BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

In the Matter of the Appeal of:

TUTOR-SALIBA CORPORATION

15901 Olden Street

Sylmar, CA 91342

                              Employer

 

 

Docket No.

98-R6D2-1209

 

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 Corporation (Employer), makes the following decision after reconsideration.

JURISDICTION

On February 25, 1998, a representative of the Division of Occupational Safety and Health (the Division) conducted an inspection at a place of employment maintained by Employer at 4748 Hollywood Boulevard, Los Angeles, California (the site).

On March 25, 1998, the Division issued to Employer Citation No. 1, alleging a general violation of section 5048(j) [synthetic web sling storage] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations1 and proposing a civil penalty of $210.

Employer filed a timely appeal contesting the existence of the alleged violation and the reasonableness of the proposed penalty.

On January 5, 1999, a hearing was held before Jack L. Hesson an Administrative Law Judge (ALJ) of the Board, in Los Angeles, California. David Watts, Corporate Safety Director, represented Employer. Hank Rivera, Compliance Engineer, represented the Division. The matter was submitted and a decision was issued denying Employer's appeal on February 5, 1999.

Employer filed a timely petition for reconsideration on March 5, 1999. The Division filed an answer and the Board granted Employer's petition on April 17, 1999.

EVIDENCE

Division Investigator Mitchell McKibbin conducted an inspection at the site during which he observed a synthetic web sling hanging on a fence. He testified that the sling was exposed to direct sunlight in violation of section 5048(j) and that direct sunlight makes slings brittle and hazardous to use. When McKibbin asked the crane operator where the sling was normally stored the operator motioned to the fence where the sling had been observed. The sling was 20 feet long and 4 inches wide and appeared to be in good condition.

Hank Rivera testified that all synthetics contain crystallize which is melted down to make fibers. All light has a degradation effect on synthetics and ultraviolet rays cause the “crystallizing” of synthetics which can make them brittle.

Greg Metchikian, an underground safety representative for Employer, testified that the sling was normally stored where it was not exposed to sunlight. The sling was Employer’s but was also used by other contractors at the site. At the time of the inspection it was laid out on hooks on the fence for later use. It had been used by another contractor earlier in the day, and was to be used later during that same day. The fence was in a “lay down2” area rather than a storage area.

ISSUE

Was a synthetic web sling that was left in a "lay down" area during a portion of the workday being "stored" within the meaning of section 5048(j)?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

Employer alleges in its petition that a synthetic web sling left in a lay down area during the workday was not required to be stored pursuant to section 5048(j).

Section 5048(j) states:

Synthetic web slings shall be stored in an area or facility where they are not subject to heat above 150 degrees F or exposed to direct sunlight.

The Board has consistently held that words used in a regulation should be given the meaning they bear in ordinary use. If the language is clear and unambiguous there is no need for construction. (C. C. Myers, Incorporated, OSHAB 95-4063, DAR (June 7, 2000); Kaiser Steel Corporation, OSHAB 77-1356, DAR (Feb. 22, 1980). See also Lungren v. Deukmejian (1988) 45 Cal3d 727, 735; Delaney v. Superior Court (Kopetman) (1990) 50 Cal.3d 785, 798, 800.)

To establish the alleged violation of section 5048(j) it was incumbent upon the Division to prove by a preponderance of the evidence that the web sling was being stored in direct sunlight.

The Division and the ALJ agree that the word “store” means to put aside for future use.

Employer argues that the word "stored" in the regulation is too narrowly construed by the Division, arguing:

“The substantive gist of this standard is the definition or interpretation of the work ‘storage’. 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, ‘The word store means to put aside for use’ is unrealistically harsh, generic and obtuse, considering the nature of the work we do in heavy and civil construction. According to one dictionary the word ‘stored’ is defined as: ‘1. To put away or hold in reserve for future use’. Another dictionary defines ‘stored’ as: ‘1. To reserve or put away for future use. 2. To fill, supply or stock. 3. To deposit or receive in a storehouse or warehouse for safekeeping.’ So in actuality what employer needs is a fair definition of ‘for future use’. Employer would contend that if we were not using the sling for days in a row and left it in the open exposed to daylight then we would be in violation.”

The California Occupational Safety and Health Act of 1973 (the Act) embodies remedial social legislation, which must be liberally construed with particular reference to the history and fundamental purposes of its statues. (See e.g., S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 345, United Air Lines, Inc. v. Occupational Safety and Health Appeals Board, (1982) 32 Cal.3d 762.)

We hold that the word “store” in the context of section 5048(j) means to put aside for use and that the regulation was correctly applied by the ALJ. We agree with the ALJ that the regulation was intended to limit exposure to direct sunlight and that Employer failed to do that when it hung the web sling along the fence.

Section 5048(j) was enacted pursuant to authority derived from the legislature in Labor Code sections 6400 and 6401. These sections state in relevant part that:

Every employer shall furnish employment and a place of employment that is safe and healthful for the employees therein…. [and] Every employer shall do every other thing reasonably necessary to protect the life, safety, and health of employees.”
[Emphasis added.]

Likewise, Labor Code section 6402 states that “[n]o employer shall require or permit any employee to go or be in any employment or place of employment that is not safe or healthful" and Labor Code section 6403 states, in part, that “[n]o employer shall fail or neglect to do … every other thing reasonably necessary to protect the life, safety and health of employees.” [Emphasis added.]

We fail to see how Employer’s interpretation of section 5048(j) ensures as safe a workplace as the Division’s interpretation, since Employer’s interpretation would allow web slings to sit out in sunlight during the workday when Employer arguably is going to use them again during the same workday. Under this scenario, we can envision a sling being used to transport one load at the beginning of a shift, left out in the sun until the end of the shift and then used to transport a load at the end of the shift. Since the purpose of the Act is to promote safety and, since exposing synthetics to sunlight makes them brittle, we choose not to follow Employer’s interpretation.

Employer argues that if it “were not using the sling for days in a row and left it in the open, exposed to daylight then it would be in violation.”

We believe that on its face Employer’s argument shows how misconstrued its position is. The Occupational Safety and Health Standards Board did not quantify how much time must elapse before a sling must become stored and we decline to do so at this time because the Standards Board is the agency charged with promulgating regulations. Rather we hold that as soon as practicable after use, a sling must be placed out of sunlight and it must not be placed back into sunlight until it will be put into actual use again.

DECISION AFTER RECONSIDERATION

The Board affirms the ALJ’s decision finding a general violation of section 5048(j) and assessing a $210 civil penalty.



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


OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: June 11, 2001

1 Unless otherwise specified all references are to sections of Title 8, California Code of Regulations.
2 A lay down area is an area at a construction site where tools and materials are stored or “laid down” while they are awaiting use.