BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

In the Matter of the Appeal of:

R. E. HARBOR & COMPANY, INC.

10641 Pullman Court

Rancho Cucamonga, CA 91730

                              Employer

 

 

Docket No.

96-R4D1-4029 and 4030

 

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 R. E. Harbor & Company, Inc. (Employer), makes the following decision after reconsideration.

JURISDICTION

On August 13, 1996, the Division of Occupational Safety and Health (Division), through compliance officer Richard Eslava, conducted an inspection at a place of employment then maintained by Employer at the corner of Sixth Street and Normandie Avenue in Los Angeles, California. On December 12, 1996, the Division issued to Employer Citation No. 2, alleging a serious violation of section1 1515(a) [head protection] and Citation No. 3, alleging a serious violation of section 5002 [overhead loads], with proposed civil penalties totaling $1,370.

Employer filed a timely appeal contesting the classification of the violation alleged in Citation No. 2, and the existence of the violation alleged in Citation No. 3. At hearing, the appeal was expanded to include the existence of the violation alleged in Citation No. 2 and the reasonableness of the civil penalties. After a hearing before an administrative law judge (ALJ) of the Board, a decision was issued on December 10, 1997, finding serious violations of sections 1515(a) and 5002, but reducing the civil penalties to $750 because they involved multiple serious violations involving a single hazard.
On January 9, 1998, Employer filed a petition for reconsideration. On February 10, 1998, the Board granted Employer’s petition for reconsideration. On February 13, 1998, the Division filed an answer.


EVIDENCE

In making this decision, the Board relies upon its independent review of the entire evidentiary record in this case. The Board has taken no new evidence and adopts and incorporates by this reference the summary of evidence set forth on pages two and three of the ALJ’s decision.

An R.E. Harbor foreman and two employees were moving a traffic signal pole with a truck-mounted crane in order to install video equipment on the top of the pole at the northeast corner of Normandie Avenue and West Sixth Street. The metal pole was mounted on the sidewalk and was 30 feet tall. A six-foot horizontal arm with a street light was attached to the top of the pole. A 15-foot arm, with traffic lights and a "no left turn" sign at the end, was attached to the pole 18 feet above its base. Both arms pointed in the same direction and extended westward over Normandie Avenue.

The pole had to be moved out of its normal position so that workers could connect the video equipment to underground cables. This was accomplished by attaching the crane’s hook to a synthetic fiber sling wrapped around the 15-foot mast arm near its junction with the pole. The crane then lifted the pole, in a vertical posture, approximately 12 inches to 18 inches above the sidewalk, moved it three to six feet north, and lowered it onto a secured, temporary base plate. Once the necessary equipment connections were made, the pole was returned to its permanent base by the same means.

The open throat of the crane hook was not closed by a safety latch that would prevent the fiber sling from coming out of the hook. None of the employees were wearing head protection.

Employer’s foreman, Mr. Ibarra, testified that a worker went into the street to "watch the arm" and to "regulate traffic," though a police officer was there to control traffic. Ibarra testified that the employee went approximately 20 feet out into Normandie and that the distance from "the pole" to the worker was 20 feet.

Eslava, the Division’s compliance officer, testified that synthetic fiber slings stretch somewhat when a load is attached, and that the elasticity of such a sling can cause a load to "bounce" and the sling to disengage from an ordinary, unsecured crane hook if the crane or its load accidentally contacts some other object. He acknowledged that the weight of the arms, traffic light, and sign on the west side of the pole would have a tendency to cause the pole assembly to tip in that direction. Nonetheless, based upon his experience, it was Eslava's opinion that if a load of the configuration and weight of the pole and its attachments disengages from the hook, too many variables affect the course of its fall for the direction of a fall to be predicted reliably. Even though the crane lifted the bottom of the pole only 12 inches to 18 inches above the sidewalk, employees within a 30 foot radius of the bottom of the pole were within its potential fall path and could have been struck from above by the pole if the sling slipped off the crane hook. Thus, the load was "directly overhead" of the employees for purposes of section 5002 and had to be attached to the crane line with a safety hook. The load also exposed the employees to the hazard of being struck by falling objects and made personal head protective equipment for them mandatory under section 1515(a).

Ronald Harbor, Employer's owner, testified that he had been in the electrical construction business since 1967. He had operated cranes like the truck crane at the site to make similar lifts for many years. This experience provided him with knowledge of "what loads can and will do." Harbor had never seen a load "bounce," as described by Eslava. He had seen poles with traffic signal and street light arms on one side dropped by cranes. The weight of the mast arms and attached equipment caused the dropped poles to fall over in the direction the arms pointed. When the tip of a 15-foot mast arm hit the ground, the arm remained intact and the pole deflected to one side or the other.

At the site, the arms were on the west or Normandie Avenue side of the pole. Thus, if the pole had been dropped it probably would have tipped over into Normandie Avenue. When the end of the 15-foot traffic light arm struck the pavement, it could deflect the pole 15 feet to the left or right, limiting the possible final resting area to a wedge shaped space extending from the end of the pole out into Normandie Avenue.

ISSUES

1. Were employees in a zone of danger where a suspended load not secured by a safety hook could fall and therefore exposed to a violation of section 5002?

2. Was a worker exposed to falling objects requiring the use of approved head protection?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

1. Employees Were in a Zone of Danger Where a Load Not Secured by a Safety Hook Could Fall and Therefore Were Exposed to a Violation of Section 5002.

Citation No. 3 alleges a violation of section 5002, which reads as follows:

Operations shall be conducted and the job controlled in a manner that will avoid exposure of employees to the hazard of overhead loads. Wherever loads must be passed directly over workers, occupied work spaces or occupied passageways, safety type hooks or equivalent means of preventing the loads from becoming disengaged shall be used.

It was undisputed that no “safety type hooks” or equivalent means were used to prevent the load from becoming disengaged by closing the open throat of the crane hook.

The ALJ found that the pole was "overhead" within the meaning of section 5002 and the definition of that term found in section 4885,2 even though the bottom of the pole was only 12 to 18 inches above ground. He did so because the pole extended skyward 30 feet, far higher than the workers’ heads. Thus, if it disengaged from the hook, the upper part of the pole could have fallen from overhead onto employees in its path.

Employer contends that section 5002 did not apply. Employer’s contention is based on the second sentence of that section which provides that, "[w]herever loads must be passed directly over workers, occupied work spaces or occupied passageways, safety type hooks or equivalent means of preventing the loads from becoming disengaged shall be used."

Employer contends that section 5002 mandates the use of a safety hook only for loads [that] must be passed directly over workers. The bottom of the load, i.e., the end of the pole, was never more than 18 inches above the sidewalk. Employer contends that the evidence does not prove that any part of the pole and mast assembly was ever directly over a worker or worker-occupied work spaces or passageways, and that therefore, there was no violation of section 5002.

Employer would be correct if the Division had to prove that if the exact outline of the load, as it moved, had been projected onto the ground; the outline would have covered a worker. However, the ALJ did not hold the Division to that standard of proof. Instead, the ALJ determined that the area over which the load passed directly, "include[d] the entire zone of danger created by the load, not simply the area immediately beneath the pole and its extended arms."3

As authority therefor, the ALJ cited Marin Storage & Trucking, Inc.4 In Marin Storage, a crane operator left his crane unattended with an unblocked 38 foot-long load suspended 160 feet above ground, in violation of section 4999(h)(2). Three employees were approximately 50 feet away from a point directly beneath the center of the unattended load.5 The Board found that it was "more likely than not" that at least one of the employees would have been injured if the load had dropped and, thus, was exposed to the violation.

In principle, Marin Storage is in accord with the ALJ's ruling, in that workers need to be protected from overhead loads, but it deals with a different section. Unlike section 5002, which requires safety hooks only for ". . . loads [that] must be passed directly over workers, occupied work spaces or occupied passageways. . . . ,” section 4999(h)(2) applies to all suspended loads except those suspended over water or a barricaded area.

Construing "passed directly over" as narrowly as advocated by Employer would undermine significantly the protective purposes of the safety order since many factors may cause a load to fall or scatter beyond the "outline" it would project onto the ground at the time the sling separates from the hook. The factors include, e.g., whether the load consists of one unit or multiple units, its elevation, the speed and direction of its movement and the manner in which the separation occurs.

The Standards Board took these factors into account by mandating that section 5002 applies not only when a load must pass directly over workers, but also when it must pass directly over "occupied work spaces or occupied passageways." There would be no reason to add these additional prohibitions if the Standards Board intended section 5002 to apply only if workers are within the projected outline of the load. The references to “occupied work spaces and occupied passageways” immediately follow the prohibition of exposure to loads passing directly overhead without safety hooks. They would be meaningless unless they referred to areas other than the space directly below the load as it is suspended. It is well settled that, when interpreting safety orders, " . . . significance should be given, if possible, to every word, phrase, sentence, and part of the regulatory enactment."6

In the Board’s view, given its reasonable significance in the context of section 5002, a "work space" is not just the point where an employee is standing. It includes also the space around the employee that he or she may reasonably be expected to enter in the course of performing the work the employee is there to do. The Board also believes that a work space is "occupied" if an employee is anywhere within it.

The Board agrees that, if the sling slipped off the non-safety hook, the height and configuration of the falling pole would expose employees in the path of its fall to the hazard of being struck by an object descending from above. Thus, the lack of a safety hook on the crane lifting the pole could have caused workers the same sorts of injuries that persons in the fall path of a load suspended any substantial height above ground from a non-safety hook would receive if the sling slipped off the hook. In both instances the equipment involved, the violative condition, the manner in which the violative condition may produce injury, and the types of injuries likely to be produced, are much the same.

The Board finds that the testimony of compliance officer Eslava established that the pole could have fallen anywhere within a broad circle around the load, and that it created a zone of danger. Section 5002 therefore applied within that zone of danger.

Even if the employee in the street was not performing a necessary function, a violation would be established. As the ALJ explained, section 5002 has two distinct but related mandates. The first is that any employees not performing a function requiring their presence in the exposed area are to be kept out of that area. If the employee in the street was not performing a necessary function, a violation would be established under the mandate of section 5002 to keep all employees out of the area of exposure except those who must be within it. The alternative interpretation would have the absurd result of protecting employees performing necessary functions but licensing the unnecessary exposure of employees who had no valid reason to be in the zone of danger.

The comprehensive employee safety and health purposes of the California Occupational Safety and Health Act of 1973 imply that the Standards Board intended section 5002 to apply to the lift in issue here. This interpretation is in keeping with the California Supreme Court's direction in Carmona7 to construe safety orders liberally to achieve a safe working environment.

For these reasons, The Board affirms the ALJ's finding that a violation of section 5002 was established.

2. Workers Were Exposed to Falling Objects, Requiring the Use of Approved Head Protection.

Citation No. 2 alleged a serious violation of section 1515(a) which, when this inspection took place on August 13, 1996, provided, in pertinent part, that, "[e]mployees exposed to . . . falling objects . . . shall be safeguarded by means of approved head protection . . . ." Because the evidence established that the second worker was exposed to the hazard of being struck by the pole if it fell, it follows that he was exposed to the hazard of "falling objects," within the meaning of section 1515(a). He therefore had to be "safeguarded by means of approved head protection."8 It was undisputed that the worker was not wearing head protection. Thus, the evidence supports the ALJ's findings that a worker was exposed to falling objects and was not wearing head protection, and those findings support his conclusion that section 1515(a) was violated.

The Board finds that Employer, through its petition, has failed to show that the evidence presented does not justify the ALJ's findings of fact or that the findings do not support the ALJ's decision.

DECISION AFTER RECONSIDERATION

The ALJ's decision is reinstated and affirmed. Employer's appeals from Citation Nos. 2 and 3 are denied. Civil penalties totaling $750 are assessed.

BILL DUPLISSEA, Member
MARCY SAUNDERS, Member

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
SIGNED AND DATED AT SACRAMENTO, CALIFORNIA - February 23, 2001

1Unless otherwise indicated, all section references are to Title 8, California Code of Regulations.
2 "For the purpose of Group 13 [crane] Regulations, overhead loads are loads either passed or suspended directly over employee-occupied work-spaces or passageways." (Id.)
3 Decision, p. 6.
4 OSHAB 90-148, DAR (Oct. 25, 1991).
5 Since half of the length of the load, 19 feet of it, was on either side of the midpoint, the employees 50 feet away were approximately 30 feet beyond the "outline" of the load.
6 See, e.g., Anning-Johnson Company, OSHAB 85-1438, DAR (Dec. 31, 1986), citing Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal. 3d 222, 230.
7 Carmona v. Division of Industrial Safety (1975) 13 Cal.3d 303.
8 Section 1515(a) of the Construction Safety Orders was repealed effective February 27, 2000, because it referred to out-dated ANSI standards and is duplicative of section 3381(a) of the General Industry Orders which, but for updated ANSI references, is identical.