BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

In the Matter of the Appeal of:

THE ENVIRONMENTAL GROUP
4710 South Eastern Avenue
Commerce, California 90040

                                   Employer

  Docket No. 96-R1D3-1633

 

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 The Environmental Group (Employer), makes the following decision after reconsideration.

JURISDICTION

Between November 28, 1995 and April 30, 1996, a representative of the Division of Occupational Safety and Health (Division) conducted an accident investigation at a place of employment maintained by Employer at 1900 Alameda De Las Pulgas, San Mateo, California (the site). On May 3, 1996, the Division issued to Employer a citation alleging a general violation of section 1632(e) [guarding skylight openings] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations. The Division proposed a $75 civil penalty for the alleged violation.

Employer filed a timely appeal contesting the existence of the alleged violation.

An administrative law judge (ALJ) of the Board conducted a hearing and issued a decision denying the appeal on March 27, 1997.

On April 27, 1997, Employer petitioned the Board for reconsideration of the ALJ’s decision. On May 13, 1997, the Board granted Employer’s petition and stayed the ALJ’s decision pending reconsideration. The Division filed an answer on June 4, 1997.

EVIDENCE

The Board has taken no new evidence and relies upon its independent review of the record in making this decision. The summary of evidence on page two of the ALJ’s decision is incorporated herein by this reference.

On November 21, 1995, an employee fell 12 feet through an unguarded skylight in the canopy covering the entrance to a four-story office building where Employer was removing asbestos and PCP-containing materials.

In order to cover the canopy with plastic sheeting to catch debris thrown from above by other employees, the employee accessed the canopy by climbing through a second story window opening that had been covered with plywood and caution tape. The employee fell through the unguarded skylight, which was in close proximity to the window opening, and sustained serious injuries.

Employer admitted that the employee climbed through the window opening and was injured when he fell through the unguarded skylight. Employer contended however, that its employees had been instructed to stay off the canopy, that the injured employee was assigned to work on the ground that day, and that his entry onto the canopy was an unauthorized, unforeseeable act. Employer further contends that the cover and caution tape over the window opening through which the employee accessed the canopy were sufficient to protect him against falling through the skylight.

Neither the injured employee, his foreman, nor any witness percipient to the accident or events surrounding it testified at the hearing.

The Division introduced an accident report completed by the injured employee’s foreman. In the report, in response to the question, "[w]hat was the employee doing when injured?" the foreman stated that the employee was going to put a piece of plastic on the roof. The Division also introduced the inspecting compliance officer’s notes of a telephone conversation with the injured employee. Because the injured employee spoke only Spanish and the compliance officer did not speak that language, another Division employee who could speak both Spanish and English served as interpreter. The notes and the compliance officer’s corroborating testimony indicate that the injured employee stated that the foreman had assigned him to put plastic sheeting on the canopy roof to catch debris being thrown down and that the second floor window opening was uncovered when he got there. Employer contends that these statements are inadmissible because they are hearsay, and that the evidence is therefore insufficient to establish a violation.

Employer’s vice president Frank Garrett, who was not at the site on the morning of the accident, testified that he had obtained information from Employer’s product manager and others indicating that, consistent with Employer’s safety rules and practices, the window was kept covered at all times. He also had been advised that employees had been instructed to stay off the canopy, with one exception. Garrett testified that the injured employee had been assigned to move barrels on the ground that morning and that the employee’s reason for going onto the canopy was unknown. Notes prepared by Employer’s director of safety and health of a discussion of these matters she held with Employer’s product manager a few days after the accident say that, while in the hospital, the injured employee stated that he did not know why he was on the canopy.

ISSUE

Does the evidence support the finding of a violation of section 1632(e)?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

Section 1632(e) at the time of the violation read as follows:

(e) Wherever there is danger of falling through a skylight opening, it shall be guarded by a fixed standard railing on all exposed sides or a cover capable of sustaining the weight of a 200-pound person.

The evidence presented clearly established that the skylight was not guarded as required by section 1632(e). There were no standard railings around the skylight, nor was there a cover over the skylight panel which employees could step onto when accessing the canopy roof through the second floor window.

The only possible guarding against the hazard was the attempt to limit access through the window. Photographs taken on dates before and after the accident show that the window opening was covered with a sheet of plywood. The ALJ found that the photographs could support the inference that the window opening was covered and that the injured employee, despite his statement that the plywood was not in place when he went through the window opening, had removed the plywood before climbing through the opening. However, the ALJ also held that, assuming that the plywood and caution tape were in place when the employee reached the window, they did not adequately protect the employee against falling through the skylight. The Board adopts this finding.

To establish the general violation alleged in the citation, the Division needed to prove only that there was an unguarded skylight opening and that an employee was exposed to the fall hazard it presented. It was undisputed, and admitted by Employer through the foreman's accident report, that the employee who went onto the canopy was exposed to the hazard of falling through the unguarded skylight. Through the evidence discussed above, the Division proved the elements of a general violation of section 1632(e).

Employer contends that all of the direct evidence concerning what the employee was doing on the canopy was hearsay. The statements made by the foreman in the accident report were excepted from the hearsay rule by Evidence Code section 1222 as admissions authorized by Employer, because Employer admitted that the foreman was a supervisor and was designated to fill out the report. Section 376.2 provides that hearsay evidence that would be admissible over objection in a civil action is in itself sufficient to support a finding of fact. Therefore, the accident report, standing alone, is sufficient to support the ALJ’s finding as to the reason for the employee’s presence on the roof of the canopy.

The foreman's accident report is not the only evidence describing the employee's actions on the canopy that would be admissible over objection in a civil action.

Employer acknowledged that it was under contract to gut or strip the building of asbestos and PCP-containing construction materials and to collect and dispose of potentially contaminated debris generated by the work. The employee was under Employer's direction and control at the site to do work essential to the performance of Employer's contract. The employee went onto the canopy during working hours while the foreman and other employees were at the site to spread plastic sheeting used to catch potentially contaminated debris. Spreading plastic to collect work-generated debris helped Employer perform its contractual duty. This circumstantial evidence tends to prove that the employee was performing assigned work at the time of the accident.

Because there was considerable direct and indirect evidence of what the employee was doing on the canopy, the employee's hearsay statements that he went onto the roof at the foreman's direction to spread plastic to collect debris were admissible to explain or supplement that evidence.

The employee's statements are not inadmissible because they are "double hearsay" in that they were not made directly to the compliance officer in a language he could understand, but to an interpreter who then told the compliance officer in English what the employee said. Employer’s legitimate concern over the reliability of such evidence is addressed by the Board in section 376.2 of its rules which provides in part:

Hearsay evidence may be used for the purpose of supplementing or explaining other evidence but over timely objection shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.

The ALJ expressly noted the hearsay nature of a portion of the evidence and carefully applied the section 376.2 limitations on hearsay in making the findings in the decision.

Employer contends that the ALJ accorded too much weight to the employee’s hearsay statements and not enough to the product manager's hearsay statements. However, the record does not support this contention. The circumstantial evidence of the context in which the employee went onto the canopy and the foreman’s statement that the employee went there to spread plastic sheeting are both consistent with the employee’s statement that he went onto the canopy at the foreman’s direction. Conversely, neither the circumstantial evidence nor the foremen’s statement is consistent with the product manager’s hearsay statements that the employee had been instructed to stay off the canopy and that Employer did not know why he went there.

The Board’s review of the evidence demonstrates that the ALJ’s finding of a general violation of section 1632(e) is supported by solid, credible evidence. Therefore it is entitled to "great weight" and "should be rejected only on the basis of contrary evidence of considerable substantiality." Together, the circumstantial evidence of the "before" and "after" photographs of the window opening, the hearsay statements of the product manager, and the vice president’s general testimony concerning Employer’s safety practices and procedures may suggest that Employer had no reason to anticipate the employee’s presence on the roof. However, in the Board’s view, that evidence lacks the "considerable substantiality" necessary to invalidate the ALJ’s finding.

By proving that the skylight was not guarded in accordance with section 1632(e) and that the injured employee was exposed to the hazard presented thereby, the Division established a general violation of section 1632(e).

For the foregoing reasons, the Board affirms the ALJ’s decision denying Employer’s appeal.

DECISION AFTER RECONSIDERATION

Employer’s appeal is denied. A general violation of section 1632(e) is found and a civil penalty of $75 is assessed.

BILL DUPLISSEA, Member MARCY V. SAUNDERS, Member

SIGNED AND DATED AT SACRAMENTO, CALIFORNIA - June 7, 2000