BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

 

In the Matter of the Appeal of:

AG LABOR, INC.
P. O. Box 874
Colusa, CA 95932

                     Employer

  Docket No. 96-R2D3-168

 

 

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 proceeding by Ag Labor, Inc. (Employer) makes the following decision after reconsideration.

JURISDICTION

On August 30, 1995, a representative of the Division of Occupational Safety and Health (Division) conducted an accident inspection at a place of employment maintained by Employer at 4787 Fresh Water Road, Williams, California (the site). On December 5, 1995, the Division issued to Employer Citation No. 2 alleging a serious violation of section 3314(a) (failure to deenergize equipment during cleaning), with a proposed civil penalty of $4,500.

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

After a hearing before an administrative law judge (ALJ) of the Board a decision was issued on December 12, 1996, denying Employer’s appeal.

Employer filed a petition for reconsideration on January 16, 1997. The Board granted Employer’s petition on February 11, 1997, and stayed the ALJ’s decision pending a decision on the petition for reconsideration. The Division filed an answer on February 20, 1997.

EVIDENCE

The Board has taken no new evidence and relies upon its independent review of the entire record, including the tape recording of the hearing and the exhibits in making this decision. The Board adopts and incorporates by this reference the summary of evidence set forth on pages 6 through 10 of the decision of the ALJ.

On August 28, 1995, employee Oscar Mercado’s hand was seriously injured when he accidentally slipped (or tripped) and stuck his hand into the uncovered trough of an energized screw conveyor. During an opening conference, the Division’s compliance officer, John Macfarlane, was informed by Bruce Meyers, Employer’s representative who investigated the accident, that Mercado slipped while walking past the conveyor to get a hose to clean it, and, when he reached for the conveyor to keep from falling, his hand became trapped between the revolving screw and the inside of the trough. Meyers also described the cleaning operation and told Macfarlane that it was Employer’s practice to allow employees to hose out the conveyor trough while the screw was running since that was the only feasible means of cleaning the trough. Macfarlane interviewed Mercado’s grandfather and another employee who was working with them, whose version of the events coincided with the information given by Meyers. They had informed Meyers that the trough cover had been removed to hose out leftover seeds.

Mercado, in a written statement through a certified Spanish-English interpreter, stated that he had cleaned the conveyor only once before the accident when the screw was not energized. Otherwise, his recollection of the events was consistent with the description of the accident and surrounding circumstances provided by Meyers and the other witnesses.

In the decision denying Employer’s appeal, the ALJ found that section 3314(a) applied because the conveyor did not have to be energized while Mercado was performing the specific task of obtaining a hose.

ISSUES

1. Did the ALJ err in receiving the hearsay statements of Employer’s representative as adoptive or authorized admissions, and in receiving employee hearsay statements?

2. Did Employer have reason to believe that the activity in which the injured employee was engaged exposed him to risk of injury, thereby making section 3314(a) applicable to Employer’s cleaning operation?

3. Did Employer prove that the work the injured employee was engaged in fell within the exception to section 3314(a)?

4. Was a violation of section 3314(a) established?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

The issues Employer raises in its petition for reconsideration pertained only to Citation No. 2. A review of the hearing tapes indicates that Employer did not present any conflicting version of the circumstances surrounding the accident. Although Employer offered no evidence at the hearing to establish facts contrary to those presented by the Division, the Board has reviewed the ALJ’s factual findings to determine if they are impermissibly based on hearsay evidence.

Employer’s petition consists of "objections" to four of the ALJ’s findings of fact. Employer contends that the evidence did not justify the four findings of fact. The first two findings Employer objects to are (1) that the conveyor cover was opened and (2) that Mercado’s hand was injured in the conveyor when he tripped walking by it. Employer asserts that the ALJ’s findings are inconsistent with the evidence, but identifies no evidence in the record contradicting the testimony the ALJ relied on. Except to the extent that the petition may be deemed to raise a hearsay objection to the evidence, the Board will not consider Employer’s first two objections because they do not explain why the findings are wrong nor do they identify supporting evidence.

The fourth finding that Employer objects to is the ALJ’s crediting of Mercado’s testimony that he had not cleaned the conveyor before the accident. Employer argues only that evidence in the record shows that the conveyor had been cleaned earlier the day of the accident, and that the ALJ should therefore have inferred that Mercado had some experience in cleaning the conveyor before the accident. The Board will not disturb an ALJ’s credibility resolution based on the ALJ’s first-hand observation of testimony unless the petitioner comes forward with persuasive reasons why the finding should be overturned. Employer’s fourth objection states no persuasive reason for overturning the ALJ’s credibility resolution. The Board therefore finds Employer’s fourth objection presents an insufficient basis for overturning the ALJ’s finding.

The Board, having considered the decision of the ALJ and the record in light of Employer’s petition for reconsideration, concludes that the ALJ accurately summarized the evidence, properly interpreted the applicable safety order and precedents, and properly applied them to the facts established by the evidence. The Board concurs in the ALJ’s findings and reasons for the decision for the reasons set forth below.

1. The ALJ Did Not Err in Receiving the Hearsay Statements of Employer’s Representative as Adoptive or Authorized Admissions, and in Receiving Employee Hearsay Statements

Under the Board’s rules, unless a party makes a timely objection to the introduction of hearsay evidence at a hearing, the hearsay itself may support a finding of fact. (See 376.2, reflecting Gov. Code 11513(d) as amended in 1995.) A review of the record reveals that no hearsay objections were interposed.

Even so, the ALJ correctly determined that admissions of Employer’s representatives could be received over objection as authorized admissions (pursuant to Evid. Code 1222) or adoptive admissions (see Evid. Code 1221). Admissions adverse to an employer made by a representative of that employer are an exception to the hearsay rule and may support a finding of fact.

There is no question that Meyers, Employer’s vice president and representative in dealing with the Division in its investigation, made the statements attributed to him by Macfarlane and that they are hearsay. Their admission, under Evidence Code section 1222, turns, however, on proof of the preliminary fact that Meyers was an agent of Employer who was authorized to speak on its behalf concerning the subject matter of any alleged admission. It is a well-established principle of law that the alleged agent’s declarations are insufficient to prove the fact of agency or authority; the existence of the relationship must be shown independently.

Here, the clear inference was that Meyers was authorized by Employer to discuss the subject matter of the hearsay statements. The record contains enough evidence to establish the foundational fact that as the individual designated to speak with Macfarlane during the opening conference and subsequent inspection, he was duly authorized to communicate information on Employer’s behalf. The information related by Meyers, which was purportedly gathered during his investigation of the accident and relied upon by Employer, and the reasonable inferences drawn from those facts, adequately support the ALJ’s finding that Meyers was Employer’s representative and authorized to speak to Macfarlane on Employer’s behalf.

Further support for the trustworthiness of Meyers’ admissions is found in his testimony. Meyers, who identified himself as Employer’s vice president, at the hearing did not deny but rather confirmed the statements he previously made to Macfarlane. Mercado’s written statement and the statements of the percipient witnesses, while hearsay, supplement Meyers’ statements and testimony. Thus, the ALJ’s findings of fact are supported by the evidence.

Having established that the statements were properly received in evidence, the Board finds no reason to disturb the ALJ’s findings on these issues where Employer did not recite in its petition how the ALJ’s findings were inconsistent with the testimony given at the hearing.

2. Employer Had Reason to Believe that the Activity in which the Injured Employee Was Engaged Exposed Him to Risk of Injury, thereby Making Section 3314(a) Applicable to Employer’s Cleaning Operation.

Employer conceded in its petition that the ALJ’s findings of fact established that Mercado was engaged in a cleaning operation. The evidence the ALJ relied upon clearly supports a finding that preparations for cleaning were well underway at the time of Mercado’s accident—the infeed end of the hopper had been raised and a bucket placed under the chute on the discharge end to catch seeds washing out, the conveyor was running, the cover was off the trough over the moving screw, and Mercado was looking for the water hose which Employer provided for the workers to clean the machinery. As the ALJ correctly concluded, "[b]ringing the hose over was a task essential to preparing to hose out the conveyor in accordance with Employer’s cleaning procedure."

In upholding the ALJ’s findings of fact on this issue, the Board has taken into consideration Employer’s ability to reasonably anticipate the potential for employee exposure to prospective hazards associated with not only the actual cleaning activities but all necessary and logically foreseeable acts undertaken in preparation for cleaning the exposed moving parts of the conveyor in accordance with the Boards recent holding in J.R. Wood, Inc. There, the Appeals Board, in reviewing the entire safety order, determined that:

. . . section 3314 is premised on the obligation of an employer to identify the hazards which arise when prime movers, machinery and equipment are being cleaned, serviced, repaired, or adjusted; and, based on the hazards identified, to formulate and effectuate procedures to minimize the risk of employee exposure to the hazards occasioned by those activities.

. . . Any analysis of section 3314(a) must . . . take into consideration the ability of an employer to anticipate the prospective hazards posed when machinery or equipment is being cleaned, serviced, repaired or adjusted.

In so finding, the Board relied on its holding in Louisiana-Pacific wherein the Board recognized that there could be no violation of section 3314(a) unless a reasonably prudent employer could have known of the exposure of the employee to the potential hazard.

Here, Employer was aware that the screw conveyor had to be cleaned while the screw was moving since Employer had selected that procedure as the most expedient, and feasible, method of cleaning the machinery. While Employer may not have actually anticipated that the trough cover would be opened well in advance of the hosing-out maneuver, a reasonably prudent employer would recognize the need to train employees that the trough should be opened and the screw conveyor energized only during the actual cleaning. Reasonable supervision would have disclosed the practice of turning on the exposed screw conveyor at times other than when the hose was secured and its water spray directed at the conveyor’s interior.

3. Employer Failed to Prove that the Work the Injured Employee Was Engaged in Fell within the Exception to Section 3314(a).

Section 3314(a), under which Employer was cited, requires that power driven machinery be deenergized during cleaning operations, but allows cleaning to be done with extension tools, or other methods or means to protect employees from injury due to movement while the machine is running, if that is the only way the machine can be cleaned. Because the latter language allowing work to be done while the machine is energized is an exception, the employer has the burden of establishing at the hearing that the exception applies. The Board, at least since Lights of America, supra, has recognized that cleaning and servicing operations subject to section 3314(a) begin when preparatory work for cleaning and servicing begins. The exception, however, applies only when the machine must be running to allow cleaning and servicing. Employer offered no proof that the screw had to be moving to accomplish any of the preliminary tasks. In this case, that was not during preparations but only when the hose was directed into the moving screw conveyor to clean out seeds. Because the accident occurred during the preparatory phase, when it was not necessary that the screw conveyor be turning, the exception does not apply in this case.

The Board therefore concludes that the hazards presented by the energized conveyor were not within the intended scope of the exception to section 3314(a).

4. A Violation of Section 3314(a) Was Established.

The evidence supports the ALJ’s finding that the conveyor did not have to be energized while Mercado was performing the specific task of obtaining a hose. Since the conveyor was not deenergized or disengaged from its power source, the Board finds that the evidence supports a finding that Employer did not meet its obligations under section 3314(a).

Finally, contrary to Employer’s argument in its petition, Mercado’s experience, or lack thereof, with cleaning the screw conveyor is not germane to any of the ALJ’s credibility determinations and has no bearing on the ultimate issue of whether the ALJ properly found that a violation of section 3314(a) was established. Likewise, the fact that Employer operated the seed washer for many years without incident is immaterial; rather it is a factor to be taken into consideration in assessing the appropriate civil penalty.

DECISION AFTER RECONSIDERATION

The Board affirms the ALJ’s decision issued in this matter on December 12, 1996. A violation of section 3314(a) is established, and a civil penalty of $4,500 is assessed.

BILL DUPLISSEA, Member MARCY V. SAUNDERS, Member

SIGNED AND DATED AT SACRAMENTO, CALIFORNIA - May 24, 2000