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OSHAB 600 (Rev. 5/17) DECISION 1

BEFORE THE STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

In the Matter of the Appeal of: OTIS ELEVATOR 4949 VIEWRIDGE SAN DIEGO, CA 92123

Employer

Inspection No. 1064406

DECISION

Statement of the Case Otis Elevator (Otis or Employer) manufactures and maintains commercial and residential elevators. On May 20, 2015, the Division of Occupational Safety and Health (the Division), through Assistant Safety Engineer William Moffett, commenced an inspection of a work site located at 4655 Executive Drive in San Diego, California (job site) after a report of an incident involving an elevator losing traction while under construction. On September 10, 2015, the Division cited Employer for six alleged safety violations, five of which remain at issue: failure to place an accident prevention tag on a locked-out switch; failure to provide an apprentice with training and instruction on how to load weights onto a counterweight frame; failure to include site-specific instructions for balancing the counterweight frame and running platform in a written Code of Safe Practices; failure to implement and utilize a method of hazardous energy control; and failure to ensure that equipment or machines were not operated under loads or stresses which would endanger employees. The Division withdrew Citation 6 at the commencement of the hearing.

Employer filed timely appeals of the citations, contesting the existence of the violations, the classifications of the violations, the reasonableness of the abatement requirements, the reasonableness of the proposed penalties, and asserted numerous affirmative defenses.1

This matter was heard by Kerry Lewis, Administrative Law Judge (ALJ) for the

California Occupational Safety and Health Appeals Board, in San Diego, California, on October 18 and 19, 2017, and May 17, 2018. Paul Waters, Attorney, of Waters Law Group, represented 1 Except where discussed in this Decision, Employer did not present evidence in support of its affirmative defenses, and said defenses are therefore deemed waived. (California Erectors, Bay Area, Inc., Cal/OSHA App. 93-503 and 504, Decision After Reconsideration (July 31, 1998); Central Coast Pipeline Construction Co., Inc. Cal/OSHA App. 76-1342, Decision After Reconsideration (July 16, 1980).)


Employer. Melissa Peters and Carl Paganelli, Staff Counsel, represented the Division. The matter was submitted on August 20, 2018.

Issues

1. Was Employer required to place an accident prevention tag on the control panel for

Elevator B in the machine room?

2. Did the Division establish that Employer failed to provide its apprentice with training and instruction specific to the task he was performing at the time of the incident?

3. Was Employer required to adopt a site-specific Code of Safe Practices setting forth instructions for the counterweight-stacking task being performed at the time of the incident?

4. Did the Division establish that the hazardous energy control regulations apply to the work being performed at the time of the incident, and that Employer had violated those regulations?

5. Were the counterweight frame and running platform “machinery or equipment” not of adequate design or operated under conditions of speeds, stresses, or loads which endangered employees?

6. Did Employer establish that an affirmative defense relieved it of liability for the violations?

7. Did the Division establish rebuttable presumptions that Citations 4 and 5 were

properly classified as Serious?

8. Did Employer rebut the presumptions that the violations cited in Citations 4 and 5 were Serious by demonstrating that it did not, and could not with the exercise of reasonable diligence, know of the existence of the violations?

9. Are the proposed penalties for Citations 4 and 5 reasonable?

Findings of Fact

1. On March 11, 2015, David Dekruyf (Dekruyf) was an apprentice with five months of experience and Joshua Watts (Watts) was a journeyman mechanic with seven years of experience.


2. Dekruyf and Watts were employed by Employer on March 11, 2015.

3. Pursuant to instruction from Watts, Dekruyf was stacking counterweights onto the

counterweight frame in preparation for building the finished cab of a Skyrise elevator.

4. As an apprentice, Dekruyf was working under Watts’ direct supervision at all times. Watts provided Dekruyf with training and instruction and directed his activities in the performance of the counterweight-stacking task.

5. Dekruyf was not responsible for making decisions regarding how many weights to stack on the counterweight frame.

6. Although Dekruyf was a relatively new employee, he had performed the

counterweight-stacking task multiple times and had been trained how to properly complete the task.

7. Employer has a comprehensive Code of Safe Practices entitled “Employee Safety Handbook,” which provides safe practices for activities related to the tasks Employer’s employees perform on a day-to-day basis.

8. Although none of Employer’s employees had ever experienced a loss, or breaking, of traction similar to the incident on March 11, 2015, they were familiar with the risks associated with traction loss.

9. The incident on March 11, 2015, occurred as the result of an unexpected release of stored energy when the counterweight frame was overloaded by approximately 3,300 pounds.

10. The excessive overload resulted in the rope losing traction around the sheave, the counterweight stack plunging seven floors into the bottom of the elevator shaft (the pit), and the platform on which Dekruyf was working propelling seven floors up.

11. Employer has a hazardous energy control program that provides no safeguards for the type of incident that occurred on March 11, 2015.

12. The elevator being built by Employer’s employees was also being used during its

installation by the workers during the course of their duties.


13. Watts used a counterweight chart in the elevator plans to determine how many

counterweights were supposed to be stacked on the frame at the various phases of construction. The counterweight chart for the Skyrise elevators was different from other counterweight charts Watts had used on other types of elevators.

14. The Skyrise counterweight chart used by Watts was designed by Otis engineers. The charts provide the appropriate counterweight amounts that are currently used in dozens of Skyrise elevators throughout the United States.

15. Watts misread the Skyrise counterweight chart and instructed Dekruyf to stack the counterweights onto the frame far in excess of the amount the frame, rope, sheave, and platform could handle at that phase of the installation.

16. Watts was Dekruyf’s supervisor on the Skyrise project and was the working foreman on the date of the incident. Watts was responsible for ensuring Dekruyf was performing his assigned tasks safely and overseeing every aspect of his work.

17. Although Watts was an experienced mechanic, he was not sufficiently familiar with the Skyrise elevator counterweight chart to read it properly.

18. Although Dekruyf was not injured as a result of the incident, an employee could suffer amputation, concussion, death, or other serious injuries if a platform propels seven floors up as the employee is working on it when an overload of counterweights causes the counterweight frame to plunge to the pit below.

19. At the time of the Division’s inspection in May of 2015, the elevators in the main building were fully constructed and no Otis employees were working on them.

20. On the date of the inspection, one of the elevators was waiting for a part, and Otis employees had placed a group lock on the control panel for that elevator to prevent anyone from using it.

21. Employer enforces a strict lockout-tagout policy that is incorporated into its safety procedures as a “Cardinal Rule.” Violation of a cardinal rule results in an automatic unpaid two-day suspension.

22. Otis employees have personal locks and tags that are used in accordance with Employer’s safety procedures when any employees are working on de-energized equipment.


Analysis

1. Was Employer required to place an accident prevention tag on the control panel for Elevator B in the machine room?

California Code of Regulations, title 8, section 2320.6, subdivision (a),2 provides: Suitable accident prevention tags shall be used to control a specific hazard. Such tags shall provide the following minimum information:

(1) Reason for placing tag. (2) Name of person placing the tag and how that person may be contacted. (3) Date tag was placed.

In Citation 1, the Division alleges: Prior to and during the course of the inspection including but not limited to May 20, 2015 the employer locked out the electrical disconnect B, located in the elevator motor control room; the switch was in the off position locked out with an Otis lock; the employer failed to have placed an accident prevention tag with the minimum information per the standard attached to the lock.

The Division has the burden of proving each element of its case, including the

applicability of the safety order. (Coast Waste Management, Inc., Cal/OSHA App. 11-2385, Decision After Reconsideration (Oct. 7, 2016).) The Division asserted that Employer had violated section 2320.6 because, at the time of the inspection, there was a lock, but no tag, on an elevator control panel in the machine room located in the main building.

The plain meaning of the statute must be assessed in light of the statutory scheme as a

whole. (Coast Waste Management, Inc., supra, Cal/OSHA App. 11-2385, citing to Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1333.) Sections 2320.2 through 2320.11 of the Electrical Safety Orders pertain to work procedures required when employees are working on energized and de-energized equipment or systems. Section 2320.6, the safety order for which Employer was cited, does not provide requirements for when tags must be affixed, it merely regulates the contents of the tags. Section 2320.4 sets forth when employers are required to use the tags and other steps that must be taken when employees are working on electrical equipment. Section 2320.4 provides, in relevant part:

2 Unless otherwise specified, all references are to sections of California Code of Regulations, title 8.


(a) An authorized person shall be responsible for the following before working on de-energized electrical equipment or systems:

(1) Notifying all involved personnel. (2) Locking the disconnecting means in the “open” position with the use

of lockable devices, such as padlocks, combination locks or disconnecting of the conductor(s) or other positive methods or procedures which will effectively prevent unexpected or inadvertent energizing of a designated circuit, equipment or appliance … .

(3) Tagging the disconnecting means with suitable accident prevention tags conforming to the provisions of Section 2320.6 and GISO Section 3314(e).

(4) Effectively blocking the operation or dissipating the energy of all stored energy devices which present a hazard, such as capacitors or pneumatic, spring-loaded and like mechanisms.

(Emphasis added.)

As set forth in section 2320.4, the lock and tag are required before employees begin working on the equipment, which prevents the hazard of energization while an employee is exposed to the equipment. When tags are required, section 2320.4 sets forth that the tags must conform to the provisions of section 2320.6. The issue here is whether a tag was required when the Division’s inspector observed a lock on the control panel with no tag affixed.

At the time of the inspection, no Otis employees were working in the main building. The

Otis employees were working on the elevators in the garage. All six of the elevators in the main building had been completed, but one of the elevators was taken out of service while a part was ordered. Before the part arrived, a group lock was placed on the control panel in the locked machine room to restrict elevator access to only Otis employees. There was no evidence presented regarding the missing part, including identification of the part and its function, when it was due to arrive, and risks, if any, created by the part’s absence. There was no evidence that any work would be performed on the elevator until the missing part was received. Pursuant to the requirements of section 2320.4, the obligation to affix the lock and tag had not yet arisen, as there were no employees working on the equipment at the time of the inspection, nor was there evidence that any employees would be working on or around the equipment at any point in the immediate future.

The Division argues that there was potential exposure because Otis employees had access

to the machine room where the non-tagged control panel was located and could have energized the elevator at any time. The Division’s argument misapplies the timing requirement of the safety order and mistakes the timing requirement for an exposure analysis. As set forth above,


the plain language of section 2320.4 designates that the operative timing when a tag must be in place is the point when work begins. In the instant matter, the Division attempts to arbitrarily impose a point in time, prior to work beginning on the equipment, to require Employer to place a tag on the control panel.

Additionally, Employer presented evidence that its employees strictly adhere to its

lockout-tagout program, thereby minimizing the likelihood that an employee would begin working on the elevator without putting a lock and tag on it. Dekruyf testified that Otis employees have personal locks that they affix when they are working on de-energized equipment. Employer’s safety program provides extensive instructions regarding lockout-tagout procedures and Employer provides locks and tags to all its employees. Employer has a set of “Elevator Cardinal Rules” in its Injury and Illness Prevention Program (IIPP) and Safety Handbook. The second cardinal rule provides: “ALWAYS lock out and tag out equipment when power is not required.” Dekruyf testified that there is such a strong emphasis on these cardinal rules that they are printed on a small card for the employees to carry separately. Dekruyf testified that he carries the card in his wallet. Employer’s safety program requires an automatic two-day unpaid suspension if an employee violates one of the cardinal rules. As such, Employer established that it is highly unlikely that an employee would begin working on the elevator without first removing the group lock and affixing his personal lock and tag.

The Division did not meet the threshold burden of proving that the safety order applied to

the circumstances at the time of the issuance of the citation. Although the control panel did not have a tag attached with the lock, the Division did not prove that work had begun on the equipment that would necessitate a lock and tag. Accordingly, Citation 1, Item 1, is dismissed.

2. Did the Division establish that Employer failed to provide its apprentice with training and instruction specific to the task he was performing at the time of the incident?

Section 1509, subdivision (a), requires that “[e]very employer shall establish, implement

and maintain an effective Injury and Illness Prevention Program in accordance with section 3203 of the General Industry Safety Orders.” Section 3203 provides that employers must have a written IIPP that meets minimum requirements. In Citation 2, the Division references section 3203, subdivision (a)(7), which provides that the IIPP must:

(7) Provide training and instruction:

(A) When the program is first established; … (B) To all new employees; (C) To all employees given new job assignments for which training has

not previously been received;


(D) Whenever new substances, processes, procedures or equipment are introduced to the workplace and represent a new hazard;

(E) Whenever the employer is made aware of a new or previously unrecognized hazard; and,

(F) For supervisors to familiarize themselves with the safety and health hazards to which employees under their immediate direction and control may be exposed.

In Citation 2, the Division alleges: Prior to and during the course of the inspection including but not limited to May 20, 2015 the Exposing Employer did not provide any records that the elevator apprentice positioned on the running platform in the hoist way loading weights onto the counterweight frame had received training and instruction specific to that task being performed on March 11, 2015. Ref. 1509(a) [and] 3203(a)(7). Cited as Exposing Employer as per Labor [C]ode 6400 and T8 336.10[.]

The subdivision for which Employer was cited, section 3203, subdivision (a)(7), requires

an employer to provide training and instruction under various circumstances, such as when an employee is newly hired or an employee is assigned a new task. Dekruyf was not a newly hired employee, as he had been working for Employer for five months at the time of the incident and had previously completed Employer’s multi-day new-hire training program. The Division did not explicitly state the point of deficiency in Dekruyf’s training. However, it appears that the Division is arguing that Employer did not provide training and instruction for a new job assignment for which training had not previously been received. Although Dekruyf testified that he had performed the task of stacking counterweights at least 20 times prior to the incident, the issue is whether he had been trained to perform that task.

The Division’s Associate Safety Engineer, William Moffett (Moffett), testified that

Citation 2 was issued because Employer did not provide any documentation showing that Dekruyf was trained in the particular task he was assigned the day of the incident. It was undisputed that the only task Dekruyf was performing at the time of the incident was moving the counterweights from the staging area onto the running platform and then loading them onto the counterweight frame. Dekruyf, a first-year apprentice, was under the supervision of Watts, a journeyman mechanic. Dekruyf made no decisions regarding the amount of weight to load or the method by which the weights were loaded. Dekruyf was simply the “muscle” performing the work that Watts directed. Watts was reading the elevator plans, which set forth the number of counterweights required at each phase of construction, and relaying instructions to Dekruyf.


Dekruyf testified that he was trained on the proper method of lifting heavy objects, including ergonomic precautions and awareness of pinch points. Employer’s Safety Handbook, which was provided to all employees and replaced if the employee lost it, contains extensive instructions regarding proper lifting of heavy materials. (Exhibit M, Sec. 2.12.)

All the witnesses at the hearing testified that apprentices in the elevator construction

industry are required to complete extensive on-the-job training in addition to classroom training as part of the process of becoming a journeyman mechanic. Dekruyf, while working under Watts’ supervision, was being trained and instructed how to perform his work, including the task of stacking counterweights onto the counterweight frame. In addition to training and instruction on lifting heavy counterweight plates, Dekruyf was taught about the potential for traction loss when working with elevators of the type involved in the incident. Dekruyf testified that he also received on-the-job instruction and training on how to safely load counterweights onto the counterweight frame while standing on a running platform at the midway point up the elevator hoistway, as was the situation on the day of the incident.

The Division cited Employer for not providing training and instruction in accordance with section 3203, subdivision (a)(7). However, the Alleged Violation Description asserts that Employer failed to provide records pertaining to the task Dekruyf was performing. Employer provided the Division with training records, but none of the records indicated that the training was specifically tailored to the task of placing counterweights into the counterweight frame. Nonetheless, the testimony and review of Employer’s documents reveals that Dekruyf was, in fact, provided with training on how to properly lift heavy objects, as well as other topics pertaining to the counterweight-stacking task, such as potential traction loss.3

The Division failed to establish that Employer did not provide Dekruyf with training and

instruction specific to the task of loading counterweights onto the counterweight frame. Accordingly, Employer’s appeal of Citation 2 is granted.

3. Was Employer required to adopt a site-specific Code of Safe Practices setting forth instructions for the counterweight-stacking task being performed at the time of the incident?

Section 1509, subdivision (b), requires that “[e]very employer shall adopt a written Code of Safe Practices which relates to the employer’s operations. The Code shall contain language equivalent to the relevant parts of Plate A-3 of the Appendix.”

3 The Division did not cite Employer for a failure to maintain training records, which would have been an alleged violation of section 3203, subdivision (b)(2).


In Citation 3, the Division alleges: On March 11, 2015 the Exposing Employer permitted employees to load weights onto the counterweight frame positioned in the hoist way adjacent to the running platform at the seventh floor, half way between grade and the top floor during the elevator installation; the employer overloaded the counter weight during the task resulting in loss of rope traction; the counterweight frame descended uncontrolled to the pit and the platform ascended in the same manner into the overhead. The employers [sic] Code of Safe Practices does not provide employees site specific instructions with regards to the assigned task of balancing the counterweight frame and running platform while in the hoist way, and the hazards associated with the task and safeguards necessary to prosecute the work in a safe manner. Cited as Exposing Employer as per Labor [C]ode 6400 and T8 336.10[.]

In determining whether section 1509, subdivision (b), was violated, the Appeals Board

makes two primary analyses: (1) whether the alleged hazardous activity involves a part of an employer’s operations; and, if so (2) whether its code of safe practices “relates” to that activity. (Hood Corporation, Cal/OSHA App. 89-236, Decision After Reconsideration (June 22, 1990).)

“The stated goal of the Occupational Safety and Health Act in general (Labor Code §

6400), and the accident prevention program in particular, is to prevent injuries and deaths on the job. It is the duty of the Employer to adopt safe methods of carrying out whatever tasks employees are assigned to perform at a place of employment. Committing these methods to writing is essential, since an employee must be trained in job safety just as he or she must be trained to perform specific tasks.... The goal is to reduce to writing a safe manner of performing the potentially dangerous tasks associated with a particular operation.” (George L. Lively, Cal/OSHA App. 98-088, Decision After Reconsideration (Apr. 28, 1999).)

“The Division could not cite an employer under Section 1509(b) for failing to include a

safe practice unless it relates to a hazard an employer would have detected through reasonably diligent inspection of the site and which presents employee safety risks on the same order as those addressed in the Plate A-3 suggested code. Nor could the Division cite an employer because its code did not go into greater detail than that suggested in Plate A-3.” (Western States Construction Company, Inc., Cal/OSHA App. 86-0096, Decision After Reconsideration (Mar. 18, 1988).)

Moffett testified that the Division issued Citation 3 because Employer did not have “a

site-specific written instrument” setting forth how to perform the task to which Dekruyf was assigned on March 11, 2015. Section 1509, subdivision (b), under which Employer was cited, contains no language, nor is there Appeals Board interpretation, that comports with the


Division’s allegations regarding a site-specific written instrument. That is, there is no requirement that an employer develop a set of practices specific to every job site. The Appeals Board has held that section 1509, subdivision (c), requires that a Code of Safe Practices (CSP) must be either posted at each job site or readily available from a supervisor. (See Douglas E. Barnhart, Inc., Cal/OSHA App. 99-180, Decision After Reconsideration (Sept. 19, 2001).) However, none of the safety orders contains a requirement that an employer have a site-specific CSP.

Setting aside the issue of whether Employer’s CSP was site-specific, the question

becomes whether Employer has a CSP addressing the task of balancing the counterweight frame and running platform and the hazards associated therewith.4

Employer maintains a comprehensive CSP, entitled Employee Safety Handbook

(Handbook), and each employee is provided with a copy at the outset of his employment. (Exhibit M.) There was no evidence that Employer failed to maintain a copy of the Handbook at the job site on March 11, 2015.5 Dekruyf testified that he was provided with a copy of the Handbook and that he referred to it regularly. Watts testified that each employee is trained on the contents of the Handbook and is provided with access to another copy if his original Handbook is misplaced.

The Handbook directly addresses the task to which Dekruyf was assigned. He was tasked

with lifting heavy counterweight filler plates from the platform onto the counterweight frame. Section 2.12 of the Handbook provides nearly one and one-half pages of instructions regarding lifting heavy objects. Additionally, the Handbook instructs employees that “proper balancing of the counterweight must be accomplished ... prior to work being performed.” Dekruyf testified that, even as a relatively new employee at the time of the incident, he understood this to mean that the amount of weight needed to be adjusted to maintain the proper balance throughout the construction process. Dekruyf was trained that the counterweight frame needed to have extra weight in order to build the finished cab, which was the next phase of construction.

Employer has a comprehensive CSP that addresses the particular task being performed on

the date of the incident. The Division failed to establish that Employer had violated section 1509, subdivision (b), because there is no requirement that an employer maintain a CSP specific to each site. Accordingly, Employer’s appeal of Citation 3 is granted. 4 It is understood for purposes of this Decision that the counterweight frame and platform or car are never “in balance” because there is an intentional overweighting of the counterweight frame in order to account for the load that will be carried on the completed elevator. However, the task on the day of the incident was to add counterweights so that the counterweight frame and completed cab would be as close to balanced as ultimately intended. 5 Assuming that the Division had established that Employer did not have a copy of the Employee Safety Handbook at the job site, the circumstances might have supported a violation of section 1509, subdivision (c), for which Employer was not cited. Therefore, such facts would not support the issuance of Citation 3.


4. Did the Division establish that the hazardous energy control regulations apply to the work being performed at the time of the incident, and that Employer had violated those regulations?

Section 3314, subdivision (g), provides: Hazardous Energy Control Procedures. A hazardous energy control procedure shall be developed and utilized by the employer when employees are engaged in the cleaning, repairing, servicing, setting-up or adjusting of prime movers, machinery and equipment.

In Citation 4, the Division alleges:

Prior to and during the course of the inspection including but not limited to May 20, 2015 the Exposing Employer failed to implement and utilize a method of hazardous energy control to provide a failsafe such as securing the counterweight frame to the structure in the hoist way to prevent any unexpected movement during the task of setting up and balancing the elevator car and counterweight at the seventh floor, mid-hatch. As a result on March 11, 2015 due to an overloading of the counterweight frame the ropes broke traction which lead to the counterweight uncontrolled descent to the pit and the sling and platform uncontrolled ascent into the overhead endangering employees, one employee was positioned on the platform during the event. Cited as Exposing Employer as per Labor Code 6400 and T8 336.10[.] To establish a violation of the safety order, the Division must demonstrate the

applicability of the safety order to the facts of the case. (Coast Waste Management, Inc., Cal/OSHA App. 11-2384, Decision After Reconsideration (Oct. 7, 2016).) Employer argues that the hazardous energy controls required by section 3314 are inapplicable to the work being performed at the time of the incident. That is, Employer asserts that construction of an elevator is not “cleaning, repairing, servicing, setting-up or adjusting of prime movers, machinery and equipment.” (Section 3314, subd. (g).)

California’s occupational safety and health regulations are required to be at least as effective as federal standards covering the same subject matter. (See 29 U.S.C. §667(c).) In promulgating California’s hazardous energy control regulations, set forth in section 3314, the California Occupational Safety and Health Standards Board relied heavily on the federal hazardous energy control regulations in 29 Code of Federal Regulations part 1910.147(c)(4)(i). The federal standard applies to “servicing and/or maintenance of machines and equipment.” (29 C.F.R. §1910.147(2)(i).) The California standard provides an expanded application of the


hazardous energy control procedures, which apply to “the cleaning, repairing, servicing, setting-up and adjusting of machines and equipment ... .” (Section 3314, subd. (a)(1).) However, section 3314 does not provide much guidance regarding what the listed activities encompass. For example, the Standards Board specifically declined to define the term “setting-up” when it added the term to section 3314 in a 2005 amendment. (See Section 3314, Initial Statement of Reasons, p. 3, and Section 3314, Final Statement of Reasons, pp. 15, 16, 30, and 33.)

Federal interpretation and precedential opinions may provide guidance, although they are

not controlling on the Appeals Board. (Los Angeles County, Department of Public Works, Cal/OSHA App. 96-2470, Decision After Reconsideration (Apr. 5, 2002).) The Appeals Board has turned to interpretations of the Federal OSH Act by the Federal Occupational Safety and Health Review Commission and reviewing courts for nonbinding, persuasive authority. (Crop Production Services, Cal/OSHA App. 09-4036, Decision After Reconsideration and Order of Remand (Mar. 28, 2016).) “The Board is not bound by the Secretary of Labor’s interpretation, but finds it helpful in this case in identifying the concerns that guided the extent of the inclusion of [particular language in the regulation at issue].” (Big Valley Dental Center, Cal/OSHA App. 94-288, Decision After Reconsideration (July 14, 1999).)

“The clear thrust of the [Fed/OSHA hazardous energy control] regulation is broadly to ensure safety where an employee performs legitimate workplace activities directed at the relevant machine and where the employee may be exposed to the unexpected energization or startup of the equipment or release of hazardous energy.” (Sec’y, United States DOL v. Action Elec. Co. (2017) 868 F.3d 1324, 1335.)

As set forth above, the federal hazardous energy control regulation applies to “servicing and/or maintenance of machines and equipment.” The regulation defines “servicing and/or maintenance” as “[w]orkplace activities such as constructing, installing, setting up, adjusting, inspecting, modifying, and maintaining and/or servicing machines or equipment.” (29 C.F.R. §1910.147(b).) Because the California regulations must be at least as effective as the federal regulations, and the California regulations also apply to servicing machines and equipment, it follows that the California regulations encompass the constructing and installing activities specifically included in the broad federal definition of “servicing.” As such, Employer’s argument that section 3314 does not apply to elevator construction is unpersuasive.

a. Was the incident the result of an unexpected release of stored energy, and

did Employer have a hazardous energy control plan for the circumstances of the incident?

Employer further argues that section 3314 is not applicable because Dekruyf intended to move the platform, and the safety order only applies to “unexpected energization or startup of a


machine.” (Section 3314, subd. (a)(1).) Employer’s argument fails to address the unexpected release of stored energy that is also contemplated by the safety order. As set forth above, section 3314 is also applicable when “the unexpected ... release of stored energy could cause injury to employees.” (Ibid.)

“[T]he applicability of the lockout/tagout standard turns not on the mechanic’s subjective prediction of how the machine would operate at the moment of repair, but rather on whether there was a potential for the unexpected release of stored energy that could cause injury to the mechanic or others. The Commission found such potential in this case because, as the mechanic testified, he could not predict when the jam would yield, making the sudden release of the chain ‘unexpected’ within the meaning of 29 C.F.R. §1910.147(a)(1)(i).” (Otis Elevator Co. v. Sec’y of Labor (D.C. Cir. 2014) 762 F.3rd 116, 120.) “The use of the term ‘unexpected’ unambiguously refers to the potential of a machine or equipment to ‘energize, start up, or release stored energy without sufficient advance notice to the employee.’” (Dayton Tire, Bridgestone/Firestone, 23 BNA OSHC 1247 (No. 94-1374, 2010), citations omitted.)

Employer’s argument is based on the fact that Dekruyf intended to move the platform

down in order to line up the platform with the seventh floor, so movement of the platform was not unexpected. However, after the brake was released, the rope lost traction around the sheave and the counterweight frame plunged into the pit, propelling Dekruyf and the platform seven floors up until the counterweight frame hit the buffer below. As this was not the intended result when Dekruyf released the brake, the movement can only be characterized as unexpected.

The weight of the counterweights far exceeded what was recommended by the engineers

at that point in the construction process. That weight caused an excessive overbalance which, because of stored energy (i.e. gravity), resulted in a complete loss of traction and the near-catastrophic unexpected movement of the counterweight frame and platform. This type of unexpected movement is contemplated by section 3314. Employer did not have a plan to control the release of this hazardous energy. Employer argued that the circumstances of the event were unforeseeable and none of the witnesses had ever experienced such an occurrence in their decades of combined experience. However, Dekruyf and Watts testified that they were familiar with the hazard of traction loss, which supports a finding that the outcome of the counterweight overload, while uncommon, was not wholly uncontemplated. Of note, both Dekruyf and Watts testified that they understood what was happening when the platform did not lower after Dekruyf released the brake. Both employees knew that the platform would ascend rapidly and that Dekruyf should lie down on the floor of the platform for safety. This awareness and knowledge of how to react to the circumstances demonstrates that loss of traction is not entirely unforeseeable.


Although Employer does have a hazardous energy control program, it provides no controls for the loss of traction that occurred in the March 2015 incident.

b. Does the infeasibility of Division’s suggested hazard abatement require dismissal of the citation?

In the Alleged Violation Description on Citation 4, the Division made the statement that Employer should have controlled the hazard by “securing the counterweight frame to the structure in the hoist way to prevent any unexpected movement ... .” Employer argued that this suggestion renders its work impossible to perform and the witnesses testified that the impracticability of such a method would increase risks to the employees. In order to line up the platform with the top of the counterweight stack as it gets taller with more weights, the elevator must be able to move. When the workers finish stacking the counterweights on their cart, they need to be able to move the platform back down to the lower floor to get more counterweights. The need to have mobility makes the idea of securing the frame to the structure unreasonable. However, the infeasibility of the Division’s suggestion does not mean that the citation must be vacated.

Although the Division made a suggestion regarding abatement of the hazard in this instance, the Division does not mandate specific means of abatement; rather, the employer is free to choose the least burdensome means of abatement. (Starcrest Products of California, Inc., Cal/OSHA App. 02-1385, Decision After Reconsideration (Nov. 17, 2004), citing The Daily Californian/Caligraphics, Cal/OSHA App. 90-929, Decision After Reconsideration (Aug. 28, 1991).)

Under the California Labor Code, an employer is required only to comply with the requirements of the safety orders. It is not required to follow a particular method suggested by the Division to meet those requirements. (Charles L. Fisher dba Charles L. Fisher Construction Company, Cal/OSHA App. 79-750, Decision After Reconsideration (Jul. 27, 1984).) Employer argued that it is impossible to perform the counterweight-stacking portion of elevator construction if the counterweight frame is secured to the building. However, there may be other methods Employer could implement which would provide employees with greater protection from the hazards associated with the unexpected release of stored energy. Other than arguing that the Division’s suggestion was infeasible, Employer made no assertion that it would be impossible to undertake other steps to mitigate the hazard.

Further, “[i]f an employer feels that there is no feasible method of compliance with a

safety order, or the safety order is unreasonable, it should apply to the Occupational Safety and Health Standards Board for a variance or to have the safety order repealed or amended.” (Northern California Anthes, Inc., Cal/OSHA App. 84-1085, Decision After Reconsideration


(Dec. 31, 1986).) In Hoffman Bros. Packing Co., Inc., Cal/OSHA App. 90-1035, Decision After Reconsideration (May 31, 1991), the Appeals Board explained: “The Standards Board is the only agency permitted to grant a permanent variance from the provisions of a safety standard, and the burden is on the employer to propose an alternate device ‘which will provide equal or superior safety for employees.’ (Labor Code § 143.)” (Emphasis in original.)

The Division established that the safety order is applicable and that Employer’s

hazardous energy control procedures did not protect its employees from the unexpected release of stored energy during the process of adding counterweights to the frame to balance the platform and cab with the counterweights.

Accordingly, Citation 4, Item 1, is affirmed. 5. Were the counterweight frame and running platform “machinery or

equipment” that were not of adequate design or operated under conditions of speeds, stresses, or loads which endangered employees?

At the time the alleged violation occurred, section 3328, subdivision (a), provided:

“Machinery and equipment shall be of adequate design and shall not be used or operated under conditions of speeds, stresses, or loads which endanger employees.”6

In Citation 5, the Division alleges: Prior to and during the course of the inspection including but not limited to May 20, 2015 the Exposing Employer failed to ensure equipment and or machinery during the elevator installation, such as the counterweight and running platform, (passenger elevator car) in the hoist way on March 11, 2015 were not operated under loads or stresses which would endanger employees:

Instance 1 Otis Elevator failed to design the proper counter weight quantity to properly balance the elevator car. This failure lead to counterweight overloading which caused the elevator hoist ropes to break traction resulting in the counterweights uncontrolled descent and elevator sling and platform uncontrolled ascent which endangered employees of the exposing employer.

6 Section 3328, subdivision (a), was amended effective April 1, 2016. The regulation under which Employer was cited, and the basis for this Decision, is the version in effect during the Division’s inspection and issuance of the citations.


Instance 2 Otis Elevator failed to ensure that the elevator and associated equipment (counterweights, hoist ropes, sheaves, elevator sling and platform, etc.) were used and operated under loads which did not endanger employees. The counterweight was overloaded resulting in the elevator hoist ropes breaking traction which resulted in the counterweights uncontrolled dropping and elevator sling and platform uncontrolled ascent which endangered employees of the exposing employer. Cited as Exposing Employer as per Labor Code 6400 and T8 336.10[.]

In order to establish a violation of section 3328, subdivision (a), the Division has the burden to prove that (1) machinery or equipment, (2) was not of adequate design, or (3) was used or operated under conditions of speed, stress, or load that endangered employees. The Appeals Board has interpreted section 3328, subdivisions (a) through (h), as protecting employees against the hazards of improper design, use, maintenance and repair of machinery and equipment that is “in service,” i.e., operated or used by employees in the service of their employers. (Carris Reels of California, Cal/OSHA App. 95-1456, Decision After Reconsideration (Dec. 6, 2000).) Therefore, the threshold question is whether the elevator and its individual components were “machinery or equipment,” as contemplated in section 3328.

The Appeals Board has interpreted the term “equipment” to mean “implements (as machinery and tools) used in an operation or activity” or “one or more assemblies capable of performing a complete function.” (The Herrick Corporation, Cal/OSHA App. 99-786, Decision After Reconsideration (Dec. 18, 2001); see also Mobilelease Corp. v. County of Orange (1974) 42 Cal.App.3d 461, 467.) Employer argues that the elevator and its components are not “machinery or equipment.” Employer asserts that section 3328 applies to implements provided to employees in order to perform work on an employer’s behalf. Under this interpretation, Employer argues that the “machinery or equipment” used by Otis employees consists of forklifts, carts, welding torches, and other tools and machinery used to construct the elevators. The situation in the instant matter is not the typical scenario where employees are using a machine to bend a piece of steel, cut wood, or cook tortillas. Each of those tasks involves a machine that is being used by employees to create a product. However, in this circumstance, the elevator itself (i.e., the product) is also being “used in an operation or activity” and is “capable of performing a complete function.” (The Herrick Corporation, supra, Cal/OSHA App. 99-786.) The running platform was capable of transporting Otis employees and materials up and down the elevator hoistway. The motor was operational, the rope was attached and wrapped around the


sheave, the brake was in place, and the elevator was functional, although not fully assembled. As such, the elevator and its various components were machinery or equipment being used by the employees. The question then becomes whether there was an inadequate design, or a use or operation under loads or stresses that endangered employees.

a. Instance 1: Was the counterweight quantity “of adequate design” to balance the elevator car?

Section 3328 does not define “adequate.” However, section 3207, subdivision (a), which sets forth definitions applicable to the General Industry Safety Orders (including section 3328), defines “adequate” to mean: “Sufficient to reduce the risk to an acceptable minimum.” There was no evidence that any of the machinery or equipment was improperly designed. The brake held the platform in place while Dekruyf was stacking the counterweights into the counterweight frame. It was only after Dekruyf released the brake to move the platform that the rope lost, or broke, traction, causing the counterweight frame to drop and the platform to rise suddenly. The frame, platform, sheave, brake, rope, and all other elevator components were functioning properly despite the incident.

To the extent that the Division is challenging the adequacy of the plans for how many counterweights should be stacked on the frame at each phase, this allegation fails. First, the plans are not machinery or equipment. Second, the elevators in their finished state are currently operating safely with the exact counterweight amounts set forth in the plans designed by Otis engineering experts. The incident was not caused by inadequate design.

Accordingly, Instance 1 of Citation 5 is vacated. b. Instance 2: Was the elevator, and its associated equipment, used and

operated under loads that endangered employees?

The elevator, although still under construction, was being used and operated by Otis employees. As set forth above, the elevator was functional and the employees were using it to lift and lower themselves while putting counterweights on the frame. The Appeals Board has found that, to prove a violation of section 3328, subdivision (a), the Division must prove that machinery or equipment was used under conditions of “excess stress” measured by the equipment’s ability to safely handle that stress. (See, e.g., The Herrick Corporation, supra, Cal/OSHA App. 99-786.) Further, the Appeals Board has defined “load” as “a weight or quantity resting upon something else regarded as its support.” (See Western States


Steel, Inc., Cal/OSHA App. 84-1089, Decision After Reconsideration (Aug. 13, 1987).) The counterweights were a load on the counterweight frame.

Because Watts misread the elevator plans, he instructed Dekruyf to load the

counterweight frame with weights far in excess of the amount that the equipment could handle at that time. The counterweight frame was overloaded by approximately 3,300 pounds, causing the rope to lose traction around the sheave. Although the brake held the platform and counterweight frame until Dekruyf attempted to move the platform down, the excess stress from the overload resulted in a loss of traction of the rope, which was a component of the machine.

The Division established that the elevator was operated under a load that it could not

safely handle, resulting in hazard to the employees. Accordingly, Instance 2 is established and Citation 5 is affirmed.

6. Did Employer establish that an affirmative defense relieved it of liability for the violations?

a. Independent Employee Action Defense (IEAD)

In order to assert the affirmative defense of IEAD successfully, an employer must establish the following elements:

(1) The employee was experienced in the job being performed; (2) The employer has a well-devised safety program which includes training

employees in matters of safety respective to their particular job assignments;

(3) The employer effectively enforces the safety program; (4) The employer has a policy of sanctions against employees who violate the

safety program; and (5) The employee caused a safety infraction which he or she knew was contra

to the employer’s safety requirements. (Fedex Freight, Inc., Cal/OSHA App. 14-0144, Decision After Reconsideration (Dec. 14, 2016); Mercury Service, Inc., Cal/OSHA App. 77-1133, Decision After Reconsideration (Oct. 16, 1980).) The Appeals Board has long held that where the employee causing the safety infraction is a foreman or supervisor, the defense is inapplicable. (Davey Tree v. Occupational Safety and Health Appeals Bd. (1985) Cal.App.3d 1232, 1241.) The court in Davey Tree, ibid., held that the supervisor causing the safety violation results in the employer failing to meet the third element of


the IEAD test, because the violation of a safety rule by a supervisor meant the employer, through its representative, had itself failed to enforce its safety program. As the court in Davey Tree, ibid., explained, supervisors and foremen are management’s representatives at worksites, and when they violate a safety standard, their behavior is attributed to management. (PDM Steel Service Centers, Inc., Cal/OSHA App. 13-2446, Denial of Petition for Reconsideration (June 10, 2015).)

The Appeals Board has stated that it is the cumulative nature of an employee’s responsibilities, rather than the traditional power to hire and fire, which determines standing as a supervisor for purposes of the Occupational Safety and Health Act. (Contra Costa Electric, Inc., Cal/OSHA App. 90-470, Decision After Reconsideration (May 8, 1991).) The focus is on whether the employee has been delegated sufficient authority to ensure other workers follow the employer’s and the government’s safety rules. (Jerry W. Winfrey, DBA Jerry’s Electrical Service, Cal/OSHA App. 91-1287, Decision After Reconsideration (July 29, 1993).)

The crucial determinant is whether an employee is invested with enough power by an employer to control the work, e.g., to direct such things as whether a backhoe is to be used in mobbing pipe from a truck to a trench, how it is to be done, and the role other employees will assume in the process.

(Granite Construction Co., Cal/OSHA App. 84-648, Decision After Reconsideration (Mar. 13, 1986).) Employer asserts that Watts’ independent actions absolve it from liability for the safety order violations. Watts was a journeyman mechanic and did not hold a supervisorial job title or have authority to hire, fire, or discipline others for safety infractions. However, the witnesses testified that Watts was responsible for Dekruyf’s safety and was the mechanic in charge of the Otis employees at the jobsite on the date of the incident. Dekruyf testified that Watts was the working foreman on the date of the incident. When an apprentice such as Dekruyf was working with a mechanic, that mechanic was responsible for overseeing every aspect of the apprentice’s work. In fact, the apprentice was required to remain in either visual contact or within “shouting distance” from the mechanic at all times. Although Kirk Wasson was the Operations Manager and was Watts’ supervisor, he was not present at the site on the day of the incident. Other than Watts, there was no one overseeing the employees’ work at the jobsite. As such, Watts was a supervisor on the date of the incident and his actions are attributed to Employer. The IEAD is not available to Employer. Additionally, even if Watts did not meet the definition of a supervisor for purposes of the IEAD, Employer did not establish two of the five factors necessary to succeed with this defense. First, Watts was not experienced at the job being performed. Although Watts was an experienced


mechanic who had years of training and had performed the counterweight-balancing process numerous times, the Skyrise elevator being installed at the time of the incident was a brand new line of elevators. Watts testified that the chart in the elevator plans was different from previous charts. In fact, it was Watts’ unfamiliarity with the Skyrise elevator chart that led to the mistaken overload of the counterweight frame. Further, the IEAD requires that an employee must know his actions were a violation of his employer’s safety policies. There was no evidence that Watts knew he had done anything wrong and, therefore, could not knowingly have violated Employer’s policies. Accordingly, the IEAD is inapplicable to absolve Employer of liability for the violations for which it was cited in Citations 4 and 5.

b. Newbery defense (Unforeseeability)

The judicially-created affirmative defense that allows an employer to avoid liability for a violation based on an unforeseeable act by its employee was first established in Newbery Electric Corporation v. Occupational Safety and Health Appeals Board (1981) 123 Cal.App.3d 641. In order to successfully assert the Newbery defense, an employer must prove that none of the following four criteria exist:

(1) the employer knew or should have known of the potential danger to employees; (2) the employer failed to exercise supervision adequate to assure safety; (3) the employer failed to ensure employee compliance with its safety rules; and (4) the violation was foreseeable.

(Gaewhiler v. Occupational Safety and Health Appeals Board (1983) 141 Cal.App.3d 1041, 1045.)

However, as with the IEAD, this defense is not available to an employer if the employee

involved in the violation was a supervisor. (Brunton Enterprises, Inc., Cal/OSHA App. 08-3445, Decision After Reconsideration (Oct. 11, 2013).) The Appeals Board has previously considered this issue and denied the Newbery defense when a supervisor committed the violation. (See Hollander Home Fashions, Cal/OSHA App. 10-3706, Denial of Petition for Reconsideration (Jan. 13, 2012), citing MCI Worldcom, Inc., Cal/OSHA App. 00-440, Decision After Reconsideration (Feb. 13, 2008) [Newbery defense fails since supervisor’s knowledge is imputed to employer].)

Although Watts did not knowingly misread the counterweight chart, Watts’ status as a

supervisor results in the failure of the second prong of the Newbery defense. Additionally, as


discussed above, although the loss of traction resulting from the overloading of the counterweights was uncommon, it was not unforeseeable.

Because Watts was a supervisor, the affirmative defense of unforeseeability is

inapplicable. 7. Did the Division establish rebuttable presumptions that Citations 4 and 5

were properly classified as Serious?

Labor Code section 6432, subdivision (a) states: (a) 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 actual hazard may consist of, among other things: […] (2) The existence in the place of employment of one or more unsafe or

unhealthful practices that have been adopted or are in use. […]

The Appeals Board has defined the term “realistic possibility” to mean a prediction that is within the bounds of human reason, not pure speculation. (A. Teichert & Son, Inc. dba Teichert Aggregates, Cal/OSHA App. 11-1895, Decision After Reconsideration (Aug. 21, 2015), citing Janco Corporation, Cal/OSHA App. 99-565, Decision After Reconsideration (Sep. 27, 2001).) “Serious physical harm” is defined as an injury or illness occurring in the place of employment that results in:

(1) Inpatient hospitalization for purposes other than medical observation. (2) The loss of any member of the body. (3) Any serious degree of permanent disfigurement. (4) Impairment sufficient to cause a part of the body or the function of an organ to

become permanently and significantly reduced in efficiency on or off the job, including, but not limited to, depending on the severity, second-degree or worse burns, crushing injuries including internal injuries even though skin surface may be intact, respiratory illnesses, or broken bones.

(Lab. Code §6432, subd. (e).)


Although Dekruyf was not injured as a result of the failure to establish hazardous energy control procedures to prevent against the release of stored energy as a result of the accidental overload of the counterweight stack, Moffett testified that there was a realistic possibility that he could have been injured by shearing or crushing forces. The plunging counterweight frame propelled the platform more than seven floors to the top of the elevator hoistway as Dekruyf flattened his body to the platform floor. An employee with less awareness of his situation could have remained standing and fallen to the side, grabbing at anything he could find in a panicked state. This could realistically result in amputation or crushing injuries, in addition to potential death. Even with the circumstances of Dekruyf’s incident, his body was lifted and slammed into the platform floor when the counterweight frame hit the buffer and the running platform’s ascent was abruptly halted at the top of the hoistway. This lifting and dropping of Dekruyf’s body could have realistically resulted in internal injuries or concussion. Accordingly, the Division met its burden of establishing that there was a realistic possibility of serious physical harm as a result of the violation and there is a rebuttable presumption that Citations 4 and 5 were properly classified as Serious.

8. Did Employer rebut the presumptions that the violations cited in

Citations 4 and 5 were Serious by demonstrating that it did not, and could not with the exercise of reasonable diligence, know of the existence of the violations?

Labor Code section 6432, subdivision (c), provides that an employer may rebut the presumption that a serious violation exists by demonstrating that the employer did not know and could not, with the exercise of reasonable diligence, have known of the presence of the violation. In order to satisfactorily rebut the presumption, the employer must demonstrate both:

(1) The employer took all the steps a reasonable and responsible employer in like

circumstances should be expected to take, before the violation occurred, to anticipate and prevent the violation, taking into consideration the severity of the harm that could be expected to occur and the likelihood of that harm occurring in connection with the work activity during which the violation occurred. Factors relevant to this determination include, but are not limited to, those listed in subdivision (b) [; and]

(2) The employer took effective action to eliminate employee exposure to the hazard created by the violation as soon as the violation was discovered.

Labor Code section 6432, subdivision (b), provides that the following factors may be

taken into account: (A) Training for employees and supervisors relevant to preventing employee


exposure to the hazard or to similar hazards; (B) Procedures for discovering, controlling access to, and correcting the hazard or similar hazards; (C) Supervision of employees exposed or potentially exposed to the hazard; and (D) Procedures for communicating to employees about the employer’s health and safety rules and programs.

The Appeals Board has recognized that each employer has an affirmative duty to

anticipate hazards within a reasonable degree of foreseeability. (Greene and Hemly, Inc., Cal/OSHA App. 76-432, Decision After Reconsideration (Apr. 7, 1978).) Although the circumstances of this incident were unusual, it is not entirely unforeseeable that an employee could overload the counterweight frame either because he misread the counterweight chart, had a lapse of attention, or for any other reason. The Skyrise elevator being installed at the time of the incident was a brand new product line and Watts testified that the counterweight chart was organized differently from charts he had worked with on previous products. The training and follow-up supervision on reading the counterweight chart were lacking, which caused the inadvertent overloading and exposure to the hazard of uncontrolled descent of the counterweight frame. Additionally, Employer did not have a method in place to prevent the counterweight frame from plunging to the pit as a result of the unexpected release of stored energy.

Accordingly, Employer did not rebut the presumption that Citations 4 and 5 were

properly classified as Serious. 9. Are the proposed penalties for Citations 4 and 5 reasonable?

Penalties calculated in accordance with the penalty setting regulations set forth in

sections 333 through 336 are presumptively reasonable and will not be reduced absent evidence that the amount of the proposed civil penalty was miscalculated, the regulations were improperly applied, or that the totality of the circumstances warrant a reduction. (Stockton Tri Industries, Inc., Cal/OSHA App. 02-4946, Decision After Reconsideration (Mar. 27, 2006).)

Moffett testified that he did not allow for any adjustment to the base penalties for good

faith. (See section 335, subd. (c).) Moffett’s basis for not giving a good faith adjustment was because Employer’s employees did not cooperate with the Division’s investigation. Moffett attempted to interview a group of employees, but they did not show up at the arranged time. Employer asserted that it attempted to arrange for the employees to attend interviews in cooperation with the investigation, but could not compel the union-represented employees to do so. Employer provided the Division with all requested documentation and otherwise cooperated fully with Moffett’s investigation.


Not only does it appear that Employer did cooperate with the Division’s investigation to the best of its ability, but section 335 makes no mention of cooperation with the Division as a relevant factor for assessing a good faith rating.

The plain language of section 335, subdivision (c), suggests a more appropriate review of

whether an employer is entitled to an adjustment for good faith is “based upon the quality and extent of the safety program the employer has in effect and operating.” The rating factors themselves indicate that the employer’s rating is good, fair, or poor based on the quality of its safety program. (Sections 335 and 336.) The Division applied adjustment factors to the base penalties of all the citations, which would not have been permissible if Employer did not have an IIPP in compliance with the safety regulations.7 As such, it is evident that the Division misapplied the standard for a good faith adjustment.

There was no evidence that Employer’s good faith was less than “Good.” As such,

Employer is entitled to a reduction of the gravity-based penalty in the amount of 30 percent pursuant to section 336, subdivision (d)(2).

Accordingly, the penalty for Citation 4 is modified to $5,625, and the penalty for Citation

5 is modified to $13,500. (See Exhibit 18 [increased adjustment factor in Column 15 from 20 percent to 50 percent].)

Conclusions

The Division failed to establish that Employer violated section 2320.6. Employer was not required to use an accident prevention tag on the elevator control panel when employees were not working on the de-energized equipment. The Division failed to establish that Employer violated section 1509, subdivision (a). Employer provided Dekruyf with training and instruction on the task he was performing on the date of the incident. The Division failed to establish that Employer violated section 1509, subdivision (b). Employer had a Code of Safe Practices related to its operations which addressed the task being performed at the time of the incident. The Division established that Employer violated section 3314, subdivision (g). Employer did not have a hazardous energy control procedure to address the hazard of the unexpected release of stored energy when performing the task of balancing the counterweight frame with the

7 Section 336, subd. (d)(8): “The penalty for any Serious violation shall not be subject to adjustment pursuant to this subsection other than for Size … where the employer does not have an operative injury prevention program ….”


platform at various stages of construction. The proposed penalty is found to be unreasonable and is modified to reflect a 30 percent reduction for good faith. The Division established that Employer violated section 3328, subdivision (a), because the elevator and its components were operated under a load that endangered employees. The proposed penalty is found to be unreasonable and is modified to reflect a 30 percent reduction for good faith.

ORDER

It is hereby ordered that Citation 1 is dismissed and the penalty is vacated. It is hereby ordered that Citation 2 is dismissed and the penalty is vacated. It is hereby ordered that Citation 3 is dismissed and the penalty is vacated. It is hereby ordered that Citation 4 is affirmed and the penalty is modified to $5,625. It is hereby ordered that Citation 5 is affirmed and the penalty is modified to $13,500. It is further ordered that the penalty indicated above and set forth in the attached Summary Table be assessed. Dated: __________________________________

Kerry Lewis Administrative Law Judge

The attached decision was issued on the date indicated therein. If you are dissatisfied with the decision, you have thirty days from the date of service of the decision in which to petition for reconsideration. Your petition for reconsideration must fully comply with the requirements of Labor Code sections 6616, 6617, 6618 and 6619, and with California Code of Regulations, title 8, section 390.1. For further information, call: (916) 274-5751.

___________________________Kerry Lewis

09/14/2018

OSHAB 601 APPENDIX A Rev. 5/16 Summary of Evidentiary Record and Certification of Recording

APPENDIX A SUMMARY OF EVIDENTIARY RECORD

Inspection No.: 1064406 Employer: OTIS ELEVATOR Dates of hearing: October 18 and 19, 2017 and May 17, 2018 DIVISION’S EXHIBITS Exhibit Number Exhibit Description Status

1 Jurisdictional documents Admitted Into Evidence

2 Daily Sheet Admitted Into Evidence

3 Field Installation Manual Admitted Into Evidence

4 Photo of Counter Weight Filler Plates Admitted Into Evidence

5 Photo of Counter Weight Frame in the Pit Admitted Into Evidence

6 Training Record Admitted Into Evidence

7 Job Hazard Analysis Admitted Into Evidence

8 IIPP Admitted Into Evidence

9 New Hire Training Module 2 Admitted Into Evidence

10 Control of Hazardous Energy Program Admitted Into Evidence

11 Car and Counterweight Assembly and Roping (Union training material)

Admitted Into Evidence

12 Training Record Admitted Into Evidence

13 Incident Investigation Final Report Marked for Identification Only

14 DOSH 1BY Admitted Into Evidence

15 Document Request (to Suffolk Roel) Admitted Into Evidence

16 Document Requests (to Otis) Admitted Into Evidence

17 Photo of Plans in Machine Room Admitted Into Evidence

18 DOSH C-10 Admitted Into Evidence


EMPLOYER’S EXHIBITS Exhibit Letter Exhibit Description Status

A Photo of Locked Out Panel Admitted Into Evidence

B Photo of Multiple Panels Admitted Into Evidence

C Dekruyf Training Records Admitted Into Evidence

D [Withdrawn as duplicate of Exh. 7] Not Admitted into Evidence

E Elevator Prestart/In-Process Audit Standard Work Admitted Into Evidence

F New Equipment In-Process Management Audit Admitted Into Evidence

G New Equipment Pre-Start Safety Checklist Admitted Into Evidence

H National Guidelines for Apprenticeship Standards--Elevator Construction Mechanic


I Apprenticeship Courses Admitted Into Evidence

J [WIthdrawn as duplicate of Exh. 11] Not Admitted into Evidence

K Skyrise Training Records Admitted Into Evidence

L Otis Elevator IIPP Admitted Into Evidence

M Employee Safety Handbook Admitted Into Evidence

N Field Installation Manual [Includes more pages than Exh. 3]


O Drawings/Plans for Elevator Admitted Into Evidence

P Specification Table for Counter Weight Filler Weights Admitted Into Evidence

Q Plate A-3 Code of Safe Practices Admitted Into Evidence

R Title 8, Code of California Regulations, section 4188 Admitted Into Evidence

S Diagram of Elevator System Admitted Into Evidence

T [Withdrawn as duplicate of Exh. 10] Not Admitted into Evidence

U Fatality Prevention Reports and New Equipment Safety Checklist


V [Withdrawn] Not Admitted into Evidence


W List of Skyrise Projects Admitted Into Evidence

X Kenneth M. Smith C.V. Admitted Into Evidence

Y Photo of Counterweight Stack Day After Incident Admitted Into Evidence

Witnesses testifying at hearing: David Dekruyf Otis Elevator Apprentice Joshua Watts Otis Elevator Mechanic William Moffett Associate Safety Engineer

Steven Smith Associate Safety Engineer--Elevator Division

Kirk Wasson Otis Operations Manager

David Holliman Otis Regional Environmental Health and Safety Manager

Kenneth M. Smith Employer’s Expert Witness


APPENDIX A CERTIFICATION OF HEARING RECORD

Inspection No.: 1064406 Employer: OTIS ELEVATOR I, Kerry Lewis, the California Occupational Safety and Health Appeals Board Administrative Law Judge duly assigned to hear the above-entitled matter, hereby certify the proceedings therein were electronically recorded or recorded by a certified court reporter. If the proceedings were recorded electronically, the recording was periodically monitored during the hearing. Either the electronic recording or the recording made by a certified court reporter constitutes the official record of the proceedings, along with the documentary and other evidence presented and received into evidence during or after the hearing. To the best of my knowledge the recording equipment, if utilized, was functioning normally and exhibits listed in this Appendix are true and correct, and accurately represent the evidence received during or after the hearing. Kerry Lewis Date Administrative Law Judge

DateKerry LewisAdministrative Law Judge

09/14/2018

OSHAB 201 SUMMARY TABLE Rev. 02/18

SUMMARY TABLE OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

In the Matter of the Appeal of: OTIS ELEVATOR

Inspection No. 1064406

Citation Issuance Date: 09/10/2015 CITATION

ITEM

SECTION

TYPE

CITATION/ITEM RESOLUTION

AFF I RMED

VACATED

PENALTY

PROPOSED BY DOSH IN CITATION

FINAL

PENALTY ASSESSED

1 1 2320.6 (a) G ALJ dismissed citation. V $450.00 $0.00 2 1 1509 (a) S ALJ dismissed citation. V $7,200.00 $0.00 3 1 1509 (b) S ALJ dismissed citation. V $9,000.00 $0.00

4 1 3314 (g) S ALJ affirmed citation. Modified penalty by applying adjustment factor for good faith.

A $9,000.00 $5,625.00

5 1 3328 (a) S ALJ affirmed citation. Modified penalty by applying adjustment factor for good faith.

A $21,600.00 $13,500.00

6 1 3328 (e) S DOSH withdrew citation. V $9,000.00 $0.00 Sub-Total $56,250.00 $19,125.00

Total Amount Due* $19,125.00

*You may owe more than this amount if you did not appeal one or more citations or items containing penalties. Please call (415) 703-4291 if you have any questions.

Abbreviation Key: G=General R=Regulatory Er=Employer S=Serious W=Willful Ee=Employee A/R=Accident Related RG=Repeat General RR=Repeat Regulatory RS=Repeat Serious

PENALTY PAYMENT INFORMATION 1. Please make your cashier’s check, money order, or company check payable to: Department of Industrial Relations 2. Write the Inspection No. on your payment 3. If sending via US Mail: If sending via Overnight Delivery: CAL-OSHA Penalties US Bank Wholesale Lockbox PO Box 516547 c/o 516547 CAL-OSHA Penalties Los Angeles, CA 90051-0595 16420 Valley View Ave. La Mirada, CA 90638-5821

Online Payments can also be made by logging on to http://www.dir.ca.gov/dosh/CalOSHA_PaymentOption.html

-DO NOT send payments to the California Occupational Safety and Health Appeals Board-

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