BEFORE THE
OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
DEPARTMENT OF INDUSTRIAL RELATIONS
STATE OF CALIFORNIA

In the Matter of the Appeal of:

TRI-CITY REINFORCING CORP.
2377 W. Foothill Blvd., Suite 12
Upland, CA 91786

                                          Employer

 

Docket No. 93-R5D2-3101

 

DECISION AFTER
RECONSIDERATION

The Occupational Safety and Health Appeals Board (Board), acting pursuant to the authority vested in it by the California Labor Code and having granted the petition for reconsideration filed by Tri-City Reinforcing Corp. (Employer), makes the following decision after reconsideration.

JURISDICTION

From September 3 through October 21, 1993, the Division of Occupational Safety and Health (the Division) conducted an accident inspection at a place of employment maintained by Employer at the Metro Rail Station located at 626 South Western Avenue, Los Angeles, California. On October 28, 1993, the Division issued to Employer a citation alleging a serious violation of section 1632(i) [floor holes to be protected by rail or cover] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations, and proposed a civil penalty of $5,625.

Employer filed a timely appeal. On March 6, 1995, after a hearing, an administrative law judge (ALJ) of the Board issued a decision finding a violation, and assessing a civil penalty of $5,625.

On March 27, 1995, Employer filed a petition for reconsideration. On May 8, 1995, the Board granted the petition. The Division filed an answer on May 9, 1995. On May 26, 1995, Employer filed a supplemental petition for reconsideration. On June 12, 1995, the Division filed an answer to the supplemental petition.

EVIDENCE

In making this decision, the Board relies upon its independent review of the entire evidentiary record in this case, including the tape recordings of the hearing. The Board has taken no new evidence. The Board adopts and incorporates by this reference the summary of evidence set forth on pages 2 through 4 of the decision of the ALJ.

On September 3, 1993, Robert Mansfield, an employee of Employer, fell 16 feet through a 4’ by 4’ hole in a temporary floor at a jobsite where Employer was working. The floor hole was not protected by either a handrail with a toe board or a cover that was secured from displacement. Employer’s petition admits that Mansfield stepped backwards and fell through the unprotected hole. Mansfield sustained a broken back as a result of the fall.

Employer was issued a citation because of the lack of floor hole protection. That citation is the subject of this decision.

ISSUES

                1. Is Employer’s asserted lack of control of the work site a defense?

                2. Did Employer establish an independent employee action defense?

                3. Was Employer’s asserted provision of equivalent protection a defense?

                4. Did Employer present a logical time defense?

5. Did Employer establish that the evidence it offers in its petition is newly discovered?

6. Is the Division’s evidence inadmissible because, in part, it consists of hearsay?

7. Has Employer presented any basis for modifying the Division’s calculation of the civil penalty?

8. Did Employer meet its burden of establishing the affirmative defense that the Division selectively enforced the safety order against it?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

Section 1632(i) provides:

Floor holes, into which persons can accidentally walk, shall be guarded by either a standard railing with standard toeboard on all exposed sides, or a floor hole cover of standard strength and construction that is secured against accidental displacement. While the cover is not in place, the floor hole shall be protected by standard railing.

To establish a violation, the Division had to establish only that the hole existed, and was not protected by a standard railing and toeboard or a cover secured from accidental movement. The Division did so through the testimony of its inspector and only witness, Clifton Sammons (Sammons). Employer offered no percipient witnesses to contradict the Division’s evidence. Employer instead relied on several theories, none of which, for reasons explained below, could be recognized as valid under the California Occupational Safety and Health Act (the Act, Labor Code 6300, et seq.). Finally, Employer argued that the proceeding was invalid on procedural grounds. The Board concludes that Employer failed to show that any material procedural defect occurred in the proceeding.

Substantive Contentions

1. Employer’s Asserted Lack of Control of the Work Site is Not a Defense.

Employer’s first defense is that it cannot be cited because the general contractor controlled the site and was responsible for protecting employees from the hazard presented by the hole. Employer contends it could not have protected its employees because it did not control the hazard and had informed the general contractor of the violation.

The Board has long held that the employer whose employees are exposed to a violation, even though that employer did not create the hazard and does not control it, is not excused from the responsibility of protecting its employees from the violation. The Board said in Moran Constructors, OSHAB 74-381, Decision After Reconsideration (Jan. 28, 1975), that the employer whose employees are exposed can and must protect them from dangerous conditions it did not create and does not control by refusing to allow its employees to work under the dangerous conditions.

2. Employer Did Not Establish an Independent Employee Action Defense.

Employer argues that the ALJ erred in rejecting its independent employee action defense, which was based on the injured employee’s failure to secure his safety belt to a lanyard. Employer presents no reason for reversing the ALJ’s finding of fact that Employer established only one element of the defense, that the injured employee was experienced in the task he was performing, but failed to establish any of the other four elements. Those elements are: (1) Employer has a well-devised safety program; (2) Employer effectively enforces the safety program; (3) Employer has a policy of imposing sanctions against employees for violations of the safety program; and (4) the employee who caused the infraction knew it violated the safety program. Employer must prove each of the five elements to establish the independent action employee defense. (Mercury Service, Inc. OSHAB 77-1133, Decision After Reconsideration (Oct. 16, 1980).)

An even more fundamental reason for rejecting Employer’s independent employee action defense is that it requires Employer to prove that an employee was responsible for the violation. Employer provided no evidence that Mansfield, the injured employee, was responsible for the hole not being covered or protected by a railing.

3. Employer’s Asserted Provision of Equivalent Protection Was Not a Defense.

Employer also contends that the fall protection available which Mansfield was not using, and the ladder which had allegedly been tied off to protect the hole, provided protection equivalent to that required by section 1632(i). It argues that the citation should therefore be set aside.

The Board is compelled to reject Employer’s attempted defense based on claims that the safety belt and lanyard and the tied-off ladder provided equivalent safety. Under the statutory scheme of the Act, claims that alternative protections not recognized by a safety order provide protection equivalent to that required by the appropriate safety order must be presented to the Standards Board and cannot be a defense before the Appeals Board. (Labor Code 142.3.)

Employer bases its contention that the ladder provided equivalent protection on its assertion that at the time of the accident, federal safety regulations recognized a tied-off ladder as acceptable protection for a floor hole. Whether or not the federal regulations allow the use of a ladder as protection for a floor hole, section 1632(i) did not. Even if a ladder were a means of protection permitted by section 1632(i), Employer presented no evidence to establish that a ladder was tied across the opening, other than the hearsay testimony of its representative, who was not employed by Employer until three months after the accident.

Even viewing Employer’s position with respect to Mansfield’s failure to secure himself to a lanyard as a contention that a safety order other than 1632(i) more appropriately applies to the cited hazard, the Board finds Employer has failed to establish that defense. Section 1632(i) is more specific to the hazard presented by the hole in the floor, and therefore is more, not less, appropriate for the Division to cite than sections requiring the use of safety belts and lanyards for work at the perimeters of buildings. Even if another section more appropriately applies, the employer must have been in compliance with the requirements of that other safety order for the Board to consider such a defense. (Northern California Anthes, OSHAB 84-1085, Decision After Reconsideration (Dec. 31, 1986).) Employer admits the employee was not using the fall protection available. It therefore was not in compliance with any section requiring fall protection.

4. Employer Did Not Present a Logical Time Defense.

Employer asserted that it intended to present a "logical time" defense under Nicholson-Brown, Inc., OSHAB 77-024, Decision After Reconsideration (Dec. 20, 1979), contending that the logical time to install the protection had not arrived. Employer provides no evidence or explanation as to when the logical time would have occurred and identifies no evidence that would dispute the ALJ’s conclusion that the logical time to install the protection arrived before the accident occurred.

5. Employer Did Not Establish that the Evidence it Offers in its Petition is Newly Discovered.

Employer contends that it has discovered new evidence not available to it at the time of the hearing. The alleged new evidence is that the Division failed to conduct an opening conference with a representative of Employer but instead first met with a representative of the general contractor. Employer emphatically takes the position that the general contractor was in sole control of the site.

In view of the Division’s obligation to seek permission from the party in control of a site before inspecting (Scribner Construction, OSHAB 93-2161, Decision After Reconsideration (Sept. 1, 1998), it was proper for the Division inspector to contact the general contractor, who had power to grant permission to enter the site to conduct the investigation, before contacting Employer’s representative. The hearing record discloses that the inspector also met with Russell Voss, Employer’s representative at the site, and obtained Employer’s evidence regarding the accident from him.

Employer does not explain why the evidence supporting this claim could not have been discovered prior to the hearing. While Employer’s representative at the hearing had not been employed until three months after the accident, he had been employed by Employer for almost a year before the hearing date, ample time to have learned of the asserted newly discovered evidence.

6. The Division’s Evidence is Not Inadmissible Because, in Part, it Consists of Hearsay.

Employer contends that Sammons’ testimony must be stricken because it is hearsay. The hearsay character of testimony does not require that it be stricken, only that it may not be relied upon as the sole support for a finding of fact, unless the statements would be admissible over objection in a civil proceeding. (376.2.) Sammons testified that Employer’s superintendent at the job, Russell Voss, took part in the investigation as Employer’s representative. Voss provided much of the information Sammons gathered about the accident. Voss’s statements constituted admissions that would be admissible over objection in a civil proceeding. While any information Sammons gathered from representatives of other contractors would have been hearsay, Voss’s statements provided a non-hearsay basis for the ALJ’s findings of fact. The ALJ’s findings of fact therefore were not based solely on hearsay evidence, i.e., the statements of other contractors’ representatives. The hearsay statements of other contractors’ representatives could properly be considered to supplement or explain other evidence (376.2).

7. Employer Has Not Presented Any Basis for Modifying the Division’s Calculation of the Civil Penalty.

Employer contends that the Division’s calculation of the civil penalty accepted by the ALJ did not give Employer credit for factors such as history, gravity, and the size of its work force. Because the violation was serious and accident related, section 336(c)(3) of the Director’s regulations prohibit the Division from allowing any credits except for the size of Employer’s work force. The inspector testified that the credit allowed by section 336(d)(1) of the Director’s regulations for the size of Employer’s work force was applied based on the Division’s determination of Employer’s size. Employer presented no evidence that the number of employees ultimately used by the Division for this determination was incorrect. The Board therefore declines to disturb the ALJ’s finding that the credits were properly applied.

Employer suggested at the hearing that the Division failed to follow various sections of its policy and procedures manual. Employer did not explain how any of the asserted failures by the Division to follow its manual would create a defense for Employer. Even if the manual indicated that a tied-off ladder or a lanyard and safety harness were equivalent protection to guard rails or a secured hole cover, this would not give Employer a defense. If the policies and procedures manual purported to allow a tied-off ladder as equivalent protection to the railing or cover required by section 1632(i), it would be invalid, since it would be contrary to or at least constitute a substantial modification of section 1632(i). The Standards Board is the only body authorized to promulgate safety orders under the California Occupational Safety and Health Act (Labor Code 142.3.) Employer did not dispute that neither of these protections were in place at the time of the accident and failed to establish that the injured employee’s failure to secure himself to a lanyard met the independent employee action defense.

Further, the Division’s manual is not binding on the Board or the Division in view of the holding in Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557. Under Tidewater, internal agency guidelines are not binding on any party, including the governmental agency that issued the guideline. The Supreme Court said in Tidewater that "[a] policy manual of this kind would of course be no more binding on the agency in subsequent agency proceedings or on the courts when reviewing agency proceedings than are the decisions or advice letters it summarizes." (Id., at 571.) Employer made no claim that it was aware of any contrary Division interpretation. Employer could not have relied on an interpretation of which it was unaware. Further, the only Division interpretation that could potentially have been helpful to Employer in this case would have been one that excused an employer whose employees were exposed to the violation from responsibility for their safety if another employer created or controlled the hazard. Such reliance could not be characterized as reasonable because it would have been directly contrary to the interpretation the Appeals Board has consistently maintained in published decisions since the inception of the Act. (See, e.g., Moran Constructors, supra.)

8. Employer Did Not Meet its Burden of Establishing the Affirmative Defense that the Division Selectively Enforced the Safety Order Against it.

Employer contended that the decision was the result of "fraud." The basis asserted for the accusation of fraud is alleged selective enforcement by the Division’s compliance officer, Clifton Sammons. Employer contends that Sammons was motivated by hostility toward Employer.

Employer has the burden of establishing selective enforcement as an affirmative defense, and must show that the Division’s actions were discriminatory and motivated by some unjustifiable standard. (Sequoia Rock Company, OSHAB 76-1083, Decision After Reconsideration (Apr. 28, 1983).) "The good faith of those enforcing the law and the validity of their action are presumed." (Bendix Forest Products Corp., OSHAB 79-1532, Decision After Reconsideration (Mar. 5, 1981).)

Employer presents no evidence capable of meeting this burden. Employer asserts that Sammons hated and resented Employer because Employer filed an appeal from his citation. Employer contends Sammons’ hostility is shown by his use of a derogatory term in referring to Employer. Employer does not specify where in the record this alleged statement by Sammons can be found, nor does it offer or identify any evidence outside the record to support its contention. The Board has reviewed the tape of the hearing and finds no such statement by Sammons. Employer contends also that the alleged fraud is shown by Sammons’ failure to recognize as a defense the ladder which Employer asserted, but failed to prove, had been tied in front of the hole. As noted above, the ladder, absent a variance issued by the Standards Board recognizing it as providing equivalent safety, would not be a defense to a citation for violation of section 1632(i).

None of the evidence offered by Employer supports the contention of selective enforcement. Employer therefore failed to demonstrate either "fraud" or selective enforcement.

Law and Motion/Discovery and Due Process Issues

In its petition, Employer alleges several violations of its due process rights. Employer contends that it was prejudiced by its inability to conduct effective discovery and by the denial of a continuance to allow it to carry out discovery. The Board concludes that these arguments are without merit.

First, Employer was provided with substantially all that it validly requested in discovery. The only substantial items Employer requested that were not provided were Division personnel files, policy and procedure manuals and training materials, and interpretations of section 1632. In the hearing, Employer explained the purpose of these requests was to show that the Division did interpret, or could have interpreted section 1632(i) as being satisfied by measures other than a railing or cover, such as tying a ladder off in place of a railing. For the reasons stated above, these materials were irrelevant and incapable of leading to any relevant evidence.

The only other requested item not fully provided was a list of all witnesses and their addresses. At the deposition of its only witness on November 18, the Division provided a list of all the witnesses it had contacted or attempted to contact. While no addresses were listed, the names of the witnesses’ employers were. The list identified five of the eight witnesses as employees of Employer, and named the large general contractor who employed each of the three remaining witnesses. Employer did not show that the lack of three residence addresses significantly hindered it in pursuing witnesses.

The question is not whether discovery was provided, but whether it was provided in sufficient time to allow Employer to prepare for the hearing. The requested discovery, including a deposition of the Division’s only witness, was provided 11 days before the hearing. In view of the stark simplicity of the factual and legal issues, Employer has not shown that this was insufficient time to prepare for hearing.

More importantly, as far as the record shows, Employer, having been provided substantially all the material it requested, chose to make no use of it. The only witness Employer produced was its own representative, Lewis Barbe, who had not even come to work for Employer until three months after the accident. When questioned by the ALJ at the hearing as to why he had provided no witnesses competent to testify about the alleged violation and the accident, Barbe stated that he had assumed that he would be granted a continuance to conduct further discovery.

Employer had no valid basis for expecting a continuance of the hearing. All notices of hearing issued by the Appeals Board, including in this case, have printed in bold letters a statement that "continuances are disfavored," will be granted only for "good cause," and must be requested no later than 20 days before the date scheduled for hearing. The Board’s legal analyst, in a letter dated October 3, 1994, advised Barbe that under section 371.1 of the Board’s regulations, failure of another party to provide discovery is not good cause for continuance of a hearing.

Even if the Board’s regulations and practice did not disfavor a continuance for the reasons relied on by Employer, Employer had no reasonable basis for a continuance as of the date of the hearing. Employer’s only outstanding, unsatisfied discovery request at the time of the hearing was for material to support its theories of equivalent protection or Division misinterpretation of section 1632(i). These theories, for the reasons stated above, were without merit. A party is not entitled to assume that it will receive indefinite, lengthy continuances to conduct discovery when it does not and cannot show that the evidence it seeks to discover would assist it in any way.

The Board finds that the ALJ’s rulings were correct with respect to the preceding substantive arguments. Employer’s procedural contentions, addressed more specifically below, are also without merit.

1. Were Employer’s motions at hearing to set aside the citation or continue the hearing properly denied?

2. Did Employer waive discovery remedies by not moving to compel discovery?

3. Did the federal Freedom of Information Act apply to the Appeals Board’s proceeding?

4. Did Employer’s failure to receive corrections to the deposition of the Division’s witness violate Employer’s due process rights?

1. Employer’s Motions at Hearing to Set Aside the Citation or Continue the Hearing Were Properly Denied.

At the opening of the hearing on November 29, 1994, Employer moved that the citation be set aside or that the hearing be continued because the Division had failed to provide a list of Division witnesses. The ALJ denied Employer’s motion but ruled that the Division was limited to calling only one witness, Clifton W. Sammons, its inspector. Consistent with long-established Board precedent, the ALJ held that Employer could not claim to be surprised when the Division presented its investigator, responsible for the issuance of the citation, as a witness. The ALJ limited the Division to presenting only the documentary evidence it had furnished to Employer 11 days before the hearing.

The ALJ also declined to set aside the citation or continue the hearing. At the hearing, Employer’s only witness was its representative Barbe, who argued for a continuance on the ground that as of the date of the hearing, he had assumed that he would be granted a continuance, and therefore had not attempted to provide any witnesses who had any non-hearsay knowledge of the alleged violation.

Employer had had the opportunity on November 18 to depose the inspector on all the issues he would be testifying to in the November 29 hearing. While the 98-page deposition transcript was not available as of the date of the hearing, presumably because Employer failed to take the appropriate steps to request an expedited transcript, Employer made no attempt to impeach the Division’s witness based on anything he had stated at his deposition. Thus, the unavailability of the transcript was not argued by Employer as a basis for continuing the hearing nor would it appear to have been an appropriate basis for doing so under these circumstances.

2. Employer Waived Discovery Remedies by Not Moving to Compel Discovery.

Even if Employer’s procedural contentions had been meritorious, it waived them. Section 371.1(e)(2) at the time of the hearing provided that the opposing party’s failure to comply with a discovery request could be grounds for a continuance only if a court of competent jurisdiction ordered a continuance pursuant to a proceeding to compel discovery filed under section 372.6. Government Code section 11507.7, as enacted at the time of the hearing, provided a petition filed in superior court 15 days before the hearing as the only means of compelling discovery and obtaining a continuance to compel discovery in an administrative proceeding. Failure to file a motion under section 372.6 waives the right to any relief beyond the procedural remedies provided by the ALJ in this case. (F.W. Spencer and Son, Inc., OSHAB 94-407, Decision After Reconsideration (May 10, 1999); Waco-Arise Scaffolding & Equipment, OSHAB 91-010, Decision After Reconsideration (Dec. 30, 1992).) Employer was advised by the Board in its October 3, 1994, letter that a continuance because of the Division’s failure to provide discovery could be granted only by an order of a court of competent jurisdiction (although under the currently proposed revision of section 372.6, the Board will be authorized to make such an order).

While Employer argued at hearing that the Division’s failure to provide its witness for deposition by November 4, 1994, prejudiced any attempt to pursue judicial enforcement, precisely the opposite is true. The Division’s failure to provide discovery by November 4, as directed in the November 2, 1994, prehearing conference, provided Employer the grounds it needed to proceed in superior court for enforcement and a continuance. Employer never filed any proceeding to enforce its discovery request under section 372.6.

In any event, Employer has not explained why it was prejudiced by the short delay in deposing the Division’s witness on November 18 instead of November 4. While it is conceivable that Employer suffered some detriment, it is also possible that there was no real prejudice to Employer. It was up to Employer to explain any adverse impact. Employer has not done so.

3. The Federal Freedom of Information Act Did Not Apply to the Appeals Board’s Proceeding.

Employer contends that the citation should be dismissed because the Division did not comply with the Freedom of Information Act (FOIA, 5 U.S.C. 552,553.). FOIA applies only to actions taken by agencies acting under the authority of the federal government. FOIA therefore has no application to

proceedings under the California Occupational Safety and Health Act (Labor Code 6300, et seq.). Nonetheless, the Board’s proceedings are subject to the California Public Records Act (Government Code 6250 et seq.). The Public Records Act was not invoked by Employer.

4. Employer’s Failure to Receive Corrections to the Deposition of the Division’s Witness Did Not Violate Employer’s Due Process Rights.

The deposition of Sammons, the Division inspector, was noticed and taken by Employer. Employer failed to request that the transcript be expedited, so the transcript was not received by Sammons until after the close of the hearing. Sammons promptly reviewed the transcript and made his changes, and Division counsel forwarded the corrected transcript to both Employer and the ALJ on December 9, 1994. The Division’s letter transmitting the deposition to the ALJ and to Employer noted the Division’s objection that the deposition was irrelevant. The deposition was never received into evidence.

In its petition, Employer alleges that it did not receive a copy of the deposition with Sammons’ changes. Since the deposition was not admitted into evidence, failure to receive corrections to it are also irrelevant. The Board finds that Sammons’ deposition presents no issues affecting the validity of the decision.

The Board concludes that Employer’s arguments on reconsideration challenging the ALJ’s procedural rulings are without merit.

DECISION AFTER RECONSIDERATION

The decision of the ALJ dated March 6, 1995 is reinstated and affirmed. A serious violation of section 1632(I) is found to exist and a civil penalty of $5,625 is assessed.

JAMES P. GAZDECKI, Chairman

BILL DUPLISSEA, Member

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

SIGNED AND DATED AT SACRAMENTO, CALIFORNIA – June 30, 1999