BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

HERITAGE RAILWAY SERVICE, INC.
P.O. Box FF
Taft, CA 93268

 

                              Employer

 

 

Docket No.

98-R4D5-1088

 

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 Heritage Railway Service, Inc. [Employer], makes the following decision after reconsideration.

JURISDICTION

From January 8, 1998 through March 13, 1998, 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 19329 Southlake Road, Taft, California (the site). On March 18, 1998, the Division issued to Employer a citation alleging a serious violation of section1 3210(a) [no guardrail or equivalent protection], with a proposed civil penalty of $4,000.

Employer filed a timely appeal contesting the existence of the violation, its classification, and the reasonableness of the proposed civil penalty. Employer also asserted the affirmative defense of an independent employee act.

On April 6, 1999 and April 18, 2000, a hearing was held before Bref French, Administrative Law Judge (ALJ) of the Board, in Bakersfield, California. Olga Balderama, Attorney, represented Employer. Lyle Garratt, Compliance Engineer, and David Pies, Staff Counsel, represented the Division.

On July 24, 2000, the ALJ issued a decision denying Employer's appeal.

On August 23, 2000, Employer filed a petition for reconsideration. The Division filed an answer on September 14, 2000. The Board granted Employer’s petition on September 20, 2000.

EVIDENCE

Employer operates a railway repair yard at the site. In the course of its business it performs repairs on different types of railroad tank cars. On November 11, 1997, Anselmo Munoz [Munoz], a welder’s helper employed by Employer, was assigned by his supervisor, Dan Nelson [Nelson], to weld or “tack down” bolts on the top of a liquefied petroleum gas [LPG] tank car. Nelson brought the cars to be worked on to the yard that morning.

The tank car had a metal walkway platform with guardrails on top running its length except for a break in the guardrail at the center dome of the tank car that allowed access from a ladder. The evidence established that this opening in the guardrail at the center dome was protected with a removable safety chain which afforded equivalent guardrail protection2 on those occasions when it was latched across the opening.

It is undisputed that the location atop the tank car where Munoz performed his assignment was a “working level” or “platform.” Munoz testified that he climbed to the top of the tank car via a permanently affixed ladder on the “A” side3 of the car and that he exclusively used the “A” side ladder for access to the top. He carried up his tools and a lead cable from the welding machine. He draped the lead cable across the top of the tank car from side to side to support its weight and he worked his way from the “A” side to the “B” side.

Munoz testified that after completing the welding assignment and while he was in the process of removing his equipment, the lead cable caught on the center dome as he was wrapping it up. He pulled on it, lost his balance, reached for the safety chain4 by the gap above the center ladder but found nothing to grab and fell to the ground a distance he estimated to be between 16 and 20 feet. He landed on his heels shattering them and injuring his back.

ISSUES

1. Did section 3210(a) as it existed on November 11, 1997 apply to elevated locations other than buildings or building structures?

2. Is the Independent Employee Act [IEA] Defense available to Employer?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

1. Section 3210(a) as it Existed on November 11, 1997 Applied to Buildings and Other Elevated Locations.

Employer asserts that section 3210(a), as that section existed at the time of the accident, did not apply to elevated locations but only to buildings because of a parenthetical reference to the California Building Code [Title 24, § 509.7] that appeared following the 15th exception to section 3310(a) at the time of the alleged violation.

At the time the citation was issued, section 3210(a) read, in pertinent part:

(a) Guardrails shall be provided on all open sides of unenclosed roof openings, open and glazed sides of landings, balconies or porches, platforms, runways, ramps, or working levels more than 30 inches above the floor, ground, or other working areas.

In HFS Investments, Inc., dba Hadley Auto Transport, Cal/OSHA App. 96-3079, Decision After Reconsideration5 (Jun. 6, 2001), the Board rejected a similar argument. In HFS the Board found that the language in section 3210(a) making reference to “platforms, runways, … or working levels more than 30 inches above the floor, ground or other working areas … makes it clear that the Standards Board intended to go beyond the confines of the Building Standards Code and protect employees working on other kinds of equipment … from which they could fall.”6

Employer erroneously argues that “the ALJ did not refer to any Board decision holding that section 3210(a) applied to locations other than buildings prior to May, 1999 for the simple reason that there were no such decisions.” [Emphasis added] Contrary to Employer’s assertion, several decisions have applied section 3210(a) to locations other than buildings. 7

We find that Employer was properly cited under section 3210(a) as it existed on November 11, 1997 because the language of that section made it applicable specifically to platforms or other working levels more than 30 inches above ground and the employee here was working on a platform atop a railroad tank car between 16 and 20 feet above the ground.

2. The IEA Defense is Unavailable When Positive Guarding is Requried by the Safety Order

The Board has long recognized that where protection against a particular hazard must be provided by means of positive guarding, an employer’s instructions, admonitions, or warnings are not an adequate substitute. Bethlehem Steel Corporation, Cal/OSHA App. 78-723, Decision After Reconsideration (Aug. 17, 1984). Where positive guarding is required, the Board has held that an independent employee action defense cannot be used to excuse an employer’s failure to provide required guarding. City of Las Angeles Department of Public Works, Cal/OSHA App. 85-958, Decision After Reconsideration (Dec. 31, 1986); Kaiser Aluminum and Chemical Corp., Cal/OSHA App. 80-1014, Decision After Reconsideration (Feb. 19, 1985).

Most recently, the Board held that “[b]ecause of the inherent hazard presented by unguarded scaffold platforms and an employer’s non-delegable duty to inspect and provide guardrails for such scaffold platforms, Employer cannot avail itself of the independent employee action defense.” Pierce Enterprises, Cal/OSHA App. 00-1951, Decision After Reconsideration (Mar. 20, 2002).8 In Pierce, we held that there was an analogous non-delegable duty to provide positive guarding for an elevated work platform. Looking at the language of section 3210(a) we note that the Standards Board did not make any exception for access points9 among the 15 exceptions that it listed following 3210(a) at the time the citation was issued. Had the Standards Board desired to create such an exception, it was within its authority to do so; but it did not. The plain language of section 3210(a) supports the conclusion that its requirements are applicable to the elevated working platform at issue here.

In this case the platform atop the tank car was unguarded at the center opening in the guardrail, except for a chain that was unlatched at the time of the accident. We find that section 3210(a) establishes a positive guarding requirement that seeks to avoid the inherent hazard of falling presented by the absence of guarding of elevated platforms on tank cars. We find that Employer does not provide adequate guarding if it provides a guard but does not insure that it remains in place while an employee is working on a raised platform. Providing and insuring adequate guarding is the responsibility of Employer.10

Since the evidence established that Employer failed to provide effective guarding as required by section 3210(a), a non-delegable requirement before assigning Munoz to work on the elevated platform, the IEA defense is not available to Employer.11

DECISION AFTER RECONSIDERATION

The Decision of the ALJ is affirmed and a civil penalty of $4,000 is assessed.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: April 10, 2002

1 Unless otherwise specified, all section references are to Title 8, California Code of Regulations.
2 For purposes of this Decision After Reconsideration, we accept the ALJ’s finding that the type of LPG tank car from which Munoz fell was equipped with a removable safety chain designed and fabricated in accordance with the American Railway Engineering Manual, which chain is an acceptable “alternate means” of fall protection.
3 Testimony established that the tank car had an “A” side and a “B” side [terminology used for the ends of the tank car]; the “B” side was the side where the brake for the tank car was located and the “A” side was the opposite end of the car.
4 Munoz testified that he tried to grab for the safety chain but “at that time there was no safety chain” and he fell to the ground.
5 “Decision After Reconsideration” is referenced in the footnotes as “DAR.”
6 Our analysis here is consistent with HFS and covers the same argument. In both HFS and this case, the employer argues that the parenthetical reference to the same section of the Building Code [§ 509.7] limits coverage of § 3210 to only buildings or building structures.
7 In Pace Arrow, Inc., Cal/OSHA App. 78-1016, DAR (Nov. 19, 1984), we found a repeat violation of section 3210(a) where there were unguarded scaffolds surrounding the four sides of a mobile home under construction. Similarly, in Jamboree Industries, Inc., Cal/OSHA App. 78-1188, DAR (Aug. 31, 1984), the Board found a violation section 3210(a) for failure to have guardrails on cross-scaffolds erected six feet above ground along the front and rear of motor homes that the employer was constructing. In Purdy Company of Illinois, Cal/OSHA App. 79-281, DAR (Dec. 20, 1984), the Board found that the top of the flatcar was a platform subject to guardrail requirements. In Plant Operations, Inc., Cal/OSHA App. 84-159, DAR (Dec. 2, 1987), the employer was cited for lack of guardrails on a crusher car platform, approximately 16 feet above ground [the crusher is a device on four wheels that runs on rails], and we found a serious violation of section 3210(a). We find that there is ample support for application of section 3210(a) to elevated locations other than buildings prior to the issuance of the citation in this case.
8 The independent employee action defense is an affirmative defense wherein the employer is required to prove each of five elements; under Mercury Service, Inc., Cal/OSHA App. 77-1133, DAR (Oct. 16, 1980) the employer to show that: (1) the employee was experience in the job being performed; (2) the employer has a well-devised safety program which includes training employee in matters of safety respective to their particular job assignments; (3) employer effectively enforces the safety program; (4) employer has a policy which it enforces of sanctions against employees who violated the safety program; and (5) the employee caused a safety infraction which he or she knew was contrary to the employer’s safety program.
9 Munoz fell through an unguarded access point at the center of the tank car.
10 In the case of a removable safety chain that is deemed to provide protection equivalent to the guarding requirements and where it is unlatched by an employee, a requirement to see that the chain is re-latched may be assigned to employees under certain conditions; for instance, where an employee removes the safety chain to gain access to the platform, the employee may be required to re-establish the guarding condition provided by the employer. If the employee’s work duties required that he or she unlatch the already latched chain guard to gain access for him or herself or equipment to the dome area, then the independent employee action defense may be available provided the elements are otherwise satisfied. In this case, although the ALJ found that the latched chain was an effective substitute for the guarding requirement contained in section 3210(a), our review of the record reveals insufficient evidence regarding the circumstances of an employee’s allowed use of the chain, which conceivably could be unlatched to gain direct access to the dome by employees or equipment (without using the A or B side [end] access). We cannot determine on the facts presented by Employer whether Munoz’ work duties required that he unlatch the chain guard for access by him or his equipment to the dome area. In the absence of sufficient facts on this issue, Employer has failed to meet its burden in establishing the availability of the IEA defense.
11 Assuming arguendo that the IEA defense is available to Employer, the ALJ’s findings regarding Employer’s failure to satisfy the elements of the independent employee action defense are correct. Based on a review of the record and the testimony that Employer had no rule in effect requiring employees to latch safety chains on top of tank cars, we find Employer did not sustain its burden of proving the fifth element of the Mercury Service (IEA) defense.