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

In the Matter of the Appeal of:

FARMER BROTHERS CO.
20333 South Normandie Avenue
Torrance, CA 90509

                                Employer

Docket No. 94-R3D5-2868

 

        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 granted the petition for reconsideration filed in the above-entitled matter by the Division of Occupational Safety and Health (Division), makes the following decision after reconsideration.

JURISDICTION

On February 18, 1993, John O'Toole, a Division compliance officer, investigated an accident at 20333 South Normandie Avenue, Torrance, California (the site), where Farmer Brothers Co. (Employer) maintains a place of employment. On March 4, 1993, the Division issued to Employer, Citation No. 2, which alleged a serious violation of section 3210(a) [guardrails] and proposed a civil penalty of $5,000.

Employer timely appealed. On June 15, 1994, the Board issued an Order approving a disposition (settlement) submitted by the parties. As part of that disposition and Order, Employer withdrew its appeal from Citation No. 2. The Board's Order became final 30 days thereafter.

On September 13, 1994, another Division compliance officer, Philip Yow, commenced a follow-up inspection at the site. On October 26, 1994, the Division issued a Notification of Failure to Abate Alleged Violation, charging Employer with failing to correct the condition referenced in Citation No. 2, and proposing an additional $19,500 civil penalty. Employer appealed, denying the alleged failure to abate and explaining its position. After a hearing, an administrative law judge (ALJ) of the Board issued a decision dated December 14, 1995, granting Employer’s appeal and setting aside the penalty.

On January 18, 1996, the Division filed a petition for reconsideration of the ALJ’s decision. On February 16, 1996, Employer filed an answer to the petition. On February 20, 1996, the Board granted the Division's petition and stayed the ALJ’s decision pending a decision on the petition for reconsideration.

EVIDENCE

In making this decision, the Board relies upon its independent review of the entire evidentiary record in this case, including the tape recording of the hearing and each exhibit admitted into evidence. 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 ALJ’s decision.

Employer is engaged in the business of packaging coffee for sale. At the site Employer uses a re-pour machine to separate defective packages from their contents (coffee) for re-packaging. The machine has a 12-foot high platform. At one end of the platform, a bin which is elevated from ground level, dumps the defective packages onto a hopper in the machine. The elevated platform is equipped with 35-inch high guardrails around most of the perimeter, except for a narrow 11 3/4-inch gap between the top of the ladder and the area immediately adjacent to the bin dump. This portion of the machine is referred to as the "bin dump area." Before the accident, only mechanics, not the machine operators, were permitted access to any part of the elevated platform. Access was by means of a fixed ladder, and there were signs prohibiting others' access. The portion of the platform adjacent to the bin dump was not a work platform, according to Employer's witness' unrefuted testimony. For reasons unknown, an employee (machine operator Chao Wing Wong) climbed the ladder, squeezed through the 11 3/4-inch opening, and entered that portion of the elevated platform. Wong was then crushed by the moving bin, resulting in his fatality that occasioned the first investigation and the issuance of Citation No. 2.

The fatality was not caused by Wong’s falling from the elevated platform, but by Wong having access to the area. The guardrails incompletely closed the gap adjacent to the bin area, leaving an 11-3/4 inch opening and therefore did not effectively block access to the point where the crushing hazard existed. However, the Division issued the citation, and denied penalty reductions, on the theory that the violation was serious and "accident-related." Although the purpose of the railing is to provide "fall protection" and there was no fall in this case, the Division’s theory was that the absence of fall protection was "accident related." In order for the worker to enter the area where he was killed by the crushing hazard, he first passed through the part of the platform that provided no fall protection the gap. In other words, even though the fall hazard had nothing to do with the fatal injuries, it was "related to" the accident because Wong was exposed to the fall hazard en route to the danger zone.

The latter rationale was not expressed to Employer after the first citation. The Division's suggestions for correcting the hazard, though not recommending one specific abatement method, focused only on limiting access to the hazardous portion of the platform by installing some sort of barricade. The emphasis was on preventing access—not preventing falls. Statements the Division's inspector and the District Manager made to Employer representatives during a post-citation informal conference insisted that the gap in the perimeter railing was too wide (with which Employer disagreed), and had to be closed off. No mention was made of what heights the barricades needed to be and nothing was said of the fact that the rest of the perimeter railing was only 35 inches high instead of the 42-inch minimum prescribed in section 3209.

After Employer withdrew its appeal from Citation No. 2, it undertook to correct the hazard by installing horizontal metal rails (referred to as "horizontal cross-members") in the gap area, equivalent in height to the existing railing. It thereby closed off the 11 3/4-inch gap. It also installed another set of barricades further into the platform to close off a narrower gap (8-9 inches wide) that a person might squeeze through to get to the area where the bin dump could crush a worker as it was depositing the materials. It installed another "guard post" impeding access to the bin's dump point in case an employee attempted to get to the danger zone by walking around the platform from the opposite side. At the bottom of the machine, Employer installed a cover over the ladder with a lock that required using a key to gain access to the platform. As an extra precaution, Employer installed on the elevated platform itself a remote switch for stopping the machinery. This, Employer believed, complied with, and exceeded what the Division suggested would be sufficient compliance.

On the follow-up inspection, however, Philip Yow found these measures insufficient because, although the cross-member barriers precluded entry of the type Wong had made, the railing was only 35 inches high, which would not constitute a "guardrail" as defined by section 3209(a), the latter requiring a height of 42-45 inches. Thus it did not adequately protect against a fall hazard. Yow cited the condition as a "failure to abate," describing the violation as follows:

The employer failed to provide adequate guardrails adjacent to the bin dump area located atop the coffee bin dump area and the ladder area. The affected area was where employee Chao Wing Wong was fatally injured 2/16/93. On September 13, 1994, the guard rail was still inadequate being only 35 inches high. Ref: 3209(a)

Yow's testimony about his follow-up inspection did not mention whether, after Employer's post-correction measures, any employees were exposed to the area that was deficiently railed. After Yow's re-inspection, Employer, without admitting that it failed to abate the violation, nevertheless raised the entire perimeter railing to 42 inches.

ISSUES

1. Did Employer fail to correct the condition cited originally as Citation No. 2?

2. Did the ALJ act improperly by inquiring into the underlying citation and allowing evidence of statements made during an informal conference?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

1. Employer Did Not Fail to Correct the Condition Cited Originally as Citation No. 2.

The ALJ granted Employer's appeal, concluding that Employer did not fail to abate the original violation because the Division misled it into installing barricades, not fall protection guardrails, and Employer had taken all steps it was led to believe were required. The Board agrees with the conclusion that Employer did not fail to abate the condition, but for different reasons.

Employers have at least two abatement options for guarding violations. In the context of excavations, as in Petroleum Maintenance Company, the Board held that abatement is possible by either guarding the excavation by following the prescriptions contained within applicable safety orders or by taking actions to prevent employees from being exposed to the hazardous parts thereof e.g., removing employees from exposure. In a guardrailing situation more applicable here, employers can abate either by placing appropriate guardrailing on the work platform or installing barricades that ensure employees do not stand there to perform work functions.

Thus, after the initial inspection in this case, it would not have been misleading to recommend to Employer that a rail barricade preventing workers from passing through and standing in the danger zone would abate the cited condition(s). The Division erred, however, in later citing Employer for failing to abate on the assumption that the only way to correct the first condition was installing 42-inch high rails.

The Division quotes out of context a portion of the Board’s holding in Carnation Company, a case not analogous to Employer’s. In Carnation Company, the violation was for not installing safety valves that met the ASME Boiler and Pressure Vessel Code. On re-inspection, the valves had been changed, but they still were not the type called for by the Code and the employer had made no effort to consult the Code. The Board held there that "there was no basis for misunderstanding the abatement requirements." Likewise, the Division's reference to the Board’s holding in Donovan Shell does not support its position. In that case, the Board held that an employer's good faith, but unsuccessful, attempts to abate were grounds for reducing a penalty, but did not constitute a defense to a failure-to-abate.

Here, unlike Donovan Shell, the record does not show Employer's abatement efforts were unsuccessful. Employer barricaded the area that was cited, intending to prevent employees from reaching and standing in the danger zone. Although the Division has the burden of proving a violation, it offered no evidence to show Employer's steps were insufficient to remove employee exposure to the area which was the focus of the original citation. Without such proof, the record shows Employer took one of two acceptable options to abate. The finding that Employer did not fail to abate the violation is therefore affirmed.

2. The ALJ Did Not Act Improperly by Inquiring into the Underlying Citation and Allowing Evidence of Statements Made During an Informal Conference.

In its petition, the Division asserts instances of what it believes constitute ALJ's abuses of power and hostility toward the Division, only two of which merit discussion here. The Division alleges the ALJ "relitigated" the original citation, which had become final by Board order. The record demonstrates this claim to be meritless. Indeed, the Division's counsel called two witnesses during its case-in-chief, Philip Yow and Employer Vice President Guenter Berger, asking both questions about the underlying accident. On its direct examination, the Division's counsel asked Berger for details of where and how Wong was injured. Yet, when Employer's representative tried to cross-examine Berger, the Division's representative objected on the ground that the question elicited irrelevant testimony, stating that "we are not here to litigate the prior accident."

The ALJ later asked witnesses questions about the accident, about the Division's basis for the original citation, and ordered the Division's counsel to produce a copy of the investigative file for the original Citation No. 2. The Division's counsel objected to all the above and defied two direct requests from the ALJ to produce the file, conceding under protest after a third request by the ALJ, on the ground that the investigative file is a public record. In spite of this, the ALJ did not exercise the authority to cite counsel for at-hearing misconduct under Board Regulation section 381. Contrary to the assertions in the Division's petition, the ALJ repeatedly explained that the inquiry was not an attempt to relitigate the initial citation. Rather, the inquiries were aimed at determining the accuracy of Employer's evidence that it complied with the Division's abatement instructions. The ALJ sought to do so by examining the following: the precise nature of the earlier violation (access or barriers to hazard vs. fall protection), which portion of the platform had been the focus of the initial citation, what hazard or hazards the Employer had been told to correct, and what statements Division representatives made to Employer in that regard. While the Division correctly states that it is not required to tell employers the exact methods they must use to abate a violation, it does have the statutory power to recommend what methods or safeguards are required to render the work place safe.

At a hearing, the ALJ has the authority to ascertain facts for the Appeals Board, to compel the parties to produce relevant documents and witnesses, and to regulate the course of a hearing (350.1 and 376.1, and Labor Code 6604). In this case the Board finds that the above inquiries by the ALJ were relevant to ascertain whether Employer corrected the hazard that the Division cited as having caused Wong's fatal injuries.

That the Division made its abatement recommendations at an informal conference between the parties (held after the original citation but before the citation for failing to abate) does not preclude testimony or evidence about them in the subsequent action on the failure-to-abate citation, as the Division also claims. In PDM Strocal, Inc., the Board held that "settlement discussions" at pre-hearing conferences (presided over by an ALJ), are not admissible in subsequent proceedings. The Board’s holding there was grounded on Evidence Code sections 1152 et. seq. Under Evidence Code sections 1152 and 1154, statements made during negotiations of an offer to satisfy a claim are inadmissible only if offered to prove liability or the validity of that claim. These sections explicitly permit admitting such statements to prove a defendant satisfied or partially satisfied a claim without questioning the validity of the original claim. (e.g., Evidence Code 1152(c).)

The Appeals Board has not ruled on whether statements made at informal conferences deserve the same protection as pre-hearing settlement discussions. In this case, there was no evidence presented that the parties made any representations to each other at the informal conference that their statements would be kept "off the record." Even assuming they had, the record shows the testimony about discussions at the conference immediately following the original citation were not offered at this failure-to-abate hearing to overturn the original citation. Rather, inquiry into those subjects was made to determine whether Employer had satisfied the duty (abatement) it accepted as part of the original disposition of the appeal. Hence, inquiry into statements concerning abatement measures was legitimate.

One area into which the ALJ inquired was irrelevant but is extraneous to the outcome. Specifically, the ALJ inquired as to why the Division issued Citation No. 2, which referred to a safety order addressing a fall hazard, yet characterized the violation as having caused the fatality (using the term "accident-related"), while knowing that the cited hazard bore no relation to the actual injury (hazard from moving parts of a machine). This inquiry may have been relevant if Employer had included within the scope of its appeal the reasonableness of the penalty. As noted above, the Board held in Donovan Shell, supra, that good faith attempts to abate are relevant to determining a proper penalty. And, in System 99, A Corporation, the Board held that when the penalty is the only issue on appeal, the Division should nevertheless be on notice that the existence of the violation remains a relevant matter, not for reviewing whether the violation was established but for determining the appropriate penalty.

Employer did not raise the abatement penalty issue. It was not relevant to inquire into the validity of the first citation for the purpose of determining whether to reduce or eliminate the $19,500 penalty. Since Employer did not move to amend its appeal under section 361.3(c) in order to demonstrate good cause for not having appealed the original citation, there was no other need to inquire into that topic. However, although the ALJ voiced concerns at the hearing over the first citation's validity, the decision correctly concluded that the original violation's existence was established by a final, non-reviewable Board order. Thus, the Board finds no prejudicial abuse of power in that course of conduct.

The Board affirms the ALJ’s decision granting Employer’s appeal from the failure-to-abate citation.

DECISION AFTER RECONSIDERATION

The ALJ decision dated December 14, 1995, is reinstated and affirmed.

JAMES P. GAZDECKI, Chairman
BILL DUPLISSEA, Member
OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
SIGNED AND DATED AT WEST COVINA , CALIFORNIA – September 24, 1999