BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

In the Matter of the Appeal of:

MCM CONSTRUCTION, INC.
P.O. Box 620
North Highlands, CA 95660

                                        Employer

 

Docket Nos. 94-R3D5-246
                     through 249

 

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 (the Division), makes the following decision after reconsideration.

JURISDICTION

From September 16, 1993, through January 28, 1994, a representative of the Division conducted an accident inspection at a place of employment maintained by MCM Construction, Inc. (Employer) at 1691 Figueroa, Wilmington, California (the site). On January 28, 1994, the Division issued to Employer the following citations and proposed penalties for alleged violations of the occupational safety and health standards and orders found in Title 8, California Code of Regulations:

Citation            Section                                        Classification                 Penalty

  1.    1517(c)                                              Serious                        $7,000
    [ANSI standard for safety-toe shoes]

  2.                    5042(a)(9)                                          Serious                        $7,000
                    [employees clear of load suspended in sling] 

    3                      1517(a)                                              Serious                        $7,000
                        [appropriate foot-wear]

    4                    1517(b)                                              Serious                $7,000
                        [defective footwear]

Employer filed a timely appeal from the citations, contesting the existence and classification of the violations and the reasonableness of both the abatement requirements and the proposed civil penalties. After a hearing, an administrative law judge (ALJ) of the Board issued a decision dated March 16, 1995, granting Employer’s appeal and setting aside the proposed civil penalties in Citation Nos. 1, 3, and 4. The ALJ also reduced the classification of Citation No. 2 from serious to general and, accordingly, reduced the proposed civil penalty from $7,000 to $1,000.

On April 17, 1995, the Division filed a petition for reconsideration. Employer filed an answer on May 19, 1995. The Board granted the Division’s petition for reconsideration on May 26, 1995, and stayed the decision of the ALJ pending a decision on the petition for reconsideration.

EVIDENCE

In making this decision, the Board relies upon its independent review of the entire evidentiary record in this case. The Board has taken no new evidence and adopts and incorporates by this reference the "Summary of Evidence" set forth on pages 2 through 5 of the ALJ’s decision.

Employer was building a retaining wall alongside an offramp of the Harbor Freeway (110) in downtown Los Angeles. At the time of the accident, Employer’s carpentry crew was installing framing for the retaining wall. To insulate workers from the traffic, a temporary wall was made by placing "k-rails" end to end between the traffic lanes and the employees’ work area. K-rails are large sections of cement, in this case approximately 20 feet long, three to five feet high, and weighing 8,000 pounds. K-rails are commonly used as temporary walls during freeway construction, and as center dividers.

The accident that led to the citations in this case occurred when two k-rails were pivoted several feet outward, like two sides of a gate to create an opening in the temporary k-rail barrier. One end of each k-rail was swung out several feet by a crane, while the other end remained near the next k-rail in the wall, which remained stationary. Each k-rail was lifted by two large hooks suspended on two long, heavy chains that converged at the crane boom. Each hook was inserted into one of two large holes in the k-rail. The crane never

lifted the k-rail more than eight to twelve inches off the ground as one end was swung several feet back to its original position.

The injured employee, Jorge Huerta, a carpenter, stood at about the mid-point of one of the k-rails to control its movement, guiding it to and attempting to hold it in the desired position by pushing directly on it with his hands. As the rail was gradually being lowered, it swung back toward Huerta, settling on one of his feet. The weight of the k-rail crushed Huerta’s big toe and the toe next to it. Huerta was hospitalized initially for nine days, then for an additional period of five days. During the second hospitalization, the crushed toes were amputated.

The boots Huerta was wearing did not have any special reinforcement to protect his feet from crushing hazards. They did have a special sole designed to resist puncturing by nails, a common hazard in the carpentry work Huerta normally performed.

The Division cited Employer for three separate serious violations regarding footwear: section 1517(a), alleging that Employer failed to enforce the use of appropriate protection for employees exposed to crushing or falling objects; section 1517(c), alleging that employee’s work boots did not meet the requirements of the American National Standards Institute’s standard Z41.1-1967 (the ANSI standard) for men’s safety-toe footwear; and section 1517(b), alleging that Employer failed to prohibit the use of inappropriate footwear where its ordinary use creates the possibility of foot injuries.

The ALJ granted Employer’s appeal as to Citation Nos. 1, 3, and 4, which alleged violations of section 1517. The ALJ found that the Division failed to establish under section 1517(a) that the work boots worn by Huerta were inappropriate for the work Huerta ordinarily performed and that no evidence was presented regarding whether any other shoe, practical for the job, would have prevented or mitigated Huerta’s injuries. The ALJ found that section 1517(c) was not applicable because Employer had not provided or required safety-toe shoes. Finally, the ALJ found that Huerta’s boots were not defective or an independent cause of additional injuries and set aside the citation alleging a violation of section 1517(b). The ALJ found that Employer had violated section 5042(a)(9) by failing to keep Huerta clear of the k-rail, but classified the violation as general rather than serious because Employer could not have foreseen that the k-rail would swing towards Huerta.

Docket No. 94-R3D5-247

Citation No. 2, Serious

5042(a)(9)
[Employees to Be Clear of Suspended Load When Sling Used]

ISSUE

Was Citation No. 2 properly classified as serious?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

Section 5042(a)(9) provides:

(a) Whenever any sling is used, the following practices shall be enforced.

    1. All employees shall be kept clear of loads about to be lifted and of suspended loads.

The Division cited Employer alleging a serious violation of section 5042(a)(9) for failing to keep Huerta clear of the k-rail, a suspended load, during crane operations using a sling. The ALJ found that the hooks and chain used to move the k-rails constituted a sling as that term is used in section 5042, and that Huerta was not kept clear of the load in the sling. On this basis, the ALJ found that the Division established a violation of section 5042(a)(9).

The ALJ, however, reduced the classification of the violation from serious to general. Labor Code section 6432 defined a violation as serious if it presented:

[A] substantial probability that death or serious physical harm could result from . . . one or more practices, means, methods, operations, or processes which have been adopted or are in use, in the place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation. (Emphasis added.)

Therefore, to establish the serious classification, the Division had to show Employer knowledge of the existence ("presence") of the violation. (Fischbach and Moore, Inc.) Employer knowledge that an accident was likely to occur is not an element of a serious classification. "The likelihood that an accident will occur does not pertain to the serious classification;" likelihood of injury is considered solely in calculating the penalty under section 335(a)(3) ("Likelihood") of the Director’s regulations. Rather, the inquiry is, if an accident occurs, will the resulting injury more likely than not result in death or serious physical harm?

The ALJ addressed Employer knowledge based on whether Employer could have foreseen that the k-rail would swing back towards Huerta and injure him—that is, the likelihood that an accident causing serious injury would occur.

The only Employer knowledge required was not of the likelihood of an accident but whether section 5042(a)(9) was being violated. Section 5042(a)(9) requires not only that employees be kept clear of the area immediately below the suspended load but that they be kept clear of loads "about to be lifted." The hazard presented by a load about to be lifted is not that the weight of the load will crush a body part. The command of section 5042(a)(9) is that, by being kept away from loads in a sling that have been raised or are about to be raised, employees will be protected from all hazards presented by loads in a sling, not just those occurring when the suspended load reaches its landing point.

As the ALJ found, Huerta was not "kept clear" of the load, as expressly required by the words of section 5042(a)(9). Huerta was in direct bodily contact with the suspended load, and thus was exposed to all the hazards arising from a suspended load, including the possibility that it could land on his foot.

Huerta’s bodily contact with the load took place in plain view of the foreman, who was a few feet away, at one end of the k-rail. Employer therefore had knowledge of the presence of the violation.

The injury resulting from the weight of an 8,000 pound object bearing on an employee’s feet will more likely than not result in serious physical harm. That probability was borne out by Huerta’s injury, which is a "serious injury" under Labor Code section 6302(h), because he was hospitalized for over 24 hours and suffered an amputation.

The Appeals Board therefore finds that Citation No. 2 was appropriately classified as serious. Because the violation is accident-related, and because Employer was not entitled to a penalty reduction due to the size of its work force, the proposed civil penalty of $7,000 is assessed.

Docket Nos. 94-R3D5-246 and 248

Citation Nos. 1 and 3, Serious

1517(c)
[ANSI Standard Safety Shoes]

1517(a)
[Use of Appropriate Footwear]

ISSUES

    1. Is the Board required to take official notice of the ANSI standard?
    2. Does section 1517(a) require that safety-toe shoes meeting the ANSI standard be provided to employees handling k-rails?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

The Division argues that the unreinforced work boots worn by Huerta, the injured employee, afforded him no protection when he was exposed to foot injuries from a suspended 8,000 pound k-rail. The Division argues that Employer violated section 1517(a), because the work boots worn by Huerta did not comply with the ANSI standard as required by section 1517(c).

The ALJ found that there was no evidence that any footwear would have been appropriate to protect employees from the hazard of moving k-rails. The ALJ also found that section 1517(c) was inapplicable because it did not mandate that an employer provide shoes meeting the ANSI standard, only that if an employer provided safety-toe footwear, that it had to meet the ANSI standard.

The ALJ also found that the Division failed to provide any evidence that shoes meeting the ANSI standard would have provided any protection because the Division failed to introduce the ANSI standard into evidence.

    1. The Board is Required to Take Official Notice of the ANSI Standard.
    2. The ALJ found that the Division failed to prove the appropriateness of ANSI standard footwear because it failed to introduce the text of the standard.

      Section 376.3(b) of the Board’s regulations requires that:

      The Appeals Board shall take official notice of those matters set forth in Section 451 of the Evidence Code . . . .

      Evidence Code section 451, Mandatory Judicial Notice, provides:

      Judicial notice shall be taken of the following:

      (b) Any matter made a subject of judicial notice by Section 11343.6, 11344.6, or 18576 of the Government Code . . .

      The second paragraph of Government Code section 11344.6 provides:

      The courts shall take judicial notice of the contents of each regulation which is printed or which is incorporated by appropriate reference into the California Code of Regulations as compiled by the [O]ffice [of Administrative Law]. (Emphasis added.)

      The Board therefore must take official notice of the ANSI standard incorporated by reference in section 1517(c).

      Having determined that official notice of the ANSI standard was required, the Board notes that with respect to crushing action hazards, the ANSI standard requires that steel protective toes resist 2,500 pounds compression without buckling.

    3. Section 1517(a) and (c) Required that Safety-Toe Shoes Meeting the ANSI Standard Be Provided to Employees Handling K-rails.

Section 1517(a) and (c) provided:

(a) Appropriate foot protection shall be required for employees exposed to foot injuries, such as hot surfaces, injurious substances, falling objects, crushing or penetrating actions or who are required to work in abnormally wet locations.

(c) Safety-toe footwear for employees shall meet the requirements and specifications in ANSI Z41.1—1967, Men’s Safety-Toe Footwear.

In General Motors, the Board held that section 3385(a), a General Industrial Safety Order then written exactly the same as section 1517(a), was essentially a performance standard: if the record shows the presence of any of the hazards referred to in section 1517(a), footwear providing protection from that hazard is required. The Board stated that "[s]o long as the footwear provided by an employer protects against the enumerated hazards, reasonable choices in protective footwear are allowed." Therefore, the Board agrees with Employer to the extent that it contends that section 1517(a) allows the employer some flexibility to determine what appropriate footwear is, depending on the hazard presented.

The Board held in Zero Corporation that where the Division had shown that employees were exposed to falling objects capable of injuring their feet, it had presented sufficient evidence that footwear meeting the ANSI standard was appropriate and shifted the burden to the employer to prove that footwear meeting the ANSI standard would not provide protection. By showing that Huerta’s feet were exposed to the 8,000 pound k-rail, the Division has met its initial burden under Zero Corporation, shifting the burden to the employer to rebut the applicability of the standard.

The ANSI standard provides that each safety-toe shoe shall be able to withstand a crushing pressure of up to 2,500 pounds without any buckling, while it specifies a resistance to a falling object of only 75 foot-pounds. The ANSI standard explains that the 75 foot-pound falling object resistance is to be tested by dropping a 50 pound weight 1 and 1/2 feet. (ANSI Standard Z41.1-1967, 4.5.6.)

Employer contends that because the k-rail weighed 8,000 pounds, and greatly exceeded the ANSI standard for falling object hazards, ANSI standard footwear provided no protection. The k-rail, however, was lowered gradually by the crane. It therefore was not a falling object hazard, but rather a gradually applied crushing action hazard, against which ANSI standard safety-toe footwear provides 2,500 pounds protection for the toes of each foot.

The Board has addressed contentions in the past that safety shoes were not appropriate because the hazards the employees were exposed to exceeded the ANSI specifications. In Zero Corporation, supra, the Board required ANSI standard boots even though the falling object hazards in the die setting department ranged between a minimum of 50 pounds up to a ton, dropped from heights exceeding the one and one half foot 50 pound drop specified by the ANSI standard. In General Electric Company Vertical Motor Plant, the Board upheld the ALJ’s abatement order that "safety shoes, or their equivalent," be provided to employees exposed to a falling object hazard of dies weighing between 200 pounds and up to 500 pounds. Therefore, the mere fact that the weight of the hazard exceeded the limits of the standard was insufficient to rebut the appropriateness of safety-toe footwear.

Thus, in Zero Corporation and General Electric, the Board interpreted section 3385(a), and therefore identically worded section 1517(a), to require safety footwear even where all the falling-object hazards exceeded the ANSI standard’s 75 foot-pound upper limit.

Even if the Board had contemplated the alleged ineffectiveness of ANSI standard footwear as a defense to compliance with a safety order, Employer has failed to offer any evidence that ANSI standard footwear would provide no protection at all. In many plausible situations, such as glancing blows, or where a substantial part of the weight of the k-rail was supported by the crane or the ground, the injury to the employee might have been prevented or reduced. Employer presented no evidence beyond the weight of the k-rail. Employer therefore failed to demonstrate that ANSI standard footwear would never be effective.

Based on the foregoing, the Board finds that Employer failed to rebut the Division showing that ANSI standard footwear was required, and a violation of section 1517(a) is established.

Therefore, where there is a failure to provide or require any protective footwear where falling objects and crushing action hazards exist, a section 1517(a) violation is established when ANSI standard boots are not provided. In the case of falling objects or crushing actions, section 1517(c) acts as an additional specification of the toe protection that must be provided for those hazards. The Board, however, agrees with the decision to the extent that it holds that there is no independent violation of section 1517(c) unless the employer provides some form of safety-toe footwear that falls short of the ANSI standard. Therefore, the ALJ properly set aside Citation No. 1, alleging a violation of section 1517(c).

The Board therefore reverses the decision as to Citation No. 3 and finds a violation of section 1517(a) was established, but affirms the decision setting aside Citation No. 1, which alleged a violation of section 1517(c). Because the violation is accident-related, and because Employer was not entitled to any penalty reduction due to the size of its work force, a civil penalty of $7,000 is assessed.

Docket No. 94-R3D5-249

Citation No. 4, Serious

1517(b)
[Prohibition of Defective Footwear]

ISSUE

Were the work boots worn by employees defective or inappropriate for the work ordinarily performed?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

In Citation No. 4, the Division cited Employer under section 1517(b), which provides:

Footwear which is defective or inappropriate to the extent that its ordinary use creates the possibility of foot injuries shall not be worn.

The ALJ found no violation of section 1517(b). The ALJ found that no evidence was produced that Huerta’s boots were inappropriate or inadequate for the work Huerta and Employer’s other carpenters ordinarily performed, which did not include the handling of k-rails.

The Board agrees with the ALJ that there is no evidence that unreinforced boots were inappropriate for the duties Huerta ordinarily performed. The failure of Huerta’s unreinforced boots to protect him from injury by the k-rail’s crushing action is fully addressed by the section 1517(a) citation. Section 1517(b) is addressed to a different concern, footwear that, as ordinarily used by the employee, creates a hazard.

There is no evidence that Huerta’s boots created any possibility of foot injuries in the normal course of Huerta’s duties. The Board therefore affirms the ALJ’s grant of Employer’s appeal from Citation No. 4.

DECISION AFTER RECONSIDERATION

The ALJ’s decision as to Citation No. 3 and as to the classification of Citation No. 2 is reversed. The Board finds a serious violation of section 1517(a) was established in Citation No. 3, and a serious classification was established as to the section 5042(a)(9) violation in Citation No. 2, and assesses civil penalties totaling $14,000. The ALJ’s decision as to Citation Nos. 1 and 4 is affirmed, and Employer’s appeal is granted as to those citations.

BILL DUPLISSEA, Member JANET M. EAGAN, Deputy Member

SIGNED AND DATED AT SACRAMENTO, CALIFORNIA - March 30, 2000