BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

 

In the Matter of the Appeal of:

RFG OIL, INC.

5051 La Jolla Boulevard, Suite 311

San Diego, CA 92109

                              Employer

 

 

Docket No.

96-R3D5-1663

 

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 reconsideration1 filed in the above entitled matter by RFG Oil, Inc. (Employer), makes the following decision after reconsideration.

JURISDICTION

Employer operates a quick lube and oil change business. Between April 19 and May 3, 1996, the Division of Occupational Safety and Health (the Division) conducted a complaint inspection at a place of employment maintained by Employer at 29519 South Western Avenue, Rancho Palos Verdes, California (the site) through Compliance Officer Nirmalenda Paul.

On May 10, 1996, the Division issued to Employer a citation for a serious violation of section 3212(a)(1)2 [unguarded floor openings] with a proposed civil penalty of $935.

Employer filed a timely appeal contesting the existence and classification of the alleged violation.

This matter came on regularly for hearing before Ashaki A. Hesson, Administrative Law Judge (ALJ) of the Board, in Torrance, California. Jeffrey P. Gong, Company Vice President, represented Employer. Staff Counsel Leonard Strom, represented the Division. Oral and documentary evidence was presented at the hearing and the matter was submitted. On December 15, 1998, a decision was issued by the ALJ finding a serious violation and assessing a civil penalty of $935.

Employer filed a timely petition for reconsideration on January 19, 1999. The Division filed an answer on February 3, 1999 and the Board granted the petition on March 2, 1999.

EVIDENCE

Employer was cited for a serious violation of section 3212(a)(1) because floor openings between upper and lower levels used for oil changes were not guarded by covers and there was no barricade to prevent employees from falling through the 37 inch wide, 9 foot deep hole.

Paul, the Division's Compliance Officer cited Employer for a serious violation because of the depth from the top of the opening on the upper floor to the lower floor and because of the likelihood that an employee who falls nine feet would be seriously injured.

Paul testified that two cars can be brought in on the ground level over a rectangular floor opening for oil changes and lubrication. There is a raised platform on the lower level from which employees work on cars.

Store manager Jorge Solis testified for Employer that there is always an employee on the upper level. A yellow grate cover is pulled up when short compact cars are being serviced to cover the remainder of the opening. Triangular signs posted at all entrances and openings of the shop read: "Caution-Floor opening". Ordinarily there is a waist high rope at every bay door that is only removed when a car is pulled in over one of the open pits. Solis' safety responsibilities include showing a safety training tape to employees that warns them not to be on the lower level while vehicles are moving in and out. In addition, Employer's safety manual addresses the safety of employees working in the pit area.

On cross-examination, Solis stated the metal grating does not cover the entire pit and is only used when cars are over a portion of the open pits. The ropes at the bay entrances are placed there to warn customers of the potential dangers. All employees wear oil resistant shoes that help reduce, although not eliminate, the possibility of slip and fall accidents around the open areas. Employer relies on a safety video and a manual to further warn employees of the dangers associated with the exposed area. In Solis’ opinion, if the areas were covered, it would make the work more difficult and messy. Solis also opined that employees would have to bend over to stock shelves if the pits were completely covered at the top. There are rear sliding grate covers which further cover, but do not fully obstruct the openings.

Vice President Jeffrey Gong testified for Employer that there is ample training in place to negate the need to fully cover the open pits. He testified that chains or other guarding methods would increase the time it takes to complete the jobs. Sliding steel and bay nets are available but there is not enough space in existing shops for them to be practical. There have been no fall accidents at this location. Bright lights on the lower level are positioned to shine upward and the 1-1/2-inch yellow toe boards act as constant reminders of the openings. In his opinion, there is little possibility that employees will fall through the openings since there are cars coming in and out all day long.

On cross-examination, Gong testified that the safety video is shown to new employees at hire and at 6-month intervals thereafter. During a normal business day, there are four employees working on the top level and one on the lower level.

ISSUE

Did Employer fully guard the floor openings between the upper and lower levels of the oil change pits?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

Employer was cited for section 3212(a)(1) which reads as follows:

(a)(1) Every floor opening shall be guarded by a cover, a guardrail, or equivalent on all open sides (except at entrance to stairway or ladder way). While the cover is not in place, the floor opening shall be constantly attended by someone or shall be protected by guardrails. Toeboards shall be installed around the edges at permanent floor openings where persons may pass below the opening.

Employer contends that the evidence does not support a finding that it violated section 3212(a)(1) because:

1. All pit openings are covered by vehicles over 75% of the time;
2. No injury has resulted in over 7 years of operation;
3. The service area where the pits are located is restricted to employees only and warning signs are in place;
4. Service pit openings are illuminated, painted with “OSHA yellow” safety paint; and each opening is surrounded by a 2-1/2 inch tall toe guard.

The ALJ found and we concur that the Division established by a preponderance of the evidence that Employer’s place of business utilizes pits which are not physically barricaded to prevent employees from falling therein. While Employer argues that it never admitted that the openings over the lower pit area were not fully guarded, Employer admits in its petition that the pits are open at least 25% of the time when cars are not positioned over them.

Employer conceded at the hearing and in its petition for reconsideration that it did not have coverings for the pits. Employer relies on customers’ cars to provide barricade-type coverage 75% of the time.

Employer argues that since there was always an employee on the upper level, the area was attended to at all times as permitted by the safety order. In support of this contention Employer cites Northrop Corporation, OSHAB 82-364, Decision After Reconsideration (Jan. 17, 1986). However, Employer misconstrues that decision. In Northrop, we rejected the employer’s contention that the opening was attended merely because someone was on the upper level. We found that “attending” requires more than mere presence in the area; it requires that the person charged with attending the unguarded pit ‘fix the mind upon . . .to look after: take charge of: watch over….” workers in danger of falling into the unguarded area. Northrop employees on the upper level were engaged in other activities: talking and adjusting a spray gun, and we found that no employee was adequately attending the unguarded opening.

Employer argues that its employees were instructed regarding the open pits. However, there is no evidence in the record to show that any employee was assigned specifically to "constantly attend” the open pits. In this matter, like Northrop, employees were engaged in the servicing of cars and there was no one specifically assigned to watch for employees’ safety around the unguarded pits.

Employer further relies, unpersuasively, on General Motors Corp. OSHAB 80-1346, Decision After Reconsideration (Feb. 19, 1985). In that case we found that an open pit was only guarded on those infrequent occasions in which a conveyor belt was used to transport materials. When the employee in that case was hurt, the pit was open and the area around the pit was dark and unlighted. We found that the employer failed to establish that “its employee . . . was 'constantly attending' the opening so as to prevent falls.”

We find in this case that the evidence does not support Employer’s contention that the open pits were constantly guarded so as to prevent falls. Having an employee on top in a supervisory or working capacity does not equate to having an observer on the upper level to solely attend to employee safety.

Employer lastly relies on McClone Construction Company, OSHAB 90-147, Decision After Reconsideration (Jan. 29, 1991), wherein we noted that, “There must be some evidence that employees came within the zone of danger while performing work-related duties, pursuing personal activities during work, or employing normal means of ingress and egress to their work stations.” We find nothing in McClone that invalidates the ALJ decision in this case. Under these facts, employees were within a zone of danger while working in the oil change area. Under the facts which must be most liberally construed in Employer’s favor, employees were subjected to the hazard of falling into unguarded floor openings 25% of the time.

We disagree with Employer’s assertion that since cars are coming in and out all day long there is little possibility that employees will fall through the openings. Rather, we think it quite reasonable to assume that since employees work in the area and tend to these very cars that are coming in and out all day that there is a substantial risk that employees are exposed to unguarded floor openings and the risk of falling into the pits.

During the hearing, Employer did not dispute that a serious injury could result from a nine-foot fall into the pit. Employer argued that the installation of additional steel grating was impractical and would increase the time required to work on each vehicle. Employer also asserted that the semi-annual review of its safety video and manual, in view of the lack of fall accidents at its location, made fully guarding the floor openings unnecessary (Kaiser Sand and Gravel, 83-083 Decision After Reconsideration (Sept. 26, 1985).

When the Occupational Safety and Health Standards Board has determined that employee protection against a particular hazard must be provided by means of positive guarding or other safety devices, then admonitions, instructions and warnings are no substitute for proper guarding. (Bethlehem Steel Corporation, OSHAB 78-723, Decision After Reconsideration (Aug. 17, 1984).)

We see nothing in the facts or the record that warrants reversing the ALJ’s decision finding a violation of section 3212(a)(1). We find that the floor openings were unguarded and/or were not constantly attended.

DECISION AFTER RECONSIDERATION

The Board affirms the ALJ’s decision finding a serious violation of section 3212(a)(1) and assessing a $935 civil penalty.

MARCY V. SAUNDERS, Member
GERALD P. O’HARA, Member

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: June 4, 2001


1The caption of the Order Granting Petition for Reconsideration erroneously refers to Docket Nos. 96-R3D5-1662 and 1663. Because only Docket No. 96-R3D5-1663 is before the Board on reconsideration, the Board hereby amends the caption of the Order of Reconsideration to read Docket No. 96-R3D5-1663. This amendment relates back to the date of issuance of the Order Granting Petition for Reconsideration and is effective as of that date.
2 Unless otherwise specified all references are to sections of Title 8, California Code of Regulations.