21 Jun TCI TRANSPORTATION SERVICES | CAL-OSHA Reporter
46 COR 40-8172 [¶22,953]
GENERAL PHYSICAL CONDITIONS AND STRUCTURES ORDERS – INJURY AND ILLNESS PREVENTION PROGRAM (IIPP), NEW OR PREVIOUSLY UNRECOGNIZED HAZARDS
Cal. Code Regs, tit. 8, § 3203(a)(4) (2019) – Employer violated the safety order by failing to periodically assess hazards present at loading docks, and to do so when made aware of new or previously unrecognized hazards; specifically, malfunctioning dock plates.
GENERAL PHYSICAL CONDITIONS AND STRUCTURES ORDERS – INJURY AND ILLNESS PREVENTION PROGRAM (IIPP), TRAINING
Cal. Code Regs, tit. 8, § 3203(a)(7) (2019) – Employer violated the safety order by failing to train its truck drivers with respect to the potential hazards related to the use of loading docks and dock plates.
Summary of COSHAB-ALJ’s Decision dated May 24, 2019, Inspection No. 1245080 (Fontana, CA).
Martin Fassler, Administrative Law Judge.
For Employer: Tatiyana Vollhardt, Director of Safety and Compliance.
For DOSH: Lisa Brokaw, Staff Counsel.
Following an accident investigation, the Division cited Employer, a trucking company, for failure to implement and maintain an effective IIPP due to failure to evaluate hazards associated with operation of dock plates at delivery sites; and failure to implement and maintain an effective IIPP due to failure to train employees on hazards associated with operation of dock plates at delivery sites.
Applicability of §3203(a). The Division specifically alleged Employer did not evaluate the hazards associated with operating dock plates at delivery sites. The ALJ first addressed whether the hazard assessment and training requirements of §3203(a) applied to Employer with respect to the work performed by drivers at customer locations.
The safety order states, “Injury and Illness Prevention Program (Program). The Program shall be in writing and, shall, at a minimum …
“(4) Include procedures for identifying and evaluating work place hazards including scheduled periodic inspections to identify unsafe conditions and work practices. Inspections shall be made to identify and evaluate hazards …
“(B) Whenever new substances, processes, procedures, or equipment are introduced to the workplace that represent a new occupational safety and health hazard; and
“(C) Whenever the employer is made aware of a new or previously unrecognized hazard.”
Employer argued it had no obligation to evaluate potential hazards associated with the operation of dock plates at delivery sites because those loading docks, including the dock plates, were the property of the stores to which deliveries were made. Employer, thus, contended it had and has no control over those locations and that equipment.
Labor Code §6400 provides, in relevant part:, “(a) Every employer shall furnish employment and a place of employment that is safe and healthful for the employees therein.
“(b) On multiemployer worksites, both construction and non-construction, citations may be issued only to the following categories of employers when the division has evidence that an employee was exposed to a hazard in violation of any requirement enforceable by the division:
“(1) The employer whose employees were exposed to the hazard (the exposing employer).
“(2) The employer who actually created the hazard (the creating employer).
“(3) The employer who was responsible, by contract or through actual practice, for safety and health conditions on the worksite, which is the employer who had the authority for ensuring that the hazardous condition is corrected (the controlling employer).
“(4) The employer who had the responsibility for actually correcting the hazard (the correcting employer).” (See also Labor Code §6402.)
Additionally, §336.10 provides, in relevant part, “On multi-employer worksites, both construction and non-construction, citations may be issued only to the following categories of employers when the Division has evidence that an employee was exposed to a hazard in violation of any requirement enforceable by the Division:
“(a) The employer whose employees are exposed to the hazard (the exposing employer).”
Section 336.10(b), (c), and (d) provide for issuance of citations to the creating employer, the controlling employer and the correcting employer. The Division may issue citations for failure to comply with safety or health requirements to an employer of exposed employees, even if that employer did not create the hazard, did not control the location at which the hazard existed, and did not have responsibility for eliminating the hazard, the ALJ stated. (See Cal-Cut Pipe & Supply Co., Cal/OSHA App. 76-955, DAR (August 26, 1980) [Digest ¶ 14,054R]; Manpower Inc., Cal/OSHA App. 78-533, DAR (Jan. 8, 1981) [Digest ¶ 14,275R]; S & F Growers, Cal/OSHA App. 80-574, DAR (March 31, 1981) [Digest ¶ 14,394R].) When a third party has created a hazard, an employer may insulate itself from liability by not exposing its employees to the hazard. (See Spancrete of California and Hill Crane Service, Inc., Cal/OSHA App. 79-661, DAR (May 28, 1982) [Digest ¶ 15,003R].)
While those DARs all were decided before enactment of the current version of Labor Code §6400, and §336.10 of the regulations, the principles of those cases applied here, the ALJ held. Employer was aware, prior to the Division’s inspection, that its drivers frequently operated pallet jacks at the store locations. At many stores, the floor of the loading dock was higher or lower than the surface of the trailer from which products are delivered; in those instances, a moveable dock plate connected the two surfaces. In light of the relevant Labor Code provisions, the regulations, Appeals Board precedent and the frequent use of pallet jacks by drivers, the ALJ concluded Employer was the “exposing employer” of the truck drivers at customer stores.