STATE OF CALIFORNIA
OCCUPATIONAL SAFETY AND HEALTH
In the Matter of the Appeal of:
LOS ANGELES COUNTY
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 (the Division), makes the following decision after reconsideration.
Jose Aguilera, employed by the Los Angeles County Department of Public Works (Employer) as a "Student Worker", was fatally injured on February 16, 1996. The Division investigated the accident and issued to Employer, a governmental entity1, Citation No. 1, Item 2 alleging a general violation of section 3203(a)2 [Injury and Illness Prevention Program (IIPP) safety training] of the occupational safety and health standards and orders found in Title 8 of the California Code of Regulations3.
Employer filed a timely appeal contesting the existence and classification of the alleged violation, and the reasonableness of both the abatement requirements.
This matter came on regularly for hearing before an Administrative Law Judge (ALJ) of the Board, in Los Angeles, California. Robert Peterson, attorney, represented Employer. Albert C. Cardenas, staff counsel, represented the Division.
On July 10, 2000, a decision was issued granting Employers appeal. On August 11, 2000, the Division petitioned the Board for reconsideration of the ALJ's decision. On September 7, 2000, Employer answered the Divisions petition. On September 13, 2000, the Board issued an order granting the Division's petition and staying the ALJ's decision pending reconsideration.
Did the evidence establish a violation of section 3203(a)(7)(C)?
Aguilera worked for Employer for approximately eight years before the accident. At all times, he was classified as a "Student Worker." The "Class Specification" for that job title defines a Student Worker as one who "performs clerical, typing, and other routine duties in order to obtain practical work experience while enrolled as a student in school." The "Training and Experience" under "Minimum Requirements" for the position state that a Student Worker must be "current[ly] enroll[ed] in an accredited college, community college, or business college, or as a senior in high school." All of the examples of Student Worker duties listed in the Class Specification are clerical or administrative in nature. Employer's Safety Officer, Barbara Knighton, testified that the light and signal replacement work Aguilera was performing at the time of the accident was within the Student Worker Class Specification as "other routine duties" that enabled him "to obtain practical work experience" while still a student.
Aguilera was first assigned to the light and signal replacement crew approximately one year before his accident and, thereafter, worked on the crew periodically until his death. He was working on the crew on February 16, 1996 when the signal arm on a crane held traffic signal and street light standard (pole) he was attempting to steer into mounting position contacted an overhead high-voltage line.
Investigating compliance officer Richard Eslava (Eslava) testified that the work of the light and signal replacement crew exposed crewmembers to the hazard of accidental contact with energized high-voltage conductors and parts that were on or under the ground, in addition to those overhead. The citation was based upon the Division's determination that Employer assigned Aguilera to the light and signal replacement crew without training him about the hazards of working around energized high-voltage conductors.
Eslava reviewed Employer's safety training records. They indicated that Aguilera attended several weekly "tailgate" safety meetings but that none of the meetings pertained to the hazards of working around high voltage conductors. In making his investigative findings, Eslava did not consider any informal, on-the-job, safety training that Aguilera may have received. His investigation revealed that the other three employees on the crew had been adequately trained.
Crew chief Larry Cardona testified that he had attended a few tailgate safety meetings with Aguilera. At the brief meetings, Employer provided information increasing employee awareness of various hazards but did not provide employees with specific training. Cardona added that Employer had provided him with no "formal" training on high-voltage hazards until after Aguilera's accident and that he had learned about the hazards from journeyman electricians as he worked his way up from laborer to supervisor.
FINDINGS AND REASONS
DECISION AFTER RECONSIDERATION
The Evidence Established a Violation of Section 3203(a)(7)(C).
A. Enforcement of section 2946(a) does not preclude enforcement of section 3203(a)(7)(C).
Employer alleges that the citation for a violation of section 3203(a)(7)(C) should be dismissed because the ALJ determined that it was duplicative of a citation issued for a violation of section 2946(a) and that citation should take precedence. Section 2946 is within Article 37 of the high-voltage Electrical Safety Orders. Both the section and article are entitled, "Provisions for Preventing Accidents Due to Proximity to Overhead Lines." Section 2946(a) reads as follows:
(a) General. No person, firm, or corporation, or agent of same, shall require or permit any employee to perform any function in proximity to energized high-voltage lines; to enter upon any land, building, or other premises and there engage in any excavation, demolition, construction, repair, or other operation; or to erect, install, operate, or store in or upon such premises any tools, machinery, equipment, materials, or structures (including scaffolding, house moving, well drilling, pile driving, or hoisting equipment) unless and until danger from accidental contact with said high-voltage lines has been effectively guarded against.
The description of the violation of section 2946(a) states that, "This accident was a result of a light standard touching an unguarded high voltage line, that was still energized." Employer withdrew its appeal from that citation.
The citation, which is under reconsideration here, alleges a general violation of section 3203(a) that the Division has indicated was intended to allege, more specifically, a violation of section 3203(a)(7)(C). That subsection requires employers to "provide training and instruction to all employees given new job assignments for which training has not previously been received ."
The description of the violation states that "[t]he deceased employee's job description is for a clerical person, and training records indicate that the rest of the team was trained and working within their job descriptions, but not the deceased."
In Morrison Building Materials, Cal/OSHA App., 94-278, Decision After Reconsideration (Nov. 19, 1998), a new employee assigned to empty wood scrap from a box near a power-driven circular crosscut table saw, fell toward the saw while he was bending over to pick up the box. His hand accidentally contacted the cutting edge of the blade, causing serious injury. The Division cited the employer because a hood guard did not cover the saw blade "to at least the depth of the teeth", as required by section 4302(a). The Board found that the Division had proved that the saw blade was not guarded in accordance with section 4302(a) and upheld that citation.
The Division also cited the employer under section 3203(a)(7)(C) for not training the employee either to stand behind a waist high barrier that was in front of the saw or to turn the saw off when emptying the box. The Board granted the employer's appeal from that citation. In its reasoning, the Board stated that "instruction or training cannot be substituted for a machine guard required by the safety order (Bethlehem Steel Corporation, Cal/OSHA App., 78-723, Decision After Reconsideration (Aug. 17, 1984); Belwin Cleaners, Cal/OSHA App. 82-089, Decision After Reconsideration (Dec. 20, 1985); City of Los Angeles, Dept. of Public Works, Cal/OSHA App. 85-958, Decision After Reconsideration (Dec. 31, 1986).) [and] training the employee to de-energize the saw and not to stand behind the barrier in front of it are not the protective equivalent of covering the teeth of the blade with the self-adjusting hood guard required by section 4302(a)." (Morrison, supra, p. 3.)
In Morrison Building Materials, supra, the Board relied on the "well settled rule that when a specific and a general safety order apply to the same hazardous condition, and the provisions of the safety orders are inconsistent, the specific safety order takes precedence, and only a violation of it may be sustained. (Pacific Airmotive Corp., Inc., Cal/OSHA App. 79-247, Decision After Reconsideration (Sept. 28, 1981); Star-Kist Foods, Inc., Cal/OSHA App. 83-781, Decision After Reconsideration (Oct. 16, 1987).)." (Morrison, supra, p. 4.) The training proposed by the Division and the blade guards required by section 4302(a) pertained to the same hazard of accidental contact with power driven saw blades. Section 4302(a) specifically and effectively provided protection against that hazard while the training measures the Division proposed provided different and "more general and less effective protection" (Morrison, supra, p. 4.), that was inconsistent with the installation of a blade guard. Because compliance with section 4302(a) would fully abate the hazard and obviate the need for the proposed training, the Board concluded that the citation alleging the training violation was "duplicative and superfluous" (Morrison, supra, p. 4.) and dismissed it.
This case is distinguishable from Morrison. Morrison dealt with protection against accidental contact with a hazard presented solely by the exposed portion of a circular saw blade. Commonly, employees can be protected against hazards so limited in nature, size and location by the installation of a barrier, cover or shield (positive protection) type guard4, like the hood covering the teeth of a saw blade required by section 4302(a). Once a saw blade is covered with a positive protection guard, employees working or walking near the saw while it is in service and performing a sawing operation are effectively protected against the hazard.
Under those circumstances, present in Morrison, additional measures are truly "superfluous." Asking employees who happen to work or walk by a table saw to stop and de-energize the saw every time they do is an ineffective and impermissible substitute for compliance with section 4302(a). Appropriately, that type of protection is required by section 3314(a) when a machine with hazardous moving parts is taken out of operation or service temporarily so an employee can intentionally reach into the machine to clean, service or adjust it5.
The other training measure the Division proposed in Morrison, that the employee assigned to empty the scrap basket under the saw's point of operation lean over a railing to do so, would not provide the positive guard protection required by section 4302(a) either. Hence, enforcement of the training violation alleged in Morrison would have had the confusing and potentially dangerous effect of instructing employees to follow practices that would not provide the level of protection mandated by section 4302(a), the order specific to circular saw blade guards.
The employee training sought by Division enforcement of section 3203(a)(7)(C) in this case is unlike the potentially safety-detrimental "excess baggage" proposed in Morrison. Traffic signals and streetlights are electrical devices. They are installed at or about streets and street intersections that often are crowded with a variety of other overhead and underground high-voltage hazards. Thus, the hazards that employees who work on traffic signals and streetlights encounter at an intersection are not of the discreet and localized type that can be abated effectively by installing a positive protection guard or cover. As protection against those hazards, section 2946(a) imposes the general prohibition that an employer may not allow an employee to work near energized high-voltage lines, " unless and until danger from accidental contact with said high-voltage lines has been effectively guarded against."
This demonstrates the Standards Boards recognition of the fact that there is no simple, single positive protective means of guarding employees who work in the vicinity of high-voltage lines against accidental contact. Whether that danger "has been effectively guarded against" in any case depends, e.g., upon accurate and thorough hazard assessment, an effective guarding plan, the availability of proper safety equipment and materials, and effective training and supervision.
At a worksite of this type there is a need to train newly assigned employees to detect and avoid electrical hazards that may have been missed due to human error or unusual circumstances and to understand and follow the measures directed by the employer, including how and when to use safety equipment that may be required, e.g., insulated gloves and blankets and non-conductive extension tools. Such training is neither superfluous nor in derogation of the section 2946(a) general prohibition against allowing employees to work around high-voltage lines that are not effectively guarded. To the contrary, training in this case was essential to the effectiveness of the guarding means provided, and compliance with section 3203(a)(7)(C) accomplishes that purpose.
The same considerations are germane to the contention that the specific protective requirements of section 2946(a) take precedence over the general training requirements of section 3203(a)(7)(C) and make them unenforceable. That doctrine is grounded in the section 1502(b) mandate that, at construction worksites, the Construction Safety Orders, " take precedence over any other general orders that are inconsistent with them .", and the similar mandate in section 3202(a) of the General Industry Safety Orders that " [orders] applying to certain industries, occupations or employments exclusively, in which like conditions and hazards exist take precedence whenever they are inconsistent with [other] General Industry Safety Orders ." Under both sections, a specific safety order takes precedence over a general one only if they are inconsistent. (See, e.g., Pacific Gas & Electric Company, Cal/OSHA App. 82-1102, Decision After Reconsideration (Dec. 24, 1986), Northern California Anthes, Inc., Cal/OSHA App. 85-1085, Decision After Reconsideration (Dec. 31, 1986), and Ayoob & Perry, Cal/OSHA App. 86-937, Decision After Reconsideration (May 18, 1987), upholding citations where there was no inconsistency between the cited safety order and the order asserted to be more specific or applicable by the cited employer.)
Since section 3203(a)(7)(C) has protective value that complements rather than conflicts with section 2946(a), we find that the Division's enforcement of section 2946(a) is not inconsistent with section 3203(a)(7)(C).
B. The citation was not issued more than six months after the occurrence of the alleged violation.
Labor Code section 6317 provides in part that, "[n]o citation or notice shall be issued by the division for a given violation or violations after six months have elapsed since occurrence of the violation."
The unrefuted testimony of crew chief Cardona established that whenever Aguilera worked on his light and signal replacement crew, Aguilera did the same type of work he was doing at the accident site and was exposed to the same sorts of hazards. Cardona's testimony also established that Aguilera was first assigned to work on his crew approximately one year before the accident. The Division opened its investigation of the accident on February 16, 1996, the day the accident happened, and issued the citation on August 14, 1996, approximately 1½ years after Aguilera's initial assignment to the crew.
As clarified by the Division at the hearing, the citation alleges a violation of section 3203(a)(7)(C), which requires employers to "provide training and instruction to all employees given new job assignments for which training has not previously been received ." (Emphasis added.)
Employer contends that even if it did violate section 3203(a)(7)(C) by not properly training Aguilera about the hazards he might encounter while assigned to light and signal replacement work, enforcement of the citation is barred by Labor Code section 6317 because the duty to train arose and the violation occurred when Aguilera was given that "new job assignment", approximately 1½ years before the citation was issued.
As authority for the proposition that the "occurrence of the violation" was complete and the six months citation issuance period began to run the first day Aguilera did light and signal replacement work without training, Employer cites Sierra Wes Drywall, Inc., Cal/OSHA App. 94-1071, Decision After Reconsideration (Nov. 18, 1998).
In Sierra Wes Drywall, a drywall finisher who had been employed by the employer for two weeks without being provided safety training, used a scaffold as a ladder base. While he was on the ladder the scaffold came apart, he fell, and was injured. The accident occurred on October 27, 1993. Six months and eight days after the accident the Division issued the employer Citation No. 1 that alleged a general violation of section 3203(a)(7)(C) for failing to train the injured employee about ladder safety before assigning him work on the day of the accident that involved ladder use. The Division also issued Citation No. 2 alleging that section 1675(j) had been violated because the ladder was not secured when the accident happened. No evidence was presented at the hearing to prove that the injured employee was exposed to failure-to-train or unsecured ladder hazards after the accident.
The citations were upheld by a Board ALJ and Sierra Wes Drywall petitioned for reconsideration on the ground that the Division had issued them more than six months after the violations occurred.
The Board found that that the violations "occurred" on October 27, 1993, the day of the accident, and held that the citations were invalid under Labor Code section 6317 because the Division issued them more than six months thereafter.
In Sierra Wes Drywall, "[T]he Division [made] no claim that Employer failed to report the injury within the 24-hour period then prescribed by section 342(a)" (Supra, p. 5.), and the record contains no evidence that the injured employee resumed working for the employer after the accident and continued to use ladders without training. Upon that record, we agree that the violations ceased to occur on the day of the accident, that the six month statute of limitations began to run that day, and that the citations were invalid because they were issued eight days after it expired. 6
There is a significant and material factual difference between the instant case and Sierra Wes Drywall that leads us to conclude that enforcement of this citation is not time barred. The difference is that the record in this case shows that Aguilera continued to perform the "new job assignment" of light and signal replacement work without the safety training required by section 3203(a)(7)(C) until he died doing that work on February 16, 1996, and that the citation was issued within six months of that date.
In our view, the "occurrence" of the violation in this case continued until February 16, 1996, because until then Aguilera remained untrained and continued to do work that exposed him to high-voltage hazards that training could have protected him against.
The interpretation of the word "occurrence" for OSHA statute of limitation purposes is not new. Section 9(c) of the federal Occupational Safety and Health Act of 1970 (29 USC 658(c)) states, that "No citation may be issued under this section after the expiration of six months following the occurrence of any violation." (Emphasis added.) And, the federal Occupational Safety and Health Review Commission (Review Commission) has so interpreted "occurrence", for purposes of Section 9(c), for more than twenty years.
Central of Georgia Railroad, OSHRC Docket No. 11742, 1977--1978 OSHD, ¶ 21,688, April 5, 1977, is a leading case in point. It arose when the Secretary of Labor cited the employer for not keeping a railroad car loading and unloading facility on a customer's premises free of hazards to safe walking and to the safe climbing of metal ladders on railroad cars. Another employer created the hazards more than six months before the Secretary cited the railroad.
In its petition to the Review Commission for review of an ALJ decision upholding the citation, the employer argued that the citation had to be vacated under Section 9(c) because it was issued more than six months after the violation occurred.
The Review Commission characterized and rejected the employer's argument as follows:
Respondent [the employer] also argues that the alleged violation 'occurred' more than six months before issuance of the citation and that vacation of the citation is therefore mandated by section 9(c) of the Act. In respondent's view, a violation 'occurs' at the time that the violative conditions first come into existence. Therefore, it is argued, because the conditions forming the basis of the citation in this case were admittedly in existence for more than six months prior to the issuance of the citation, the citation is unenforceable. This argument is without merit.
For section 9(c) purposes, a violation of section 5(a)(2) of the Act 'occurs' whenever an applicable occupational safety and health standard is not complied with and an employee has access to the resulting zone of danger. Therefore, it is of no moment that a violation first occurred more than six months before the issuance of a citation, so long as the instances of noncompliance and employee access providing the basis for the contested citation, occurred within six months of the citation's issuance. The citation in the present case alleged that a violation occurred on October 30, 1974. The citation was issued less than two months after this date. Clearly, the requirements of section 9(c) have been met.
The Review Commission has applied the "continuing violation" rule to record keeping and duty to inform violations as well.
In Johnson Controls, Inc., OSHRC Docket No. 89-2614, 1993 OSHD, ¶ 29,9537, the Review Commission upheld a citation alleging a violation of the employer's duty to record all occupational injuries and illnesses on the OSHA Form 200 log and summary, even though the offending omission, brought about by removal of an existing entry, took place more than six months before the citation was issued. The employer invoked section 9(c), arguing that the alleged violation was a "discrete", nonrecurring event that did not continue to be enacted once the entry was removed. The Review Commission rejected that argument and, relying on Central of Georgia Railroad, supra, found and concluded:
Just as a condition that does not comply with a standard issued under the Act violates the Act until it is abated, an inaccurate entry on an OSHA form 200 violates the Act until it is corrected, or until the 5-year retention requirement expires.
* * * * *
We therefore conclude that an uncorrected error or omission in an employer's OSHA-required injury records may be cited six months from the time the Secretary does discover, or reasonably should have discovered, the facts necessary to issue a citation.
In Southern Nuclear Operating Company, Inc., OSHRC Docket No. 97-1450,
1999 OSHD ¶ 31,890, the employer failed to determine if building materials
containing or potentially containing asbestos might be disturbed and failed
to notify employees of what was determined before the employees began working,
as is required by the federal communication of hazard standards. When the Secretary
cited the employer for the violations more than six months had passed since
the work began and the hazard communication duties arose but employees had worked
on the project during the six months preceding issuance of the citations.
Applying Central of Georgia Railroad and subsequent consistent decisions, the Review Commission held that Section 9(c) did not bar enforcement of the citations. In its decision, the Review Commission reiterates that, "For the purposes of section 9(c), the important date is the last day on which employees have access to the zone of danger" and reiterates its rejection of "the argument that the date of violation from which the six-month period begins to run is the date on which the violative condition first came into existence." Then it affirms the rule that:
The violative condition may have existed for years prior to the six-month time frame. However, in order for the citation to be timely, the violation must still exist during the six-month period prior to the issuance of the citation.
In key respects, Southern Nuclear Operating Company, Inc. and this case are substantially similar. In both, the cited safety orders require employers to provide employees with work hazard information before the employees begin doing the work, the required information was not provided before the work began or thereafter, the citations were issued more than six months after the duty arose and was first breached when the work began, and an employee or employees continued to perform the work, without benefit of the hazard information, until less than six months before the citations were issued.
The Review Commission's interpretation of "occurrence" for purposes of the fed/OSHA six month statute of limitation period on the issuance of citations and their application of that interpretation in Southern Nuclear Operating Company, Inc. and the other cited cases, are consistent with the central purpose of the federal and California Acts which is to provide employees with safe and healthful employment and places of employment. We concur in the Review Commission's determination that this interpretation of "occurrence" does not undermine the purposes of the six months limitation. The Division must prove that the violation existed within that period.
In Vial v. California Occupational Safety & Health Appeals Bd. (1977) 75 Cal. App. 3d 997, an ALJ dismissed a citation the Division issued two months after a fatal work accident on the ground that the citation had not been issued "with reasonable promptness" as required by Labor Code section 6317. The employer presented no evidence to prove that it had been prejudiced by the delay but the Appeals Board upheld the dismissal. The Division's petition for Writ of Mandate was rejected by the superior court and the Division petitioned the appellate court for relief.
The appellate court held, "that a citation issued within six months of the inspection is deemed issued with reasonable promptness, unless the employer demonstrates prejudice by any delay" (Ibid, p. 1005.) and reversed the superior court's judgment.
The court's reasoning in Vial, though not based upon identical facts and law, is instructive in this case. There, at pp. 1004-1005, the court stated:
It is a perverted sense of justice which punishes the enforcer of a law by permitting its violator to go free. Such is the effect of the Board's rule. While it may have the incidental effect of encouraging more prompt enforcement action, its primary, immediate and self-defeating effect is to thwart the objectives of Cal/OSHA and to frustrate and dishearten its enforcement personnel, who often, as in this case, may be unable logistically to proceed with the desired alacrity. The losers under such a rule are the members of the class (workers) whom Cal/OSHA is specifically intended to protect; the winners are the offenders. Such a highly distasteful and anomalous result is impermissible.
Far preferable and consistent with the achievement of Cal/OSHA's objectives is the rule advocated by plaintiffs. The state law intends to provide a state occupational [health] and safety program 'as effective as' the federal program [Citation omitted.]. Inasmuch as no corrective action need be taken absent a citation, Cal/OSHA's commendable purpose of abatement of work hazards will best be served by acceptance and adoption of the modern and more effective federal rule.
In our view, the court's reasons for adopting the federal "reasonable promptness" rule support, with equal force, adoption of the federal interpretation of "occurrence" for purposes of Labor Code section 6317. Accordingly, we adopt that interpretation, and hold that regardless of when a violation is initiated, its "occurrence" continues until it is corrected, or the Division discovers the violation or the duty to comply with the violated requirement ceases to exist. It follows that the Labor Code section 6317 six-month time limit on issuing a citation does not begin to run until, as described above, occurrence of the violation ceases.
Applying that rule to the facts of this case, the alleged training violation for which Employer was cited continued to occur until Aguilera suffered his fatal work injury on February 16, 1996, unless the occurrence was terminated earlier by one of the specified means.
Employer argues that, even if it is found that Employer did not provide Aguilera with "training and instruction" on his "new job assignment", the violation was abated and ceased to occur more than six months before the citation was issued because Employer provided informal, on-the-job training and instruction and "tail-gate" safety meetings attended by Aguilera. If Employer had proven that, through those means, Aguilera's exposure to the alleged lack of training hazard ended more than six months before the citation was issued, we might agree.
The evidence does not support Employers contention. Section 3203(b)(2) directs employers to document and retain for one-year, records of the "safety and health training required by subsection (a)(7) for each employee, including employee name or other identifier, training dates, type(s) of training, and training providers." Employer produced no records indicating that Aguilera had ever been trained about the hazard of accidental contact with high-voltage lines to which his new job assignment exposed him and the means of avoiding or minimizing the hazard through, e.g., use of proper protective equipment. Additionally, the effectiveness of the unrecorded on-the-job training that Aguilera received was placed in doubt by crew chief Cardona's admission that he, himself, learned his job through on-the-job training from other journeyman electricians and received no formal training from employer regarding working around high-voltage lines until after Aguilera's death. For these reasons, it is found that the alleged violation was not abated by the training Aguilera received more than six months before the Division issued the citation.
The unrefuted testimony of Division inspector Eslava established that the Division did not learn of the alleged training deficiency until Eslava interviewed witnesses and inspected Employer's training records on or after February 16, 1996, when Eslava initiated his investigation immediately after the accident. The Division was under no statutory or regulatory mandate to inquire into the extent of Aguilera's high-voltage training during the year he was exposed to that hazard before the accident. Furthermore, the Division had many other required enforcement duties, such as investigation of the causes of serious injury and fatal accidents (Labor Code §6313(a)) that would take precedence. Accordingly, it is found that the Division could not have learned of the alleged violation before Eslava's investigation by exercising reasonable diligence.
Finally, section 3203(a)(7)(C) has not been amended or repealed to relieve employers of the duty to provide employees with training and instruction on how to perform new job assignments safely. Hence, the duty Employer allegedly violated did not, by that means, cease to exist more than six months before the citation issued.
For the above reasons, it is found that the alleged violation of section 3203(a)(7)(C) continued to occur until Aguilera's exposure to it was terminated by his death on February 16, 1996. Since the citation was issued within six months of the date of the alleged violations last occurrence, the citation was issued within the time limit prescribed by Labor Code section 6317 and, therefore, enforceable.
C. Employer did not provide Aguilera with new job assignment training required by section 3203(a)(7)(C).
The citation alleges, that "training records indicate that the rest of the team was trained and working within their job descriptions, but not [Aguilera]." Inspector Eslava testified that he asked Employer to produce the documentation of safety training for the four employees working on the light and signal replacement crew at the time of the accident that Employer was required to maintain by section 3203(b)(2), and that Employer complied. Eslava also testified that he reviewed the records and found documented training for the three other employees on how to deal safely with accidental contact with high-voltage line hazards but none for Aguilera. Employer did not refute Eslava's testimony or offer documentary proof that Aguilera had been so trained. Eslava's testimony is credited.
The purpose of section 3203(b)(2) is to establish a means for employers to have readily accessible proof that they have complied with the section 3203(a)(7)(C) training requirements.
Since Employer provided Eslava with training records pertaining to all members of the crew, it is inferred that it was Employer's practice to document employee safety training in compliance with section 3203(b)(2). Employer's safety officer sent the records to the Division in response to a request made by Eslava in exercise of the Division's duty to investigate fatal work accidents (Labor Code § 6313(a); and see Labor Code section 6314(a)).
The circumstances under which the records were provided by Employer's safety officer, the absence of evidence tending to prove that Employer did not maintain the provided records in accordance with the strict and thorough requirements of section 3203(b)(2), and the severe potential consequences of not maintaining accurate training records, furnish "a trustworthy indication that [undocumented training] "did not occur." (See Evidence Code §1272(b)).
For these reasons, we find that the absence from Employer's records of documentation of high-voltage hazard training for Aguilera is prima facie evidence of the fact that the training did not occur. Moreover, as discussed above, crew chief Cardona's testimony that he had worked for Employer for 23 years and received no formal high-voltage safety training from Employer until after Aguilera's accident, supports the inference that Cardona was not fully qualified to provide the undocumented on-the-job safety training that Aguilera received. Accordingly, we find that Employer did not provide Aguilera with the high-voltage safety training required by section 3203(a)(7)(C) for his new assignment to the light and signal replacement crew at any time before his fatal accident on February 16, 1996.
D. Even though Aguilera was the only employee working on the light and signal replacement crew when the accident occurred who was found not to have been adequately trained on high-voltage safety, a violation of section 3203(a)(7)(C) was established.
Pursuant to section 3203(a)(7)(C), every employer must "establish, implement and maintain an effective [written] Injury and Illness Prevention Program (IIPP) [that] "provide[s] training and instruction to all employees given new job assignments for which training has not previously been received."
The Division did not allege or prove that Employer lacked an IIPP or that its written IIPP failed to include the provision that employees given new job assignments were to receive safety training.
Aguilera was one of four employees, including crew chief Cardona, working on the light and signal replacement crew. The citation alleges that, "The deceased employee's job description is for a clerical person, and training records indicate that the rest of the team was trained and working within their job descriptions, but not the deceased." This is consistent with Inspector Eslava's testimony that based upon his inspection, he concluded that, of the four, only Aguilera had not been adequately trained on high-voltage safety.
This raises the question of whether, under these facts, proof that only Aguilera was not safety trained, is sufficient to prove that Employer was not "implementing and maintaining" an effective program for providing "all employees" with "new job assignment" safety training.
Employer alleges that even if absolutely no formal or informal training were provided to Mr. Aguilera regarding the hazards of working near energized high voltage lines, such would not constitute a failure to establish, implement, or maintain an effective IIPP.
We find that the severity of the hazard to which a lack of high-voltage safety training exposed Aguilera, his consistent exposure to the hazard when working on the light and signal replacement crew, and the yearlong occurrence of the violation, demonstrate a significant breach of Employer's duty to implement and maintain the "new job assignment" training component of its IIPP. We conclude, therefore, that the Division proved a general violation of section 3203(a)(7)(C) and deny Employer's appeal.
DECISION AFTER RECONSIDERATION
The portion of the ALJ decision issued in this matter on July 10, 2000, granting Employer's appeal from Citation 1, Item 2 is reversed. Employer's appeal from Citation 1, Item 2 is denied.
MARCY V. SAUNDERS, Member
GERALD P. O'HARA, Member
OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: April 5, 2002
1 In 1996, when the violations
were alleged to have occurred, Labor Code section 6434 provided that civil penalties
could not be assessed against governmental entities. Hence, no penalties were
proposed or assessed. By amendment effective October 7, 2000, the exemption
2 At the hearing the Division's inspecting compliance officer testified that the general reference to section 3203(a) was intended to allege a violation of one of its subsections, section 3203(a)(7)(C), that requires employers to train employees given new job assignments.
3 Unless otherwise indicated, all references are to sections of Title 8 of the California Code of Regulations.
4 By making it practically impossible for an employee who enters the zone of danger while the saw is operating to contact the blade accidentally, an effective positive protection guard provides the great safety benefit of eliminating human error as a potential cause of injury.
5 Section 3314(b) requires additional lock-out/tag-out protection during machine repair operations.
6 The Board did not interpret "occurrence" in Sierra Wes Drywall, but to the extent that decision may be read to state or imply that the federal Occupational Safety and Health Review Commission has not adhered to the "continuing violation" interpretation of that word for many years, as discussed hereinafter, Sierra Wes Drywall is wrong. To the extent that Sierra Wes Drywall or any other previous Board Decision After Reconsideration is or may be viewed as being inconsistent with our interpretation of "occurrence" in this decision, it is hereby overruled.
7 See also, General Dynamics Corp., Quonset Point Facility, 1991-1993 OSHD ¶ 29,952 upholding citations for injury and illness record keeping violations issued more than six months after the violative entries and omissions were made.