OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
DEPARTMENT OF INDUSTRIAL RELATIONS
STATE OF CALIFORNIA
In the Matter of the Appeal of:
3111 Winona Avenue
3111 Winona Avenue
Burbank, CA 91504
Burbank, CA 91504
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 Janco Corporation (Employer) makes the following decision after reconsideration.
Between September 22, 1998 and January 28, 1999, the Division of Occupational Safety and Health (the Division), through Associate Industrial Hygienist Thomas J. Moorman, conducted a complaint inspection at a place of employment maintained by Employer at 3111 Winona Avenue, Burbank, California (the site).
On January 28, 1999, the Division issued to Employer a citation alleging a serious violation of section 3382(a) [eye protection], with a proposed civil penalty of $750.1
Employer filed a timely appeal contesting the classification of the violation and the reasonableness of the proposed penalty. At hearing, Employer was allowed to expand its appeal to include the existence of the alleged violation.
The case was heard before Dale A. Raymond, Administrative Law Judge of the Board (ALJ) in Van Nuys, California. Employer was represented by its Health and Safety Supervisor, Steven M. Brown. The Division was represented by Associate Industrial Hygienist Thomas J. Moorman. On October 4, 1999, the ALJ issued a decision finding a serious violation of section 3382(a) and assessing a civil penalty of $750.
Employer filed a timely petition for reconsideration on November 8, 1999, the Division filed an answer to the petition on December 10, 1999, and the Board granted review of Employer's petition by Order dated December 20, 1999.
Employer, a manufacturer of switches and potentiometers, operates a small plating department where two employees dip small metal parts into chemical tanks. A number of those tanks contain corrosive chemicals capable of inflicting serious injury should they contact the eye.2
To apply plating, an employee stands before a tank with a part or parts suspended from a light wire hook or rack and dips the parts into the tank. In some instances parts are placed inside a permeable barrel drum, weighing about 2 lbs., which the employee partially submerges in the tank; in one tank, a metal basket is sometimes used.
Both employees testified that they wore safety glasses with side shields while dipping parts; however, the Division produced photographs of the two employees wearing either safety glasses without side shields or normal prescription glasses while performing the operation. In one of the photographs, two hooks are being used to dip a jumper cable into a tank. The employees testified that they did not use safety goggles, which fully enclose the eyes, or face shields, which cover the entire face, because the atmosphere around the tanks causes fogging.
The tanks themselves are waist high and, with two exceptions, each has a positive and negative bar running lengthwise about 4 inches below the surface that would prevent either a barrel drum or a wire rack from falling all the way in. The employees testified that a dropped hook would not cause much of a splash. Although they conceded that either a basket or a jumper cable could fall all the way in, they testified that in their experience-10 years for one employee and 30 years for the other-they had never received an eye injury nor did they have any knowledge that an eye injury had ever occurred from a chemical splash. Employers log of industrial injuries does not disclose any such injury over the past 25 years.
The Division's inspector testified that safety glasses, which are designed to protect the eyes against flying solid objects, are insufficient to protect against accidental splashes from the liquids in Employers tanks.
The ALJ accepted the employees testimony that a splash created by dropping a hook, rack or small part into a tank would not be large enough to endanger their eyes. However, the ALJ found that a splashing injury could occur in either of the two tanks that lacked bars if the basket used to dip parts accidentally fell into the tank or if an employees hand or arm were suddenly plunged into a tank because the employees hands or arms slipped or were accidentally bumped. The ALJ also found that the bars on the remaining tanks were too far apart (12") to prevent a similar slipping or bumping accident or a dangerous splash should a large object-for instance the jumper cables, accidentally fall into one of them.
1. Does the weight of the credible evidence support the ALJs conclusion that Employer violated section 3382(a)?
2. Is the violation properly classified as serious?
3. Is a civil penalty of $750 warranted?
FINDINGS AND REASONS
DECISION AFTER RECONSIDERTION
1. The Weight of Credible Evidence Supports the ALJs Conclusion that the Safety Order was Violated.
Section 3382(a) provides:
Employees working in locations where there is a risk of receiving eye injuries such a punctures, abrasions, contusions, or burns as a result of contact with flying particles, hazardous substances, projections or injurious rays which are inherent in the work environment, shall be safeguarded by means of face or eye protection.
The employer shall provide and ensure that employees use protection suitable for the exposure. [Emphasis supplied.]
Both plating employees acknowledged the potential hazard of chemical splashes when they wear safety glasses while dipping parts. Employer also conceded that there exists, a realistic possibility of employee exposure to the danger of chemical splashes. However Employer argued that the safety glasses used provide adequate protection against chemical splashes.
We are asked then to decide whether safety glasses afford protection suitable for the exposure.
Section 3382(d) incorporates the American National Standards for Occupational and Educational Eye and Face Protection promulgated by the American National Standards Institute (ANSI) and published by the American Society of Safety Engineers.
Section 6 of the current ANSI standard (Z87.1-1989) describes and illustrates the range of available eyewear and Section 7, devoted to Protector Selection, contains a Selection Chart which breaks down the situations requiring protection into categories-impact, heat, chemical, dust and radiation-and lists the eye protection suitable and unsuitable for each. The portion of the chart devoted to chemicals specifically mentions plating and designates goggles, eyecup and cover types as the protection suitable for exposure to chemical splashes. Spectacles3, on the other hand-regardless of whether or not they have side shields-are designated: Not Recommended.
Here, the ALJs factual findings of possible incidents which could occur and her conclusion that those incidents could realistically cause a splash large enough to reach an employees eyes coincide with the concern expressed in the ANSI standard and have adequate support in the record. In making those findings and reaching that conclusion, she had to weigh and evaluate conflicting testimony. The Board has long held that an ALJs resolution of such conflicts is 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. Workmens Compensation Appeals Board (1970) 3 Cal.3d 312, 318; Sav-On Drug Stores, OSHAB 98-038, Decision After Reconsideration (April 27, 2001).) By wearing safety glasses, each of the employees conceded the existence of a risk of a splash directly in the eye. That being so, what is so improbable about a splash just above the rim of the spectacle that drops down into the eye? The inconsistency is heightened by the fact that one employee is 6'2"and the other 5'7". We find that the facts of this case establish that it is not improbable that a chemical splash could get into the employees' eyes. We conclude the risk to the taller employee and the employee who is seven inches shorter is also exposed to the risk of a chemical splash over the rim of his eyeglasses. Since the 6'2"employee concedes the risk of a direct splash in the eye, then surely the 5'7" employee also should be concerned about a splash over the rim of his glasses. We also note that the evidence shows that the photographs show one wearing safety glasses without side shields and the other wearing normal prescription glasses. This confirms to us that the "safety glasses" were not sufficient protection from splashes. Those photographs directly contradict the employees testimony that they wore safety glasses with side shields whenever they dipped parts.
The fact that no one in Employers small, two-person plating department has yet received an eye injury from a chemical splash is not dispositive. The purpose of the Occupational Safety and Health Act is to prevent accidents, not to wait from them to occur and fix the blame.... (Gal Concrete Construction Co., OSHAB 89-317, Decision After Reconsideration (Sept. 27, 1990).)
In its petition for reconsideration, Employer argues that the ALJ failed to consider the ruling of the Federal Occupational Safety and Health Review Commission in Con Agra Flour Milling Co., OSHRC Docket No. 88-1250 (Apr. 22, 1993) [1993 CCH OSHD ¶ 30,045], specifically the Commissions finding that employee testimony carries greater weight than the testimony of others who lacked first hand knowledge of the process.
Before discussing that decision, it is important to be clear about the relationship of the federal OSHA program to that of the California program.
In the Federal Occupational Safety and Health Act of 1970 (29 U.S.C. §§ 651 et seq.) Congress adopted a technique which the Supreme Court has aptly described as a program of cooperative federalism that allows the States, within limits established by federal minimum standards, to enact and administer their own regulatory programs, structured to meet their own particular needs. (Hodel v. Virginia Surface Mining and Reclamation Assn (1981) 452 U.S. 264, 289.) (Emphasis supplied.) Once a state has enacted and qualified its plan, federal preemption is removed so that the state may exercise its own sovereign powers over occupational safety and health. There is no indication in the language of the [Federal] act that a state with an approved plan may not establish more stringent standards than those developed by Fed/OSHA (citation omitted). A state is required only to provide a program at least as effective as Fed/OSHAs. (29 U.S.C. §667(c)(2).) (United Air Lines, Inc. v. Occupational Safety and Health Appeals Board (1982) 32 Cal.3d 762, 772-773.)
In so holding, the California Supreme Court cited with approval Skyline Homes, Inc. v Occupational Safety and Health Appeals Board (1981) 120 Cal.App.3d 663, 671, where the court said:
We cannot agree that various decisions by the federal Occupational Safety and Health Appeals Board [sic] require that the decision of the California appeals board herein be reversed. Congress has created a reverse preemptive scheme in its act. Any state that desires to assume responsibility for development and enforcement of occupational safety and health standards may do so, and so long as the state plan is as effective as the federal regulations the federal regulations are without any force or effect within the state. (29 U.S.C. §§665, 667(b).) California has so assumed responsibility and federal law is thus inapplicable to the issue herein.
The Appeals Board is not therefore constrained to follow federal OSHA precedent. The California Occupational Safety and Health Act of 1973 establishes the sovereignty and preeminence of California Law and the interpretation of that law by California Courts. (Kaiser Steel Corporation, OSHAB 78-1161, Decision After Reconsideration (Mar. 5, 1981).)
Here, Employer relies on the Federal Review Commissions statement in Con Agra Flour Milling that, Generally speaking, where employees testify from their own knowledge and experience on matters that pertain to their specific work activities, their testimony should be given greater weight than that of witnesses who do not have first-hand experience with the operation in question. (1993 CCH OSHD at p. 41,234.)
So many factors enter into the assessment of a witness credibility that simple prescriptions are dangerous. The California Evidence Code contains a list, by no means exhaustive, of matters to be considered in evaluating a witness testimony: demeanor; character of testimony; capacity to perceive, recollect or communicate; opportunity to perceive; character for honesty or veracity; bias, prejudice, interest or other motive; prior consistent or inconsistent statements; the existence or non-existence of any fact testified to; and attitude toward the action or the giving of testimony. (Evidence Code, § 780.)
While employee experience can be helpful and at times crucial in resolving a factual issue, we refuse to canonize that notion; there are too many other variables. We note significant inconsistencies in the testimony of the two employees and emphasize the ALJs unique ability to gauge witness demeanor and weigh witness statements in light of their manner on the stand. We also note that any employee witness who is still employed is confronted with the real or perceived risk of offending his or her employer by giving unfavorable testimony. Furthermore, where a safety hazard is remote, employees are often unsympathetic to the required use of personal protective equipment that inhibits movement or interferes with comfort or convenience. All of those factors-and others-are deserving of consideration in evaluating employee testimony.
In Oliver Wire & Plating Co., Inc., OSHAB 77-693, Decision After Reconsideration (April 30, 1980) we stated:
It is not necessary for the Division to present actual proof of hazardous splashing if a realistic possibility of splashing exists. Conjuncture as to what would happen if an accident occurred is sufficient to sustain (a violation) the existence of unsafe working conditions if such a prediction is clearly within the bounds of human reason, not pure speculation.
Here, the ALJ properly weighed and evaluated the evidence presented by Employer and the Division and concluded that Employers employees are exposed to the realistic possibility of eye injury from chemical splashes and that spectacles, with or without side shields, do not afford suitable protection. 4 We accept those findings and affirm the ALJ's conclusion.5
2. The Violation is Properly Classified as Serious.
For a violation to be classified as serious, two requirements must be met. First, the Division must prove that, if an accident were to occur, it is more likely than not that the injury inflicted would result in death or serious bodily harm; second, it must be shown that the employer either knew or, in the exercise of reasonable diligence, could have known of the hazardous condition. (Labor Code, §6432; C.C. Meyers, Incorporated, OSHAB 95-4063, Decision After Reconsideration (June 7, 2000).)6
Here, Employer did not dispute the Divisions evidence that, if an employee were to receive a splash in the eye, the injury would likely be serious in nature. Hence, the first requirement was met.
As for the knowledge requirement, Employer apparently takes the position that, based on its prior experience and that of the two employees, it had no reason to suspect that a splashing injury could occur.
But that is not the test. An employer is not required to know the consequences of a proscribed condition; its awareness of the existence of the violative condition is enough. (Louisiana-Pacific Corporation, OSHAB 78-256, Decision After Reconsideration (Oct. 20, 1983); West Coast Steel, OSHAB 81-191, Decision After Reconsideration (May 15, 1985); C.C. Meyers, Incorporated, supra.) Here, the violative condition was the wearing of spectacles. If Employer either knew or could reasonably have foreseen that its employees would wear spectacles rather than goggles, the knowledge requirement was met; there was no need to go further and establish its awareness of the realistic possibility of eye injury from doing so.
Since Employer admitted knowing that its employees wore spectacles, the requisite knowledge is present, and the violation is properly classified as serious.
3. The ALJ Properly Imposed a Civil Penalty of $750.
The Appeals Board has the ultimate authority to assess penalties (See Labor Code, § 6602; Capri Manufacturing Co., OSHAB 83-869, Decision After Reconsideration (May 17, 1985). In exercising that authority, it may reduce a penalty proposed by the Division; however, there must be a good and sufficient reason for doing so.
In appealing the size of the penalty, Employer relies, once again, on the absence of prior injuries and on the testimony of the two employees that they neither suffered nor saw an eye injury in their combined 30 years of experience. As discussed above the ALJ properly weighed and evaluated that evidence, along with the conflicting evidence presented by the Division, in concluding that there existed a realistic possibility of employee exposure to the danger of chemical splashes. There is, however, reason to believe that such an injury, though possible, is unlikely.
In arriving at a proposed penalty, Likelihood-the probability that an injury will occur as a result of the violation-is a factor that the Division must consider. (§335(a)(3).) Here, it did so by reducing the gravity based penalty by 25%, and the ALJ accepted the proposed reduction.
Since the low likelihood of a chemical splash injury was taken into account in arriving at the assessed penalty, the Board sees no reason to grant a further reduction.
DECISION AFTER RECONSIDERATION
The Decision of the ALJ dated October 4, 1999 is affirmed, a serious violation of section 3382(a) is established and the civil penalty of $750 is assessed.
MARCY V. SAUNDERS, Member
GERALD P. OHARA, Member
OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: September 27, 2001
1 Unless otherwise specified
all references are to sections of Title 8, California Code of Regulations.
2 The parties stipulated that Tanks 3, 4, 12, 20 and 26 contained corrosive substances such as silver cyanide, potassium cyanide, copper cyanide, hydrochloric acid, sodium acetate, nitric acid and sodium dichromate in concentrations with pH values either below 1 or above 11.5.
3 The ANSI standard defines spectacles as protective devices intended to shield the wearers eyes from a variety of hazards. The standard shows photos of various safety spectacles which all look like safety glasses as opposed to goggles.
4 The employees concern over the fogging hazard created by goggles could be addressed by wearing ventilated goggles and/or by the use coatings developed to minimize fogging. (See ANSI Std. Z87.1-1989, ¶6.3.) Should those solutions prove inadequate, the proper recourse would be a petition to the Standards Board for a variance.
5 We also affirm the ALJ's finding that the materials from which the safety glasses were made are unsuitable to protect against the highly acidic and alkaline chemicals used in the tanks.
6 The employer knowledge requirement in Labor Code section 6432 was amended effective January 1, 2000. The analysis here is based on section 6432 before its amendment.