BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

THE HOME DEPOT U.S.A., INC.

1125 Old Country Road

San Carlos, CA 94070

                              Employer

 

 

Docket No.

99-R1D3-690

 

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 The Home Depot U.S.A., Inc. [Employer], makes the following decision after reconsideration.

JURISDICTION

From October 14, 1998 through February 4, 1999, a representative of the Division of Occupational Safety and Health (the Division) conducted a complaint inspection at a place of employment maintained by Employer at 1125 Old County Road, San Carlos, California (the site). On February 5, 1999, the Division issued a citation to Employer alleging a repeat/general violation of section1 2340.16(a) [access to electrical equipment], with a proposed civil penalty of $1,125.

Employer filed a timely appeal contesting the existence of the violation and the reasonableness of the proposed penalty.

A prehearing conference was held before Dennis M. Sullivan, Administrative Law Judge. The Division moved without objection to reduce the violation to a general violation on the ground that there was insufficient evidence to prove that the violation was a repeat violation. A prehearing order was issued granting the motion and modifying the classification of the violation to a general violation with a proposed civil penalty of $280.

A hearing was held before James Wolpman, Administrative Law Judge (ALJ), in Foster City, California. Ronald E. Medeiros, attorney, represented Employer. Mary A. Allen, attorney, represented the Division. Prior to the hearing, Employer indicated that the only issue on appeal was the existence of the violation.

On February 16, 2000, the ALJ issued a decision denying Employer's appeal and assessing a civil penalty of $280.

On March 21, 2000, Employer filed a petition for reconsideration. The Division filed an answer on April 25, 2000. The Board granted Employer’s petition on May 3, 2000.

EVIDENCE

The evidence presented at the hearing established that a radial arm saw was mounted on a frame with conveyor extensions extending outward from the saw for placement of boards during the cutting process. The saw and conveyor frame were located along one wall and up against an adjoining wall in the lumber area of Employer’s store. The electrical panel for the saw was located on the wall behind and above the right conveyor frame. The electrical panel consisted of five metal boxes, one of which had a red power switch lever capable of de-energizing the saw.

The electrical boxes for the radial saw could only be accessed by stepping up on the raised platform on which the saw and conveyor frame rested and reaching over the conveyor portion of the frame to the wall area where the controls were located. The distance from the back of the saw to the wall was 20 inches, and the controls extended out approximately 4 inches, leaving a distance of 16 inches of open space between the saw and the control boxes. Because the conveyor frame extended rightward to an adjoining wall, one could not walk around the right side of the conveyor to access the power switch located behind the conveyor frame to the right of the saw. Also, one could not access the power switch from the left side of the conveyor frame because the backside of the radial saw prevented access from the left side behind the conveyor frame.

The controls used by the operator for cutting were on the open, front (operator) side of the saw and consisted of a keypad to enter the required code and button switches on the saw to turn the saw on and off for cutting.

Only Employer’s employees used the radial arm saw. If a problem developed with the saw, the Home Depot employee would do no more than de-energize the saw by moving the red power switch lever on the wall behind the saw. The saw was maintained, repaired and serviced by employees of an outside contractor.

Vincente Doromal [Doromal], an Associate Compliance Engineer who issued the citation, testified that he has been a compliance engineer with the Division for 14 years, during which he has conducted over 1000 inspections. Prior to working for the Division, he worked in mine safety and management for 18 years. He has a B.S. degree in mining engineering and has participated in the full range of OSHA training programs, including electrical training. Doromal concluded that reaching over the radial saw to pull the power switch in an emergency could result in an employee tripping, falling or missing the switch. During the inspection, he observed a worker use the radial arm saw. He identified that the lack of suitable access and working space with respect to the electrical panel was a hazard for employees should an emergency develop requiring the saw to be quickly de-energized.

Steve Harada [Harada] testified that he has been employed at Home Depot for 11 years, and for the past 18 months has served as Employer’s San Carlos store manager. He testified that if the off button were to fail, the operator would be expected to "step to the right and hit the main power" switch lever on the wall. He has never activated, nor seen anyone else activate, that switch.

Jonathan Mantooth [Mantooth] has supervised the store's lumber department since February 1999, and has been employed by Home Depot for 20 months. On one occasion there was a problem with the radial saw, and he pulled the power switch to deactivate it. Mantooth stated he had no difficulty in reaching over the saw.

ISSUES

1. Did the Division establish a violation of section 2340.16(a)?
2. Did the ALJ act improperly in his examination of witnesses?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

1. The Division Established a Violation of Section 2340.16(a).

A. Section 2340.16(a) requirements

Section 2340.16(a) is included in the Electrical Safety Orders and provides:

Suitable access and working space shall be provided and maintained about all electrical equipment to permit ready and safe operation and maintenance of such equipment. (Italics added for emphasis)

“Access” is not specially defined in the Electrical Orders. The ordinary meaning of “access” is “a way or means of approaching, getting, using, etc.” (Webster’s New World Dictionary of the American Language, Second College Ed., 1974)2. Notably, a similar definition of access is contained in the “Definitions” section of the General Safety Orders where “access” is defined as “a means of reaching a work space of a work area.” (§3207, Definitions).

The ordinary meaning of the word “suitable” is “that suits a given purpose, occasion, condition, propriety, etc.; fitting, appropriate; apt.”3 Under these definitions we find that the terms “suitable access” mean providing an appropriate means of approaching or using electrical equipment that suits a given purpose.

In section 2340.16(a), “suitable access” must be provided “to permit ready and safe operation and maintenance of such (electrical) equipment.” The ordinary meaning of the word “ready” when used as an adjective is “prepared or equipped to act or be used immediately.”4 The ordinary meaning of the word “safe” when used as an adjective is “free from damage, danger, or injury; secure.”5

Although not specifically defined in the Safety Orders, we find instructive the definitions provided in section 2300 for the words “readily” and “safely” which are provided as subdefinitions for the term “accessible.” These words are defined within the meaning of “accessible” as follows:

(B) Readily. Capable of being reached quickly for operation, renewal, or inspections, without requiring those to whom ready access is requisite to climb over or remove obstacles or to resort to portable ladders, chairs, etc.

(C) Safely. Not exposing persons installing, operating, maintaining, or inspecting electrical apparatus to serious risks of tripping or falling or of coming in contact with energized electrical parts, moving machinery, surfaces or objects operating at high temperatures or other hazardous equipment. (§2300, Definitions)

We view these definitions within the meaning of the word “accessible” as consistent with the ordinary meanings of the words “ready” and “safe” especially where “suitable access” is the subject of the regulation at issue in this case. Since an operator of the saw was required to move (operate) the power switch on the wall to de-energize the saw whenever the power switch on the saw failed, there must be suitable access to the wall switch to permit an employee to de-energize the saw.

We find that the proper construction of section 2340.16(a) in this case requires that Employer provide an appropriate means for employees to get to and immediately use, free of danger or injury, the electrical wall switch to de-energize the saw.

B. The Division Satisfied its Burden of Proving a Violation of Section 2340(a)

It is well established that the Division must prove the elements of its case by a preponderance of the evidence. (Lee Bolin & Associates, Cal/OSHA App. 80-720, Decision After Reconsideration (July 29, 1981))

Here, a review of the photographs of the radial arm saw reveal that it is located in a corner with attached metal conveyor frames on both sides of the saw. The metal conveyor frame with metal rollers extended several feet from the saw to a sidewall on the right and leftward from the left side of the saw well beyond the location of the electrical box. It is clear that employees could not walk into the space directly in front of the electrical box because the conveyor table for the saw blocked a clear access.

It was undisputed that the only access to the electrical box for the saw was by stepping up onto the raised platform upon which the saw was placed and leaning over to reach the red control switch.6 Based upon the testimony of Doromal and Mantooth, access to the red control switch on the electrical panel required an employee to step up on the platform and reach over the saw’s conveyor frame, a distance of 34 inches, to access the control switch to de-energize the saw. We find that the reach distance from the front of the conveyor frame to the switch is 34 inches.

Employer argues that the ALJ’s decision is exclusively based upon the opinion testimony of the inspector and the ALJ should have credited the testimony of Employer’s two witnesses who testified that there were no problems “accessing” the switch at the electrical control box. Employer’s witnesses’ assertion of no actual problems accessing the red power switch is apparently premised upon the lack of any incident as establishing compliance, which is not the appropriate standard for compliance as set forth above, and further, ignores the preventative objective of the safety orders. (See, Miller/Thompson J.D. Steel Harris Rebar, a Joint Venture, Cal/OSHA App. 99-3121, Decision After Reconsideration (Sept. 26, 2001).

Although the ALJ did accept the testimony of the inspector regarding the physical layout and hazardous condition, we find that such testimony is corroborated by the visual and physical evidence reflected in the photographs of the equipment and work area received as evidence. The photographs therefore credibly corroborate the inspector’s testimony.7

It was undisputed that an employee was required to step on the raised platform and reach over the conveyor frame to get to the power switch for the radial saw. The testimony of Doromal and Mantooth reveals that the saw’s conveyor frame located on the raised platform and in front of the power switch constituted an obstacle between the saw operator and the power switch. The stepping-up onto the raised platform and leaning to reach the red power switch constitute a “climbing” action8 that interferes with ready (immediate) access to the switch to de-energize the saw when the saw’s power button fails.

As discussed previously, the regulation requires suitable access to permit safe operation of the electrical equipment free from danger or injury. We also find that the required manner of accessing the electrical control switch on the wall behind the saw’s conveyor frame exposes employees to a serious risk of tripping or falling in accessing the switch. Such risk is heightened where the purpose of access is to de-energize the saw when the saw’s power button fails, i.e., an emergency situation.9

The Division was also required to establish that employees have been or are likely to be exposed to the hazard created by the violative condition. (Wickes Forest Industries, Cal/OSHA App. 79-1269, Decision After Reconsideration (Oct. 31, 1984). To find “exposure” there must be reliable proof that employees are endangered by an existing hazardous condition or circumstance. Huber, Hunt & Nichols, Inc., Cal/OSHA App. 75-1182, Decision After Reconsideration (July 26, 1977) (italics in original). Direct evidence is not necessary to prove employee exposure but employee exposure may be proved by indirect evidence demonstrating that employee exposure is more likely than not. C.A. Rasmussen, Inc., Cal/OSHA App. 96-3953, Decision After Reconsideration (Sept. 26, 2001)

Harada testified that if the off button were to fail, the operator would “step to the right and hit the main power” pull-down lever on the wall behind the saw. Mantooth testified that there was one occasion since February 1999 when there was a problem with the saw and he pulled the wall switch to de-activate the saw. The testimony of Employer’s witnesses established that employees were expected to use and did use the control box switch for de-activation of the saw. We find that there was or would have likely been employee exposure to the hazard created by the violative condition determined at the time of the inspection.

2. The ALJ Did Not Act Improperly In His Examination of Witnesses.

Employer asserts that the Division’s original position was that the cited regulation required Employer to provide at least three feet of working space in front of the electrical panels (a working space requirement) but that the ALJ’s decision finding a violation was based upon unsuitable access to the electrical control panel. Employer argues that the ALJ demonstrated an actual bias in favor of the Division and points to the fact that the ALJ solicited specific testimony from the Division’s witness regarding other possible reasons that working space or access in front of the electrical panels might not be suitable, and thereby became an advocate for the Division.

Our review of the record, including the tape recording of the testimony at the hearing, reveals no impropriety by the ALJ. Rather, Employer’s argument reflects a fundamental misunderstanding of the role of the ALJ in the administrative proceedings.

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 Board affords the parties a hearing to contest a citation. (Labor Code §6602) In accordance with rules of practice and procedure it adopts, the Board may direct an ALJ to try issues, whether of fact or law, in any proceedings before the Board, make findings, and issue an order or decision based thereon (Labor Code § 6604(a); §§350.1, 375.1). The assignment of an ALJ necessarily includes the authority to conduct the hearing proceedings (§350.1, 375 et seq.) and interpret the regulation at issue in a case properly pending before it.10

Regarding the conduct of the hearing, the ALJ assigned by the Appeals Board to hear a case (§375.1; Labor Code §6604(a)) controls the taking of evidence in a hearing “in the manner best suited to ascertain the facts and safeguard the rights of the parties.” (§376.1(d)) And independent of the right of each party to call and examine witnesses, the ALJ “may call and examine a party or witness.” (§376.1(c); see also, §350.1)

Based upon the above provisions, the duties of the ALJ to interpret and apply the regulation to the facts along with the role of controlling the taking of testimony and evidence in a manner best suited to ascertain the facts relevant to the cited regulation, did not render the ALJ’s solicitation of testimony from the Division’s witness improper in this case. Since the Appeals Board is not bound by an interpretation of a safety order proffered by the Division. (Lockheed Missiles & Space Co., Cal/OSHA App. 79-492, Decision After Reconsideration (Apr. 14, 1982)), the ALJ was free to solicit relevant facts material to a determination of a violation of section 2340.16(a) as alleged in the citation.11 Significantly, the Employer was given the opportunity to cross-examine the Division’s witness regarding the subject of the solicited testimony by the ALJ. Employer also was not prevented from presenting other evidence to address the testimony solicited by the ALJ.

Among the provisions of the statutory and regulatory scheme providing for the hearing and determination of appeals before the Board, Labor Code section 6612 provides:

No informality in any proceeding or in the manner of taking testimony shall invalidate any order, decision, or finding made and filed as specified in this division [Division 5 - Safety in Employment]. No order, decision, or finding shall be invalidated because of the admission into the record, and use as proof of any fact in dispute of any evidence not admissible under the common law or statutory rules of evidence and procedure. (Italics and bracketed material added)

These statutory provisions clearly authorize an ALJ to control the manner and means of taking evidence, including testimony at a hearing, and further, to independently examine a witness regarding an issue properly before the Appeals Board for hearing.

We find no basis for Employer’s assertion that the ALJ acted improperly in soliciting testimony from the Division’s witness regarding factual matters relevant to a determination of a violation of section 2340.16(a).

DECISION AFTER RECONSIDERATION

The Board affirms the ALJ’s Decision and denies Employer’s appeal from the citation. A general violation of section 2340.16(a) is upheld and a civil penalty of $280 is assessed.


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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: March 21, 2002

1 Unless otherwise specified, all section references are to Title 8, California Code of Regulations.
2 In interpreting statutory (or regulatory) language, words should be given the meaning they bear in ordinary use and dictionary definitions are often used to ascertain the ordinary meaning of words. (In re Marriage of Bonds (2000) 24 Cal.4th1, 16)
3 Webster’s New World Dictionary of the American Language, Second College Ed., 1974
4 Id.
5 Id.
6 The distance from the back edge of the conveyor frame to the front of the electrical box was 16 inches, according to Doromal’s testimony. Mantooth testified that the conveyor frame is about 18 inches deep.
7 In this case, we will not disturb credibility determinations made by the ALJ. The ALJ was present during the taking of testimony and was able to directly observe and gauge the demeanor of the witness and weigh his statement in light of his manner on the stand. (Garza v. Workmen’s Compensation Appeals Board (1970) 3 Cal.3d 312, 318; Metro-Young Construction Company, Cal/OSHA App. 80-315, Decision After Reconsideration (Apr. 23, 1981).
8 The ordinary meaning of the word “climb” is “1. to go up by using the feet and often the hands 2. to rise or ascend gradually to a higher point; mount.” Webster’s New World Dictionary of the American Language, Second College Ed., 1974.
9 In addition to the tripping or falling hazard, we find an additional hazard in accessing the power switch by an employee who is also exposed to a serious risk of injury from contacting or striking the saw’s metal conveyor frame in addition to tripping or falling. See the section 2300 definition of the term “safely” under the definition of “accessible” which means “[n]ot exposing persons...operating...electrical apparatus to serious risks of tripping or falling or of coming in contact with...other hazardous equipment.”
10 Determining if and how the law applies to the facts 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).)
11 The citation refers to both working space and access as the basis for the citation: “Working and access spaces for the electrical controls of the radial arm saw ... located in the lumber area, were not provided as required.” We find that the description provides sufficient notice of the issue of “access” to the electrical controls.