STATE OF CALIFORNIA
OCCUPATIONAL SAFETY AND HEALTH
In the Matter of the Appeal of:
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 Teichert Aggregates [Employer] under submission, makes the following decision after reconsideration.
On July 14, 2000, a representative of the Division of Occupational Safety and Health (the Division) conducted an accident investigation at a place of employment maintained by Employer at 8760 Kiefer Boulevard, Sacramento, California (the site). On October 24, 2000, the Division issued to Employer Citation 1, Item 2, alleging a general violation of section1 3203(a)(7)(B) [new employee safety training], with a proposed civil penalty of $810.
Employer filed a timely appeal contesting the existence and classification of the violation as well as the reasonableness of both the abatement requirements and the civil penalty2.
On September 25, 2001, a hearing was held before an Administrative Law Judge (ALJ) of the Board, in Sacramento, California. Robert Peterson, Attorney, represented Employer. Ted OToole, Staff Counsel, represented the Division.
On October 23, 2001, the ALJ issued a decision denying Employer's appeal from Citation 1, Item 2.
On November 20, 2001, Employer filed a petition for reconsideration. The Division filed an answer on December 21, 2001. The Board took Employers petition under submission on December 28, 2001.
Employer sells rock and makes and sells asphalt at the site. Robert Trent [Trent], was injured on June 27, 2000 shortly after he started his work shift at 10:30 p.m. when he fell approximately six feet from the fender of a large front-end loader [a 988B loader]. The citation was issued because [n]o standard procedure had ever been established for the routine practice of cleaning loader windshields during the night. Trent was employed as a heavy vehicle repairman and had worked for Employer for about 10 years. He was assigned to operate the loader three days prior to his accident. When he got into the cab on the night of the accident he saw mud on the windshield. He obtained a bottle of spray cleaner and some towels in order to clean the windshield.
Trent testified that on the first night of this assignment another employee, Dave Farrington, trained him in cleaning the windshield of the 988B front-end loader. He said [Farrington] climbed over the railing to clean the windshield . He stood on something the fender on the left side . Trent further testified that when he went to clean the mud from the right side of the windshield he climbed up steps or hand-holds on the right side of the loader. Then when he began washing the windshield, his hardhat contacted the awning protruding from the top of the cab over the windshield and he lost his balance and fell to the ground.
Don Woosley [Woosley], the compliance inspecting officer, testified that, from his discussions with an unidentified plant manager and others, he concluded that there was no set or standard procedure for cleaning loader windshields at night. He further testified that just having Trent watch another employee perform the cleaning procedure did not constitute training. He also thought the procedure shown to Trent was unsafe, but did not, however, see the procedure done himself, nor did he know how long the procedure had been in existence, neither did he know if any one had ever been injured before following that procedure.
Did the Division establish a violation of section 3203(a)(7)(B)?
FINDINGS AND REASONS
DECISION AFTER RECONSIDERATION
Employer was cited for violating section 3203(a)(7)(B)3 which requires that every employer establish, implement and maintain an effective Injury and Illness Prevention Program [IIPP] that shall, at a minimum: (7) Provide training and instruction: (B) To all new employees. The ALJs decision found that the violation alleged in Citation 1, Item 2 was established because the Division proved that Employer did not provide Trent or other employees with training that enabled them to safely wash loader windshields.
Employer argues that the ALJs decision denied it due process of law as to notice of the charge against it and an opportunity to defend. It is unnecessary to reach those questions here because the Board reverses the ALJ and finds that the Division did not establish a violation of section 3203(a)(7)(B).4
The Divisions burden is to prove each element of a violation, and the applicability of the safety order, by a preponderance of the evidence. (See Howard J. White, Inc., Cal/OSHA App. 78-741, Decision After Reconsideration (June 16, 1983).) Woosley testified that Employers training procedure was unsafe but we find no evidence in the record beyond Woosleys opinion that the training procedure was unsafe or otherwise violative of section 3203(a)(7). There was no foundation for his opinion that the procedure was unsafe. Also, the record is devoid of any qualification of Woosley as an expert; and there is no evidence in the record regarding his experience generally or as it relates to the issue of Citation 1, Item 2.
The citation issued to Employer in this case described the violation as follows: No standard procedure had ever been established for the routine practice of cleaning loader windshields during the night. A new employee climbed onto his 988 Loader and suffered a compound hip fracture. A set procedure must be established.
No evidence was presented that the procedure for washing loader windshields demonstrated by Farrington was not a standard procedure.5 The Division established, through Trents testimony, only that the procedure was demonstrated three days prior to Trents accident. Without more, it cannot be said that the demonstrated procedure was not Employers standard procedure.
Based upon all of the above, we find that the Division failed to prove by a preponderance of evidence, the violation charged in Citation 1, Item 2.
DECISION AFTER RECONSIDERATION
The decision of the Administrative Law Judge dated October 23, 2001, is reversed as to Citation 1, Item 2. Employers appeal is granted.
MARCY V. SAUNDERS, Member
GERALD P. OHARA, Member
OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: January 10, 2003
1 Unless otherwise specified,
all section references are to Title 8, California Code of Regulations.
2 At the hearing Employer moved to amend its appeal to contest only the existence of the violation.
3 The section 3203(a) requirement of establishing an effective IIPP enumerates through seven further subsections [(a)(1) through (a)(7)] what shall be the minimum content of the IIPP. Subsection (a)(7) requires Employer to provide training and instruction and that is further broken down into subsections (a)(7)(A) through (a)(7)(F) which specifies when and to whom such training and instruction shall be provided.
4 We note that if Employer received actual notice of the violation and had a meaningful opportunity to prepare and defend against the new elements that constitute the new violation and in fact litigated those elements, there is no prejudice to Employer. A showing of prejudice to an employer must be made prior to granting relief. (See, R. Burke Corp., Cal/OSHA App. 83-1207, Decision After Reconsideration (Oct. 25, 1985)
5 We note that an established standard procedure for training and instruction might be appropriate in certain circumstances. It is not stated as a requirement in section 3203(a)(7).