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

In the Matter of the Appeal of:

W. F. SCOTT & CO., INC.
3720 San Gabriel River Parkway
Pico Rivera, CA 90660

                                           Employer

Docket Nos. 95-R6D2-2623
                    through 2625

 

DECISION AFTER
RECONSIDERATION

The Occupational Safety and Health Appeals Board (Board), acting pursuant to the authority vested in it by the California Labor Code and having ordered reconsideration on its own motion, makes the following decision after reconsideration.

JURISDICTION

On December 8, 1994, a representative of the Division of Occupational Safety and Health (Division) conducted a high hazard inspection at a place of employment maintained by W. F. Scott & Co., Inc. (Employer) at 3720 San Gabriel River Parkway, Pico Rivera, California (the site). On May 31, 1995, the Division issued to Employer seven citations alleging various regulatory, general, and serious violations of the occupational safety and health standards and orders found in Title 8, California Code of Regulations. Among them were the following:

Citation         Section              Classification      Proposed Penalty

                    5                  5162(a)                 Serious                          $1,500

                                       [emergency eyewash facility]

                    6                  5162(b)                Serious                           $1,500

                                       [emergency shower equipment]

                    7                  5194(e)(1)            Serious                           $2,250

                                       [Hazard Communication Program]

At hearing, an administrative law judge of the Board (ALJ) granted the Division's motion to reduce the civil penalty proposed for Citation No. 7 to $1,875.

The ALJ heard the appeals on October 1, 1996, and issued a decision on October 30, 1996, deciding all issues raised by the appeals. In the decision, the ALJ reduced the $1,500 penalty proposed for Citation No. 6 to $0 on the ground that it pertained to the same chemical splash hazard as Citation No. 5 and was cumulative of the penalty proposed for that violation. The ALJ also reduced the classification of Citation No. 7 from serious to general and the related civil penalty from $1,875 to $130 on the ground that the Division did not prove it substantially probable that Employer's failure to have a written Hazard Communication Program could result in serious physical harm or death, an element required to establish the serious classification.

On November 25, 1996, the Board, on its own motion, ordered reconsideration of the ALJ's decision to consider two issues: (1) whether the ALJ erred in eliminating the civil penalty for violation of 5162(b) as alleged in Citation No. 6 because it was cumulative of the civil penalty assessed in Citation No. 5 for violation of section 5162(a), and (2) whether the ALJ had erred in reducing the classification of Citation No. 7 from serious to general. Neither Employer nor the Division filed a response to the Board's order.

ISSUES

1. Did the ALJ err by not assessing the proposed $1,500 civil penalty for Citation No. 6 on the ground that the penalty was cumulative of the $1,500 civil penalty assessed for Citation No. 5?

2. Does the evidence support the ALJ's reduction of the classification of Citation No. 7 from serious to general?

EVIDENCE

The Board has taken no new evidence and relies upon its independent review of the record, including the tape recording of the hearing and the exhibits in making this decision.

Employer operated an electroplating shop at the inspection site. Tanks in the barrel and rack plating areas held solutions that included cyanide, nickel, silver, rhodium, sodium hydroxide, sulfuric acid, and hydrochloric acid. Employees dipped parts into the tanks to clean them or otherwise further the electroplating process.

Some of the chemicals, under certain circumstances, are capable of causing death or serious physical harm. For example, cyanide and hydrochloric acid, if mixed, produce a toxic and dangerous gas. The probability of such a result occurring would depend on factors like the quantities and concentrations of the chemical solutions, the manner in which they are used, their reactions to other substances with which they are mixed or come into contact, and the extent and duration of an employee's exposure.

Employer had been in business for 39 years without having a reportable employee injury or illness and believed that, as used at the site, the chemicals did not expose employees to the risk of serious injury or illness.

Several one-liter eyewash bottles containing water or a neutralizing solution were located in the employee restrooms. They were too small to produce the flow necessary to meet ANSI standards for emergency eyewash equipment. This violated section 5162(a), as alleged in Citation No. 5, and the ALJ upheld the Division's classification of the violation as serious and assessed the $1,500 penalty proposed by the Division.

There were water hoses in the barrel and rack plating areas, but Employer provided no emergency shower equipment meeting ANSI standards for the employees who worked in those areas. For that reason the ALJ upheld the section 5162(b) violation alleged in Citation No. 6. The ALJ also sustained the serious classification of the violation but set aside the $1,500 proposed penalty, because assessment of the penalty for conduct "similar" to that involved in Citation No. 5, "would be duplicative and punitive."

In Citation No. 7, the Division alleged a serious violation of section 5194(e)(1) in these terms: "The employer did not have a written Hazard Communication Program or implementation of a Hazard Communication Program at the time of the inspection." Employer admitted that it did not have a written Hazard Communication Program. The ALJ upheld the violation but reduced its classification to general and the penalty to $130 after finding that the Division failed to prove there was a substantial probability that the violation could result in serious physical harm or death.

The parties stipulated that the Division calculated the proposed penalties in accordance with the penalty setting regulations promulgated by the Director of the Department of Industrial Relations.

Findings and Reasons
for
Decision After Reconsideration

1. The ALJ Did Not Err by Not Assessing the Proposed $1,500 Civil Penalty for Citation No. 6 on the Ground That the Penalty Was Cumulative of the $1,500 Civil Penalty Assessed for Citation No. 5.

Having assessed the $1,500 penalty the Division proposed for the emergency eyewash violation, the ALJ declined to assess the $1,500 penalty proposed for the emergency shower violation because, in the ALJ’s view, "[t]o impose an additional civil penalty for similar conduct would be duplicative and punitive." (Decision, p. 28)

Even though sections 5162(a) and 5162(b) are both designed to provide employees with emergency means of washing hazardous substance spills off of themselves, section 5162(b) is a separate standard, and Employer did not contest the existence of the violation. Moreover, section 336(c)(1) implements the Labor Code section 6428 mandate of a civil penalty of up to $7,000 for each serious violation, and the Division's penalty proposals must comply with section 336(c)(1). Nevertheless, the ALJ's finding of the penalty as duplicative is not determinative of whether or not the ALJ erred in declining to assess it. That issue is to be decided by the Board pursuant to its statutory power to review and determine the appropriateness of appealed penalties. (Labor Code 6602.)

In exercising its review power, the Board is not bound by the regulations of the Director of Industrial Relations which prescribe rules the Division must follow in calculating the penalties that the Division proposes, nor is it bound by the penalty amount "proposed" by the Division. To the contrary, "the Appeals Board has full discretion in establishing the final monetary penalty necessary to encourage elimination of safety and health hazards provided that such discretion is consistent with the Act [The Occupational Safety and Health Act of 1973]." (Liberty Vinyl Corporation.)

Labor Code section 6428 is within Chapter 4 [Penalties] (6423 through 6436) of the Act which includes provisions applicable to penalties assessed by courts and the Board as well as to those proposed or recommended by the Division pursuant to its authority in sections 6317 and 6319 of Chapter 1 [Jurisdiction and Duties] (6300 through 6331) of the Act. In part, Labor Code section 6428 provides that an employer who commits serious violations of safety orders, " . . . shall be assessed a civil penalty of up to seven thousand ($7,000) for each violation . . . . "

The Legislature's use of the mandatory term "shall" may be construed to require the Board to assess a civil penalty for each of the serious violations found to exist in this case. With Labor Code section 6428 so construed, the ALJ's elimination of the penalty for the serious, admitted violation in Citation No. 6 appears to be inconsistent with the statute. However, the inconsistency is more apparent than real.

Both subsections (a) and (b) of section 5162 have the common purpose of providing emergency washing or drenching relief for employees splashed with hazardous chemicals. Having considered the evidence presented and the demeanor of Employer's Vice President and witness, the ALJ concluded that assessment of the $3,000 cumulated total of the two proposed penalties was not reasonably necessary "to encourage elimination of [the two, related]] safety and health hazards." (Liberty Vinyl Corporation, supra, page 5) Thus, the target of the ALJ's action was the $3,000 cumulated penalty for the violations, not the individual penalty proposed for the Citation No. 6 violation. The same penalty relief purpose could have been accomplished, with no appearance of inconsistency with Labor Code section 6428, by reducing each of the proposed penalties by 50% instead of reducing one of them by 100%. Hence, when the substance rather than the form of the ALJ's action is measured against the penalty mandate of Labor Code section 6428 there is no appearance of inconsistency, and the Board finds no ALJ error in that regard.

The reduction or elimination of penalties proposed for multiple violations pertaining to the same hazard is not unprecedented. In Strong Tie Structures the Division issued four serious citations alleging that the employer had failed to provide different types of fall protection for employees working on a roof structure 30 feet above ground. The Board set aside three of the four penalties because providing any one of the four types of fall protection would have made the work safe and abated the three other violations.

Later, in Anresco, Inc. the Division found four hazardous substances stored at the employer’s place of business. Each of the substances was covered by separate regulations imposing differing reporting requirements and the employer had not complied with the reporting requirements for any of the substances. The Division issued the employer four separate citations alleging regulatory violations of the reporting requirements for each of the substances and proposed a separate $500 civil penalty for each of the four violations.

The Board noted that Anresco differed from Strong Tie Structures as "the Division properly cited Employer for four distinct violations of the carcinogen reporting standards . . . [and] Employer has conceded each violation." (Anresco, page 4.) The Division’s industrial hygienist in Anresco testified that the rationale for proposing a separate penalty for each violation was that each of the carcinogen reporting failures related to a different section in the safety orders. The Board was not persuaded by the proffered rationale, responding that it saw, "little significance in whether or not the failures to report stem from the same regulation (albeit different subsections) or from a multiplicity of regulations." (Ibid.) Moreover, the Anresco record revealed, inter alia, that the employer "cooperated fully in the Division’s investigation and, . . . has presented a safety record of no major injuries in its 48-year existence . . . and exhibited a sincere interest in health and safety." (Ibid.) Ultimately, the Board concluded that one $500 penalty for the four violations would be "an effective reminder to Employer of its safety responsibilities under the Occupational Safety and Health Act," (Ibid.) and set aside the $500 penalties proposed for three of them.

This case resembles Anresco in several respects. Citation Nos. 5 and 6 alleged that Employer failed to provide emergency eyewash facilities (5162(a)) and shower equipment (5162(b)) and are as closely related as the four reporting violations alleged in Anresco. In fact, a majority of the citations issued in this case relate to the different aspects of the hazard of exposure to hazardous substances. Citation No. 1, Item 7 alleged that Employer violated section 3383(a) [body protection] by not requiring employees in the barrel and rack plating areas to wear impervious aprons while working with hazardous substances. Citation No. 2 alleged that Employer violated section 3366(d)(2) [washing facilities] by not providing hot water to help employees wash cyanide solutions and other hazardous substances off their hands. Citation No. 3 alleged that Employer violated section 3382(a) [eye and face protection] by not requiring employees to wear face shields or chemical goggles. Citation No. 4 alleged that Employer violated section 3384(a) [hand protection] by not requiring employees to wear appropriate gloves. Finally, Citation No. 7 alleged that Employer violated section 5194(e)(1) by not having a written Hazard Communication Program for training employees about chemical hazards. All of these citations charge that Employer either (1) failed to protect employees against exposure to chemicals used at the site or (2) failed to provide employees with appropriate means of minimizing the harm that exposure to the chemicals might cause.

Also, the undisputed testimony of Employer’s vice president established that Employer has been in the metal plating business for 39 years without a reportable employee injury or illness and has received several awards from the Department of Public Works and various environmental associations for Employer’s careful handling of hazardous substances. It is reasonably inferable from these facts that despite Employer’s failure to comply with all safety orders, Employer was making a sincere effort to provide a safe place to work. Additionally, from the Industrial Hygienist’s description of the inspection, it appears that Employer was cooperative. The Division’s "fair" rating of Employer’s Good Faith tends to support these inferences.

This case is not factually identical to Anresco, and therefore, is not controlled by its holding. However, the cases have in common the several key facts described above, e.g., substantial similarity of the violations upon which the proposed penalties are based, a long accident-free history, and sincere safety effort by the employer. For these reasons, Anresco provides a good measure of authoritative support for the ALJ's decision.

The evidence and the inferences reasonably drawn therefrom and discussed above tend to prove that the assessment of separate $1,500 penalties for Citation Nos. 5 and 6 is not reasonably necessary to encourage Employer to eliminate the hazards associated with the violations. Determination of the credibility of Employer's Vice President and sole witness was essential to the informed evaluation of evidence critical to this issue. Credibility based findings of an ALJ "are entitled to great weight because the . . . [ALJ] was present during the taking of testimony and was able to directly observe and to gauge the demeanor of the witnesses and to weigh their statements in light of their manner on the stand." (Metro-Young Construction Company). The Board finds no "contrary evidence of considerable substantiality" (Lortz & Son Mfg. Co.) in the record warranting rejection of the ALJ's finding that it was unreasonable to penalize Employer more than a total of $1,500 for both violations. Accordingly, the Board concludes that the ALJ did not err and affirms the ALJ’s decision to set aside the penalty for Citation No. 6.

2. The Evidence Supports the ALJ's Reduction of the Classification of Citation No. 7 from Serious to General.

Labor Code section 6432 provides this definition of a "serious violation":

6432. Serious Violations—Defined

(a) As used in this part, a "serious violation" shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a serious exposure exceeding an established permissible exposure limit or a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in the place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

(b) As used in this section, "substantial probability" refers not to the probability that an accident or exposure will occur as a result of the violation, but rather to the probability that death or serious physical harm will result assuming an accident or exposure occurs as a result of the violation."

As of 1977, section 3203(a)(1) required all employers to have a comprehensive "accident prevention program." In 1991 it was amended to require an even more comprehensive "Injury and Illness Prevention Program." Since section 3203(a)(1) encompasses all employee safety and health hazards at a place of employment, the required programs have been and are of great breadth.

Over the years, the Division has cited employers for serious violations of section 3203(a)(1) and some of the citations have been appealed to the Board. In those cases, as in this one arising under the similar but more specialized hazardous substance program requirements of section 5194(e)(1), the principal issue has been the sufficiency of the Division's proof that the failure to adopt or implement an adequate program could, to a substantial probability, result in death or serious physical harm.

In California Cascade Industries, the Board reduced to general the classification of a section 3203(a)(1) violation the Division had alleged to be serious for these reasons:

The cited standard is broad and obligates all employers to maintain a comprehensive accident prevention program. Under the terms of such broad provisions, and the many specific safety instructions which are required under such an obligation, no single safety instruction can be sufficiently isolated to be used as the basis for a serious violation. The record evidence did not isolate any specific hazard or instruction in which the Employer failed to train its employees, but rather concerned the broad subject of a general safety training program. Under these circumstances, because of the myriad of different safety instructions with which a comprehensive safety training program is involved, it cannot be said that there was a substantial probability that death or serious physical injury could result from these conditions. Accordingly, the evidence presented did not establish that there was a substantial probability that death or serious physical harm could result from the failure to have a safety program.

In Tenneco West, Inc., the Board cited California Cascade Industries, supra, and upheld the serious classification of a section 3203(a)(1) violation, stating that:

To charge the failure to train as "serious", the Division must focus in its proof upon the specific hazard that endangers an employee, so as to isolate the specific hazard and instruction in which an employer failed to train its employees. The Division must focus its proof upon the probable consequences of an accident related to the failure to instruct about a specific hazard. (California Cascade Industries, supra.) If this hazard is so grave that it threatens the employee with death or serious injury as a substantial probability, and the employer knew, or with the exercise of reasonable diligence, could have known of the existence of the hazard in the workplace, the failure to train the employee concerning such hazard is properly classified as a serious violation.

Applying this rule to the proof adduced establishes the violation as serious. The opening of the tank door before the scalding water had drained from the tank would give rise within a substantial probability to a serious injury. Had Employer been diligent about the safety of the employee assigned to cleaning the raisin tank, it would have brought the existence of the scalding hazard to his [the employee's] attention, and would have instructed him in how to avoid the hazard."

Though the program required by section 5194(e)(1) extends only to hazardous substances, it, like section 3203(a)(1), includes a "myriad of different safety instructions," and the two sections are similarly structured to prevent employee injuries and illnesses through hazard identification, information, and training. Accordingly, the Board finds the rule for determining the sufficiency of the Division's proof regarding the substantial probability of resultant death or serious physical harm, clearly stated in Tenneco West, applies in this case. Thus, the propriety of the ALJ's ruling depends upon whether, under that test, the Division proved the requisite substantial probability by a preponderance of the evidence.

To prevail, the Division had to "focus its proof upon the probable consequences of an accident related to the failure to instruct about a specific hazard . . . so grave that it threatens the employee with death or serious injury as a substantial probability." (Tenneco West, supra, page 3.) It was undisputed that various utility sink-sized tanks in the barrel and rack plating area contained solutions that included such chemicals as cyanide, nickel, silver, rhodium, sodium hydroxide, sulfuric acid, and hydrochloric acid. The Division also proved that the chemicals contained in the solutions were capable of producing physical harm ranging from irritation of the skin, eyes, nose, and throat to death. However, proof of this broad array of possibilities is not proof that Employer failed to instruct employees about a specific hazard that could, to a substantial probability, result in death or serious physical harm in the event of an accident.

The Division focused its proof on a particular type of accident: it was the accidental mixing of cyanide with an acid to form hydrogen cyanide, a dangerous and toxic gas which could cause a serious exposure. The Division, however, did not prove that any of Employer’s work processes or practices involved usages of cyanide and acid that could lead to accidental mixing of those substances by employees. Moreover, the Division’s proof that Employer had not instructed employees to avoid mixing cyanide and acid rested solely on the inspecting industrial hygienist’s hearsay testimony that an employee told him that he had not been so instructed.

The Division prevailed in Tenneco West, supra, by presenting clear proof that: (1) the employer failed to instruct an employee who was assigned to empty a vat containing scalding liquid not to open the release valve before the liquid cooled; and that, (2) the probable consequence of opening the valve while the liquid was scalding hot was being blasted by a stream of the hot liquid and severely burned. No comparable evidence of specific focus was presented in this case.

For these reasons, the Board agrees with the ALJ’s finding that the Division failed to prove it substantially probable that Employer’s lack of a formal, written Hazard Communication Program could result in death or serious physical harm. That being an essential element of the proof of a serious violation, it follows that the ALJ’s reduction of the violation’s classification and the proposed penalty reduction are supported by substantial evidence. Accordingly, the Board affirms the ALJ’s ruling.

DECISION AFTER RECONSIDERATION

The ALJ's decision is reinstated and affirmed.

JAMES P. GAZDECKI, Chairman
BILL DUPLISSEA, Member
OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
SIGNED AND DATED AT SACRAMENTO, CALIFORNIA – October 29, 1999