BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

In the Matter of the Appeal of:

COLOR SPECIALISTS, INC.
23851 Via Fabricante #201
Mission Viejo, CA 92691

                                                 Employer

 

Docket Nos. 95-R3D1-3883                        and 3887

 

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 ordered reconsideration on its own motion in the above entitled matter, makes the following decision after reconsideration.

JURISDICTION

On August 3, 1995, the Division of Occupational Safety and Health (the Division) conducted an inspection at a place of employment maintained by Color Specialists, Inc. (Employer) at 23851 Via Fabricante, Mission Viejo, California (the site). On October 13, 1995, the Division issued to Employer the following citations and items and related civil penalties for violations of occupational safety and health standards and orders found in Title 8, California Code of Regulations:

Citation/Item                     Section             Classification        Penalty

1/4                                       3383(a)                   General              $130
                                              [body protection]

1/5                                       3384(a)                         General                $130
                                              [hand protection]

5                                       5162(b)                   Serious                $750
                                              [emergency shower]

Employer filed timely appeals. After a hearing before an administrative law judge (ALJ) of the Board, a written decision was issued on November 18, 1997, setting aside the civil penalties related to Citation No. 1, Item 5 and Citation No. 5 on the ground that Item 5 and Citation No. 5 related to the same hazard addressed in Item 4. The ALJ also reduced the classification of Citation No. 5 from serious to general.

On December 9, 1997, the Board issued an order of reconsideration. The Board’s order of reconsideration was limited to the issue of whether civil penalties for violations which are not duplicative and are necessary to effectuate abatement can be set aside on the ground that the purpose of the Act will not be served by assessing multiple penalties related to the same hazard. Neither Employer nor the Division filed an answer.

EVIDENCE

In making this decision, the Board relies upon its independent review of the entire evidentiary record in this case, including the tape recordings of the hearing. The Board has taken no new evidence. The Board adopts the summary of evidence set forth on page three of the decision of the ALJ.

ISSUE

Did the ALJ properly eliminate civil penalties assessed for violations related to the same hazard which are not duplicative and require different forms of abatement?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

Section 3383(a) requires body protection for employees whose work exposes parts of their bodies not covered by other safety orders to hazardous or flying substances or objects. Section 3384(a) requires hand protection for employees whose work involves unusual or excessive exposure of their hands to, among other hazards, harmful chemical agents. Section 5162(b) requires that an emergency shower be provided in all work areas where during routine work or foreseeable emergencies, areas of the body may come into contact with a substance that is corrosive or severely irritating to the skin, or toxic to the skin by absorption.

The ALJ found that Employer uses a corrosive chemical, Kodak Color Developer Replenisher. Employees pour the replenisher from 5-gallon containers with small mouths into measuring beakers. There is a possibility of the replenisher splashing. The Material Safety Data Sheet (MSDS) from the replenisher states that contact with skin will cause irritation. Employer did not dispute the Division’s evidence that employees wore ordinary street clothing and were not provided gloves for handling the replenisher, and that no emergency shower was provided at the location where employees handled the replenisher.

The ALJ found that violations of sections 3383(a), 3384(a), and 5162(b) were established, and reduced the classification of Citation No. 5 from serious to general. The ALJ did not assess a separate civil penalty for Item 5 and Citation No. 5 because Item 5 and Citation No. 5 related to the same hazard as Item 4, skin irritation from the replenisher. The ALJ found that the civil penalties for Item 5 and Citation No. 5 were duplicative of the penalty for Item 4 and unnecessary to effectuate the policies of the California Occupational Safety and Health Act of 1973 (the Act).

The basis for this finding was the ALJ’s interpretation of the Board’s decision in San Francisco Newspaper Agency, which was issued shortly before the decision in this case. The ALJ stated the Board’s holding in San Francisco Newspaper Agency to be that the purpose of the Act would not be served by assessing multiple penalties relating to the same hazard.

The Board disagrees with the ALJ’s interpretation of San Francisco Newspaper Agency. In San Francisco Newspaper Agency, the Board held that where two or more citations are issued in relation to the same hazard, and are not identical, the civil penalties for those citations which relate to the same hazard may be set aside only if both violations will be abated by the same action. The Board found in San Francisco Newspaper Agency that two citations, one for eye protection, the other for failure to provide an emergency eyewash station, arose from the same hazard, the use of a stain remover, "Gone." Because both violations could be abated by the same action, removing "Gone" from use, a separate civil penalty for the emergency eyewash station violation was unnecessary.

The violations under reconsideration in this case are clearly not identical, and all arise from the same hazard the pouring of replenisher. Unlike San Francisco Newspaper Agency, where the employer abated both violations by simply removing the single eye-irritating product "Gone" from use, Employer constantly uses the replenisher in its operations. There is no proposal by the Division or Employer that Employer discontinue its use of the replenisher. Therefore, separate abatement actions are required to protect employees’ hands with gloves, to protect the rest of their bodies with appropriate clothing, and to provide an emergency shower where the hand and body protection has not protected the employees from contact with the replenisher. Under the Board’s holding in San Francisco Newspaper Agency, it was not appropriate to set aside the civil penalties for Item 5 and Citation No. 5.

The Board therefore holds that in this case, the civil penalties for Item 5 and Citation No. 5 were inappropriately set aside.

DECISION AFTER RECONSIDERATION

The decision of the ALJ is reversed insofar as it sets aside the civil penalties for Citation No. 1, Item 5 and Citation No. 5. Civil penalties of $130 each for Citation No. 1, Item 5, and for Citation No. 5, are assessed.

BILL DUPLISSEA, Member MARCY V. SAUNDERS, Member

SIGNED AND DATED AT SACRAMENTO, CALIFORNIA - June 30, 2000