BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

PATENT CONSTRUCTION SYSTEMS
and its successors
21222 South Wilmington Avenue
Carson, CA 90810

 

                              Employer

 

Docket No.

97-R3D1-1407

 

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 Patent Construction System (Employer), makes the following decision after reconsideration.

JURISDICTION

Between January 31, 1997 and March 31, 1997, a representative of the Division of Occupational Safety and Health (the Division) conducted an accident investigation at a place of employment maintained by Employer at 8039 Beach Boulevard, Buena Park, California (the site).

On April 4, 1997, the Division issued a citation to Employer for an alleged serious violation of section 1644(a)(2) [metal scaffold equipment] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations.1

Employer filed a timely appeal contesting the existence and classification of the alleged violation and the reasonableness of the abatement requirement and the proposed penalty.

On May 19, 1998 a hearing was held before an Administrative Law Judge (ALJ) of the Board, in Anaheim, California. Andrew C. Peterson, Attorney, represented Employer. Albert Cardenas, Staff Counsel, represented the Division.

At the hearing, due to insufficient evidence to sustain its burden of proof, the Division moved to amend the characterization of the violation to non-accident related and to reduce the $5,000 proposed civil penalty to $2,250. The motion was granted.

On October 8, 1998, the ALJ issued a decision finding a serious violation and assessing a civil penalty in the amount of $2,250.

On November 12, 1998, Employer filed a petition for reconsideration. On December 23, 1998, the Board remanded the case for an additional hearing to reconstruct the record. The hearing was held on January 12, 1999. On January 28, 1999, the ALJ issued an Amended Decision again finding a serious violation and assessing a civil penalty of $2,250.

Following the Amended Decision, Employer renewed its petition for reconsideration on January 25, 1999. The Division did not file an answer to the petition.

EVIDENCE

Employer was cited by the Division for using a 22 foot long truss that had a major crack in it.

Jag Dhillon, the inspecting officer for the Division, testified that he began an accident inspection at an amusement ride construction site at Knott’s Berry Farm on January 1, 1997. He held an opening conference with Regional Manager Tony Madsen and met with various employees and Foreman Ismael Castillo. Ismael Castillo described how employee Alex Castillo (Castillo) was injured when he fell 15 to 20 feet while standing on a plank on the end of a truss that broke off from scaffolding he was installing.

Dhillon testified that since there was a lot of rust on the crack where the truss broke it was evident that the crack had existed for some time before it was used in the scaffolding. He further opined that the truss had deteriorated to the point that it was not strong enough to be used.

In Dhillon's opinion, the crack could have been detected before the break, particularly since it was close to the clamping point. He issued the citation because the truss was weakened to the point that its integrity was compromised and it should not have been used. He classified the violation as serious because the likely result of a fall from 15 to 20 feet would be broken bones, head injuries, or death.

Dhillon testified that during an interview with injured employee Alex Castillo, who installed the cracked truss and put the joint in before standing on it, Castillo said he did not see the crack during the installation of the truss.

While working as a safety engineer for the Division, Dhillon attended one week of formal scaffolding training, attended various construction training sessions where scaffolding was covered in some detail, and accompanied other more experienced engineers on inspections involving scaffolding. He did not recall asking Employer’s employees if they had been instructed not to use cracked trusses in the installation of scaffolding. He admitted not being able to recall whether the injured employee said he had installed the cracked truss, despite his earlier testimony to the contrary.

On direct examination Dhillon testified that the crack was so substantial that it should have been detected had it been inspected prior to use.

Operations Manager Jolene Perez (Perez) testified for Employer that the standard safety rules for sectional scaffolding, introduced by Employer into evidence, were in effect and available to all employees when the accident occurred. The rules were enforced by periodic visits by supervisors. Under Employer’s safety rules scaffolding was to be inspected during both installation and dismantling.

Perez testified that Patent Construction Systems also had a rule that each employee on a job site was responsible to inspect all equipment, including each truss, as it was being used in the construction of a scaffold. All employees are given this rule. This rule is uniformly enforced.

Dhillon testified that Alex Castillo, when constructing the scaffold in question, attached a brace to the defective truss, the attachment point caused Castillo to face the crack in the truss. In placing the brace, Castillo was within inches of the crack.

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

Employer petitions for reconsideration alleging that the Independent Employee Action Defense (IEAD) should apply in this case because:

1. Patent had a rule that each employee on a job site was responsible to inspect all equipment, including each truss, as it was being used in the construction of a scaffold. All employees are given this rule, which is uniformly enforced;
2. Operations Manager Jolene Perez testified for Employer that the standard safety rules for sectional scaffolding introduced as Employer Exhibit B were in effect and available to all employees when the accident occurred. The rules were enforced by periodic visits by supervisors. Scaffolding was inspected as it was being installed and as it was dismantled. The evidence that the Employer’s standard safety rules were uniformly enforced was unrebutted;
3. Castillo was responsible to inspect the trusses being used in the scaffold, and remove them from service if defective;
4. The Employer’s rule to this affect was uniformly enforced, that is, it was part of a well-devised safety program effective enforced through employee participation and employer sanctions for violations;
5. Castillo was an employee experienced in the job being performed, having been hired by Patent on December 14, 1995, and had been erecting scaffolds for Patent for over two years when the accident occurred. He received, training on the use of defective trusses throughout his employment;
6. Castillo utilized the defective truss, which he had to have seen was defective in violation of the uniformly enforced rule of the Employer; and
7. Castillo’s knowing violation of the Employer’s uniformly enforced rule was the direct cause of the violation.

The Division did not file an answer to Employer’s petition.

In order to establish the IEAD it is necessary that Employer establish:

a) The employee was experienced in the job being performed;
b) The employer has a well devised safety program which includes training employees in matters of safety respective to their particular job assignments;
c) The employer effectively enforces the safety program;
d) The employer has a policy which it enforces of sanctions against employees who violate the safety program; and
e) The employee caused a safety infraction, which he or she knew was contra to the employer’s safety requirement. (Mercury Service, Inc., Cal/OSHA App. 77-1133, Decision After Reconsideration (Oct. 16, 1980).)

We find that while Employer arguably satisfied (a), (c), (d) and (e) of the IEAD, it has not established to the Board’s satisfaction that Employer has a well devised safety program which includes training employees in matters of safety respective to their particular job assignments as required in (b) above.

In this case, Operations Manager Jolene Perez (Perez) testified that the standard safety rules for sectional scaffolding, introduced into evidence by Employer, were in effect and available to all employees when the accident occurred. Having preprinted, generic safety rules—not a part of an organized training program that includes instruction by someone knowledgeable in the field—does not satisfy the requirement to have a well devised training program. Section 3203 which contains the requirements for Injury and Illness Prevention Programs provides that they must include a system for communicating with employees in a form readily understandable by all affected employees. We are not persuaded that Employer took sufficient care to make sure that its workers understood the standard safety rules for sectional scaffolding. Therefore, in this case, without evidence of training to complement the written program, we find Employer cannot avail itself of the IEAD.

In order to establish the IEAD it is incumbent upon Employer to clearly demonstrate to the Board that its safety program includes training of employees in a meaningful, objective manner which can be reviewed by the Board to determine if it is “well devised”. In addition, under the scenario set forth in this case, Employer has delegated the responsibility to employees to act as guarantors for the safety and adequacy of the materials which employees are required to select for scaffold construction. The IDEA is a limited affirmative defense long recognized by the Board. The defense should not be construed as authorization for employers to delegate to rank and file employees sole responsibility for the safety of the materials and tools to be used in their employment. Such a delegation would, in our view, be contrary to public policy.

DECISION

The Board affirms the ALJ’s decision finding a serious violation of section 1644(a)(2) and assessing a civil penalty of $2,250.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: August 2, 2002

1 Unless otherwise specified all references are to sections of Title 8, California Code of Regulations.