BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

 

In the Matter of the Appeal of:

CAPITAL BUILDING MAINTENANCE SERVICES, INC.

183 Beacon Street

South San Francisco, CA 94080

                              Employer

 

 

Docket No.

97-R1D3-680 through 682

 

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 Capital Building Maintenance Services, Inc. (Employer), makes the following decision after reconsideration.

JURISDICTION

From November 19, 1996 through January 31, 1997, a representative of the Division of Occupational Safety and Health (the Division) conducted a programmed inspection at a place of employment maintained by Employer at 1900 South Norfolk Street, San Mateo, California (the site).

On January 31, 1997, the Division issued to Employer the following citations for violations of the occupational safety and health standards and orders found in Title 8, California Code of Regulations: Citation No. 1, Item 1, alleging a general violation of section1 3292(c)(5) [written safety assurance]; Citation No. 2 alleging a serious violation of section 3299(c)(3) [fall protection tie-off and design]; and Citation No. 3 alleging a serious violation of section 3291(f)(2)(C) [roof tie-backs].

Employer filed a timely appeal contesting the existence of the alleged violations and the reasonableness of the proposed civil penalties.

A hearing was held before Bref French, an Administrative Law Judge (ALJ) of the Board, in Foster City, California. Robert D. Peterson, Attorney, represented Employer. Ron Medeiros, Staff Counsel, represented the Division. On January 13, 1999, the ALJ issued a decision denying Employer’s appeal from all three citations. On February 17, 1999, Employer filed a petition for reconsideration and on March 24, 1999, the Division filed an answer. The Board granted Employer’s petition on March 25, 1999.

EVIDENCE

Vic Doromal testified for the Division that on November 13, 1996, he observed two workers on the roof of an office building using a davit system installation to set up the rigging in order to operate a suspended platform for maintenance work on the interior courtyard. The davit system consisted of davit arms attached to the top of davit sockets in the roof surface. Wire ropes were suspended from the davit arms to hold the work platform when it was suspended over the side of the building.

Doromal spoke to the workers who advised him that they worked for Employer. Doromal photographed the davit system and two employees using yellow, nylon rope safety lines. The safety lines, which had knots tied in them, are used for individual fall protection in the event that the suspended work platform falls. Knots in a line attached to a fixed anchorage point reduce the strength of the line (its capacity to hold a person’s weight) by 50%. One safety line was tied to the metal post of a windscreen for the HVAC equipment on the roof. While the workers were on the work platform scaffold, they used one of the safety lines on the roof to suspend themselves approximately seven to eight feet above the ground. The platform is winched up electrically from the ground level to the work location.

On November 14, 1996, Doromal observed the same workers on the roof trying to rig the davit arms. He observed a knotted safety line tied to a roof tie-back as well as a knotted line tied to another windscreen post. A tie-back is an anchorage point in the roof, which is used to secure a safety line that is designed to withstand a load of 5400 pounds. Although he did not test the wind screen post to determine if it would support 5400 pounds, he stated that, in his opinion, it was not designed as a roof tie-back. In his opinion, if the post broke, the line could come loose and a worker could fall.

The workers were using the knotted safety lines on the scaffold platform at heights ranging from 10 to 12 feet. Doromal opined that the safety line ropes they were using, “passed” the 5400 pound capacity requirement although he had no recollection or record of how he tested their strength.

Doromal identified a letter from Maxim Property Management, the building managers, dated January 7, 1997, which referenced a letter from Swing Scaffold Services, Inc., dated January 7, 1996, wherein Swing Scaffold Services, Inc., indicates that they performed a load test on the sockets, davits and tie-down anchors on the roof, and that the equipment “passed.” The letter, and the attached “Letter of Certification”, dated December, 1996, does not list the wind screen posts as certified anchorage points.

On cross examination, Doromal stated that the letter from Swing Scaffold Services, Inc., was dated January 7, 1996, by mistake (it should have been “1997”), although he did nothing to verify that the year date was a typographical error. Doromal did not know the date the davit system was installed on the building.

On November 19, 1996, after several attempts to reach Employer’s management personnel, Doromal spoke with Dennis DeBattista, who identified himself as Employer’s president, and confirmed that the workers were employees of Employer.

Doromal believed that Employer is required to obtain a written assurance letter from the building owners certifying that the davit system has been inspected and meets the safety standards for maintenance operations. Doromal requested an assurance letter from Employer, however he never received one. Doromal spoke to the building managers who informed him that they did not have an assurance certification. Doromal then cited Employer for a violation of section 3292(c)(5) in Item 1, for allowing employees to use the system before Employer obtained an assurance letter.

Doromal cited Employer for a violation of section 3299(c)(3) in Citation No. 2 because the safety lines had knots tied in them, and a violation of section 3291(f)(2)(C) in Citation No. 3 because a safety line was secured to a windscreen post rather than a roof tie-back. He classified the violations as serious since a fall from the roof, if the knotted safety lines failed or the anchorage post came loose, would result in serious injuries or death from a crushing injury if the work platform fell on the workers. With the exercise of reasonable diligence, Employer should have been aware that its employees were using knotted safety lines and tied-off at the wind screen post because the violations were in plain view and existed over the course of several days. Doromal stated that he did not ask DeBattista if he knew the strength of the safety lines used on November 13th or 14th.

Dennis DeBattista testified for the Division that as Employer’s president, he was familiar with the project. He visited the site at various times to make sure the job was being done correctly. Maxim Property Management, the building managers, told him that the davit and anchorage system had been inspected within one year of the scheduled project. He asked for a written assurance letter but he did not receive one before the work began.

District Manager Michael Horowitz testified for the Division that after the Division’s inspection on November 14, he spoke to Sean Turley, the building manager at Maxim Property Management, who stated that they did not have an annual certification for the window cleaning apparatus and maintenance installation on the roof. Turley indicated they would contract with a service to perform the inspection and that Employer should cease work until one was obtained. Horowitz identified the letter sent by Turley to him. He stated that both letters qualify as letters of assurance. He assumed the January 7, 1996, date on page 2 was a typographical error since the letter itself was date stamped January 8, 1997, when the Division received it. Horowitz did not take any further action to clarify the date.

ISSUES

Does Section 3292 only apply to permanent installations completed after July 1, 1993 and does the assurance need to be in writing?
Does Appendix C, section III, subsection (h)(3) allow an Employer to use a stronger lanyard to compensate for knots?
Did the Division establish a violation of section 3291(f)(2)(C)?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION


Employer contests the ALJ’s holdings with regard to Citation No. 1, Item 1, Citation No. 2, and Citation No. 3.

Citation No. 1, Item 1

Section 3292 Does Not Only Apply to Permanent Installations Completed After July 1, 1993.

Employer argues that it was not in violation of section 3292 because the cited section only applies to permanent installations completed after July 1, 1993 and argues that the regulation does not require that the assurance be in writing.

Employer contends that pursuant to section 3292(b)(1), the cited section only applies to permanent installations completed after July 1, 1993. And that, under section 3292(b)(2) an installation in existence before that date shall comply with section 3296 through 3299 and “Appendix C” of this article. Employer points out that the Division “failed to offer any evidence in support of its contention that the davit system was installed after July 1, 1993.”

Employer argues that, since the Division failed to establish the date of the system installation, it failed to establish a foundational requirement for proving a violation of section 3292(c)(5). Although no specific date of installation was established, there was evidence, via a letter, that the system was checked out by the installers some time in December 1996.

Employer offered no evidence as to the date of installation. Employer was in a better position than the Division to determine when the system was installed, and had the opportunity to present such evidence at hearing. Since Employer was mute on the issue at the hearing, it is reasonable to conclude that it had no evidence favorable to its position regarding the installation date of the system. Accordingly, Employer’s failure to offset the inference that the system was installed after July 1, 1993, with its own evidence weighs in favor of finding that the system was installed after this date. (See Evidence Code §413.)

The Assurance Needs to be in Writing.

Section 3292(c)(5) states that:

The employer shall not permit employees to use the installation prior to receiving assurance from the building owner that the installation meets the requirements contained in subsections (c)(1), (c)(3) and (c)(4) of this section.

Employer argues that the section does not require written assurance and that Dennis DeBattista, Employer’s President, testified that he was assured orally by the building’s management company, Maxim Property Management, that the davit and anchorage system had been inspected and approved as safe prior to the time his company began work at the building.

However, at the hearing, DeBattista, testified that prior to allowing its employees to work at the site Employer did not receive any written assurance from the building managers that the davit and anchorage system on the roof had been inspected and certified safe for use within the previous year. An admission at a hearing is an adequate basis upon which to rest a finding of fact. (C & S Battery and Lead, Co., OSHAB 77-001, Decision After Reconsideration (Oct. 18, 1977).) District Manager Horowitz verified that the building manager had not performed, or made available to Employer, the required annual certification prior to the date that the work began.

The Division contends that section 3292(c)(1) essentially defines what the regulation means by “assurance”; and, included in that definition is the requirement that the information be “in writing.” Accordingly, the reference to “assurance” in section 3292(c)(5) already presumes a written document that contains particular information.

Subsections (c)(1) and (c)(3) require written assurance by the building owners for new installations [subsection (c)(1)], and new and existing installations [subsections (c)(3)], that powered platform installations meet certain specified safety requirements. “Building owners of all installations, new and existing, shall inform the employer in writing that the installation has been inspected, tested and maintained in compliance with the requirements of Sections 3296 and 32972 and that all protection anchorages meet the requirements [specified] in Appendix C3.” [Subsection (c)(3)] [Emphasis added]

We agree with the ALJ that notwithstanding the lack of a reference to a “written” assurance in subsection (c)(5), section 3292(c)(5) mandates that an Employer obtain written assurance that the powered platform installation has been inspected, tested, and maintained in conformity with subsection (c)(3) prior to allowing its employees to use the installation. We make this determination because section 3292(c)(1) sets the stage for the reference to assurance in section 3292(c)(5) and that reference presumes a written document that contains assurances that the installation meets the listed requirements. We also note that a written assurance provides clear proof of compliance with the safety order. An oral assurance is not reliable in that there is no clear assurance that all parties’ interpretations will be the same as to what was assured and when it was assured. Also, they are not capable of as precise a judicial review as written assurances. Therefore, we agree that a violation of section 3292(c)(5) has been established.

Citation No. 2

2. Appendix C, Section III, Subsection (h)(3) Does Not Allow an Employer to Use a Stronger Lanyard to Compensate for Knots.

Employer contends that the ALJ incorrectly found a violation of section 3299(c)(3) because the ALJ’s analysis failed to address the reasons for determining why a mandatory safety order would prevail over a permissive safety order under the facts at hand.

(Section 3291(c)(3) states: “Portable davit systems shall comply with the applicable provisions of Article 6. (Title 24, Part 2, Section 2-8505(c)”.)

Appendix C, Article 6, Section III, subsection (h)(3) states:

“Tie-off using a knot in a rope lanyard or safety line (at any location) can reduce the safety line or lanyard strength by 50 percent or more. Therefore, a stronger lanyard or safety line should be used to compensate for the weakening effect of the knot….” (Emphasis added).

Employer argues that that section allows an employee to use a stronger lanyard to compensate for the weakening effect of a knot in a safety line.

Section 3299 requires that employees on working platforms shall be protected by a personal fall arrest system meeting the requirements of Appendix C, section I.

Appendix C, section I, subsection (c)(3) states that:

Lanyards and vertical safety lines which tie-off one employee shall have a minimum breaking strength of 5,000 pounds.... Knots shall not be permitted at ends or anywhere along the length of the lanyard or “safety line”.

The Division argues that: “Section 3299 … simply requires compliance with Appendix C, Section 1, of Article 6. Section 1(c)(3), ... prohibits the use of knots along the length of a lanyard.”

We find that Employer’s reliance is misplaced in that section III contains non-mandatory guidelines, which are intended to assist employers in complying with sections II and I. Also, subsection (h) applies to “tie-off considerations” at anchorage points, not knots at ends or along the length of a lanyard.

Doromal’s unrefuted testimony that two personal safety lines had knots along the length of the lanyard while in use by employees on the platform, on two separate occasions, is credited. Therefore, a violation of section 3299(c)(3) is established.

The Violation was Appropriately Classified as Serious.

Employer further argues that the ALJ inappropriately classified the alleged violation as “serious”, because the Division did not prove that Employer had either actual or constructive knowledge of the violative condition.

The Division responds that the violation existed for two days with no supervisor present. They argue in their answer to the petition for reconsideration that:

By keeping supervisors and management blind of how its employees were working, despite the obvious unsafe conditions…, Employer essentially allowed the unsafe condition to continue…. Since Employer chose not to keep itself informed of unsafe conditions surrounding its employees, it can hardly now claim that it was innocent of knowledge. A reasonable employer would have known of the unsafe conditions, and it is as a reasonable employer that Employer must be judged.

To classify a violation as serious, pursuant to Labor Code section 6432(a)4, it must be established, by a preponderance of the evidence, that there is a substantial probability that death or serious physical harm could result should an accident occur from a violation, unless an employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

“Substantial probability” refers not to the probability that an accident will occur as a result of the violation, but rather to the probability that death or serious injury will result assuming an accident occurs as a result of the violation. [Labor Code § 6432(b)]. “Probability” is something likely to occur, substantial probability is something more likely to occur (or be expected) than not.” (Abatti Farms/Produce, OSHAB 81-0256, Decision After Reconsideration (Oct 4, 1985).) The evidence must, at a minimum, show the types of injuries that would more likely than not result from the violative condition. (See Findly Chemical Disposal, Inc., OSHAB 91-431, Decision After Reconsideration (May 7, 1992).)

We will not disturb the ALJ’s finding that Doromal testified credibly that the workers were using the knotted safety lines on the scaffold platform on two separate occasions at heights ranging from 7 to 12 feet. We also decline to set aside the ALJ's factual resolution that a fall from a height of 12 feet would, to a substantial probability, result in serious physical harm under the facts of this case. Therefore, the Division’s evidence satisfied the first element of proof of the serious classification.

To prove the second element of a serious violation, the Division need not establish employer knowledge of a violation of a safety order, or that the principals or owners were actually aware of an unsafe condition, but rather it must establish actual or constructive knowledge of the violative condition. (West Coast Steel, OSHAB 81-191, Decision After Reconsideration (May 15, 1985).) Hazardous conditions in plain view may establish the knowledge element of a serious violation since the employer could detect it by exercising reasonable diligence. (Fibreboard Box & Millwork Corp., OSHAB 90-492, Decision After Reconsideration (June 21, 1991).)

We agree with the ALJ that “Employer should have been aware that the workers were using knotted safety lines since the violation could have been discovered, through observation and inspection by DeBattista, who visited the site on several occasions, or another supervisor,” and that, “Employer with the exercise of reasonable diligence, could have learned of the violative condition since it was in plain view.” (Fibreboard Box & Millwork Corp, Supra.) (See also Benicia Manufacturing Co., OSHAB 76-806, Decision After Reconsideration (Sept. 21, 1977) where the Board held that an unguarded, unenclosed V-belt and pulley drive visible to the naked eye constituted a serious violation, because the employer could have known of it with the exercise of reasonable diligence; (see also, Bob’s Big Boy Family Restaurants, OSHAB 78-908, Decision After Reconsideration (May 29, 1981).)

Citation No. 3

3. The Division Failed to Establish a Violation of Section 3291(f)(2)(C).

From the testimony and photographs, and the citation presented at the hearing it is clear that the building was equipped with tie-backs. The citation alleging a violation of section 3291(f)(2)(C) was issued because even though the roof of the building is equipped with tie-backs, employees tied their safety lines to metal posts of the wind screens for the HVAC equipment. There was no evidence presented to establish that these posts were not rated as substantial anchorages capable of supporting 5400 pounds per employee attached (mandatory per Appendix C to Article 6, section I(c)(10).

Our review of the record indicates that the Division did not meet its burden of proof. The Division contends that the “evidence was admittedly not ponderous, but it was sufficient to prove what was charged.”

We disagree. Based on the record, we conclude that the Division presented insufficient evidence to support its contention that tie-backs were used which would sustain a 5400 pound (tensile) load in any direction.

We will not address the issue of whether or not a “wind screen for the HVAC equipment” is a proper tie down because under the section cited 3291(f)(2)(C) the issue is whether or not the “assembly and anchorage provisions [used, were] adequate to sustain a 5400 pound (tensile) load in any direction.”5

DECISION AFTER RECONSIDERATION

Citation No. 1, Item 1

The Board affirms the ALJ’s decision finding a general violation of section 3292(c)(5) and assessing an $85 civil penalty.

Citation No. 2

The Board affirms the ALJ’s decision finding a serious violation of section 3299(c)(3) and assessing an $875 civil penalty.

Citation No. 3

The Board reverses the ALJ’s decision finding a serious violation of section 3291(f)(2)(C). Employer’s appeal from Citation No. 3 is granted.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: August 20, 2001

1 Unless otherwise specified all references are to sections of Title 8, California Code of Regulations.
2 Sections 3296 through 3297 set forth the inspection, testing and maintenance criteria.
3 Subsection (c)(4) does not apply in this case.
4 The employer knowledge requirement was amended effective January 1, 2000. The analysis in this case is based on section 6432(a) before its amendment.
5 We decline to address in this decision whether a more appropriate section, e.g. 3282(e) could have been alleged under the facts or whether there was a violation of section 3291(f)(1) because the issues were not fully briefed and are not necessary to address in order to reach this decision.