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

In the Matter of the Appeal of:

PACIFIC COAST ROOFING CORP.
21616 Golden Triangle Road
Santa Clarita, CA 91350

                                        Employer

Docket No. 95-R3D1-2996

 

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 proceeding by Pacific Coast Roofing Corp. (Employer) makes the following decision after reconsideration.

JURISDICTION

On July 7, 1995, a representative of the Division of Occupational Safety and Health (Division) conducted an accident investigation at a place of employment maintained by Employer at Horsethief Canyon and Colt Drive, Corona, California (the site). On July 21, 1995, the Division issued to Employer Citation No. 1, alleging a serious violation of section 3657(a)(3) [forklift platform guardrails] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations. The Division proposed a $5,000 civil penalty for the alleged violation.

Employer filed a timely appeal contesting the existence of the violation and the reasonableness of the proposed penalty. As clarified at a telephonic prehearing conference on February 13, 1996, the appeal also raised the independent employee action defense.

An administrative law judge (ALJ) of the Board heard the appeal at a hearing on August 30, 1996, and issued a decision on September 30, 1996, denying the appeal.

On October 28, 1996, Employer petitioned the Board for reconsideration of the ALJ’s decision. On November 27, 1996, the Division filed an answer to Employer’s petition. The Board granted Employer’s petition on December 4, 1996, and stayed the ALJ’s decision pending a decision on the petition for reconsideration.

EVIDENCE

Employer, a roofing contractor, was installing a tile roof on a new home under construction. On Saturday, July 1, 1995, two employees were at the site. One of them, Armando Lopez, was an apprentice tile roof installer and the other, Gerardo Amezquita, was a journeyman tile roof installer who served as a leadperson or foreman.

Employer was not aware that the two employees were going to work that Saturday because it was part of the Fourth of July weekend.

The edge of the roof was ten feet above grade, and Amezquita forgot to bring a ladder. A forklift truck used by a loading crew to load roofing materials onto the roof was at the site. Amezquita was not authorized by Employer nor trained to safely operate a forklift truck but he decided to use it anyway. Lopez stood on a pallet resting on the forks of the forklift and Amezquita elevated the forks, lifting Lopez onto the roof. Later, when Amezquita was lowering Lopez from the roof to the ground, Lopez began to fall, grabbed moving parts of the mast, and the tip of his left index finger was amputated.

Employer’s Code of Safe Practices [Employer Exhibit A] contained this "Vehicle Operation" provision:

Forklift operators are required to read and understand the Forklift Safety Rules published in the General Industry Safety Orders. Operators are required to be checked out on each type of equipment prior to use. Employee files will include documentation of equipment training.

Employer’s tailgate safety meeting records showed that Amezquita had attended three safety meetings concerning vehicle operation and one concerning general safety at the site before July 1, 1995.

Division Compliance Officer Robert Klein initiated his investigation of the accident on July 7, 1995. When he went to the site, he found that the roof installation had been completed, so he interviewed the injured employee, Lopez. Klein testified that Lopez told him that Tim Struwe was the supervisor and had been in charge of the work at the site on Saturday, and that it was Struwe who had forgotten the ladder and was the employee who was operating the forklift.

Klein interviewed Employer’s safety officer, Gary Gilmore, by telephone. Klein thought that Gilmore confirmed that Struwe was the supervisor at the site and present when the accident occurred.

ISSUES

    1. Did the Division prove by a preponderance of the evidence that Amezquita was a foreman?
    2. Did Employer prove the independent employee action defense?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

    1. The Division Failed to Prove That Amezquita Was a

Foreman.

Employer acknowledged that Amezquita acted in an unsafe manner when he lifted and lowered Lopez with the forklift while Lopez was standing on a pallet without fall protection. For that act, Amezquita was disciplined with a written warning and a three-day suspension.

In Employer’s view, the citation should have alleged a violation of section 3664(a)(1) or (4) [Industrial Truck Operating Rules] on the theory that the rule against unauthorized and untrained employees operating forklifts and the rule against employees riding on the forks were not enforced. Arguably, the Division could have referenced those provisions in its citation, but neither of them is more specifically applicable to the facts or inconsistent with the section the Division did reference, section 3657(a)(3), which states:

    1. Elevating Employees with Lift Trucks.

(a) When it is necessary to elevate employees using an industrial truck, the following shall be accomplished:

(3) The platform shall meet the guardrail and toeboard requirements of Section 3210.

The introductory clause of section 3657(a) does not mean that the safety requirements contained in the section apply only if the Division proves that it was necessary for the employer to elevate employees using an industrial truck. It is a cautionary statement to employers that elevating employees by means of an industrial truck is dangerous and should be done only if other safer means are not available.

The pallet was being used as a platform to support Lopez, and he was being elevated by use of the forklift, which is an industrial truck. Thus, section 3657 applied. There was a guardrail only on the mast side of the pallet, leaving the other three sides unguarded, in violation of section 3657(a)(3), and Lopez was not protected against falling by any other means. As found by the ALJ, this evidence established a violation of section 3657(a)(3).

Employer’s principal contention is that the ALJ’s finding that Amezquita was a foreman is not supported by the evidence and that, therefore, the ALJ erred in rejecting Employer’s independent employee action defense on that basis. The Board agrees for the following reasons.

Division compliance officer Klein testified that Lopez told him that Tim Struwe, the man acknowledged by Employer to have been the supervisor in charge of the work at the site, was the "foreman" involved in the accident. Klein remained under that impression until after he completed his testimony and Employer safety officer Gilmore straightened out the misunderstanding by testifying that the man at the site with Lopez was Amezquita, not Struwe, and by identifying and introducing the "Warning Report" Struwe issued to Amezquita for his unsafe use of the forklift.

Since Klein did not know that Amezquita was involved in the accident before the hearing, he did not interview Amezquita during his investigation or take any steps to determine the nature and extent of Amezquita’s job duties and responsibilities. Consequently, his testimony included no evidence relevant to that issue. Nor did the Division present Amezquita or any other witness to explain what safety enforcement authority, if any, he had. And, it is well settled that an employee’s safety enforcement authority, rather than his job title, determines whether the employee is a foreman for purposes of the California Occupational Safety and Health Act. (See City of Sacramento, Dept. of Public Works, OSHAB 93-1947 (Feb. 5, 1998).)

The only evidence tending to prove that Amezquita had the authority to enforce safety rules at the site and initiate disciplinary action against an employee who would not follow the rules was Employer’s admission, through Gilmore, that Amezquita was called a foreman. However, Gilmore’s unrefuted testimony established that, while Amezquita was called a foreman, he was excluded from the managerial decision making process. Gilmore’s testimony also established that Amezquita was expert at installing a particular type of tile roof, and that he functioned as a crew leader for the installation of that type of roof only.

The four "Tail Gate [sic] Safety Meeting" records introduced by Employer list Amezquita as an "attendee," like Lopez, not as a "Trainer," with one exception. On the June 16, 1995, meeting record, Lopez was originally listed as the trainer. His name was then crossed-out and Amezquita’s name was substituted. Also, the "Warning Report" Struwe issued to Amezquita is on a form that appears to be designed for use in the disciplining of non-supervisory employees, since it describes an action taken by a "supervisor" against an "employee." These documents tend to supplement Gilmore’s testimony that Amezquita was a non-supervisory employee.

Our review of the record does not reveal a preponderance of evidence supporting the finding that Amezquita had the safety enforcement authority of a foreman or supervisor. Accordingly, the Board finds that he was not a foreman or supervisor for purposes of determining Employer’s knowledge of the violation or depriving Employer of the independent employee action defense.

Gilmore testified that July 1, 1995, was not a workday for Employer and that, therefore, Employer was unaware that Amezquita and Lopez were at the site when the accident happened. The Division did not refute this testimony. In any event, Amezquita and Lopez went to the site on July 1, 1995, assuming it was a workday.

Without more definitive evidence, it is impossible to tell if that mistake, which set the stage for the violation to occur, was attributable to a failure by Employer to exercise reasonable diligence. If it was not, and Employer was justified in believing that no employees were working at the site that day, there is no basis for finding that Employer could reasonably have detected the violation. Since the Division failed to prove that a lack of reasonable diligence caused the violation to go undetected, the serious classification of the violation cannot be sustained. Accordingly, the classification of the violation is reduced to general.

The $5,000 penalty, proposed on the assumption that the violation was a serious violation that had caused a serious injury, is unreasonable now that the violation has been reclassified to general.

Taking into account the lower starting penalty for a general violation and the fact that the prohibition against reductions for reasons other than Employer’s size applies only to those classified as serious or worse violations that cause serious injury, the penalty is reduced to $500.

    1. Employer Failed to Prove the Independent Employee

Action Defense.

To establish the independent employee action defense, an employer must prove each of the following elements 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; and

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), at page 3.)

Though the Board has found that Employer may raise the independent employee action defense because Amezquita was not proven to be a foreman, the Board concludes that Employer failed to prove the fifth element of the defense, i.e., that Amezquita knew that lifting Lopez with the pallet and forklift violated a safety rule.

The only evidence of Amezquita’s knowledge is Gilmore’s testimony that Amezquita received and signed for a copy of Employer’s Code of Safe Practices and the records indicating that Amezquita attended tailgate safety meetings. How much knowledge Amezquita gained from reading the Code of Safe Practices is uncertain. The fact that he signed for it does not support the inference that he knew all of its contents.

As for the tailgate meeting records, the general subject of "Vehicle Operation" is listed on three of them, but the specific subject of lifting employees with industrial trucks is listed on none. The Board notes that the name of the person conducting the safety meeting or "trainer" is missing from all of the records except the one dated June 16, 1995. Also, none of the trainers, attendees, or other percipient witnesses appeared to testify as to the content of the training.

Hence, the Board finds no basis for inferring that, by means of the tailgate meetings, Amezquita learned of the rules governing the elevating of employees by forklift.

For these reasons, the Board finds that Employer failed to prove Amezquita knew he was violating a safety rule and, based on this finding, the Board rejects Employer’s independent employee action defense.

DECISION AFTER RECONSIDERATION

The ALJ's decision is set aside. Employer’s appeal is granted to the extent of reducing the classification of the violation from serious to general, and the civil penalty is reduced to $500.

JAMES P. GAZDECKI, Chairman
BILL DUPLISSEA, Member
OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
SIGNED AND DATED AT SACRAMENTO, CALIFORNIA – October 14, 1999