BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

 

In the Matter of the Appeal of:

ANCON MARINE, INC.

2250 East Dominguez Street

Carson, CA 90810-1008

                              Employer

 

 

Docket No.

00-R3D5-3140

 

DENIAL OF PETITION

FOR RECONSIDERATION


The Occupational Safety and Health Appeals Board (Board), acting pursuant to authority vested in it by the California Labor Code hereby denies the petition for reconsideration filed in the above-entitled matter by Ancon Marine, Inc. (Employer).

JURISDICTION

From May 19, 2000 through August 16, 2000, a representative of the Division of Occupational Safety and Health (the Division) conducted an accident inspection at a place of employment maintained by Employer at Carnival Cruise, Berth 93, San Pedro, California (the site).

On August 17, 2000, the Division cited Employer for a general violation of section 3277(f)(4) [clearance for fixed ladders] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations.1 A civil penalty of $185 was proposed.

Employer filed a timely appeal contesting the existence of the alleged violation and the reasonableness of the abatement requirements.

A hearing was held before Barbara Miller, Administrative Law Judge (ALJ) of the Board. Don Couch, Safety Director, represented Employer. Barry Blodgett, Compliance Officer, represented the Division. The ALJ issued a decision on July 9, 2001, denying Employer’s appeal and assessing the $185 civil penalty.

EVIDENCE

Employer removes hazardous waste from ships in the Los Angeles Harbor in San Pedro, California. At all times relevant hereto, Employer was servicing a Princess Cruise Line Ship. In order to capture any materials that might leak from the ship, Employer deployed a boom in the water around the ship. Employer’s employees accessed the water by means of a safety ladder that extended from the high-line dock onto a floating dock.

The ladder and the dock are owned and maintained by the City of Los Angeles. The dock is hundreds of feet long. Ladders similar to the one discussed herein are placed all along the dock at intervals of approximately 30 feet. Some of the ladders go directly into the water and some extend to floating docks.

The ladder at issue herein was suspended from two short chains. The chains were attached to a rod that was threaded through brackets affixed to the bottom side of the dock. The rod was bolted to the brackets and tools would be necessary in order to detach it. The chains were also attached to the side rails of the ladder. The ladder was not attached to the dock at any other point. Accordingly, the ladder could swing out from the dock and in toward it.

Massive horizontal cross beams below the surface of the dock attach to and support the pilings. A horizontal beam was carved out so as to provide space for the hanging ladders. In a stationary state, the rungs of the ladders are approximately seven inches from the cross beams or any other portion of the dock.

Blodgett was called to the scene as a result of an accident. While investigating the accident, he descended the ladder at issue in this proceeding. While doing so, his weight on the ladder caused it to swing toward the dock. He found there was insufficient space for placement of his foot on one of the rungs of the ladder because it was up against the aforementioned cross beam. The clearance was not seven inches; it was one inch. Blodgett found it necessary to step down to a lower rung in order to have a secure foothold. Blodgett did note that the horizontal beam prevented the ladder from swinging further under the dock.

Blodgett concluded the ladder was unsafe. When he returned to his office, he conducted research to determine if the condition that existed with the ladder was also a violation of a safety order. He concluded the ladder met the definition of a “fixed ladder” and there was too little space between the cross beam and the ladder, in violation of section 3277(f)(4). Blodgett readily admitted that the ladder was not like what one would ordinarily think of as a fixed ladder. Such a ladder would not have any movement. During the course of his testimony, Blodgett explained that the configuration of the ladder did not satisfy any of the exceptions to the fixed ladder safety orders. Employer did not dispute this conclusion.

Employer’s representative, Don Couch, testified regarding Employer’s belief that the ladder was most like a portable ladder. He also testified regarding Employer’s concerns with regard to abatement alternatives. He said that having studied the options, Employer concluded an extension ladder created a greater safety hazard than the City of Los Angeles’ safety ladder, given the movement caused by the current and the tides.

ISSUE

Has Employer asserted valid grounds under Labor Code section 6616 for reconsideration of the ALJ’s decision.

REASON FOR DENIAL
OF
PETITION FOR RECONSIDERATION

Employer filed a timely petition for reconsideration. The petition reads as follows:

This letter serves as a formal request for an appeal reconsideration on DOCKET 00-R3D5-3140, this 9th of August of 2001.

Ancon Marine is in disagreement with the results and interpretation of the facts on our last hearing. Therefore, I would like to request for a detail review of the facts already presented by using the same evidence. Original request and documentation will be send to you by regular mail.

I would like to thank you in advance for your consideration and support.

Labor Code section 6617 sets forth five grounds upon which a petition for reconsideration may be based.

(a) That by such order or decision made and filed by the appeals board or hearing officer, the appeals board acted without or in excess of its powers.
(b) That the order or decision was procured by fraud.
(c) That the evidence does not justify the findings of fact.
(d) That the petitioner has discovered new evidence material to him, which he could not, with reasonable diligence, have discovered and produced at the hearing.
(e) That the findings of fact do not support the order or decision.

Labor Code section 6616 provides that a petition for reconsideration must “… set forth specifically and in full detail the grounds upon which the petitioner considers the … decision made … by the … hearing officer to be unjust or unlawful, and every issue to be considered by the appeals board. . . .”

The Board has adopted regulations implementing this statutory provision. Section 391 of the regulations states that “… The petition for reconsideration will be denied if it contains no more than allegations of the statutory grounds for reconsideration, unsupported by specific references to the record and principles of law involved.”

The Board has consistently rejected petitions that do not contain sufficient details of the grounds or references to the hearing record. (See, e.g., Lusardi Construction Company, OSHAB 86-318, Denial of Petition for Reconsideration (Oct. 29, 1986); Paterson Pacific Parchment Co., OSHAB 80-1238, Denial of Petition for Reconsideration (Apr. 22, 1981).)

In this case, Employer is apparently not satisfied with the credibility determinations the ALJ made as to its witnesses.

It is the responsibility of the ALJ to listen to the testimony given, calculate the demeanor of the witnesses; assess the credibility of the witnesses; and assign weight to conflicting testimony. The findings of the ALJ are entitled to deference unless they are opposed by evidence of considerable weight. (Lamb v. Workmen’s Compensation Appeals Bd., (1974) 11 C.3d 274, 280.)

We do not see that Employer has raised any ground sufficient to warrant reconsideration. Employer does not allege that the Board acted in excess of its powers or that the decision was procured by fraud. Nor is there any reasonable articulation that the evidence does not justify the findings of fact or that the finding of facts do not support the decision. Finally, there is not a reasonably articulated claim that Employer has discovered material new evidence not reasonably available at the hearing.

For the foregoing reasons, Employer’s petition for reconsideration is denied.


DECISION

The Board affirms the ALJ’s decision finding a general violation of section 3277(f)(4) and the assessment of a civil penalty of $185.


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

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

1. Unless otherwise specified all references are to sections of Title 8, California Code of Regulations.