FLASH REPORTS

Legal or Illegal Nobody Knows Yet…

Flash: Unprecedented Action & Removed Activists re Indoor Heat Reg

It was a day of gigantic surprises for the Cal/OSHA Standards Board with the indoor heat illness regulation on, then off, then back on the docket.

Flash: Norcal Lost its Only BOI Investigator

Cal/OSHA’s Bureau of Investigations is now down to two personnel for the entire state with the resignation of a senior investigator.

ARTICLES

Cal/OSHA’s Indoor Heat Illness Vote

The Cal/OSHA Standards Board thought it was going to vote on the indoor heat illness prevention regulation. Then it got a surprise call. Here’s what happened next.

Appeals Board Video Hearing Rules Affirmed by State Court of Appeal

A California appeals court has ruled on a pandemic-era suit to upend Cal/OSHA’s emergency videoconference hearing rules. Here’s what the Court of Appeal says.

Breathalyzers Could Help Employers with New Pot Restrictions

Employers can no longer ask potential hires about marijuana use or use hair or urine tests to detect cannabis. New technology with breathalyzers could allow tests to continue within the new law.
Profiles in Safety…

Michael Donlon: From Disillusioned Inspector to Safety Consultant

Michael Donlon didn’t expect to have a career in safety, but now looks back with pride on his accomplishments. He became disillusioned with Cal/OSHA, but says he finished his career on a high note.

Here’s How Fatality Cases Were Resolved Between Cal/OSHA, Employers

Cal/OSHA and employers have resolved six fatality cases from recent years. Here’s how the cases concluded and what we can learn from these incidents.

Workplace Fatality Update

Fatalities in early March include violence against a security guard, and a truck driver killed when his vehicle hit an overpass in Oakland, and a forklift incident in Los Angeles.

Cal/OSHA Adopting E-Reporting Rules

Cal/OSHA intends to mirror Fed-OSHA’s electronic reporting rule, Here’s what the agency proposes and how you can weigh in about it.

Golden Gate Recognition

Here are the latest employers to receive safety achievement recognition from Cal/OSHA.

CASES

REPUBLIC ELECTRIC WEST, INC. DBA NEVADA REPUBLIC ELECTRIC WEST, INC.

49 COR 40-8795 [¶23,280]

INJURY AND ILLNESS PREVENTION PROGRAM (IIPP) –
Title 8, California Code of Regulations, §3203(a)(2) The evidence proffered showed Employer demonstrated that it have a system to ensure that its employees complied with safe and healthy work practices.

PERSONAL FALL PROTECTION SYSTEM –
Title 8, California Code of Regulations, §1670(a) –Evidence proffered by the Division demonstrated that Employer failed to ensure that employees exposed to a fall of over 7 1/2 feet wore an approved personal fall protection system.

LADDERS – CARE, USE, INSPECTION and MAINTENANCE
Title 8, California Code of Regulations, §1675(b) with reference to §3276, subdivision (e)(11) and (e)(15)(E) – The evidence proffered at hearing demonstrated that Employer  failed to select the appropriate ladder to access attic space at the job site, failed to ensure that an employee used a ladder that extended at least 36 inches above the attic landing surface; and failed to ensure that an employee working on a step ladder did not step or stand on the topcap of the ladder.

INDEPENDENT EMPLOYEE ACTION DEFENSE (IEAD):
Employer failed to prove all five elements of the IEAD, the defense failed.

SERIOUS VIOLATION – REBUTTAL OF CLASSIFICATION Labor Code §6432(c) –
Employer successfully rebutted the presumption that Citations 2 and 3 were properly classified as Serious by demonstrating that it did not know, and could not, with the exercise of reasonable diligence, have known of the existence of the violations.

ASSESSMENT OF CIVIL PENALTIES –
Citation 1, Item 1, was not affirmed and the penalty was vacated.  All other citations were affirmed. Penalties for Citation 1, Item 2 and 3 were assessed as reasonable.  Citations 2 and 3 were reclassified, and the associated penalties were amended and assessed.

Digest of COSHAB ALJ’s Decision dated February 27, 2024, Inspection No 1355061.

BMC WEST LLC

49 COR 40-8789 [23,279]

INJURY AND ILLNESS PREVENTION PROGRAM (IIPP) –
Title 8, California Code of Regulations, §§3203(a)(1) and (a)(4) and (b)(2)
The evidence proffered by the Division showed Employer failed to establish an effective IIPP with all required elements.  The IIPP failed to identify the person with authority and responsibility for implementing the Program.  It lacked procedures for identifying hazards when the program was first established.  Trainings were not appropriately documented as required.

HEAT INJURY AND ILLNESS PREVENTION PROGRAM (HIPP) –
Title 8, California Code of Regulations, §3395(i) – The proffered evidence showed that Employer failed to establish an effective Heat Illness Prevention Plan.

SAFE OPERATION OF INDUSTRIAL TRUCKS –
Title 8, California Code of Regulations, §3650(t)(11) Employer failed to ensure that a powered industrial truck was operated in a safe manner in accordance with applicable operating rules.

 DEFENSES –
INDEPENDENT EMPLOYEE ACTION DEFENSE (IEAD):

Employer failed to prove all five elements of the IEAD, the defense failed.

NEWBERY DEFENSE:
Employer knew or should have known of the potential danger to employees caused by the unsafe forklift driver.  The evidence showed that the Employer failed to exercise adequate supervision to ensure safety. Violations of the requirements were foreseeable.  All four elements of the defense existed.  Employer did not meet its burden.

SERIOUS VIOLATION – REBUTTAL OF CLASSIFICATION Labor Code §6432(c) –
Failure to take all the steps that a reasonable and responsible Employer should to control the forklift travel and avoid collisions, supported a finding that the Employer did not rebut the Serious classification.

ASSESSMENT OF CIVIL PENALTY –
All citations were affirmed, and the associated penalties were assessed.

Digest of COSHAB-ALJ’s Decision dated February 16, 2024, Inspection No. 1399613.

KPRS CONSTRUCTION SERVICES, INC.

49 COR 40-8785 [¶23,278]

INJURY AND ILLNESS PREVENTION PLAN –
 Title 8, California Code of Regulations, §§3203(a)(4) and (a)(6) – The Division failed to prove that Employer did not implement, and maintain an effective IIPP.

FLOOR, ROOF AND SKYLIGHT OPENINGS –
Title 8, California Code of Regulations, §1632(b)(1) – The evidence presented showed that the roof access opening was not guarded.  The cover over the opening was not secure. 

FLOOR, ROOF AND SKYLIGHT OPENINGS–
Employer, a controlling employer, demonstrated that it was relieved of liability as it met the factors of the due diligence defense.

Digest of COSHAB ALJ’s Decision dated January 12, 2024, Inspection No 1371294.

LOS ANGELES COUNTY PROBATION DEPARTMENT DBA BARRY J NIDORF JUVENILE HALL

49 COR 40-8782 [23,277]

INJURY AND ILLNESS PREVENTION PROGRAM (IIPP) –
Title 8, California Code of Regulations, §3203(a)(6) – The evidence proffered by the Division showed Employer failed to effectively implement its IIPP and failed to train employees on new hazards of workplace violence.

ASSESSMENT OF CIVIL PENALTY –
One citation was affirmed and the associated penalty was modified and assessed.

Digest of COSHAB-ALJ’s Decision dated January 25, 2024, Inspection No. 1415736 (Sylmar, CA)

 

S.C. ANDERSON, INC.

49 COR 40-8781 [¶23,276R]

ROOF OPENINGS –
Title 8, California Code of Regulations, §1632(b)(3) – Employer violated the safety order by failing to ensure that roof openings were guarded by either temporary railings and toeboards or covers capable of supporting the greater of 400 pounds or twice the weight of the employees, equipment and materials. Such covers are to be secured against accidental removal or displacement and contain specific legible markings.

MULTI-EMPLOYER WORKSITES –
Title 8, California Code of Regulations, §336.10(c) – Employer was responsible through actual practice, for safety and health conditions at the worksite and had the authority to ensure that hazardous conditions were corrected (controlling employer).

Digest of COSHAB’s Decision After Reconsideration dated January 30, 2024, Inspection No. 1405107.

 

BRAGG INVESTMENT COMPANY, INC.

49 COR 40-8777 [¶23,275]

INJURY AND ILLNESS PREVENTION PROGRAM (IIPP) – Title 8, California Code of Regulations, §1509(a) –
The evidence proffered by the Division showed Employer failed to effectively train employees to recognize, understand and avoid the hazards of an unloaded crane.

CONTROL OF CRANE TRAVEL – Title 8, California Code of Regulations, §1616.1(t)(1) –
The evidence proffered by the Division, was sufficient to show that Employer did not effectively control the travel of crane resulting in the crane colliding with a stationary crane.

AFFIRMATIVE DEFENSES –
INDEPENDENT EMPLOYEE ACTION DEFENSE (IEAD): Employer failed to prove all five elements of the IEAD, the defense failed.

NEWBERY DEFENSE: Employer knew or should have known of the potential danger to employees caused by the crane’s travel.  The evidence showed that the Employer failed to exercise adequate supervision to ensure safety. The Employer’s efforts to ensure employee compliance with its safety rules were insufficient.  Violations of the requirements were foreseeable.  All four elements of the defense existed.  Employer did not meet its burden. 

SERIOUS VIOLATION – REBUTTAL OF CLASSIFICATION Labor Code §6432(c) –
 Failure to take all the steps that a reasonable and responsible employer should to control the Crane’s travel and avoid collisions, supports a finding that the employer did not rebut the Serious classification.

 ASSESSMENT OF CIVIL PENALTIES –
Two citations were affirmed and the penalties were assessed.

Digest of COSHAB-ALJ’s Decision dated December 29, 2023, Inspection No. 1466722 (Inglewood, CA)

T&R AUTOMOTIVE REPAIR

49 COR 40-8775 [¶23,274R]

PETITION FOR RECONSIDERATION – JURISDICTION – Labor Code §6614(a) –
The Appeals Board lacked jurisdiction to grant reconsideration over Employer’s untimely petition for reconsideration.

Digest of COSHAB’s Denial of Petition for Reconsideration dated November 8, 2023, Inspection No. 1565033.

 

99 CENTS ONLY STORES, LLC #383

49 COR 40-8769 [¶23,272R]

FOOT PROTECTION –
 Title 8, California Code of Regulations, §3385(a) – Employer violated the safety order by failing to require appropriate foot protection for employees exposed to foot injuries from falling objects, crushing and penetrating hazards.

Digest of COSHAB’s Decision After Reconsideration dated Nov 8, 2023, Inspection No. 1314092.