BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

In the Matter of the Appeal of:

MORRISON KNUDSEN CORP.
300 South Santa Fe Avenue
Los Angeles, California 90013

                                                     Employer

Docket No. 94-R5D2-2271

 

 

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 Morrison Knudsen Corp. (Employer), makes the following decision after reconsideration as to when employees exposed to the hazard of rail road tracks falling off a vehicle transporting them on a construction site must be provided safety-toe footwear.

JURISDICTION

On August 16, 1994, the Division of Occupational Safety and Health (the Division) conducted an accident inspection at a place of employment maintained by Employer at 300 South Santa Fe Avenue, Los Angeles, California (the site). On August 31, 1994, the Division issued to Employer a citation alleging a serious violation of section 1517(a) [appropriate footwear for falling object hazards] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations and proposed a civil penalty of $1,125.

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

On May 29, 1996, after a hearing, an administrative law judge (ALJ) of the Board issued a decision finding a serious violation and assessing a civil penalty of $1,125.

On July 1, 1996, Employer filed a petition for reconsideration. The Division filed an answer on July 24, 1996. The Board granted reconsideration on July 26, 1996.

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. The Board adopts and incorporates by this reference the summary of evidence set forth on pages two through five of the decision of the ALJ.

At the site, Employer was engaged in installing light rail line track at a station on the Los Angeles Metro Rail Red Line. The work required moving 600 pound rails, which were usually bundled together in groups of five and moved on the forks of a loader, a vehicle similar to a forklift, used to move materials on construction sites. The Division’s inspector observed employee Brad Pierce, who was working as a signal person, standing two to four feet from the bundled rails. A signal person gives directions to guide the loader driver. Pierce was wearing heavy leather work boots. The Division cited Employer because Pierce was not wearing steel reinforced footwear that complied with the standard issued by the American National Standards Institute, Z41.1-1967 (the ANSI standard), which is incorporated by reference into Construction Safety Order section 1517(c).

Employer’s director of safety Brad Giles testified that Employer had conducted an exhaustive safety analysis in preparing to perform the work on this project. The analysis had identified falling rails as a hazard to employees working in Pierce’s classification. Employer decided not to require its employees to wear footwear with steel toes meeting the ANSI standard because Employer determined that the weight of the rails was so great that in the event the rails fell on an employee’s foot, they would crush the steel reinforced toe, amputating the employee’s toes. Giles admitted he had not read professional safety literature on this issue and had never heard of an amputation resulting from the wearing of footwear meeting the ANSI standard prescribed by section 1517(c).

Larry McCune, the Division’s senior engineer of Research and Standards, testified as an expert for the Division. McCune testified that footwear meeting the ANSI standard would be appropriate to protect employees exposed to falling rails. McCune based his testimony on his 30 years’ experience in dealing with foot protection and on his reading of the literature in safety publications. McCune testified that each boot meeting the ANSI standard could withstand a 3,000-pound crushing load. McCune further testified that the bundled rails could break apart if they slipped off the loader’s forks, and then Pierce would be exposed to the possibility of being struck by a single rail. If struck by a single rail, ANSI standard footwear would very likely prevent any injury, particularly if the blow were glancing.

Employer witness Spence Jones testified that it was "theoretically possible" that a bundle of rails could bounce, but pointed out that the loader’s forks were kept in their lowest possible position when transporting rails, and that the most likely scenario would be that a bundle of rails would gradually slide off the forks, allowing an exposed employee time to get away. Jones did not address the possibility of a bundle of rails breaking and releasing a single rail.

The ALJ credited McCune’s testimony and held that footwear meeting the ANSI standard was required.

ISSUES

1. Did Employer’s instructions to signal persons to stay away from rails being transported by loaders excuse compliance with section 1517(a)?

2. Is section 1517(a) too vague to be enforceable?

3. Was footwear complying with ANSI Standard Z41.1-1967, incorporated by section 1517(c), appropriate and therefore required as foot protection for employees exposed to the hazard of falling or slipping rails?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

1. Employer’s Instructions to Signal Persons to Stay Away from Rails Being Transported by Loaders Did Not Excuse Compliance with Section 1517(a).

Employer contends that its instructions to employees to stay away from bundles of rails were appropriate protection for employees’ feet in these circumstances. The Board rejects this position because it amounts to only directing that employees not expose themselves to the hazard and does not remove the obligation of providing appropriate protective footwear as required by the safety order. Had exposure been prevented, there would have been no violation. Because exposure did occur when Brad Pierce stood two to four feet from the loader’s forks, the safety order required personal protective equipment.

    1. Section 1517(a) Is Not Too Vague to be Enforceable.

Section 1517(a) provides:

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.

Employer argues that section 1517(a) was too vague to be enforceable unless Employer is given full latitude to determine what footwear is appropriate. The Board rejected a vagueness contention in General Motors, a case decided under section 3385(a). The wording of section 3385(a), a General Industry Safety Order, and section 1517(a), the Construction Safety Order at issue in this case, was identical.

The Board held that section 3385(a) was sufficiently clear to be enforceable. Sections 1517(a) and 3385(a) enumerated several hazards ("hot surfaces, injurious substances, falling objects, crushing or penetrating actions, or . . . wet conditions") and required the employer to select footwear appropriate for whichever of the enumerated hazards are present. Sections 1517(a) and 3385(a) were not impermissibly vague, but left the employer some latitude to make reasonable choices in selecting footwear appropriate to protect against the referenced hazards. Further, section 1517(c) stated that ANSI standard footwear was required where safety-toe footwear was to be provided, a reasonable reference to footwear reinforced to resist falling objects and crushing actions.

It is apparent that a shoe that protects against the hazard of hot surfaces may not be effective protection from the danger of falling objects. The discretion to select appropriate footwear does not authorize a failure to provide or require any specific footwear where a hazard exists. Section 1517(a) provides sufficiently specific direction to employers.

The Board therefore rejects Employer’s contention that section 1517(a) is too vague to be enforced.

3. Footwear Complying with ANSI Standard Z41.1-1967, Incorporated by Section 1517(c), Was Appropriate and Therefore Required as Foot Protection for Employees Exposed to the Hazard of Falling Rails.

The ALJ found that Employer violated section 1517(a) because Employer did not provide and did not require its employees to wear footwear meeting the requirements of section 1517(c), which provided:

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

The ANSI standard referred to in section 1517(c) was promulgated by the American National Standards Institute, a private standards-setting body that works through a consensus process carried out by committees consisting of representatives of manufacturers, users, consumers, and government. Boot and shoe manufacturers then design their products to incorporate the ANSI standard’s requirements. Employers and employees could meet the requirements stated in section 1517(c) by buying footwear that is certified as having been manufactured in accordance with the ANSI standard, without having to make a judgment about the details of the standard.

Employer contends that employers are required by section 1517(a) to determine what footwear is appropriate to the risks involved, and that the ALJ erred by rejecting Employer’s determination that footwear complying with the ANSI standard was not required. Employer contends that the section 1517(c) requirement that safety-toe footwear meet the ANSI standard did not mean that ANSI standard safety-toe footwear was necessarily appropriate to meet falling object or crushing hazards referred to in section 1517(a).

In General Motors, supra pg. 3, the Board held that appropriateness of footwear is determined by the circumstances shown by the record. 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 footwear is appropriate.

The Board, however, disagrees with Employer to the extent that it contends that it has an absolutely unrestricted range of choice for protection of employees’ feet from falling objects. Falling objects and crushing hazards are among the hazards enumerated in section 1517(a) and, therefore, where they are present, appropriate protective footwear must be provided. Section 1517(c) requires that safety-toe footwear shall meet the ANSI standard. The ANSI standard specifies that safety-toe footwear provide protection from two hazards: falling objects and crushing actions.

In Zero Corporation, the Board reconciled the latitude given employers by section 1517(a) to select appropriate footwear with the section 1517(c) requirement that any safety-toe footwear meet the ANSI standard. 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. The burden then shifted to the employer to proceed with proof on this issue. By showing that Pierce’s feet were exposed to falling or slipping 600 pound rails, the Division has met its initial burden under Zero Corporation.

Employer seeks to rebut the applicability of the ANSI standard in section 1517(c) by showing that the footwear would provide no protection against the hazards the employees are exposed to. The Board has addressed contentions in the past that safety footwear was not appropriate because the hazards the employees were exposed to exceeded the ANSI specifications. In Zero Corporation, supra, the Board required the ANSI standard footwear 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 at least 200 pounds and up to 500 pounds. 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 for falling object hazards. 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.

Employer failed to prove that ANSI standard footwear would provide no protection at all to employees exposed to the rails as falling object or crushing action hazards. The ANSI standard, as explained by McCune, the Division’s expert witness, and credited by the ALJ, requires that safety-toe footwear be capable of withstanding 75 foot-pounds. The ANSI standard of 75 foot-pounds is tested by dropping a 50-pound weight in a gravity driven free-fall of one and one-half feet onto the toe of a steel-reinforced boot. The ANSI standard, as explained by McCune, also requires that safety-toe footwear be capable of withstanding a minimum of 2,500 pounds pressure without any buckling.

The rails presented both a falling object hazard and a gradually applied crushing action hazard, that could result from a bundle of rails slipping off the loaders’ forks. The ALJ credited McCune’s testimony that footwear meeting the ANSI standard would resist a gradually applied crushing pressure exceeding the 2,500 pounds that the ANSI standard specifies each piece of safety-toe footwear must resist without buckling.

The Board therefore affirms the ALJ’s finding of a violation of section 1517(a).

DECISION AFTER RECONSIDERATION

The decision of the ALJ is affirmed, and Employer’s appeal is denied. A civil penalty of $1,125 is assessed.

BILL DUPLISSEA, Member JANET M. EAGAN, Deputy Member

SIGNED AND DATED AT SACRAMENTO, CALIFORNIA - April 6, 2000