BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

NASSCO
NATIONAL STEEL & SHIPBUILDING CO.
Harbor Drive & 28th Street
P.O. Box 85278
San Diego, CA 92186-5278

 

                              Employer

 

Docket No .

00-R3D2-2743

 

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 NASSCO/National Steel & Shipbuilding Company [Employer], makes the following decision after reconsideration.

JURISDICTION

From February 4 to February 10, 2000, a representative of the Division of Occupational Safety and Health (the Division) conducted an accident investigation at a place of employment maintained by Employer at Gate 2, Harbor Drive and 28th Street, San Diego, California (the site). On July 21, 2000, the Division issued to Employer a citation alleging a serious violation of section1 3650(m)2 [excessive load on industrial truck load not balanced, braced and secured], with a proposed civil penalty of $18,000, reduced to $4,500 at the hearing, pursuant to the Division’s motion to delete the accident-related characterization of the violation.3

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

A hearing was held before Bref French, Administrative Law Judge (ALJ), in San Diego, California. James Paulson, Safety Manager, represented Employer. Albert Cardenas, Staff Counsel, represented the Division.

On May 2, 2001, the ALJ issued a decision granting Employer's appeal and setting aside the civil penalty.

On June 1, 2001, the Division filed a petition for reconsideration and on June 5, 2001, the Division filed a corrected petition for reconsideration. Employer filed an answer on June 27, 2001. The Board granted the Division’s petition on July 12, 2001.

EVIDENCE

Employer operates a steel and shipbuilding facility. Lew Collins (Collins), Associate Cal/OSHA Engineer, testified for the Division that he conducted an accident investigation at Employer’s facility as the result of an accident involving an employee of Protech Metals that occurred on January 24, 2000. He cited Employer for failing to balance, brace and secure T-beams of excessive width, length, or height being transported on an industrial truck [forklift] in violation of section 3650(m). The citation alleged that “NASSCO’s forklift operation, and improper handling of the I-beams [sic], resulted in the unstable load falling … .” The parties entered into the following stipulation:

On January 24, 2000, about 2:20 p.m., Frances Benitez, an employee of Nassco (National Steel and Shipbuilding Company), was operating a Toyota forklift, model number 682. Her task at the time was to remove a load of T-beams from the side of a flatbed truck. The T-beams were approximately 20 feet long and weighed around 480 pounds each; the height of the flatbed from the ground was about 48 inches. The work location was at Nassco’s shipyard, Gate 2, Harbor Drive and 28th Street, San Diego, California, 92113.

Ordinarily, Ms. Benitez was to remove a few unbundled T-beams at a time, situating the forks of the life under the beams so that they would be balanced upon them. She would then back away from the truck until she was clear of it, lower the load to around six inches from the ground, then turn to place the load on carrier blocks (about 20 feet away). (Because of their size, the T-beams were to be transported through the yard by lumber carrier.) At one point, however, as she was lifting a load of three or four T-beams and pulling the load away from the truck, one of the beams began to tilt. If she noticed the tilting, consistent with Nassco’s procedure, she was to lower the load to the ground.

Richard Zizzo, an employee of Protech and the driver of the flatbed truck, had been standing at the back of his truck. Although he was told by Ms. Benitez to stay clear of the lift and T-beams, he moved himself between the truck and the forklift. Ms. Benitez again waved him away, saying something, to which Mr. Zizzo responded, “I’m not worried about that.”

As Mr. Zizzo was trying to reposition them, the two T-beams closest to the mast tipped off. He was struck by the beams. He suffered fractures to his right ankle and right foot, lacerations on his right hand, and a concussion.

The parties further stipulated that:

Richard Zizzo acted in an unanticipated manner after having been warned twice to stay back.

Collins further testified that the ability of the forklift operator never came into question.

Luis Mireles (Mireles), District Manager, testified for the Division that the citation was issued because Employer failed to balance, brace or secure the load, thus exposing Zizzo and Benitez to the hazard of being hit by the unsecured load. He opined that a 20-foot long T-beam is “excessively long” for carriage on a “smaller style” Toyota forklift, like the one used by Employer, having forks that span four feet. He said the 20-foot long T-beams would extend past the forks by eight feet on each side.

ISSUE

Did the Division establish a violation of section 3650(m)?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

A Violation of Section 3650(m) Was Not Established.

Employer was cited for a violation of section 3650(m) [Industrial Trucks] which states: “Loads of excessive width, length or height shall be so balanced, braced, and secured as to prevent tipping and falling.” Section 3650(m) is contained in Article 25 of the General Industrial Safety Orders [GISO]. The word “excessive” is not defined in the definition section of Article 25 [§3649] nor is it defined in the GISO definitions [§3207(a)]. We are called upon to determine the application of section 3650(m) to the facts of this case.

In section 3650(m) the predicate phrase “Loads of excessive width, length or height,” is an operative requirement. There must first be a finding that the subject load is excessively wide, long, or high in order to establish a violation that the load was not so balanced, braced and secured as to prevent tipping and falling.4 The fact that the load fell does not establish that it was of excessive width, length, or height.

Employer called no witnesses. In its cross-examination of the Division’s witnesses, Employer’s thrust was to inquire of those witnesses just what was the Division’s definition of “excessive.” Mireles testified that he could find no definition of “excessive” in the safety orders, and when asked if he knew of any material that would have a definition of what loads of excessive width or length means, his response was: “I think we try to use a common sense approach. If you have something that’s way out eight feet on each side [of the forks] and 480 pounds; I think what we used is a common sense approach here saying that that’s not secured and that presents a hazard. That’s an excessively long load, it’s an excessively wide load.”

There is no empirical evidence in this record that the T-beams were of excessive length. Mireles’ testimony that “we used a common sense approach” does not establish the excessive length of the beams. His testimony that they weighed 480 pounds is not necessarily relevant to section 3650(m) without further evidence as to how the weight is distributed. Mireles’ testimony of the eight feet extension on each side beyond the forks, even if accurate, would not necessarily support or discredit a finding that the T-beams were balanced. The fact that they fell from the forks can only establish that they were not secured. It may be possible for that same fact to also establish, through appropriate evidence, that the T-beams were not balanced or not braced.

Where the safety orders do not supply a definition for a term used in a section, the Appeals Board applies the common usage or common law meaning, in the absence of evidence of a contrary meaning. (D. Robert Schwartz dba Alameda Metal Recycling and Alameda Street Metals, Cal/OSHA App. 96-3553, Decision After Reconsideration (Mar. 15, 2001) citing Kenneth L. Poole, Inc., Cal/OSHA App. 90-278, Decision After Reconsideration (Apr. 18, 1991).) In interpreting statutory (or regulatory) language, words should be given the meaning they bear in ordinary use and dictionary definitions are often used to ascertain the ordinary meaning of words. (In re Marriage of Bonds, (2000) 24 Cal.4th 1, 16) The ALJ adopted the meaning of the word “excessive” as contained in The American Heritage Dictionary of the English Language (1980):

Exceeding a reasonable degree of propriety, necessity, or the like; extreme; inordinate … beyond a normal or proper limit … excessive … describes a quantity, amount, or degree that is beyond what is specified, required, reasonable, or just.

We concur with the ALJ’s adoption of the definition of “excessive” and note that “excessive” is a relative term that requires a foundational comparison.5 Neither of the Division’s witnesses [Collins or Mireles] testified as to why the T-beams at issue were categorized as of “excessive width, length or height.” Mireles’ testimony that the 20-foot long T-beams were “excessively long” was opinion testimony and he did not state the basis for his opinion, other than common sense. The ALJ did not credit Mireles’ testimony that a 20-foot long T-beam is excessively long and found it to be inadmissible, since it lacks an evidentiary foundation as proper lay or expert opinion testimony. (See Evidence Code §§ 800-803) The ALJ also found that the Division did not provide any proof of the meaning of “excessive” in terms of evidence of what was standard or normal for this type of T-beam forklift operation, so as to establish the excessive nature of the length of these T-beams. Therefore, the ALJ found that a violation of section 3650(m) was not established. The findings of the ALJ are entitled to deference unless they are opposed by evidence of considerable weight. (Lamb v. Workmen’s Compensation Appeals Board, (1974) 11 Cal.3d 274, 280)

We find that it is necessary to the establishment of a violation of section 3650(m) to produce evidence of some standard or norm to which a comparison may be made to show that the subject material [load] is of excessive width, length or height. In addition, it is necessary to demonstrate the basis of why such comparison amounts to an “excessive” determination.

DECISION AFTER RECONSIDERATION

The decision of the ALJ, dated May 2, 2001, granting Employer’s appeal is affirmed.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: October 17, 2002

1 Unless otherwise specified, all section references are to Title 8, California Code of Regulations.
2 Renumbered in 1999 to 3650(k).
3 The Division’s motion to reduce the penalty was based upon its determination that it could not establish that the accident resulted in a serious injury.
4 This interpretation is distinguishable from a safety order which requires that all loads shall be secured against displacement. In Obayashi Corporation, Cal/OSHA App. 98-3674, Decision After Reconsideration (Jun. 5, 2001), Employer was operating a front-end loader as a forklift and was cited for a violation of section 1593(f): “Unstable loads. Loads on vehicles shall be secured against displacement.” There, the Board rejected Employer’s argument that only “unstable loads” need to be secured against displacement, holding that all loads were required to be secure and made safe against displaced movement from the outset. The Board reasoned that Employer’s interpretation would allow shifts of the load during movement of the load. Also, section 1593(f) is found in Article 10 -Haulage and Earth Moving provisions of the Construction Safety Orders which are not applicable to Employer’s operation here.
5 The basis for such comparison should be based upon appropriate reference material, the witness’s experience, consultation with experts on the subject matter, or some other competent foundational evidence. We question whether a “common sense” standard, unless more clearly defined by the witness, will ever pass our foundational test.