STATE OF CALIFORNIA
OCCUPATIONAL SAFETY AND HEALTH
In the Matter of the Appeal of:
OLTMANS CONSTRUCTION COMPANY
The Occupational Safety and Health Appeals Board (Board), acting pursuant to authority vested in it by the California Labor Code and having taken the petition for reconsideration filed in the above entitled matter by Oltmans Construction Company (Employer) under submission, makes the following decision after reconsideration.
On July 7, 2000, a representative of the Division of Occupational Safety and Health (Division) conducted a referral investigation at a place of employment maintained by Oltmans Construction Company (Employer) at 440 Commerce, Irvine, California (the site). On August 18, 2000, the Division issued a citation to Employer alleging a serious violation of section1 1632(h) [uncovered floor holes] with a proposed civil penalty of $6,185.
Employer filed a timely appeal contesting primarily the existence and classification of the alleged violation and the proposed penalty. On July 27, 2001, a hearing was held before Ashaki A. Hesson, Administrative Law Judge (ALJ), in Anaheim, California. Patricia McNamara, Corporate Safety Director for Employer represented Employer. Robert D. Klein Cal/OSHA Engineer-Compliance, represented the Division.
On March 28, 2002, the ALJ issued a decision denying Employers appeal regarding the existence of a violation of section 1632(h) but granting Employers appeal, in part, by reclassifying the violation from a serious to a general violation and reducing the civil penalty to $560.
On April 29, 2002, Employer filed a petition for reconsideration. No answer was filed by the Division. On June 18, 2002, the Board took Employers petition under submission and stayed the ALJs decision pending a decision on the petition for reconsideration.
On July 7, 2000, Robert D. Klein, the inspecting officer for the Division, was at a construction site which included a complex of tilt-up concrete buildings to investigate a serious injury involving an employee of Employers sub-contractor, A. L. Vineyard, unrelated to the citation at issue here. Employer was the head construction building contractor and the prime contractor at the site. Three of the buildings numbered 400, 410 and 420 had all of the walls set in place and the steel columns for the roof were in.
During his inspection regarding the accident, Klein observed a large number of hazardous floor holes in the three buildings while looking for the subcontractor to interview him. He was accompanied by Employers carpenter foreman. After he completed the accident investigation, he met with Employers project superintendent, Troy Brown (Brown) and informed him that he also observed 30 to 40 holes in one building and 20 in each of the other two. Brown acknowledged Employer was responsible for covering the holes.
Klein took six photographs introduced as exhibits at the hearing. According to Klein, the photographs depict the holes he saw while he was at the site. Most of the holes had steel structural columns in them at the center of the rectangular hole. Klein testified that about twenty employees of Employer were at the site, according to the superintendent. Klein testified that subcontractors at the site also had employees who were exposed to the hazardous floor holes. All of the holes were accessible.
The Division cited Employer, a construction contractor, alleging that [T]here were numerous floor holes throughout three newly constructed tilt-up structures into which persons can accidentally walk and were not covered or guarded with railing. There were 30-40 in one building. Twenty in each of two others and protruding reinforcing steel in several. Klein cited the violation as serious because the injury would probably result in death or serious injury as it has in the past. There was employer knowledge of the violative condition because there were superintendents on the job continuously.
Employers project superintendent, Brown, testified that, contrary to Kleins testimony that there were 20 employees working in building 400, Brown testified that the only Oltmans employees at the site were working in the next segment of building panels (phase 4) because the walls were still on the ground. It is possible that there may have been a few subcontractor employees nailing off the roof in building 400 when Klein was there.
In Browns opinion, there was no serious violation because it was unlikely that there was a substantial probability that death or serious physical harm would occur because 95% of the holes were only 12 inches deep from finished floor to footing, just barely higher than a typical step. The larger opening shown in Division Exhibit 4A was being prepared so concrete could be poured into it. Brown testified that the holes had been open at least one week prior to the inspection. The floor hole shown in Division Exhibit 3A was 3 feet deep.
Employers carpenter superintendent, Ronald Reeves, testified for Employer that he was outside the trailer in the main entryway when he first saw Inspector Klein. Klein identified himself, gave him a business card and told him he was at the site to investigate an accident that had been reported by the Fire Department. He accompanied Klein to find the subcontractor on the site. Reeves did not recall seeing Klein with a camera at any time the two of them were together. Before he left, Klein told him a citation would be issued for the floor holes and also told him to put delineators and caution tape up around all of the holes that had columns in them and around the interior wall perimeter. Reeves agreed to take care of it.
Reeves testified that he is directly involved in Employers safety program. He stated that it would be impossible for an employee to get his entire body in one of the holes with columns in them.
Did the Division establish a violation of section 1632(h)?
FINDINGS AND REASONS
DECISION AFTER RECONSIDERATION
Section 1632 is contained in Article 19 Floor, Roof, and Wall Openings, of the Construction Safety Orders, and coverage of the provisions are specified in subsection (a) which states:
This section shall apply to temporary or emergency conditions where there is danger of employees or materials falling through floor, roof, or wall openings, or from stairways or runways.
We recently stated that the above language reflects an intent to address the hazard of employees or materials falling through openings in floors, roofs, walls, or from stairways or runways arising from temporary or emergency conditions. (Bostrom-Bergen Metal Products, Cal/OSHA App. 00-1012, Decision After Reconsideration (Jan. 10, 2003) [italics in original].) Thus, subsections (b)-(m) of section 1632 provide specific guarding requirements for various openings which apply to temporary or emergency conditions as specified in subsection (a). (Id.)
Section 1632(h) addresses the requirement for floor holes and states:
Floor holes, into which persons can accidentally walk, shall be guarded by either a standard railing with standard toeboard on all exposed sides, or a floor hole cover of standard strength and construction that is secured against accidental displacement. While the cover is not in place, the floor hole shall be protected by standard railing.
To establish a violation of the safety order, the Division must establish each of the following elements: 1) the condition exists as a result of a temporary or emergency situation; 2) a floor hole (opening) existed into which persons could accidentally walk, and 3) it was not protected by a standard railing and toeboard or a cover secured against accidental movement. (See, Tri-City Reinforcing Corp., Cal/OSHA App. 93-3101, Decision After Reconsideration (June 30, 1999).)2
Employer argues that it was not in violation of section 1632(h) since there were no holes in the floor into which someone could accidentally walk. Employers witness, Reeves, opined that it would be impossible for an employee to get his entire body in one of the holes with the structural steel columns. In other words, the holes were not large enough for a person to fall into and thus were not subject to the cited section. Employer appears to base its position on the words falling through in the coverage provision contained in section 1632(a).
In Tutor-Saliba Corporation Cal/OSHA App. 99-3388 Decision After Reconsideration (Mar. 2, 2002), we recently addressed the interpretation and application of section 1632(h). In that case, an employer was cited for violation of section 1632(h) for numerous unguarded holes in the floor which consisted of electrical boxes set into the floor and enclosed on three sides by the floor with the open side flush with the elevation of the top of the floor slab. The holes measured 8 ½ inches long, 4 inches wide and 4 inches deep. We found that the Standards Board intended to protect employees working around floor holes against injuries, e.g. twisted and broken ankles, that can be caused by accidentally walking or stepping into even shallow holes, not the graver danger of falling through the floor to a lower level of the building. (Id.) We have previously noted that injury may result from hitting the side of the opening or some protruding object in the opening, even if the fall is relatively short. (MCM Construction, Inc., Cal/OSHA App. 89-482, Decision After Reconsideration (Feb. 21, 1991))
Section 1632(h) pertains to the hazard of an accidental fall of an employee into floor holes and we reject any notion that the section requires that the hole or opening be large enough for an employee to get his entire body in one of the holes. Consistent with Tutor-Saliba-Perini and Buckley & Co., we find section 1632(h) is violated if an employees foot could accidentally enter the floor hole. Since injury to the foot, ankle, lower leg, or even to the body from contacting the structural steel column can occur during a fall into such hole, it is subject to coverage under section 1632(h).
In finding a violation, the ALJ expressly credited the testimony of Inspector
Klein that there were at least 70 unguarded instances of the violation in three
buildings. Absent substantial evidence to the contrary, we will not disturb
credibility findings made by the ALJ who was present at the hearing and able
to observe the demeanor of the witness while testifying. (Lortz & Son
Mfg. Co., Cal/OSHA App. 80-618, Decision After Reconsideration (Aug. 28,
1981); Lamb v. Workmens Compensation Appeals Board (1974) 11 Cal.3d
274). Further, the ALJ determined, and we agree, that Kleins testimony
was corroborated by six photographs entered into evidence that were taken by
Klein at the site during the inspection.3
We further find that the evidence established that most of the floor holes were
temporary allowing for the placement of footings for the structural steel columns,
and thus, the hazard posed by their presence arose from a temporary condition
during the construction process.
Employer offers no contrary evidence in the record to justify reversing the ALJs finding. Rather, Employer argues that the holes were footings for structural steel columns, all of which had structural steel columns in them to support the roof referring to supporting testimony by Employers Project Superintendent Brown and Foreman Reeves.4 However, Browns testimony does not support the fact that all holes had structural steel columns since one hole (Exhibit 3B) does not contain a steel column. Also, Brown testified that 95% of the holes were 12 inches deep from finished floor to footing and at least one large floor hole or opening with rebar in it (Exhibit 4A), was prepared so concrete could be poured into it. Another hole was 3 feet deep (Exhibit 3A). Brown also testified that the holes had been open at least one week prior to the inspection.
Regardless of the purpose of the holes in the floor, openings into which employees could fall and incur injuries such as twisted or broken ankles, or injuries resulting from hitting the side of the hole or a protruding object in the hole (such as a steel structural column or rebar) are the types of openings which section 1632(h) is intended to address, based upon our previous case authority discussed above. We find that upon our review of the evidence, including the photographs, the depicted floor holes were such "openings" into which employees could accidentally fall and incur the same types of injuries which the safety order was intended to protect against. Further, the fact that numerous holes existed throughout the three buildings under construction as observed by Klein increases the hazard to employees working in those buildings at the site.
Based upon the above, the evidence establishes that Employer violated section 1632(h).5
DECISION AFTER RECONSIDERATION
The Board affirms the ALJs Decision finding a general violation of section 1632(h) and assessing a civil penalty of $560.
MARCY V. SAUNDERS, Member GERALD P. OHARA, Member
OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: February 6, 2003
1 Unless otherwise specified, all section references are to
Title 8, California Code of Regulations.
2 The requirement stated in section 1632(h) was renumbered from section 1632(i) in 1996. A repeal of another subsection and renumbering of the section became operative on June 1, 1996.
3 Although the ALJ found a violation of section 1632(h), the violation was reclassified from a serious to a general violation based upon her determination that the Division failed to establish the necessary elements to establish the violation as serious. In its petition, Employer has not contested the basis for the ALJ's calculation of the penalty. Any objection or issue not raised in the petition for reconsideration is deemed waived. (§ 391)
4 We do not interpret the openings or holes themselves to be footings as suggested in Employer's petition. In an architectural context, the meaning of "footing" is "the projecting base or enlarged foundation put under a column, wall, etc. to spread its weight and prevent settling." Webster's New World Dictionary of the American Language, 2nd College ed., 1974, p. 543. It is the space from the finished floor to the top of the footing which comprises the floor hole and is consistent with the description provided by Brown during his testimony.
5 Employer also argues that the finding of a violation in this case places an unfair burden on Employer in the competitive marketplace since no other tilt-up contractor guards structural steel roof column footings once the structural steel has been placed in the footing. However, even if such is established in the evidentiary record (and here it is not) we have long held that common industry practice cannot supplant the mandates of a safety order. (Hyatt Die Casting Co., Inc., Cal/OSHA App. 93-1530, Decision After Reconsideration (Oct. 1, 1997) The Appeals Board may not substitute its judgment for that of the Standards Board who is given the authority to promulgate the safety orders. (C.C. Meyers, Incorporated, Cal/OSHA App. 95-4063, Decision After Reconsideration (June 7, 2000))