BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

 

In the Matter of the Appeal of:

SONOMA GRAPEVINES, INC

P.O. Box 293

Fulton, CA 95439

                              Employer

 

 

Docket No.

99-R1D5-875

 

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 Sonoma Grapevines, Inc. (Employer), makes the following decision after reconsideration.

JURISDICTION

Employer operates a nursery that specializes in grapevines. On March 5, 1999, the Division of Occupational Safety and Health (the Division), through compliance officer Jimmie Jones, investigated a grafting saw accident that occurred at Employer's nursery at 3600 Fulton Road, Fulton, California (the site) on March 2, 1999. As a result of Jones's investigation, the Division issued to Employer Citation No. 1, alleging a serious violation of section 3944(a) [guarding moving machine parts] of the occupational safety and health standards and orders found in Title 8 of the California Code of Regulations.1 A $5,000 penalty was proposed for the violation.

Employer filed a timely appeal contesting the existence and classification of the violation, and the reasonableness of both the abatement requirements and the proposed penalty.

Administrative Law Judge (ALJ) James Wolpman conducted a telephonic prehearing conference concerning the appeal with Employer's consultant, Ben W. Laverty III, and the Division's District Manager, Gerald Lombardo, on July 7, 1999.

On July 15, 1999, the Division served and filed a written motion to amend the citation to allege a violation of section 4186(b) [point of operation guarding] to correct a "data entry error…discovered during…[the] prehearing conference…." and change slightly the description of the alleged violation. Employer did not file any written opposition to the motion and ALJ Wolpman issued an order on August 3, 1999, granting the motion.

On August 31, 1999, Employer petitioned the Board for reconsideration of ALJ Wolpman's order, but the petition was rejected as being premature by Presiding ALJ Robert Harvey because the issue could be presented and determined at the hearing.

ALJ Wolpman heard Employer's appeal from the amended citation on November 1, 1999, and issued a written decision on December 6, 1999, upholding the serious violation of section 4186(b) alleged by the Division but reducing the penalty.

Employer petitioned the Board for reconsideration of the decision on January 7, 2000. The Division answered the petition on February 11, 2000, and the Board granted the petition and stayed the decision on February 22, 2000.

EVIDENCE

Employer grafts small pieces cut from one vine called "scions" to another vine (host vine). Employees prepare scions for grafting with saws that cut outer layers off the ends (tips) of the scions that are to be inserted in the host vines, leaving bare, projecting tabs at their tips.2

The saws are bench mounted. The saw operator sits in front of the saw and hand-feeds the scions, horizontally, through an opening in a thick plastic face plate (guard) covering the front of the cutting blade housing. The opening is 1¼ inch high. The top half of the opening is 7/8 to 15/16 of an inch wide. Scions are approximately 2 to 3 inches long and vary in diameter from approximately 3/8 to 3/4 of an inch. The sides of the bottom half of the opening angle inward at approximately 45% to form a "V" at the bottom of the opening. The cutting blades are immediately behind the guard, less than 1½ inch from its outer surface.

On March 2, 1999, while employee Oscar Aguilar was using a grafting saw to cut the tip of a scion, one of the fingers with which he was holding the scion went through the guard opening and made accidental contact with the moving cutting blades. As a result of the accident, the upper half of Aguilar's finger had to be amputated.

The saw blades performed a cutting operation on the scion and were at the point where the scion was fed by hand to the saw. Thus, Aguilar's finger entered a "point of operation".3

It was undisputed that the cutting blades were less than 1½ inch behind the surface of the guard. The opening in the guard was 1¼ inch high at its vertical midline. The top half of the opening was 7/8 to 15/16 inches wide and below that the sides angled inward approximately 45% to form the "V" at the bottom of the opening. Aguilar and other employees hand-fed scions ranging in diameter from approximately 3/8 to 3/4 inches through the opening to the blades.

The Division determined that the grafting saws presented a cutting hazard similar to the hazards those woodworking machines present and, thus, fell within section 4186(b). And, since the openings in the guards at the entrances to the points of operation on the saws were larger than allowed by section 4186(b), the Division issued Citation No. 1 alleging a violation of that safety order.

The violation was classified as serious because it was substantially probable that accidental contact with moving saw blades could result in serious physical harm, such as occurred to Aguilar. Also, Employer knew of the size of the guard openings, the diameter of scions being fed through the openings, and the distance from the outer surface of the guards to the moving knives behind them.

Ben Laverty, who has a Bachelor of Science degree in agronomy and horticulture, testified for Employer that since each scion is different, each must be hand guided precisely into contact with the grafting saw blades to expose the cambium layer under the bark in a particular manner that will enable the scion to align with the right layers of the host vine when inserted into the grafting slot. He also testified that Employer had operated its 13 grafting saws for 9 years without an accident or "close call", that many employers within the industry used the same type of saws, guarded in the same manner, and that the Division had inspected the saws previously without finding the guarding to be deficient.

ISSUES

1. Did the granting of the Division's motion to amend the citation violate Employer's right to due process of law?

2. Was Employer's grafting saw subject to the point of operation guarding requirements of section 4186(b)?

3. Did the Division prove a violation of section 4186(b)?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

1. Granting the Division's Motion to Amend the Citation did not Violate Employer's Right to Due Process.

Employer contends that it was denied due process because:

(1) Employer was required to participate in the prehearing conference and disclose its position that section 3944(a), which the Division cited originally, did not apply to the facts of the case because the hazard involved was exposure to the grafting saw's point of operation and section 3944(a) is within Group 6, Article 37 of the General Industry Safety Orders (GISOs) which, per section 3940 [purpose of orders], "do not include point of operation hazards."

(2) The Division was allowed to use the disclosure to its advantage by amending the citation thus depriving Employer of legitimate defenses;

(3) Employer did not receive adequate notice of the motion or a fair opportunity to make its opposition known before the order granting the motion was issued; and,

(4) The Division's motion to amend contained misrepresentations.

As a basic constitutional requirement, due process requires sufficient notice and an opportunity for a fair hearing. Accordingly, employers must be given notice sufficient to enable them to prepare an opposition or defense (Labor Code §6317; Adia Personnel Services, OSHAB 90-1015, Decision After Reconsideration (March 12, 1992)[sufficient specificity of violations] and further, the employer must be provided an opportunity for a hearing on the matter. (Labor Code §6602; Bennett Tank & Manufacturing Co., OSHAB 76-091 Decision After Reconsideration (June 16, 1977).) The Appeals Board has recognized that these due process principles also extend to the parties in an appeal proceeding with respect to motions, i.e., a party is entitled to sufficient notice of the motion and must be given an opportunity to be heard on the matter. (e.g. §§371, 371.2) For the reasons discussed below, we find that Employer's due process rights were not violated.

The origin and purposes of prehearing and pretrial conferences is described in 7 Witken, California Procedure (4th ed. 1997) Trial, §52, pp. 71-72:

The pretrial movement is a comparatively late development in American civil procedure, beginning in Detroit in 1929, and now established in some form in many states and the federal courts. At its heart is the pretrial conference--now called 'case management conference' [in California]--which is designed, together with modern discovery proceedings, to speed up trials and cut down expense and delay in litigation by eliminating noncontroversial matters and defining the real issues before trial.

Consistent with that purpose, Section 374(a) of the Board's rules of practice and procedure authorizes the setting and conducting of telephonic prehearing conferences in all appeal cases. Section 374(b) provides that:

(b) Each party to a prehearing conference shall be prepared to discuss the issues, stipulate to any factual or legal issue about which there is no dispute, stipulate to the identification and admissibility of documentary evidence, comply with any request for discovery, and to do such other things as may aid in the disposition of the proceeding.

And, pursuant to section 374(c), parties who fail to prepare for and participate in prehearing conferences may be sanctioned.

Unless the parties disclose their positions on issues raised by the pleadings, it may not be possible to accomplish the goals of simplifying and clarifying the issues at a prehearing conference. Given the nature of prehearing conferences and discovery proceedings that serve similar purposes, it is probable that, by these widely accepted means, one or more parties will gain knowledge helpful to its case before hearing. But Employer cites no authority for the proposition that requiring parties to disclose their positions on issues in a prehearing conference violates due process. We find none. The information was not of a nature or obtained in a way that implicated constitutional self-incrimination or search and seizure rights. The information was not shown to be protected by the attorney-client privilege, nor does Employer argue or show that the prehearing conference was unfairly conducted to require Employer to disclose more of its case than the Division was required to disclose. We conclude that directing Employer to disclose its position on the applicability of the originally cited safety order at the prehearing conference did not violate due process.

Section 371 authorizes both employers and the Division to file and serve written motions to amend their pleadings until 20 days before the case is to be heard. The Division's motion to amend was filed and served on July 15, 1999, approximately 3½ months before the case was heard on November 1, 1999.

Section 348(c) allows 5 days for service of a motion by mail on a party located within California. The served party may then serve and file written opposition to the motion within 10 days of the service date. (§371(c)(2)) Employer had until July 30, 1999, to serve and file written opposition to the motion under these rules, but failed to do so.

Employer complains that the Division's motion did not inform it of when opposition was due. However, the Division was obligated by section 371(a) to provide Employer only with notice of, "…the title and docket … number of the proceeding and a clear and plain statement of the relief sought, together with the grounds …." in its motion.

Employer also complains that the Board did not notice a hearing on the motion and afford Employer the opportunity to present evidence before ruling. The Board's rules do not require the setting of a hearing on a written motion. The rules do, as discussed above, require a moving party to notify other parties of the motion by serving them and affording the non-moving parties reasonable time to respond in kind with written opposition. Employer offers no authority for the proposition that more is required to comply with due process and we assert that the rules do comply. If Employer had filed timely written opposition and shown that an informed ruling could not be made on the motion without taking evidence, the ruling would have been deferred until the necessary evidence was taken. That was not done here.

We do agree that it would have aided Employer to exercise its right to oppose the motion, if the motion had stated that opposition was due within 10 days of service or the Board had sent Employer a notice to that effect when it received the motion for filing. However, the Board's rules governing the filing of opposition are published in Title 8 of the California Code of Regulations. To our knowledge, so long as a party is notified of an adverse motion by service of a copy, the information needed to file opposition to the motion is contained in published regulations, and the served party is allowed reasonable time to respond, the requirements of due process are satisfied. Employer has presented no authority that is contrary to our view. We conclude that Employer was provided with due process sufficient for notice of the motion.

Employer contends that the Division’s motion to amend contains misrepresentations. The accuracy of the Division's statement in the motion that it was being made to correct a data entry error may be questionable, as Employer asserts, but it does not indicate that the order granting the motion was procured by fraud. Broadly construed, "data entry error" might include the act of entering the wrong safety order and descriptive language on the citation form, and ALJ Wolpman conducted the prehearing conference and was familiar with the case when he granted the motion. The statement that possible amendment of the citation was discussed at the prehearing conference does not imply that Employer agreed to the amendment.

Moreover, the motion to amend filed by the Division was made 4½ months after the accident occurred, still within the 6 month period allowed by Labor Code section 6317 for issuing new citations addressing unsafe conditions or practices involved in the accident without regard to the pending citation. Under these circumstances, we do not believe that the content of the Division's motion or the ALJ's consideration of it denied Employer due process or is, for fraud or any reason, a basis for setting aside the order granting the motion to amend.

For all of the reasons discussed above, we will not set aside the order granting the Division's motion to amend the citation.

2. Employer's Grafting Saw was Subject to the Point of Operation Guarding Requirements of Section 4186(b).

Section 4186(b) is within Group 8 of the GISOs and applies to point of operation guarding on machines that are "specifically covered…in Group 8" (§ 4184(a)) and on machines that are not specifically covered in Group 8 but "present similar hazards" as machines that are (§ 4184(b)).

Section 4184(a) describes the types of hazards presented by machines specifically covered in Group 8 to include, "grinding, shearing, punching, pressing, squeezing, drawing, cutting, rolling, mixing or similar action[s]…."

The Board has interpreted section 4184(b) broadly to include any machine that "grinds, shears, punches, presses, squeezes, draws, cuts, rolls, mixes, or acts similarly… and is used in any industry or type of work not specifically covered in Group 8." (Visalia Manufacturing, Inc., OSHAB 80-912, Decision After Reconsideration (Sept. 25, 1981).) The grafting saws have a cutting action and are used in an industry or type of work not specifically covered in Group 8.

Moreover, mortising and tenoning machines are specifically covered in Group 8 by sections 4316 and 4317, respectively. Compliance officer Jones testified that:

(1) Mortising machines cut slots in pieces of wood and tenoning machines cut tabs or projections on other pieces of wood, which are inserted into the slots to form joints, much as Employer's grafting saws operate on scions and host vines to form a graft;

(2) All three of the machines have a cutting action; and,

(3) The hazard of accidental contact with the cutting blades on each of the machines is similar because the operator feeds the material to be cut into the machine's point of operation by hand.

Jones' description of the machines, the types of operations that they perform, and how employees operate them was based upon personal knowledge he gained by examining the machines and watching them being operated. Any witness may testify as to matters within his or her personal knowledge. (Evidence Code sections 700 and 702) It is not "opinion" evidence that only persons qualified as expert witnesses under Evidence Code section 720 may provide.

Jones' personal knowledge based comparison of grafting saws with mortising and tenoning machines was sufficient to prove that the cutting hazards associated with all three are similar, and that their hazards are presented similarly to the machine operators who hand feed stock to their points of operation.

Employer argues that since each scion is different, each must be hand- guided precisely into contact with the blades to expose the cambium layer under the bark so it will align with proper layers of the host vine when inserted in the grafting slot. In Employer's view these unusual horticultural demands of its sawing operations distinguish the hazards that grafting saws present from the hazards presented by mortising and tenoning woodworking machines because the saws operate on standardized, regularly shaped pieces of milled lumber that do not require the precise, individualized handling needed for every scion cut.

The unusual horticultural demands may affect how the fingers and hands may best be prevented from entering a grafting saw's point of operation, but they do not negate the similarity of how a finger or hand may enter the points of operation of grafting saws and mortising and tenoning machines when they are being hand fed stock, or the similarity of the cutting hazards an errant hand or finger may encounter.

For these reasons, we affirm the ALJ's finding that the grafting saws fit the section 4184(b) definition of "similar hazard" machines. And, per section 4184(b), since the saws are within that class of machines, their points of operation must be guarded in accordance with Group 8. Section 4186(b) is a Group 8 point of operation requirement. No Group 8 requirements conflict with or are more specifically applicable to grafting saws.4 Accordingly, section 4186(b) is found to be applicable to the grafting saws.

2. The Division Proved a Violation of Section 4186(b).

Section 4186(b), which Employer was alleged to have violated in the amended citation, provides that:

All point of operation guards shall be properly set up, adjusted and maintained in safe and efficient working condition in conformance with Figure G-8 and Table G-3 or other guard configurations which will prevent the operator's hand from entering the point of operation.

Figure G-8 is a graph showing that openings into points of operation that are 1½ inches or less behind the outer surface of the opening, may not be greater than ¼ of an inch. Table G-3 imposes the same restriction verbally.

The guards on the saws guard their points of operation and, as such, must be maintained "in conformance with Figure G-8 and Table G-3" to comply with section 4186(b).

It was undisputed that the cutting blades were less than 1½ inch behind the surface of the guard. On the grafting saw Aguilar was operating when he was injured, the opening in the guard was 1¼ inch high at its vertical midline. The top half of the opening was 7/8 to 15/16 of an inch wide and below that the sides of the opening angled inward at approximately 45% to form a "V" at the bottom.

When a scion with a diameter of 3/8 of an inch is inserted into the center of an opening of the dimensions described above, there is a space 5/16 of an inch wide on each side of the scion at its horizontal midpoint and a space of 7/16 of an inch above and below the scion at its vertical midpoint. And, if the scion is not perfectly centered, its distance from some parts of the perimeter of the opening decreases while its distance from others increases. Hence, the space between a scion of that size and the perimeter of the opening would always exceed the ¼ of an inch permissible under section 4186(b). This evidence established that the section 4186(b) opening size limit was exceeded on Employer's grafting saws.

Employer argues that its saws should be excepted from the ¼ of an inch opening limit because the sensitive nature of cutting the tips of scions with their irregular sizes and shapes makes it impossible to do the work through an opening that small. Employer points out that the designation "Class-B" on a Group 8 safety order "means that the order applies unless the nature of the work, type of machinery, or size and shape of material being worked will not permit." (§ 4188(a)) Employer urges the Board to treat section 4186(b), as applied to its grafting saws, as a Class-B safety order.

Only the Standards Board may adopt, amend, repeal or grant variances from safety orders. (Labor Code §§142.3 and 143; and, see also, Ironwood Country Club, OSHAB 84-139, Decision After Reconsideration (Sept. 20, 1985) and Hooker Industries, Inc., OSHAB 77-525, Decision After Reconsideration (Feb. 24, 1982).) The standards it has adopted for Class-B safety orders are unambiguous. Therein, the Standards Board has "designated" the individual Group 8 safety orders it has determined to be Class-B by including that designation in the title of the safety orders and providing that only the orders so designated are within that class. Neither section 4184(b), the general rule making "similar hazard" machines subject to Group 8 requirements, nor sections 4316 and 4317, which specifically cover the mortising and tenoning machines with hazards similar to the grafting saws, bear that designation. Hence, the Appeals Board may not treat either section 4184(b) or this application of section 4186(b) as Class-B designated safety orders. (See Kaiser Aluminum and Chemical Corp., OSHAB 80-1014, Decision After Reconsideration (Feb. 19, 1985).)5

The fact that the violation had never before caused an injury is not a defense to the existence of the violation. (General Motors Corporation, General Motors Assembly Division, OSHAB 77-573, Decision After Reconsideration (Aug. 9, 1978).) Nor does that fact tend to prove the violation was improperly classified as serious, where as here, Employer knew of the size of the openings and scions and that employees hand fed the scions through the openings, i. e., the hazardous practice or condition. (See West Coast Steel, OSHAB 81-0191, Decision After Reconsideration (May 15, 1985) and, Kaiser Sand & Gravel Co., Inc., OSHAB 83-0083, Decision After Reconsideration (Sept. 26, 1985).)

Use of identically guarded grafting saws by others in the same industry is not a defense to a proven violation of a safety order and it does not disprove knowledge of the violative condition. (See, e.g., Advanced Components Technology, OSHAB 91-1045, Decision After Reconsideration (Nov. 13, 1992); Lusardi Construction Company, OSHAB 86-1400, Denial of Petition for Reconsideration (May 31, 1989); F & F Construction Company, OSHAB 86-1021, Decision After Reconsideration (Jan. 6, 1988).) Nor do previous Division inspections that did not detect a violation have those effects. (Advanced Components Technology, supra; Benicia Manufacturing Co., a Corporation, OSHAB 76-806, Decision After Reconsideration (Sept. 21, 1977); Northrup Architectural Systems, OSHAB 80-156, Decision After Reconsideration (Jan. 28, 1981).)

We conclude that the Division proved the serious violation of § 4186(b) alleged in the citation and that Employer must be denied the relief sought by its petition for reconsideration.

DECISION AFTER RECONSIDERATION

Employer's appeal is denied. A serious violation of section 4186(b) is found to exist and a civil penalty of $3,500 is assessed.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: September 27, 2001

1 Unless otherwise noted, all section references are to Title 8 of the California Code of Regulations.
2 Employees also use the saws in a similar manner to cut matching slots in the graft-receiving vines (stock) to accommodate the scion tabs.
3 Section 4188(a) defines a "Point of Operation" as, "That part of a machine which performs an operation on the stock or material and/or that point or location where stock or material is fed to the machine."
4 The mortising and tenoning machines that present similar hazards are specifically covered in Group 8 sections 4316 and 4317, and, thus, per section 4184(a), they must "…be guarded at the point of operation in one or a combination of ways specified in the …[Group 8] orders, or by other means or methods which will provide equivalent protection for the employee." Hence, to the extent they are guarded by means of reducing the size of the openings through which stock is fed to the point of operation as the distance between the cutting hazard and the face of the guard decreases, they must comply with section 4186(b). Sections 4316 and 4317 do not except mortising and tenoning machines from section 4186(b) or set conflicting standards concerning the means of guarding, e.g., by permitting larger openings under certain circumstances.
5The absence of Class-B designations on sections 4184(b) and 4186(b) does not compel Employer to guard the grafting saw points of operation by the sole means of reducing the size of the guard openings to ¼ of an inch. Section 4186(b) authorizes the use of "other guard configurations, which will prevent the operator's hand from entering the point of operation."