BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

ORANGE COUNTY SCAFFOLD, INC.

121 E. Meats Avenue

Orange, CA 92865-3309

                              Employer

 

 

Docket No.

99-R6D2-223

 

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 the Division of Occupational Safety and Health (Division), makes the following decision after reconsideration.

JURISDICTION

On September 28, 1998, a representative of the Division conducted a plain view inspection and investigation at a place of employment maintained by Orange County Scaffold, Inc. (Employer) at 1520 N. Vermont Avenue, Los Angeles, California (the site). On January 4, 1999, the Division issued a citation to Employer alleging a serious violation of section1 1670(b)(10) [anchorage for fall protection], with a proposed civil penalty of $1,215.

Employer filed a timely appeal contesting the existence of the violation.

A hearing was held before an administrative law judge (ALJ) of the Board, in West Covina, California. Kenji Machida, Attorney, represented Employer. Albert Cardenas, Attorney, represented the Division. Prior to the hearing, Employer indicated that the only issue for appeal was the existence of the violation.

On February 1, 2000, the ALJ issued a decision granting Employer's appeal and setting aside the proposed civil penalty.

On March 6, 2000, the Division filed a petition for reconsideration. Employer filed an answer. The Board granted the Division’s petition on April 10, 2000.

EVIDENCE

The evidence presented at the hearing established that Barry Burgess [Burgess] and Kim Knudsen [Knudsen], Associate Industrial Hygienists for the Division’s High Hazard Unit, observed Employer’s foreman, Tom Gonzales [Gonzales], hauling scaffold members and planks out of an underground excavation at the Vermont/Sunset station of the Los Angeles Metro Rail. A scaffold framework measuring approximately 5 feet by 10 feet was mounted above an opening to an excavation approximately 40 feet deep. The opening was covered by metal grating except for a section 3 feet by 5 feet that was used for the retrieval of scaffold components from below. A block and tackle hoist with a rope looping over a horizontal bar secured to the top of the framework was used to haul out dismantled scaffold material.

Gonzales wore a body harness connected to a lanyard that was attached to (looped around) one of the vertical members of the scaffold frame. Burgess observed that Gonzalez was within 6 feet of the excavation opening. Based upon his experience and information he had learned from scaffold manufacturers scaffolds should not be used as anchors for personal fall protection systems because scaffolds are not capable of meeting the 5,000-pound per employee requirement of the safety order.

Gonzales stated that he has worked for Employer since 1989 and has been a journeyman since 1992. He was promoted to foreman in 1994 or 1995. As part of his duties, he is responsible for the safety of his crew and is tested every few months. He routinely reviews safety regulations, including anchorage requirements and supervises all aspects of scaffold erection and dismantling.

Bert Aphessetche [Aphessetche], Employer’s president, testified that Gonzales worked 4800 hours before qualifying as a journeyman. He was promoted to foreman because of his level of skill and leadership, and was Employer’s qualified person regarding the work at the site.

ISSUE

Did the Division establish a violation of section1670(b)(10)?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

1. The Division Failed to Establish a Violation of Section 1670(b)(10).

The Division seeks review of the ALJ’s determination that while Employer was found to be in violation of section 1670(b)(10) as cited, Employer complied with the alternative anchorage requirements provided in the regulation. Section 1670(b)(10) provides an anchorage requirement for personal fall arrest systems within the Fall Protection provisions of Article 24 in the Construction Safety Orders. The section provides as follows:

(b) Personal fall arrest systems and their use shall comply with the provisions set forth below....

(10) Anchorages used for attachment of personal fall arrest equipment shall be independent of any anchorage being used to support or suspend platforms and capable of supporting at least 5,000 pounds per employee attached, or shall be designed, installed, and used as follows:
(A) as part of a complete personal fall arrest system which maintains a safety factor of at least two; and
(B) under the supervision of a qualified person. (bold added)

Although the ALJ determined that Employer failed to comply with the anchorage requirement in the first part of subsection (b)(10), the ALJ granted Employer’s appeal in determining that Employer complied with the alternative requirements provided in the second part of the regulation. Specifically, the ALJ found the anchorage maintained a safety factor2 of four, and further, that the personal fall arrest system was designed, installed and used under the supervision of a qualified person as provided in the alternative anchorage requirement contained in the second part of the regulation.

The Division maintains that both the evidence presented and interpretation of the regulation do not support the ALJ’s findings and seeks reversal of the ALJ’s determination that (1) Mr. Gonzales, the foreman, was a “qualified person,” and (2) that the personal fall arrest system was used under the supervision of a qualified person, within the meaning of section1670(b)(10).3

a. The ALJ’s Finding That the Foreman Was a “Qualified Person” Within the Meaning of Section 1504 Will Not Be Disturbed

There is no definition of a “qualified person” provided in the Fall Protection provisions of Article 24. However, general definitions applicable to the Construction Orders, of which section 1670 is part, provides that it means “a person designated by the employer who by reason of training, experience or instruction has demonstrated the ability to safely perform all assigned duties and, when required, is properly licensed in accordance with federal, state or local laws and regulations.” (Section1504 Definitions.)

The ALJ’s determination that Gonzalez was a “qualified person” within the standard was based upon the testimony from Employer’s president, Aphessetche, regarding Gonzales’ training, experience in identifying hazards, experience with anchorages for fall arrest systems, and supervision of the project at the site.

Gonzales also testified regarding his background and experience which included experience in commercial, residential and industrial scaffolding jobs with varying complexity of scaffolding, knowledge of anchorages and other safety regulations. He reviews books on scaffolding, and conducts safety training to apprentices for Employer.

The Division asserts that testimony from Employer’s expert witness, David Glabe [Glabe], demonstrated that Gonzalez made faulty judgments concerning the use of the personal fall arrest system and that Glabe’s testimony should have been given greater weight as evidence of Gonzales’ inability to serve as a qualified person.

Our review of Glabe’s testimony does not support the Division’s assertion that such testimony demonstrates that Gonzales made faulty judgments. Any inferences that may be drawn from Glabe’s testimony are not “evidence of considerable substantiality” that is necessary to overcome the direct testimony of Aphessetche and Gonzales (Lamb v. Workmen's Compensation Appeals Bd. (1974) 11 Cal.3d 274). Reversal of the ALJ’s finding is unwarranted.

Our independent review of the record indicates that there was sufficient evidence presented for the ALJ to make a finding that Gonzales was a “qualified person.” We will not second guess the ALJ’s determination based upon the weight and credibility of the evidence presented at the hearing. The ALJ was present during the taking of testimony and was able to directly observe and gauge the demeanor of the witness and weigh his statement in light of his manner on the stand. (Garza v. Workmen’s Compensation Appeals Board (1970) 3 Cal.3d 312, 318; Metro-Young Construction Company, Cal/OSHA App. 80-315, Decision After Reconsideration (Apr. 23, 1981).)

b. The Evidence Does Not Establish that the Qualified Person Failed to Supervise the Anchorage Within the Meaning of Section 1670(a)(10)(B).

The ALJ determined that Gonzales was a qualified person and made no finding regarding supervision of the use of the personal fall arrest system. Implied in the ALJ’s determination is an interpretation of section 1670(b)(10)(B) that the provision does not require that a personal fall arrest system be supervised by a qualified person who is not the person who uses (wears) the equipment.

The Division maintains that while Employer demonstrated, at best, that the personal fall arrest system was used by a qualified person, supervision requires something more.4 The Division essentially maintains that the diminished protection provided in the alternative must be compensated for by assuring that a qualified person is present at all times to oversee the system and its use.

The starting point of our analysis is to read and examine text of the statutory and regulatory provisions and draw inferences concerning the meaning from its composition and structure. (Nunez v. Superior Court (1983) 143 Cal.App.3d 476, 480) In construing words of a statute or constitutional provision to discern its purpose, provisions should be read together; an interpretation which would render terms surplusage should be avoided, and every word should be given some significance, leaving no part useless or devoid of meaning. (City and County of San Francisco v. Farrell (1982) 32 Cal.3d 47, 54) Giving the order the liberal construction mandated by law (Carmona v. Division of Industrial Safety (1975) 13 Cal.3d 303, 313; Bendix Forest Products Corp. v. Division of Occupational Safety and Health (1979) 25 Cal.3d 465, 470), we must be mindful of the protective purposes of the Act.

Section 1670(b)(10) generally provides anchorage requirements used for attachment of personal fall arrest equipment. A “personal fall arrest system” is defined in the Construction Safety Orders as “[a] system used to arrest an employee in a fall from a working level. It consists of an anchorage, connectors, a body belt or body harness and may include a lanyard, deceleration device, lifeline, or suitable combinations of these. As of January 1, 1998, the use of a body belt for fall arrest is prohibited.” (Section1504 Definitions.)

The first part of section 1670(b)(10) contains a fixed standard for support, i.e., capable of supporting at least 5,000 pounds per employee attached. The alternative provision for compliance dispenses with a fixed standard and allows a variable “safety factor” of at least two and requires that anchorages used for attachment of the equipment be designed, installed and used under the supervision of a qualified person. We infer that the Standards Board provided alternative means to comply with the anchorage component of the system affording a similar degree of protection.

“Supervision” is not specifically defined in the regulations. “Supervision” is the noun form of the verb “supervise.” The word “supervise” means “to oversee, direct, manage (work, workers, a project, etc.); superintend. (Webster’s New World College Dictionary, 4th Ed., 2001). “Under” as a preposition means “in a position or condition regarded as lower than or inferior to, or implying subordination to....”, and as an adverb means “in or to a condition that is subordinate.”

We must infer a deliberate choice by the Standards Board in its use of the words “under the supervision of a qualified person.” We believe that the second alternative in section 1670(b)(10) sets forth a standard for protection that is equally preventative in nature given the compromise of a fixed load capacity standard that exists in the first part of the section.

We find that the ordinary meaning of the terms used in the regulation make clear that the requisite supervision of the anchorage must be made by a qualified person who can readily view and access the anchorage to which personal fall arrest equipment is attached. Only where the qualified person can readily5 view and access6 this critical component of the fall arrest system can the required oversight be accomplished so that there is an effective ability to identify any condition that compromises the integrity of the anchorage that enables the qualified person to take or direct immediate corrective action. Our interpretation gives meaning and effect to the words in the regulation and is consistent with the protective purposes of the Act, which includes the fall protection regulation.7

The Division asserts that the diminished protection in allowing a weaker support (i.e., less than 5,000 pounds as provided in the first alternative of the regulation) should be compensated by assuring that a qualified person is present at all times to oversee the system and its use. It concludes that the supervision and use of the anchorage are actions that cannot be undertaken simultaneously by a qualified person.

When the Standards Board has chosen to require a specific type of supervision of a hazardous activity, it has used specific language.8 For example, The Board recently interpreted the specific language in section 2040(c) which requires that when work is being done on exposed conductors or parts of equipment connected to high voltage systems, a qualified electrician, or an employee in training, shall be in close proximity at each work location to act primarily as an observer for the purpose of preventing an accident and to render immediate assistance in the event of an accident. Although we recognized that, during periods of work, a person acting primarily as an observer may be temporarily diverted from observing the work being performed by the employee working on the exposed equipment, we concluded that the clear intent of the regulation is to have a qualified electrical worker in close proximity who is not engaged in tasks other than observing the work being performed by the employee on the exposed equipment. (Southern California Edison, Cal/OSHA App. 96-3205, Decision After Reconsideration (April 2, 2001).)

In view of the above, we cannot read into section 1670(b)(10)(B) a requirement that supervision of the anchorage can only be performed by one not using the fall arrest equipment. The clear intent of the regulation is to require supervision of the anchorage used to attach the fall arrest equipment. Section 1670(b)(10)(B) does not require that supervision be afforded to the entire fall arrest system or to an employee using the fall arrest equipment. We hold that the specific language provided in section 1670(b)(10)(B) requiring that the anchorage be used under the supervision of a qualified person is satisfied where the qualified person can readily view and access the anchorage to which personal fall arrest equipment is attached, i.e., oversee the anchorage during its use.

Under the facts of this case, Gonzales was working at ground level and, at times, near the edge of the opening to unload the scaffold material hoisted from below ground.9 He was observed by Burgess attached to a lanyard within 6 feet of the excavation opening. Photographs and layout drawing of the worksite indicate that the anchorage attachment point was located on a scaffold anchor near the excavation opening and at a height slightly below the level of Gonzales’ waist. Evidence of the layout establishes that Gonzales could readily (without delay or difficulty) view the anchorage of the personal fall arrest system while his body harness was attached to the lanyard. There is no evidence of any visual obstruction in Gonzales’ immediate work area while he was attached to the lanyard. Nor was there evidence that, while attached to the arrest system, his work duties prevented him from regularly or routinely viewing the anchorage attachment.

Gonzales’ physical proximity to the anchorage attachment during his use of the fall protection system allowed him to readily access the anchorage in order to identify any problem or failure in the attachment so that immediate corrective action can be taken or directed by him. Unlike the situation where the person using the fall arrest system is suspended at a height with the work area below the anchorage point, the working level and anchorage were both at ground level within ready access by Gonzales who was responsible for overseeing the anchorage.

Although we find here that the qualified person supervising the anchorage for the personal fall arrest system was also the person using the system, we caution against a broad application or extension of the holding. There are perhaps instances where the person using the fall protection equipment could not be the qualified person charged with supervising the anchorage because of an inability to readily view and access the anchorage point of the fall arrest system.

The impractical and undesirable result in allowing supervision of the system by the same employee at immediate risk for falling can be seen when the worker using the system is not at the same level of the anchorage point of the system. For example, a worker working off an edge of a high wall with a personal fall arrest system having an anchorage at the top or over the top edge of the wall presents a different situation. Oversight of the system would be inherently compromised and insufficient because the same employee working (performing assigned duties) who is also responsible for monitoring the system lacks an ability to effectively identify any compromise or failure of the anchorage and to take immediate corrective action because the anchorage of the system is beyond physical view or access by the employee using the system.

The anchorage used to attach the personal fall arrest equipment was used under the supervision of a qualified person, within the meaning of §1670(b)(10)(B). We find that Employer complied with the alternative requirements of section 1670(b)(10), therefore a violation of the section cannot be sustained.

DECISION AFTER RECONSIDERATION

The Board affirms the ALJ’s Decision granting Employer’s appeal and setting aside the proposed 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 “Safety factor” is “[r]atio of the ultimate breaking strength of a member or piece of material or equipment to the actual working stress or safe load when in use.” Section 1504.
3 The Division does not contest the ALJ’s finding with respect to section1670(b)(10)(A) that the personal fall arrest system provided a safety factor of at least two (calculated by the weight of the employee and the likely force his fall would place on the system).
4 There is no dispute that, at the time of the inspection, supervision of the personal fall arrest system was not provided by a person other than the foreman using the personal fall arrest equipment.
5 The ordinary definition of “readily” is “1. without hesitation, willingly; 2. without delay; quickly 3. without difficulty.” (Webster’s New World College Dictionary of the American Language, 2nd College Ed., 1974)
6 The ordinary definition of “access” is “a way or means of approaching, getting, using.” (Webster’s New World College Dictionary of the American Language, 2nd College Ed., 1974)
7 The objective sought to be achieved as well as the evil to be prevented is of prime consideration in interpretation of statute, and where word of common usage has more than one meaning that one which will best attain purpose of statute should be adopted even though ordinary meaning of word is enlarged or restricted and especially if necessary to avoid absurdity or to prevent injustice. (Friends of Mammoth v. Bd. of Supervisors of Mono County (1972) 8 Cal.3d 247, 260)
8 See e.g., section 1734(a) [demolition work shall at all times be under the immediate supervision of a qualified person with the authority to secure maximum safety for employees engaged in demolition work]; section 1669(c) [limited exposure exception may apply provided that adequate risk control is recognized and maintained under immediate, competent supervision]; section 2940(d) [when work is being done on exposed conductors or parts of equipment connected to high voltage systems, a qualified electrician, or an employee in training, shall be in close proximity at each work location to act primarily as an observer for the purpose of preventing an accident and to render immediate assistance in the event of an accident].
9 There is no evidence establishing that Gonzales worked in the vicinity of the excavation opening without using the personal fall arrest equipment.