BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

 

In the Matter of the Appeal of:

OBAYASHI CORPORATION

345 Allerton Avenue

South San Francisco, CA 94080

                              Employer

 

 

Docket No.

98-R5D2-3674

 

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

JURISDICTION

Between August 5 and September 10, 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 11206 Weddington Street, North Hollywood, California (the site).

On October 14, 1998, the Division issued Employer a citation alleging a serious violation of section 1593(f) [unstable load on haulage vehicle] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations.1

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

A hearing was held before an Administrative Law Judge (ALJ) of the Board, in Van Nuys, California. Employer was represented by Thomas McGuire, Attorney at Law. Albert Cardenas, staff counsel, represented the Division. On November 19, 1999, the ALJ issued a decision finding a serious violation of section 1593(f) and assessing a civil penalty of $5,0002.

Employer filed a timely petition for reconsideration on December 22, 1999. The Division filed an answer to the petition on January 6, 2000 and on January 21, 2000 the Board granted Employer's petition.

EVIDENCE

Division inspector Jerel Snapp testified that the citation was issued because an unsecured load fell from a 966F CAT front loader, injuring employee Jose Sanchez. Snapp conducted an investigation at the site after Employer reported the accident on August 3, 1998. The accident occurred in a "lay down yard" which was part of the Metro-Rail project. Snapp concluded that the front loader was being used as a forklift to move shoring towers when the load moved and fell on Sanchez. Because the accident resulted in a serious injury (fracture of the employee's left ankle) Snapp cited Employer for a serious violation of section 1593(f), which requires that loads on vehicles be secured against displacement.

The Division submitted a copy of a document entitled "Supervisor's Accident Report". Employer objected to its introduction on foundational grounds. The document was admitted over objection by the ALJ. The ALJ found that a portion of the Supervisor's Accident Report was written by the foreman R. W. McMahan, Jr. and that parts of the report appear to have been written by the program manager.

N. S. "Boodie" Hurd testified that he is a safety supervisor for Employer. According to Hurd, McMahan was not on the job at the time of the accident. Hurd was at the jobsite but did not see the accident.

ISSUES

1. Does section 1593(f) require all loads to be secured against displacement?
2. Does the evidence justify the findings of fact?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

1. Section 1593(f) Requires that all Loads be Secured Against Displacement.

The ALJ upheld the citation against Employer for a violation of section 1593(f) which states:

Unstable loads. Loads on vehicles shall be secured against displacement.

Employer argues that, "Unless there is a condition of instability, no protection is required and the regulation is inapplicable. In other words, not all loads need to be secured against displacement, only unstable loads need this treatment."

We find that Employer misconstrued the meaning of the regulation. We find that the language of the regulation is unambiguous and that the regulation requires all loads to be secured against displacement. Words used in regulations should be given the meaning they bear in ordinary use. If the language is clear and unambiguous there is no need for construction. (See Michael Paul Company, Inc. OSHAB 97-3320 Decision After Reconsideration (May 30, 2001).)

Employer contends that the words "unstable loads" in the regulation require that the load be unstable before it is required to be stabilized. We find this contention untenable. Employer's interpretation would allow shifts of the load or cargo during movement of the load. What was stable one moment might be unstable the next moment and vice versa which would lead to unwieldy subjective enforcement.

We hold that the words "secured against displacement" require that the load be safe from the type of movement that may have occurred in this case ab initio3.

2. The Evidence Does not Justify the Findings of Fact.

Employer alleges that the evidence does not justify the findings of fact. Employer argues that, "There is absolutely no evidence in the record that anyone knew the load was unstable until it moved. There is also no credible evidence that the movement was caused by instability as opposed to equipment malfunction or operator error."

Everyone agrees that employee Sanchez was injured. We find that there was an injury. What we don't know is how the injury occurred. Neither Sanchez nor any other percipient witness was called to testify during the hearing.4

With no percipient witness available to testify the Division introduced a copy of a "Supervisor's Accident Report" to establish the cause of the accident. Snapp testified that he received this document at the time of his inspection, but he "can't say who gave it (the report) to him" but thinks it was Hurd, a safety supervisor.

The report has at least two sets of handwriting and is apparently signed by and primarily completed by McMahan, the foreman. The only testimony available, however, is that McMahan was not at the site on the day of the accident. No questions were asked as to whether or not the writing on the report appeared to be McMahan's. No one authenticated the report or laid a foundation that McMahan normally completes this type of report.

Under the heading "What Happened" the report appears to state5 that "Jose was in the process of landing stacks of shoring towers on the ground. As the load was being set down Jose stepped between the stack being set down and a stack already on the ground. The stack being set down shifted pinning Jose between the two stacks".

Under the heading "Alleged Causes" "Describe but do not speculate!" the report appears to state: "1. Stacks of shoring towers were not banded or tied w/#9 wire; 2. Employee should not have been between stacks; and 3. load shifted when loader operator was signaled to stop."

Although the information in the report supports the Division's position, this information cannot support the findings of fact because we have no reliable way of knowing who wrote the report, how it was prepared or the basis of the preparer 's knowledge or opinion.

The report lists Doug Hope as a witness, but Hope did not testify at the hearing. In short, the Division did not call anyone to testify other than Snapp, their inspecting officer.

We are sure that an employee was injured and also are certain that the shoring towers were involved in the injury. The Division, however, failed to present sufficient evidence to establish that the load was not secured against displacement.

DECISION AFTER RECONSIDERATION

The ALJ's decision is reversed. Employer's appeal is granted.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: June 5, 2001

1 Unless otherwise specified all references are to sections of Title 8, California Code of Regulations.
2 At the hearing the ALJ reduced the civil penalty from $7,000 to $5,000.
3 Latin, meaning "from the beginning, at the outset, from the instant of the act".
4 Snapp testified that he obtained statements from the equipment operator and another person present at the time of the accident. Snapp did not testify as to what the contents of those statements were.
5The report is handwritten and this is our best deciphering of what it says.