BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

AIRCO MECHANICAL, INC.,
5720 Alder Avenue
Sacramento, CA 95828

 

                              Employer

 

 

Docket No.

99-R2D1-3140

 

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 Airco Mechanical, Inc. [Employer], makes the following decision after reconsideration.

JURISDICTION

Commencing on October 23, 1999, 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 965 Orchard Creek Lane, Lincoln, California (the site). On November 19, 1999, the Division issued a citation to Employer alleging a serious violation of section1 1621(a) [guardrails], with a proposed civil penalty of $5,000.

Employer filed a timely appeal contesting the existence and classification of the violation, and the reasonableness of both the abatement changes and the civil penalty. A hearing was held before Dennis M. Sullivan, Administrative Law Judge (ALJ), in Sacramento, California. James Dufour, Attorney, represented Employer. Joel Halverson, Compliance Officer, represented the Division.

On July 25, 2000, the ALJ issued a decision granting Employer's appeal, in part, by reclassifying the violation to a general violation and assessing a civil penalty of $500.

On August 24, 2000, Employer filed a petition for reconsideration. No answer was filed by the Division. The Board granted Employer’s petition on October 13, 2000.

EVIDENCE

Employer, a contractor that installs heating, ventilating and air conditioning systems, was engaged by a general contractor to do that type of work on a clubhouse under construction at a planned community development.

Joel Halverson [Halverson], the investigating Compliance Officer for the Division, testified that he initiated his inspection on October 26, 1999, in response to a report that an employee had been seriously injured in a fall accident at the site on June 11, 1999.

Halverson learned that the injured employee was Justin Artero [Artero], a pre-apprentice plumber, who began working for Employer at the site three to four months earlier. On the morning of the accident he was helping another employee bolt pipe hangers through the second story deck. First, they drilled holes in the deck. Next the other employee stood on a ladder on the ground floor and pushed the threaded shaft of a hanger up through one of the holes. Artero, who was on the deck, then put a washer on the shaft and screwed a nut onto it until the hanger was the proper distance below the deck. When they began working, steel cable top and mid rails providing adequate fall protection were around the open sides of the second story deck. The rails were installed by a contractor specializing in that work.

Sometime between 8 a.m. and 11 a.m. on the day of the accident, employees of Pacific Erectors, the decking subcontractor on the job, took down the steel cable rails to begin erecting a corrugated metal firewall along the edge of the deck in the area where Employer's employees were installing the pipe hangers. When erected, the firewall would enclose the edge of the deck and replace the cables. At about 11 a.m., the Pacific Erectors employees left that work location temporarily before the firewall was erected. They did not restore the effective cable guardrail system. Instead, they ran the loose end of the top cable through the supporting eyelet and fastened it with a single clip.

At approximately 11:30 a.m., Artero, who was back on the deck, went to the edge of the deck to look down and coordinate with his working partner on the ground level. In doing so, he grabbed the cable and leaned against it, causing the clip to slip off. The cable sagged and Artero fell 15½ feet to the ground floor. As a result of the fall, Artero suffered fractures, contusions, and internal injuries that required hospitalization for several days of treatment.

ISSUES

1. Is the Board’s determination of Employer’s violation of section 1621(a) precluded by the Division’s failure to make a determination required by section 336.11?

2. Can section 336.11 be asserted as an affirmative defense to a violation of the safety order? If so, does it include a “reasonableness” standard based upon information available to an employer?

3. Is a determination of Employer’s violation of section 1621(a) precluded where it is found that Employer did not know of the violation or hazard with the exercise of reasonable diligence?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

Employer does not dispute that an unsafe guardrail condition existed and that its employee working on the second story deck at the time of the accident was exposed to the hazard, i.e., that there was a violation of section 1621(a). Rather, Employer maintains that since it was unaware of another subcontractor’s removal of the adequate guardrail, and could not know of this removal with the exercise of reasonable diligence, it should not be liable for the violation in view of the defenses under the multi-employer regulation, section 336.11.

Employer asserts that: 1) the Appeals Board, through its ALJ, acted in excess of its powers because the evidence established and the Division admitted that it did not render a determination of possible applicable defenses prior to issuance of the subject citation as required by section 336.11 for multiple employer worksites, 2) that based upon the mandatory language in section 336.11 requiring the Division to consider the possible applicable defenses, the Division failed to meet its burden of proof; and 3) that the finding made by the ALJ that Employer did not know of the hazard is inconsistent with a finding that Employer violated section 1621(a).

Multi-Employer Worksite Regulations

This is the first occasion the Board has been presented with issues requiring interpretation and application of the Multi-Employer Worksite regulations contained in Article 4.5 of Subchapter 3.2, Division 1 of Title 8 of the California Code of Regulations. The regulations were promulgated on December 1, 1997 by the Director of the Department of Industrial Relations, effective December 31, 1997.

The regulations were promulgated in response to Federal/OSHA’s notice to the Department that the State’s occupational safety and health program was not as effective as the federal program because it failed to provide enforcement of standards at worksites having more than one employer present at the same time. (California Regulatory Code Supplement, Register 97, No. 49, Dec. 5, 1997, p. 1)

Under the Federal/OSHA program, the citation policy provided for issuance of a citation to employers whose employees are exposed to a hazard (the exposing employer). Additionally, the policy provided that citations may be issued in appropriate circumstances to employers who create hazards (the creating employer), employers who are responsible for conditions at the worksite (the controlling employer), and employers who have responsibility for actually correcting the hazard (the correcting employer)-- regardless of whether or not their own employees are exposed to the hazard.2

Prior to the new regulations in California, for the most part the Division’s citation policy only permitted citation of the employer whose own employees were exposed to a hazard regardless of which employer created the hazard or was responsible for correcting it.3 Existing Board precedent also holds that an employer is responsible for its employees who are exposed to a hazard even if the employer did not create the hazard (Frederick Meiswinkel, Inc., Cal/OSHA App. 77-1241, Decision After Reconsideration (Feb. 24, 1982) and an employer is not shielded from liability for a violation created by a third party if the employer’s employees are exposed to the violative condition (Department of Transportation, Cal/OSHA App. 81-0017, Decision After Reconsideration (Nov. 24, 1981).

Sections 336.10 and 336.11 are the multi-employer worksite regulations promulgated by the Director of the Department of Industrial Relations. Section 336.10 establishes the categories of employers on multi-employer worksites that may be cited when the Division has evidence that an employee was exposed to a hazard in violation of a safety order.4 It states:

On multi-employer worksites, both construction and non-construction, citations may be issued only to the following categories of employers when the Division has evidence that an employee was exposed to a hazard in violation of any requirement enforceable by the Division:

(a) The employer whose employees were exposed to the hazard (the exposing employer);

(b) The employer who actually created the hazard (the creating employer);

(c) The employer who was responsible, by contract or through actual practice, for safety and health conditions on the worksite; i.e., the employer who had the authority for ensuring that the hazardous condition is corrected (the controlling employer); or

(d) The employer who had the responsibility for actually correcting the hazard (the correcting employer).
Note: The employers listed in subsections (b) through (d) may be cited regardless of whether their own employees were exposed to the hazard.

Section 336.11 provides:

Prior to issuing any citation to an exposing employer, the Division shall first determine whether available information indicates that the employer meets each of the defenses listed below. If the Division concludes that all five defenses have been met, the citation shall not be issued. These defenses are:

(a) The employer did not create the hazard.

(b) The employer did not have the responsibility or the authority to have the hazard corrected.

(c) The employer did not have the ability to correct or remove the hazard.

(d) The employer can demonstrate that the creating, the controlling and/or the correction employers, as appropriate, were specifically notified or were aware of the hazards to which his/her employees were exposed.

(e) The employer took appropriate feasible steps to protect his/her employees from the hazard, instructed them to recognize the hazard and, where necessary, informed them how to avoid the dangers associated with it. For the purposes of this section, where an extreme hazard is involved, appropriate feasible steps include removing the employer's employees from the job, if there is no other way to protect them from the hazard.

A plain reading of both sections indicates that the provisions establish a citation policy, embodied in regulation, directed to the Division to determine which employer(s) may to be cited in multi-employer worksite investigations.5 Under section 336.11, the Division must make an assessment based upon available information whether an exposing employer meets all of the enumerated defenses prior to issuance of a citation against that employer. We now turn to the issues in this case which raise, among other issues, the Division’s failure to initially make the assessment provided in the regulations and the effect of such failure in the appeal proceedings based upon the issued citation.

1. The Determination of Employer’s Violation of Section 1621(a) by the Board is not Precluded by the Division’s Failure to Make a Pre-Citation Determination Required by Section 336.11 Regarding the Applicability of Defenses at Multi-Employer Worksites.

a. The Board is not Bound by the Director’s Regulation Directed to the Pre-Citation Determination of the Law and Facts Regarding a Violation of a Safety Order.

Pursuant to section 336.11, the Division is required to make a determination of the applicability of each of the listed defenses before issuing a citation to an exposing employer. The Division’s failure to follow the pre-citation procedure, however, does not bind the Board in its role of resolving an appeal from the issued citation alleging a violation of a safety order.

The Board is an independent adjudicatory agency responsible for resolving appeals from citations. (Rick’s Electric, Inc. v. California Occupational Safety and Health Appeals Bd. (2000) 80 Cal.App.4th 1023, 1027.). The statutory scheme providing the authority of the Board establishes its preeminence in interpreting and applying the standards and regulations. (Limberg Construction, Cal/OSHA App. 78-433, Decision After Reconsideration (Feb. 21, 1980).)

Labor Code Section 148.6 provides that “[a] decision of the appeals board is binding on the director and the Division of Occupational Safety and Health with respect to the parties involved in the particular appeal.” A corollary to this statutory pronouncement is that a position of either the Director or the Division is not binding on the Board.6

If an employer appeals a citation, order, or proposed penalty, the Appeals Board “...shall thereafter issue a decision, based on findings of fact, affirming, modifying, or vacating the division’s citation, order, or proposed penalty or directing other appropriate relief.” Labor Code section 6602 (italics added) It is the authority vested in the Appeals Board that is necessary to transform a citation, order, or proposed penalty issued by the Division into either an enforceable final order or an enforceable decision. (See, Limberg, supra).

Determining if and how the law applies to the fact s of a case is one of the Appeals Board’s principal statutory duties. (R.D. Engineering & Construction, Inc., Cal/OSHA App. 98-1938, Decision After Reconsideration (Aug. 29, 2001)) In performing his adjudicatory role as assigned by the Board, the ALJ was free to hear and consider all relevant facts material to a determination of a violation of section 1621(a) as alleged in the citation, including the legal effect to be given to the failure of the Division to consider the five defenses prior to issuance of the citation against the exposing employer as required by section 336.11.

Section 336.11 of Title 8 of the California Code of Regulations establishes a procedural requirement directed to the Division prior to the issuance of a citation. It sets forth the Director’s (executive) enforcement policy for the Division to follow in issuing citations for violations of safety orders on multi-employer worksites. In view of its enactment with section 336.10 and a reading of the two regulations comprising Article 4.5 “Multi-employer Worksites”, we conclude that the regulation provides a procedural pre-citation evaluation requirement that is intended to preclude the Division’s issuance of a citation against an exposing employer under the specified conditions and based upon available information at the time (pre-citation).

Once a citation is issued to any employer who timely appeals that citation, the Board is vested with exclusive authority for resolution of the matter in accordance with established appeal procedures. If the Board is charged with rendering a decision fully resolving a citation in an appeal proceeding that is binding on the Director and the Division, the Board cannot be bound by the Division’s pre-citation evaluation of the facts and the law and the Division’s position thereon. Indeed, were the Board to be bound, it would conflict with the employer’s right to present affirmative defense evidence at the subsequent hearing before the ALJ—a right which is made explicit by Board regulation. (See § 376.1) The Director’s regulation prescribing a pre-citation evaluation directed to the Division cannot therefore, bind the Board’s adjudication of the violation of section 1621(a) that was in fact cited by the Division and appealed to the Board.

We hold that the ALJ’s finding of a violation of section 1621(a) necessarily and correctly implies that the Division’s failure to comply with section 336.11 (i.e., to “first determine” whether the employer meets each of the [five] listed defenses...”) does not bind or limit the Board in resolving the citation that was in fact issued to the exposing employer based upon the facts presented at the appeal proceeding.

b. The Requirement in Section 336.11 that the Division Make a Determination of Applicable Defenses Prior to Issuing a Citation is “Directory”.

Employer maintains that because section 336.11 requires the Division to make the prescribed pre-citation determination, the Division’s failure to comply with the section invalidates the citation issued by the Division. Here, section 336.11 contains the words “shall first determine” to establish a preliminary act the Division must perform prior to issuing a citation to an “exposing employer.”

An agency’s failure to comply with a procedural requirement will not normally invalidate subsequent agency action thereon if the requirement is “directory.” The courts have developed a test to determine whether an agency’s failure to perform a required act invalidates the underlying agency action.

The courts have held that “... the directory or mandatory designation does not refer to whether a particular statutory requirement is permissive or obligatory, but instead simply denotes whether the failure to comply with a particular procedural step will or will not have the effect of invalidating the governmental action to which the procedural requirement relates.” (Morris v. County of Marin (1977) 18 Cal.3d 901, 908) Many statutory provisions which are “mandatory” in the obligatory sense are accorded only “directory” effect. (Id., at 908, fn. 4)

The determination of a particular statutory provision as mandatory or directory is a question of intent. “In the absence of express language, the intent must be gathered from the terms of the statute construed as a whole, from the nature and character of the act to be done, and from the consequences which would follow the doing or failure to do the particular act at the required time. … When the object is to subserve some public purpose, the provision may be held directory or mandatory as will best accomplish that purpose ....” (Id., at 910, quoting Pulcifer v. County of Alameda (1946) 29 Cal.2d 258, 262.)

Section 336.11 provides that the Division must first determine, based upon the available evidence, whether the “exposing employer” meets each of five stated defenses. If the Division determines that all five defenses are met, it shall not issue a citation. Significantly, there is no stated consequence for the Division’s failure to make the pre-citation determination. 7

In the absence of any consequence provided when the Division fails to make the pre-citation determination regarding the applicable defenses of an exposing employer based upon available information, we find that the requirement in section 336.11 directed to the Division is “directory” only and the failure of the Division to perform the prescribed act does not invalidate the ensuing citation.

2. Section 336.11 May be Asserted as an Affirmative Defense to a Violation of the Safety Order; However, Employer’s Proffered Interpretation of Section 336.11 is Rejected as Contrary to Both the Language in the Regulation and the Purposes of the Act.

While we determined above that the Division’s failure to make the prescribed determination under section 336.11 does not invalidate the subsequent citation, our holding will not preclude an exposing employer cited for violation of a safety order from asserting section 336.11 as an affirmative defense in an appeal proceeding.

As the adjudicatory body charged with fully resolving the rights of the parties in appeal proceedings contesting a citation, order or proposed penalty issued by the Division, the Board is mindful of ensuring protection of due process rights of the parties before the Board. This includes ensuring an opportunity for a hearing on an exposing employer’s assertion of the regulatory defense provided in section 336.11.

When a procedural infirmity exists regarding the Division’s failure to perform the procedural pre-citation determination regarding the five defenses stated in the regulation, the circumstances surrounding the Division’s failure and the substantive provisions of section 336.11 may still be raised and fully determined in an appeal proceeding regarding the cited violation. Thus, an exposing employer cited for violation of a safety order may assert section 336.11 as an affirmative defense in an appeal proceeding.8

The Board’s authority to affirm, modify, or vacate a citation, order, or proposed penalty, or provide other appropriate relief (Labor Code §6602) requires a thorough review of the facts. Any determination of the applicability of section 336.11, the multi-employer defenses provided therein, and the type of relief to be granted by the Board must be made on a case-by-case basis.

In essentially treating its position as a defense, Employer also asserts throughout its petition that section 336.11 must be “reasonably” interpreted and applied so that it takes into account the employer’s knowledge and reasonable diligence based upon available information. Employer maintains that since it did not know of the violation or hazard it cannot be logically obligated to satisfy all five of the defenses set forth in section 336.11 but only those which are applicable based upon “available information.” Other than being able to show that it did not create the hazard, Employer asserts it cannot be held to any of the other required defenses.

We reject Employer’s interpretation of section 336.11 since the regulation expressly requires satisfaction of all five defenses and note that Employer’s very position demonstrates that it failed to establish all five of the stated defenses. Employer’s arguments are more relevant to the violation’s classification, not to its existence or the affirmative defense.

We also reject Employer’s suggestion that section 336.11 must be interpreted as including a “reasonableness” standard which weighs the available information to ensure that strict or nearly absolute liability is not imposed upon the exposing employer. A modification of the express substantive terms of the established regulation is not within the Board’s authority.

Employer’s proffered interpretation would obviate the affirmative duties of an employer under the Act since the defense available under section 336.11 would only hold an exposing employer accountable for hazards it knows or, with reasonable diligence, could be aware of. Employer’s interpretation would create the undesirable danger that the obligations under the safety orders, mandatory in nature, would become subservient to defenses based upon an employer’s knowledge of information available to it at the time.

We decline to interpret the regulation in a way that contravenes the purposes of the Act, that is aimed at providing and ensuring employee safety and health. (See, Carmona v. Division of Industrial Safety (1975) 13 Cal.3d 303, 312-313)

3. A Violation of a Safety Order is not Based upon an Employer’s Lack of Knowledge of the Violation or Hazard

Employer asserts that the ALJ’s findings of fact do not support the decision determining a general violation of section 1621(a) because the ALJ expressly ruled that the Division failed to establish that Employer knew of the violation or, in exercising reasonable diligence, could have known of the inadequate guardrails at the open side of the second story deck.

Employer misperceives the “knowledge” and “reasonable diligence” standards that are alternative standards for determining the classification of the violation as serious or willful. Neither are necessary elements in establishing the existence of a violation of the safety order.9(Concrete Wall & Sawing Co., Inc., Cal/OSHA App. 97-1777, Decision After Reconsideration (June 5, 2001).)

In the absence of Employer establishing the affirmative defense available under section 336.11, long held Board precedent holds that an employer is liable for a safety violation if its employees are exposed to a hazard and an employer will be held liable for its employee’s exposure even if the hazard was actually created by a third party. (Concrete Wall & Sawing Co., Inc., supra, citing Manpower, Inc., Cal/OSHA App. 78-533, Decision After Reconsideration (Jan. 8, 1981) and Cal-Cut Pipe & Supply Co., Cal/OSHA App. 76-955, Decision After Reconsideration (Aug. 26, 1980).)

Since it was undisputed that a hazard existed due to the lack of adequate railing on the open side of the second story deck where Artero was working, and he was exposed to the hazard, a violation of section 1621(a) was established.

DECISION AFTER RECONSIDERATION

The Board affirms the ALJ’s decision finding a general violation of section 1621(a) and assessing a civil penalty of $500.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: April 25, 2002

1 Unless otherwise specified, all section references are to Title 8, California Code of Regulations.
2 The federal Occupational Safety & Health Review Commission (this Board’s federal counterpart) independently recognized an affirmative defense available to an exposing employer cited for hazardous conditions it did not create or control. See e.g., Beatty Equipment Leasing, Inc. 4 OSHC 1211 (1976), affirmed 577 F.2d 534 (9th Cir.1978); Anning-Johnson Co., 4 OSHC 1193 (1976); Grossman Steel & Aluminum Corp., 4 OSHC 1185 (1976). The Review Commission’s Anning-Johnson/Grossman rule was adopted by the Secretary of Labor for citation purposes. (Rothstein, Occupational Safety and Health Law, West Group, 4th ed., 1998, §168, p. 227) The federal multi-employer citation policy is contained in Federal/OSHA’s Field Inspection Reference Manual (FIRM), Chapter III, Inspection Documentation, section C-6. The citation policy was subsequently modified in 1999 in OSHA Directive CPL 2-0.124 – Multi-Employer Citation Policy, effective 12/10/99. The language contained in the State regulations was patterned on the pre-modified federal citation policy contained in the FIRM.
3 See DOSH Policy and Procedure Manual, P&P C-1C, Mutli-Employer Worksite Inspections, issued Jan. 1, 2000, p. 1.
4 In 1999, the Legislature codified the existing provisions of section 336.10 with respect to the responsibility of employers at multi-employer worksites. Labor Code section 6400 (Stats. 1999, ch. 615, §4; AB 1127, effective January 1, 2000).
5 See footnote 3 infra for citation to the Division’s policy and procedure for multi-employer worksite inspections following the promulgation of sections 336.10 and 336.11.
6 The Board recognizes that a proposed penalty assessed in accordance with the penalty setting regulations promulgated by the Director pursuant to Labor Code section 6319(c) is presumptively reasonable. (See, Dye & Wash Technology, Cal/OSHA App. 00-2327, Denial of Petition for Reconsideration (July 11, 2001); [Hyatt Die Casting Co., Inc., Cal/OSHA App. 93-1530, Decision After Reconsideration (Oct. 1, 1997) Evidence must be presented which substantiates the proposed penalty amount. An employer may present evidence to the Board which justifies, modifies, or vacates the proposed penalty. (See Labor Code Section 6602.)
7 The language providing that a citation shall not be issued if the Division determines that the employer has met all five defenses does not provide a consequence for a failure of the Division to make the determination in the first instance. The language only provides a consequence (i.e., that a citation shall not issue) when there is an affirmative determination by the Division that an employer has met all five of the enumerated defenses.
8 Likewise, this holding preserves an employer’s right to petition for costs if it prevails and the evidence demonstrates that the Division issued the citation to the exposing employer for arbitrary or capricious reasons under Labor Code section 149.5.
9 Also, contrary to Employer’s argument, the ALJ’s finding that the Division failed to establish a violation of section 1511(b)[survey of site conditions], is not inconsistent with nor impacts upon the validity of the ALJ’s determination of a violation of section 1621(a) [guardrails]. Neither section has a knowledge element in order to determine a violation.