Summary of Martinez Steel Corp. - Decision After Reconsideration

When the Division compliance officer left the site on April 23, 1997 he told Employer that he did not think there was a violation but that he would have to check with his supervisor. On July 18, 1997 the Division cited Employer under section 1712(f) for failing to guy and support a rebar-reinforced wall that collapsed. Employer claims that failure to notify it of the violation on the date of the inspection violated its due process rights. The Board rejected that argument. A citation issued within 6 months of a violation, pursuant to Labor Code section 6317, is presumed to be issued with reasonable promptness unless prejudice is shown. (Vial v. OSHAB 75 CA 3d 977, 1005). Employer contended the serious classification was wrong because it had no knowledge of the violation. The Board finds that the supervisor could have noticed the lack of wall support from his position above the wall. The Board also finds that the lead person who was working on the wall had been delegated with employee safety responsibility. He knew the wall was not being supported. Knowledge of both elements of a serious violation is imputed to Employer, so the serious classification is correct. The Independent Employee Action Defense was rejected because the lead person enforcing safety did not require the employees building the wall to include the X-bracing required by section 1712(f). The ALJ witness credibility determination was upheld.

August 7, 2001