BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

In the Matter of the Appeal of:

TUTOR-SALIBA-PERINI

15901 Olden Street

Sylmar, CA 91342

                              Employer

 

 

Docket No.

97-R6D2-784 through 786

 

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 Tutor-Saliba-Perini (Employer), makes the following decision after reconsideration.


JURISDICTION


On November 18, 1996, Engineer Colleen Lykins of the Division of Occupational Safety and Health (the Division) conducted a high hazard inspection at a place of employment maintained by Employer at 320 N. Vermont Avenue, Los Angeles, California (the site).

On March 6, 1997, the Division issued three citations to Employer as follows: a repeat/general violation of section 1740(g) [storage of oxygen cylinders] with a proposed civil penalty of $1,700, and two serious violations, one for section 1670(c) [unsecured lanyards] and one for section 1712(c)(1) [failure to protect protruding rebar steel] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations.1 Each serious violation had a proposed civil penalty of $1,060.

Employer filed timely appeals contesting the existence and classification of each of the alleged violations and the reasonableness of the proposed civil penalties.

A hearing was held before Ashaki Hesson, Administrative Law Judge (ALJ) of the Board, in Los Angeles, California. David Watts, Corporate Safety Manager, represented Employer. Deborah Lee, Industrial Hygienist, represented the Division. On February 26, 1999 the ALJ issued a decision denying Employer's appeals from all of the citations and assessing civil penalties totaling $3,820.

Employer filed a petition for reconsideration on March 24, 1999. The Division did not file an answer. The Board granted Employer's petition on May 4, 1999.


EVIDENCE

Docket No. 97-R6D2-784
Repeat/General; § 1740(g)

Employer was cited for failing to separate a stored oxygen cylinder from fuel gas cylinders as required by the cited regulation.
Lykins, the inspecting officer for the Division, held an opening conference with site safety representative Frank Estrada, who accompanied her on the inspection where she observed one oxygen tank and three acetylene tanks being stored in a rack without a firewall between them. Estrada admitted the tanks belonged to Employer and promptly removed the one containing oxygen. Lykins believed the capped cylinders were in storage because there was no welding being performed. In her opinion, the storage created a potential for an explosion. Employees entering the building where Employer maintained offices on the second floor were in danger because they were within 30 feet of the tanks.

Regarding the repeat aspect of the alleged violation, Lykins testified that an earlier citation, issued April 5, 1995, (following a March 6, 1995 inspection) alleged a violation of the same section because an oxygen tank and an acetylene tank were being stored five feet from each other. That citation, which was submitted by Employer as an exhibit, clearly displays the name of the employer as Tutor Saliba Corporation. That citation was abated and settled by the parties. A final amended order was issued on December 3, 1996.

Because the instant citation was classified as repeat the proposed civil penalty was calculated at $1,700 rather than $425, which it would have been had the violation not been classified as repeat.


ISSUES


Was a violation of section 1740(g) established?

Was the violation properly classified as repeat?


FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION


1. A Violation of Section 1740(g) was Established.

Employer was cited for a violation of section 1740(g), which reads as follows:

(g) Oxygen cylinders in storage shall be separated from fuel-gas cylinders or combustible materials (especially oil or grease), a minimum distance of 20 feet or by a noncombustible barrier at least 5 feet high having a fire-resistance rating of at least one-half hour.

Employer argues that the cylinders were not in storage and therefore they did not violate section 1740(g) because,

It is not reasonable to assume that gas cylinders are in a state of storage simply because they are observed with their caps on. Especially when they are in a rack designed specifically for the purpose of transport.

Employer also argues:

The definition of ‘storage’ becomes a key element in the determination of this violation. The word Storage is used eight hundred and eight times throughout the safety orders. The word ‘stored’ is used four hundred and thirty four times throughout the safety orders. Their context and meaning is varied but employer believes the judges interpretation as rendered in the decision, ‘a state more indicative of storage than transportation’ is unfairly harsh, generic and obtuse, considering the nature of the work we do in heavy and civil construction. After all we are one of few contactors capable of performing the work on the Los Angeles Metro Rail Project.

The ALJ made a factual finding based upon Lykins' testimony that the oxygen and acetylene tanks were stored side by side in the same rack and that there was no firewall between the tanks. Photographic evidence introduced at the hearing supports this conclusion.

We hold that the purpose of the section is to prevent oxygen cylinders not in use from being placed within 20 feet of fuel-gas cylinders or combustible materials unless a non-combustible barrier at least five feet high with a fire rating of at least one half hour separates the tanks. We further hold that storage within the context of section 1740(g) means not in actual use. Since a leak in the tanks in close proximity to each other increases the likelihood of mixing the elements, which could lead to fire or explosion, it is clear to us that storage has to be defined in the broadest possible terms. Also, since the purpose of the Act is to insure employee safety, we find that any other interpretation would defeat that purpose. (See, e.g., Carmona v. Division of Industrial Safety (1975) 13 Cal.3d 303.)

Therefore, we find that a violation of section 1740(g) was established against Employer.

2. The Violation was not Properly Classified as Repeat.

In order to establish the repeat classification, the Division must establish that among other things, the earlier citation was properly served on the same employer. (The Herrick Corporation, OSHAB 97-2604 Decision After Reconsideration (Mar. 28, 2001).)
Employer argues that it did not violate section 1740(g) or, if it did, that the violation was not a repeat violation because it was not the same employer as the one who received the earlier citation.

Employer points out that the evidence established that the previous citation was issued and established against Tutor Saliba Corporation. This citation was issued against Tutor-Saliba-Perini. Employer argues that these are two separate and distinct entities.

The Division did not respond to Tutor-Saliba’s contention in its petition for reconsideration that the citations were issued to two different employers. We assume that silence on this issue equates to acquiescence in Employer’s position. As we recently noted in Alfredo Annino, OSHAB 98-311, Decision After Reconsideration (April 25, 2001), “prosecuting the proper entity is an element of a violation that comes within the Division’s burden of proof.”

The Division failed to prove the elements necessary for a repeat violation. The classification is reduced to general and the civil penalty is reduced from $1,700 to $425.


EVIDENCE

Docket No. 97-R6D2-785
Serious; § 1670(c)

Employer was cited because an employee was observed standing on the 16th rung of a 21-rung portable extension ladder with his lanyard looped around the top rung of the ladder and secured to his belt.

Lykins testified that during her inspection she observed an employee on the ladder for five to ten minutes installing or removing fasteners in concrete with an electric drill. He was 15 feet from the concrete surface below. He had one foot on the 16th rung of the ladder and the other one on a scaffold with his lanyard tied around the top rung of the ladder and secured to his belt.

Division Exhibit 14 shows double number 9 wire fastening the top rung of the ladder to rebar. The tie-off would not have prevented the employee from going down with the ladder although another employee is holding the ladder.

There is no drop line or cantenary line as required when an employee is performing work 7½ feet and over.

The violation was classified as serious because there was a substantial probability of serious injury or death if an employee, who was working in plain view, fell from the ladder.

Employer's safety representative Frank Estrada who has 12 years of experience, testified that he performed daily observations and walk-throughs at the site. The employee shown in Division Exhibit 12 at the base of the ladder was a spotter whose job it was to prevent the ladder from moving and to warn other employees not to go up or down the ladder while someone else was on the ladder. He was to stay at the base until the job was completed and was considered the first level of safety for the employee on the ladder.

The employee on the ladder was removing ties from existing concrete. The number 9 doubled over wire shown in Division Exhibit 14 should have been able to prevent the ladder from shifting. In Estrada's opinion, it was a safe operation because number 9 wire is safe enough for rebar. There was no heavy or mechanized equipment, such as a forklift, to displace the ladder, which was Employer’s primary concern.

Although the employee was only tied-off on one side, Estrada thought that the use of the spotter was adequate to keep the ladder secured. Employees tie off with lanyards to protect themselves from falling. It was the responsibility of the foreman to insure that employees were tied-off to the structure.


ISSUE


Was a serious violation of section 1670(c) established?


FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION


3. A Serious Violation of Section 1670(c) was Established.

Section 1670(c) states2:3

(c) Lanyards shall be secured to a substantial member of the structure or to securely rigged lines, using energy absorbing devices or methods.

Employer argues that Tutor-Saliba-Perini:

Does not advocate the practice of securing a lanyard ‘around the top rung’ of any ladder. This is contrary to company practice and procedure. In employer’s defense we would ask that some credit be given employer for the elements of this citation that have been given less weight.

The ALJ found, and we concur, that Lykins’ testimony and the photographs she took of the employee standing on the ladder prove that his lanyard was tied to the ladder and not to a substantial member of the building structure. We find that a violation of section 1670(c) was established because the employee did not have the required protection that would have prevented him from falling 15 feet to the concrete surface below had the ladder toppled. The violation was classified as serious. To justify that classification it was incumbent upon the Division to prove, by a preponderance of the evidence, that there was a substantial probability the violation could have resulted in serious physical harm or death and that Employer either knew of the violation or could have known of it by exercising reasonable diligence. (See Labor Code § 6432(a).)

Lykins testified that, in her experience, death or serious physical harm could have resulted if the employee had fallen from the 15-foot height where he was working. That evidence established the first element of a serious violation.
To show Employer could have known of the violation by exercising reasonable diligence, the Division had to prove the violation occurred at a time when Employer could have detected it. (See Lights of America, OSHAB 89-400, Decision After Reconsideration (Feb. 19, 1991).)

While proceeding through the inspection with safety representative Frank Estrada, Lykins observed the operation performed from the ladder for 10 to 15 minutes. That was ample time for Estrada and supervisors in the immediate work area to also be aware of how the employee’s lanyard was secured. The testimony of Estrada was corroborative of Lykins testimony. Employer was aware of the dangers associated with such work because it always provided a spotter at the base of the ladder. The spotter was responsible for remaining at the location until the employee on the ladder had finished removing ties from the concrete and gotten off the ladder. These facts, taken together, prove that Employer had actual knowledge of the violation of section 1670(c) therefore it was properly classified as serious.

Employer contends that the classification of the violation should be reduced from serious to general because Lykins testified that the likelihood of an accident was low since the ladder was tied off to the rebar and a spotter was assigned to help prevent an accident from occurring. Employer argues that this shows there was not a substantial probability that death or serious injury would result from an accident.

Labor Code section 6432(c) precludes Employer's argument because it provides:

As used in this section, "substantial probability" refers not to the probability that an accident or exposure will occur as a result of the violation, but rather to the probability that death or serious physical harm will result assuming an accident or exposure occurs as a result of the violation. (Emphasis added.)

Thus, we hold that measures like tying a ladder which reduce the likelihood of an accident occurring have no bearing on establishing a serious classification because Labor Code section 6432(c) requires the assumption that an accident has occurred. Employer received a penalty reduction for the steps it took to reduce the likelihood of an accident, a credit provided for in Labor Code section 6319(c).

We find no flaws in the analysis of the ALJ on this citation and affirm this violation.


EVIDENCE

Docket No. 97-R6D2-786
Serious; § 1712(c)(1)

Employer was cited because employees working at the station's main Entrance incline, which extended from the street to the next level below, were working above vertical protruding reinforcing steel (rebar) that was not protected to eliminate the hazard of impalement.

Lykins testified that she was standing at street level looking down through plates and pipes to the main entrance incline where the escalator was to be installed. (Division Exhibits 17 and 18). There was exposed rebar and work was being done on the incline from the street level down to the bottom of the station.

She identified Albert Arrellano (shown in Division Exhibit 17) as one of a number of employees working on and around the incline, where they could have been impaled on the unguarded 2 to 3 foot rebar.

Lykins cited the violation as serious because there was a substantial probability of death, impalement, or other serious injury if an employee working at or above a point where unguarded rebar was protruding from the entrance incline fell down. She felt that Employer should have known of the exposure because it was in plain view.

On cross-examination, Lykins testified she could not determine whether Arrellano was tied-off while he worked because of the distance from which she took the photograph and the relative darkness where he was working.

Lykins explained that, in her opinion, there was nothing Arrellano could tie off to as he walked down the slope to exit his work location.

Arrellano testified for Employer that he was tied off in Division Exhibit 17 and that he only could have fallen 2 to 3 feet. Employer's safety representative Robert DeMott testified that it was mandatory for employees to be tied-off at a height of six feet during the procedure shown in Division Exhibits 17 and 18. If Arrellano was tied-off, he could only have fallen 2 to 4 feet, depending upon how the lanyard was tied because employees usually doubled their lanyard to two feet.


ISSUE


4. Was a serious violation of section 1712(c)(1) established?


FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

4. A Serious Violation of Section 1712(c)(1) Was Established.

Section 1712(c)(1) states:

Employees working at grade or at the same surface as exposed protruding reinforcing steel or other similar projections, shall be protected against the hazard of impalement by guarding the exposed ends with protective covers, troughs, or caps.

Employer contends that since the:

Division inspector testified she could not determine whether Mr. Arrellano was tied-off as he worked because of the distance from which she took the photograph and the relative darkness where he was working. Employer would infer that the Division failed to ascertain any level of exposure, but rather saw the employee and assumed that employee was exposed to rebar projections.”

The Division had to prove that employees were exposed to protruding rebar, which was not guarded by protective covers, troughs or caps. If Employer wanted to prove that exposed employees were legally protected by compliance with some other regulation, they could have affirmatively established that. We find nothing in the record that shows that Employer presented a viable affirmative defense on this issue.The testimony of Lykins and Employer’s safety representative Robert DeMott establish that

Arrellano was not tied off. Employees of Employer were at various points working at grade while exposed to rebar that was not protected. A violation of section 1712(c)(1) was established.

The violation was properly classified as serious. According to Lykins’ undisputed testimony, there was a substantial probability that Arrellano could have been impaled or killed if he had fallen on rebar while working at grade, which he was doing at least part of the time during the inspection. It was also undisputed that Employer knew of the hazard of exposing employees to plain view rebar that was not protected by covers, troughs, or caps.

The $1,060 proposed civil penalty was not challenged at the hearing, therefore it is deemed reasonable and is assessed.


DECISION AFTER RECONSIDERATION

Docket No. 97-R6D2-784

The ALJ's decision finding a repeat/general violation of section 1740(g) is affirmed except that the classification of the violation is reduced to general, and the civil penalty is reduced to $425.

Docket No. 97-R6D2-785

The ALJ's decision finding a serious violation of section 1670(c) is affirmed and a civil penalty of $1,060 is assessed.

Docket No. 97-R6D2-786

The ALJ's decision finding a serious violation of section 1712(c)(1) is affirmed and a civil penalty of $1,060 is assessed



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


OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON:

1Unless otherwise specified all references are to sections of Title 8, California Code of Regulations.
2 Section 1670 was substantially amended on August 29, 1997, but that does not affect our analysis in this case since the citations were issued before that date.
3 The issue was not raised before the Board and we decline to address at this time whether section 1670(c) is the most appropriate section to cite under these facts.