EXECUTIVE SUMMARY
OCCUPATIONAL SAFETY AND HEALTH
APPEALS BOARD

Summary of TUTOR-SALIBA-PERINI - DAR


An annual examination of a crane was not required by section 5031(d) until 9/8/95. The Division cited Employer for a violation of section 5031(d) before that date. In the decision the ALJ amended the citation to allege a violation of section 5031(b)(6) [daily, pre-work inspection of crane lines] without notifying the parties of the intent to amend pursuant to section 386(b). Failure to notify the parties was not raised as an issue on reconsideration and Employer argued in the petition that it had presented evidence showing that it had not violated section 5031(b)(6). The section 386(b) notice requirement is an opportunity for the parties to show that the post-submission amendment would prejudice them. Employer was the party potentially prejudiced by the amendment and its petition "affirmatively shows" there was no prejudice, so the purpose of section 386 is moot and the Board approves the amendment [harmless error]. The Division did not prove when the alleged damage to the crane lines occurred or that the crane was in service. Hence, no violation of section 5031(b)(6) was found because there was no proof of employee exposure to the damaged lines or proof of the duty to make a pre-shift inspection of the lines after damage had arisen.

TUTOR-SALIBA-PERINI 95-R6D2-1496
May 11, 2000