46 COR 40-8160 [¶22,945R]
CONSTRUCTION SAFETY ORDERS – DEMOLITION, SUPERVISION
Cal. Code Regs, tit. 8, §§ 1529(b), 1734(a) (2019) – The Appeals Board upheld a citation for failure to have immediate supervision over demolition work. The asbestos abatement and removal was related to the wrecking or taking out of load-supporting structural members; thus, the employees were engaged in “demolition.” However, the Division failed to establish the serious classification of the violation; the Board reclassified it to general.
Digest of COSHAB’s Decision After Reconsideration dated May 16, 2019, Inspection No. 1129260.
Ed Lowry, Chair.
Judith S. Freyman, Board Member.
Background. The Division issued two citations to Employer, alleging a serious, accident-related violation of §1670(a), failure to use fall protection for exposed employees; and a serious violation of §1734(a), failure to have immediate supervision over demolition work. An ALJ decision dated November 1, 2018 [¶22,882] affirmed the first cited violation and vacated the second. The Board took the matter under submission on its own motion to address whether the ALJ properly vacated the cited violation of §1734(a).
At the time of the injury accident, Employer was engaged in asbestos abatement and removal on a demolition project. A group of four employees was removing transite panels from the ceiling in furtherance of the demolition project. One employee fell from the unprotected edge of the third floor mezzanine and suffered serious injuries.
Decision after reconsideration. The Appeals Board first addressed whether, under §1529, the work of Employer’s employees fell within the scope of demolition definition; and if it did, whether the Division established that Employer violated §1734(a). Section 1734(a) states, “Demolition work shall at all times be under the immediate supervision of a qualified person with the authority to secure maximum safety for employees engaged in demolition work.”
The employees were performing work absent immediate supervision of a qualified person when the employee fell; the only issue was whether that work fell within the demolition definition in the Construction Safety Orders. Section 1529(b) defines demolition as “the wrecking or taking out of any load-supporting structural member and any related razing, removing, or stripping of asbestos products.”
Employer argued at hearing that, on the day of the accident, it did not take out any load-supporting structural members; thus, it did not perform work falling within the definition of demolition in §1529(b). The Appeals Board rejected this argument as too narrow of an interpretation of the safety order. The Board must liberally interpret regulations for the purpose of achieving a safe working environment (Labor Code §6300).
Referencing §1529(b)’s definition of “demolition,” the Appeals Board stated that it interprets demolition to encompass two types of work: (1) wrecking or taking out of any load-supporting structural member; and (2) any related razing, removing, or stripping of asbestos products. The Appeals Board noted that, had the Standards Board intended to limit the definition of demolition to only “the wrecking or taking out of any load-supporting structural member”, it would have ended the definition there, but the definition also includes the “any related razing, removing, or stripping of asbestos products.” The rules of regulatory construction require the Appeals Board to give effect to the words of the definition, the Board stated.
Not all “razing, removing, or stripping of asbestos products” constitutes demolition under the §1529 definition; such work must be related to “the wrecking or taking out of any load-supporting structural member.” If razing, removing, or stripping of asbestos products is not related to the wrecking or taking out any load-supporting structural member, the definition does not apply to that work, the Appeals Board stated. Here, the employees’ removing the transite panels was related to “the wrecking or taking out of any load-supporting structural member” and was, thus, encompassed within the definition, the Appeals Board concluded.
Employer’s safety manager/project superintendent’s statement to the Division inspector that they were part of the demolition project was an authorized admission for purposes of hearsay evidence rules (citations omitted). Even assuming it were not such an admission, it would be admissible under Board reg. §376.2, the Board held. The statement was sufficient to support that removing asbestos was related to the wrecking or taking out of any load-supporting structural members.
The Board noted other evidence that the work was related to the “wrecking or taking out of any load-supporting structural member.” Employer’s sole witness testified his job duties included “running, ordering equipment, scheduling employees, evaluating jobs for … demolition” and that on the morning of the accident, he met with a contractor in charge of wrecking or taking out load-supporting structural members to discuss how soon that contractor could get in after the abatement was completed, which showed the asbestos abatement was related to the demolition project. The evidence demonstrated the employees’ job at the worksite was part of, and in furtherance of, the demolition project.
Because the work of asbestos abatement and removal was related to the wrecking or taking out of any load-supporting structural members, their work fell within the demolition definition in §1529(b). Consequently, §1734 applied, the Board held.
The evidence showed Employer failed to provide immediate supervision over employees. As a result, the Division established a violation of §1734. (See Seca Equipment Removal & Dismantling, Inc., Cal/OSHA App. 07-0275, DDAR (Feb. 3, 2012) [Digest ¶ 21,970R]; Orange County Scaffold, Inc., Cal/OSHA App. 99-223, Decision After Reconsideration (March 8, 2002) [Digest ¶ 20,225R].)
Independent employee action defense (IEAD). Employer did not attempt to establish the IEAD for the citation at issue on reconsideration. The Board need not consider affirmative defenses that a party does not seek to establish. (See Shimmick Construction Company, Inc., Cal/OSHA App. 1080515, DDAR (March 30, 2017) [Digest ¶ 22,687R].) Employer failed to provide evidence to satisfy its burden of proof. Even if it had, the IEAD did not apply because the violation was for lack of immediate supervision, and the IEAD does not apply to foremen or supervisors (ABM Facility Services, Inc., dba ABM Building Value, Cal/OSHA App. 12-3496, DAR (Dec. 24, 2015) [Digest ¶ 22,544R]; Brunton Enterprises, Inc., Cal/OSHA App. 08-3445, DAR (Oct. 11, 2013) [Digest ¶ 22,276R]).
Classification. Labor Code §6432(a) provides a rebuttable presumption that a violation is serious if the Division demonstrates there is a realistic possibility death or serious physical harm could result from the actual hazard created by the violation. Realistic possibility is a prediction clearly within bounds of reason, not pure speculation (HHS Construction, Cal/OSHA App. 12-0492, DAR (Feb. 26, 2015) [Digest ¶ 22,449R]; Langer Farms, LLC, Cal/OSHA App. 13-0231, DAR (April 24, 2015) [Digest ¶ 22,465R]). To meet this burden, the Division must show the type of injuries that could result and the possibility of those injuries occurring (Langer Farms, supra).
Here, the Division inspector’s testimony was limited and conclusory. Other than the injury that occurred, the Division failed to provide evidence of the types of injuries that could occur as a result of lack of immediate supervision by a qualified person over employees engaged in demolition work. While the parties agreed the employee suffered serious physical harm, this stipulation did not not support that the Division established the presumption. The Division failed to establish the requisite link between the serious physical harm and the actual hazard created by the violation, as required by Labor Code §6432(a). (See MDB Management, Inc., Cal/OSHA App. 14-2373, DAR (April 25, 2016) [Digest ¶ 22,584R].) Accordingly, the Board reduced the classification to general.
Penalty. Penalties calculated in accordance with the penalty-setting regulations of §§333 through 336 are presumptively reasonable and will not be reduced absent evidence the amount was miscalculated, regulations were improperly applied, or the circumstances warrant reduction (RNR Construction, Inc., Cal/OSHA App. 1092600, DAR (May 26, 2017) [Digest ¶ 22,708R] citing Stockton Tri Industries, Inc., Cal/OSHA App. 02-4946, DAR (March 27, 2006) [Digest ¶ 20,795R]).
The Division introduced the proposed penalty worksheet, testified as to the calculations and established the penalties were properly calculated. (See M1 Construction, Cal/OSHA App. 12-0222, DAR (July 31, 2014) [Digest ¶ 22,386R].) At hearing, Employer presented no evidence of circumstances warranting penalty reduction. The Board applied the same reductions for good faith, history and abatement, but for a general classification (§336(b)), which resulted in a penalty of $600.