BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

 

In the Matter of the Appeal of:

SEQUEL CONTRACTORS, INC.

12240 Woodruff Avenue

Downey, CA 90241

                              Employer

 

 

Docket No.

99-R3D5-1055

 

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 proceeding by Sequel Contractors, Inc. (Employer) makes the following decision after reconsideration.

JURISDICTION

From August 19, 1998 through December 31, 1998, a representative of the Division of Occupational Safety and Health (Division) conducted an accident inspection at a place of employment maintained by Employer at Secondary Gate, Earle Street, Terminal Island, California (the site).

On January 7, 1999, the Division issued to Employer citations alleging general violations of sections 3328(b)1 [failure to inspect pneumatic hammer as recommended by manufacturer] and 3328(c) [use of defective pneumatic hammer] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations.

Employer filed timely appeals contesting the existence of the violations.

An administrative law judge (ALJ) of the Board heard the appeals in Torrance, California. Mitchell Ward, President, represented Employer. Alan Coie, Staff Counsel, represented the Division.

On February 4, 2000, the ALJ issued a decision denying Employer’s appeal from Citation 1, Items 1 and 2, but eliminating the penalty for Item 2.
On March 2, 2000, Employer petitioned the Board for reconsideration of the ALJ’s decision2. On March 30, 2000, the Division filed an answer to Employer’s petition. The Board granted Employer’s petition on April 5, 2000.

EVIDENCE

The Board has taken no new evidence and relies upon its independent review of the record, including the tape recording of the hearing and the exhibits in making this decision.

On August 18, 1998, Marc Pasamonte (Pasamonte), an employee of Employer, was injured when an air hose broke loose from a pneumatic hammer (chipping gun), striking him in the neck and chest. During a telephone call with Employer’s president Mitchell Ward, on August 19, 1998, the Division’s compliance engineer Fabian Trucios (Trucios) learned that the chipping gun involved in the accident had been rented from and returned to U.S. Rental Equipment. Trucios testified that he was told by someone at U.S. Rental that the chipping gun was at Bellmer & Gray Company. Trucios went to Bellmer & Gray Co., a “testing company”, where he was told by an unidentified person that the American Pneumatic chipping gun, that Trucios subsequently examined and photographed, was “. . . the hammer used at the Terminal Island project involved in the accident.”

At the hearing, Trucios identified a photograph of the chipping gun connected to an air hose and a photograph of the “female connector”, which attaches to the pneumatic hose. He identified the “male connector”, which attaches to the chipping gun, as having “some type of locking device” as part of a “Chicago fitting”. Trucios testified that he observed that the male connector on the chipping gun had part of an O ring missing, which could only be observed when the hose was disconnected from the gun. However, he opined that a leak in the connector could be detected if it was put under water under pressure. When Trucios examined the chipping gun under a microscope, he determined that the filaments in the threads in the end of the female connector were “smoothed out”, which he opined, sets up “flooding around the threads” from vibrations that cause the male connector to “float” and disconnect. When asked to identify the damages in the photographic evidence, Trucios stated that the damage to the threads was “hard to see, very small damages.”

Trucios testified that he received from Employer safety information for pneumatic tools from American Pneumatic Tool.

During his investigation, Trucios recorded Pasamonte’s statement in which Pasamonte stated that prior to using the chipping gun, he checked the “connectors to see if they were tight.” Employer’s foreman, Louis Laguna (Laguna), told Trucios that he did not inspect the equipment prior to giving it to Pasamonte.

Pasamonte testified that he inspected the chipping gun prior to using it. He said that he checked the hose to see if it was strong enough and that there were no cracks in it. Then he put the hose on the gun and “checked [that] no air was leaking out of it.” If air was leaking out, he would have seen dust and dirt “go flying” but he “didn’t see any dust blowing” when he set the gun down. He also “put the lock into the key in the connector to make sure the hose doesn’t come out.” Pasamonte denied telling Trucios that he did not check the chipping gun because it was provided to him by the foreman “ready to be used.”

Employer’s President, Ward, testified that employees are trained to inspect the chipping gun before use in accordance with the manufacturer’s instructions. The training records Ward produced indicated that in March 1998, Pasamonte was trained on personal protective equipment, however, Ward believed that the topic discussed must have been the use of pneumatic equipment.

ISSUES

1. Did the Division establish a violation of section 3328(b)?
2. Did the Division establish a violation of section 3328(c) where there was no foundational showing at the hearing that the pneumatic hammer (chipping gun), examined and photographed by the Division’s safety engineer during his investigation, and alleged to be defective, was the same pneumatic hammer being operated by Employer’s employee prior to the accident?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

1. The Division did not Establish a Violation of Section 3328(b).

Section 3328(b) provides:

Machinery and equipment in service shall be inspected and maintained as recommended by the manufacturer where such recommendations are available.

In deciding that the Division established a violation of section 3328(b) for failing to ensure that Employer’s employee inspected the chipping gun before using it, the ALJ found that, "the employee and his supervisor failed to check the threads or the inside of the coupling as directed by the manufacturer.” However, this statement is inaccurate insofar as the manufacturer’s recommendations, outlined in American Pneumatic Tool’s Safety Information: Tool Maintenance and Operation3, direct inspection of internal components. No where do the recommendations state that the pneumatic hose must be disconnected from the gun during the inspection so that the “the inside of the coupling”-presumably the male connector-can be inspected. It does state that the air hose must be inspected for “worn thread.”

The manufacturer’s instructions state, in pertinent part, that:

All APT tools must be inspected to make sure they are working properly prior to operation. All components must be checked to make sure they are tight and there are no missing or damaged parts. . . . ALWAYS inspect all air hoses for cracks, worn threads, damaged or loose quick disconnect couplings in order to prevent injury resulting from a whipping hose.

Trucios’ testimony that he inspected the chipping gun for defects is mainly relevant to Item 2, however, portions of his testimony bear on the Division’s misinterpretation of the scope of the inspection required by the manufacturer’s recommendations for items such as worn thread, missing or damaged parts, and damaged or loose quick disconnect couplings. Trucios testified that he examined the female connector, which attaches to the pneumatic hose under a microscope and detected filaments in the threads in the end of the connector, which were “smoothed out.” If the filaments were not visible to the naked eye, it would not appear upon inspection of the air hose under normal conditions that the thread was worn.

Unlike our holdings in cases dealing with “latent defects”4, when an employer is cited for a violation of section 3328(b), the regulations promulgated by the Occupational Safety and Health Standards Board require that the manufacturer’s recommendations be followed. The Board does not find however that the Standards Board requires such detailed, microscopic scrutiny as espoused by the Division as the basis for establishing a violation under section 3328(b).

When asked to look at the Division’s photographic evidence, Trucios stated that he could not see any damage to the threads because they were “hard to see, very small damages.” It can reasonably be inferred from his testimony that the damages were not readily visible to the naked eye, and hence, not discoverable in an inspection that is performed solely to “make sure they [APT tools] are working properly prior to operation.” (italics added)

For the same reason, missing or damaged parts (if any) in the male connecter, which attaches to the chipping gun, could not have been discovered during a normal pre-operation inspection since, as Trucios testified, the alleged missing part of the O ring could only be detected when the hose was disconnected from the gun. The manufacturer’s instructions do not recommend disconnecting the pneumatic hose to inspect internal parts in the (male) connector during a safety inspection. It only requires that the user properly check the components to see that they are tight and not fitted with damaged parts or missing parts. Since the recommendations are silent on the issue of disassembling component parts, the Appeals Board will not in this case read a nonexistent requirement into the manufacturer’s recommendations since we presume because of the unique wording of this regulation that the Standards Board intended that the manufacturer’s recommendations should be followed because the manufacturer should be most knowledgeable about the hazards associated with the use of its product.

In Appeals Board proceedings, the Division has the burden of proving a violation, including establishing the applicability of the safety order, by a preponderance of the evidence5 (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 Division did not establish which components the manufacturer intended that the user inspect for “worn thread.” The manufacturer’s recommendation does not state where to inspect for worn thread, except to reference the “air hoses.”

Does worn thread refer to thread in the male connector or the female connector, or in the quick disconnect couplings? This aspect of the Division’s proof is critical to establishing the violation since the ALJ did not indicate if he credited or discredited Pasamonte’s testimony when he recited that the injured employee “inspected the equipment prior to the accident by checking the hoses and making sure that he had a good seal at the coupling”. A review of the record reveals that Pasamonte never stated that he was “making sure he had a good seal at the coupling.” Pasamonte did testify that he told Trucios (and Trucios confirmed) that he checked the connectors to see if they were “tight”, which conforms to the manufacturer’s recommendations. Pasamonte’s testimony did not establish that he failed to “check the threads” when he was checking the air hoses.

A review of the record reveals that Pasamonte testified additionally that during his inspection he checked to see if the hose was strong enough; that there were no cracks in it; he determined that there was no air leaking out of it after he connected the hose to the gun; and he “put the lock into the key into the connector to make sure the hose doesn’t come out.” Based upon our review of the record, we are compelled to conclude that the evidence does not justify the findings of fact. [See Labor Code § 6617(c)] Employer’s appeal of Item 1 is granted.

2. The Division did not Establish a Violation of Section 3328(c) Since it Failed to Prove the Preliminary Fact that the Pneumatic Hammer that the Division’s Safety Engineer Examined and Photographed During his Investigation was the Same Pneumatic Hammer Being Operated by Employer’s Employee Prior to the Accident.

The Division did not present any evidence to prove the preliminary fact6 that the chipping gun (pneumatic tool) examined and photographed by Trucios was the same air tool used by Pasamonte on August 18, 1998. Although it proffered evidence7, which was admitted, that the chipping gun was defective because part of the O ring was missing, it failed to establish facts preliminary to introduction of the proffered evidence. The proponent of the proffered evidence, the Division, has the burden of producing evidence as to the existence of the preliminary fact8.

A review of the record reveals that Trucios, having learned from Employer on August 19, 1998, that the chipping gun had been rented from and returned to U.S. Rental Equipment, ascertained from U.S. Rental Equipment that the equipment was at Bellmer & Gray Company. At that location, on an undisclosed date, Trucios was shown an American Pneumatic chipping gun and was told by an unidentified person that it was “. . . the hammer used at the Terminal Island project involved in the accident.”

At the hearing, the Division presented photographs of the gun that Trucios examined at Bellmer & Gray Company, but did not show these photographs to any witness other than Trucios. Neither Ward nor Pasamonte testified that Pasamonte used the tool depicted in the exhibits. The photographs bear what appears to be a print time-stamp of “18-12-98”, which we assume is December 18, 1998, however, this question was not asked of Trucios at the hearing. The Division did not establish when the photographs were taken or disprove the possibility that the tool had been rented out to others, and altered or damaged by other operators of the equipment in the approximately four months since the accident, is one that the Appeals Board cannot ignore.

There also is no evidence that the equipment that Trucios examined and photographed bore any marks, serial numbers, model number, or special manufacturer’s labels that would distinguish it from any other American Pneumatic chipping gun. The Division failed to present Employer’s original rental invoice and trace, the custody of the chipping gun from Employer’s facility to the Bellmer & Gray Company. Without this type of foundational evidence, the Division’s attempt to prove that this was the same chipping gun used by Pasamonte through the hearsay statement of an unidentified person at Bellmer & Gray Company is woefully inadequate.

Although Employer did not object to the statement’s hearsay content at the hearing, it raised it in its Petition when it questioned the validity of the Division’s review of the equipment at the “testing lab.” (Employer’s Petition for Reconsideration, at page 2; see § 376.29) A review of the exceptions to the hearsay rule set forth in the Evidence Code reveals that the statement does not come under any exception to the hearsay rule, and hence, in this proceeding, cannot by itself prove that the chipping gun examined by Trucio was the one Pasamonte used. Based on its independent review of the evidence, the Board finds that the Division did not establish a violation of section 3328(c).

 

DECISION AFTER RECONSIDERATION

The Decision of the ALJ issued in this matter on February 4, 2000, is reversed as to Citation 1, Items 1 and 2. Accordingly, Employer’s appeal is granted. Citation No. 1, Items 1 and 2 are dismissed.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: August 29, 2001


1 Unless otherwise indicated, all references are to sections of Title 8, California Code of Regulations.
2 Employer contended in its petition for reconsideration that it was unaware that it would have to defend against allegations raised for the first time at the hearing with respect to Citation 1, Item 1, to wit, that the tool was defective because of a concealed O ring that could only be discovered in an inspection if the tool was disassembled. Employer also contended in its petition for reconsideration, and at the hearing, that it was not prepared to litigate Citation 1, Item 2, because the Division had agreed at an informal hearing to “drop” that item. Employer argued that it would have presented a representative from American Pneumatic Tool, the author of the manufacturer’s recommendations, had it been given proper notice. Because the Board does not concur in the ALJ’s findings and reasons for the decision upholding Items 1 or 2, those grounds will not be considered.
3 In order to establish a violation of section 3328(b), the Division must first establish that the tool’s manufacturer made available recommendations as to the inspection and maintenance of air hammers. (See Lee Way Motor Freight, Inc., OSHAB 82-067, Decision After Reconsideration (Jan. 17, 1986.) That was accomplished in this case because Employer, in its petition for reconsideration, does not dispute that Exhibit 9 is the manufacturer’s recommendations for the safe operation of American Pneumatic Tool air hammers, or that it’s employee operated an American Pneumatic Tool air hammer.
4 In Anheuser-Busch Companies, OSHAB 84-113, Decision After Reconsideration (July 30, 1987), the Board rejected the argument of an employer cited under section 3328(c)-[“Machinery and equipment with defective parts which create a hazard shall not be used.”]-that a cracked microswitch in a compressor could not be discovered upon reasonable examination; and since it was a latent condition, it should not be held liable. The Board rejected those arguments since the employer did not have a program of regular preventive maintenance to determine the need for repair of parts before there was a failure. It found that the broke microswitch was not a “latent” condition, even though the switch was out of sight, because the employer could have discovered it by opening the compressor to get at its parts “doubtless something that had to be done upon occasion and was clearly a foreseeable need.” (Anheuser-Busch Companies, supra.)
5 “Preponderance of the evidence” is usually defined in terms of probability of truth, or of evidence that, when the quality of which is weighed with that opposed to it, has more convincing force and greater probability of truth. (See Lesslie G. v. Perry & Associates (App. 2 Dist. 1996); 43 Cal.App.4th 472 [review denied]; In re Michael G. (App. 4 Dist. 1998) 63 Cal.App.4th 700; and Witkin, California Evidence, 4th Edition, vol.1, § 35.)
6 Evidence Code § 400 states, in pertinent, that: “As used in this article, “preliminary fact” means a fact upon the existence or nonexistence of which depends the admissibility or inadmissibility or evidence.” The Law Revision Commission Comment to Evidence Code § 400 notes that: “Preliminary fact” is defined to distinguish those facts upon which the admissibility of evidence depends from those facts sought to be proved by that evidence.
7 Evidence Code § 401 states that: “As used in this article, “proffered evidence” means evidence, the admissibility of inadmissibility of which is dependent upon the existence or nonexistence of a preliminary fact.”
8 Evidence Code § 403(a) states that: “The proponent of the proffered evidence has the burden of producing evidence as to the existence of the preliminary fact, and the proffered evidence is inadmissible unless the court finds that there is evidence sufficient to sustain a finding of the existence of the preliminary fact, when: (1) The relevance of the proffered evidence depends on the existence of the preliminary fact; . . .”
9 Section 376.2 states, in pertinent part, that: "Hearsay evidence may be used for the purpose of supplementing or explaining other evidence but over timely objection shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. An objection to hearsay is timely if made before submission of the case or raised in a petition for reconsideration."