BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

 

In the Matter of the Appeal of:

CONCRETE WALL SAWING CO., INC.

2501 Grant Avenue

San Leandro, CA 94580

                              Employer 

 

Docket No.

97-R1D3-1777

 

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 Concrete Wall Sawing Co., Inc. (Employer), makes the following decision after reconsideration.

JURISDICTION

From March 13, 1997 through May 22, 1997, a representative of the Division of Occupational Safety and Health (the Division) conducted an accident investigation at a work site maintained by Employer at 150 Valparaiso, Atherton, California (the site). On May 23, 1997, the Division issued Employer a citation alleging a violation of section1 1632(b) [not securing/labeling plywood sheeting/floor covering], with a proposed civil penalty of $4,000.

Employer filed a timely appeal contending that it did not create the hazard and attached a letter indicating that it was appealing the existence of the violation and the proposed civil penalty.

On May 25, 1999, a hearing was held before Manuel M. Melgoza, administrative law judge (ALJ) of the Board, in Foster City, California. Kenyon C. Barnes, President and CEO, represented Employer. Michael Horowitz, District Manager, represented the Division.

On June 10, 1999, the ALJ issued a decision denying Employer's appeal as to the existence of the violation. He reduced the classification from serious to general and reduced the civil penalty from $4,000 to $410.

Employer filed a timely petition for reconsideration. The Division filed an answer and the Board granted Employer’s petition on September 1, 1999.

ISSUES

1. Was the decision procured by fraud?
2. Do the ALJ’s findings of fact support the decision?

EVIDENCE

Employer is a subcontractor specializing in concrete and brick cutting. It sub-contracted to perform work at a two-story school that was being retrofitted for earthquake protection. The Division’s compliance engineer Edward R. Kukla [Kukla] testified that a floor beam supporting the second floor had been removed, creating a 2-foot by 16-foot opening the entire length of the floor. Jerry D. Shaw [Shaw] testified that he was the only Concrete Wall Sawing employee at the site. He also testified that the entire second floor was covered with temporary flooring of plywood panels. Shaw’s assignment was to cut slots in the wall on the second and first floors to accommodate a steel reinforcing beam. The general contractor, Rudolph & Sletten, prepared the work site and set up the scaffolding.

Shaw testified he completed the first day’s work and had arrived at the site on the second day to find the scaffold still on the second floor. He started gathering up tools, took a few steps backward and fell approximately 15 feet from the second floor to the first floor. He was on the second floor less than two minutes when he fell. He does not know what caused his fall. Nor does he know whether there was an opening in the floor or whether the temporary flooring had shifted. He remembers only that some one attended him when he regained consciousness.

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

In this case the ALJ found that a violation of section 1632(b) was established because Employer’s worker was exposed to a floor opening that was not securely covered.

Section 1632(b) provides that:

Floor, roof and skylight openings shall be guarded by a standard railing and toeboards or cover. Coverings shall be capable of safely supporting the greater of the weight of a 200-pound person or the weight of worker(s) and material(s) placed thereon. Coverings shall be secured in place to prevent accidental removal or displacement, and shall bear a pressure sensitized, painted, or stenciled sign with legible letters not less than one inch high, stating: “Opening-Do Not Remove.”

The Decision Was Not Procured By Fraud.

Employer argues that the Decision of the ALJ was procured by fraud because “…an employee of Rudolph & Sletten, intentionally, and with the intent to divert attention from itself, fabricated how the accident happened.”

The Board has previously found that a decision is obtained by fraud when “…a false representation of material fact, made recklessly or without reasonable ground for believing its truth, with intent to induce reliance thereon, and on which the injured party justifiably relies” is made. (F.P. Lathrop Construction Co., OSHAB 81-819, Decision After Reconsideration (Feb. 8, 1985), citing Hale v. George A. Hormel & Co. (1975) 48 Cal.App.3d 73).

We find nothing in the fraud definition that assists Employer in this case. Even if Employer is correct that the inaccurate statements were an intentional fabrication for the purpose of diverting attention from the general contractor, that would not be relevant in this case because Employer is obligated to provide a safe place of employment for its employees.

We do not agree with Employer’s speculative contention that no citation would have been issued against it but rather would have issued only against the general contractor if the general contractor’s superintendent had not made “perjured” statements.

An employer is liable for a safety violation if its employees are exposed to a hazard. (Manpower, Inc., OSHAB 78-533, Decision After Reconsideration (Jan. 8, 1981).) An employer will be held liable for its employees’ exposure even if the hazard was actually created by a third party. (Cal-Cut Pipe & Supply Co., OSHAB 76-955, Decision After Reconsideration (Aug. 26, 1980).) An employer cannot escape liability by its assertion of lack of control. Id.

As noted above, section 1632(b) requires all openings to be covered sufficiently to support a 200-pound person. Shaw’s fall indicates the floor opening was not properly covered. Therefore, even if Rudolph & Sletten’s employee did lie in saying the accident scene had been preserved exactly as it was at the time of the accident, it would not vitiate the fact that Shaw fell through an uncovered opening or an improperly secured opening.

2. The ALJ’s Findings of Fact do Support the Decision.

Employer also argues that the ALJ’s findings of fact do not support the decision because the ALJ expressly ruled that Employer had no actual knowledge that the opening was uncovered, unsecured, or improperly secured.

Employer’s contention is without merit because knowledge is not an element required to establish a violation of section 1632(b). (Gentry-Rados, OSHAB 76-516, Decision After Reconsideration (Nov. 22, 1977). Employer’s obligation under Labor Code sections 6400 and 64012 is to provide a safe workplace.

Employer suggests that the factors supporting a reduction of classification also proves, as a matter of law, that there should be no violation of section 1632(b). Employer points out that the ALJ found that neither Employer nor the injured employee could have discovered the dangerous condition that caused the accident through the exercise of reasonable diligence.

Employer misperceives the application of the “reasonable diligence” standard. Reasonable diligence is related to knowledge. Knowledge is not a necessary element in establishing a violation. It applies only to the classification of the violation as serious or willful, not to its existence. Labor Code section 6432(a) provided3 “…a serious violation shall be deemed to exist … unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.” [Emphasis added].

We find no basis for overruling the ALJ’s decision.

DECISION AFTER RECONSIDERATION

The Decision of the ALJ is affirmed. A general violation of section 1632(b) is established and a civil penalty of $410 is assessed.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: June 5, 2001

1 Unless otherwise specified, all section references are to Title 8, California Code of Regulations.
2 Labor Code sections 6400(a) and 6401 state: Every employer shall furnish employment and a place of employment that is safe and healthful for the employees therein … [and] Every employer shall do every other thing reasonably necessary to protect the life, safety, and health of employees. [Emphasis added].
3 Labor Code section 6432(a) was amended effective January 1, 2000; it became subsection (b) and placed the burden on the employer to demonstrate that it did not, and could not with the exercise of reasonable diligence, know of the presence of the violation. (Stats.1999, c.615 (A.B.1127), §10.)