BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA


In the Matter of the Appeal of:

D. ROBERT SCHWARTZ dba ALAMEDA METAL RECYCLING and ALAMEDA STREET METALS

9101 South Alameda Street

Los Angeles, CA 90002-1845

                              Employer

 

 

Docket No.

96-R4D2-3553

 

  DECISION AFTER

RECONSIDERATION

Before the Appeals Board is a decision dated September 11, 1998, by an administrative law judge (ALJ) of the Board, finding violations of the occupational safety and health standards and orders found in Title 8, California Code of Regulations.1

On October 14, 1998, D. Robert Schwartz dba Alameda Metal Recycling and Alameda Street Metals (Employer) filed a petition for reconsideration. The Division of Occupational Safety and Health (the Division) did not file an answer. The Board granted Employer’s petition for reconsideration on December 2, 1998.

BACKGROUND

Employer used a crawler crane to move scrap metal at its salvage yard. Two years before the inspection, Employer had repaired the crane’s 40 foot lattice boom. The repairs included severing the boom into separate sections and four days of welding work, during which a four foot section of the boom was replaced using heavier steel with less tensile strength than specified by the crane’s manufacturer. The boom was not inspected by a certified inspector before being put into service. Several employees operated the crane during the period preceding the inspection.

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION


Section 5035(b)2 provides that “[a]ny new or extensively repaired boom . . . shall be tested before use. . . . When tests are necessary, they shall be performed in accordance with section 5022.” Section 5022(a)(3) requires that proof load tests of cranes shall be carried out “[i]n the case of major modifications or repairs to important structural components, before they are returned to service.”

Employer contends that the boom was not “extensively repaired” because only four feet of the boom’s forty-foot total length was replaced and repaired. Employer argues that the four foot section is too short to be considered “extensive.” Employer argues that because the safety orders do not provide a definition of “extensive” applicable to section 5035(b), “extensive” must be taken to refer to the number of linear feet of boom replaced, and that replacement of a four foot section of a forty foot boom is not extensive.

Where no definition of a term is supplied by the safety orders, the Appeals Board has applied the meaning attributed to the term in common usage or common law, in the absence of evidence of a contrary meaning.3 Black’s Law Dictionary defines “extensive” as “[w]idely extended in space, time, or scope; great or wide or capable of being extended.”4 The term “extensive” does not, therefore refer only to the number of linear feet of the boom repaired, but to the importance of the repairs undertaken.

The evidence supports the ALJ’s finding that the repairs were important in terms of renewed use of the boom. The boom had failed prior to the repair. It was severed into separate sections to be repaired. The welding work involved in the repair took four days to complete. The tensile strength of the steel added to the boom lattice during the repair was less than used by the manufacturer, and it was of a different weight. In these circumstances, the Board finds the repairs were extensive, and that inspection was required by section 5035(b) before the crane was put back into service.

The Appeals Board has considered the decision of the ALJ and the record in light of Employer’s petition for reconsideration5 and affirms the ALJ’s summary of evidence, rulings, findings,6 and conclusions and adopts the decision in its entirety. Accordingly, the ALJ’s decision is attached and incorporated7 by reference.

DECISION AFTER RECONSIDERATION

The decision of the ALJ dated September 11, 1998, is reinstated and affirmed.


BILL DUPLISSEA, Member
MARCY V. SAUNDERS, Member

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
SIGNED AND DATED AT SACRAMENTO, CALIFORNIA - March 15, 2001

1 Unless otherwise specified, all section references are to Title 8, California Code of Regulations.
2 In the decision, the ALJ referred to the cited section as section 5033(b), rather than section 5035(b), the section cited by the Division.
3 2B Sutherland, Statutory Construction, section 50.03 (6th ed., 2000); Kenneth L. Poole, Inc., OSHAB 90-278, DAR (Apr. 18, 1991).
4 Black’s Law Dictionary (5th ed., 1979).
5 Employer contends that the ALJ’s decision is invalid because the ALJ did not issue it until more than 30 days after the hearing closed and the evidence was submitted, as required by Labor Code section 6608. Orders extending the date of submission issued on April 22, May 31, July 30, and August 12, 1998. The Board has held that the language of Labor Code section 6608 is directory only and does not deprive the Board of jurisdiction even if a decision does not issue within 30 days of the original submission date. The Board has noted that similar language in other statutes has been given the same interpretation. (Roof Structures, Inc., OSHAB 78-478, DAR (June 30, 1981).
Employer also contends that the citation must be set aside because the citation, issued on October 21, 1996, was not heard until March 3, 1998. Employer does not claim that it was prejudiced by the delay. The Act does not fix a time limit within which a hearing must be held. The only restriction is that the hearing be held within a reasonable time. The reviewing agency does not lose jurisdiction unless there has been an unreasonable delay. (Horner v. Bd. of Trustees (1964) 61 Cal.2d 79, 86; Pearson v. County of Los Angeles (1957) 49 Cal.2d 523, 539.) The delay here was not unreasonable.
6 Employer contends that the ALJ’s crediting of witness Greg Williams’ testimony should be reversed because Williams runs a competing business next door to Employer. The Board will not reverse an ALJ’s credibility resolutions absent persuasive reasons. (Ignacio L. Zazueta, Jr., OSHAB 76-621, DAR (July 24, 1978). The fact that the witness was a business competitor, standing alone, is not a persuasive reason for reversing an ALJ’s credibility resolution.
7 No petition was filed as to Item 1, which alleged a violation of section 3203(a) [complete illness and injury prevention plan]. Therefore, no discussion of that item, which has become a final order of the Appeals Board (8 Cal. Code of Regs., § 390.3) appears in the Board’s decision after reconsideration, and it may not be cited as precedent.