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

In the Matter of the Appeal of:

KINGSTON CONSTRUCTORS, INC.
1820 Ogden Drive, Suite 208
Burlingame, CA 94010

                                           Employer

 

Docket No. 95-R1D1-1098

 

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 by Kingston Constructors, Inc. (Employer) makes the following decision after reconsideration.

JURISDICTION

From February 28, 1995, through March 9, 1995, the Division of Occupational Safety and Health (the Division), through Compliance Officer Douglas Woods, conducted a plain view inspection at a place of employment maintained by Employer at 1755 Market Street, San Francisco, California. On March 10, 1995, the Division issued to Employer a citation alleging a serious violation of section 3648(o) [employee in aerial lift not secured by safety belt/lanyard], with a proposed civil penalty of $560.

Employer filed a timely appeal from the citation contesting the existence of the alleged violation, the classification, and the reasonableness of both the abatement requirements and the proposed civil penalty. Following a hearing an administrative law judge (ALJ) of the Board issued a decision dated February 7, 1996, affirming the citation and assessing a civil penalty of $560.

On March 12, 1996, Employer filed a petition for reconsideration. The Division filed an answer on April 12, 1996. The Board granted Employer’s petition for reconsideration on April 22, 1996.

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, 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 6 of the decision of the ALJ.

Employer, a construction company, was cited for failing to ensure that an employee working in an elevated aerial device (sometimes popularly referred to as a "cherry picker") was secured by means of a safety belt and lanyard to the basket of the device. The Division compliance officer, while driving on a public street, observed an employee of Employer working in a fiberglass bucket in a truck-mounted aerial device. The bucket was elevated to 15 feet above street level. The bucket was open on one side and the compliance officer could see that the worker was not secured to the bucket by a safety belt and lanyard. The employee was securing a guy wire to poles supporting municipal railway electric power lines. The employee was working immediately above uninsulated lines carrying electric current rated at 600 volts and 2,500 amps.

The general foreman, who was working across the street on the ground 100 feet away, within sight of the aerial device, failed to notice that the employee, working in an elevated bucket immediately above the power lines, had not secured himself with a lanyard.

The Division issued a citation to Employer alleging a serious violation of section 3648(o). The ALJ found that a violation was established and Employer could not avail itself of the independent employee action defense because Employer failed to establish that it effectively enforced its safety program, an element of the defense.

ISSUE

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

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

Section 3648(o) provides that:

An employee, while in an elevated aerial device, shall be secured to the boom, basket or tub of an aerial device through the use of a safety belt, body belt or safety harness equipped with safety strap or lanyard.

Employer does not dispute the ALJ’s finding that the employee was working in an aerial device without being secured by a lanyard, body belt, or safety harness. Its sole contention is that it established an independent employee action defense. The elements of the defense 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 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 violation which he or she knew was contra to Employer’s safety requirement. (Mercury Service, Inc., OSHAB 77-1133, Decision After Reconsideration (Oct. 16, 1980).)

The ALJ found, and the Board agrees, that Employer had established all elements of the defense except for the third element, that Employer effectively enforced its safety program.

Employer argued in its petition that the evaluation of a single incident which resulted in the issuance of a single citation, even if the alleged violation is upheld, does not provide a sufficient basis to conclude that an employer does not effectively enforce its safety program. Employer also argued that the fact that the employee made a mistake does not reasonably support a conclusion that because of this single act of inadvertence, Employer did not enforce its Injury and Illness Prevention Program.

The Board disagrees and finds that where a foreman is at the site, that foreman is responsible for enforcing Employer’s safety program. The evidence is undisputed that the general foreman was responsible for enforcing Employer’s safety program. (City of Sacramento, Dept. of Public Works, OSHAB 93-1947, Decision After Reconsideration (Feb. 5, 1998).)

While Employer maintained an otherwise extensive safety program, the Board agrees with the ALJ that Employer failed to establish that it enforced its safety program at a time critical for this violation. The Board has held that where an employee violates a safety rule in plain view of management, it cannot assert the independent employee action defense. (D.A. Whitacre Construction, Inc., OSHAB 90-775, Decision After Reconsideration (Aug. 8, 1991); Polvera Drywall, OSHAB 90-1246, Decision After Reconsideration (Sept. 6, 1991).)

The evidence is unchallenged that Employer’s foreman was at the site at the time of the inspection. Although the foreman was across the street approximately 100 feet away and may not have been able to see the employee in the bucket from his exact location, he was charged with ensuring compliance with the safety orders at the work site. Had the foreman taken steps to ensure the employee had attached the safety belt and lanyard to the bucket of the aerial device before it was elevated, the violation would not have occurred.

The fact that the citation was given for a single incident is not persuasive; the employee was exposed to the hazard. The Board has found ineffective enforcement of an otherwise comprehensive safety program where, as the ALJ found with the 600 volt, 2,500 amp power lines the worker was exposed to, the risks involved in a particular operation demanded special attention to compliance with safety procedures. The Board held in Chevron USA, Inc., OSHAB 89-283, Decision After Reconsideration (Feb. 8, 1991), that failure to enforce safety procedures in a situation presenting special hazards is a basis for finding that the employer does not effectively enforce its safety program, even where the program is extensive.

A foreman cannot avert his eyes or say that he was unable to see whether an employee was following the safety orders. The foreman knew that the employee was exposed not only to injury from impact with the ground but to severe electric shock in the event of a fall onto the wires. The foreman had the responsibility to ensure that the employees were protected from danger by following the safety orders and enforcing Employer’s safety program. Employer failed to effectively enforce its safety program where the foreman did not ensure that an employee in an aerial lift was properly tied-off with a safety belt and lanyard. Because Employer failed to establish that it effectively enforced its safety program as to this violation, Employer cannot avail itself of the independent employee action defense.

DECISION AFTER RECONSIDERATION

The decision of the ALJ dated February 7, 1996, is reinstated and affirmed, finding a serious violation of section 3648(o). A civil penalty of $560 is assessed.

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