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49 COR 40-8883 [¶23,310R]

JURISDICTION—PETITION FOR RECONSIDERATION –
Labor Code §§6616 and 6617— Employer’s petition failed to state any of the grounds upon which reconsideration could be granted.

Labor Code §6601 – Employer failed to establish good cause for its incomplete appeal.

Digest of COSHAB’s Denial of Petition for Reconsideration dated December 5, 2024, Inspection No. 1749164.

Ed Lowry, Chair.

49 COR 40-8879 [¶23,308R]

JURISDICTION – PETITION FOR RECONSIDERATION –
Labor Code §6601 – Employer failed to show “good cause” for filing of its late appeal.

Digest of COSHAB’s Denial of Petition for Reconsideration dated November 7, 2024, Inspection No. 1539535.

 

49 COR 40-0875 [¶23,307R]

OBSERVERS –
Title 8, California Code of Regulations, §2940(d) – A qualified electrical worker was not present when work was performed on an exposed conductor.

INSULATING EQUIPMENT –
Title 8, California Code of Regulations, §2940.6(a) – Employer failed to ensure the use of appropriate PPE and insulating equipment designed for the voltage to be encountered.

GROUNDING DE-ENERGIZED CONDUCTORS –
Title 8, California Code of Regulations, §2941(h)(4) – A test was not conducted to ensure that conductors or equipment was de-energized.

THRESHOLD CLEARANCES –
Title 8, California Code of Regulations, §2940.2(a) – Employer failed to maintain the required threshold clearance from exposed energized parts.

SERIOUS CLASSIFICATION –
Labor Code §6432(a) – Citations 1, 2, and 3 were properly classified as Serious after review of the facts of the violations.

SERIOUS ACCIDENT-RELATED CLASSIFICATION –
The causal nexus between the Serious violation and the injury was sufficient to sustain the Accident-Related classification.

AFFIRMATIVE DEFENSES –

INDEPENDENT EMPLOYEE ACT DEFENSE –
Employer failed to establish all five elements of IEAD. The supervisor exception to the IEAD applied, and the defense was unavailable to Employer.

NEWBERY DEFENSE –
The violations were foreseeable thus, the Newbery Defense was not applicable to any of the citations.

ASSESSMENT OF CIVIL PENALTIES –
Citations 1 through 3 were affirmed but the penalty calculations were amended.  The ALJ’s Decision was reversed regarding Citation 4.  It was affirmed with the penalty proposed.  Total penalties assessed for all citations were $26,100.

PENALTIES – DUPLICATIVE VIOLATIONS
Duplicative penalty reduction was not warranted.

Digest of COSHAB’s Decision After Reconsideration dated October 30, 2024, Inspection No. 1233597.

49 COR 40-8873 [¶23,306R]

MACHINERY AND EQUIPMENT – POINT OF OPERATION
Title 8, California Code of Regulations, §4207(a) –
The evidence proffered showed that the point of operation on the hydraulic press was not adequately guarded to prevent entry of hands or fingers into the point of operation by reaching through, over, under or around the guard.

PINCH POINT –
Title 8, California Code of Regulations, §4002(a) –
The Board found that the clamp was a pinch point, if not a point of operation, because it was part of the machine that created a pressing, squeezing, or similar action hazard.

MOTIONS AND CITATION AMENDMENT –
Title 8, California Code of Regulations, 371.2 –
The Division’s motion to amend provided Employer with ample notice of the proposed amendment prior to hearing, and an opportunity to respond. Employer did not demonstrate prejudice.

SERIOUS ACCIDENT-RELATED CLASSIFICATION –
The Board concluded that the causal nexus between the Serious violation and the injury was sufficient to sustain the Accident-Related classification.

Digest of COSHAB’s Decision After Reconsideration dated October 18, 2024, Inspection No. 1498595.

49 COR 40-8870 [¶23,305R]

INSPECTION AUTHORITY –
Labor Code §§6307, 6314(a) – The California Occupational Safety and Health (Cal/OSH) Act grants the Division broad authority to inspect or investigate all places of employment, for the purpose of protecting workplace health and safety.  The Division’s inspection was within its jurisdiction.

JURISDICTION – INSPECTION CONSENT –
An employer or its representatives may refuse or withdraw consent “expressly or impliedly by their conduct.”  Employer’s statements and actions indicated that it consented to the Division’s investigation. The ALJ’s finding was affirmed.

INSPECTION RECORDS –
Title 8, California Code of Regulations, §3203(b) – Employer has a duty to both inspect the work site for hazardous conditions and to document the inspections. Citation 1 Item 1, was upheld.

APPROPRIATELY TRAINED PERSON –
Title 8, California Code of Regulations, §1512(b) – Employer is required to ensure the availability of persons to render first aid in the span of a few minutes. The ALJs Decision was reversed and Citation 1, Item 6, was vacated.

INJURY AND ILLNESS PREVENTION PROGRAM (IIPP) –
Title 8, California Code of Regulations, §3203(a)(6) –  Citation 2 was upheld, finding that the Division met its burden in proving a single deficiency regarding an essential element of an IIPP or its implementation. 

Digest of COSHAB’s Decision After Reconsideration dated October 18, 2024Inspection No. 1568252.

 

49 COR 40-8869 [¶23,304R]

JURISDICTION—PETITION FOR RECONSIDERATION –
Labor Code §§6601 and 6616—The Board denied the Employer’s unverified and untimely petition for reconsideration.  Employer failed to establish good cause for its late appeal.

Digest of COSHAB’s Denial of Petition for Reconsideration dated October 11, 2024, Inspection No. 1690885.

49 COR 40-8867 [¶23,303]

RAILROAD INDUSTRY –
Labor Code §6800 – limits the Division’s regulatory authority to employees in an office or shops devoted to construction, maintenance or repair of railroad equipment and all other railroad employees with respect to occupational health. The evidence proffered showed that the Division did not have jurisdiction over the railroad operations cited in the Citation issued.

Digest of COSHAB ALJ’s Order re: Motion to Dismiss dated August 5, 2024, Inspection No 1583201 (San Jose)

 

49 COR 40-8863 [¶23,302]

MACHINE GUARDING –
Title 8, California Code of Regulations, §4002 (a) –The evidence proffered by the Division was insufficient to establish that the Employer failed to guard by location a machine with a revolving hazard created by a rotating rod.

HAZARDOUS ENERGY CONTROL –
Title 8, California Code of Regulations, §3314(c) – The evidence proffered by the Division, showed the roll sizer machine was not stopped, nor was its power source de-energized or disengaged.

AFFIRMATIVE DEFENSE – INDEPENDENT EMPLOYEE ACTION –
Employer met all five elements of the IEAD by a preponderance of the evidence and, thus, was excused from liability for Citation 2.

PENALTIES –
The Citations were vacated, and no penalties were assessed.

Digest of COSHAB – ALJ’s Decision dated August 13, 2024, Inspection No. 1238985 (Bakersfield, CA)