1989) by using the term "view" to describe the act of surveying, implies that only the eyes need be used to conduct a survey. But "view" is not used in that restrictive sense, it is used along with "inspect", "examine", and "appraise" to describe the means by which a survey may be conducted to ascertain "in detail" the "condition" of things. Hence, these two dictionary definitions are in accord and neither implies that a "detailed" or "thorough" survey of the condition of things can necessarily be done simply by looking at them.

The first definition for "practicable" in Webster's New World Dictionary (3rd college ed. 1989) p. 1058, is, "that can be done or put into practice; feasible." And, in Crosby & Overton, Inc., Cal/OSHA App. 86-339, Decision After Reconsideration (Dec. 2, 1987) the employer challenged section 5208(c)(1)3 [working asbestos wet] on the ground that by requiring employers to work asbestos wet "insofar as practicable", it imposed a vague and ambiguous standard.

At page 4 of the Decision After Reconsideration, the Appeals Board rejected the employer's contention for the following reasons:

The principal dictionary definition of 'practicable' is 'that which may be done, practiced or accomplished.' (See Black's Law Dict. (5th ed. 1979) p. 1055, col. 2.; Webster's Third New International Dict. (1971) p. 1780, col. 1; Webster's New World Dict. (2d college ed. 1974) p. 1117, col. 2.) Clearly, its definition is well settled enough to make it usable in a regulation. 'Insofar' and 'as' pose no problems; they are well understood words of very common usage. Finally, the arrangement of the terms in the Section 5208(c)(1) phrase creates no vagueness or ambiguity. Section 5208(c)(1) is sufficiently definite to be enforceable. (Crosby & Overton, supra)

Webster's Third New International Dictionary (1981), at p. 1786, defines "predictable" as, "capable of being foretold." And, The Random House College Dictionary (Revised ed. 1984), at p. 1044, states that, "TO PREDICT is usually to foretell with precision or calculation, knowledge, or shrewd inference from facts or experience…." Moreover, it is well settled that "an employer has an affirmative duty to anticipate hazards within a reasonable degree of foreseeability." (Greene and Hemly, Inc., Cal/OSHA App. 76-435, Decision After Reconsideration (April 7, 1978), p. 3; Department of Transportation, State of California, Cal/OSHA App. 81-017, Decision After Reconsideration (Nov. 24, 1981).) The differences between a duty "to [predict hazards]…with precision or calculation, knowledge, or shrewd inference from facts or experience…." and a duty "to anticipate hazards within a reasonable degree of foreseeability" are largely semantic. Both require more than a cursory look.

We conclude that the meanings of the words and phrases that comprise section 1511(b), and the meaning of section 1511(b) itself, are reasonably clear and certain.

We also conclude that section 1511(b) does not impose an undue burden on employers. Thereunder, an employer must, by practicable or feasible means, survey a site thoroughly for conditions and practices that the employer should reasonably know or foresee may expose its employees to a hazard. Hence, if an employer's employees will foreseeably work and travel only in parts of a large construction site, the employer need only survey for hazards in areas where exposure of its employees to hazards is foreseeable. Moreover, "practicable" discharge of the duty to survey does not compel an employer to send an army of experts to the site to test scientifically every board, brick and cable.

Finally, for all of the above reasons, we conclude that section 1511(b) is an enforceable safety order.

2. Employer Violated Section 1511(b).

Employer acknowledged that its employees worked at the perimeter of the elevated levels of the multi-story building at the site when installing decking at the perimeter of those levels. For employees who did that work, falling from the edge of the deck due to missing or inadequate guardrails or cables was a predictable or foreseeable hazard; perhaps the gravest and most obvious hazard they faced. Thus, pursuant to section 1511(b), Employer was obligated to thoroughly survey conditions at the edge to determine the nature and extent of the fall hazard presented and the "safeguards necessary to prosecute the work [at the edge] in a safe manner…."

Given the inconsistencies and conflicts in the foreman's statements during the investigation and at the hearing concerning what he did to survey conditions at the edge, particularly the safety cable, the probative value of his testimony was diminished. We adopt the ALJ's finding that his survey consisted of looking at the cable, seeing that it was not sagging, and assuming from its appearance and his experience in such matters that the cable was a safeguard adequate to protect employees working at the edge against falls.

Hence, the question becomes one of whether, by that means alone, the foreman surveyed, inspected or examined that condition of the site for danger "thoroughly" and determined "so far as practicable" or feasible, that the surveyed condition did not present a hazard.

Generally speaking, in safety and health matters, the less one knows about something, the more dangerous it is to make assumptions about it. The "Universal Precautions"4 approach to controlling the transmission of bloodborne pathogens is an application of this principle to one serious hazard. Falling from the edges of elevated floors is another serious hazard requiring thorough attention to safety through the detective measures of section 1511(b) and the specific fall protection safety orders that may apply to the hazards detected.

Employer did not install and maintain the second floor safety cable. It was undisputed that the steel erection contractor had that responsibility. Hence, the steel erection contractor was the logical one to ask for information about whether the installation had been completed or, assuming that it had, whether the cable's protective effect had been compromised thereafter.

It is a matter of common knowledge that, at multi-employer building sites, one subcontractor may remove guardrails or safety cables to facilitate the loading of materials onto the deck. And, despite appearances, he may not have re-installed the fall protection correctly. Another ever-present danger at such sites is that trucks, forklifts, cranes, and other commonly used equipment may strike and damage cable and railing systems.

In this case, it would have been practicable for Employer, through its foreman, to roughly test the cable's security by pulling on it. In our view, this is akin to testing safety devices on vehicles and equipment each day before using them, e.g., honking the horn and activating the back-up alarm, turning on the lights and applying the driving and safety brakes. If the brakes hold when tested, that does not assure that they will work when the vehicle is loaded, is operated at greater speed, or is operated or parked on an inclined surface. But such a test tends to reveal or rule out "worst case scenario" defects and, thus, helps the tester make a practicable hazard assessment. It would also have been practicable for Employer to check with the steel erection contractor, with whom its work was closely coordinated, to ensure that the cable had been secured and to obtain other available information about its present condition.

We concur in the ALJ's determination that looking at the safety cable to ensure that it was not sagging, was not a "thorough survey" that could enable Employer to determine, "so far as practicable, the predictable hazards to employees and the kind and extent of safeguards necessary to prosecute the work in a safe manner."5 Accordingly, we affirm the denial of Employer's appeal.

Docket No. 00-R1D4-119
Citation No. 2, Serious, section 1710(e)(3)

ISSUES

1. Did section 1710(e)(3) apply?

2. Did the Division prove a violation of section 1710(e)(3)?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

1. Section 1710(e)(3) Applied.

Section 1710(e) is entitled "Temporary Flooring - Skeleton Steel Construction in Multistory Buildings." The Division cited Employer under sub-section (e)(3), which reads as follows:

The exposed edges of all temporary planked or temporary metal decked floors at the periphery of the building, or portion of a building exceeding 30 feet in height, or at interior openings, such as stairways and elevator shafts shall be protected by a single 3/8-inch minimum diameter wire rope of 13,500 pounds minimum breaking strength located between 42 and 45 inches above design finish floor height. Other guardrail protection may be used if equal fall protection is provided. Midrail protection shall be installed at the completion of the installation of decking.

It was undisputed that the safety cable involved in the accident was there to protect the periphery of the temporary metal-decked second floor of the multi-story building at the site while the skeleton steel frame of the building was being constructed. It was also undisputed that the building was four stories or, approximately, 48 feet high and that the second floor was approximately 16 feet high.

The Division issued Citation No. 2 because it interprets section 1710(e)(3) to mean that if a multi-story building is more than 30 feet high, the exposed edges of the deck of every elevated floor in the building must be protected with a wire rope meeting the specifications of that section while the skeleton steel frame of the building is being constructed. The second floor was in such a building, erection of the steel frame was still in progress when the accident occurred, and the Division inspector determined that the safety cable had not been "located between 42 and 45 inches above [the second floor's] design finish floor height."

Employer contends that the safety cable installation requirement applies only to the exposed, peripheral, edges of a floor if the floor is more than 30 feet high.

Consistent with Employer's contention, the ALJ decided that section 1710(e)(3) did not apply to the edge of the second floor because it was not more than 30 feet high. He based his decision upon careful review and analysis of the Standards Board's extensive 1985 revision of Article 29, "Erection and Construction" (Section 1710 et seq.) of the Construction Safety Orders (CSOs), which raised to 30 feet or higher the height above which certain fall protection requirements apply during the erection of multi-story steel frame structures. Nevertheless, for the reasons set forth below, we reach a different conclusion.

Title 8 contains a number of regulations that address fall protection generally and also fall protection with regard to temporary floors and multi-storied steel framed buildings. Section 1635(b)(14) specifically pertains to fall protection from temporary floors during the construction of multi-storied steel frame buildings. Without limitation to the height of the floor, the safety order provides “personal fall protection and nets shall be required in accordance with Article 24.” Absent the application of certain exceptions, adherence to Article 24 would require fall protection at a height of 7½ feet.

In an earlier case, this Board held that section 1635(b)(14), rather than 1710(e)(3) applied to the installation of metal decking before the periphery of the building was reached. In that instance, fall protection was required at a height less than 30 feet. C.E. Buggy, Inc. Cal/OSHA App. 86-445, Decision After Reconsideration (Oct. 14, 1987). Although the facts of C.E. Buggy are somewhat different from those presented here, it would make little sense to require fall protection at less than 30 feet when the fall would be within the building and no protection until more than 30 feet when the fall would be outside, when the nature of the work being performed was identical.

There is another reason for concluding that the Standards Board did not intend minimal wire rope protection to begin only at heights above 30 feet. Analogous federal occupational safety and health standards, requiring wire rope at the periphery of temporary floors, impose the requirement on floors below the 30-foot level. Given the requirement that the California Standards Board adopt regulations consistent with the federal regulations, we are not prepared to conclude that the Standards Board intended to do otherwise when it comes to the height requirements for fall protection. See Labor Code section 142.3(a)(2). 6

Finally, it is recognized that the regulations at issue were amended in 1985 and the height at which fall protection was required in some instances was raised from 7½ feet to 30 feet. The height was not raised to 30 feet in all instances, however. For example, when performing work other than connecting, pursuant to section 1710(g)(2), standard fall protection is required when the fall would be greater than 15 feet, not 30 feet. The work being performed at the site at the time of the accident was “other than connecting” work. Section 1710(e)(3) may permit something other than standard fall protection, i.e. a wire rope in lieu of other forms of protection; it does not eliminate the need for protection at the periphery of the building for work other than connecting between 15 and 30 feet.

Accordingly, we conclude that section 1710(e)(3) applied to the periphery of the second floor of the building at the site, where the alleged violation occurred.7

2. The Division Failed to Prove that Employer Violated Section 1710(e)(3).

To comply with section 1710(e)(3), the edge of the temporary deck had to be "protected by…[a safety cable]…located between 42 and 45 inches above design finish floor height."

The alleged violation occurred on July 13, 1999. The Division inspector began his investigation at the site on September 13, 1999, approximately two months later. By then, erection of the structural steel had been completed, the cable that gave way had been reinstalled and a second cable, midway between it and the floor had been added. The inspector testified that the top cable was taut when he inspected it and that, as measured at a point midway between the support columns, where the employee fell, the cable was 47 inches above the unfinished floor. The "finish floor" would be approximately two inches higher than the unfinished floor, so the inspector concluded that the cable was "located between 42 and 45 inches above design finish floor height" as required by section 1710(e)(3).

The inspector acknowledged that Employer's foreman told him that the cable was taut when he surveyed it visually before the accident. The foreman's hearing testimony was consistent with the statement he made to the inspector during the investigation. On cross-examination, the inspector testified that the injured employee told him that he did not know if the cable was taut before he fell against it.

After the employee fell against the cable and took it with him over the edge, it sagged to the extent that it hung down below the level of the deck. If it had been in that condition before the impact, the foreman's cursory visual survey would have alerted him to the problem. It is inferred that the injured employee, who was right next to the cable, would also have noted the defect and, therefore, would not have told the inspector that he did not know if the cable was taut.

That evidence does not support the inference drawn by the inspector that the safety cable was at a height of less than 42 inches above design finish floor height before the employee fell against it. If anything, it supports the converse inference that the cable was at the required height before the impact.

We conclude that the Division failed to prove by a preponderance of the evidence that before impact the safety cable was not "located between 42 and 45 inches above design finish floor height."8

DECISION AFTER RECONSIDERATION

Docket No. 00-R1D4-118

Employer's appeal from Citation No. 1, Item 3 is denied. A general violation of section 1511(b) is found to exist and a civil penalty of $410 is assessed.

Docket No. 00-R1D4-119

Employer's appeal from Citation 2 is granted.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: November 27, 2001

1 Unless otherwise specified all references are to Title 8, California Code of Regulations.
2 It also specifies that the wire rope must be "located between 42 and 45 inches above design finish floor."
3 Section 5208(c)(1) has since been amended and renumbered as section 5208(f)(1)(F), but still provides that asbestos must be worked wet "insofar as practicable."
4 "'Universal Precautions' is an approach to infection control. According to the concept of Universal Precautions, all human blood and certain human body fluids are treated as if known to be infectious for HIV, HBV, HVC, and other bloodborne pathogens."
(§ 5193(b))
5 Underground Construction Co., Inc., Cal/OSHA App. 98-4105, Decision After Reconsideration, Oct. 30, 2001, holding that the inspection of a trench by a "competent person" foreman was insufficient to meet the requirements of section1541(k)(1), is in accord.
6 The federal counterpart to section 1710(e)(3) is 29 CFR 1926.750(b)(iii), which reads as follows:
(iii) Floor periphery--safety railing. A safety railing of 1/2-inch wire rope or equal shall be installed, approximately 42 inches high, around the periphery of all temporary metal-decked floors of tier buildings and other multifloored structures during structural steel assembly. (Emphasis added.)
7 Even if section 1710(e)(3) did not require a cable type "safety device" (Labor Code § 6303) at the edge of the second floor, by knowingly allowing its employees to work at the edge and rely upon it for fall protection, Employer "voluntarily" provided the cable to them as a safety device and became liable for ensuring that the cable provided the protection required by that safety order. (See Tulip Corporation, dba, Automotive Battery Products Co., Cal/OSHA App. 81-773, Decision After Reconsideration (June 25, 1982).)
8 We are mindful that even if the safety cable was at the appropriate height, it did not meet the section 1710(e)(3) requirement of "protect[ing]" the edge. Since that issue was not directly litigated at the hearing, we will not address it at this late juncture of the proceeding.