BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

TRAYLOR BROS. INC./FRONTIER KEMPER CONSTRUCTION INC., JOINT VENTURE
P.O. Box 8940
Universal City, CA

 

                              Employer

 

 

Docket No.

98-R3D2-2345

 

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 Traylor Bros. Inc./Frontier Kemper Construction Inc., Joint Venture (Employer), makes the following decision after reconsideration.

JURISDICTION

On April 13, 1998, a representative of the Division conducted an accident investigation at a place of employment maintained by Employer at 3866 Willowcrest Avenue, Studio City, California (the site). On June 23, 1998, the Division issued a citation to Employer alleging a serious violation of section1 3650(n) [load not balanced, braced or secured], with a proposed civil penalty of $1,875.2

Employer filed a timely appeal contesting the existence of the violation, its classification, the abatement requirements, and the reasonableness of the proposed penalty.

On October 7, 1998, the Division filed a written prehearing motion to amend the citation changing the alleged violation to section 1593(f), adding an allegation characterizing the serious violation as accident related, and increasing the proposed civil penalty to $6,250. Employer filed a written opposition to the motion. Jack L. Hesson, Administrative Law Judge, issued an order granting the Division’s motion to amend the citation.3

A hearing was held before Ashaki A. Hesson, Administrative Law Judge (ALJ), in Van Nuys, California. Robert D. Peterson, Attorney, represented Employer. Albert Cardenas, Staff Counsel, represented the Division.

On September 10, 1999, the ALJ issued a decision denying Employer's appeal and assessed a civil penalty of $6,250.

On October 13, 1999, Employer filed a petition for reconsideration. The Division did not file an answer. The Board granted Employer’s petition on November 30, 1999.

EVIDENCE

On April 13, 1998, Division Associate Engineer, Jerel Snapp, conducted an investigation of an accident at Employer's “lay down yard”4 at a Metro Rail station. He held an opening conference with Alex Sellers, employer’s safety representative and loader operator Bill Bailey, and then inspected the site of the accident. On the following day, he interviewed the injured employee Eve Reeves.

Based upon his inspection and interviews Snapp determined that a load of unistrut supports (flat rod-like fixtures used to hang utilities in tunnels) was delivered to the site on a flatbed truck on the date of the accident. The unistruts were bundled with plastic wrap and banded onto wood pallets.5 Each pallet weighed approximately 2,800 pounds. The pallets were to be transported from the flatbed truck a distance of approximately one and one-half blocks to an area in the lay down yard near the location where they were to be used, adjacent to a partial concrete wall.

Bailey, the loader operator, transported two stacked pallets at a time using a 980 Cat Loader with front forklift attachments. At the lay down location, Eve Reeves, Employer’s foreman, assisted Bailey by guiding the two-pallet load onto dunnage blocks.6 As the second load was set down, it tilted because one of the pallets was damaged on its underside. The top pallet slid off the bottom packaged pallet and pinned Reeves against the partially constructed concrete wall where she was standing and assisting Bailey to guide the load down. According to Reeves who was interviewed by Snapp the day after the accident, the load became unstable in the process of setting it down.

Sellers, Employer’s safety representative, testified that stacking pallets on a single load was a standard practice that he had previously observed. He also stated that the loads were transported on a steep and bumpy hill. He conducted an investigation of the accident and obtained a written statement from Bailey, the loader operator on the day of the accident.

Bailey’s written statement introduced by Employer stated that he was informed by the spotter at the truck that one of the pallets was damaged on its underside. Adjustments were made to the forks to move them closer together. He transported two wrapped pallets—one stacked on the other evenly and all the way back on the forks, to the lay down area and informed Reeves of the damaged pallet and the need to have dunnage blocks.

According to Bailey’s statement, Reeves signaled Bailey to move closer to the back of the partially constructed concrete wall and then placed dunnage blocks under the load. Reeves was standing between the pallets and the wall watching the back of the pallets. When the bottom pallet started to rest on the dunnage blocks, the whole load tipped to the right and the top packaged pallet leaned, pinning her against the concrete wall behind her. Bailey tried to lift the pallet by hand but could not do so. He got back in the loader and backed the forks out from the lower pallet so as not to move it. He inserted the forks underneath the top pallet and tilted the forks back to take weight off the pallet. Reeves then freed herself.

On cross-examination, Snapp testified that moving the stacked pallets contributed to the instability of the load and that the plastic shrink-wrapping made the surface between the pallets slippery. He determined that the load became unstable as it was being set down rather than while it was on the loader but elaborated further that the violation occurred during the transportation from the truck to the unloading area. He cited Employer for a violation of section 1593(f) because the load was not secured. The configuration of the load was too high; the plastic shrink-wrap caused the surfaces between the pallets to be slippery; and one of the pallets was damaged. These facts contributed to the load’s instability as it was set down.

ISSUES

1. Did the Division establish a serious violation of section 1593(f)?
2. Does the evidence support the assessed penalty amount?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

Employer asserts that the Division failed to prove that 1) the load in question was unstable while on the loader within the meaning of section 1593(a), 2) Employer could have been aware of the violation in order to sustain a finding that the violation was “serious”, and 3) if a violation was established, the ALJ erred in assessing a penalty of $6,250.

1. The Division Established a Serious Violation of Section 1593(f).

Section 1593(f) is contained in Article 10 – Haulage and Earth Moving provisions of the Construction Safety Orders, and provides:

(f) Unstable Loads. Loads on vehicles shall be secured against displacement.

In Obayashi Corporation, Cal/OSHA App. 98-3674, Decision After Reconsideration (June 5, 2001), we held that the language in the section is unambiguous. We found that the regulation requires that all loads—not only unstable loads, be secured against displacement. We also rejected an interpretation of the words “Unstable Loads” as requiring that the load be “unstable” before stabilization is required. We stated that such an interpretation would impermissibly allow shifts of the load or cargo during movement so that what is stable one moment might be unstable the next moment and vice versa which would lead to unwieldy subjective enforcement.

Based upon our independent review of the record in the instant case, we agree with the ALJ’s finding that, based upon undisputed evidence, the load consisting of two pallets of unistruts was not secured to the loader’s fork attachment to prevent it from tipping or falling.

The employees' adjusting the loader's forks to move them closer together may have been an attempt to balance the load, but it did nothing to secure it. Similarly, efforts to place dunnage underneath the load were not made to secure the load during transport, but rather to stabilize it for storage after it was unloaded. Neither measure was designed to secure the load for transport.

Employer maintains that there is no credible evidence that the load was unstable while being moved by the 980 Cat Loader. Employer’s argument presumes that section 1593(f) requires that it must be proven that the load was unstable prior to the section becoming applicable. Such interpretation was specifically rejected in Obayashi Company, cited above.

Employer further argues that at the time the load fell the load had been released from the support of the loader’s forks and the load was no longer on the haulage vehicle. Since the bottom portion of the damaged pallet was not supporting the load while on the loader, Employer argues that the load was perfectly stable while it was supported by the 980 Cat Loader.

Notwithstanding the already rejected interpretation of the regulation as requiring proof of instability as a prerequisite to application of section 1593(f), we find no evidentiary support to Employer’s position regarding the precise cause of the fall of the load. Employer’s contention is based more on speculation and argument. There was no dispute that the load fell as it was being set down on the dunnage blocks and that the forks were still inserted into the pallet. No evidence supports a finding that the load was completely released from the loader at the time of the fall. Rather, the evidence establishes that the stacked load was never secured while on the 980 Cat Loader.7 Moreover, the 980 Cat Loader was performing its intended operation of hauling or transporting a load, which necessarily includes the process of the loading and unloading of the cargo it is hauling. In analogous situations, the Board has held that measures that are inherently part of a regulated activity, although indirect, are covered as part of that activity. (See, e.g., Tri-Valley Growers, Cal/OSHA App. 93-1971, Decision After Reconsideration (Feb. 25, 1997); and Macco Constructors, Inc., Cal/OSHA App. 91-674, Decision After Reconsideration (May 27, 1993).)

Failure to secure the load is the necessary element to establish a violation of section 1593(f). Evidence of instability simply indicates the effect of an Employer’s failure to properly secure a load on a haulage vehicle.8 The falling of the stacked pallets, as they were set down by the 980 Cat Loader is the type of instability that section 1593(f) is aimed at preventing. Such prevention can only occur where precautionary measures are taken at the outset to secure the load on the haulage vehicle. The regulation neither expresses nor contemplates that an Employer wait until a condition of instability manifests as in the instant case.9

Employer further challenges the ALJ’s finding that classifies the violation as “serious”. A serious violation exists if there is a substantial probability that death or serious physical harm could result from a condition in the workplace and further, that the Employer knew of the violation or could have known of it by exercising reasonable diligence. (Labor Code §6432(a)10; §334(c)(1)) The Division need not establish Employer knowledge of a violation of a safety order but rather must establish actual or constructive knowledge of the violative condition. (West Coast Steel, Cal/OSHA App. 81-0191, Decision After Reconsideration (May 15, 1985))

Employer argues that the ALJ’s determination that Employer knew or could have known of the alleged violation was unsupported by the evidence. Employer maintains that it first learned of the damaged pallet after its foreman was informed by Bailey immediately before the accident. Foreman Reeves took immediate corrective measures to have the load set on dunnage blocks when she learned of the damaged pallet.

Employer bases its argument on the mistaken assumption that the damaged pallet was cited as the cause of the violative condition. We disagree. The Division’s inspector credibly testified that the configuration of the stacked pallets and the plastic shrink-wrap creating a smooth surface between the stacked pieces were factors which destabilized the load. Employer disregards the fact that the foreman had previously assisted Bailey with guiding a previous load of stacked pallets at the unloading area. The described conditions were in plain view during the transportation operation on the day of the accident. An employer may be imputed with the requisite knowledge of a serious violation where the hazardous conditions are in plain view since the employer could have known of the condition with the exercise of reasonable diligence. (See Fibreboard Box & Millwork Corp., Cal/OSHA App. 90-492, Decision After Reconsideration (June 21, 1991).)

Also, Safety Representative Sellers testified at the hearing that the transportation of stacked pallets was a standard practice, which he had previously observed. Thus, the violative condition was known, or in the exercise of reasonable diligence could have been known to Employer, prior to the load actually falling on the injured foreman. We credit the testimony of Snapp regarding the types of injury which could result when a 2-pallet load (each pallet load weighing 2,800 pounds) topples over.

We hold that the stacked pallets were not secured to the forks of the haulage vehicle and that Employer knew or could have known of the violative condition with the exercise of reasonable diligence. A serious violation of section 1593(f) was established.

2. The Evidence Does Not Support the Assessed Penalty Amount.

Employer maintains that the penalty amount assessed for the serious violation of section 1593(f), if found to exist, should be $1,875 rather than the $6,250 assessed by the ALJ. Employer points to the hearing record following Snapp’s testimony regarding the serious classification of the violation. The Division made a motion to reduce (amend) the penalty to the amount in the original citation ($1,875). Employer did not object. The effect of such motion was that the Division surrendered its allegation of an “accident related” characterization of the violation.11

We find that Employer is correct and it appears to be a simple oversight by the ALJ. Following the motion made at the hearing to reduce the penalty to the original amount, the Division did not present “accident related” evidence, e.g., evidence of injuries sustained by Reeves. Also, the ALJ, in her decision, did not make findings regarding the nature or extent of the injury. The Division did not file an answer to the instant petition for reconsideration where Employer raised the propriety of the assessed penalty amount in view of the Division’s motion made during the hearing.12 These factors support Employer’s view that the proposed penalty amount was amended during the hearing to the original proposed penalty amount of $1,875, the amount assessed herein as reasonable based upon the record.

DECISION AFTER RECONSIDERATION

The Board affirms the ALJ’s decision denying Employer’s appeal and modifies the assessed penalty to $1,875.


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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: June 12, 2002

1 Unless otherwise specified, all section references are to Title 8, California Code of Regulations.
2 As discussed infra, the citation was amended to change the alleged violation to section 1593(f) load not balanced, braced or secured] with a proposed civil penalty of $6,250.
3 During the course of the hearing, the Division moved, without objection from Employer, to reduce the proposed penalty amount to $1,875 that was the original pre-amendment amount for which the Employer was cited.
4 The “lay down yard” is apparently an area where materials are kept after unloading for later use at the worksite.
5 A pallet consisted of two separate horizontal platforms separated by and connected to four parallel pieces of 2 x 4 lumber. A four-inch space between the two horizontal platforms allows forks of a haulage vehicle to be inserted so that the pallet can be lifted. The unistrut was plastic-wrapped and fastened on a pallet.
6 The definition of “dunnage” includes “...[l]oose wood or waste material placed in the ship’s hold to protect the cargo from shifting and damage.” (Dictionary of Scientific and Technical Terms, Fourth ed., McGraw Hill, 1974, p. 590) We recognize that the term has been extended beyond “ship” storage of cargo and commonly refers to the described material as a protection of any load or cargo.
7 Employer’s assertion that the load was secure was based upon Seller’s simple statement that the load “rested against the vertical portion” of the forklift attachment of the loader and is insufficient proof that the load was sufficiently “secure.”
8 Such evidence is also relevant to establishing a violation as “serious” as discussed infra.
9 The damaged pallet, the configuration of the stacked load being too high, and the slippery surface between the pallets due to the plastic shrink-wrap all likely contributed to the instability of the load.
10 Effective January 1, 2000, Labor Code section 6432(c) was amended. Since this case arose prior to the amendment, we apply the section as it existed at the time of the violation.
11 Section 336(c)(3) provides that no reduction other than for size of an employer’s business may be utilized in fixing the amount of a penalty for a serious violation causing death or serious injury. The proposed penalty amount of $6,250 under the citation as amended prior to the hearing is based upon an “accident related” characterization of the violation, which was only reduced for size.
12 We interpret the failure of the Division to file an answer to the petition for reconsideration as its acquiescence to Employer’s view of the amended proposed penalty amount as discussed in Employer’s petition.