BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

In the Matter of the Appeal of:

ANDERSEN TILE COMPANY
611 West Harvard Street
Glendale, CA 91204

                                     Employer

Docket No. 94-R4D3-3076

 

      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 Andersen Tile Company (Employer), makes the following decision after reconsideration.

JURISDICTION

From September 15, 1994, through November 9, 1994, the Division of Occupational Safety and Health (the Division) investigated an accident at 20750 Ventura Boulevard, Woodland Hills, California, (the site) where Employer maintained a place of employment. On November 14, 1994, the Division issued to Employer Citation No. 2, alleging a serious violation of section 1637(a) [failure to use scaffold where unsafe to use ladder], and proposing a civil penalty of $3,500.

Employer filed a timely appeal. After a hearing, an administrative law judge (ALJ) of the Board issued a decision on March 18, 1996, denying Employer’s appeal.

On April 19, 1996, Employer filed a petition for reconsideration. The Division filed an answer on May 15, 1996. The Board granted Employer’s petition for reconsideration on May 23, 1996.

EVIDENCE

In making this decision, the Board relies upon its independent review of the entire evidentiary record in this case. The Board has taken no new evidence. The Board adopts and incorporates by this reference the summary of evidence set forth on pages two and three of the ALJ’s decision.

Employer is a tile contractor. At the site, Employer was engaged as a subcontractor in performing repair work on the fourth floor landing of a parking structure’s elevator tower. Employer’s contract called for it to perform the work in six phases. On the day of the accident, Employer was to work only on repairing tiles above the elevator doors and not on any tiles near the edge of the elevator landing from which an employee could fall to the ground from an elevated location.

Employee Frank Orsini, a tile setter with 10 years’ experience, was performing the tile repair work. Working from a ladder, Orsini first repaired the tiles he had been assigned to that day, those directly above the elevator doors. Without contacting a supervisor, he then moved on to the tiles near the handrail, work not included in his assignment. To reach the highest tiles by the handrail on the outside edge of the landing, Orsini had folded a stepladder shut and leaned it against the wall, like an extension ladder. The inspector’s measurements showed that the stepladder could not be opened in the confined floor space available at that point because the handrail met the elevator door wall at an acute angle. Orsini fell over the landing’s handrail and was fatally injured. Photographs taken immediately after the accident show the ladder tipped against the handrail, leaning in the direction of Orsini’s fall. It is undisputed that the work could have been safely performed using a proper scaffold. Employer’s owner Brian Andersen testified that Orsini had been told specifically to replace only the tiles above the elevator doors.

Employer had purchased a variety of equipment that could have been used to perform the work safely, including small rolling scaffolds easily transported in elevators. Employer’s safety program did not address when scaffolds should be used instead of ladders for performing work presenting a fall hazard.

The ALJ found that the Division properly cited Employer for a serious violation of section 1637(a), failing to provide a scaffold for work that could not safely be done from a ladder.

ISSUES

    1. Did Employer establish the independent employee action defense?
    2. Was the violation properly classified as serious?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

1. Employer Did Not Establish the Independent Employee Action Defense.

Employer argues that no violation should be found because the violation was the result of independent employee action. The Board first stated its independent employee action defense in Mercury Service, Inc. The defense is established if the employer proves all of the following:

(1) The employee was experienced in the job being performed.

(2) The employer has a well-devised safety program which includes training employees in matters of safety respective to their particular job assignments.

(3) The employer effectively enforces its safety program.

(4) The employer has a policy of sanctions against employees who violate the safety program.

    1. The employee caused a safety infraction which he or she knew was contra to the employer’s safety requirements. (Mercury Service, supra.)

The ALJ found that Employer’s safety program, a two-page set of rules, was not well-devised, and that Employer therefore failed to establish the second element of the independent employee action defense. The failure to establish any one element of the independent employee action defense invalidates this affirmative defense.

The Board agrees with the ALJ’s finding that the program was not well-devised as to the potential dangers Orsini was exposed to on the day of the accident because Employer’s safety policy did not address when scaffolds should be used rather than ladders. The Board therefore affirms the ALJ’s finding that Employer failed to establish the independent employee action defense.

2. The Violation Was Not Properly Classified as Serious.

Labor Code section 6432 provided that a serious violation exists when there is a probability of serious physical harm or death resulting from the violation, unless the employer did not know of the violation, and could not have known of its existence through the exercise of reasonable diligence.

Employer testified that it provided equipment appropriate for the hazards presented by the areas in which work had been assigned. The work on this building had been divided into six phases. The phase in progress on the day of the accident did not call for employees to work in any area where scaffolding would have been required. If the phase of work that day called for employees to work near the edge of the landing, or if Employer had any reason to believe that an employee would venture beyond the specific work assignment, Employer would have provided appropriate scaffolding, which it already owned.

It must be determined whether Employer should have anticipated the actions of its employee in exceeding his work assignment. The record shows that Employer knew of only one instance in which this employee had exceeded the scope of his work assignment in the past. In that instance, Orsini had been told not to do any work he had not been directed to perform. The Division did not present any evidence that Orsini had violated that instruction. Andersen testified that Orsini was conscientious and speculated that this conscientiousness may have caused him to exceed his assignment on the day of the accident. However, he did not testify that Orsini’s conscientiousness had led him to exceed his job assignment on any previous occasion other than the one instance, which led Employer to issue a warning that he must not exceed his assigned work.

The evidence did not establish that Employer should have known that the employee would both exceed his job assignment and use a ladder in a dangerous manner on the day of the accident. Employer could not have anticipated that a scaffold was needed where the employee had been specifically instructed to repair only the tiles above the elevator doors, work not requiring the use of a scaffold.

The Board has held that knowledge that the employer must be shown to have had or to have been able to acquire through reasonable diligence in order for the violation to be classified as serious is of the existence of "the conduct or condition which forms the basis of the violation," as distinguished from its potential existence. (Ryerson Concrete, Inc.) In this case, the violation occurred on the day of the accident only by virtue of the conjunction of the employee’s conduct in using a ladder and the potentially unsafe location. Employer, with reasonable diligence, could have known of the potential danger presented by working on tiles near the junction of the elevator wall and the handrail. There was, however, insufficient evidence to establish that it would have foreseen that a violation would exist on the day of the violation because an employee would perform work which exceeded the work assignment and use a ladder rather than scaffolding in performing that work. To establish a serious classification, the Division had to prove all elements of the serious classification. Here, the Division failed to prove that Employer knew or could have known with the exercise of reasonable diligence that work would be performed in violation of section 1637(a) by an employee exceeding the scope of the work he had been directed to perform and by using a ladder rather than scaffolding in doing so.

In the Board’s reading of Labor Code section 6432, the knowledge element is intended "to encourage employers to conduct reasonably diligent inspections for violative conditions . . . so that the hazard associated with that condition can be timely corrected or, otherwise, face the prospect of a serious violation and heightened civil penalty." (Lift Truck Services Corp.) In that case, the Board determined that "an employer should not be held accountable for a serious violation if it acts with reasonable diligence to find and promptly correct a violative condition, where it did not know, nor could have known with the exercise of reasonable diligence, that the condition was not abated despite its reasonable efforts to do so." Additionally, the Board held in Napa Pipe Corporation that while unforeseeability does not preclude a finding that a violation existed, it may preclude a finding of a sufficient evidentiary basis to impute employer knowledge which is required to establish a serious classification. In this case, the Board finds that the Employer could not have foreseen the actions of the employee in attempting to perform work that exceeded his specific work assignment. The Division therefore failed to meet its burden of establishing that Employer, with the exercise of reasonable diligence, would have foreseen that on the day of the accident the violation would occur.

On the other hand, the fact that the violation was unforeseeable does not negate finding that the safety order was violated. In rare cases, an extreme departure from the scope of the work that an employee has been instructed to do might result in a finding that a violation did not exist, rather than merely affecting its classification. The additional work that Mr. Orsini performed here does not come close to being an extreme departure from the scope of the work he was assigned. Therefore, the violation was established. Unforeseeability in this case does not provide a basis for finding that the violation did not exist.

The violation’s classification is reduced from serious to general. Because of the death of Mr. Orsini, which reflects the seriousness of the injury, the Board finds this to be a high gravity general violation. Using the same penalty adjustment factors the Division applied for the alleged serious violation, the Board finds a civil penalty of $1,400 to be appropriate for the general violation.

DECISION AFTER RECONSIDERATION

The decision of the ALJ dated March 18, 1996, is reversed in part and affirmed in part. A general violation is established, and a civil penalty of $1,400 is assessed.

JAMES P. GAZDECKI, Chairman          BILL DUPLISSEA, Member

SIGNED AND DATED AT SACRAMENTO, CALIFORNIA - February 16, 2000