BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

 

In the Matter of the Appeal of:

J. R. DANIELS COMPANY

4713 Greenleaf Circle, Suite A

Modesto, CA 95356

                              Employer

 

 

Docket No.

98-R2D1-1136

 

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 J. R. Daniels Company (Employer), makes the following decision after reconsideration.

JURISDICTION

On January 27, 1998, a representative of the Division of Occupational Safety and Health (the Division) conducted an accident investigation at a place of employment maintained by Employer at 2190 Hanson Way, Woodland, California (the site).

On March 13, 1998, the Division cited Employer for a serious violation of section 1670(a) [fall protection].1 A $3,500 civil penalty was proposed.

Employer filed a timely appeal contesting the existence and classification of the violation and the reasonableness of both the abatement requirements and the civil penalty and raising several affirmative defensives.

A hearing was held before Dennis M. Sullivan, Administrative Law Judge (ALJ) of the Board, in Sacramento, California. David Donnell, Attorney, represented Employer. Len Welsh, Staff Counsel, represented the Division.

The ALJ issued a decision on June 3, 1999 finding a violation of section 1670(a) but reducing the classification of the violation from serious to general and reducing the civil penalty accordingly from $3,500 to $300.

Employer filed a timely petition for reconsideration on July 8, 1999. The Division filed an answer to the petition on August 12, 1999, and the Board granted the petition for reconsideration on August 26, 1999.

The Board requested oral argument, on September 10, 2001, on the issue of whether section 1670(a), 1710(h), or 1724(f) applied to the facts of the case.

EVIDENCE

Employer is engaged in the business of erecting pre-engineered metal buildings. The citation was issued because an employee was not using a fall protection system when he fell 27 feet from the leading edge of the roofing deck being installed on a building under construction at the site.

Joel Halverson, the inspecting Compliance Officer, testified as follows for the Division.

The accident occurred on October 10, 1997. Halverson investigated the matter and determined that the building roof was approximately 27 feet above the concrete floor slab of the building. He estimated that the building was between 400 to 500 feet long and 100 to 200 feet wide.

Halverson went to Modesto to meet with J. R. Daniels at Employer’s office. Daniels had not been at the site when the accident occurred but told Halverson what he had learned of it from foremen Torres and, perhaps, other employees.

Daniels informed Halverson that Torres had hired the injured employee at the job site as a laborer. On the day of the accident, the roof was being decked. The process consisted of laying a plastic moisture barrier and insulation directly on the roof trusses and covering those materials with metal roofing panels. The necessary materials had already been loaded onto the roof.

Employer had a crew of employees working from the leading edge of the last row of installed panels. They laid three-foot wide strips of plastic moisture barrier and insulation over the bare trusses just ahead of the leading edge as the underlayment for the next row of panels.

The injured employee was assigned by foreman Torres to keep the crew supplied with materials. To do this work, the employee picked up decking materials from the storage point on a completed portion of the deck behind the advancing leading edge and brought them forward.

The injured employee was not wearing fall protection but, to Daniels’ understanding, the assignment of carrying decking materials from the storage point to the employees working at the leading edge did not require the injured employee to get close enough to the edge of the roof near either the storage area or the leading edge to expose him to the hazard of falling.

At some point before the accident, the injured employee stopped delivering materials and began working with the crew at the leading edge. He reached beyond the leading edge to trim away excess plastic sheeting. When he attempted to stand he accidentally fell or stepped through the uncovered insulation and plastic between the roof trusses and fell to the concrete floor of the building approximately 27 feet below.

Halverson also interviewed Torres. Torres’ description of the injured employee’s job assignment and how the accident occurred was consistent with Daniels’ description. Torres was somewhere on the roof on the date of the accident but did not see the accident. He said that the injured employee’s assignment was limited to delivering materials and that he did not need fall protection because he did not have to go near the edge of the roof to do his job. Torres maintained that the injured employee exceeded the scope of his assignment when he switched from delivering materials to trimming at the leading edge.

On March 3, 1998, Halverson interviewed the injured employee. He said the foreman hired him initially as a laborer to do ground level cleanup work and that later he was assigned other duties.

On the day of the accident, the foreman told him to deliver materials from the storage point out to the people laying the materials at the leading edge. When making the assignment the foreman said that he should “follow the directions of others,” or words to that effect. By that, the injured employee thought that the foreman meant he should watch the others installing and trimming the materials and then do some of that work himself.

The injured employee’s description of the accident was consistent with the descriptions provided Halverson by Daniels and Torres. The accident resulted in broken bones and other injuries necessitating hospitalization of the employee for treatment for more than 24 hours.

In Halverson’s opinion, even if the injured employee had limited his work on the roof to delivering materials from the storage point to the workers at the leading edge, the work would have brought him within a few feet of the edge of the roof and exposed him to the serious hazard of falling 27 feet.

Based on Halverson’s inspection the Division issued the citation alleging a serious violation of section 1670(a).

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

Employer’s petition for reconsideration asks that the decision of the ALJ be set aside on several grounds. The thrust of Employer’s argument is that the ALJ acted in excess of his authority by holding that section 1670(a) is a rule of general application and that Employer would have to prove “that the injured employee was an ironworker engaged in multi-story steel construction when the accident occurred…”. (ALJ decision page 8) Employer further contends that the language of section 1710(h)2 applies when workers are working at a warehouse.

We have exhaustively reviewed the record, have invited the parties to participate in oral argument and have considered all of the points raised in the parties’ respective briefs.

After review of the evidence we conclude that it is not necessary to fully address Employer’s legal contentions regarding section 1710(h) because it appears clear from the facts that Employer was properly cited under section 1670(a).

The Division cited Employer for violation of section 1670(a). That section and the relevant note that follows the section state:

Approved personal fall arrest, personal fall restraint or positioning systems shall be worn by those employees whose work exposes them to falling in excess of 7½ feet from the perimeter of a structure, unprotected sides and edges, leading edges, through shaftways and openings, sloped roof surfaces steeper than 7:12, or other sloped surfaces steeper than 40 degrees not otherwise adequately protected under the provisions of these Orders.
NOTE: … (3) Requirements relating to fall protection for employees working in roofing operations are provided in Section 1730 of the Construction Safety Orders. …”

In this case, it is clear that the injured employee was working at the leading edge3 of the roof. Neither side disputes that the worker reached beyond the leading edge of the roof to trim away excess plastic sheeting when he fell 27 feet to the ground below. We find that the injured worker was exposed to a fall in excess of 7-1/2 feet from a leading edge of the roof and thus a violation of section 1670(a) was established.

We specifically reject Employer’s argument that section 1710(h) applies to the facts of this case. Section 1710(h) does not apply when a worker is working on roofs or when he is working on or near a leading edge of a roof, as is the case here4. Also, we concur with the ALJ that the facts establish that the building in question was a “warehouse” type building. In McLean Steel, Inc., Cal/OSHA App. 93-1851, Decision After Reconsideration, (Aug. 26, 1997), we held that section 1710(h) does not apply to warehouses5.

DECISION AFTER RECONSIDERATION

The Board affirms the ALJ’s decision that a general violation of section 1670(a) was established and that the assessment of a civil penalty in the amount of $300 is appropriate.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: October 30, 2001

1 Unless otherwise specified all references are to sections of Title 8, California Code of Regulations.
2 Section 1710(h) states: “Buildings or Other Structures with Large, Open Spans. Employees working on buildings or other structures with large, open spans or areas, such as mill buildings, gymnasiums, auditoriums, hangars, arenas, stadiums and bridges, shall be protected from the hazard of falling in accordance with Sections 1669, 1670 and 1671 when the fall height exceeds 30 feet.”
3 Section 1504 defines leading edge as follows: “The edge of a floor, roof, or formwork for a floor or other walking/working surface (such as the deck) which changes location as additional floor, roof, decking, or formwork sections are placed, formed, or constructed. A leading edge is considered to be an “unprotected side and edge” during periods when it is not actively and continuously under construction.”
4 We note that, under Note (3) section 1670(a), fall protection requirements for roofing operations are contained in section 1730. We are sympathetic to an argument that the application of flat-seam metal roofing constitutes a roofing operation. (See e.g., section 1723) However, the facts developed by the parties in this case are insufficient for us to conclude that this was a roofing operation and we will not address the issue further here other than to note that both parties were given an opportunity to address the issue at oral argument and the issue was not fully litigated by the parties. Also, Employer did not raise the issue in its petition for reconsideration, ostensibly because it felt that it’s defense would not be furthered if the facts in this case were deemed to constitute a roofing operation. When as here, work is being done at the leading edge of a roof the more specific protections listed in section 1670(a) or section 1730 apply because of the need for even greater employee protection on or near the leading edge of roofs. The appropriate section to cite would depend on the location of the leading edge and the slope of the roof.
5 In McLean, we held: Applicability of section 1710(h) is not limited to the types of buildings and structures named therein. The list is merely illustrative, as indicated by the preceding “such as”. However, the purpose of a warehouse - to provide “large, open [storage] areas” - is commonly known, and, the term “warehouse” is as well defined and widely understood as the terms “mill building and hangar,” for example. Moreover, it is safe to assume that far more warehouses are constructed than mill buildings or hangars. Hence, had the Standards Board intended section 1710(h) to apply to warehouses, one would expect them to have included that term in the illustrative list. Its absence from the list is reason to believe the Standards Board intended to exclude warehouses from coverage.