BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

DAYTON HUDSON CORPORATION dba Target Stores

1000 Nicollet Mall, NMI-08F

Minneapolis, MN 55403

                              Employer

 

 

Docket No.

99-R4D3-912 and 913

 

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 Dayton Hudson Corporation dba Target Stores (Employer), makes the following decision after reconsideration.

JURISDICTION

Between September 25, 1998, and February 25, 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 11051 Victory Boulevard, North Hollywood, California (the site).

On February 25, 1999, the Division cited Employer for, among other things, a serious violation of section 5162(a) [eyewash]; a general violation of section 3382(a) [Item 3; face or eye protection]; and a regulatory violation of section 3203(b)(2) [Item 1; training documentation] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations.1

Employer filed a timely appeal contesting the existence of the alleged violations, the reasonableness of the proposed penalties and the classification of the serious violation.

A hearing was held on October 28, 1999, before Jack L. Hesson, Administrative Law Judge (ALJ) for the Board, in Van Nuys, California. Diane Madison, represented Employer. Thomas Moorman, industrial hygienist, represented the Division. Oral and documentary evidence was presented at the hearing and the matter was submitted April 5, 2000. The ALJ issued a decision on May 2, 2000, affirming the violations but withdrawing the civil penalty for Item 3. Employer filed a petition for reconsideration on June 12, 20022. The Division filed an answer to the petition on July 13, 2000. The Board issued an order granting Employer’s petition on July 28, 2000.

EVIDENCE

Kim Buckett (Buckett) testified that she was employed by Employer, a Target retail store, as a cashier, but was sometimes asked to work in the food court where she suffered an injury on August 26, 1998.

On that date, while cleaning an oven, spray from a container of Mr. Muscle Oven and Grill Cleaner “bounced back” and hit her in the eye. She suffered eye damage and developed a lump on her nose. The food court was normally clean at the times she worked there so that was the first time she had cleaned the oven. She was injured while spraying the bottom plate of the oven as directed by another employee. At the time of her injury there was no eyewash in the area. She washed her eyes in the sink until the water got too hot. She stated that she was never given instruction on the use of protective equipment and on cross-examination denied that she had ever received CD-ROM training.

Thomas Moorman, the inspecting officer for the Division, conducted a complaint inspection at the site. After an opening conference he inspected the cashiering, gas service, and food court areas. He testified that he was told that Employer provided safety and health training. Employer could produce training records for the previous year but not for 1998. He asked for an inventory of the chemicals used but was told Employer did not have one. On cross-examination Moorman stated that he had reviewed Employer’s “Food Court Manual” as part of his inspection. In support of his testimony he introduced into evidence Material Safety Data Sheets for hazardous substances that he observed at the site, and sections of Employer’s Safety Manual (obtained from Employer).

Moorman testified that Employer’s records indicated one incident of chemical splash. The splash involved Mr. Muscle, which contains sodium hydroxide that can cause permanent eye damage unless it is used with proper eye protection, and eyewash is used to flush the eyes of exposed employees. A pH rating of over 11 can result in significant eye damage and Mr. Muscle has a pH of 13. Though both alleged violations could result in serious eye damage he cited Employer for a general violation of section 3328(a) because Employer provided eye protection and the injured employee failed to use it while spraying Mr. Muscle. He cited Employer for a serious violation of section 5162(a) because exposure to Mr. Muscle may cause permanent eye damage and Employer should have known of the hazard3. In support of its position the Division introduced into evidence a Material Safety Data Sheet, a copy of section 339 to show that components of Mr. Muscle are on the Hazardous Substances List, and a Laboratory Report which reports a pH of 13.05.

Madison, Employer’s Risk Manager, stated that if the employee had been wearing eye protection pursuant to Employer’s safety program there would not have been a substantial probability of serious eye injury.

She further testified that employees received all training by CD-ROM. She provided documentation of new employee training for Buckett. She also provided the table of contents for the Target Safety Organizer and excerpts concerning chemical management. The Food Operations Manual contains a list of all chemicals used in that area, and all Material Safety Data Sheets are available to employees through Employer.

ISSUES

1. Does the Appeals Board lose jurisdiction over an appeal if a decision is filed beyond the 30-day limit set forth in Labor Code section 6608?

2. Did Employer violate section 3203(b)(2)?

3. Did Employer violate section 3382(a)

4. Did the Division establish that there was a serious violation of section 5162(a)?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

Employer filed this petition for reconsideration alleging:

1. That the decision of Administrative Law Judge Jack L. Hesson [was] beyond or in excess of the powers of the Appeals Board … because it was rendered more than 30 days after the matter was submitted;

2. That the evidence presented at the hearing on Appeal did not justify a finding of fact that (1) the Employer did not provide and ensure that employees use suitable eye protection as required by section 3382(a); or (2) that Target did not maintain records of its formal training as required by section 3302(b)(2);

3. That the evidence presented at the hearing on the Appeal did not justify a finding of fact that there was a substantial probability of a serious injury to Target’s employees; and

4. The findings of fact presented in the decision do not support the finding that Target violated sections 3302(b)(2) and 3382(a), or that its violation of 5162(a) should have been considered serious.

1. The Board does not Lose Jurisdiction over an Appeal if a Decision is Filed Beyond the 30-Day Limit Set Forth in Labor Code Section 6608.

Employer contends that since the matter was heard on October 28, 1999, and a decision was not rendered by the ALJ until May 2, 2000, the decision may be beyond the powers of the Board.

Employer does not articulate what the effect of the Board losing jurisdiction would be. The Board has previously considered this issue and has consistently held that the Appeals Board does not lose jurisdiction if the decision of the ALJ is not filed within 30 days of the hearing.

In Roof Structures, Inc., Cal/OSHA App. 78-478, Decision After Reconsideration (June 30, 1981) a hearing was held on January 26, 1979. The matter was initially submitted on that date. By letter dated February 26, 1979, the ALJ set aside the January 26, 1979 submittal date and re-established it as January 31, 1979. The decision of the ALJ was filed on March 1, 1979, more than 30 days after the hearing, but within 30 days of the second submittal date.

In that case, citing Coombs v. Industrial Acc. Com., (1926) 76 Cal.App. 565 and Peak v. Industrial Acc. Com., (1947) 82 Cal.App.2d 926, we held that the statutory language was directory and not mandatory. We held that, “[t]o follow Employer’s argument to its logical conclusion would mean that if an administrative law judge failed to file his decision within the prescribed period, the Appeals Board would lose jurisdiction to hear the appeal and the Division’s citation and penalty would be final. Such a result was surely not intended by the Legislature or desired by Employer.”

In Novo Rados Enterprises, Cal/OSHA App. 76-305, Decision After Reconsideration (February 23, 1983) while addressing the same issue, we noted that, “[t]he courts have gone much further, characterizing the position, like that taken here by Employer, as ‘absurd’.”

Based on based precedent, we find that the ALJ’s issuance of a decision more than 30 days after the hearing did not divest the Board of its jurisdiction to determine the matters, which are the subject of this appeal.

2. Employer Violated Section 3203(b)(2) by not Retaining Training Records.

Employer was cited under section 3203(b)(2), which requires Employer to maintain records of training as required by subsection (a)(7). Subsection (a)(7) requires training for all new employees and for those employees receiving new job assignments. To establish a violation of section 3203(b)(2) it was incumbent upon the Division to prove by a preponderance of the evidence that such training was not documented.

The ALJ found a violation because, although Employer provided documentation that Buckett received general safety training and training for the position of cashier, Employer did not provide documentation that Buckett had received training for the food court. Moorman testified that a supervisor told him there had been training, but Employer could not produce records for that year, 1998.

Employer concedes that, “[d]espite providing evidence that Kim Buckett was provided safety training, including training regarding the use of hazardous substances and personal protection equipment, Kim Buckett testified that she was not given any safety instructions and that she was not provided training on the use of hazardous substances. She also testified that she did not wear eye protection while using a product called Mr. Muscle to clean an oven.”

Section 3203(b)(2) requires that Employer maintain records for one year. As noted by the ALJ, Employer did not have any records of training for the food court for the time period in issue and we find that because of Employer’s inability to substantiate its claim that it provided training by producing records, the Division established the violation.

We do not believe it is necessary to determine whose testimony is more credible for this violation because the citation was issued as a regulatory violation in which the Division alleged that Employer did not maintain the records required by section 3203(b) for at least one year.

3. Employer Violated Section 3382(a) Because it did not Require its Employees to Use Eye Protection

Employer was cited under section 3382(a) which requires Employer to provide and insure that employees use suitable eye protection when there is a risk of punctures, abrasions, contusions, or burns from flying particles, hazardous substances, projections and injuries. Though Buckett denied knowing of eye protection, the Division conceded that employees were provided eye protection. Employer argues that it provided general safety training and eye protection and is unfairly penalized twice by Buckett’s failure to use eye protection.

Employer again bases its argument for reconsideration on the fact that it disagrees with the ALJ’s credibility determinations. In the decision the ALJ found, “Buckett’s testimony that she had not been trained to use eye protection while cleaning the oven was credible. Employer … did not present credible evidence that it had attempted to ensure that eye protection was to be used while spraying Mr. Muscle”. We have reviewed the record and do not find that the ALJ abused the discretion vested in him by making that credibility finding.

5. The Division Established a Serious Violation of Section 5162(a).

Employer contends it presented evidence that it provided overall safety training, including training for the use of hazardous substances and for the need to use personal protective equipment, and that it provided personal protective equipment, including eye protection, for workers in the food court. Employer maintains that given its training of employees, “the availability of eye protection, and the use of eye protection by [its] employees upon inspection by the Division, … that its failure to have a separately plumbed eye wash facility at the time of Ms. Buckett’s incident should not have been considered a serious violation.”

Under Labor Code section 6432, a serious violation requires that there be a substantial probability of death or serious harm due to the violation. Here, Target does not contend that it did not violate section 5162(a), but contends that its violation was not a serious one.

The Material Safety Data Sheet for Mr. Muscle clearly states that the product contains sodium hydroxide, has a pH of 13, is corrosive to the eyes, and can result in permanent eye damage. By allowing use of the product, employees come into contact with a substance that can cause corrosive, severe irritation or permanent tissue damage.

Employer’s representative provided credible testimony that all Material Safety Data Sheets were available on line so Employer should have known of the violative condition. The Material Safety Data Sheet also establishes that there was a substantial probability that serious injury could result from contact with the eyes.

Employer argued that if proper eye protection had been used serious injury would not have been likely. However, in this case it was foreseeable that during routine operations and in emergencies the product could come into contact with the eyes of an employee such as Buckett, who had not been trained or required to use the appropriate protective equipment. All elements of Labor Code section 6432 have been established. A review of the proposed civil penalty finds it reasonable and consistent with the Director’s regulations.

DECISION AFTER RECONSIDERATION

Docket No. 99-R4D3-912

Item 1

The Board affirms the ALJ’s decision finding a regulatory violation of section 3203(b)(2) and assessing a civil penalty of $375.

Item 3

The Board affirms the ALJ’s decision finding a general violation of section 3382(a).

Docket No. 99-R4D3-913

The Board affirms the ALJ’s decision finding a serious violation of section 5162(a) and assessing a civil penalty of $1,405.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: December 10, 2001

1 Unless otherwise specified all references are to sections of Title 8, California Code of Regulations.
2 Section 390(a) of the Board’s regulations requires that a petition for reconsideration be filed within 30 days of service of the ALJ’s decision. Section 348(c) allows for an extension of the 30-day deadline when the decision is served to the parties by mail. The extension period is 10 days if the decision is mailed to an address outside of California. In this case the decision was mailed to Employer’s representative in Minnesota, therefore the deadline for filing a petition for reconsideration was June 12 (because the 40th day after the decision was served was actually June 11, which was a Sunday).
3 Exhibit 9, which was introduced by the Division, was a copy of a warning label from a container of Mr. Muscle.