BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

In the Matter of the Appeal of:

CHOOLJIAN BROTHERS PACKING CO., INC.
4710 South Eastern Avenue
Commerce, California 90040

                                                  Employer

Docket Nos. 95-R2D5-2549
                      and 2550

 

 

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 Chooljian Brothers Packing Co., Inc. (Employer), makes the following decision after reconsideration.

JURISDICTION

On March 28, 1995, a representative of the Division of Occupational Safety and Health (Division) conducted an accident investigation at a place of employment maintained by Employer at 3192 South Indianola Avenue, Sanger, California (the site). On June 12, 1995, the Division issued to Employer Citation No. 1, Item 1 alleging a general violation of section 3661(c) [inoperable horn on forklift] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations. The Division also issued Citation No. 2 alleging a serious violation of section 3314(a) [de-energizing machinery during cleaning]. The Division proposed penalties of $75 and $3,500, respectively, for the alleged violations.

Employer filed timely appeals contesting the reasonableness of both penalties, the existence of the alleged serious violation, and raising the independent employee action defense to the alleged serious violation.

After a hearing before an administrative law judge (ALJ) of the Board, a written decision was issued on July 3, 1997, denying both appeals.

On July 31, 1997, Employer petitioned the Board for reconsideration of the ALJ’s decision. On August 26, 1997, the Board granted Employer’s petition and stayed the ALJ’s decision pending reconsideration.

EVIDENCE

The Board has taken no new evidence and relies upon its independent review of the record, including the tape recording of the hearing and the exhibits in making this decision. The Board incorporates the "Summar[ies] of Evidence" on pages two and pages three through five of the ALJ’s decision.

Docket No. 95-R2D5-2549

Citation No. 1, General, 3661(c)

Penalty Only

ISSUE

    1. Is the $75 penalty reasonable?

SUMMARY OF FACTS

Employer processes raisins at the site. A Division compliance officer went to the site on March 28, 1995, to investigate a serious accident that Employer reported. She observed an employee operating a forklift truck with a horn that did not work. Consequently, the Division charged Employer with a general violation of section 3661(c) and proposed a $75 civil penalty. Employer appealed only the penalty.

At the hearing, the Division introduced into evidence its worksheet used to calculate the penalty. The Division compliance officer testified that the penalty had been calculated in accordance with the Director’s penalty setting regulations. The Division applied a base penalty amount of $1,000, then rated the severity, extent and likelihood of the violation as low, resulting in a gravity-based penalty of $500. The Division determined that Employer had an effective written Injury and Illness Prevention Program (IIPP), was conscientious about employee safety and health, and had cooperated in the inspection. Thus, Employer was granted a maximum good faith adjustment of 30%. Employer also received a maximum history adjustment of 10%, and a 30% adjustment determined by Employer’s size. Finally, since Employer promptly abated the violation, the Division applied a 50% abatement credit, reducing the proposed penalty to $75.

The ALJ found that the penalty had been calculated properly under the Director’s regulations and, thus, was presumptively valid. Employer presented no evidence conflicting with the compliance officer’s testimony and the penalty worksheet calculations or otherwise demonstrated that the penalty was unreasonable. Hence, the ALJ assessed the $75 penalty.

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

Employer’s petition states that "[I]t was our understanding that the maximum penalty for a general violation was $750." Employer argues therefore that "the $750 assessment should have been the starting place and the fine should have been reduced down from there."

Employer’s belief that $750 was the maximum penalty assessable for a general violation was mistaken. Labor Code section 6427 provides that a civil penalty of $7,000 may be assessed for each non-serious violation. The Director’s implementing regulations, issued pursuant to Labor Code section 6319(c), provide that the base penalty or starting point the Division must use to calculate a general violation penalty may be $1,000, $1,500 or $2,000, depending on the severity of the violation. ( 336(b).) The statute and Director’s implementing regulations provide that the credits described above for severity, extent, likelihood, good faith, history, and abatement are then applied to the base amount, as they were in this case.

The Division used $1,000, the lowest authorized base penalty, as a starting point for calculating the $75 penalty assessed. If a higher starting base were used, or if an employer were not entitled to the credits provided by the Labor Code and Director’s regulations, the final penalty proposed could exceed $750. Employer’s ground for appeal, that the base penalty should have been $750, is therefore without merit. Employer has not demonstrated that the penalty was miscalculated or provided any other basis for finding it to be unreasonable for the general violation that occurred. The ALJ’s assessment of the $75 penalty is affirmed.

Docket No. 95-R2D5-2550

Citation No. 2, Serious, 3314(a)

ISSUES

    1. Did Employer violate section 3314(a)?
    2. Did the Division prove that the violation was properly classified as serious?
    3. Did Employer establish the independent employee action defense?

SUMMARY OF FACTS

An employee and a shop foreman were cleaning a raisin auger at the end of their shift. To clean the auger, the cover over the trough’s top and the cover of a drain opening in the trough’s bottom had to be removed. The sheet metal drain cover was removed by facing the side of the trough, reaching under the trough and around an expanded metal guard (guard) that extended over the drain opening, grasping the cover handle, and pulling the cover to the side until it cleared the opening and guard.

Under Employer's procedures, the screw that revolved in the trough was supposed to be stopped and the power source de-energized when an employee removed or installed the drain cover. In this instance, the screw was energized and the drain cover had been removed before the employee reached for it. Consequently, two of his fingertips went through the opening into the trough and were cut off by the screw.

Neither the injured employee nor the shop foreman, the only witnesses percipient to the accident and surrounding circumstances, testified at the hearing. A bi-lingual Division employee served as an interpreter for a telephone interview of the Spanish-speaking injured employee by the English speaking compliance officer. Her notes of the conversation were received into evidence.

According to the compliance officer's notes, the injured employee stated that while he was putting on his boots his co-worker removed the drain cover without his knowledge; that when he arrived back at the auger the screw was still de-energized; that he could not see if the drain cover was still in place; that the co-worker was on the other side of the auger out of his line of sight; and, that, just as his hand reached the drain opening the co-worker turned the auger on. The notes also indicate that the employee had been with Employer for less than a year, had been working on the raisin auger for two days at the time of the accident and had been shown how to clean it but given no training.

An owner of Employer testified that he had been informed by others that the injured employee had removed the drain cover himself while the auger was de-energized, forgot that he had done so, and was reaching for it a second time when injured. The hearsay statement of Employer's representative is in accord. The owner also disputed the employee's statement that he could not see if the cover had been removed, asserting that when the trough cover was removed the drain was readily visible from above, and that the employee could have knelt down and looked.

The Division cited Employer for a violation of section 3314(a) because the expanded metal guard did not provide sufficient protection when the drain cover was off and the screw was revolving, since an employee could extend fingers into the opening from the side of the guard.

The Division classified the violation as serious because it was substantially probable that the violation could result in serious physical harm and the Division believed that Employer knew of the violative condition or could have known of it by exercising reasonable diligence.

Because it classified violation as serious, the Division was obligated by section 336(c)(1) to propose a base penalty of $5,000. Because the serious violation caused a serious injury, the only reduction of the base penalty allowable under section 336(c)(3) and Labor Code section 6319(d) was the 30% [$1,500] size adjustment by which the Division decreased the proposed penalty to $3,500.

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

1. Employer violated Section 3314(a).

The pertinent part of section 3314(a) reads as follows:

(a) Machinery or equipment capable of movement shall be stopped and the power source de-energized or disengaged, and, if necessary, the moveable parts shall be mechanically blocked or locked out to prevent inadvertent movement during cleaning, servicing or adjusting operations unless the machinery or equipment must be capable of movement during this period in order to perform the specific task. If so, the employer shall minimize the hazard of movement by providing and requiring the use of extension tools (e.g., extended swabs, brushes, scrapers) or other methods or means to protect employees from injury due to such movement.

By this safety order, Employer was obligated to ensure that the auger was stopped and the power source de-energized or disengaged at all times during the cleaning operation except for the specific task of using the energized screw to push water and debris down the trough to the drain.

It was undisputed that the auger screw did not have to be moving for the drain cover to be removed, even though the drain cover had to be removed before the trough could be washed. The employee was injured by the revolving screw as he attempted to remove the cover.

This is sufficient to establish a violation. Employer contends that the employee followed an unusual procedure to remove the cover. However, even if the employee used an unusual procedure to remove the drain cover, it would not change the fact that he was engaged in preparations for a cleaning operation, which the Board has held to be part of the cleaning process and therefore subject to section 3314(a).

The Division’s citation proceeded under the exception in section 3314(a) that allows extension tools or other methods or means to be used to protect employees from the machinery’s movement when the machine must be moving to be cleaned. The Board has held that where the Division alleges that the employer failed to provide extension tools or other means to protect employees from machinery movement, it has conceded that the exception applies.

Where it does apply, the exception allows employers to protect employees against accidental contact with the screw through use of extension tools "or other methods or means." The employer then has the burden of establishing that it provided such extension tools or other means to protect employees from machine movement. Employer contends that the expanded metal cover was a means that provided adequate protection against employees’ hands entering the zone of the auger screw’s movement. Employer is contending that the drain hole was adequately guarded to protect employees’ hands from being exposed to the screw’s movement. For the reasons set forth below, the Board finds Employer failed to prove that it adequately guarded the auger screw.

The term "Guarded" is defined in section 3941 to mean:

Shielded, fenced, enclosed or otherwise protected according to these orders, by means of suitable enclosure guards, covers or casing guards, trough or "U" guards, shield guards, standard railings or by the nature of the location where permitted in these orders, so as to remove the hazard of accidental contact. (Emphasis added.)

"Accidental Contact" is defined in the same section to mean, "Inadvertent physical contact with power transmission equipment, prime movers, machines or machine parts which could result from slipping, falling, sliding, tripping or any other unplanned action or movement."

If the employee were attempting to remove the drain cover he would have reached in from the side of the guard because that is how the cover slid out and was removed. If that is what happened, the injured employee’s reaching for the cover up to the point where he should have contacted the drain cover’s handle was not an "unplanned action or movement." However, the movement’s continuation into the open drain hole that resulted in contact with the screw was certainly an "unplanned action or movement." Even if a narrow reading is given to the term accidental contact, so that it applied only when the accidental contact happened because of completely involuntary bodily movements, such as slipping or tripping, the guard provided no effective protection against such accidental contact by an employee reaching for the cover.

Therefore, even if the exception did apply, the Board finds that the evidence establishes a violation of section 3314(a). The expanded metal guard was an inadequate means of protecting employees against accidental contact with the screw when the cover was removed and the screw was revolving to push the wash water out the drain.

Accordingly, the Board finds a violation of section 3314(a).

2. The Division Proved the Violation Was Properly Classified as Serious.

To prove the violation was serious, the Division had to show there was a substantial probability that the violation could result in serious physical harm or death and that Employer knew of the violation or could have known of it by exercising reasonable diligence. (Lab. Code 6432(a).)

Whether or not the auger was running while preparations for cleaning rather than the cleaning itself were still in progress would have been in plain view in the plant, and thus could have been known with the exercise of reasonable diligence.

Even assuming that the exception did apply, the design of the cover did not prevent an employee who was reaching for the cover from accidentally getting his or her hand into the drain hole if the cover had already been removed. The drain hole and cover were in plain view in the shop and Employer could have learned of its existence by the exercise of reasonable diligence. The Board therefore finds a serious violation of section 3314(a).

The $3,500 penalty was calculated in accordance with the Director’s regulations. Nothing in the record suggests that it is unreasonable, and the Board will assess the proposed amount as the civil penalty for this violation.

3. Employer Failed to Prove the Independent Employee Action Defense.

To establish the independent employee action defense an employer must affirmatively prove each of the five following elements set forth at page 3 of Mercury Service, Inc.:

  1. 1. The employee was experienced in the job being performed,
  2. 2. Employer has a well-devised safety program which includes
  3. training employees in matters of safety respective to their
  4. particular job assignments,

3. Employer effectively enforces the safety program,

4. Employer has a policy which it enforces of sanctions against

employees who violate the safety program, and,

5. The employee caused a safety infraction which he or she knew

was contra to the Employer's safety requirement.

Employer's proof that the shop foreman enforced the safety program effectively (the third element) and that the injured employee received and understood the auger cleaning instructions (the fifth element) fails for the same reason as the Division's proof of employer knowledge. It consisted solely of hearsay evidence that would not be admissible over objection in a civil trial and, thus, per section 376.2, cannot support findings favorable to Employer on those elements. Since Employer failed to prove the third and fifth elements, the independent employee action defense must be rejected.

DECISION AFTER RECONSIDERATION

Employer’s appeals are denied. Violations of sections 3661(c) and 3314(a) are established, and civil penalties totaling $3,575 are assessed.

BILL DUPLISSEA, Member MARCY V. SAUNDERS, Member

SIGNED AND DATED AT SACRAMENTO, CALIFORNIA - June 15, 2000