BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

In the Matter of the Appeal of:

TUTOR-SALIBA-PERINI
15901 Olden Street
Sylmar, California 91342

                                      Employer

Docket No. 95-R6D2-1496

 

        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 proceeding by Tutor-Saliba-Perini (Employer), makes the following decision after reconsideration.

JURISDICTION

On March 6, 1995, representatives of the Division of Occupational Safety and Health (Division) conducted a targeted industry inspection at a place of employment maintained by Employer at Metro Rail Station B-241, at the intersection of Beverly Boulevard and Vermont Avenue, Los Angeles, California (the site). On April 5, 1995, the Division issued to Employer Citation No. 1, alleging a serious violation of section 5031(d)(2) [inspection of crane lines] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations. The Division proposed a $1,500 civil penalty for the alleged violation.

Employer filed a timely appeal contesting the existence and classification of the alleged violation and the reasonableness of the proposed penalty.

An administrative law judge (ALJ) of the Board conducted a hearing on Employer’s appeal and issued a decision on December 31, 1996. In the decision, the ALJ amended the citation to allege a violation of section 5031(b)(6) [daily visual inspections of crane rigging], found a general violation of that section, and assessed a $600 civil penalty, due to the classification reduction.

On January 21, 1997, Employer filed a timely petition for reconsideration of the ALJ’s decision. The Division filed an answer to the petition on February 24, 1997. On February 25, 1997, the Board granted Employer’s petition and stayed the ALJ’s decision pending reconsideration.

ISSUE

Did the Division prove that Employer committed a violation of section 5031(b)(6)?

EVIDENCE

The Board has taken no new evidence and relies upon its independent review of the entire record in making this decision.

Employer was engaged in the construction of an underground metro rail line station designated B-241. On March 6, 1995, the Division initiated a targeted industry inspection or "sweep" of the entire Metro rail line project. The chief of the Division’s crane unit and two compliance officers were assigned to inspect the numerous cranes being used throughout the project by Employer and other participating contractors.

They observed and photographed what appeared to be a "kink" in the main hoisting line of a crane Employer had at the site. The crane unit chief also noticed what appeared to be a defect known as "high stranding" in the crane’s auxiliary line. The bend in the main line could be seen from 50 to 100 feet away. The crane was used to lift heavy loads. If the wire rope main line parted during a hoisting operation and an employee was struck by the falling load or a whipping end of the parted rope, it was substantially probable that death or serious physical harm could result.

After the case was submitted for decision the ALJ amended the citation to allege a violation of section 5031(b)(6) without providing the parties with notice of the intended amendment and the opportunity to show they would be prejudiced by such an amendment.

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

The section under which the Division cited Employer, section 5031(d), provides that in each of the three years following quadrennial certification of a crane, on a date ". . . not later than the anniversary date of the quadrennial certification" the responsible employer must conduct an examination of the crane. Subsection (2) contains the requirements for inspecting ropes.

Employer was issued a quadrennial certificate for the crane on September 8, 1994 and did not have to conduct the annual examination until September 8, 1995. The Division conducted its inspection on March 6, 1995, slightly more than six months before the certificate’s 1995 anniversary date. The Division’s charge that Employer was in violation of section 5031(d)(2) on March 6, 1995, was premature.

The ALJ properly concluded that section 5031(d)(2) did not apply to the facts alleged in the citation. The ALJ amended the citation to allege a violation of section 5031(b)(6). Subsection (b) [frequency of inspections] provides that "Daily visual inspections by the operator [of a crane] or other qualified person shall be made of/for" various, numerically listed, crane equipment defects. Listed as (6) is "[e]xcessive wear, broken wires, stretch, kinking, or twisting of ropes and rope slings, including end connections."

The ALJ did not give notice to the parties of the intent to amend or give them the opportunity to show prejudice by the amendment as required by section 386 of the Board’s rules of practice and procedure. Employer’s petition does not allege that the amendment was prejudicial, but contends that the evidence it presented at the hearing—that the crane was not in service or scheduled to be in service on the day of the inspection—addressed the issue raised by the amendment of the citation to allege a section 5031(b)(6) violation.

The Board is of the view that it is preferable that the parties have the opportunity provided by section 386 to show that a post-submission amendment would be prejudicial to them. In this case, however, Employer, the party that would have been prejudiced, in its petition argues that the evidence it presented at the hearing fully addressed the amended section, therefore non-compliance with section 386 is not fatal to the amendment. Section 386 merely gives each party the chance to argue that the amendment would be prejudicial to it. Here, Employer’s petition affirmatively shows that there was no prejudice. Because there was no prejudice, the purpose of section 386, prevention of prejudice, is moot in this case.

The Division did not dispute the amendment. The Division only contends that the ALJ’s inference that the defects established a failure to inspect on a prior shift is sufficient to support the existence of a violation of section 5031(b)(6).

The Board therefore accepts the amendment of the citation to allege a violation of section 5031(b)(6).

Section 5031(a) is instructive as to the meaning of the term "daily visual inspections" as used in section 5031(b). Section 5031(a) provides, in pertinent part, that, "[a] qualified person shall visually inspect the crane’s or derrick’s controls, rigging and operating mechanism prior to the first operation on any work shift." Subsection (b) supplements subsection (a) by specifying the items that must be examined to comply with the inspection mandate of subsection (a). Thus, to establish a violation of section 5031(b)(6), the Division had to prove that a qualified person failed to inspect the crane’s rigging, "prior to the first operation [of the crane] on any work shift."

Employer’s working foreman at the site testified, without refutation, that on the day the Division conducted its inspection, no operator had been assigned to the crane and the crane was not in service. The Division offered no testimony that would establish that the crane was or would be in service that day, or that Employer had not made one or more of the required visual inspections. Moreover, the chief of the crane unit and one of the compliance officers testified that the Division made no determination of what had caused the alleged wire rope defects.

The uncontradicted testimony of Employer’s foreman established that the crane was not in service when the Division inspected. Therefore, the duty to inspect the crane’s rigging, "prior to the first operation [of the crane] on any work shift," did not arise that day. Moreover, since the cause and time of onset of the wire rope defects described by the Division (kinking and high stranding) is unknown, it cannot be inferred that they pre-existed the last shift on which the crane had been used in hoisting service. Hence, there is no evidence from which it may be inferred that Employer failed to make a required visual inspection prior to the time the Division observed the defects.

For the preceding reasons, the Board finds that the Division failed to prove a violation of section 5031(b)(6) and concludes that Employer’s appeal must be granted.

DECISION AFTER RECONSIDERATION

The ALJ's decision is set aside. Employer’s appeal is granted.

BILL DUPLISSEA, Member MARCY V. SAUNDERS, Member

SIGNED AND DATED AT SACRAMENTO, CALIFORNIA - May 11, 2000