BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

RGW CONSTRUCTION, INC.

P.O. Box 1808

Fremont, CA 94538

                              Employer

 

 

Docket No.

99-R2D2-093

 

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 RGW Construction, Inc., (Employer), makes the following decision after reconsideration.

JURISDICTION

Between September 16 and December 7, 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 Monument Boulevard and Highway 680, Pleasant Hill, California (the site). On December 30, 1998, the Division issued a citation to Employer alleging a serious violation of section1 1670(f) [securing lanyards], with a proposed civil penalty of $5,000.

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

A hearing was held before James Wolpman, administrative law judge (ALJ), in Concord, California. Ronald E. Medeiros, Attorney, represented Employer. Christopher P. Grossgart, Staff Counsel, represented the Division. On December 6, 1999, the ALJ issued a decision denying Employer's appeal.

On January 10, 2000, Employer filed a petition for reconsideration. The Division filed an answer on February 9, 2000. The Board granted Employer’s petition on February 22, 2000.

EVIDENCE

Employer was constructing a retaining wall for a freeway overpass. On August 6, 1998, an employee, Harold Potter [Potter] was seriously injured when he fell from the face of the wall a distance of 20 to 25 feet. Potter was climbing the face of the wall in order to exit the wall at the top when he reached for a wedge2 without tying-off.

Although he was wearing a full body harness with a three-foot lanyard, the lanyard was not secured at the time of the accident. Employer’s policy required employees to be tied-off when working more than six feet above grade. The policy did not require employees to tie-off while they were moving from one location to another on the wall.

Daniel Klug [Klug], Employer’s foreman, saw Potter about a minute before the fall, at which time Potter was tied-off but he did not see Potter fall. Klug knows and enforces Employer’s policy requiring workers to be tied-off on the wall except when moving from one location to another.

Employer was cited because Potter’s “lanyard was not secured while working on the side of the retaining wall about 20 to 25 feet high.”

ISSUE

Was the violation properly classified as serious?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

The Board’s review on reconsideration is limited to Employer’s challenge in its petition to the ALJ’s determination that the violation of section 1670(f) was serious. Employer’s argument is only viewed in the context of determining whether the violation was properly classified as serious because its argument implicitly acknowledges that there was a violation of section 1670(f).

Employer submits that the ALJ’s “Decision should be set aside to the extent that it determines Petitioner committed a ‘serious’ violation of § 1670(f).” It contends that “it did not and could not have known of the existence of the violative condition through the exercise of reasonable diligence given Petitioner’s clear policy requiring the use of fall protection and the brief period of time that elapsed between [the foreman’s] observation of Mr. Potter wearing the fall protection and his ultimate fall.”

Section 1670(f) provides, “Lanyards shall be secured to a substantial member of the structure or to securely rigged lines, using energy absorbing devices or methods.”3 In order to give effect to section 1670(f), it is necessary that that section be read in conjunction with section 1670(a) which provides in relevant part that “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 … not otherwise adequately protected under the provisions of these Orders.” It is undisputed that the wall from which Potter fell is a structure4 for purposes of section 1670(a). It is also undisputed that Potter was not tied-off to a substantial member of the structure at the time he fell. Section 1670(f) provides for no exceptions.

Employer argues that there is a distinction between “working” on the wall and “accessing” a work location on the wall. The evidence established that under Employer’s policy employees who are more than six feet above the ground and engaged in work activity are required to be tied-off when they are on the wall. Employer’s policy does not require employees to be tied-off when they are moving on the wall going from one location to another. Employer argues that the distinction between “working” and “accessing” is critical because the citation issued to Employer alleged that the employee “was not secured while working on the side of the retaining wall … .” [Emphasis added.]

We disagree with Employer’s assertion that there is any meaningful distinction between working and accessing a work location for purposes of being tied-off under section 1670(f) under the facts of this case. Section 1670(f) contains no exception to the requirement that lanyards be secured when a worker is exposed to the danger of falling more than 7½ feet.

Whether Potter was performing work-related duties or employing normal means of ingress and egress to his work station that exposed him to the danger sought to be protected against by section 1670(f), he was subject to the requirements of section 1670(f). (See, Nicholson-Brown, Inc., Cal/OSHA App. 77-024, Decision After Reconsideration (Dec. 20, 1979).) We find that Potter’s presence on the face of the wall required him to be tied-off at all times because the acts he was performing exposed him to falling from the wall.

Employer’s position implicitly acknowledges that section 1670(f) was violated. Employer claims, however, that the ALJ should not have found a serious violation because Employer did not know, and could not have known with the exercise of reasonable diligence that Potter was not tied-off at the time he fell. Employer bases its argument on the fact that Klug saw Potter a moment before he fell and Potter was tied-off at that time. Its position is that its foreman is not required to constantly observe employees and that it is reasonable to rely on the knowledge that Potter complied with its policy of securing his lanyard while working on the wall and therefore it should not be charged with knowledge of the violative condition.

However, the facts of this case indicate that Employer had a policy allowing employees to un-hook the lanyard while moving from one location to another even if it exposed them to falling more than six feet. We find that because Employer had this policy it was aware employees such as Potter might not be tied-off at heights above 7½ feet at times when they were moving to or “accessing” a new location. Under the facts of this case, we find such a policy to be ill advised. The policy does not excuse Employer’s responsibility in this case because if Employer had a policy allowing workers to un-hook their lanyards knowledge has to be imputed to Employer that workers would do just that when changing locations.

There is no dispute that there is a substantial probability that serious physical harm could result from this violation. In order to establish a serious violation the Division must prove that the employer had knowledge or with reasonable diligence could have known of the violative condition. (Labor Code § 6432(a).)5 Here, Employer’s policy admittedly permits employees to move about the wall freely until they are engaged in a work activity at which time they are required to be tied-off when they are more than six feet above the ground.

Employer’s policy of not requiring employees to tie-off while moving from one location to another exposed the workers to a danger of falling and may not be used to alleviate its statutory responsibility of providing a safe place of employment. Similarly, it cannot be the basis of avoiding a serious classification. We find that the violation was properly classified as serious.

DECISION AFTER RECONSIDERATION

The Board affirms the ALJ’s decision finding a serious violation of section 1670(f) and the assessment of a $5,000 civil penalty.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: March 8, 2002

1 Unless otherwise specified, all section references are to Title 8, California Code of Regulations.
2 A wedge is a piece of wood, metal, or other hard material, thick at one end and tapering to a thin edge at the other. Harris, Dictionary of Architecture and Construction, 1975 p. 539. Here it was used as a means for lining up the panels that made up the wall.
3 Subsection (f) was renumbered subsection (e); 2000 Reg. No.47, 11/24/2000.
4 Structure is defined in relevant part in section 1504 as “any piece of work artificially built up or composed of parts joined together in some definite manner.”
5 On 1/1/2000, the second part of Labor Code section 6432 renumbered to section 6432(c) and the burden of proof was placed upon the employer. Section 6432(c) now reads: “Notwithstanding subdivision (a), a serious violation shall not be deemed to exist if the employer can demonstrate that it did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.”