BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

 

In the Matter of the Appeal of:

PICTSWEET FROZEN FOODS

732 South Hanson Way

P. O. Box 5878

Santa Maria, CA 93454

                              Employer

 

 

Docket No.

97-R4D5-1896

 

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 Pictsweet Frozen Foods (Employer), makes the following decision after reconsideration.

JURISDICTION


Employer prepares and sells frozen foods. From June 2 through June 13, 1997, the Division of Occupational Safety and Health (the Division), through Compliance Engineer Dwight Goossen, conducted an accident investigation at a place of employment maintained by Employer at 732 South Hanson Way, Santa Maria, California (the site). On June 18, 1997, the Division issued to Employer Citation No. 2 which alleged a serious violation of section 3212(e)(2) of the occupational safety and health standards and orders found in Title 8, California Code of Regulations.2 The Division proposed a civil penalty of $5,000 for the violation.

Employer filed a timely appeal contesting the existence of the violation and the reasonableness of the proposed civil penalty.

The matter came on regularly for hearing before Jack L. Hesson, Administrative Law Judge (ALJ) for the Board, at San Luis Obispo, California. Employer was represented by Vic R. Redula, Attorney at Law. The Division was represented by Alan L. Coie, Staff Counsel. Oral and documentary evidence was introduced by the parties and the matter was submitted.

The ALJ issued a decision, which denied Employer's appeal from Citation No. 2. A civil penalty of $5,000 was assessed against Employer for a serious violation of section 3212(e)(2).

Employer filed a timely petition for reconsideration on October 22, 1998, alleging that the Appeals Board acted without or in excess of its powers; that the evidence received by the Appeals Board did not justify the findings of fact; and that the ALJ’s findings did not support the decision.

EVIDENCE


In making this decision, the Board relies upon its independent review of the entire evidentiary and procedural record in the hearing and each exhibit admitted into evidence. The Board has taken no new evidence.

On March 17, 1997 Nestor Rubalcava, an employee of Employer, fell through a skylight on Employer’s roof to the floor 30 feet below. The Division investigated the accident and cited Employer for a serious violation of section 3212(e)(2) because the skylight was not guarded and fall protection was not used.

Compliance Officer Dwight Goossen investigated the case for the Division. Bill Hodson, Employer’s Human Resources Manager, told him employees went to the roof to make repairs to an exhaust duct and one of them fell through a skylight. Goossen went to the roof where the accident occurred, and discovered that a new skylight had been installed. He was told the skylight through which the employee had fallen had been there for years. He did not observe any guardrails or guards over the skylights. He took photographs and measured the distance between the skylight and the pipe, where he was told the employees were working, as 3 feet. The skylight was 30 feet above the floor below. He interviewed the employees who had been on the roof and was told that they had been sent up to the roof to determine only what needed to be done, but had decided to go ahead and perform the job.

At the time of the accident the employees were not using safety belts and there were no guardrails, warning lines, cones, or guards over the skylight. Goossen cited Employer for a serious violation of section 3212(e)(2) because the injured employee was working within 6 feet of the skylight and was not using fall protection.

John Liukkonen, Employer’s Maintenance Supervisor, testified that there are 119 skylights on the roof and that he had visited the roof to inspect the exhaust duct to determine what needed to be done within 9 weeks of the accident. Prior to the accident he had not determined the effects of sunlight and weathering on the skylights. On the day of the accident he told Aldolfo Delgado to get a grinder and extension cord because he wanted the duct removed that day. Nestor Rubalcava went with Delgado because he is mechanically inclined and had helped out in the past. Liukkonen told Delgado to get him once he had set up.

Adolfo Delgado testified that he went to the roof with two other employees to remove an exhaust fan and duct. He did not observe any defects in the skylight. The three employees arranged themselves around the duct to remove the pipe. As the duct pipe moved, the weight shifted and Rubalcava shifted to compensate, but the weight pushed him back into and through the skylight.

Nestor Rubalcava, the injured employee, testified that on the day of the accident he was talking to maintenance mechanic Mike Ellis when Aldolfo Delgado, another maintenance mechanic, asked them for help with equipment on the roof. All three employees went to the roof where they attempted to move an exhaust duct. The weight of the object they were moving shifted and Rubalcava stumbled backwards falling through a fiberglass skylight. There were no guardrails around the skylight, which he estimated to be 5 feet from the duct. Rubalcava had not observed any defects in the skylight and did not believe there was any danger until he fell. He stated that the skylight broke like an eggshell. At the time of the accident he weighed about 170 pounds. He spent two months in the hospital with shattered bones and nerve damage.

William Hodson, testified that he believed that tests conducted on skylights of the same type as the one Rubalcava fell through established that it could hold in excess of 200 pounds, but, upon examination, it was found that the test results submitted by Employer were for model 48-96 and the remains of the skylight involved in the accident indicated that it was model 24-69.

ISSUES


1. Was a violation of section 3212(e)(2) established?
2. Did the exception listed in section 3212(e)(1) apply?
3. Was the violation properly classified as serious?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

1. A Violation of Section 3212(e)(2) was Established.

The Board agrees with both the factual findings and legal conclusions of the ALJ and affirms the ALJ decision that a serious violation of section 3212(e)(2) was established.

Section 3212(e)(2) reads as follows:


Where existing skylights are not guarded in accordance with subsection (e)(1), and where there is a need for any employee to approach within 6 feet of any skylight, employee(s) shall be provided with fall protection for the duration of the fall exposure by:
(A) The use of an approved safety belt and lanyard securely anchored to a solid structure, or
(B) Temporary covers capable of sustaining the weight of a 200 pound person installed over the skylight, or
(C) Temporary 42-inch railing enclosures, temporary warning lines, or cones installed/positioned no closer than 24 inches from the skylight curb.

Employer and the Division disagree as to whether or not the skylights were capable of withstanding 200 pounds of pressure. Employer further contends that if the Board finds a violation of section 3212(e)(2), the violation should not have been classified as serious because Employer lacked knowledge of the existence of the violation.

The Appeals Board has consistently held that the Division has the burden of proving a violation, including establishing the applicability of the safety order, by a preponderance of the evidence (Howard J. White, Inc., OSHAB 78-741, Decision After Reconsideration (June 16, 1983)) since Appeals Board hearings are civil in nature. (Lee Bolin & Associates, OSHAB 80-720, Decision After Reconsideration (July 29, 1981).)

In this case, the ALJ found, and the Board agrees, that the Division proved the violation.

A credibility determination made by an ALJ will not be disturbed except upon a strong showing of clear error. Lortz & Son Manufacturing Company, OSHAB 80-618, Decision After Reconsideration (Aug. 28, 1981); Novo-Rados Enterprises, OSHAB 76-305, Decision After Reconsideration (Feb. 23, 1983); Brockway Glass Company, OSHAB 79-1272, Decision After Reconsideration (May 27, 1983).

The ALJ’s findings, based on witness credibility, are entitled to great weight because the ALJ was present during the taking of testimony and was able to directly observe and gauge the demeanor of the witnesses and weigh their statements in light of their manner on the stand. (See Garza v. Workmen's Compensation Appeals Board (1970) 3 Cal.3d 312 at 318, and Metro-Young Construction Company, OSHAB 80-315, Decision After Reconsideration (April 23, 1981).

The ALJ found that:

Employees were sent to the roof to determine what needed to be done, and to set up for the work required. Goossen measured the distance from the duct pipe to the skylight to be 3 feet. Employees were therefore sent to work within 6 feet of the skylight. There was no cover or screen over the skylight, and no cones, warning lines, railings or other fall protection provided.

Because Goossen measured the distance from the duct to the skylight to be 3 feet, Delgado estimated the distance as 2 feet and Rubalcava stated it was 5 feet, it is found that Rubalcava was within 6 feet of the skylight. Because there was no cover or screen over the skylight and no cones, warning lines, railings or other fall protection provided, Employer was in violation of section 3212(e)(2).

2. The Exception Listed in Section 3212(e)(1) Did Not Apply.


Subsection (e)(1) states:


Skylight screens shall be of such construction and mounting that they are capable of withstanding a load of at least 200 pounds applied perpendicularly at any one area on the screen. They shall also be of such construction and mounting that under ordinary loads or impacts, they will not deflect downward sufficiently to break the glass below them. The construction shall be of grillwork, with openings not more than 4 inches long or of slatwork with openings not more than 2 inches wide with length unrestricted, or of other material of equal strength and similar configuration.

Employer contends that it was not in violation of section 3212(e)(2) because it complied with section 3212(e)(1). Employer argues that it was in compliance with section 3212(e)(1) because the skylight in issue was tested to withstand a load of at least 200 pounds applied perpendicularly at any one area of the screen. Employer further contends that the ALJ misconstrued the plain meaning of section 3212(e)(2) because “the dome which was tested to support a 200-pound weight was the ‘cover of the skylight’ and not an additional fixture.”

The ALJ found that:


Examination of the frame of the broken skylight indicated that the skylight involved in the accident was a different model than the one tested. If Employer had established that the dome of the skylight could hold weight in excess of 200 pounds it still would not have complied with the regulation at issue which requires a screen or cover over a skylight, or fall protection when employees are working within 6 feet.

We will not disturb the finding of the ALJ that any skylights tested were not the same skylights as the one broken by the fall of the employee. We also agree with the legal holding enunciated by the ALJ that even if Employer had established that the dome of the skylight could hold weight in excess of 200 pounds it still would not have complied with the regulation because it did not have a screen or temporary cover over the skylight and they were not using fall protection while working within 6 feet of the skylight.

We also find that even if subsection 3212(e)(1) was construed as holding that "skylight screens" was synonymous with "skylight coverings", we find that the skylight was not of such construction and mounting that it was capable of withstanding a load of at least 200 pounds applied perpendicularly at any one area on the screen. This conclusion is further bolstered by the fact that Rubalcava weighed 170 pounds and fell through the skylight to the floor 30 feet below.

3. The Violation was Properly Classified as Serious.


In this case, we find that the facts established that there was a substantial probability that death or serious physical harm could have resulted from the condition in the work place.

At the time of the violation Labor Code Section 64323 stated that a serious violation existed if there was a substantial probability that death or serious physical harm could have resulted from a condition in the work place unless the employer did not, and could not with the exercise of reasonable diligence, have known the violative condition was present.

To meet its burden of proving employer knowledge, the Division did not have to show that Employer's principals or owners were actually aware of an unsafe condition. The Appeals Board has found that hazardous conditions, plainly visible to the naked eye, constitute serious violations since the employer could have known of them by exercising reasonable diligence. (See Fibreboard Box & Millwork Corp., OSHAB 90-492, Decision After Reconsideration (June 21, 1991).) We find that Employer could have known of the violative condition with the exercise of reasonable diligence because we find that the skylight did not have a screen nor was it guarded and it was in the plain view of Employer's supervisor.

The Board has also held that an employer’s subjective belief that it satisfied the safety orders is not material to a determination of the element of knowledge. (See Tri/Valley Growers, OSHAB 76-739, Decision After Reconsideration (Nov. 9, 1979).)

The Appeals Board has consistently held employers accountable for the acts and knowledge of its foremen. In Greene and Hemly, Inc., OSHAB 76-435, Decision After Reconsideration (Apr. 7, 1978), the Board held that knowledge of a violative condition by a foreman could be imputed to the employer even though upper management of the employer had no actual knowledge of the condition. (See also Fischbach and Moore, Inc., OSHAB 79-1594, Decision After Reconsideration (Jan. 28, 1981); Dorfman Construction Company, Inc., OSHAB 76-1100, Decision After Reconsideration (Feb. 26, 1981); Cutter Laboratories, OSHAB 81-440, Decision After Reconsideration (Feb 24, 1982); and Mladen-Buntich Construction Co., OSHAB 85-1668, Decision After Reconsideration (Oct. 14, 1987).) In this case we find that knowledge that there was no screen or temporary cover of the skylight is imputed to Employer.

We therefore find that Employer, through its petition, has failed to show that the Appeals Board acted without or in excess of its powers; that the evidence received by the Appeals Board did not justify the findings of fact; and that the ALJ’s findings did not support the decision.

DECISION AFTER RECONSIDERATION

The Board affirms the ALJ’s decision. A serious violation of section 3212(e)(2) is established and a civil penalty of $5,000 is assessed.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
SIGNED AND DATED AT SACRAMENTO, CALIFORNIA - April 16, 2001

1 The caption of the Order Granting Petition for Reconsideration erroneously refers to Docket Nos. 97-R4D5-1895 through 1897. Because only Docket No. 97-R4D5-1896 is before the Board on reconsideration, the Board hereby amends the caption of the Order of Reconsideration to read Docket No. 97-R4D5-1896. This amendment relates back to the date of issuance of the Order Granting Petition for Reconsideration and is effective as of that date.
2Unless otherwise specified, all references are to sections of Title 8, California Code of Regulations.
3 The employer knowledge requirement was amended effective January 1, 2000. The analysis in this case is based on section 6432(a) before its amendment.