BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

BALDWIN CONTRACTING COMPANY, INC

1764 Skyway

Chico, CA 95928

                              Employer

 

 

Docket No.

97-R5D1-2648

 

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 Baldwin Contracting Company, Inc., (Employer), makes the following decision after reconsideration.

JURISDICTION

Between June 23, 1997 and August 21, 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 the west end of First Street, Chester, California (the site). On September 11, 1997, the Division issued to Employer a citation alleging a serious violation of section1 3328(b) [inspection and maintenance of machinery and equipment], with a proposed civil penalty of $5,000.

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

Between October 27, 1999 and May 10, 2000, a hearing was held before Dennis M. Sullivan, administrative law judge (ALJ), in Redding, California. Ron Medeiros, attorney, represented Employer. Nicholas Champlin, staff counsel, represented the Division. Kevin Lancaster, attorney, represented affected employee Jack Robinson [Third Party].

On June 30, 2000, the ALJ issued a decision denying Employer's appeal.
On August 4, 2000, Employer filed a petition for reconsideration. The Division filed an answer. The Board granted Employer’s petition on September 13, 2000.

EVIDENCE

Employer produces paving material at several plants by coating crushed rock with asphalt cement. Employer’s plants are all stationary plants except the one at issue here that was manufactured by Astec [the Astec plant]. The Astec plant was the first mobile plant owned by Employer. It was delivered to Employer in 1985. At that time Astec sent technicians to set-up and demonstrate the operation of the plant, including procedures for shutting it down and cleaning it at the end of the day.

The Astec plant consists of components that store rock, asphalt cement, diesel fuel, and equipment that dries the rock. The plant heats the asphalt cement, sprays it on the crushed rock and moves it around the plant to finally produce paving material, which is then dispensed to trucks for delivery. The Astec plant was equipped with a metering system and jacketed piping through which heated oil flowed to keep the asphalt cement fluid.

Employer made modifications to the piping and metering system in 1994 and as a result, the asphalt cement clogged in the lines and at the meter. Employer then changed its procedure for cleaning the lines and began a process of introducing diesel fuel into the supply line to clean out the asphalt at the end of the day. Employer was cited for a violation of section 3328(b) because this changed procedure varied from the recommendations made by Astec.

Compliance Officer Steven Hart [Hart] testified that he has been employed by the Division for close to five years and during that time he has conducted other accident investigations. He said he was trained by the Division in explosives, and in volatile and combustible gasses. Prior to employment with the Division he was in charge of safety programs in the manufacturing industry for the majority of his 25 years of employment. He initiated this investigation after he was notified that a Baldwin employee, Jack Robinson [Robinson], was severely burned in an explosion and fire at the Astec plant on June 21, 1997.

Hart testified that diesel fuel is a combustible liquid that vaporizes at a temperature of between 120 and 160 degrees and that spraying diesel fuel onto hot aggregate rock presented the danger of creating a combustible mixture of vaporized diesel and oxygen in the dryer. He said the tumbling rock could spark and provide a source of ignition for the mixture. According to Hart the heat energy contained in a gallon of diesel fuel was equivalent to 32 sticks of dynamite.

Maurice Herlax [Herlax], a retired Baldwin employee, testified that prior to his retirement in January of 1994 he was the plant operator and supervisor. He testified that the Astec plant was delivered to Baldwin late in 1985. Herlax had no prior experience at that time in operating a mobile plant such as the Astec plant and was trained by Astec personnel, including lead trainer Stan Danzler, in its operation, maintenance, and cleaning.

During the demonstration of the plant Herlax observed the reversing of the pump so that the asphalt was sucked back into the storage tank.

Herlax testified that he trained Fred Metz [Metz] as his replacement. He testified that he followed the manufacturer’s instructions regarding reversing the asphalt cement pump and running hot, dry, clean rock through the system as a way of getting the asphalt off the coater and the dryer. Herlax testified that he did not demonstrate or instruct Metz to run diesel fuel through the asphalt cement line.

Metz testified that he replaced Herlax as plant operator and supervisor in 1987. He said that at the time of the accident Robinson was a member of his crew. Metz described Robinson’s duties as, among other things, going to the top of the hopper area to spray down the upper gates with diesel fuel and after the hopper was emptied to spray down the lower gates so they wouldn’t be stuck in the morning. He confirmed that Herlax never suggested the use of diesel in the line as a way to clean it out.

In 1987 Metz moved the nozzle that sprayed the asphalt cement onto the rock from its location in the coater to a point in the dryer drum. Metz testified that this re-configuration moved the nozzle closer to the diesel-fueled burner that heated the dryer. The temperature in the dryer was normally 300 degrees during operation.

In 1994 a new meter was installed [micro motion meter]. Reversing the pump did not clean out the asphalt cement from the micro motion meter. Employer changed the plumbing to introduce diesel fuel into the asphalt cement line. After reversing the pump and sucking asphalt cement back into the storage tank, Metz said he would then set the pump forward and through a series of valve manipulations diesel fuel would flow through the asphalt cement line and the meter. The diesel fuel would flush out the remaining asphalt cement and discharge it through the nozzle located in the dryer.

Metz testified that he followed this procedure on the day of the accident. He pumped the diesel fuel into the dryer and then saw an excessive amount of blue smoke coming out between the drum and the coater. Metz testified that he next heard an explosion and saw flames coming from the back of the coater region.

ISSUES

1. Did the manufacturer’s demonstration of the Astec plant constitute a recommendation within the meaning of section 3328(b)?
2. Was the ALJ’s finding that the Astec demonstration was a recommendation based on inadmissible hearsay?
3. Did Employer’s modification of the equipment relieve it of its obligation under section 3328(b)?
4. Was there a violation of Employer’s due process rights?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

Employer’s petition for reconsideration alleges that: 1) there was no manufacturer’s recommendation made; 2) the ALJ based his finding of a recommendation on inadmissible hearsay; 3) Employer was under no obligation to follow the manufacturer’s recommendation after it modified the plant; and, 4) its due process rights were violated by upholding the citation on the basis of the Third Party’s theory.

We have fully reviewed the record, all relevant pleadings and the Decision of the ALJ. We find no flaws in the Decision of the ALJ and adopt pages 1 through paragraph 1, page 16 of the ALJ’s Decision in its entirety as part of this decision. In addition, we add the following comments in response to Employer’s petition for reconsideration.

1. The Manufacturer’s Training and Demonstration of the Astec Plant Constituted a Recommendation Within the Meaning of Section 3328(b).

Employer was cited under section 3328(b), which provides that “Machinery and equipment in service shall be inspected and maintained as recommended by the manufacturer where such recommendations are available.”

The Division contends that Employer made modifications to its mobile asphalt plant that resulted in employing a clean-up procedure using diesel fuel to flush out asphalt lines that did not comply with Astec’s recommendations. Employer states that while testimony at the hearing “may be interpreted to indicate that Astec … recommended that [Employer] flush the [asphalt] lines after each shift, the evidence does not indicate that Astec required [Employer] to use any particular method to flush the [asphalt] lines.” Employer contends that no recommendations were ever made by Astec regarding the cleaning of the asphalt lines. Employer asserts that the demonstration and instruction of the cleaning procedure provided by Astec when Employer’s mobile asphalt plant was delivered did not constitute a recommendation for the purposes of section 3328(b).

This was the first Astec mobile plant Employer purchased. Evidence established that the plant was a highly automated operation. Astec demonstrated, to Employer’s supervisor Herlax, how to clear the supply line of asphalt cement at the end of the day by reversing the pump to draw the asphalt cement in the line and meter back into the storage tank. The demonstration of operation and maintenance, including cleaning procedures, was specific to the Astec plant. Not only was the demonstration provided to Employer, but Herlax followed the procedures demonstrated during his tenure and trained Metz, his successor, to follow the same procedures.2 We find that Astec’s demonstration equates to a recommendation under the meaning of section 3328(b). Herlax followed the demonstrated “recommendation” for cleaning and demonstrated the same procedures for Metz. These procedures were in place for eight years until the plant was modified. Metz’s knowledge of the procedures is imputed to Employer.

2. The ALJ’s Finding that the Astec Demonstration Constituted a Recommendation was not Based on Inadmissible Hearsay.

Employer argues that the ALJ’s finding that Astec’s demonstration was a recommendation was incorrectly based on inadmissible hearsay. It contends that Astec’s demonstration was intended to communicate to Employer (via a non-verbal statement) a recommendation regarding a particular method to be used to flush the plant’s asphalt cement lines, and as such constituted inadmissible hearsay. We disagree.

Herlax testified about the demonstration by Astec regarding the method to be used to flush the plant’s asphalt cement lines. The demonstration itself was personally observed by Herlax who was present at the demonstration so that any testimony regarding what he observed during the demonstration is not hearsay. Viewing the evidence in the best light of Employer, to the extent that any testimony by Herlax regarding verbal statements made by Astec personnel was hearsay such statements were only supplemental or explanatory to what Herlax observed during the demonstration. Since the testimony of Herlax was substantially based upon his observations during the demonstration made by Astec personnel, any verbal statements by Astec personnel are not the sole basis for the finding that specific cleaning recommendations were made to Employer by the manufacturer.2 There is no error in the ALJ’s finding.

Further, based upon our own independent review of the testimony regarding the demonstration, we find that both verbal statements and non-verbal, assertive conduct3 communicated to Herlax during the demonstration was not hearsay. Hearsay is defined as “evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evidence Code §1200 [emphasis added].) Section 3328(b) requires that Employer follow the manufacturer’s recommended maintenance procedures where such recommendations are available. Here, Herlax’s testimony of Astec’s demonstration was offered to show that recommended cleaning procedures were made to Employer by the manufacturer and that Employer was aware of them. Since Herlax’s testimony was not offered to prove the truth of the matters asserted, but to establish that the manufacturer provided recommendations to Employer regarding the cleaning procedure for the plant, we find that such testimony is not hearsay.

The evidence is not being used to prove that the method was the most appropriate or best method for cleaning the plant. Section 3328(b) requires that Employer follow the manufacturer’s recommended maintenance procedures. This evidence shows what that procedure was, that it was imparted by the manufacturer’s representatives, and that Employer was aware of the procedure. We believe that testimony regarding the demonstration was non-hearsay when used for these purposes.4

Herlax and Metz, the two plant operators and supervisors, specifically testified that they followed the procedure conveyed by Astec at its demonstration. Their testimony showed that Employer was aware of the recommended procedure and, based upon the above analysis, whether that knowledge came from a hearsay or non-hearsay source does not affect the outcome of this decision. (See, in general, Jefferson’s California Evidence Bench Book, 3d ed. (2001), §§ 1.8, 1.9, 1.28 through 1.33).

3. Employer’s Modification of the Equipment did not Relieve it of its Obligation under Section 3328(b).

Employer offers the alternative argument that if the manufacturer’s demonstration constitutes a recommendation under section 3328(b) Employer is not obligated to follow that recommendation because it modified the plant.

Employer’s argument is without merit. Employer’s argument would allow it to ignore the manufacturer’s recommendation based upon its unilateral determination that its method of maintenance was better than the manufacturer’s. Public policy dictates that this cannot be so.

Labor Code section 143 places responsibility on the Standards Board to approve a variance from a manufacturer’s recommendation. In this case Employer suggests, after the fact, that the manufacturer’s method did not work. We believe that public safety requirements dictate that there be an independent review of any deviation so that an employer is not tempted to cut costs that potentially affect employee safety.

Because of the nature of the Act which requires any interpretation be done in a light most favorable to employee safety, we agree with the ALJ that Employer’s conduct constitutes a variance from the manufacturer’s cleaning procedure that required approval of the Standards Board.

4. Employer’s Due Process Rights Were Not Violated.

Employer raises a denial of due process issue. It contends that because the ALJ’s decision affirmed the citation based on a theory offered by the Third Party [Robinson], Employer’s due process rights were violated.

The purpose of the Occupational Safety and Health Act of 1973 (“Act”) is to assure safe and healthful working conditions for all California working men and women. (Labor Code §6300.) To achieve this goal, the Act envisions that employees have an opportunity to fully participate in the process so that their knowledge of the facts and unique perspective may be considered. Affected employees or their representatives must be afforded the opportunity to participate as parties to appeal proceedings. (§345(b); Labor Code §6603.) “One who is a party to Board proceedings is entitled to participate fully, to receive notice, to subpoena witnesses, offer evidence, argue and submit briefs … .” (Goodwill Industries of Orange County, California, Cal/OSHA App. 00-3871, Denial of Petition for Reconsideration (Nov. 13, 2001); see also Dey Laboratories, Inc., Cal/OSHA App. 93-2742, Decision After Reconsideration (Mar. 28, 1995).)

There is no question of Robinson’s party status. He subpoenaed and examined witnesses, presented documentary evidence, and argued at the hearing. There is little doubt that Robinson shared interests with the Division in presenting his case before the ALJ, but there is nothing in the record to demonstrate Employer was surprised by the evidence elicited by Robinson.

In deciding whether a party has met its burden of proof, consideration must be given to all of the evidence, including that which has been produced by the defendant. [Emphasis added] (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 483 citing Williams v. Barnett (1955) 135 Cal.App.2d 607, 612; 3 Witkin, Cal. Evidence (3d ed. 1986) Introduction of Evidence at Trial, §§ 1795-1797, pp. 1752-1756.)

We have found that the Division met its burden of establishing a serious violation. The fact that the Third Party participated in the process does not eviscerate the result nor does it deny to Employer due process. If the standard allows the use of evidence submitted by the defendant to meet the burden of proof, we see no prohibition on using evidence submitted by a Third Party to achieve a similar result. Consequently, based on the foregoing we find that Employer was not denied due process at the hearing before the ALJ.

DECISION AFTER RECONSIDERATION

The ALJ’s decision is affirmed. A serious violation of section 3328(b) 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
FILED ON: December 17, 2001

1 Unless otherwise specified, all section references are to Title 8, California Code of Regulations.
2 There is no requirement in section 3328(b) that a manufacturer’s maintenance recommendation be in writing, only that the recommendation for maintenance be followed if it is available.
2 Hearsay evidence may be used for the purpose of supplementing or explaining other evidence but cannot be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. (§376.2)
3 The term “Statement” includes “nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression.” Evidence Code section 225.
4 A statement of direction or instruction is also not an assertive statement and thus is not offered to prove the truth of the matter asserted by the statement if it tends to prove an issue or part of an issue in the case. It is the mere speaking of the words of direction or instruction that tends to prove a disputed issue that makes it admissible nonhearsay. See, Life Ins. Company of North America v. Cassidy (1984) 35 Cal.App.3d 599; In re Robert W. (1977) 68 Cal.App.3d 705. Since Employer disputed that a recommendation was provided by Astec, the statements of direction provided to Herlax by Astec tend to prove that a recommendation was provided and made available to Employer.