BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

THE HERRICK CORPORATION

P.O. Box 9125

Pleasanton, CA 94566

                              Employer

 

 

Docket No.

99-R1D3-786

 

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

JURISDICTION

On October 28, 1998, a representative of the Division of Occupational Safety and Health (the Division) commenced an accident investigation at a place of employment maintained by Employer at the San Francisco International Airport, South San Francisco, California (the site). On March 19, 1999, the Division issued to Employer a citation alleging a serious violation of section1 3328(a) [use or operation of machinery and equipment causing stress or overload], with a proposed civil penalty of $5,000.

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

On October 20, 1999, a hearing was held before James Wolpman, administrative law judge (ALJ), in Foster City, California. Ronald E. Medeiros, attorney, represented Employer. Brian Brooks, compliance officer, represented the Division.

On December 10, 1999, the ALJ issued a decision denying Employer's appeal and assessing a civil penalty of $5,000.

On January 13, 2000, Employer filed a petition for reconsideration. The Division filed an answer. The Board granted Employer’s petition on March 2, 2000.

EVIDENCE

The uncontradicted evidence established that Employer was engaged in the construction of a window wall and canopy for the main entrance to a third level terminal at the San Francisco International Airport. The canopy consisted of a web of steel beams extending out from the exterior front window wall of the terminal. Each projecting beam weighed approximately 5 tons and would eventually be supported by a pipe brace from above the canopy. The pipe brace extended downward at an angle from the window wall to the top of the canopy beam. The upper end of the pipe brace, or "knuckle," would be attached to the window wall above the canopy while the other end, the "lower knuckle," would be fastened to the upper surface of the canopy beam.

The injured employee, Pete Perez (P. Perez), was a member of a 6-man welding crew engaged in installing the braces and welding the structural members of the canopy. On October 20, 1998, while P. Perez was working from an elevated scissors lift at one side of the canopy structure, a beam on the other side fell, causing portions of the structure to sag or give way. In the process, P. Perez was thrown from the lift by the sideways movement generated by the partial collapse and seriously injured.

On November 17, 1998, compliance officer Brooks (Brooks) interviewed the project superintendent, Jeff Wakamatsu (Wakamatsu). Wakamatsu described the project and the procedures followed in the erection process. Although he had not witnessed the accident, he related the circumstances as he understood them based upon his knowledge of the construction activities and progress, and after speaking with welding crew foreman, Salvador Perez (S. Perez). At the time of the accident, the canopy structure was in place, but the pipe braces were still being installed. Until its brace was in place, each canopy beam rested on a temporary shoring column, consisting of a rectangular, 3 x 7-inch steel tube with a metal plate welded to each end. The bottom plate was welded to a steel beam under the floor and the top plate was tack-welded to the bottom of the canopy beam it supported. Brooks testified that Wakamatsu stated that the tack weld joining the shore to the beam that fell had been cut prior to the accident so that the beam could be elevated and fastened in place.

Brooks interviewed foreman S. Perez on December 2, 1998, and he similarly described the work being done at the time. Brooks testified that S. Perez also said that the tack weld joining the shore to the canopy beam that fell had been cut prior to the accident.

At the hearing, Wakamatsu testified that he has been a “field superintendent” for Employer for 17 or 18 years. At the time of the accident, Employer had been working at the particular location for 3 or 4 weeks.

Wakamatsu testified that the approximately thirty shore columns Employer used to support the canopy beams were designed and engineered for the particular location and load and had been installed by Employer’s erection crew in accordance with a design plan, approximately three months earlier. He testified that the shores were tack welded to the beam for safety purposes “in case anybody ran into the shore,” but then during cross-examination denied that the tack weld was necessary and that cutting it was unsafe.

According to Wakamatsu, on the day of the accident the crew was still welding or had just completed welding the upper "knuckle" of the pipe brace that would eventually support the beam. Only after that was done, would the tack welds between the shore and the canopy beam be cut. Because it was near quitting time, the tack welds would have been left intact that evening and cut the next morning when the beam was to be jacked and fastened in place. Wakamatsu stated he knew that the lower knuckle had not yet been fastened in place because he is the one who oversees the final elevation of the beam. He testified that work “shouldn’t have been done “ on the beam that day because the lower knuckle had not been ready for fastening. He stated that, to the best of his knowledge, the tack welds had not been cut.

Although he did not see the accident, Wakamatsu examined the shore shortly after it fell. It was in good condition, laying flat on the floor with its bottom base plate bent as if it had been “ripped out." Neither the shore nor its top plate was bent, and it fell toward the building. Although the canopy structure partially collapsed, only one shore fell to the ground. The portion of the canopy where the injured employee was working did not fall.

S. Perez testified that he has worked for Herrick as a welding foreman for 10 or 11 years. His crew was working on the canopy at the time of the accident. At the time of the accident, they had lined up and partially finished welding the brace for the upper knuckle of the beam that fell. He believed the shore was still tack welded to the canopy beam at the time of the accident, stating, "I don't think we [cut the tack weld] because we were still working on the [upper] knuckle". It was too late in the day to begin attaching the lower knuckle.

According to S. Perez, because the canopy was on the third level of the terminal and so much work was going on in the vicinity, there was a lot of vibration. He did not know why the beam collapsed. He inspected the shore after it fell and the top looked "fine." He stated he did not examine the tack welds.

ISSUES

1. Did the Division establish a violation of section 3328(a)?
2. Was the violation properly classified as serious?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

1. The Division Established a Violation of Section 3328.

A. The temporary shoring column is “equipment” within the meaning of section 3328(a).

Employer was cited for a violation of section 3328(a) of the General Industry Safety Order provisions. Section 3328(a) provides:

Machinery and equipment shall be of adequate design and shall not be used or operated under conditions of speeds, stresses, or loads which endanger employees.

Employer argues that the temporary shoring column that collapsed was not “equipment” subject to coverage under section 3328(a). The Division argues that the shoring column was “equipment” using the ordinary meaning of the term in the absence of a special definition provided in the regulations. The ALJ applied the ordinary meaning of the word from dictionary definitions.

Our review reveals that the ALJ was correct. The term “equipment” is not specifically defined in the General Industry Safety Orders. Under established rules of statutory and regulatory interpretation, in the absence of a special definition, the ordinary meaning of words will apply. Lungren v. Deukmejian (Roberti) (1988) 45 Cal.3d 727, 735; Sierra Production Service, Inc., Cal/OSHAB App. 84-1227, Decision After Reconsideration (Aug. 13, 1987).

Using the ordinary meaning of the term, the ALJ determined that the temporary shoring columns were “equipment” which is defined as “implements (as machinery and tools) used in an operation or activity”2 or “one or more assemblies capable of performing a complete function.”3 We note that these definitions are similar to the Board’s previous broad interpretation of the term “equipment” in section 3277 wherein the Board used the ordinary meaning of the term. (Kenneth L. Poole, Inc., Cal/OSHA App. 90-278, Decision After Reconsideration (Apr. 18, 1991) (truck trailers are “equipment”).)

Applying the above definitions to the facts, the ALJ determined and we agree that “[t]he temporary shores are ‘implements’ used in the operation or activity of supporting the canopy beams, and they are ‘assemblies’ consisting of steel tubes with a top and bottom plates, ‘capable of performing [the] complete function’ of providing support for canopy beams until their pipe braces are attached.” (ALJ Decision, p.7.)

We agree and find that the ALJ correctly interpreted the term “equipment” within the meaning of section 3328(a) and properly determined that the temporary shoring column in this case was “equipment” within the meaning of that section.

B. The evidence established that the shoring column was used under conditions of stress, which endangered employees.

Section 3328(a) prohibits “the use or operation” of equipment and machinery “under conditions of speeds, stresses, or loads which endanger employees.” Since the regulations do not specifically define “stress,” the ALJ interpreted the term using its ordinary meaning which is “the force acting across a unit area in a solid material resisting the separation, compacting, or sliding that tends to be induced by external forces.”4

Based upon the testimony of Brooks that he was told by Wakamatsu and S. Perez that the tack welds were cut prior to the accident, the ALJ found that the cutting of the tack welds5 created a condition of stress by inhibiting the ability of the shores, as installed, to resist separation or sliding from such external forces as vibration or vehicular collision.

We have independently reviewed the evidence and find that it supports the ALJ’s determination that the cut tack welds subjected the column to external forces (vibration) endangering employees. In addition to the testimony of Brooks, both Wakamatsu and S. Perez testified that the work site was located at the 3rd level of the airport terminal, there was much work going on in the work area, including vehicles driving to deliver supplies. S. Perez further testified that there was a lot of vibration at the worksite every day. Wakamatsu also testified that there was “a lot of activity in this area.”

Employer’s plan and practice for use of the shoring columns recognized the need to use tack welds for safety purposes as well as provide stability for the canopy beam pending permanent attachment to the pipe brace. The tack welds connecting the shore column to the canopy beam were cut only after the upper part of the permanent pipe brace was fully attached to the window wall above the canopy and immediately prior to attaching the lower part of the permanent pipe brace to the canopy with the project manager present to oversee the final elevation of the canopy beams.

In this case, the tack welds were cut resulting in a hazardous condition because the temporary shoring column had to sustain the canopy beam without an ability to resist separation or sliding between it and the shoring column from an external force such as vibration. Significantly, the only shoring column that collapsed to the floor was the one with the tack welds cut.

This supports a reasonable inference that Employer’s premature tack weld cut created a danger to employees, exposing them to a collapsing canopy that seriously injured an employee.

Employer’s primary defense is that section 1709 of the Construction Safety Orders more appropriately applies to the alleged hazardous condition.

We have held that a defense to a cited safety order based upon an employer’s position that another safety order more closely addresses the facts can only be made by an employer demonstrating that it complied with the safety order it claims is better suited to the actual circumstances. (Wetsel-Oviatt Lumber Company, Cal/OSHA App. 94-1462, Decision After Reconsideration (Apr. 12, 2000). Section 1709, asserted by Employer to be more appropriate to the facts, states:

No building, structure, or part thereof, or any temporary support or scaffolding in connection therewith shall be loaded in excess of its designed capacity.

Wakamatsu testified that the shoring columns used at the worksite were designed for the specific job. It was his belief that a Herrick engineer designed the shores. He also stated he viewed the documents indicating load capacities for the shoring columns. Such testimony, however, does not establish the actual design capacity for the shoring column that fell at the time of the accident nor the actual load that the column was subjected to at the time of the accident. While there was further testimony by Wakamatsu that those shores had been used for the same purpose for quite some time prior to the accident, none of these facts can support a finding that Employer complied with section 1709 at the time of the accident.6 Since Employer failed to establish its compliance with section 1709 rather than section 3328(a), we find that its defense that a more specific or appropriate safety order applied to the facts does not apply.

C. The Division properly cited section 3328(a) of the general industry safety orders since the condition was one of stress rather than excess loading.

Although we determined above that Employer failed to establish a defense to the cited section by demonstrating compliance with a safety order it contends was more appropriate, we will still address Employer’s argument that section 1709 is inconsistent with the cited section 3328(a). Employer maintains that since the temporary shoring column supported a beam of the canopy structure until such time that the beam would be permanently connected to a pipe brace from above the canopy, section 1709 would more specifically govern and prohibit issuance of a citation for violation of section 3328(a).

Employer further asserts that the coverage provision of the Construction Safety Orders requires reference to and application of section1709. Employer cited section 1502(b) which states, in relevant part:

(b) At construction projects, these Orders take precedence over any other general orders that are inconsistent with them, except for Tunnel Safety Orders or Compressed Air Safety Orders. (italics added)

Fundamental for application of section 1502(b) is that there be an inconsistency. Because the General Industry Safety Orders are minimum standards applicable to all employments and places of employment in California, those safety order provisions will apply unless there is an inconsistency with a specific order pertaining to like hazards or conditions. (§3202(a); C.W. Poss, Inc., Cal/OSHA App. 81-0350, Decision After Reconsideration (Apr. 11, 1985)7) More recently, we have stated that “[i]f a more specific section is silent on an issue covered by the general safety order specific to a particular type of equipment there can be no inconsistency.” (Pacific Gas and Electric Company, Cal/OSHA App. 99-1806, Denial of Petition For Reconsideration (July 19, 2000).)

We do not find an inconsistency between section 3328(a) and section 1709 in this case. The ALJ found, and we agree, that “[t]he determination that the problem is one of ‘stress’ rather than ‘load’ disposes of Employer’s claim that section 1709 was applicable.” (ALJ Decision, p.8.) The ALJ correctly noted that section 1709 provides that no temporary support shall be loaded in excess of its designed capacity and says nothing of stress. Section 1709 which prohibits excess loading of a temporary support beyond its designed capacity is silent on the issue of stress in the use of equipment, and therefore, is not inconsistent with §3328(a) which protects against a condition or hazard in the use of equipment under conditions of excess stress.

The premature removal of the tack welds fastening the shoring column to the beam it was supporting created a condition of “stress” because the tack welds no longer inhibited the ability of the shores to resist separation or sliding from vibration (an external force) which existed at the site. The resulting condition or hazard of “stress” created by this action is different from one involving the structural integrity of the shoring column itself to withstand a specific load within its designed capacity. In fact, the shoring column that fell showed no sign of failure due to an excess load.

While section 1709 prohibits the overload of a temporary support beyond its designed capacity, we find that the Division was not precluded from citing Employer for §3328(a) which prohibits the use of equipment under conditions of stresses which endanger employees.

2. The Violation of Section 3328(a) was Properly Classified as Serious.

For a serious violation, the Division must prove that there was a substantial probability that the violation could result in serious physical harm or death, and further, that the Employer knew of the violation or could have known of it by exercising reasonable diligence. Labor Code section 6432(a)8; section 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 conceded at the hearing that, if a violation is found, it would likely result in serious injury. However, Employer argues that the ALJ’s determination that Employer knew or could have known of the alleged violation was unsupported by the evidence.

We disagree. Wakamatsu testified that the purpose of the tack welds securing the temporary shore column to the canopy beam was for “safety.” Both Wakamatsu and S. Perez testified that under Employer’s practice and procedure, tack welds would only be cut after the upper brace or “knuckle” was welded to the pipe brace and just prior to attaching the lower knuckle to the canopy beam. At that time, the canopy beam would be immediately elevated and vertically adjusted in order to be attached to the descending pipe brace. According to Wakamatsu and S. Perez, at the time of the accident, which occurred at the end of the crew’s shift, the crew had only completed the upper knuckle attachment and had not started the lower knuckle attachment.

Wakamatsu testified that Employer had worked at the same location of the airport for three to four weeks prior to the accident. Significantly, both of Employer’s witnesses testified to the extensive activity going on in the immediate worksite area located on the third level of the airport and that there was a lot of vibration every day, including vehicle activity.

We find that Employer should have known of the violative condition through the exercise of reasonable diligence. This finding is based upon the above facts and circumstances testified to by Employer’s witnesses. Since the crew was working on the canopy beam supported by the shoring column that fell, Employer’s knowledge of the above facts would have caused an employer exercising reasonable diligence to determine and insure that the tack welds would not be cut prematurely.

We find that the evidence established that the Employer could have known of the violative condition through the exercise of reasonable diligence. The violation of section 3328(a) was properly classified as serious.


DECISION AFTER RECONSIDERATION

The decision of the ALJ is affirmed. A serious violation of section 3328(a) is affirmed and a civil penalty of $5,000 is assessed.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: December 18, 2001

1 Unless otherwise specified, all section references are to Title 8, California Code of Regulations.
2 Webster Third New International Dictionary, 1971, p. 768
3 McGraw-Hill Dictionary of Scientific and Technical Terms, 4th ed., 1989 p. 657.
4 McGraw-Hill Dictionary of Scientific and Technical Terms, 4th ed., 1989 p. 1836.
5 Although Brooks testified that, during his investigation, both Wakamatsu and S. Perez told him that the tack welds were cut prior to the accident, both Wakamatsu and S. Perez testified differently at the hearing. The ALJ found that the Brooks testimony was more credible and made a factual finding that the tack welds between the top plate of the shoring column and the bottom of the canopy beam had been cut prior to the accident. In this case, we will not disturb credibility determinations made by the ALJ. 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, 218; Metro-Young Construction Company, Cal/OSHA App. 80-315, Decision After Reconsideration (Apr. 23, 1981).
6 Employer also summarily asserts that other provisions of the Construction Safety Orders specifically address the issue of temporary shoring or “falsework” (e.g. sections 1637(c) [anchorage and bracing] and 1717(a)(1) [supports must be designed, erected, supported, braced, and maintained to safely withstand all intended loads during erection and construction]) in addition to section 1709 which provides a load capacity standard. For the same reason as discussed above, Employer failed to demonstrate that it complied with each of the safety order sections it contends would have been more appropriate.
7 The coverage provision for the General Industry Safety Orders provides in section 3202(a) that “[t]hese orders establish minimum standards and apply to all employments and places of employment in California as defined by Labor Code section 6303; provided however, that when the Occupational Safety and Health Standards Board has adopted or adopts safety orders applying to certain industries, occupations or employments exclusively, in which like conditions and hazards exist, those orders shall take precedence whenever they are inconsistent with the General Safety Orders hereinafter set forth.” (italics added)
8 Effective January 1, 2000, 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.