Cal-OSHA Reporter: Echo Alpha Inc., John Stagliano, Inc.; Evil Angel Productions, and John Stagliano, Inc. DBA Evil Angel Video
April 17, 2015
Following a complaint inspection, the Division issued three citations to Employer, a video distributor. At hearing, only one cited violation remained at issue. Section 3203(a)(2): Serious violation affirmed; $7,200 penalty increased to $9,000 for extent. Section 3203(a) requires employers to establish, implement, and maintain an effective written IIPP that includes all required elements, while Section 3203(a)(2) requires employers to “include a system for ensuring that employees comply with safe and healthy work practices. Substantial compliance … includes recognition of employees who follow safe and healthful work practices, training and retraining programs, disciplinary actions, or any other such means that ensures employee compliance with safe and healthful work practices.”Â
Employer had four alternatives to ensure that employees complied with safe and healthy work practices: (1) recognition of employees who follow safe and healthful work practices; (2) training and retraining programs; (3) disciplinary actions; or (4) any other such means that ensures employee compliance with safe and healthful work practices. There was no evidence that Employer recognized employees who followed safe and healthy work practices or that any employee ever received any written acknowledgement of contribution to safety, as allowed by the IIPP. Employer’s owner testified that employees received recognition in the form of a smile.
Employees were trained when hired, and given an employee handbook. The owner of Employer testified that he did not always train new employees and that he was not aware of any safety meetings that took place at its warehouse. No employee was ever retrained because the tasks were not so complicated that retraining was required, Employer testified. There were no training or inspection records.
The only evidence of discipline for a safety infraction was an officer’s testimony that a rule prohibiting open-toed shoes in the warehouse was enforced. Enforcement consisted of not allowing the employee to go in the warehouse. There was no evidence that any employee ever had been disciplined for any other safety infraction. The ALJ declined to find that Employer implemented its progressive disciplinary system.
Employer’s IIPP identified “other means” to ensure employee compliance with safe and healthful work practices to include: (1) informing employees of the IIPP; (2) evaluating the safety performance of all employees; (3) recognizing superintendents who perform safe and healthful work practices; (4) providing training to workers whose safety performance is deficient; (5) disciplining workers for failure to comply with safe and healthful work practices; and (6) terminating any employee who receives more than two written warnings.
There was credible testimony that employees were not aware of Employer’s IIPP or trained on what was required. An evaluation of the safety performance of all employees never was performed. Further, there was no evidence that Employer recognized superintendents for safe and healthful work practices, provided employee training, or disciplined employees, or that Employer ever gave an employee a written warning for a safety violation or terminated an employee for a safety violation.
The ALJ concluded that the Division established that Employer failed to implement and maintain all required elements of its IIPP including correcting unsafe work conditions and work practices. Employer failed to enforce its safety and health practices or ensure that employees followed safe work practices, directives, policies and procedures to maintain a safe work environment. Employer established, but did not implement or maintain, its IIPP.
Classification and penalty. Labor Code Section 6432(a) provides, “There shall be a rebuttable presumption that a ‘serious violation’ exists in a place of employment if the division demonstrates that there is a realistic possibility that death or serious physical harm could result from the actual hazard created by the violation.” The hazard created by Employer’s failure to enforce its safety and health practices and failure to implement a system for ensuring employee compliance was that employees would not comply. As a result, employees were exposed to jobsite hazards including electrocution, fire, explosion, and falls onto concrete of about nine feet. The ALJ found a realistic possibility of serious physical harm or death existed from the actual hazards caused by the violation. Accordingly, the violation properly was classified as serious.
Penalty. Employer’s failure to ensure that employees complied with safe and healthy work practices affected all warehouse employees. This failure resulted in numerous violations. Employer had 40 employees, 22 of which worked in the warehouse. Thus, extent should have been rated high. The ALJ increased the penalty to $9,000 to reflect this rating.
2 Responses
As I have pointed out here in the past, you get fined for not having an IPP plan,,,you get fined even more when you have the written plan but dont follow it. ONLY IN PORN
“Employer’s owner testified that employees received recognition in the form of a smile.”
I’d ROFLMAO if anyone on appeals board had guts to put in record …was that smile before or after owner fucked them in the ass.