OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
DEPARTMENT OF INDUSTRIAL RELATIONS
STATE OF CALIFORNIA
In the Matter of the Appeal of:
1945 Terminal Way.
San Carlos, CA 94070
San Carlos, CA 94070
The Occupational Safety and Health Appeals Board (Board), acting pursuant to authority vested in it by the California Labor Code, and having ordered reconsideration on its own motion, makes the following decision after reconsideration.
Closets Unlimited, (Employer) designs and manufactures custom cabinets, closets and storage shelves. On July 31, 1997, the Division of Occupational Safety and Health (Division) through Safety Engineer Brian Brooks, conducted a complaint inspection at a place of employment maintained by Employer at 1045 Terminal Way, San Carlos, California (the site). On September 19, 1997, the Division cited Employer for a general violation of section 3231(f) [Citation No. 1, Item 4] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations.1 The Division proposed a civil penalty for that violation in the amount of $125.
Employer filed a timely appeal contending that the safety order was not violated and the proposed civil penalty was unreasonable.
A hearing was held before Bref French, Administrative Law Judge (ALJ) of the Board. Employer was represented by Naum Morgovsky, Owner. The Division was represented by A. Margaret Cloudt, Staff Counsel. Oral and documentary evidence was introduced by the parties and the matter was submitted.
On November 5, 1998, the ALJ issued a decision denying Employer's appeal from Item 4.
On December 4, 1998, the Board ordered reconsideration of the matter to consider the following issue:
When there is an installation which was erected prior to the creation of the Occupational Safety and Health Act (Act) there is a presumption that the installation was in compliance with safety orders in effect at that time and is therefore entitled to the grandfather clause protection found in the exception to section 3202(b). The presumption applies unless the Division presents evidence sufficient to rebut the presumption or unless the hazard presented by the installation is of such severity as to warrant control by the application of the applicable sections of the safety orders.
In making this decision, the Board relies upon its independent review of the entire evidentiary and procedural record from the hearing and each exhibit admitted into evidence. The Board has taken no new evidence.
Brian Brooks testified that the stairs which were the subject of the violation were 40 inches wide and led from Employer's ground floor to an assembly area office. The stairway had a landing at the top with a depth of 24 inches in the direction of travel and a 36-inch doorway. The width of the stairway is measured from left to right, as one walks on a step, and the depth is measured from the front of the step to the back. The landing should be the same depth in the direction of travel as the width of the stairway. In other words the landing depth should be the same distance, i.e. 40 inches, as the width of the stairway, so that the landing should be 40 inches by 40 inches. The safety order does not allow for a step between the landing and doorway, as observed.
Naum Morgovsky testified for Employer that the building, which Employer leased, was over 30 years old. The stairway was in place when Employer leased the building.
FINDINGS AND REASONS
DECISION AFTER RECONSIDERATION
In this case, Employer was cited for a violation of section 3231(f), which states:
Landings. Every landing shall have a dimension measured in the direction of travel equal to the width of the stairway. Such dimension need not exceed 4 feet when the stair has a straight run. Landings, when provided, shall not reduce the width to less than one-half the required width at any position in the swing or by more than 7 inches by a door when fully open. There shall be not more than 12 feet vertically between landings.
The Division cited Employer because the depth of the landing (24 inches) was not equal to the width of the stairway (40 inches). The cited safety order requires that the landing dimension, measured in the direction of travel, be equal to the width of the stairway. The depth of the landing was its dimension measured in the direction of travel from the stairway.
Employer contended, for the first time at trial, that the subject of the violation was (in effect) exempt from the application of section 3231(f), because it had been built prior to the effective date of the current regulation. The Employer therefore seeks the exemption listed in section 3202(b)(1). Section 3202(b) states:
After the date on which these Orders become effective, all installations shall conform to these Orders.
Section 3202(b)(1) states:
EXCEPTION: (1) Existing installations which are in compliance with safety orders, or variations therefrom, in effect prior to the effective date of these safety orders, unless the hazard presented by the installations or equipment is, in the judgment of the Chief of the Division, of such severity as to warrant control by the application of the applicable sections of these orders.
The Board discussed the exception enunciated in section 3202(b)(1) in the case of Owl Rock Products Co., OSHAB 83-0082, Decision After Reconsideration (Feb. 2, 1988).
In that case, we held that the exception is in the nature of an affirmative defense and the employer has the burden of showing not only that the stairway was built prior to the effective date of the safety order cited, but also that there was an applicable safety order in effect at the time of the stairways construction with which the employer complied. (See Kaiser Steel Corp., Steel Manufacturing Division, OSHAB 75-1135, Decision After Reconsideration (June 21, 1982); San Diego Unified School District, OSHAB 74-208, Decision After Reconsideration (Jan. 23, 1975).)
We reaffirm the principles of Owl Rock Products Co., supra, and hold that in order to prove the exemption, an employer must prove:
1. Employer has an installation which predates the cited safety order;
2. That the installation was in compliance with safety orders, or variations thereof, in effect prior to the effective date of the cited safety order.
We find however, that the burden is not absolute. If an employer can show that with the exercise of reasonable diligence, it could not obtain a copy of the safety order or the language of the safety order in effect at the time of the installation, we find that a presumption exists that the employer was in compliance with the prior safety order. The Division may rebut that presumption by producing a copy of the safety order, or language of the safety order in effect at the time of the installation, to establish the employer's non-compliance.
In the case of Owl Rock Products Co., supra, we remanded a request for reconsideration back to the ALJ to determine whether newly discovered evidence referred to in the petition for reconsideration could have been discovered prior to the original hearing with the exercise of reasonable diligence. During the hearing after remand the employer introduced the safety orders in effect when the stairway was constructed and contended that it complied with those orders. The ALJ agreed with that contention.
We find that in order to give meaning to the defense enunciated in section 3202(b)(1) the prior safety orders must be reasonably available to employers. We are not aware of any central archive or local repository that keeps a copy of, or the language of all prior safety orders. If an employer can show that it used reasonable diligence in attempting to obtain the old or superseded order, but was unsuccessful, the employer is entitled to a presumption of compliance with the old or superseded order and the burden shifts to the Division to prove that the employer was not in compliance with the old or superseded order. We believe this to be fair and equitable, because the Division is in a better position to access old or superseded orders or regulations than employers. (See Jefferson California Evidence Benchbook, Vol. 2, Third Edition, section 45.8, pg. 993.)
The Board agrees with the Division's contention in its answer to the order of reconsideration that:
The legislative intent of the California Occupational Safety and Health Act (Act) of 1973 and the safety and health regulations promulgated pursuant to the Act was to establish the duty for an employer to maintain a safe working environment for the employers employees. (See Carmona v. Division of Industrial Safety (1975) 13 Cal.3d 303, 118 Cal.Rptr 473.).
Given the comprehensive sweep of the legislation which is intended to require employers to provide employees with safe work environments by requiring the employer to do every thing reasonably necessary to protect the life and safety of employees (Labor Code §§ 6401 and 6402), the Board has consistently interpreted section 3202(b) in the context of this comprehensive legislative scheme.
The Board has addressed the issue of the application of General Industry Safety Orders in the context of grandfather clauses in other decisions. The Board has held that the exception set forth in these grandfather clauses is in the nature of an affirmative defense which must be raised and carried by the employer. (San Diego Unified School District, supra.) In the case of Kaiser Steel Corporation, supra, the Appeals Board addressed the contention of the employer that ramps which were cited by the Division were exempted by the applicable grandfather clause. Because the employer failed to meet its burden of proof, the citations were upheld.
An employer must raise the affirmative defense prior to the hearing to avail itself of the affirmative defense and to reap the benefit of a presumption that there was compliance with a prior safety order if it can show that the prior order could not be obtained with reasonable diligence. We reaffirm our holding in California Erectors, Bay Area, Inc. OSHAB 93-503, Decision After Reconsideration (July 31, 1998) that affirmative defenses must be pled prior to the hearing.
In the instant case, Employer did not assert in its appeal document that the stairway was an existing installation or make any references to facts which would have placed the Division on notice, prior to the hearing, of a possible affirmative defense with regards to the age of the stairway.
Employer only alleged The inspector issued citation on trifles in the absence of substantative (sic) issues and/or violations. The inspector turned the search for violations into a game in pursuit of personal enjoyment. Nothing in this allegation would have alerted the Division of a potential grandfather clause issue regarding Item 4 which would have given the Division sufficient time to prepare for the defense in advance of the hearing.
Employers are again placed on notice that they must specifically raise affirmative defenses or they are waived. (§§ 371, 371.2; California Erectors, supra; Monterey Abalone Farms, OSHAB 75-786, Decision After Reconsideration, (March 15, 1977).)
Since the Division did not receive the requisite notice, it was prejudiced at the hearing by Employers undocumented assertion that the stairway was thirty years old. Since the Division had no way of knowing at the hearing that Employer would raise the affirmative defense, we do not find against the Division in this case.
DECISION AFTER RECONSIDERATION
The Board affirms the ALJs decision issued in this matter. A general violation of section 3231(f) is established and a civil penalty of $125 is assessed.
MARCY V. SAUNDERS, Member
GERALD P. OHARA, Member
OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
SIGNED AND DATED AT SACRAMENTO, CALIFORNIA - March 28, 2001
1.Unless otherwise indicated, all references are to sections of Title 8, California Code of Regulations.