44 COR 40-7833 [¶22,690]
INJURY AND ILLNESS PREVENTION PROGRAM (IIPP) – EFFECTIVE IIPP
Cal. Code Regs, tit. 8, § 3203(a) (2017) – Employer failed to establish an IIPP containing all of the elements required by §3203. Although Division did not establish that Employer’s IIPP lacked an effective, written system for ensuring that employees complied with safe and healthy work practices, the IIPP lacked effective procedures for identifying and evaluating workplace hazards.
CONSTITUTIONAL ARGUMENTS – DUE PROCESS, BIAS
While the ALJ found that the Division inspector harbored personal bias against Employer, the citation for an inadequate IIPP was upheld based on ample independent evidence.
PERSONAL SAFETY DEVICES AND SAFEGUARDS – HAND PROTECTION
Cal. Code Regs, tit. 8, § 3384(a) (2017) – The Division failed to establish that Employer violated the safety order by permitting its employee to use a deep fryer while wearing a Kevlar glove and sleeve over a plastic food-handling glove. The Division failed to establish that such hand protection was inappropriate.
Summary of COSHAB-ALJ’s Decision dated March 30, 2017, Inspection No. 997100.
Howard I. Chernin, Administrative Law Judge.
For Employer: Lawrence Iser and Kevin Bland, Attorneys.
For DOSH: William Cregar, Staff Counsel.
Following an accident inspection, the Division cited Employer, an amusement park operator, for three alleged violations. The injured employee had been employed in a restaurant kitchen, where her job included skimming food particles off the surface of the hot oil contained in a fryer. Employer provided a Kevlar glove and sleeve and plastic-food handling gloves, which it required the employee to wear while skimming food from the top of the oil in the fryer. Employer also provided the employee with an approximately 18-inch long skimming tool that created distance between the employee’s hand and the oil in the fryer.
§3203(a): General violation and $560 penalty affirmed. The Division alleged that Employer failed to established a written IIPP that met the minimum requirements of §3203. Specifically, it charged that the following elements were missing: identifying and evaluating workplace hazards under §3203(a)(4)(B) and (C); a system for ensuring that employees complied with safe and healthy work practices under §3203(a)(2); and methods and/or procedures for correcting unsafe or unhealthy conditions, work practices and work procedures when an imminent hazard existed that could not be immediately abated without endangering employee(s) and/or property, as per §3203(a)(6)(B).
The Division maintained that Employer neither provided a complete IIPP during the investigation, nor showed that it had established an effective IIPP. The ALJ first determined that Employer’s IIPP did not lack a system for ensuring that employees complied with safe and healthy work practices. The Division inspector admitted that Employer’s IIPP contained a system for ensuring that employees complied with safe and healthy work practices.
The Division testified that Employer’s IIPP lacked procedures compliant with §3203(a)(4), and the procedures that contained were spread throughout the IIPP in such a way that employees could not readily find and follow them. The Division admitted that Employer’s IIPP contained the language found in the Division’s model program with respect to performing inspections to identify and evaluate workplace hazards. It denied, however, that this satisfied §3203(a)(4) because the IIPP contained blank spaces for certain information. The Division charged that Employer was required to additionally define how it was going to conduct its inspections.
The ALJ found that an employee would need to search through multiple sections spread across a two-part document in order to determine Employer’s procedures for identifying and evaluating workplace hazards. (See Mountain Cascade, Inc., Cal/OSHA App. 01-3561, DAR (Oct. 17, 2003) [Digest ¶ 20,553R].) Thus, Employer’s IIPP lacked effective procedures for identifying and evaluating workplace hazards.
The Division admitted that Employer’s IIPP contained methods and/or procedures for correcting unsafe or unhealthy conditions, work practices and work procedures when an imminent hazard existed that could not be immediately abated without endangering employee(s) and/or property. Accordingly, the Division failed to establish that Employer’s IIPP lacked an effective system in writing for ensuring that employees complied with safe and healthy work practices.
Due process. Employer contended that the citation should have been dismissed on grounds that it was the product of a biased and therefore, invalid investigation. In essence, Employer argued that the Division’s senior safety engineer manufactured a violation due to her bias against Employer. The ALJ noted that this was a due process argument. The Division plays a prosecutorial role when it enforces the Cal/OSH Act, and that it alone decides whether to pursue or settle its cases (United Bark Products, Inc., Cal/OSHA App. 12-3252, DDAR (Nov. 24, 2014) [Digest ¶ 22,428R] citing Westech Industries, Inc., Cal/OSHA App. 08-3717, DDAR (Oct. 25, 2012) [Digest ¶ 22,088R]). The ALJ further noted that California law holds public prosecutors to “high ethical standards.”
In addressing whether the Division fulfilled its duty to act with integrity and impartiality throughout its investigation, the ALJ noted that its inspector was “evasive and obstinate” during cross-examination, and denied, with respect to her Twitter account, that she had ever “tweeted” specifically about Employer. The ALJ found her denial not credible, due to numerous “tweets” that identified Employer by name or abbreviation. The ALJ stated that those tweets about Employer during an active investigation called into question the inspector’s and the Division’s impartiality and integrity and, thus, it was reasonable to conclude that the Division inspector held a bias against Employer because all of her tweets about Employer were critical of its operations.
Employer questioned the inspector about a prior investigation involving Employer. The inspector admitted that, as part of the prior investigation, she drafted a narrative summary that her supervisors had determined violated the Division’s policies and procedures. Although the inspector denied that she held a grudge against Employer, the ALJ found this denial not credible. The ALJ found that, more likely than not, she harbored some bias against Employer.
However, regardless of whether the Division inspector allowed her personal bias against Employer to affect her judgment during her investigation, the ALJ concluded that “ample independent evidence” existed beyond the inspector’s testimony to demonstrate that Employer’s IIPP was not drafted in compliance with §3203. As a result, it affirmed the citation.
§3384(a): Serious violation dismissed; $18,000 penalty vacated. At the time of the inspection, the cited safety order provided, “Employers shall select, provide and require employees to use appropriate hand protection when employee’s [sic] hands are exposed to hazards such as those from skin absorption of harmful substances, cuts or lacerations, abrasions, punctures, chemical burns, thermal burns, radioactive materials, and harmful temperature extremes.” The citation included reference to the section number, accompanied by the following language, “Hand protection shall be required for employees whose work involves unusual and excessive exposure of hands to cuts, burns, harmful physical or chemical agents or radioactive materials which are encountered and capable of causing injury or impairments.”
Labor Code §6317 defines the requirements for a valid citation. As long as the employer is informed of the substance of the violation and the citation is sufficiently clear to give fair notice and to enable it to prepare a defense, the employer cannot complain of technical flaws (citation omitted). An employer must show prejudice in order to sustain that the description in the citation was not sufficiently particular (DSS Engineering Contractors, Cal/OSHA App. 99-1023, DAR (June 3, 2002) [Digest ¶ 20,307R]).
Here, the Division cited to an operative section of California Code of Regulations, title 8, but inserted language that had recently been replaced by substantially similar language. Moreover, the alleged violation description was written to mirror the elements of the operative language in §3384 as it existed at the time of the inspection. The ALJ found that the Division cited an operative safety order, and Employer received the notice of the cited violation that was required by due process.
As to the substance of the cited violation, §3384(a) places a duty on employers to select, provide and require the use of appropriate hand protection when employees’ hands are exposed to the hazard of, among other things, thermal burns. Employer did not dispute that the injured employee was exposed to thermal burns. Rather, it argued that requiring employees to wear Kevlar gloves and sleeves and use a skimmer tool to skim food particles from the top of the oil in the fryer appropriately protected employees from the risk of a burn due to contact with hot oil and hot metal surfaces. There was no dispute that the fryer was uncovered and that an employee could immerse a hand in hot oil. The Division established the applicability of the safety order.
Further, there was no dispute that the injured employee was exposed to the hazard of thermal burns. Employer’s documentation indicated that employees cleaning the fryer were exposed to thermal burns from contact with the hot metal surface of the fryer. As a result, employee exposure existed.
The Division inspector testified that Employer failed to select, provide and require the use of appropriate hand protection. In particular, she testified that Kevlar sleeves and gloves such as the employee was wearing at the time of the accident allowed hot oil to soak through and reach the employee’s hand. The Division and the injured employee both testified that employees were required to wear plastic food-handling gloves underneath the Kevlar gloves and sleeves. The Division opined that this combination exposed employees to hand injury because the oil in the fryer was hot enough to melt the plastic glove, which actually happened to the employee, although there was no scientific or factual foundation laid for this opinion. In addition, the Division inspector admitted that she could not identify any available personal protective equipment that would provide better protection while allowing the employee to perform her job. Moreover, Employer offered credible expert testimony that no commercially available product existed that would fully protect against oil reaching the employee’s hand while still allowing the employee to use the skimmer.
The Division failed to provide sufficient, credible evidence that the hand protection provided to the employee was inappropriate. It also failed to demonstrate what would have been appropriate hand protection under the circumstances. Furthermore, Employer offered credible evidence that the hand protection that it provided to its employees, including the Kevlar glove and sleeve, and the skimmer, provided appropriate protection against the risk of thermal burn due to contact with either the hot outer surface of the fryer or the cooking oil. The ALJ declined to conclude that Employer violated the safety order.