BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

 

In the Matter of the Appeal of:

MARTINEZ STEEL CORP.

8920 Vernon Avenue, Suite 112

Montclair, CA 91604

                              Employer

 

 

Docket No.

97-R6D2-2228

 

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 Martinez Steel Corp. (Employer) makes the following decision after reconsideration.

JURISDICTION

On April 22, 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 3979 Lankershim Boulevard, Studio City, California (the site). On July 18, 1997, the Division cited Employer alleging a serious violation of section1 1712(f) [reinforcing steel wall not supported or guyed to prevent collapse], with a proposed civil penalty of $5,000.

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

A hearing was held before Jack L. Hesson, administrative law judge (ALJ), in Van Nuys, California. Herbert Higgins, corporate safety director, represented Employer. Debra Lee, industrial hygienist, represented the Division.

On January 13, 1999, the ALJ issued a decision denying Employer's appeal as to the existence of the alleged violation and its classification as serious, and granted the appeal only to the extent that the proposed civil penalty was reduced from $5,000 to $4,375.

On February 5, 1999, Employer filed a petition for reconsideration. The Board granted Employer’s petition on March 2, 1999. The Division filed an answer on March 12, 1999.

EVIDENCE

On April 22, 1997, Employer was constructing a reinforced steel wall [rebar wall] that collapsed and injured one of its employees, Eduardo Medina [Medina].

Barry Burgess (Burgess), compliance engineer with the Division, testified that he inspected the location of the collapsed wall and met with Employer’s foreman, William Spaulding (Spaulding) on April 23, 1997. Spaulding explained that the wall under construction had been tied into the adjacent walls to provide stability for the wall.

Burgess testified that he concluded that the wall collapsed because it had not been properly guyed or supported. Burgess also testified that he did not observe any evidence of X-bracing2 on the collapsed wall and that Employer provided him with a copy of its Safety Handbook, which discusses X-bracing.

Burgess testified that at the time of the inspection he did not identify a violation and he communicated that fact to Spaulding. He also told Spaulding that he did not rule out a violation and that he would have to do some research. After discussion with the Division’s senior engineers Burgess determined that there was a violation of section 1712(f) and cited Employer on July 18, 1997.

Spaulding testified that he last inspected the wall between 7:30 and 8:00 a.m. on April 22, 1997. On cross-examination, however, he testified that he was just looking to see that every one was working in a timely, safe manner. He testified that at the time he was up above the location where the wall was being constructed supervising a crane operation. Spaulding acknowledged that there was a substantial probability that death or serious injury could result from the wall collapsing.

Spaulding said he had a leadman, Juan Altamirano (Altamirano), in the area who “… gives directions on which bars go where.” When asked if Altamirano could have ordered bracing put on the wall and if Altamirano had responsibility for health and safety over other employees, Spaulding answered, “yes” to both questions.

During cross-examination Spaulding answered, “no” when asked if any of the crew working on the day of the accident were disciplined, however Employer presented into evidence a form entitled “Employee Warning Notice” to Ed. Medina, dated April 23, 1997, the day after the accident. Employer’s Statement portion of the form read:

On 4-22-97 you were building in-place wall that fell. The wall was not X-braced, guyed, tied properly with supports. You violated the Safety Program, and Hand Book.

The notice was a “Disciplinary Action” of “3 days off when returns.” Spaulding’s signature was on this Notice.

Employer also presented an Employee Warning Notice to Benjamin Arcos [Arcos], which terminated him. Employer’s Statement portion read:

On 4-22-97 you were tieing [sic] wall with Ed. Medina. The wall was not properly tied and fell. The hand book states how to build walls, these procedures were not followed.

Corporate safety director Higgins’ signature was on this Notice.

Medina testified that he was a four-year journeyman ironworker. He said the day of the accident was his first day on this job. He reported to Spaulding who assigned him to work with leadman Altamirano. Medina was assigned as part of a crew of five or six employees who were constructing the rebar wall. Medina acknowledged at the hearing that he was experienced in building rebar walls. He testified that he believed the wall was hazardous and that he spoke to Altamirano about the lack of X-bracing. Medina said he was told it would be done. Medina believed the X-bracing could have been done as the wall was being constructed. When asked why he didn’t do the X-bracing he testified that “when you’re new on the job you do as you are told to do.” Medina denied that he received a copy of Employer’s Safety Handbook from Employer. However, he did state that he had received a copy when he worked for RPS, a related company.

Medina said that he and Arcos installed 100 rebars in half-an-hour. He testified that during this 30-minute period Spaulding was at a location above where the wall was being constructed. Medina said he could see Spaulding looking down.

ISSUES

1. Does due process require notice at the time of the inspection that a violation exists?
2. Was a serious violation of section 1712(f) established?
3. Did Employer establish the Independent Employee Action Defense?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

1. Due Process Does Not Require Notice That a Violation Exists at the Time of the Inspection.

We have considered the due process concerns raised by Employer and have concluded for the reasons set forth below that Employer was not denied due process.

Under the Labor Code the due process accorded to an employer requires that a citation be issued in writing, with reasonable promptness and describe the violation with particularity, including the section alleged to have been violated. Citations are to be issued within six months of the occurrence of the violation.

Labor Code [LC] section 6317 provides, in relevant part:

If … the division believes that an employer has violated … any … regulation … it shall with reasonable promptness issue a citation to the employer. Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the … regulation … alleged to have been violated. … No citation … shall be issued by the division for a given violation … after six months have elapsed since occurrence of the violation.

In the instant case, Employer was cited on July 18, 1997 as follows:

T 8 CCR 1712. Hazards Associated with the use of Reinforcing Steel and Other Similar Projections.
(f)Reinforcing steel for walls, piers, columns, and similar vertical structures shall be guyed and supported to prevent collapse.
The reinforced steel wall that employees were building was not guyed or supported to prevent collapse.

It is necessary that an investigation be conducted to determine whether a violation exists. There is no requirement that a citation be issued at the time of inspection. If a violation is determined to exist a citation must issue within six months from the date of the violation. A citation issued within six months of the violation is presumed to be issued with reasonable promptness, unless the employer demonstrates prejudice by any delay. (Vial v. Occupational Safety and Health Appeals Board (1977) 75 Cal.App.3d 977, 1005). The citation here was issued within the required six-month period from the occurrence of the violation. (LC § 6317).

We hold that because Employer knew the wall had fallen it was put on notice that a citation could be issued for violation of section 1712(f) since Burgess told Employer a violation could not be ruled out. We hold this Employer was not denied due process because of the fact that Burgess took time to conduct a full and fair investigation. Such an investigation promotes, rather than detracts from Employer’s due process rights.

2. A Serious Violation of Section 1712(f) was Established.

Employer argues the violation should not have been classified as serious because Employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation. Labor Code section 6432 provides in pertinent part that a serious violation “… shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, …unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.” Employer concedes that there is a substantial probability that death or serious physical harm could result from the violation. Employer knowledge is the only issue in the assertion that a serious violation did not exists. To meet its burden of proving Employer knowledge the Division does not have to show that Employer was actually aware of an unsafe condition. Employers are accountable for the acts and knowledge of their foremen. (Greene and Hemly, Inc., OSHAB 76-435, Decision After Reconsideration (April 7, 1978).) An employee need not have a supervisory or managerial title, or the power to “hire and fire.” Rather, the focus is on whether the employee has been delegated sufficient authority to ensure that other employees follow safety rules. (Jerry’s Electrical Service, OSHAB 91-1287, Decision After Reconsideration (July 29, 1993).) 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 (Jun. 21, 1991).)

We find that knowledge of the lack of X-bracing is imputed to Employer because X-bracing would have been visible from Spaulding’s location above the wall being constructed. If Spaulding had knowledge that there was no X-bracing it was incumbent upon him to inspect the wall for proper bracing. We also find that Altamirano’s knowledge of the lack of X-bracing is imputed to Employer. Altamirano was the leadman and Spaulding’s testimony established Altamirano’s responsibility for employees’ health and safety.

Thus, with reasonable diligence Employer could have known of the lack of support to the wall. We find the violation of section 1712(f) was properly classified as serious.

3. Employer did not Establish the Independent Employee Action Defense.

Employer argues that it should not be responsible for a violation of section 1712(f) because a defense exists under the Independent Employee Action defense [IEA] that the injured employee caused the accident. The IEA defense is an affirmative defense that an employer may raise when an employee acts against the best safety efforts of the employer in causing a violation. To establish this defense the employer must prove each of the following elements by a preponderance of the evidence: 1) The employee was experienced in the job being performed; 2) the employer has a well-devised safety program which includes training employees in matters of safety respective to their particular job assignments; 3) the employer effectively enforces the safety program; 4) the employer has a policy of sanctions against employees who violate the safety program; and, 5) the employee caused a safety infraction which he or she knew was contra to the employer’s safety requirements. (Mercury Service, Inc., OSHAB 77-1133, Decision After Reconsideration (Oct. 16, 1980).)

Employer raised the IEA defense at the hearing. We find that the testimony of Medina established that he was an experienced journeyman, that testimony by Spaulding established that Employer has a well-devised safety program, and that Employer enforces its program and sanctions employees that violate that program. We find, however, that Employer failed to enforce its safety program. Enforcement is accomplished not only by means of disciplining offenders but also by compliance with safety orders during work procedures. Altamirano was responsible for the health and safety of employees. Employer’s safety program was not being enforced when Altamirano did not require that X-bracing be put on the wall after Medina informed him of the hazard.

Employer contends that:

Medina’s memory was clouded, he didn’t remember a lot of questions from the employer which should give rise to the question of him telling the leadman anything about the wall bracing or other testimony of facts.

The thrust of Employer’s argument here appears to be one of credibility. The ALJ credited Medina’s testimony that he told the leadman the wall needed bracing and that the leadman did not want to do the bracing at that time. To the extent that the ALJ’s findings are based on the resolution of the credibility of witnesses, those findings are entitled to great weight. (A.A. Portanova & Sons, Inc., OSHAB 83-891, Decision After Reconsideration (Mar. 19, 1986); Garza v. Workmen’s Comp. Appeal Bd., (1970) 3 Cal.3d, 312, 318).) We concur with the ALJ’s finding that Medina told Altamirano of the need for bracing on the wall and the finding that Altamirano did not want to do so at the time. The ALJ heard Medina’s testimony and was able to observe the witness and gauge his credibility.

We find that the violation did not result from an independent act of Medina and that Employer failed to establish the IEA defense because Employer failed to prove the third element of the affirmative defense.

DECISION AFTER RECONSIDERATION

The decision of the ALJ is affirmed. A serious violation of section 1712(f) is established and a civil penalty of $4,375 is assessed.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: August 7, 2001


1 Unless otherwise specified, all section references are to Title 8, California Code of Regulations.
2 Testimony and photographic exhibits [#6, 7, 9, 10, 11 & 13] described X-bracing as a method of securing vertical steel reinforcing rods by cross-tying them to a horizontal bar with wire in the form of an X.