NEWS
00-10911
June 27, 2014
Vol. 41 No. 25
Standards Board Actions:
First in the Nation Standard Part of
Double Win for Healthcare Workers
SACRAMENTO – Healthcare workers, especially nurses,
earned two major victories from the Cal/OSH Standards Board. The
board approved an advisory committee to begin work on a standard
to help protect hospital workers from patient-on-staff violence.
www.cal-osha.com
Since 1973
Three More People Lost Last Week
The Division of Occupational Safety and Health is investigating three recent workplace fatalities in California. They include:
June 18: A worker for Chevron USA was found dead in
McKittrick in Kern County. “The employee arrived at work at
5 a.m. and backed his vehicle into a parking spot,” Department
of Industrial Relations public information officer Fred Chico
reports. “He was found unresponsive in his truck by a co-worker
at approximately 6:40 a.m. An ambulance was summoned and
CPR administered, but the employee could not be revived.”
The next day, an employee of AP Tire Service in Oakland
was killed when a large compressor fell on him, crushing his
neck and head, DOSH says.
Healthcare professionals packed the June 19 Standards Board
meeting and testified for more than one hour about what they
have described as a “pandemic” of workplace violence.
The board also just approved a standard implementing a 2011
law that requires hospitals to institute safe patient-handling practices.
Included in the first-in-the-nation standard is a requirement that
front-line workers be involved in helping to craft these programs.
Our coverage of the safe patient-handling vote starts on
the next page.
How, Not Whether
The Standards Board authorized an advisory committee
to create another regulation to help protect nurses, doctors and
other staff from violent assaults.
This was especially gratifying for the dozens of healthcare
workers attending the meeting because the board, on a motion
by occupational safety representative Laura Stock, amended its
petition decision to state that the necessity for a standard has
already been established.
This is a critical change, which means that the committee
will concentrate on how to craft the standard, not whether or
not it is necessary, as the original petition decision stated.
The board sat rapt as worker after worker testified as to the
brutal assaults they routinely suffer at the hands of psychiatric
patients and sometimes people entering hospitals from the street.
On June 23, a worker for the Los Angeles Department of Water
and Power was found dead at a station in Beverly Hills. The man
was found near the station “bleeding from the head,” Chico says.
Plea Deal in UCLA Lab Death
A University of California Los Angeles chemistry professor
will pay a $10,000 fine, serve 800 hours of community service
and teach a chemistry course to inner-students as part of a
settlement in a 2008 case in which one of his assistants died
from burns suffered in a laboratory accident.
Prof. Patrick Harran, 44, had been charged with four felony
counts of violating the state Labor Code in the Dec. 29, 2008,
death of Sheharbano Sangji, 23. The graduate assistant suffered second- and third-degree burns over 40% of her body while attempting
to transfer a couple of ounces of tertiary butyl lithium.
The chemical ignites upon contact with oxygen and during +
I N
T H I S
I S S U E
NEWS
00-10911 to 00-10914
• Safe Patient-Handling Standard Ok’d
• Food Mixer Revision Adopted
DECISIONS
40-7111 to 40-71116
• TL Pavlich Construction, Inc.
• Owens-Illinois Glass Container, Inc.
• David Development Co.
• Agri-Valley Irrigation, Inc.
Just as the 2010 murder of psychiatric technician Donna
®
It is 4,835 days since our last lost-time
accident.
©2014 Cal-OSHA Reporter
June
20, 2014
Double Win continued on pagewww.cal-osha.com
10913
00-10912
NEWS
+ the transfer, Sangji splashed a small amount on herself. She
was not wearing protective clothing and she caught fire. Sangji
died about two weeks later in a burn unit.
The case has been somewhat of a cause celebre’with labor activists,
who pressured the L.A. County District Attorney to prosecute Harran.
Harran was charged with willfully violating General Industry
Safety Orders §§ 5191(f)(4), 3203(a) and 3383(b) for failing to
train workers on the presence or release of hazardous chemicals
and occupational exposure to them, and failing to use protective
clothing or a lab coat while working with a pyrophoric substance
(one that ignites spontaneously in the air).
The D.A.'s office says that Harran acknowledged that he was
“ultimately responsible for the safety of personnel in my laboratory.” In addition to the fine, he will teach an organic chemistry
course to inner city high school graduates to help prepare them for
college-level chemistry. He will teach the course for seven weeks
each summer for five years.
Harran also will complete 800 hours of non-teaching community service at UCLA Hospital or UCLA Health Services. The
felony charges will remain pending for five years while the professor
completes the terms of the settlement.
Harran's attorney, Thomas O'Brien, stated, “Professor Harran
remains deeply saddened by this tragic accident.” The agreement “will allow Professor Harran to continue focusing on his
ground-breaking research while increasing lab safety at UCLA.”
Food Mixer Revision Adopted
SACRAMENTO – The Cal/OSH Standards Board has adopted a revision to the General Industry Safety Orders on commercial
food-mixer safety.
The adoption revises GISO §4542 and is based on a Form 9
request from the Division of Occupational Safety and Health. The
Division asserts that the current safety order does not adequately address the hazard of entanglement in commercial vertical food mixers,
which it says are frequently operated without covers or guarding.
At present, §4542 does not require mixer spindles or attach-
ments to be guarded. Some vertical mixer manufacturers supply
machines with interlocked bowl guards, but Title 8 is silent on
requiring the guards to be in place or maintained in working order,
and not all manufacturers make guarding available.
Because of the potential for employee exposure to the rotating
parts, DOSH requested that a regulation be revised to require the
use of the guards supplied with a mixer and for mixers without such
guarding to have the guarding installed. The proposal was developed
with the assistance of a management-labor advisory committee.
The revised language is as follows:
(e) Vertical food mixers with a bowl size of 30 quarts or larger
and manufactured after January 1, 2015, shall utilize a manufacturer-supplied interlocked bowl guard, or its equivalent, and be so
arranged that power cannot be applied to the agitators unless the
cover/enclosure and the bowl are in place on the mixer.
Safe Patient-Handling Standard
Approved: A 'Historic Moment'
SACRAMENTO – The Cal/OSH Standards Board voted
unanimously June 19 to approve a new, first-in-the-nation standard
requiring hospitals to protect healthcare workers from back injuries.
The regulation, General Industry Safety Orders §5120, implements a 2011 law, AB 1136, known as the Hospital Patient and
Health Care Worker Injury Protection Act. The bill was approved
after being repeatedly vetoed in previous years.
“I think this is an historic moment,” said Standards Board management representative Barbara Smisko, executive director of environmental, safety and health for Kaiser Permanente. The board has done a
“great job” of balancing the need for worker protection with affordable
health care, she commented. “Once again, California is in the forefront.”
The standard was developed by the Division of Occupational
Safety and Health with significant input from health-care stakeholders, including both labor and management. It reflects requirements of the IIPP standard, GISO §3203, including:
+
•Establishing, implementing and maintaining an effec-
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NEWS
+
00-10913
tive safe patient-handling plan
•Establishing requirements for employers to provide training to employees whose work assignments require them
to be present in patient-care units or safe patient-handling
duties they are reasonably anticipated to perform.
•Establishing recordkeeping requirements to provide
documentation for the process of equipment evaluation,
selection and implementation.
As for the safe-lifting programs, Labor Code §6403.5, which
was added by AB 1136, does not detail elements that hospitals are
supposed to have in their plans, so the new standard “specifies appropriate elements.” Subsection (c) of the proposal requires:
•An effective safe patient-handling policy
•Designation of the person(s) responsible for its implementation
•Methods the hospital will use to coordinate implementation
with other employers whose workers have assignments in
patient-care units
•Procedures to ensure that employees comply with the plan
and use specified procedures and equipment
•Procedures for identifying and evaluating patient-handling
hazards and investigating musculoskeletal injuries related
to patient handling
•Procedures for communicating safe-handling matters with
employees, and providing training
The proposal also would require hospitals to list the corrective
actions and patient-handling equipment that cannot be implemented
by the effective date of the standard. Implementation is to be completed within one year of the effective date.
Nurses voiced serious concerns during a public hearing last year
over the omission of language referencing LC §6403.5(d), which
prohibits hospitals from pulling RNs to perform patient handling
activities in ways that compromise direct patient care assignments.
They said it is common for registered nurses to be pulled from
such work to assist others in-patient handling, “particularly in hospitals that do not utilize lift teams.” California Nurses Association
was concerned that RNs would be forced “to leave their patients less
attended to while lifting and mobilizing other patients.”
The board addressed that by adding language stating, “An employee is not considered to be available if the employee's other assignments prevent the person from participating in the patient handling
tasks within the timeframe determined to be necessary by the person
designated to observe and direct the patient lifts and mobilizations.”
CNA also asked the board to include an explicit reference to the
“use of the RN’s professional judgment in determining appropriate
patient handling procedures.” The standard states that “the designated registered nurse, as the coordinator of care, will assess the
mobility needs of each patient to determine the appropriate patient
handling procedures based on the nurse's professional judgment.”
©2014 Cal-OSHA Reporter
®
Kathryn Hughes, a nurse and labor specialist for Service Employees
International Union Local 121RN, applauded Cal/OSHA for “stepping up”
for healthcare workers. The standard
is “almost perfect,” she said.
Registered nurse Leesa Evans
told the board that she had to take
early retirement because of injuries
she suffered from lifting patients. The
new standard will help retain nurses,
she said.
The adopted standard now goes Kathyrn Hughes, Local
121RN: Standard is
to the Office of Administrative Law
“almost perfect.”
to ensure it conforms to the Administrative Procedures Act. OAL will also
set an effective date, probably Oct. 1.
Deborah Gold, former deputy chief for health at the Division
of Occupational Safety and Health, which crafted the proposal,
singled out a number of individuals for their work on the standard,
including: DOSH's Bob Nakamura, Dr. Janice Prudhomme, Grace
Delizo and Steve Smith; and the Standards Board's Cathy Dietrich,
Marley Hart and David Beales.s
Double Win
continued from page 10911
Gross at Napa State Hospital galvanized nurses to protest their
conditions, an assault this Easter on a registered nurse at a Los
Angeles-area hospital has spurred this community to push for a
violence-prevention standard.
A criminal suspect who entered an emergency room while
being chased by the police stabbed the Los Angeles nurse repeatedly, including in her ear.
He had run past a security guard, who chased him, then hit
him with a baton – without effect – in the knees and groin. The
attacker grabbed the nurse in a chokehold, and as the police closed
in and began stabbing her. The nurse survived, but will never be
the same, her fellow professionals testified.
“Working in a hospital means working in a state of fear,” one
nurse told the board. A psychiatrist, Dr. Cristina Barolet-Garcia, spoke
about being assaulted by a patient. “We have stories and stories beyond,” she told the board. “We didn't go into medicine to be attacked.”
Sheri Hinkle, a psychiatric nurse from Napa State said assaults
have increased at the hospital since the Donna Gross murder.
The board was actually acting on two petitions, one from Local
121RN, based in Pasadena. The other petition was from the California
Nurses Association.
They seek a specific, enforceable standard based on already
existing occupational safety and health principles to
+
protect healthcare workers from violence. The Injury
www.cal-osha.com
June 20, 2014
00-10914
NEWS
countless incidents are “senseless” and can't be predicted and would
impute accountability for criminal acts to employers. “You can't
discipline those people, can't fire them,” he said.
and Illness Prevention Program
standard has not sufficed in achieving this goal, the unions say.
+
Jackson supports the committee, but stated that law enforcement
and district attorneys should be included, and employers should be
provided the tools they need “to help understand how to make it not
happen.” The proposal “moves the responsibility unacceptably.”
The petition calls for a standard that would expand on
Fed-OSHA’s definition of healthcare and
social assistance workers to include all
workers in healthcare settings. Requirements would include:
•Worksite analyses adapted from the Process Safety
Psychiatrist Cristina
Management standard that
Barolet-Garcia: “We
requires a review of specific
didn’t go into medicine
procedures or operations that
to be attacked.”
contribute to hazards.
•A written workplace violence prevention plan, also
adapted from the PSM standard, that would include
worker involvement, post-incident debriefing and recommendation for change.
•Hazard prevention and control.
•Training, based on the bloodborne pathogens and aerosol
transmissible diseases standards; recordkeeping, compliance and union rights.
The CNA petition seeks similar protections, including:
•A system for responding to and investigating violence.
•A system for assessing and improving factors that contribute to workplace violence.
•Protecting employees' rights seek intervention from
emergency services or law enforcement.
Standards Board staff, in evaluating the petitions, noted that
while their concerns are “well-founded … the solution may not lie
entirely with the development of new standards.” Staff does support
convening an advisory committee.
The Division of Occupational Safety and Health opined “a
regulation that specifically addresses workplace violence hazards in
health care environments would improve employee protection and
can reduce the incidence and severity of injuries.”
The original petition decision would have directed the advisory
committee to determine if rulemaking necessity has been established.
It also requested DOSH to update several guidelines and its model
Injury and Illness Prevention Program for workplace security to
reflect up-to-date best practices.
But just before the board voted on the petition, Stock made her
motion that necessity had already been established. Executive Officer
Marley Hart noted that discussing necessity “is not a way to stall
progress” and pointed out that several elements of workplace violence
problem are not things the board can regulate, such as police staffing .
Board management representative Bill Jackson added that
June 20, 2014
Occupational health representative Hank McDermott added,
“I think it's important that we don't raise false hopes.” He called
on DOSH, which will convene the
committee, to define the areas outside
of Title 8 that have to be addressed by
other agencies or by legislation.
In the end, the board voted unanimously for the modified petition
decision – even Jackson, who paused
before he gave his “aye.”
“Yesterday was an amazing
day for health care workers here in
California,” Local 121RN's Kathryn
Hughes tells Cal-OSHA Reporter. Napa State nurse Sheri
“The two unanimous votes by the Hinkle: Assaults have
Standards Board in support of safe increased since Donna
patient handling and workplace vioGross murder.
lence prevention are two huge steps
towards improved health and safety standards for health care
workers. Once again California is leading the nation in worker
safety and making history. ”
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DECISIONS
40-7111
SUMMARIES OF RECENT CAL/OSH APPEALS BOARD DECISIONS
Cal-OSHA Reporter is pleased to provide, for our valued
subscribers, graphs indicating cited employers’ experience
modification rating (X-Mods) over the designated years.
VIOLATION – PENALTIES NOT CUMULATIVE
More than one hazard was contemplated by the cited safety orders.
The Board affirmed the ALJ’s decision upholding two serious
willful penalties and vacating the penalty for third, pursuant to
the stipulation of the parties.
—•—
TL PAVLICH CONSTRUCTION, INC.
41 COR 40-7111 [¶22,370R]
Digest of COSHAB’s Decision After Reconsideration dated June
16, 2014, Docket Nos. 11-R3D6-1303 through 1310.
Art Carter, Chairman.
Ed Lowry, Board Member.
Judith S. Freyman, Board Member.
THE X-MOD GRAPH FROM COMPLINE
The Board issued a decision after reconsideration of an ALJ’s
decision dated December 17, 2012 [¶22,137].
Background. Employer, a construction firm on a public residential
road project, was cited for multiple violations after an accident in a
30-inch diameter steel pipe 12 feet below grade. A welder dropped
his equipment inside the pipe. A spark was created, igniting a gas,
possibly methane, causing a flash fire that seriously injured the
exposed employee.
Employer did not have appropriate air testing equipment with
remote sensing capability, which would have allowed gas level
readings and detection in the pipe prior to entry by employees. The
personal monitor worn by the injured employee was not capable of
remote sampling, was not properly calibrated, and may have been
covered by the employee’s jacket, causing the monitor to fail to
indicate when conditions were above the 10-percent lower explosive
limit (LEL) in the pipe.
Three of the citations alleged serious willful violations: §5158(d)
(2), failure to purge confined space of flammable, injurious or
incapacitating substances prior to entry; §5158(d)(3), failure to
appropriately test air inside confined space prior to entry; and §5158(d)
(8), introduction of source of ignition into confined space without
ensuring that dangerous air contamination did not exist. Employer
and the Division agreed to limit the appeal to whether one penalty
of $70,000 would suffice for the three citations at issue, or whether
two penalties should be assessed. The parties agreed that if the ALJ
accepted the Division’s position that only one of the penalties should
be reduced, then the penalties would be $140,000 for two of the serious
willful citations, with a zero penalty for the §5158(d)(8) citation, plus
$8,602 for the remaining citations. If the ALJ accepted Employer’s
position that two of the serious willful penalties should be reduced,
then the penalties would be $70,000 for one serious willful citation
and zero for the other two serious willful citations, plus $8,602 for
the remaining non-serious willful citations.
The ALJ upheld the serious willful classification of two of the
three penalties, imposing total penalties of $148,602, per the parties’
stipulation, from an initial total of $229,855. On its own motion,
the Board ordered reconsideration of the ALJ’s decision to address
whether the ALJ correctly assessed two penalties for two willful
violations.
Decision after reconsideration. Employer failed to assess if
either of the blowers it was utilizing were effectively clearing the
pipe of gases or protecting employees from inhalation hazards
associated with shield metal arc welding. No air monitoring or air flow
measurements had occurred within the pipe either before or during
welding. The Division issued an order prohibiting use that directed
Employer to set up a confined space program related to the hazards
of shield metal arc welding in the pipe, including a remote sensing
procedure, and to submit the plan for approval prior to lifting the
order. However, Employer continued to perform welding activities
during the order period without informing the Division that employees
would be conducting work in the pipe.
Section 5158(d)(2) provides, “(d) Pre-Entry. The applicable
provisions of this subsection shall be implemented before entry into a
confined space. (2) The space shall be emptied, flushed, or otherwise
purged of flammable, injurious or incapacitating substances to the
extent feasible.” The citation described three instances of violations
of the standard, including failure to flush the pipe on the day of the
accident, failure to ensure the blowers used on the job were effective
to purge the length and configuration of the pipe, and allowing work
in the pipe after an order prohibiting use had been issued without
notifying the Division or receiving approval of an appropriate purging
and air ventilation plan.
Section 5158(d)(3) states, “(d) Pre-entry. The applicable provisions
of this subsection shall be implemented before entry into a confined
space. (3) The air shall be tested with an appropriate device or method
to determine whether dangerous air contamination, oxygen enrichment
and/or an oxygen deficiency exists. A written record of such testing
results shall be made and kept at the work site for the duration of the
work. Affected employees and/or their representative shall be afforded
an opportunity to review and record the testing results. If an electronic
or thermal device is used to test a confined space that contains or is
likely to develop a dangerous air contamination due to flammable
and/or explosive substances, then the device must be approved for
use in such explosive or flammable conditions as required by section
2540.2.” This citation also described three separate instances of
violation, including the initial failure to perform remote sampling
of the pipe’s atmosphere prior to entry and lack of calibration of the
personal monitor worn by the employee; another involving failure
NOTE: According to the Appeals Board, ALJ decisions are not citable precedent on appeal, i.e., they cannot be quoted when one is appealing
a citation. There is nothing in the California Code of Regulations about this: it is by Board precedent. “(U)nreviewed administrative law judge
decisions are not binding on the Appeals Board.” (Pacific Ready Mix, Decision After Reconsideration of 4-23-82, and Western Plastering, Inc.,
Decision After Reconsideration, 12-28-93.) Decisions After Reconsideration (DARs) are precedential and may be quoted in an appeal.
© 2014 Cal-OSHA Reporter®
www.cal-osha.com
June 27, 2014
DECISIONS
40-7112
to use appropriate monitoring for contamination and oxygen levels;
and the third describing 10 occurrences of welders entering the pipe
after the order prohibiting use was issued, without air monitoring
being conducted with a direct reading instrument with remote sensing
capability prior to entry.
Section 5158(d)(8) provides, “(d) Pre-entry. The applicable
provisions of this subsection shall be implemented before entry into
a confined space. (8) No source of ignition shall be introduced until
the implementation of appropriate provisions of this section have
ensured that dangerous air contamination due to oxygen enrichment,
flammable and/or explosive substances does not exist.” The citation
charged that Employer introduced a source of ignition into the confined
space of the pipe without ensuring that flammable substances did not
exist, resulting in a flash fire.
Employer’s initial appeal was limited to the serious willful
penalties, which it argued should be reduced to zero in two out of
three citations as duplicative pursuant to A & C Landscaping, Inc.
AKA A & C Construction, Inc., Cal/OSHA App. 04-4795, DAR
(June 24, 2010) [Digest ¶ 21,675R]. In A & C Landscaping, the
Board held that where the cited safety orders pertain to a single
hazard and a single form of abatement will eliminate the hazard, the
Board will eliminate a duplicative penalty. Here, the ALJ found that
the hazards contemplated by second and third citations at issue were
not the same and, based on the stipulations of the parties, assessed
two serious willful penalties.
Employer argued that Sherwood Mechanical, Inc., Cal/OSHA
App. 08-4692, DAR (June 28, 2012) [Digest ¶ 22,021R] supported
that the citations were duplicative. In Sherwood Mechanical, the
Board affirmed both a §3329(b) failure to vent gas/failure to close a
vent valve violation, and a §5461(c) failure to test for concentration of
natural gas violation. The two violations pertained to the same hazard
of explosion and a single abatement was possible, either proper venting
to eliminate the natural gas buildup in the atmosphere, or testing the
air to ensure that the buildup was not present prior to introducing an
ignition source. Thus, Employer argued, both prongs of the test in
A & C Landscaping were met, as the citations addressed the same
hazard, and the same abatement was capable of curing both violations.
The Board concluded that here, the hazard contemplated by
§5158(d)(8) is the risk of explosion. While §§5158(d)(2) and (d)
(3) address the risk of fire and explosion, they also seek to protect
employees from the risk of being incapacitated in a confined space by
dangerous gases or lack of oxygen. This is reflected in the language
of the safety orders, as well as the citations themselves, which each
described different hazards. Without the same hazard, the first prong
of the A & C Landscaping test was not met, the Board concluded.
Regarding the second prong of A & C Landscaping, abatement
of the three safety orders required different means, the Board found.
Section 5158(d)(2) requires the confined space to be “emptied, flushed,
or otherwise purged” of dangerous substances “to the extent feasible”
while §5158(d)(3), acknowledging that conditions in confined spaces
can change, and purging may not remove all dangerous substances
from the atmosphere, requires testing of the air in a confined space with
appropriate devices or methods to determine if air contamination or an
oxygen deficiency exists. Finally, abatement in §5158(d)(8) requires
ensuring that no source of ignition is introduced until air testing has
occurred to ensure that there is no air contamination present which
could lead to an explosion.
The Board noted that while these safety orders are interrelated, no
single action would result in abatement of all hazards. Without both a
single hazard and a single means of abatement, penalty reduction was
not warranted (A. Teichert & Son Inc. dba Teichert Construction,
Cal/OSHA App. 09-0459, DAR (Nov. 9, 2012) [Digest ¶ 22,107R]).
June 27, 2014
DEFENSES – EQUITABLE ESTOPPEL
Employer failed to show that the Division made any assurances
that Employer’s individual section machine was not subject to
§4002(a), with either an express intent to deceive Employer, or
careless negligence amounting to fraud.
—•—
OWENS-ILLINOIS GLASS CONTAINER INC.
41 COR 40-7112 [¶22,371R]
Digest of COSHAB’s Decision After Reconsideration and Order
of Remand dated June 16, 2014, Docket Nos. 09-R1D4-2021 and
2022.
Art Carter, Chairman.
Ed Lowry, Board Member.
Judith S. Freyman, Board Member.
The Board issued a decision after reconsideration of an ALJ’s
decision dated April 6, 2010 [¶21,644].
Background. The Division issued two citations to Employer, a
manufacturer of glass containers. Both citations referred to hazards
at glass bottle forming machines, called individual section machines.
The first citation alleged a serious violation of §3308, inadequate
guarding on forming machines with hot surfaces. The second alleged
a serious violation of §4002(a), insufficient guarding of machines with
moving parts. A penalty of $5,060 was proposed for each violation.
The ALJ’s decision granted Employer’s appeal of both citations
and vacated the proposed penalties. The Division petitioned for
reconsideration.
Decision after reconsideration. Section 4002(a) provides,
“All machines, parts of machines, or component parts of machines
which create hazardous revolving, reciprocating, running, shearing,
punching, pressing, squeezing, drawing, cutting, rolling, mixing or
similar action, including pinch points and shear points, not guarded
by the frame of the machine(s) or by location, shall be guarded.”
Employer argued that the doctrine of equitable estoppel prevented
the Division from citing it for a §4002(a) violation because there had
been reliance on the Division’s prior representations that the individual
section machines were governed by §3314. The ALJ concluded that
equitable estoppel applied. Contesting Employer’s equitable estoppel
argument, the Division objected to the ALJ considering out-of-court
statements allegedly made by the Division’s district manager.
The Board in Underground Construction Co., Inc., Cal/OSHA
App. 09-3518 DDAR (March 22, 2012) [Digest ¶ 21,986R] described
the conditions necessary for equitable estoppel to apply: 1) the party
to be estopped must be apprised of the facts; 2) that party must intend
that its conduct shall be acted upon; 3) the other party must be ignorant
of the true facts; and 4) the party must rely detrimentally upon the first
party’s conduct. To establish estoppel, the representation generally
must be a statement of fact (citation omitted).
Employer appeared to argue that two prior notices of “no violation”
issued by the Division and one prior settlement between the parties
were the “facts” that created Employer’s belief that the machines did
not need to be guarded, or that they were covered by §3314 rather than
§4002(a). The Board found that these were more accurately described
as statements of legal conclusion. Employer described reliance on what
it understood to be the Division’s interpretation of safety regulations
issued by the Standards Board.
The question, the Board stated, was whether there were any facts
involved that the Division misrepresented with either “careless and
culpable negligence” or an “express intention to deceive” (citation
omitted). Employer did not appear to contend that the Division
misrepresented a material fact, but took issue with its allegedly shifting
interpretation of the regulations. This was not an issue for equitable
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© 2014 Cal-OSHA Reporter®
DECISIONS
40-7113
estoppel, the Board concluded.
Employer also failed to demonstrate that the Division intended
any statements made during the three inspections to be relied on by
Employer. Employer may have believed that the Division decided to
settle for a §3314 violation due the difficulty of its machines to guard,
but no such statement from the Division to Employer existed in the
record. There was no evidence that the Division ever explained why
it chose not to issue citations to Employer in two of the inspections,
or chose to settle for a lesser penalty in one instance.
Employer established the third element of equitable estoppel. It
appeared that Employer did not believe that its machines required
guarding under §4002(a). Several of Employer’s witnesses testified
that the machines were impossible to guard and that Employer’s
actions through other safety means were more than sufficient to make
up for the lack of guarding defined in §4002(a).
Employer failed to establish the fourth element of the estoppel
test. A party must rely on the conduct of the party to be estopped to
its detriment; Employer argued that it relied upon its understanding
of the Division’s interpretation of the safety orders, but did not show
any loss as a result of this reliance. Employer provided testimony
that it had essentially the same machines for many years and showed
no expenditure made in reliance on information received from
the Division, or opportunity that it chose to forgo. It updated the
machines and added new safety features, but did not testify that it
did so in reliance on advice of the Division. Although it provided
some testimony as to expenditures on improvements to its facility
including safety training and safety equipment, Employer’s witness
also suggested that at least some of that safety expenditure was the
result of negotiations with the union representing Employer’s workers.
The Board noted that California courts long have held that public
policy must be a primary consideration when estoppel is asserted
against a government agency. Employer’s estoppel argument failed,
so the Board did not need not reach public policy considerations.
However, it noted that while Employer may have had compelling
reasons for failing to meet the demands of §4002(a), Labor Code
§6450, allows an employer to apply to the Division for a temporary
variance from an applicable standard. Also, under Labor Code §143, an
employer may apply to the Standards Board for a permanent variance
by showing that it has an alternate program of equal or superior safety
to that of the safety order.
Order of remand. The ALJ’s decision did not reach the potential
violation of §4002(a), Employer’s defense of the applicability of
§3314(c)(1), or other defenses. In light of the rejection of Employer’s
estoppel defense, the Board remanded the case to hearing operations
for a determination of the remaining issues.
METAL SCAFFOLDS – SECURELY ATTACHED RAILINGS
Cal. Code Regs, tit. 8, § 1644(a)(6) (2014) – An employee was
exposed to a scaffold that did not have all railings required by
the manufacturer, a serious violation. The Board affirmed that
Employer did not establish the defense of lack of employer
knowledge.
STEEL FRAME CONSTRUCTION – TOP PLATE, JOISTS
AND ROOF STRUCTURE FRAMING
Cal. Code Regs, tit. 8, § 1716.2(e)(1) (2014) – An employee was
exposed to lack of fall protection while working over 15 feet above
grade, a serious violation. The Board affirmed that Employer did
not establish the defense of lack of employer knowledge.
© 2014 Cal-OSHA Reporter®
PENALTIES – VIOLATIONS NOT DUPLICATIVE
Given their different abatement requirements, cited violations
of §1644(a)(6), lack of railings on scaffold, and §1716.2(e)
(1), lack of fall protection, were not substantially identical. The
Board rejected Employer’s argument that either citation should
be dismissed as duplicative.
—•—
DAVIS DEVELOPMENT CO.
41 COR 40-7113 [¶22,372R]
Digest of COSHAB’s Decision After Reconsideration dated June
18, 2014, Docket Nos. 10-R3D1-3360 through 3362.
Art Carter, Chairman.
Ed Lowry, Board Member.
Judith S. Freyman, Board Member.
THE X-MOD GRAPH FROM COMPLINE
The Board took under reconsideration an ALJ’s decision dated
September 20, 2011 [¶21,899].
Background. The Division issued three citations to Employer, a
framing contractor, for: failure to provide training in fall protection
(general, §1716.2(j)); lack of railings on scaffold (serious, §1644(a)
(6); and lack of fall protection (serious, §1716.2(e)(1)). The ALJ’s
decision denied Employer’s appeal but dismissed the penalty in
the second citation, finding it duplicative of the hazard in the third.
Total penalties were calculated at $7,635. The Board, on its own
motion, ordered reconsideration. Employer also filed a petition for
reconsideration of the ALJ’s decision.
Decision after reconsideration. Employer argued in its petition
that the serious classification of the citations was erroneous, as no
management official had actual or constructive knowledge of the cited
violations. The knowledge element of a serious classification requires
that the employer either knew, or with the exercise of reasonable
diligence, could have known of the violative condition (citation
omitted). The Board stated that the issue was not whether Employer’s
foreman was aware of the violative conditions, but if he could have
known of the missing railings and another employee’s failure to wear
fall protection, through exercise of reasonable diligence (Tomlinson
Construction, Inc., Cal/OSHA App. 95-2268, DAR (Feb. 18, 1998)
[Digest ¶ 19,251R]).
The knowledge element of Labor Code §6432 is designed to
encourage employers to conduct reasonably diligent inspections for
violative conditions so that the hazard associated with the condition
can be timely corrected or, otherwise, face the prospect of a serious
violation and increased civil penalty (Andersen Tile Co., Cal/OSHA
App. 94- 3076, DAR (Feb. 16, 2000) [Digest ¶ 19,758], citing Lift
Truck Services Corp., Cal/OSHA App. 93-384, DAR (March 14,
1996) [Digest ¶ 18,925R]).
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June 27, 2014
DECISIONS
40-7114
On the day of the inspection, Employer’s foreman had an assistant
foreman walking the jobsite, ensuring that employees were working
appropriately and safely. As the ALJ found, presumably the assistant
foreman assigned the employee to work on the roof, and could see
that he was working without fall protection, as was plainly visible
from the street. Similarly, the missing rails also were visible and near
where the employee was working. The Board concluded that the ALJ
correctly found that the Employer did not establish the defense of lack
of Employer knowledge.
The Board next addressed whether the ALJ’s decision regarding
the penalty assessment was consistent with A & C Landscaping,
Inc. AKA A & C Construction, Inc., Cal/OSHA App. 04-4795, DAR
(June 24, 2010) [Digest ¶ 21,675R] regarding duplicative violations.
Employer argued that either of the two citations classified as serious
should have been dismissed as duplicative. The Board found that this
was a misstatement of prior Board decisions after reconsideration.
Only one penalty may be assessed against an employer for multiple
violations concerning a single hazard or piece of equipment, but an
employer may be issued more than one citation alleging numerous
violations concerning that same hazard or piece of equipment, or the
same act (citations omitted). Where two cited safety orders pertain
to a single hazard and a single form of abatement will eliminate
the hazard, the Board will eliminate a duplicative penalty (A & C
Landscaping, supra).
Here, the ALJ found that the hazard addressed by both citations
was the same, a fall from the 27-foot roof of the building under
construction. It was undisputed that, on the day of the inspection, two
employees were working on the roof and were exposed to a fall hazard.
While the hazards to both citations may be the same, under A & C
Landscaping, not only must a single hazard be shown, but a single
form of abatement also must eliminate the hazard in both violations.
Section 1644(a)(6) relates to railings on sides and ends of
scaffolding; had the railing been restored, the fall hazard from the roof
where perimeter catch platform scaffolds were absent would still have
existed. The abatement required by §1716.2(e)(1), the fall protection
system requirement, would not have been met simply by installation
of guardrails on the scaffolds, as the scaffolding had at least one
significant gap, but also requires employees to wear fall protection
while working on certain sections of the roof (Vance Brown, Inc.,
Cal/OSHA App. 00-3318, DAR (April 1, 2003) [Digest ¶ 20,486R]).
The Board found the facts comparable to Western Plastering Inc.,
Cal/OSHA 79-032, DAR (Dec. 28, 1983) [Digest ¶ 15,629R], which
involved two citations. Although there was presumably a hazard of
falling in both violations, correcting the unsafe conditions described
in one citation would not have corrected those described in the other.
The Board found that the same logic applied here. Employer’s
foreman testified that crews were instructed to wear fall protection
lanyards and harnesses in areas where the perimeter catch platform
scaffolds were not available, and that there were areas on the worksite
where the catch platforms did not provide adequate fall protection.
Given the different abatement requirements of the two violations, the
Board affirmed the $7,310 penalties for both citations.
June 27, 2014
EXCAVATIONS – PROTECTIVE SYSTEM
Cal. Code Regs, tit. 8, § 1541.1(a)(1) (2014) – Employees were
working in an unprotected trench that was not excavated entirely in
stable rock. The Board found a serious, accident-related violation
and affirmed the penalty originally proposed by the Division.
EXCAVATIONS – RETAINING DEVICES
Cal. Code Regs, tit. 8, § 1541(j)(2) (2014) – A violation for failure
to provide retaining devices in a trench, where excavated materials
(spoils) were on its top edge, existed by operation of law. The serious
classification of the violation was established. The Board affirmed
the penalty originally proposed by the Division.
—•—
AGRI-VALLEY IRRIGATION, INC.
41 COR 40-7115 [¶22,373R]
Digest of COSHAB’s Decision After Reconsideration dated June 18,
2014, Docket Nos. 07-R2D5-3784 through 3786.
Art Carter, Chairman.
Ed Lowry, Board Member.
Judith S. Freyman, Board Member.
THE X-MOD GRAPH FROM COMPLINE
The Board took under reconsideration an ALJ’s decision dated
May 17, 2011 [¶21,830].
Background. Following a trench collapse, the Division issued three
citations to Employer, an installer of irrigation systems for agricultural
operations. The first alleged a general violation of §1541(c)(2), failure
to provide safe means of access and egress from a trench; the second
citation alleged a serious violation of §1541.1(a)(1), failure to provide
cave-in protective system in a trench; and the third alleged a serious
violation of §1541(j)(2), failure to provide retaining devices in a trench
where excavated materials (spoils) were on the top edge of the trench.
Employer withdrew its appeal of the first citation at hearing. The
ALJ’s decision denied Employer’s appeal in part and affirmed the
violations of the remaining citations, amending them to general and
assessing a total penalty of $480.
Decision after reconsideration. The Division cited Employer for
a violation of §1541.1(a)(1), which states, “(1) Each employee in an
excavation shall be protected from cave-ins by an adequate protective
system designed in accordance with Section 1541.1(b) or (c) except
when:
“(A) Excavations are made entirely in stable rock; or
“(B) Excavations are less than 5 feet in depth and examination of
the ground by a competent person provides no indication of a potential
cave-in.”
There was no dispute that the trench did not have a protective
system, leaving only the first exception at issue, whether the excavation
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© 2014 Cal-OSHA Reporter®
DECISIONS
40-7115
was made entirely in stable rock (Dick Miller, Inc., Cal/OSHA App.
13-0578, DDAR (March 5, 2014) [Digest ¶ 22,332R). The Board agreed
with the ALJ that the excavation was not “made entirely in stable rock.”
Thus, a violation was established. Testimony characterized the soil at the
site of the collapse as sandy. The material, whether it was completely
sandy, or a mix of sandy soil and more cohesive soil, as Employer
argued, was not stable rock as defined by §1541.1(b).
The evidence established a violation of §1541.1(a)(1). In order for
a citation to be upheld as serious, the Division must show a substantial
probability that the violation could result in serious physical harm or
death (Labor Code §6432(a)). The Division investigator’s testimony,
coupled with the serious nature of the employee’s injury, supported a
substantial probability that a violation of the safety order could result in
serious physical harm or death. (See Dennis J. Amoroso Construction
Co., Inc., Cal/OSHA App. 98-4256, DAR (Dec. 20, 2001) [Digest ¶
20,193R].) The investigator explained that serious injuries such as
suffocation and internal injuries from compression were possible from
soil, which typically weighs 100 pounds per cubic foot, and that other
injuries were possible from a cave-in such as a ruptured spleen, lung
compression, asphyxia, and broken ribs that can lead to punctured lungs.
Employer’s expert testimony was insufficient to overcome the
Division’s evidence of substantial probability of serious physical
harm or death. Employer also argued that it lacked knowledge of the
violative condition (Labor Code §6432(b)). Employer’s foreman was
present at the site at the time of the cave-in. A foreman’s knowledge of
a violative condition is imputed to the employer; knowledge is found
to exist where an employer either knows, or could have known with
exercise of reasonable diligence, of the violative condition (PCL Civil
Constructors, Inc., Cal/OSHA App. 93-2373, DAR (March 4, 1999
[Digest ¶ 19,531R]).
Had Employer’s foreman exercised reasonable diligence in
examining the newly trenched areas for hazards, he likely would have
been aware that the trench was not in stable rock, but was in a mix of
compressed soil and sand, some of which was extremely unstable due
to the sand strata (Vance Brown, Inc., Cal/OSHA App. 00-3318, DAR
(April 1, 2003) [Digest ¶ 20,486R]). The foreman’s lack of knowledge
was imputed to Employer. The Board found a serious violation.
To establish the accident-related characterization, the Division must
establish a causal connection between the violation and the serious
© 2014 Cal-OSHA Reporter®
injury (citation omitted). The testimony of the Division’s investigator
and the injured employee supported that Employer’s failure to provide
adequate cave-in protection led to a serious injury. The Division
established a serious, accident-related violation. The Board assessed a
civil penalty of $16,200.
The second citation at issue charged a violation of §1541(j)(2),
which states, “Protection shall be provided by placing and keeping
such materials at least 2 feet from the edge of excavations, or by the
use of retaining devices that are sufficient to prevent materials from
falling or rolling into excavations.” Employer withdrew all defenses
except classification. The violation was established by operation of
law (§361.3).
The Board stated that §1541(j)(2) has a clear purpose of protecting
employees from the hazard of materials, such as spoils from trenching,
falling into an open excavation where employees are working. This is a
separate hazard from failure to properly protect employees from a cavein (citation omitted). The Division testified as to a substantial probability
of death or serious physical harm from a violation because workers who
are exposed to materials falling into a trench can be suffocated, when
an “avalanche effect” occurs. The Division testified that the avalanche
effect can lead to the chest being compressed and that even a smaller
spoils fall into a trench may lead to lack of circulation in covered limbs,
which has a risk of serious injury or death.
Employer’s expert confined his testimony to general trench
accidents and provided no testimony as to probability of serious physical
harm or death should spoils enter a trench due to violation of §1541(j)
(2). The Division’s testimony that spoils entering an excavation can
cause serious injury or death to exposed employees was unrebutted
(James M. Blessing, Jim Blessing Contractor & Equipment Rental,
Cal/OSHA App. 93-2101, DAR (June 10, 1997) [Digest ¶ 19,111R]).
Where a Division witness testifies based on experience, and the
experience is neither impeached nor called into question through other
evidence, the Division establishes the serious classification of a citation
(Sherwood Mechanical, Inc., Cal/OSHA App. 08-4692, DAR (June 28,
2012 [Digest ¶ 22,021R], citing Forklift Sales of Sacramento, Inc.,
Cal/OSHA App. 05-3477, DAR (July 7, 2011 [Digest ¶ 21,871R]). The
Board found that a serious violation of §1541(j)(2) was established and
ordered a $2,925 civil penalty.
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June 27, 2014
DECISIONS
40-7116
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