BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

 

In the Matter of the Appeal of:

SAV-ON DRUG STORES

3151 University Avenue

San Diego, CA 92104

                              Employer

 

 

Docket No.

98-R3D2-038

 

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 Sav-On Drug Stores (Employer), makes the following decision after reconsideration.

JURISDICTION

Between July 18 and December 5, 1997, the Division of Occupational Safety and Health (the Division), through Associate Industrial Hygienist Elisa Koski, conducted a complaint inspection at a place of employment maintained by Employer at 3151 University Avenue, San Diego, California (the site).

On December 5, 1997, the Division issued Employer a citation alleging a serious violation of section 4353(h)1 [stationary compaction equipment and balers], with a proposed civil penalty of $935.

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

The case was heard before Dennis M. Sullivan, Administrative Law Judge of the Board (ALJ) on October 1, 1998. Robert Stricker, Attorney, represented employer. Katherine Wolff, Attorney, represented the Division. The parties presented oral and documentary evidence and the matter was submitted that day.


On October 30, 1998, the ALJ issued a Decision reducing the classification of the violation from serious to general and assessing a civil penalty of $185.

On December 2, 1998, pursuant to Labor Code section 6617, Employer petitioned for reconsideration on the grounds that:

1. The evidence presented did not justify the findings of fact; and
2. The findings of fact did not support the ALJ’s decision.

On January 12, 1999 the Board granted the petition for reconsideration. The Division filed an answer to the petition on December 28, 1998.

EVIDENCE

Employer had a stationary vertical compactor/baler [compactor] in a stockroom at the back of its store. Employees used the compactor to compress and bale the cardboard boxes in which bulk merchandise arrived. Inspector Koski testified that she had no prior experience with compactors, and that neither her documentation worksheet nor her inspection notes contained any information concerning the two tests about which she testified and which formed the basis for the alleged violation. Inspector Koski issued a citation because she observed that the compactor’s ram/tamper [ram] continued to operate in violation of section 4353(h) while the upper gate, covering the opening through which cardboard was loaded into the charging chamber, was not fully closed. She testified that while at the site in July, 1997 she asked Store Manager Stanbra to insert a broom handle into the intake opening of the charging chamber and press the button that caused the compactor to cycle. According to Koski, when that was done, the automatic upper gate began to descend first, but the ram started moving downward before the gate completed its descent and the lower portion of the opening was still uncovered. She also testified that when the gate came down on the broom handle and stopped moving, the ram continued downward and Stanbra had to jerk the broom handle out of the opening to keep it from being caught in the shear point created between the near side edge of the descending ram and the bottom edge of the rectangular intake opening.

Koski returned on December 3, 1997, and asked Stanbra to conduct another test on the compactor. During the test she noted that the automatic upper gate did not operate in tracks which would keep it flush against the side of the compactor. She asked Stanbra to start the compactor cycle. The start button was pushed and when the gate was at or near the closed position she asked Stanbra to pull the bottom edge of the gate away from the opening. He pulled the bottom of the gate away a distance Koski estimated to be approximately one foot, and the ram kept descending.

Based on her inspection, Koski concluded that there was no automatic interlock on the compactor that prevented the upper gate from being opened while the ram was operating and that prevented the ram from operating while the gate was open.

Employer called Erick Mickelson as a witness. He testified that he has owned A-1 Hydraulics for six years. A-1 Hydraulics is a business that services compactors and balers. In Mickelson’s opinion, a properly set and maintained autogate model compactor was safer than a manual gate compactor with the automatic interlock required by the safety order. According to Mickelson, the ram delivers 80,000 pounds of compacting pressure and the operating cycle takes approximately one minute to complete. When an autogate compactor is working in accordance with the manufacturer’s specifications the gate starts down first as the operating cycle is activated. After the gate has descended several inches, the ram starts down. The ram descends at ½ or ¼ the speed of the gate which closes over the 20” high intake opening in a maximum of two seconds. By the time the gate is closed the ram has descended only approximately eight inches. If the gate encounters an obstacle enroute to the closed position, the ram reverses direction and retracts before it has descended another full inch. Mickelson inspected Employer’s autogate compactor shortly before the hearing and found it to be working in accordance with the manufacturer’s specifications.

Store Manager Mark Stanbra, testified that, to his knowledge, no employee had ever been injured by the compactor. He remembered testing the compactor with a broom handle on July 18, 1997, for Ms. Koski. He recalled that when the bottom of the gate contacted the broom handle the ram reversed direction and retracted, and the gate rose. He testified that he did not participate in the test performed by Koski on December 3, 1997, when she returned.

ISSUE

Did the Division present sufficient evidence to support a violation of section 4353(h)?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

The Division did not Present Sufficient Evidence to Support a Violation of Section 4353(h).

Employer contends the evidence does not justify the findings of fact because the ALJ credited the testimony of Employer’s witnesses Mark Stanbra and Erick Mickelson and DOSH Associate Industrial Hygienist Elisa Koski and that Stanbra’s and Mickelson’s testimony directly contradicts Koski’s.

The Appeals Board has consistently held that the Division has the burden of proving a violation, 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).) The ALJ’s findings 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; Metro-Young Construction Company, OSHAB 80-315, Decision After Reconsideration (Apr.23, 1981).)

Employer was cited under section 4353(h), which reads as follows:

An automatic interlock shall be installed on all vertical compactors and balers so that the upper gates cannot be opened while the ram/tramper is operating and the ram/tramper cannot operate while the gates are open.

Inspector Koski testified that when the broom handle was inserted into the opening of the compactor, causing the gate not to close, the ram still operated. She also testified that in another instance when the gate hit bottom and was pulled out away from the opening, the ram still descended. The ALJ credited this portion of Koski’s testimony, adding that it was consistent with the principles of the autogate. The ALJ found that this portion of Koski's testimony was consistent with Mickelson’s testimony. When Mickelson testified that the subject compactor is not less safe because the ram movement begins before that gate is fully closed, he established that the ram is moving while the gate is still open.

Stanbra testified that when the gate hit the 1” diameter broom handle that had been inserted into the intake opening, the ram started back up thus establishing that the ram continued moving while the gate was not fully closed.

We disagree that Stanbra’s and Mickelson’s testimony directly contradicts Koski's. The ALJ found, and we concur, that the testimony of Inspector Koski and Employer’s expert witness, Erick Mickelson, established that the ram on the autogate compactor was designed to, and did, start the descending stroke of its operating cycle while the automatic gate had yet to cover the bottom 8 inches or so of the intake opening.

In addition, no witness testimony established that an automatic interlock was installed on the unit that prevented the ram from operating while the upper gate was open or that employees were not exposed to the hazard.

Even if we adopted Mickelson’s opinion that “an autogate compactor functioning within the manufacturer’s specifications is safer than a manual gate compactor with an automatic interlock” there are no exceptions to the automatic interlock requirement in section 4353(h), and only the California Occupational Safety and Health Standards Board is statutorily authorized to promulgate or amend safety orders (See, e.g., Hubbard Structures, Inc., OSHAB 86-329, Decision After Reconsideration (Dec. 31, 1986); Hampshire Construction Co., OSHAB 79-949, Decision After Reconsideration (Aug. 26, 1980); Duke Timber Construction Co., Inc., OSHAB 81-347, Decision After Reconsideration (Aug. 19, 1985).)

Thus, we find no legal merit in Employer’s argument that because “[t]he ALJ specifically noted that Mickelson is a knowledgeable and forthright witness…, [so that the] ALJ credited all of Mickelson’s testimony” this somehow creates a situation where the evidence does not justify the findings of fact.


Employer contends that no violation of section 4353(h) has occurred because the subject compactor is in compliance with section 4353(a)(3) which requires a compactor to be guarded by means “which will positively prevent employees from entering the zone of travel of the ram while it is in operation, or will positively prevent any travel of the ram whenever an employee enters or reaches into the zone of travel of the ram. Section 4353(a) addresses general means for guarding all power driven compaction equipment and balers by requiring that at least one of three enumerated protection methods be utilized. Subsection (h), on the other hand, is a command to provide an automatic interlock on all vertical compactors and balers so that the upper gates cannot be opened while the ram/tramper is operating and the ram/tramper cannot operate while the gates are open. Where general and specific orders on a subject exist, the Division must cite the more specific standard, which it did here. (See Carver Construction Co., OSHAB 77-378, Decision After Reconsideration (Mar. 27, 1980).)

Employer argues that it was not in violation of section 4353(h) because the meaning of the phrase “and the ram/tramper could not operate while the gates are opened [sic]” is ambiguous. To the contrary, the language of section 4353(h) is to be read as plain language. (See Mar-Val Food Stores, OAHAB 92-1507, Decision After Reconsideration (July 10,1995).) In Mar-Val Food Stores the Board had the opportunity to address the meaning of the word “operating” in section 4353(h). The Division appealed the ALJ’s finding that it had failed to establish a violation since it was found that section 4353(h) applies only to the downward stroke of the ram; the ram on the compactor at issue in that case continued to operate on the upward stroke with the gate open. The Board, citing Webster’s New World Dictionary, found that the word “operate” means “to be in action.” There, the Board stated “[n]othing in the section’s [4353(h)] language limits the term ‘operate’ to the downward stroke of the ram.” Accordingly, Employer’s contention here that “open” for purposes of section 4353(h) means “only when the ram can close completely while the gates are open” is rejected. “Open” is not qualified in section 4353(h); its plain meaning is “to move (as a door or lid) from its shut position.”3 Since the language of section 4353(h) is not defective or imperfect, and the facts establish a violation, the Board is required to enforce the section as drafted by the Standards Board. (See City of Sacramento Fire Department, OSHAB 88-004, Decision After Reconsideration (Mar. 22, 1989).)

The Board affirms the ALJ’s findings that “Employer’s vertical compactor did not have an automatic interlock that prevented the ram from operating while the upper gate was open. Employees using the compactor were exposed to the violative condition.” We find a violation of section 4353(h) is established.

DECISION AFTER RECONSIDERATION

The Board affirms the ALJ’s decision. A general violation of section 4353(h) is found and a civil penalty $185 is assessed.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: April 27, 2001

1 All section references are to Title 8, California Code of Regulations, unless otherwise indicated.
3 Webster’s Third New International Dictionary (1981) p.1579.