BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

DAVEY TREE SURGERY COMPANY
P.O. Box 5015
Livermore, CA 95402

 

                              Employer

 

 

Docket No.

00-R2D3-032

 

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 Davey Tree Surgery Company (Employer), makes the following decision after reconsideration.

JURISDICTION

On December 22, 1999, the Division of Occupational Safety and Health (the Division), through Compliance Officer John Macfarlane, conducted a complaint inspection at places of employment in the vicinity of Belden, California, where Employer, through its employees, was engaged in the cutting and trimming of trees that were too close to overhead high-voltage lines owned by the Pacific Gas and Electric Company (PG&E).

The same day, the Division issued to Employer Citation 1, Item 1, alleging that Employer committed a general violation of section 3364(a) [sanitary facilities] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations.1 It alleged that Employer did not provide an adequate toilet facility at an outdoor equipment storage yard where tree trimming crews parked their cars each morning, received assignments, and boarded company owned vehicles for transport to their assigned work areas. A $300 penalty was proposed.

The Division also issued Citation 1, Item 2. It alleged that Employer committed a general violation of section 3400(f) [isolated location medical attention] by not making advance provisions for prompt medical attention in the event of serious injuries to employees trimming trees at an isolated location and proposed a $750 penalty.

Employer filed a timely appeal contesting the existence and classification of the violations and the reasonableness of the proposed penalties. A hearing was held before an Administrative Law Judge (ALJ) of the Board. The ALJ issued a decision on April 27, 2001, reducing the $300 penalty proposed for Citation 1, Item 1 to $75 but otherwise denying the appeal.

Employer filed a petition for reconsideration of the ALJ's decision on June 1, 2001, and a supplemental petition on June 11, 2001. The Division filed an answer on July 2, 2001. The Board took Employer's petitions under submission and stayed the ALJ's decision on July 24, 2001.

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

We have reviewed the taped recording of the hearing, the exhibits, the ALJ’s decision, the petitions filed by Employer and the answer filed by the Division. Based upon that review, we have concluded that the ALJ's decision properly summarizes the evidence upon which the decision is based, that the evidence supports the findings of fact, and that the findings support the conclusion that Employer's appeal from Citation 1, Items 1 and 2 should be denied. Accordingly, as supplemented by our comments below, we adopt the ALJ's decision, incorporate it here by reference, and attach a copy hereto.

With respect to Citation 1, Item 1, Employer argues that the absence of washing facilities at a nearby public rest stop does not tend to prove that Employer failed to provide the toilet facility required by section 3364(a); the offense charged by the Division.

In support of its argument Employer points to Article 9 ["Sanitation"] of the General Industry Safety Orders, sections 3360-3368, that contains section 3366, entitled "Washing Facilities". It requires that "[e]ach lavatory2 shall be provided with running water and suitable cleansing agents" (§ 3366(d)), and with "[c]lean individual hand towels, or sections thereof, of cloth or paper or warm-air blowers convenient to the lavator[y]…." (§ 3366(e))

We would agree that if the Division had decided to charge Employer separately with failing to provide washing facilities it should have issued other citations or items referencing section 3366 and specifying the alleged washing facilities deficiencies.

However, in our view, the Division's election not to charge Employer with section 3366 violations does not make the failure to provide hand-washing facilities irrelevant to the application of section 3364(a) to the facts of this case. That failure is relevant because Employer's equipment yard was a "normally unattended work location" that would have been excepted from all of the Article 9 sanitation requirements, if, while at the yard, employees "…ha[d] readily available potable water for drinking, and readily available transportation or other effective arrangements to nearby toilet and washing facilities." (Section 3360, "EXCEPTION", emphasis added.)

It is a matter of common knowledge that basic personal hygiene or sanitation standards dictate that hand-washing facilities are to be used in conjunction with toilet facilities. The linked requirement that both be "nearby" the work location for the exception to apply is consistent with those commonly understood standards. And, it is implicit in that requirement that a hand washing facility be close enough to a toilet facility for an employee to wash his or her hands before returning to work and, thus, minimize the risk of spreading transmittable diseases to other employees. The failure of Employer to provide washing facilities thus rendered the exception to the sanitation requirements for “normally unattended work locations” inapplicable for Employer.

In its petition, Employer urges us to dismiss the Citation 1, Item 2 violation of section 3400(f) on the ground that we are bound to follow an ALJ's decision in Davey Tree Surgery Company, 98-2716 Decision (Nov. 9, 1999), an unrelated earlier case in which the ALJ found that the Division failed to prove Employer violated section 3400(f). The ALJ's decision was based upon the finding that, by having an ordinary work truck at an isolated tree-trimming site, Employer had provided "proper equipment" for the transportation of an employee who fell 25 to 30 feet from a tree to the ground where he landed on his buttocks, damaging his tailbone and lacerating his rectum.

We note initially that ALJ decisions that have not been reviewed and adopted by the Board are not binding on the Board in other cases and are not precedents upon which persons administering or subject to the California Occupational Safety and Health Act of 1974 and its implementing regulations may rely. (See, e.g., Pacific Ready Mix, Inc., Cal/OSHA App. 79-1550, Decision After Reconsideration (April 23, 1982) and Johns-Manville Sales Corp., Cal/OSHA App. 77-339, Decision After Reconsideration (Dec. 28, 1983).

Moreover, in Davey Tree Surgery Company, Cal/OSHA App. 98-2716, Decision After Reconsideration (Aug. 29, 2001), the Board overruled the ALJ decision cited by Employer for these reasons:

The announced purpose of section 3400(f) is to provide "prompt medical attention in case of serious injuries." Hence, when the Standards Board states, in the second sentence, that "this [purpose] may be accomplished by…proper equipment for prompt transportation of the injured person to a physician", it means transporting "equipment" that is "proper" for use with seriously injured employees.

A work truck may be "proper equipment" for the transportation of a seriously injured employee, depending on the nature of the injury, but, indisputably, employees who accidentally fall from trees may sustain injuries, e.g., broken bones and spinal cord traumas, that could be exacerbated unless the employees are transported by skilled persons using special equipment designed to protect the injured employees against that danger.

In this case, an employee fell approximately 25 to 30 feet from a tree. He landed on his buttocks, injuring his tailbone and lacerating his rectum. The crew foreman, a trained first-aid provider, thought the injured employee should be transported by ambulance and made an unsuccessful attempt to find a telephone he could use to summon an ambulance before transporting the employee in the work truck. The compliance officer also testified that the nature of the accident and the injuries indicated that an ambulance, not the work truck was the "proper equipment" for transporting the employee to the hospital. Fortunately, the truck ride appears not to have caused the employee appreciable harm, but a preponderance of the evidence presented tended to prove that based upon accepted first-aid and medical precautions, transport by that means was not "proper." (Id, at p. 4.)

Since the Board's decision in Davey Tree Surgery Company, supra, is consistent with the ALJ's decision in this case, it provides no reason for changing our view that the Division here proved a violation of section 3400(f).

DECISION AFTER RECONSIDERATION

Employer's appeal from Citation 1, Items 1 and 2 is denied. The ALJ's decision is reinstated and affirmed.


MARCY V. SAUNDERS, Member GERALD P. O'HARA, Member

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: June 14, 2002

1 Unless otherwise noted, all section references are to Title 8, California Code of Regulations.
2 Section 3361 defines "Lavatory" as, "A plumbing fixture used for washing the hands, arms, face and head."