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 in the above entitled matter by Tri-Valley Growers (Employer), makes the following decision after reconsideration.

On August 5, 1994, the Division of Occupational Safety and Health (the Division) conducted an accident investigation at Plant No. 7, a place of employment maintained by Employer at 2803 Finch Road, Modesto, California (the site). On December 8, 1994, the Division issued to Employer a citation alleging a general violation of section 3314(a) [de-energizing equipment capable of movement to prevent movement during cleaning] of California industrial safety orders, and proposing a civil penalty of $450.

Employer filed a timely appeal. At the hearing, Employer, without objection by the Division, raised the affirmative defense of independent employee action. An administrative law judge of the Board (ALJ) issued a decision on November 30, 1995, denying Employer’s appeal.

On January 4, 1996, Employer filed a timely petition for reconsideration. On January 29, 1996, the Board granted the petition for reconsideration, granted leave for Employer to file a supplemental petition, and stayed the decision of the ALJ pending the decision after reconsideration. The Division filed an answer on February 5, 1996. On February 21, 1996, Employer filed a supplemental petition and on March 25, 1996, the Division filed an answer to the supplemental petition.

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 6 of the decision of the ALJ.

Did Employer prove, by a preponderance of the evidence, the affirmative defense of independent employee action?

Employer is engaged in the fruit processing industry. Employer owns and operates various machines that process and can the fruit. The subject of this citation is Employer’s syruper/seamer machine (the machine).

On July 30, 1994, a clean-up employee was injured when he placed his gloved hand near the worm-drive mechanism on the machine. The employee was determining the consistency of a spot of mildew by scratching it with his fingertip. The machine caught the employee’s glove and pulled his hand into the mechanism. As a result, the employee’s little finger and half of his ring finger were amputated. Employer was cited because the employee did not lock out the machine prior to beginning the cleaning procedure.

At the hearing, Employer moved to include the affirmative defense of independent employee action. This defense has five elements that an employer must prove by a preponderance of the evidence:

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 their 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 employer’s safety requirement. (Mercury Service, Inc., OSHAB 77-1133, Decision After Reconsideration (Oct. 16, 1980).) Failure to prove any one of the above elements negates the affirmative defense. (Id.)

The ALJ found that Employer failed to prove the second, third, and fourth elements of the independent employee action defense as stated in Mercury Service. The Board affirms the ALJ’s decision based on Employer’s failure to prove the third element of the independent employee action defense.

The injured employee testified that he and other employees routinely cleaned machines while the machines were on. The employee testified that none of Employer’s safety personnel ever admonished him for cleaning the machines while they were on. Employer did not impeach or contradict the injured employee’s testimony.

Employer’s clean-up supervisor for the first shift testified that lockout procedures were discussed at safety meetings. The subject was discussed five days prior to the accident at which the injured employee was in attendance. However, "[s]afety meetings alone do not constitute effective enforcement of a safety program. Systematic inspections for hazardous conditions and practices and a sufficient measure of competent supervision must also be demonstrated to meet the third element." (Atchison, Topeka and Santa Fe Railway Company, OSHAB 86-170, Decision After Reconsideration (March 17, 1988).)

Employer’s clean-up supervisor testified that she had never witnessed an employee place his or her hand into a machine while the machine was on. Moreover, in her opinion, the injured employee was careful and cautious. However, the injured employee’s testimony that the machines were routinely cleaned while they were on was not contradicted by Employer. "[A]n essential ingredient of effective enforcement is provision of that level of supervision reasonably necessary to detect and correct hazardous conditions and practices." (City of Los Angeles Department of Water & Power, OSHAB 86-349, Decision After Reconsideration (April 4, 1988) pg. 5.) While it is undisputed that Employer discussed the lockout procedures with its employees, Employer was not diligent in assuring that the employees adhered to the policy. Reasonable supervision would have exposed the injured employee’s practice of cleaning the machines while they were on.

In its petition, Employer argues that the evidence of Employer’s hierarchy of safety management proves that it effectively enforces its safety program. The Board disagrees. While having multi-level safety management is an effort to achieve employee safety, that structure alone does not ensure that employees adhere to safety policies. Moreover, Employer points to the clean-up supervisor’s power of sanctions against employees who violate safety policy as evidence of effective enforcement. Again, having the power to sanction does not ensure that the employees are complying with Employer’s safety policy. There is no evidence in the record that demonstrates that Employer engages in a systematic inspection to detect and correct hazardous situations. Absent such proof, the third element of the independent employee action was not established and the independent employee action defense is negated.

The Decision of the ALJ dated November 30, 1995, is reinstated and affirmed, and a civil penalty of $450 is assessed.

JAMES P. GAZDECKI, Chairman
BILL DUPLISSEA, Member
OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
SIGNED AND DATED AT SACRAMENTO, CALIFORNIA – September 15, 1999