BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

CRANSTON STEEL STRUCTURES
1209 Commerce Avenue
P. O. Box 1036
Woodland, CA 95776

                              Employer

 

 

Docket No.

98-R2D1-3268
and 3269

 

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 Cranston Steel Structures (Employer), makes the following decision after reconsideration.

JURISDICTION

On April 24, 1998, a representative of the Division of Occupational Safety and Health (the Division) conducted an accident (fatality) investigation at a place of employment maintained by Employer at 280 North Pioneer, Woodland, California (the site).

On September 16, 1998, the Division cited Employer for a general violation of section 1509(a) [Injury and Illness Prevention Program] and a serious violation of section 1670(a) [fall protection], of the occupational safety and health standards and orders found in Title 8, California Code of Regulations.1

Employer timely appealed contending that the safety orders were not violated, the classifications were incorrect, and the proposed civil penalties were unreasonable.

On May 18, 2000, this matter came on regularly for hearing before Bref French, Administrative Law Judge (ALJ) for the Board, in Sacramento, California. Robert Peterson, attorney, represented Employer. Nicholas Champlin, staff counsel, represented the Division.

On June 16, 2000, the ALJ issued a decision, incorporated herein, which denied Employer’s appeal. Employer filed a petition for reconsideration on July 20, 2000. The Division answered on August 23, 2000.

The Board granted Employer’s petition for reconsideration on August 28, 2000.

EVIDENCE

The Board incorporates and adopts the evidence enunciated in the Decision of the Administrative Law Judge.

ISSUES

1. Did the evidence establish a violation 1509(a)?
2. Did the evidence establish a serious, accident-related violation of 1670(a) [fall protection]?


FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

Employer argues that:

1. The Appeals Board, acting through the ALJ, acted without or in excess of its powers in issuing the subject decision, and
2. The evidence does not justify the findings of fact, and
3. The findings of fact do not support the decision.

1. The Division Established a Violation of Section 1509(a).

Employer argues that there is no evidence that it failed to establish, implement, and maintain its Injury and Illness Prevention Program (IIPP) and that the only alleged deficiency in the IPPP was its failure to adequately instruct Stephen Tillery (Tillery) to use fall protection, as evidenced by the fact that it had no training records.

We disagree. We have closely examined the record and conclude that there are no flaws in the ALJ’s decision.

Section 1509(a) requires employers to have an IIPP that satisfies the requirements of section 3203(a). Training is the touchstone of any effective IIPP and Employer was to provide training and instruction “to all new employees.” (Section 3203(a)(7).) Pursuant to section 3203(b)(2), employers are required to document that training.

As found by the ALJ, Tillery was a manual laborer, sent by Labor Ready to work for Employer. It was Tillery’s first day on the job. Employer did not establish that he had been trained by Labor Ready, the primary employer. Nevertheless, Employer assigned Tillery to bring insulation and roofing materials to ironworkers on the roof, only giving him repeated verbal instructions to stay away from the leading edge when they saw him approaching it.2

Employer maintains the verbal admonitions satisfy the training requirements for an IIPP. There was no documentation at the time of the inspection, because the verbal training had just been concluded and there was no time to prepare it before the Division’s request. Whether there was time to document the training is irrelevant in this instance because there was no evidence of training. Although testimony of the training might, in this case, have substituted for documentation, the alleged safety trainer was not even called as a witness at the hearing. Moreover, when, at the time of inspection, the compliance officer asked Employer about the training, Employer provided no information.

Tillery had no fall protection and no special training as to how to handle himself on the roof. Witnesses to the tragic events thought that sunlight on the silver galvanized decking may have confused him. Appropriate training may have alerted him to that hazard. Training as to the hazards presented by places of employment is a critical element of an effective IIPP. We find no reason to overturn the determination by the ALJ that a verbal warning is not a substitute for more comprehensive fall protection training. Tillery was not trained and, based upon the totality of circumstances present at the job site, we find sufficient evidence to conclude that Employer did not implement its IIPP in violation of section1509(c).

2. The Division Established a Violation of Section 1670(a) and the Violation was Properly Classified as Serious and Accident Related.

As to the alleged violation of section 1670(a), Employer argues that due process only required it to defend against those facts that were alleged by the Division at the time the citation was issued. Employer contends that Mr. Nelson testified for the Division that the citation for the 1670(a) violation was issued solely because Employer failed to require Mr. Tillery to use fall protection equipment. It argues that “[a]ny other alleged factual conditions which may have allegedly constituted a different violation were not required to be defended by Petitioner at hearing, for it had no notice of any such allegations and, consequently, had no opportunity to prepare any defense to any such charges.”

The Division disagrees with Employer’s due process argument and argues that “[c]onsistent with the charges set forth … alleging a violation of Section 1670(a), the Division presented evidence at hearing demonstrating that Petitioner’s employees (i.e. ‘the ironworkers’) were exposed to the hazard of working at [an] elevated location without the use of fall protection while bolting down metal panels at the leading edge”… and that “[t]his evidence was admitted into the record without objection from Petitioner’s counsel. On appeal, Petitioner has failed to demonstrate how it was prejudiced when it was sufficiently clear from the face of Citation No. 2 that the Division would indeed pursue these charges.”

As to Employer’s due process argument the Appeals Board requires only general “notice” pleading (via citation) from the Division. (See, e.g., Sacramento Bag Mfg. Co., Cal/OSHA App. 91-320, Decision After Reconsideration (Dec. 11, 1992).) Due process requires the Division to include within its citations a sufficiently detailed description of the circumstances surrounding the alleged violation. (Hauswald Construction Company, Cal/OSHA App. 75-1060, Decision After Reconsideration (Apr. 26, 1977).) The description in the citation itself must give the employer fair notice and enable it to prepare a defense. Certified Grocers of California, Ltd., Cal/OSHA App. 78-607, Decision After Reconsideration (Oct. 27, 1982). Where an employer alleges that a citation lacks sufficient particularity, the Appeals Board has held that it must show prejudice in order to sustain a due process argument. (Contra Costa Electric, Inc., Cal/OSHA App. 90-1067, Decision After Reconsideration (Mar. 5, 1992); Novo-Rados Constructors, Cal/OSHA App. 78-135, Decision After Reconsideration (Apr. 28, 1983).

Where a citation is sufficiently clear to afford notice, the Appeals Board will not dismiss it for lack of due process since it is presumed that Employer was prepared to defend against such citation at hearing. (Contra Costa Electric, Inc., supra, at page 3; Lights of America, Cal/OSHA App. 89-400, Decision After Reconsideration (Feb. 19, 1991); See also, Sacramento Bag Mfg., supra, at p. 5.).)


Employer finally contends that, “evidence does not establish that the alleged violation, [of section 1670(a)] if upheld, was properly classified as ‘serious.’ It asserts there is a lack of any substantial evidence that Petitioner’s sole management representative at the site on the date of the alleged violation, Mr. DeKalb, had knowledge that Mr. Tillery would not only access the leading edge but, did, in fact, do so while proceeding to walk over the decking just laid, over the insulation also just placed, and over and through the plastic “underlayment.”

Employer states that the section 1670(a) citation was inappropriately characterized as “accident-related” because “Petitioner’s conduct did not cause Mr. Tillery’s accident; rather, it was Mr. Tillery’s own intentional misconduct which resulted in his unfortunate demise.”

The Division argues that the ALJ correctly determined that the violation was both serious and accident-related arguing, “the ALJ made findings of fact and drew reasonable inferences based upon the existing record. … the record amply supports the ALJ’s findings that Petitioner’s management representative, foreman Jeff DeKalb, knew or should have known of the violative condition, namely Mr. Tillery’s lack of fall protection and his pre-accident proximity to the leading edge. These findings should not be disturbed on appeal in the absence of contrary evidence of considerable substantiality.”

And that, “the ALJ did not err when she determined that [the] violation was accident-related. As the Decision correctly notes, the Division need only demonstrate that the serious injury was caused by a serious violation…. Here, the ALJ credited the Division (Nelson’s) determination that Mr. Tillery was not wearing fall protection when he sustained his fatality, thereby establishing a casual nexus between the accident and the violation.”

We do not find any flaws in the ALJ’s decision. The decision accurately reflects the position the Board wishes to adopt based upon the law and facts of the case. Therefore, the Findings and Reasons for decision are also adopted in their entirety and incorporated herein.


DECISION AFTER RECONSIDERATION

Docket No. 98-R2D1-3268

The Board affirms the ALJ’s decision finding a general violation of section 1509(a) and assessing a civil penalty of $400.

Docket No. 98-R2D1-3269

The Board affirms the ALJ’s decision finding a serious, accident-related violation of section 1670(a) and assessing a civil penalty of $5,000.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: March 26, 2002

1 Unless otherwise specified all references are to sections of Title 8, California Code of Regulations.
2 Employer claims that a single instance of a shortcoming in an IIPP is not sufficient to sustain a violation. We note that, according to Employer and other witnesses, Tillery was warned on multiple occasions to stay away from the leading edge. In addition to training, a fully implemented IIPP has provision for the imposition of sanctions against employees who violate safety rules and engage in unsafe practices. Yet, Tillery was permitted to stay on the roof. We further note that the ironworkers were working at a height in excess of 33 feet without fall protection, additional evidence of a deficiency in Employer’s safety program.