BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

 

In the Matter of the Appeal of:

C.A. RASMUSSEN, INC.

2360 Shasta Way

Simi Valley, CA 93065

                              Employer

 

 

Docket No.

96-R3D2-3953 through 3955

and 3960 through 3962

 

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 matter by the Division of Occupational Safety and Health (the Division]) makes the following decision after reconsideration.

JURISDICTION

From November 14 through December 6, 1996, a representative of the Division conducted a complaint investigation at a place of employment maintained by C. A. Rasmussen, Inc. (Employer) at 4628 40th Street, San Diego, California (the site). On December 12, 1996, the Division issued to Employer citations alleging violations of the following sections1 with the accompanying proposed civil penalties:

Citation Item Section Violation Penalty
1 2 1516(a) General $185
    [eye & face protection]    
  3 1592(a) General $185
    [back-up warning alarm]    
2   1511(b) Serious $935
    [failure to perform safety survey]    
3   1621(a) Serious $935
    [missing railings]    
8   3999(b) Serious $935
    [unsecured head & tail pulleys]    
9   3999(e) Serious $90
    [unguarded chain drive]    
10   4070(a) Serious $90
    10 4070(a) Serious $90
[unguarded belt & pulley drive]
   

Employer filed a timely appeal contesting the existence and classification of the alleged violations and the reasonableness of both the abatement requirements and the proposed civil penalties.

A hearing was held before Ashaki A. Hesson, administrative law judge (ALJ), in West Covina, California. Robert D. Peterson, Attorney, represented Employer. Albert Cardenas, Staff Counsel, represented the Division.

On June 23, 1999, the ALJ issued a decision granting Employer's appeal from the above citations.

On July 28, 1999, the Division filed a petition for reconsideration. Employer filed an answer on August 30, 1999. The Board granted the Division’s petition on September 8, 1999.

EVIDENCE

Employer operated a rock crushing plant at a construction site where it was working on a portion of the Escondido Freeway project. Melvin Dunn [Dunn], the Division’s Compliance Engineer, testified that he made an inspection at that site on November 14, 1996. He further testified that the rock crushing plant was not operating at the time of the inspection. He said the job had been shut down the day before, and remained shut down on the day of the inspection. He testified that Dan Lincon [Lincon], Employer’s Project Superintendent, accompanied him on his inspection.

Docket 96-R3D2-3953
Citation 1, Items 2 and 3, General, Sections 1516(a) and 1592(a)

Dunn testified that he observed a front-end loader being operated by Mark Milezewski [Milezewski] who identified himself to Dunn as Employer’s employee. Dunn further testified that Lincon told him that the bucket on the front-end loader had a three-yard capacity. According to Dunn: the loader scoops up debris, dirt, and gravel, it transports it to a hopper called a “Gizzly” and dumps it on a grate. Dunn testified that there was no windshield on the front-end loader and that Milezewski was not wearing eye protection to guard against the hazard of airborne debris.

Dunn testified that he cited Employer for a violation of section 1516(a) because there was no windshield on the front-end loader and because Milezewski was not wearing eye protection. Dunn said that when he observed the front-end loader moving forward and in reverse at the job site it was not transporting debris. Dunn concluded that the operator of the front-end loader would come in contact with rocks and debris as he picked up construction material. Dunn did not base this conclusion upon any personal observations during the inspection.

Dunn also testified that he cited Employer for a violation of section 1592(a) because he heard no back-up alarm when the front-end loader was operated in reverse. His testimony did not describe, however, which employees, if any, were exposed to the hazard of the vehicle backing-up. Dunn said he did not ask Milezewski if there was a horn or other warning device.

ISSUES

1. Did the Division establish a violation of section 1516(a)?
2. Did the Division establish a violation of section 1592(a)?

FINDINGS AND REASONS FOR DECISION

1. The Division Failed to Establish a Violation of Section 1516(a).

Section 1516(a) provided at the time of the alleged violation2:

Employees working in locations where there is a risk of receiving eye injuries, such as punctures, abrasions, contusions, or burns as a result of contact with flying particles, hazardous substances, projections, or injurious light rays which are inherent in the work or environment, shall be safeguarded by means of face or eye protection. The employer shall provide and the employee shall use protection suitable for the exposure.

The Division has the burden of proving each element of its case by a preponderance of the evidence. Lee Bolin & Associates, OSHAB 80-720, Decision After Reconsideration (July 29, 1981).

The cited section does not require a windshield, but rather face and eye protection. Dunn did not observe the front-end loader moving construction debris. The evidence supporting the alleged violation comes from the description about the nature of the front-end loader’s operation provided to Dunn by Milezewski. During his testimony Dunn did not establish that the front-loader was used to load dirt, debris, or other items on November 14, 1996. In the absence of that testimony, we are left to speculate what Milezewski was doing on that date. No other evidence was presented to establish the alleged violation.

We find that the Division failed to present any evidence, other than hearsay and speculation by the Division’s inspector that established by a preponderance of the evidence that any employees working on the site were exposed to the risk of eye injury for failure to wear eye protection. A violation of section 1516(a) was not established.

2. The Division Failed to Establish a Violation of Section 1592(a).

Section 1592(a) provides:

Every vehicle with a haulage capacity of 2½cubic yards or more used to haul dirt, rock, concrete, or other construction material shall be equipped with a warning device that operates automatically while the vehicle is backing. The warning sound shall be of such magnitude that it will normally be audible from a distance of 200 feet and will sound immediately on backing. In congested areas or areas with high ambient noise which obscures the audible alarm, a signaler, in clear view of the operator, shall direct the backing operation.

To sustain this violation, it was necessary for the Division to prove that Employer’s haulage vehicle had a capacity of at least 2½ cubic yards and did not have an operating back-up alarm. The Division did establish that the vehicle was a haulage vehicle that could scoop three yards.

The Division also had to prove that there was employee exposure to the violative condition. (See, Moran Constructors, Inc., OSHAB 74-381, Decision After Reconsideration (Jan. 28, 1975).) To find “exposure,” there must be reliable proof that employees are endangered by an existing hazardous condition or circumstance. Huber, Hunt & Nichols, Inc., OSHAB 75-1182, Decision After Reconsideration (July 26,1977) [Emphasis in original].

The “protective purpose of the section [1592(a)] is to warn immediately every employee within the zone of danger of each backward movement of a vehicle subject to its requirements.” (Harbison-Mahony-Higgins, Inc., OSHAB 84-1131, Decision After Reconsideration (Mar. 14, 1986).) The “zone of danger” in so far as it relates to a vehicle subject to section 1592 is 200 feet in any direction. Thus, the vehicle is the starting point of a 200-foot radius that moves as the vehicle moves. As we noted in MCM Construction, Inc., OSHAB 92-514, Decision After Reconsideration (Aug. 7, 1995), “(t)he fact that the employees were not in a direct line behind the backing vehicle is of little moment, since the vehicle was capable of making a ‘wrong turn’.” Nor is it of any consequence that an employee felt he was a safe distance away since “(i)t is not a worker’s subjective state of mind, but the objective nature of the circumstances, e.g., location, work activity, configuration of the equipment, which properly determines employee exposure to a hazard.” Id.

Direct evidence of employee presence within a zone of danger is not necessary to prove employee exposure but may be proved by indirect evidence demonstrating that employee exposure was “more likely than not” to have occurred. Truestone Block, Inc. OSHAB 82-1280, Decision After Reconsideration (Nov. 27, 1985). A violation, however, may not be based on speculation, assumptions, or conjecture. Ford Motor Co., OSHAB 76-706, Decision After Reconsideration (Jul. 20, 1979).

In this case, no evidence was offered that employees were exposed to the hazard on November 14, 1996. The Division contends that it is reasonable to conclude that the hazard existed on other days when employees were present and exposed to the front-end loader operation. The Division did not offer proof that the front-end loader was not equipped with a functioning warning device at a time when employees were exposed to the hazard of a nonoperational backup alarm.

The Division failed to prove that any employee was ever within the 200-foot zone of danger of the backing front-end loader when the warning device did not sound. The warning device is a mechanism designed to warn all workers in the area that a haulage vehicle with at least a 2½ cubic yard capacity is backing-up. Employee exposure is not limited to Employer’s employees in this situation because we recognize that many employers have employees on a construction site and that the intent of the regulation is to warn anyone in the area. (See, e.g., Nicholson-Brown, Inc., OSHAB 77-024, Decision After Reconsideration (Dec. 20, 1979).)

Here, the facts show that the project was shut down on the date of the inspection and no workers other than Lincon and Milezewski were at the site. We don’t know why the job site was empty on a workday but that fact does not seem to be in dispute. Although Lincon, Employer’s project superintendent was present at the site on November 14, 1996, the date of the inspection, it was not established that he came within the zone of danger of the front-end loader on that date. Had there been any evidence that he or other workers had been within the zone of danger or reasonably could have been anticipated to have been within the zone of danger on November 14, 1996 while Milezewski operated the front-end loader, we would be prepared to rule differently.
No evidence was presented that any employees were exposed to the hazard. Based on the evidence presented, we cannot find, therefore, that a violation of section 1592(a) was established.

Docket 96-R3D2-3954
Citation 2, Serious, Section 1511(b)

The evidence showed that Dunn cited Employer for a serious violation of section 1511(b) because Employer did not make a thorough survey to determine predictable hazards to an employee cleaning debris from the sloping sides of the interior of a rock hopper. Dunn learned of the November 6, 1996 accident that occurred when Milezewski entered the hopper to loosen accumulated dirt. Dunn testified that Milezewski told him that when he entered the hopper a shelf of dirt came loose from the sides and buried him up to his thighs. Dunn further testified that Lincon confirmed that the accident had occurred.

Dunn concluded that Employer had not conducted a thorough survey that looked at predictable hazards because this accident had occurred and a thorough survey of conditions at the site would have discovered the danger of sending someone into the hopper to clean debris from the sloping sides. Dunn said he classified the violation as serious because the dirt that fell was up to Milezewski’s thighs and had there been two more feet of dirt it could have caused asphyxiation.

ISSUE

Did the Division establish a serious violation of section 1511(b)?

FINDINGS AND REASONS FOR DECISION

The Division Failed to Establish a Serious Violation of Section 1511(b).

Dunn identified two alleged hazards: (1) Employer should have provided a ladder for ingress and egress to and from the hopper, and (2) a rope or lanyard was necessary for the worker engaged in cleaning the area inside the hopper. Rather than issue citations for the specific unsafe conditions [or seek a Special Order, if no specific regulation applied] Dunn cited Employer for a failure to survey and identify the hazards. Although he made no direct inquiry as to whether a survey was conducted, he concluded from the November 6, 1996 accident involving Milezewski that Employer violated section 1511(b).

Section 1511(b) provides:

(b) Prior to the presence of its employees, the employer shall make a thorough survey of the conditions of the site to determine, so far as practicable, the predictable hazards to employees and the kind and extent of safeguards necessary to prosecute the work in a safe manner … .

A violation may not be based on speculation, assumption, or conjecture. (Ford Motor Co., supra).

We find that the evidence presented failed to establish that Employer did not survey potential hazards associated with cleaning the hopper because the conclusion made by the Division’s inspector was speculative. Dunn never asked Lincon or any one else whether Employer conducted a thorough survey to identify predictable hazards.

Therefore, because there was no evidence that Employer did not conduct a survey of the site to identify predictable hazards, we find that the Division did not establish a violation of section 1511(b).

Docket 96-R3D2-3955
Citation 3, Serious, Section 1621(a)

Dunn testified that he cited Employer for a serious violation of section 1621(a) because on November 14, 1996 there were missing end and top rails on a walkway platform on top of the rock crushing plant. Dunn said he measured the distance from the walkway to the ground at 10 feet. He classified the violation as serious because, in his opinion, there was a substantial probability of an employee sustaining a serious injury from a 10-foot fall. According to project superintendent Lincon, a mechanic was required to go up to the walkway platform before the operation to make sure that it was working and to check it during the rock crushing operation.

Docket 96-R3D2-3960
Citation 8, Serious, Section 3999(b)

Dunn testified that he cited Employer for a serious violation of section 3999(b) because on November 14, 1996 a conveyor belt at the rock crushing plant lacked guarding on the take-up drum to prevent employees from being caught in nip points. The conveyor moved material from one portion of the rock crushing plant to another but was not in operation on the day of the inspection. Dunn said he classified the violation as serious because it was possible that an employee could sustain an amputation if his hand were caught in the opening between the belt and the drum.

Docket 96-R3D2-3961
Citation 9, Serious, Section 3999(e)

Dunn testified that he cited Employer for a serious violation of section 3999(e) because on November 14, 1996 a conveyor system that moves dirt and rock to the upper portion of the rock crushing plant had an unguarded chain drive six-feet, six-inches above a catwalk. He did not observe any employees working in the area. In Dunn’s opinion, if the chain broke an employee on the catwalk could sustain an injury of anything from blunt trauma to head injury. According to Lincon, the chain is over a location that employees frequent.

Docket 96-D3D2-3962
Citation 10, Serious, Section 4070(a)

Dunn testified that he cited Employer for a serious violation of section 4070(a) because the pulley drive motor, which operated the internal crusher, on the catwalk of the rock crushing plant was less than seven-feet above a working surface and was unguarded. Dunn said that if an employee walked by (s)he could be hit by a breaking belt or clothing could be caught by the drive mechanism, exposing the employee to a crushing injury to whatever body part was caught between the belt and the pulley drive.

ISSUE

Did the Division establish violations of sections 1621(a), 3999(b), 3999(e), 4070(a)?

FINDINGS AND REASONS FOR DECISION

The Division Failed to Establish Violations of Sections 1621(a), 3999(b), 3999(e), and 4070(a).

Citation Nos. 3, 8, 9, and 10 are all cited as violations specifically occurring on November 14, 1996. To establish these violations employee exposure to the alleged unsafe conditions is required to be established on that date. (See, Nicholson-Brown, supra). The Division’s argument as to Citation Nos. 3, 8, 9, and 10 that even if there were no employee exposure on November 14, 1996 there would have been employee exposure on other days is without merit. In this regard, Employer responds by raising a due process violation because it was only prepared to address the violation on November 14, 1996. Labor Code section 6317 and Appeals Board precedent require that citations must describe a violation with sufficient specificity to give employers fair notice and enable them to prepare a defense. (See, e.g., Adia Personnel Services, OSHAB 90-1015, Decision After Reconsideration, (March 12, 1992).) Due process requires that the employer be given notice and an opportunity to defend. In this case, a hearing was held and the ALJ concluded correctly that there was no employee exposure on November 14, 1996.

We need not address Employer’s due process concerns because, in this case, the evidence did not establish employee exposure because the rock crushing plant was not in operation on the date alleged in the citations. Although there is an admission by Employer’s representative that employees worked in the area of the alleged violations, the citations limited the violations to the specific date of November 14, 1996. There was no admission made by Lincon, or any other Employer representative, that any employees worked in the area described in the citations on November 14, 1996.

We find that the Division failed to establish violations of sections 1621(a), 3999(b), 3999(e), and 4070(a) because there is no evidence that any employee was exposed to the hazards identified in the cited regulations on the date specified in the citations.

DECISION AFTER RECONSIDERATION

The ALJ’s decision is affirmed; Employer’s appeals are granted.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: September 26, 2001

1 Unless otherwise specified, all section references are to Title 8, California Code of Regulations.
2 Section 1516(a) was repealed effective February 27, 2000 because it was duplicative of section 3382.