EXECUTIVE SUMMARY
OCCUPATIONAL SAFETY AND HEALTH
APPEALS BOARD


Summary of Tutor-Saliba-Perini - DAR


The Division’s inspector observed an oxygen tank and three acetylene tanks stored on a rack without a firewall between them creating a potential for an explosion. The Board upheld the ALJ’s determination of a general violation of section 1740(g) [separate storage of oxygen cylinders] rejecting Employer’s position that the tanks were not in “storage” within the meaning of the regulation. The Board reversed the ALJ’s determination that the violation was a repeat violation. A prior citation in 1995 appeared to be against Tutor Saliba Corporation and the Division failed to establish that the prior citation was against the same legal entity as charged in the instant citation.
The Board also affirmed a serious violation of section 1670(c) [unsecured lanyard] based upon the Division’s observation of an employee standing on the 16th rung of a 21-rung portable extension ladder with his lanyard attached to his belt and looped around the top rung of the ladder. A spotter was at the base of the ladder to keep it secured. Since the regulation requires that lanyards be secured to a substantial member of the structure or to securely rigged lines, a violation was established. The violation was properly classified as classified as serious. It is not the low likelihood of an accident that determines a serious violation as argued by Employer. Employer already received a separate penalty reduction for the steps it took to reduce the likelihood of the accident (use of spotter) and that has no bearing on establishing the serious classification. In determining a serious violation, the test requires that we assume an accident occurs as a result of the violation. (Labor Code section 6432(c)) Here, there was a substantial probability that death or serious physical harm would occur if an employee fell from the ladder and Employer had actual knowledge of the violation.
The Board also affirmed a serious violation of section 1712(c)(1) [guarding exposed ends of protruding rebar] rejecting Employer’s defenses that the Division failed to ascertain any level of exposure and that the employee observed by the Division was tied-off. The record established that the employee was not tied-off and that employees were at various points exposed to rebar that was not guarded. The violation was properly classified as serious since undisputed testimony showed it was substantially probable that the employee could have been killed or impaled if he had fallen on the rebar.

TUTOR-SALIBA-PERINI 97-784
June 29, 2001