BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

PREFERRED FRAMING, INC.
9233 Charles Smith Avenue
Rancho Cucamonga, CA 91730

 

                              Employer

 

Docket No .

00-R3D1-3419

 

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 taken the petition for reconsideration filed in the above-entitled matter by Preferred Framing, Inc. (Employer) under submission, makes the following decision after reconsideration.

BACKGROUND AND JURISDICTION

On August 17, 2000, the Division of Occupational Safety and Health (the Division), through Compliance Officer Robert Klein, conducted a plain view inspection at a place of employment maintained by Employer on Plaza Lane of the Avalon Development, Huntington Beach, California, (the site) where Employer, through its employees, was framing houses.

On September 15, 2000, the Division cited Employer for two general violations of the occupational safety and health standards and orders found in Title 8, California Code of Regulations.1 Citation 1, Item 1, charges that Employer violated section 2500.25 [repairing or replacing a flexible electrical cord with a damaged outer sheath] and proposes a $635 civil penalty. Citation 1, Item 2, charges a violation of section 4307(c) [pinning back the automatically adjusting hood guard on a power driven circular hand saw to prevent it from operating] and proposes an $850 civil penalty. Citation 1, Items 1 and 2 were issued because inspecting compliance officer Klein observed Abelino Martinez, one of Employer’s carpenters, using a flexible electrical cord with an outer sheath damaged in ten places to supply power to a circular hand saw he was operating with the guard pinned back with a nail.

Employer filed a timely appeal contesting the existence and classification of the violations and the reasonableness of the proposed penalties and raising the independent employee action defense.2

A hearing was held before Barbara J. Ferguson, an Administrative Law Judge [ALJ] of the Board on January 30, 2002 in San Bernardino, California. Attorney Richard Roth and attorney Thomas Miller, both of Reid & Hellyer, represented Employer. Allan Coie, Staff Counsel, represented the Division.

At the hearing Employer moved to exclude three photographs offered into evidence by the Division because the Division had not made them available to Employer in timely response to Employer’s written request for access to such documents made pursuant to section 372.1. The ALJ excluded one photograph that the Division did not make available until the hearing on January 30, 2002, and admitted two the Division had made available earlier.

At the hearing, the unrefuted testimony of Klein and Martinez established that at the site on August 17, 2000, Martinez was Employer’s employee who used a defective electrical cord and a circular hand saw with the guard pinned back which was rendered inoperable in violation of sections 2500.25 and 4307(c). Thus, the ALJ found that both violations had been established. The ALJ considered Employer’s evidence offered to establish the independent employee action defense and found that Employer failed to prove it was effectively enforcing its safety program at the site when the violations occurred. Consequently, in a written decision issued on March 25, 2002, the ALJ found that Employer failed to prove it was sufficiently enforcing its safety program and therefore Employer’s appeal was denied.

On April 25, 2002, Employer petitioned for reconsideration of the ALJ’s decision. On May 28, 2002, the Division answered the petition. On June 13, 2002, the Board took Employer’s petition under submission and stayed the ALJ’s decision.

ISSUES

1. Should the Board impose additional sanctions on the Division for failing to make photographs available to Employer within 30 days of Employer’s written request for documents?
2. Does the evidence support the ALJ’s denial of Employer’s independent employee action defense on the ground that Employer failed to prove it was effectively enforcing its safety program at the site when the violations occurred?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

Sanctions

At the hearing, compliance officer Klein identified three photographs he took at the site during his August 17, 2000 inspection. One, received as Division Exhibit 3, shows two men standing on the roof of a house. Another, received as Division Exhibit 4, shows a pneumatic stapler and a powered circular hand saw lying on a piece of pressed wood sheeting on a concrete floor. The third photograph, showing an unidentified man operating a powered circular hand saw, was not admitted.

Under section 371.1, a party who makes a written request for access to relevant documents, including photographs, in the possession of another party is entitled to inspect and copy the documents at a mutually convenient time within 30 days of the written request. Employer made such a request of the Division on June 25, 2001, approximately nine months after the citation was issued. In response, on June 28, 2001, the Division sent Employer a copy of the documentation worksheet Klein completed for the citations issued but no photographs. The Division’s counsel became aware of the photographs (Exhibits 3 and 4) just before the September 19, 2001 original hearing date and made them available to Employer at that time. A key witness subpoenaed by the Division failed to appear at the hearing. Upon the Division's motion the hearing on the matter was continued to January 30, 2002. At the January 30, 2002 hearing, the Division’s counsel produced the third photograph, which he said had just been located.

After Klein identified the photographs, the Division moved them into evidence. Employer opposed admission of the third photograph because the Division had ample time before the hearing to find the photograph and its unexpected production at the hearing surprised and prejudiced Employer. The ALJ prohibited introduction of the third photograph on those grounds.

Additionally, since the Division failed to produce any of the photographs within the 30 days specified in section 371.1, Employer moved under section 372.7 [Discovery Abuses] to have its independent employee action defense established or the citations dismissed as sanctions against the Division.

Section 372.7 [Discovery Abuses] reads as follows:

(a) The Administrative Law Judge or the Appeals Board may impose sanctions on a party who fails to respond to an authorized request for discovery or makes an evasive or incomplete response to discovery where such action results in surprise to the requesting party at the hearing.
(b) Such sanctions may include:
(1) An order prohibiting the introduction of designated matters into evidence by the abusing party; and/or
(2) An order establishing designated facts, claims, or defenses against the abusing party in accordance with the claim of a party adversely affected.
(3) Any other order as the Administrative Law Judge or the Appeals Board may deem appropriate under the circumstances.

The imposition of sanctions by an ALJ or the Board is discretionary under section 372.7(a). The duty to exercise that discretion arises, inter alia, when a party makes an “incomplete response to discovery where such action results in surprise to the requesting party at the hearing.”

In its petition Employer argues that the ALJ erroneously admitted the alleged photographs taken by inspector Klein into evidence. As to those two photographs, it is not clear that the Division’s delay in producing them resulted in surprise to Employer “at the hearing”. For unrelated reasons, the case was not heard on September 19, 2001, but was continued to January 30, 2002. Thus, Employer had the two admitted photographs for more than four months before the case went to hearing.

By granting courts the discretion to sanction parties who abuse discovery in civil actions, California Code of Civil Procedure (CCP) section 2023 serves the same purpose as section 372.7 of the Board’s regulations. Under CCP section 2023, it has been held that the sanction of dismissing a party’s claim or its functional equivalent should not be imposed unless the party has willfully failed to comply with a court order. (See Ruvalcaba v. Government Employees Ins. Co. (1990) 222 Cal. App. 3d 1579; Puritan Ins. Co. v. Superior Court (Tri-C Mach. Corp.) (1985) 171 Cal. App. 3d 877.)

Employer learned of the Division’s failure to fully comply with its section 372.1 request for access to documents when the Division sent the June 28, 2001 response that provided notice that Compliance Officer Klein had taken photographs he believed were evidence of the alleged violations, but did not include them. Under section 372.6 [Proceeding to Compel Discovery] Employer could have served and filed a motion to compel discovery “within 15 days after… [the Division] first evidenced a refusal or failure to comply….” but did not. Consequently, the Division did not violate a Board order by failing to comply with Employer’s discovery request.

The sanction requested by Employer—establishment of the independent employee action defense, is a functional equivalent to a sanction for dismissal of the citation. Considerations for imposing the sanction of dismissal (or functional equivalent) as determined by courts provide sound guidance for the Appeals Board.  In adjudicating issues, trial or other disposition on the merits is preferred over dismissal on procedural grounds. (See 6 Witkin, Cal. Procedure (fourth edition), Proceedings Without Trial, § 282, p. 701, and CCP § 583.130) Willful misconduct that denies a party a fair hearing is not a mere procedural error and may justify a harsh sanction. On the other hand, an unintentional failure that does not deny a party a fair hearing may constitute a procedural error which does not justify a sanction of dismissal.

The ALJ concluded that the Division's failure to comply with section 371.1 appeared to be unintentional based upon the Division Counsel’s representation that the photographs had not been included in the file he was originally sent by the Division’s district office. We concur. The ALJ did not expressly find that the Division abused discovery, but denial of the Division’s motion to introduce the third paragraph had the same effect as a section 372.7(b)(1) sanction prohibiting its introduction. In our view, the ALJ’s ruling afforded Employer proper relief by denying the Division use of the photograph.

Considered in isolation, the Division’s failure to include the photographs in its June 28, 2001, response to the request, and its failure to respond thereafter to Employer’s prompting on July 11, 2001, and other dates, tends to support the inference that the Division willfully engaged in a course of conduct designed to frustrate Employer’s right to discover relevant documents and prepare its defense. However, other considerations tend to indicate that the Division did not abuse discovery intentionally.

One such consideration is the fact that each of the standard documentation worksheet pages for the two violations that the Division enclosed in its June 28, 2001 response states, in two places, that photographs are a type of evidence supporting elements of the violations. Employer duly noted the references to photographs and requested copies of any photographs in the Division’s file in a letter dated July 11, 2001.

None of the photographs depict anything of major significance to the outcome of the case presented. One photo shows two men standing on a roof. Neither is operating a powered hand saw or appears to have one in his possession. Another photo shows an unattended powered hand saw that may or may not be connected to a power source with a cord. There are no visible defects in the sheath of the flexible cord or cords depicted. The third photograph shows an unidentified man operating a circular hand saw that, according to Klein, had its guard pinned back.

If admitted, the third photograph might have undermined Employer’s contention that it was effectively enforcing safety at the site by showing that Martinez was not the only framer at the site using a saw with a pinned back guard. But, if the third photograph tended to incriminate rather than exculpate Employer, the Division would have little reason to conceal it altogether or, given Employer’s written request for document access, to risk having it excluded by withholding it from Employer until the hearing. We conclude that the Division’s prospects for improving its case by engaging in intentional discovery abuse were meager.

Conversely, Division counsel would have risked a great deal by engaging in such conduct including possible disciplinary action by his employer, the Division, and the State Bar of California as well as Board sanctions damaging to the Division’s case.

No reasonable person would take such risks with so little to gain. Nothing before us suggests that the Division’s counsel is not a reasonable person. For these reasons, we decline to impose the additional sanction of dismissing the case sought by Employer.

Safety Program Enforcement

As stated in footnote 2, to establish the independent employee action defense, Employer had the burden of proving affirmatively all five of the specified elements, the third of which is proof that “Employer effectively enforces the safety program.” The ALJ made no findings regarding the other four elements, but the testimony of employee Martinez, foreman Joe Estrada, and safety coordinator Travis Post, and Employer’s supporting documentary evidence (Employer’s Exhibits B through K), was sufficient to prove that Employer met the other four elements.

Employer’s safety program enforcement effort had numerous positive features including, e.g., safety rules and training, the inclusion of safety reminders with employee paychecks, weekly “tailgate” safety meetings, safety coordinators who walked through sites approximately once per workday looking for hazardous conditions and practices, site foremen responsible for detecting and correcting violations, and an operative program of imposing sanctions on employees who violated safety requirements. Hence, were all enforcement features fully implemented and functioning properly, effective enforcement would be the expected result.

Because there was a shortage of carpenters at the site the day of the inspection, foreman Estrada was moving materials with a machine known as a “Gradeall”, work normally done by a subordinate employee, at another of the houses Employer was framing in the development when Klein detected the violations by Martinez. Since Estrada was filling in for one of the missing carpenters instead of supervising Martinez and other subordinate employees, the ALJ concluded that the safety program was not being enforced effectively.

We agree that a foreman who is doing the work of a missing subordinate employee is not in a position to effectively enforce safety requirements, particularly when the employees under his supervision are dispersed throughout a large site, as was the case here. Thus, the fact that Estrada was so occupied when Klein observed Martinez committing the violations has tendency in reason to prove a lack of effective enforcement. However, the employees under Estrada’s supervision were doing apparently routine framing work, and Estrada’s moving some building materials on one lot with a Gradeall could not take much time. Employer, therefore, presented considerable enforcement-related evidence. Consequently, Estrada’s temporary involvement in non-supervisory work, standing alone, might not support a finding that Employer failed to prove effective enforcement. That evidence does not stand alone. It is a symptom or manifestation of a more crucial weakness in Employer’s enforcement scheme.

Estrada’s unrefuted testimony established that Employer was framing approximately 40 new houses at the site, that Employer had approximately 35 to 40 carpenters working on houses throughout the site, and that he was the only foreman there.3

Estrada did have the support of a walk-through safety inspection approximately once per day by one of Employer’s safety coordinators who travels from one of Employer’s worksites to another each day for that purpose. But that left Estrada alone the greater part of the day to supervise and supply 35 to 40 carpenters who were spread all over the site, to call Employer’s office to get additional carpenters because they were short-handed, and do whatever else he could to keep the project on track.

Safety enforcement cannot be effective without enough supervision to maintain reasonable vigilance for unsafe conditions and practices under the facts of this case for the purposes of establishing the independent employee action defense. Effective enforcement was not maintained with one foreman at the site under the facts of this case4.

For these additional reasons we conclude that the evidence presented at the hearing supports the ALJ’s finding that Employer failed to prove it was effectively enforcing its safety program at the site. Since Employer was required to prove that fact to establish the independent employee action defense, we affirm the ALJ’s decision that Employer did not establish the defense to the violations.

DECISION AFTER RECONSIDERATION

The relief Employer seeks by its petition 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: December 24, 2002

1 Unless otherwise noted, all section references are to Title 8 of the California Code of Regulations.
2 The independent employee action defense was set forth by the Appeals Board in Mercury Service, Inc., Cal/OSHA App. 77-1133, Decision After Reconsideration (Oct. 16, 1980) to relieve employers from responsibility for safety order violations caused by employees who “act against their employer’s best safety efforts.” To establish the defense the cited employer must prove each of the five following elements:
1. The employee was experienced in the job being performed,
2. Employer has a well-devised safety program which includes training employees in matters of safety respective to their particular job assignments,
3. Employer effectively enforces the safety program.
4. Employer has a policy which it enforces of sanctions against employees who violate the safety program, and
5. The employee caused a safety infraction which he or she knew was contra to the Employer’s safety requirement.
3 At p. 8 of its Brief in Support of Appeal, Employer describes the site and Estrada’s duties as follows:
The site in question is spread over 10 acres and involves 40 lots. Mr. Estrada’s duties, in addition to being mindful of safety violations, includes framing when needed, meeting with suppliers, dealing with other sub-contractors and the general contractor, overseeing all employees (which numbered approximately 30) and overseeing all aspects of the project in question.
4 Our holding does not suggest nor require a specific formula or ratio of supervisors to workers. The adequacy of supervision is an important factor for determining the third element of the independent employee act defense. (See, Kenko, Inc., Cal/OSHA App. 90-1101, Decision After Reconsideration (Jan 6, 1992). The adequacy of such supervision for purposes of establishing the independent employee act defense must be determined based upon the particular facts on a case-by-case basis.