In the Matter of the Appeal of:

26575 Corporate Avenue
Hayward, CA 94545


     Docket No. 94-R1D1-3339


            DECISION AFTER

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 by the Division of Occupational Safety and Health (the Division) makes the following decision after reconsideration.


From November 18 through 21, 1994, the Division, through compliance officer Douglas Woods, conducted a plain view inspection at a place of employment maintained by Architectural Glass & Aluminum Co., Inc. (Employer) at 1 Market Plaza, San Francisco, California. On December 16, 1994, the Division issued to Employer Citation No. 2, alleging a serious violation of section 1670(a) [fall protection], with a proposed civil penalty of $1,030.

Employer filed a timely appeal from the citation, contending that the classification was incorrect, that the proposed penalty was unreasonable, and raising the independent employee action defense. Following a hearing, an administrative law judge (ALJ) of the Board issued a decision dated May 29, 1996, granting Employer’s appeal from Citation No. 2.

On July 3, 1996, the Division filed a petition for reconsideration. The Board granted the Division’s petition for reconsideration on July 26, 1996. Employer filed an answer to the petition on August 2, 1996.


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, and each exhibit admitted into evidence. The Board has taken no additional evidence in this proceeding. The Board adopts and incorporates by this reference the summary of evidence set forth on pages 2 through 5 of the decision of the ALJ.

Employer was engaged in installing windows in a building that was undergoing renovation. Compliance officer Doug Woods from his car observed two employees standing on a ledge working on a window 17 feet above the ground. One of the employees was tied off to the basket of the aerial device they had used to reach the ledge. The other, employee Mike Scott, was not tied to the basket or any other substantial structural component. Scott admitted he had released the lanyard for a brief period so that he could move further along the ledge than the lanyard would allow.

About 15 minutes before Woods arrived, Employer’s job foreman Patrick Dutrow had observed Scott standing on the ledge without being attached to the aerial bucket with a lanyard or body belt. Dutrow told Scott to tie himself off, and Scott acknowledged the order. Dutrow then left the scene to confer with Employer’s field superintendent Steve Giannini as to whether Scott should be given an oral or written warning for the infraction. About 15 minutes later, the Division compliance officer observed Scott not tied off. Dutrow was about 100 yards away from and out of view of Scott’s location, and was unaware that Scott was not tied off. Dutrow testified that he did not feel it was necessary for him to stay until Scott had corrected the violation. Scott had always followed Dutrow’s orders in the past, and he had no reason to expect that Scott would not do so in this instance. Dutrow’s supervisor issued Scott a written warning the same day.

Woods determined that Scott was an employee experienced in the task he was performing at the time of the violation. Woods further determined that Scott knew he was violating one of Employer’s safety rules. Employer had a thorough safety program, including safety meetings attended by Scott, and had addressed the requirement to tie off in situations like Scott’s in those meetings. Employer had also issued several warnings to employees for violating its safety policies. Under Employer’s program, the issuance of three citations in a two-year period would result in dismissal. While no warnings had been issued in the year preceding the inspection, the ALJ found that this was the result of Employer’s active and comprehensive safety program.


Has the Division raised a valid ground for reversing the decision of the ALJ?


Section 1670(a) provides:

Approved safety belts and lanyards shall be worn by those employees whose work exposes them to falling in excess of 7 1/2 feet from the perimeter of a structure, through shaftways and openings, sloped roof surfaces steeper than 7:12, or other sloped surfaces steeper than 40 degrees not otherwise adequately protected under the provision of [the] these Orders.

At the hearing, Employer stipulated that a violation of section 1670(a) existed as alleged in Citation No. 2 as to its employee Scott. It further stipulated that there was a substantial probability of death or serious bodily injury if an employee fell from the height of 17 feet, 2 inches, and that the proposed penalty had been calculated in accordance with the Division’s policies and procedures.

While the stipulation established a violation of section 1670(a), Employer would not be liable if it established the elements of the Board’s independent employee action defense. The elements are:

1. The employee was experienced in the job being performed.

2. The employer has a well-devised safety program which includes training employees in matters of safety respective to the particular job assignments.

3. The employer effectively enforces the safety program.

4. The employer has a policy of sanctions against employees who violate the safety program.

5. The employee caused a safety infraction which he or she knew was contra to the employer’s safety requirements. (Mercury Service, Inc., OSHAB 77-1133, Decision After Reconsideration (Oct. 16 1980).)

The ALJ found that Employer had established all the elements of the defense. The Division does not challenge the ALJ’s findings that elements 1, 2, and 5 were established but contends that the evidence does not support the ALJ’s finding that Employer proved the third element, effective enforcement of its safety policy, and the fourth element, a policy of sanctions against employees who violated the safety policy.

The Division contends that by ordering Scott to secure himself but not remaining to direct how this was accomplished, Employer delegated enforcement of its safety policy to an employee. The Division argues that compliance was left to Scott, who decided not to comply but to continue to working for a short time before correcting the violation. The Division concludes Employer must therefore be found to have failed to enforce its safety policy.

In these circumstances, where the employee is experienced in the job being performed and the supervisor has directed the employee to bring himself into compliance with the rule, the absence of such detailed supervision does not constitute a delegation of safety responsibility to an employee.

The Board agrees with the ALJ that the foreman’s failure to watch until the employee tied off does not establish that Employer failed to effectively enforce its safety program. Dutrow’s direct order to Scott to secure himself constituted action to correct the violation and to follow safe practices and methods, and to prevent Scott from remaining in an unsafe employment situation. (Southern California Gas Co., OSHAB 81-259, Decision After Reconsideration (Sep. 28, 1984).)

The Division contends that the fourth element, a policy of sanctions against employees, was not established. The Division argues Dutrow’s having to leave to consult with higher supervision about what discipline would be appropriate for Scott shows that Employer’s sanctions policy was not sufficiently clear and certain to constitute a deterrent to violation of safety rules. The Board does not agree that the exact form of the sanction must be known in advance for a violation that has not yet occurred, as long as there is a policy of sanctions. Employer issued Scott a written warning the same day. Consultation concerning the employee’s record and the circumstances involved before the issuance of discipline does not establish that there is no policy of sanctions.

The Division contends that because Employer did not produce written warnings but relied on testimony that in prior years it had issued written disciplinary warnings, the Board should overturn the ALJ’s finding that Employer had issued the warnings as part of its policy of sanctions for violations of safety rules. The Division cites Evidence Code section 412, which provides that where a party relies on weaker evidence when it has stronger evidence available, a trier of fact should view the weaker evidence with suspicion. While an employer who fails to produce prior written warnings takes a risk that its proof of a policy of sanctions will be rejected, Evidence Code section 412 does not require the rejection in all cases but leaves this evaluation in the discretion of the trier of fact. The ALJ found Employer’s testimony credible in this case, where the evidence showed that Employer had instituted a comprehensive safety program, retained a private inspector, and reduced its loss ratio by two-thirds in the years preceding the inspection. The ALJ’s finding was supported by substantial evidence, and the Board will not reverse it. (Lamb v. Workmen’s Compensation Appeals Bd. (1974) 11 Cal.3d 274, 280-281.)


The decision of the ALJ dated May 29, 1996, is reinstated and affirmed, and Employer’s appeal is granted.