BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

In the Matter of the Appeal of:

J.F. SHEA, INC.
P. O. Box 923063
Sylmar, CA 91392-3063

                                    Employer

Docket No. 95-R5D2-2070

 

DECISION AFTER RECONSIDERATION

The Occupational Safety and Health Appeals Board (Board), acting pursuant to the authority vested in it by the California Labor Code and having granted the petition for reconsideration filed by the Division of Occupational Safety and Health (Division), makes the following decision after reconsideration.

JURISDICTION

Between March 13 and 20, 1995, the Division conducted an accident inspection at a place of employment maintained by J.F. Shea, Inc. (Employer) at 17011 Foothill Boulevard, Sylmar, California. On May 11, 1995, the Division issued one citation, alleging a serious violation of section 1670(a) [wearing of approved safety belts and lanyards] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations. A civil penalty of $1,625 was proposed.

Employer filed a timely appeal. An administrative law judge (ALJ) of the Board conducted a hearing and issued a decision on January 10, 1997.

On February 14, 1997, Employer petitioned the Board for reconsideration of the ALJ’s decision. The Board granted Employer’s petition on March 6, 1997, and stayed the ALJ’s decision pending a decision on the petition for reconsideration. On March 17, 1997, the Division filed an answer.

ISSUE

Under the circumstances presented in this case, could the Division appropriately cite Employer for a violation of section 1670(a) rather than section 1669(a)?

EVIDENCE

The Board has taken no new evidence and relies upon its independent review of the record in making this decision. The Board adopts the summary of evidence on pages 2 and 3 of the ALJ’s decision.

Employer was repairing earthquake damage to a large tunnel that supplies water to the Los Angeles Basin. One of its crew foreman was seriously injured when he fell 10 feet from a "needle beam" that was part of a "concrete form carrier" used to transport and place the forms needed to construct the concrete lining of the tunnel.

Because the water tunnel is round, the forms for installing its concrete lining are circular, with a diameter slightly smaller than the tunnel itself. Each form covers a 10 foot length of the tunnel. When installed, the inspector aptly described them as resembling a row of tin cans, with their tops and bottoms removed, laid on their sides, end-to-end.

The concrete is poured section by section. Once the concrete in one section has cured, its form is removed and transported forward, through the inside of the other forms (each filled with as-yet uncured concrete), to the leading edge of the concrete lining, where it is reinstalled and readied for another pour. The rotation continues, section by section, until the lining is completed.

An individual form is made up of 5 "subsections," each constituting a part of the full circle. When it comes time to move a form, its two lower subsections are collapsed inward and lowered, along with the remaining subsections, so that the disassembled form can pass through the inside circumference of the forms ahead of it.

Because of the weight and size of the forms, they cannot be moved by hand. Employer therefore utilizes a "concrete form carrier." The carrier is situated inside the form sections. It has a carriage, which can be raised and lowered, that travels along rails mounted on crossbeams in the lower portion of each form. Mounted on the carriage is the needle beam, a horizontal structure, consisting of two parallel I-beams, with cross supports between them and a metal grating on top. It is equipped with motors that allow it to move forward and backward on the carriage. It is referred to as a "needle beam" because it can be extended and retracted. To move a form forward to a new location, the needle beam is extended back to the form to be moved, the carriage is raised, the form is collapsed onto the beam, the carriage is lowered, and the loaded beam is propelled forward to the head of the line, where the form is reinstalled.

While employees are involved in the movement and installation of the forms, the record is silent as to their precise responsibilities. It is undisputed, however, that the accident occurred while crew foreman Casiano Palma was on the needle beam, seated on the upper flange of one of its constituent I-beams with his feet resting on its lower flange. As he reached out to insert a "float pin" into a form that was to be moved, the tunnel lights flickered and went out. In the darkness, he lost his balance and fell 10 feet to the carrier travel rails and through an opening between one of the rails and its support to the bottom of the tunnel, another 2 feet below.

At the time, he was wearing no fall protection, and the needle beam was without railings, a safety net, or other fall protection.

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

Employer contends that section 1669(a) more appropriately applies to the workplace hazard cited by the Division and that section 1670(a) is inapplicable based upon the Board’s interpretation of these sections in Lusardi Construction Company.

Section 1669(a) applies to work performed from "thrustouts or similar locations, such as trusses, beams, purlins, or plates . . ." Section 1670(a), the cited section, applies to "the perimeter of a structure, unprotected sides and edges, leading edges, through shaftways and openings . . ."

To resolve Employer’s contention, the Board must first examine the application of the safety orders to the facts of this case. The regulations define a structure as "[t]hat which is built or constructed, an edifice or building of any kind, or any piece of work artificially built up or composed of parts joined together in some definite manner." ( 1504 and 3207.)

The "cement form carrier" unquestionably falls within that definition. Furthermore, it is a structure with a particular purpose and characteristics. It is mobile, it is elevated, and it includes a platform—the so-called "needle beam"—to provide a working area for employees and the tools or materials they use.

Because there is no applicable Tunnel Safety Order, the Board must look elsewhere in Title 8. Section 1621(a) of the Construction Safety Orders addresses "elevated [work] platforms" and provides:

Unless otherwise protected, railings as set forth in Section 1620 [Design of Temporary Railing] shall be provided along all unprotected and open sides, edges and ends of all built-up scaffolds, runways, ramps, rolling scaffolds, elevated platforms, surfaces, wall openings, or other elevations 7 feet or more above the ground, floor, or level underneath. (Emphasis supplied.)

However, the existence of a particularized safety order does not necessarily foreclose the applicability of another, more general order. In Northern California Anthes, Inc. the Board held:

Where there is no conflict between the safety order cited (Section 1670(a)) and another appropriate safety order (Section 1644) and where a reasonable basis exists for application of either set ( . . . ), an employer cannot defend that the set not cited should apply simply because it is more appropriate or more particular. (Citations omitted.)

There is no conflict between section 1670(a) and section 1621(a). Both can be satisfied by the use of personal fall protection equipment and both require such equipment to be worn at heights of 7 feet or more.

But the cited order must also be "appropriate" to the circumstances, and Employer takes the position that it is not. In Employer’s view, section 1670(a) is inappropriate because the work was being performed from a "beam", and is therefore covered by section 1669(a), which allows an employee to work up to 15 feet without fall protection. Furthermore, Employer points out that section 1670(a) applies to work performed from the "perimeter of a structure or from its unprotected sides and edges," and that the Board, in Lusardi Construction Company, supra, interpreted "the perimeter of a structure" to mean the load bearing walls or wall frames at the periphery of a building. Since the needle beam is neither a wall or a wall frame, Employer concludes that section 1670(a) does not apply.

The needle beam is not a true beam. It is a work platform consisting of two parallel I-beams, joined together by cross supports, with a metal grating of a kind commonly used for footing on work platforms attached to the top. The I-beams have been incorporated into the structure of the work platform and must be considered integral parts of that structure. Indeed, that very integration alters the hazardous characteristics of the constituent beams. Employees utilizing the platform are not called upon to navigate a discrete, narrow strip of metal from which they can just as easily fall to either side. The danger they face is the same danger faced by any employee working at the perimeter of a structure—a fall from the open side. Clearly, the hazard addressed by section 1670(a).

Employer misunderstands the Board’s holding in Lusardi Construction, supra. That case involved the construction of a multi-story wood and steel building. Because the Board determined that the employer had confused the relevant safety orders requiring certain employees to be tied off "during building construction," the Board announced its intention was to clarify sections 1669(a), 1670(a) and 1710(g) to avoid confusion in the future. (Id. at p. 6.) The Board then proceeded to interpret "‘the perimeter of a structure’ [as it appears in 1670(a)] to mean the load bearing walls or wall frames on the periphery of the building under construction." (Id. at p. 7.)

Both the Board’s introduction to the clarification and the clarification itself took care to explain that the Board was addressing the confusion that had arisen regarding three safety orders as they had been applied to buildings under construction. The Board’s purpose was to make it clear which work and which portions of a building were covered by which safety orders. The Board did not limit—or even address—the application of those orders to structures other than buildings, and certainly did not set out to redefine the term "structure" as it appears in section 1670(a). Indeed, any attempt to do so would have been beyond the Board’s power since the Standards Board, in section 1504, determined that the term is not confined to buildings. Under the Standards Board’s broad definition, the needle beam certainly qualifies as a structure.

Because the foreman was working at the needle beam’s perimeter without fall protection, a violation of section 1670(a) is sustained.

DECISION AFTER RECONSIDERATION

Employer’s appeal is denied. A serious violation of section 1670(a) is found and a civil penalty of $1,625 is assessed.

BILL DUPLISSEA, Member      MARCY V. SAUNDERS, Member

SIGNED AND DATED AT SACRAMENTO, CALIFORNIA - June 7, 2000