49 COR 40-8567 [¶23,188]
SAFE PRACTICES AND PERSONAL PROTECTION, MISCELLANEOUS SAFE PRACTICES – MACHINERY AND EQUIPMENT NOT USED OR OPERATED UNDER CONDITIONS OF SPEED, STRESSES, LOADS, OR ENVIRONMENTAL CONDITIONS CONTRARY TO MANUFACTURER’S RECOMMENDATIONS Cal. Code Regs, tit. 8, § 3328(a)(2) (2022) – the Division met its burden of proof to establish Employer failed ensure that equipment was not operated or used under conditions of speeds, stresses, loads, or environmental conditions that are contrary to the manufacturer’s recommendations. INJURY AND ILLNESS PREVENTION PROGRAM -CONSTRUCTION SAFETY ORDERS – CODE OF SAFE PRACTICES (CSP) Cal. Code Regs, tit. 8, § 1509(b) (2022) – After review of the factual record, the ALJ determined the Division met its burden of proof to establish Employer failed to adopt its written CSP by failing to put into effect or practice the safety rules contained within the CSP. As such, the citation was affirmed. DEFINITION OF SERIOUS INJURY Labor Code § 6302(h) (2018) - The record did not establish the injured worker’s stay in the hospital was in excess of 24 hours as required by Labor Code § 6302 in effect at the time of the issuance of the citations. Therefore, the Division failed to establish a causal nexus between a violation and a serious injury. DEFINITION OF SUPERVISOR Sacramento County Water Agency Department of Water Resources, Cal/OSHA App. 1237932, DAR (May 21, 2020) [Digest ¶ 23,050R]) – The determination of who is a supervisor is based on a factually specific analysis and is not determined by title or job description alone. After a considerable review of the facts offered by the parties, the ALJ determined both the injured employee and the apprentice believed and acted as though the injured employee had responsibility for the apprentice’s safety while he was working as a helper and apprentice on the jobsite and thus the injured employee was a supervisor. EMPLOYER DEFENSES Newbery Electric Corp. v. Occupational Safety & Health Appeals Bd. (1981) 123 Cal.App.3d 641 – The ALJ determined the Employer could not utilize the defense of unforeseeability when a supervisor committed the violation, citing Brunton Enterprises, Inc., Cal/OSHA App. 08-3445, DAR (Oct. 11, 2013) [Digest ¶ 22,276R]. ASSESSMENT OF CIVIL PENALTIES Cal. Code Regs, tit. 8, § 336 (2022) – The evidence supported a finding that Employer violated § 1509(b) by failing to adopt various safety rules within its CSP. The violation was properly classified as General. The modified penalty of $280 was found reasonable. The evidence also supported a finding that Employer violated § 3328(a)(2) by failing to ensure equipment was not used or operated under conditions of speeds, stresses, loads, or environmental conditions that were contrary to the manufacturer’s recommendations. The violation was properly classified as Serious, but the Division did not establish that it was properly characterized as accident-related. The modified penalty of $3,375 was found reasonable.Summary of COSHAB-ALJ’s Decision dated July 29, 2022, Inspection No. 1333620 (San Francisco, CA).
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