BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

K. V. MART COMPANY
dba Valu Plus Food Warehouse
1245 East Watson Center Road
Carson, CA 90745

 

                              Employer

 

Docket No .

01-R3D5-638

 

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 K. V. Mart Company dba Valu Plus Food Warehouse (Employer) under submission, makes the following decision after reconsideration.

JURISDICTION

On August 28, 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 4700 Cherry Avenue, Long Beach, California (the site).

On February 2, 2001, the Division issued to Employer the following general1 violation of section 3203(a)(7) [failure to train] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations.2 A penalty of $18,000 was proposed by the Division for the violation.

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

This matter came on regularly for hearing before Jack L. Hesson, Administrative Law Judge (ALJ) for the Board, in Torrance, California. Bruce Brandlin, Vice President, represented Employer. Denise Johnson, Staff Counsel, represented the Division. On December 10, 2001 the ALJ issued a decision denying Employer’s appeal.

On January 8, 2002, Employer filed a petition for reconsideration. The Division of Occupational Safety and Health (the Division) filed an answer on February 19, 2002. The Board took Employer’s petition for reconsideration under submission on February 22, 2002.


EVIDENCE

On August 4, 2000, an employee suffered an amputation of his right thumb and forefinger while cutting meat with a band saw. After the accident the Division cited Employer for failing to train the employee in the use of pusher plates in violation of section 3203(a)(7). Employer claimed that it did not violate the safety order because it had trained the employee to only make cuts of meat four inches or more thick, and that the employee was not allowed or trained to slice smaller portions of meat. Employer also contended that the employee was engaged in misconduct by slicing pieces of meat smaller than four inches thick to please a customer and that if a violation did exist, it was the result of an independent employee act.


FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION


The ALJ fully considered the relevant contentions raised by Employer in its petition.3 The Board has considered the decision of the ALJ and the record in light of Employer’s petition for reconsideration and affirms the ALJ’s summary of evidence, rulings, findings, and conclusions and adopts in their entirety the portions of the decision before the Board. Accordingly, the ALJ’s decision is attached and incorporated herein by reference.


DECISION AFTER RECONSIDERATION

The Board affirms the ALJ’s decision and the assessment of an $18,000 civil penalty.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: November 1, 2002

1 This citation was amended at hearing to allege a serious violation to correct a clerical error.
2 Unless otherwise specified all references are to sections of Title 8, California Code of Regulations.
3 Employer’s petition contains the declaration of Employer’s Vice President/General Counsel and Director of Risk Management Bruce R. Brandlin. Mr. Brandlin’s declaration alleges in relevant part that the Division and Employer had agreed to a settlement of the matter. Since there is no proof that the settlement was approved by the Board and all settlements must be approved by the Board, this allegation is rejected. The declaration also alleges certain evidentiary facts which could have been brought out at the hearing by the declarant and were not. (Although the same evidence was testified to by others.) Since Mr. Brandlin’s assertions do not constitute new evidence and were adequately addressed by the ALJ decision they are discounted here.