46 COR 40-8157 [¶22,943]

Cal. Code Regs, tit. 8, § 3203(a) (2019) – Employer failed to establish and implement an effective injury and illness prevention program, a serious violation. The IIPP lacked at least three required elements: procedures for identifying and evaluating workplace hazards; requirements for inspections in specific circumstances; and appropriate training of supervisors.

Cal. Code Regs, tit. 8, § 4050(a) (2019) – Employer violated the safety order by failing to guard an exposed rotating shaft in a coil machine, a serious, accident-related violation.

Summary of COSHAB-ALJ’s Decision dated April 18, 2019, Inspection No. 1137088 (Union City, CA).

Martin Fassler, Administrative Law Judge.

For Employer: Joseph A. Walsh, Attorney.

SOUTHLAND INDUSTRIES - X-mod Graphic from Compline
SOUTHLAND INDUSTRIES – X-mod Graphic from Compline

For DOSH: Lisa Brokaw, Staff Counsel.

Following an accident investigation, the Division issued two citations to Employer, a general building contractor, for failure to establish, implement, and maintain an effective IIPP, with three alleged instances; and failure to ensure that an exposed rotating shaft of a coil machine was properly guarded.

§3203(a): Serious violation and $11,250 penalty affirmed. The Division charged that Employer did not perform hazard assessments to evaluate and identify workplace hazards when a new coil machine was introduced into the workplace, where Employer fabricated ductwork to be used in heating, ventilation, and air conditioning (HVAC) systems.

Employer’s IIPP described safety meetings and training, but included no reference to a requirement to undertake a hazard analysis to accompany introduction of new machinery or processes. Employer provided testimony that two employees created a written list, shortly after the machine was installed, for workers assigned to work near the machine, but Employer did not provide any evidence of the purported checklist.

Several witnesses testified that employees conducted inspections of all machinery, including the machine at issue, before machinery was used each day, and weekly. An employer may not adopt its own safety measures, and then contend, if cited for failure to comply with a specific requirement, that its own safety measures satisfy the regulatory requirement (Solarcity Corp., Cal/OSHA App. 14-3707, DDAR (April 14, 2016) [Digest ¶ 22,583R]; West Valley Construction, Inc., Cal/OSHA App. 12-3526, DDAR (May 5, 2014 [Digest ¶ 22,355R]). Here, daily and weekly inspections did not satisfy Employer’s obligation to conduct a hazard assessment when a new machine was introduced for regular use. Employer did not conduct a hazard assessment of the machine when it was installed and first put into use. Employer, thus, failed to implement an effective IIPP, and thereby violated §3203(a)(4).

The ALJ next addressed whether Employer’s IIPP included all required elements, pursuant to §3203(a)(4)(A) through (a)(4)(C) and (a)(7)(A) through (a)(7)(F). In Structural Shotcrete System,  Cal/OSHA App. 03-986, DAR (June 10, 2010) [Digest ¶ 21,681R], the Appeals Board held that the Division only must show one missing component required by the safety order in order to establish a violation, citing Tutor-Saliba-Perini, Cal/OSHA App. 97-3209, DAR (April 24, 2003) [Digest ¶ 20,491R].

The ALJ concluded the IIPP did not have: (1) procedures for identifying and evaluating workplace hazards, including who would be responsible to conduct periodic inspections or when these would be conducted; (2) a description of inspections in the three circumstances listed in §3203(a)(4)(B); and (3) training for employees given new job assignments for which training had not been received previously, and training for supervisors. There was nothing in the IIPP that described or required regular or systematic training of supervisors to assure their familiarity with possibly unsafe or unhealthy conditions of the workers under their direction. The section on “training” referred only to rank-and-file employees, and while there were two other references to training of supervisors, those two statements did not describe a plan or a set of procedures to provide training and instruction “for supervisors to familiarize themselves with the safety and health hazards to which employees under their immediate supervision and control may be exposed” (§3203(a)(7)(F)).

Further, the IIPP included no provisions that would instruct foremen, supervisors and managers about the need to conduct inspections in specific circumstances, like those referred to in §3203(a)(4), the ALJ noted. Consequently, Employer’s IIPP lacked certain elements required by §3203(a)(4) and (a)(7). The IIPP lacked procedures for identifying and evaluating workplace hazards; a requirement to conduct inspections in the three circumstances listed in §3203(a)(4)(B); and provisions for training for supervisors to familiarize themselves with safety or health hazards to which employees under their immediate direction and control may be exposed, the ALJ held.

Employer argued that its IIPP included all elements required by §3203(a), even if the precise wording of its IIPP did not match specific language of §3203. However, its IIPP had no provisions regarding the training of supervisors, other than brief recognition of a need to do so; and while it imposed responsibilities on foremen, supervisors and managers, it provided no instruction or guidance about how and when foremen, supervisors and managers were to carry out these inspection and evaluation responsibilities.

The ALJ concluded that Employer’s IIPP lacked elements required by §3203(a)(4) and (a)(7), and Employer failed to establish, implement and maintain an adequate IIPP. To prove a violation, the Division need only demonstrate that one of the instances charged by a citation violates the safety order (Gateway Pacific Contractors Inc., Cal/OSHA App. 10-1502, DAR (Oct. 4, 2016) [Digest ¶ 22,618R]). As a result, the ALJ declined to address the third instance identified by the citation.

Classification. To establish that a classification is properly classified as serious (Labor Code §6432(a)), the Division must demonstrate the types of injuries that could result and the possibility of those injuries occurring (MDB Management, Inc., Cal/OSHA App. 14-2373, DAR (April 25, 2016) [Digest ¶ 22,584R]). Employer’s testimony that the machine’s shaft was rotating slowly and, thus, the likelihood of serious physical harm was slight, was of little value in light of testimony by injured employee that he was unable to withdraw his hand from the grasp of the shaft, although the incident took less than five seconds.

Employer did not show that it did not know and could not, with the exercise of reasonable diligence, have known of the presence of the violation, the ALJ held. Consequently, it failed to overcome the presumption of a serious violation. (See Labor Code §6432(c).) The citation was classified properly as serious.

Penalty. The Division testified regarding the various adjustments to the proposed penalty, including a 15 percent credit for good faith, and a 10 percent credit for Employer’s history. The ALJ upheld the proposed penalty of of $11,250 as reasonable.

§4050(a): Serious, accident-related violation affirmed; $25,000 reduced to $18,000. The safety order provides, “All exposed parts of line or countershafting or collars, clutches, cut-off couplings and clutch pulleys seven feet or less above floor or other working level shall be guarded.” The Division specifically charged that Employer did not ensure that the exposed parts of line or countershafting on the coil line 2.9 feet above the floor, were guarded and, as a result, an employee working on the coil line was caught by the exposed, rotating shaft and sustained serious injuries requiring more than 24 hours of hospitalization.

The ALJ noted that neither §4050 nor any other section of the safety orders defines “shaft,” or “lineshafting” or “counter shafting.” Consulting a dictionary definition, the ALJ concluded the rotating bar of the machine was a “shaft.”

Employer asserted that even if the part were considered a shaft, it did not qualify as “line” or “countershafting,” as those terms are used in §4050(a).” The Division argued that the shaft fit the definition of “line shaft” in both form and function because it was a mechanical device that connected the prime mover to the belt and pulley of the three conveyor belts on the machine.

The Board has construed §4050(a) and its application to rotating shafts on machines in three decisions and consistently viewed this safety order as applying to all three of the rotating shafts at issue, irrespective of the specific role the shaft played in the transmission of power, and regardless of the other machinery parts to which the shaft was linked. In none of those decision did the Appeals Board consider whether the shaft at issue could be viewed as a “line shaft” or “counter shaft” or some other kind of shaft, the ALJ stated.

The shaft at issue was conveying mechanical energy, movement, from the motor to the black belts that in turn moved the sheet metal to the end point of the coil machine. That there was a chain drive and sprockets between the motor and the shaft did not remove the rotating shaft from the scope of §4050(a), which requires guarding of such shafts, the ALJ held. This approach was consistent with the analysis of the Board in three prior decisions cited by the ALJ: the focus of the analysis was on the presence of an unguarded rotating shaft that is less than seven feet above the working level. (See Sequoia Rock Company, Cal/OSHA App. 76-1083, DAR (April 28, 1983) [Digest ¶ 15,385R]; Kaiser Steel Corporation, Cal/OSHA App. 78-1194, (June 16, 1983) [Digest ¶ 15,450R]; Hood Corporation, Cal/OSHA App. 82-682, DAR (Sept. 30, 1985) [Digest ¶ 16,319R].)

The rotating shaft on the coil machine was within the scope of §4050(a), the ALJ held. The regulation required the shaft to be guarded if it was less than seven feet above the floor. Here, the evidence established that exposed parts of the rotating shaft were approximately 2.9 feet above the floor. There was no evidence the shaft was guarded. Employer did not argue to the contrary. Employer, as a result, violated the safety order.

Classification. Employer’s employee was injured while working as a “pre-apprentice” assigned to the machine. His assignment was to stand at the end of the machine to catch, tag, and move to a nearby pile each piece of sheet metal duct that came to the end of the coil machine, after the pieces had been cut and shaped by the machine. The employee was injured when his glove and hand were caught by the rotating shaft, and he was unable to withdraw them quickly enough to prevent an injury, a broken arm. The Division established the presumption of a serious violation.

The lack of a guard on the rotating shaft was apparent, and Employer presented no evidence that it had taken any steps, prior to the accident, to guard the shaft. Employer failed to rebut the presumption of a serious injury.

Section 336(d)(7) provides that a citation accident-related if it is a serious violation causing death or serious injury, illness or exposure. In order to support an accident-related characterization, there must be a showing by the Division of a causal nexus between the violation and the serious injury (RNR Construction, Inc., Cal/OSHA App. 1092600, DAR (May 26, 2017) [Digest ¶ 22,708R]).

The employee experienced a serious injury, a broken arm, and was hospitalized for more than 24 hours. During that period, he received medical treatment including X-rays, surgery and medication. Therefore, the accident-related designation was justified, as was the denial of credits for extent, likelihood or history, the ALJ concluded.

Employer argued that the treatment period for the employee’s injury fell well short of 24 hours and, thus, the injury should not be considered “serious” within the meaning of §330(h), or for penalty calculations. However, the 24-hour period in §330(h) refers to the period of hospitalization, not the treatment period. (See YNT Harvesting, Cal/OSHA App. 08-5010, DDAR (March 14, 2013) [Digest ¶ 22,185R].) The ALJ upheld the accident-related characterization of the violation.

Penalty. An initial penalty of $18,000 is assessed for all serious violations (§336(c)(1)). When the violation results in a serious injury, the only downward adjustment allowed is for size, based on the number of persons employed by the business (Labor Code §6319(d); §336(d)(7); Dennis J. Amoroso Construction Co., Inc., Cal/OSHA App. 98-4256, DAR (Dec. 20, 2001) [Digest ¶ 20,193R]). The Division added $4,500 to the base penalty of $18,000 because of a high rating for extent. However, the Division issued a citation identifying only one such location. Therefore, this additional $4,500 was unsupported and was, thus, unreasonable, the ALJ found.

The Division also sought to assess an additional $4,500 penalty based on high likelihood (§335(a)(3)). The Division inspector testified that any time an equipment is unguarded, there is a likelihood that the injury would occur from that. However, that assertion did not satisfy the §335 requirement for a high likelihood rating and, thus, did not support an additional $4,500 penalty, the ALJ found.

The two additional penalties of $4,500 were not supported by evidence. Therefore, the ALJ set the penalty at the initial base penalty level defined by §336(c)(1).