Cal/OSHA May Amend Citations Before, During and After ALJ Hearings – Employment Law Weekly

Cal/OSHA May Amend Citations Before, During and After ALJ Hearings

Martin Mariano, an employee of L & S Framing Inc., was working on a residential house under construction when he fell from the unprotected second floor stairwell onto the concrete ground floor below, sustaining serious injuries.

Ronald Aruejo, a senior safety engineer for the Cal/OSHA, issued plaintiff L & S Framing Inc., three general citations and one serious accident-related citation. Only the serious accident-related citation is at issue in this appeal.

The subsequent citation itself set forth the following: “[T]he employer did not provide the exposed sides of a stairway with temporary railings and toe board as prescribed in Section 1620. As a result, an employee was seriously injured when he fell from the exposed side of the stairway and landed approximately 11 feet below onto a concrete floor.” The citation cited section 1626, subdivision (a)(5), which is a section that does not exist. Plaintiff appealed the citation.

A hearing before an ALJ followed. The hearing occurred over four days, November 14 and 15, 2017, and September 5 and 6, 2018. On the first day of the hearing, the ALJ granted the Cal/OSHA’s request to amend the citation to refer to section 1626, subdivision (b)(5) which provides that “Unprotected sides and edges of stairway landings shall be provided with railings.” rather than nonexistent subdivision (a)(5), which according to Ronald Aruejo was a typographical error.

During the trial much of the testimony involved describing the correct characterization of the stairway within the meaning of various subsections of section 1626. At one pont the ALJ denied the Division’s mid-hearing request to amend the citation to allege a violation of section 1632, subdivision (b)(1) which requires that “Floor, roof and skylight openings shall be guarded by either temporary railings and toeboards or by covers.” And later denied the Division’s post-hearing motion to amend to allege violation of section 1626, subdivision (a)(2), which provides that ” Railings and toeboards meeting the requirements of Article 16 of these safety orders shall be installed around stairwells” and concluded the Division failed to prove the alleged violation of section 1626, subdivision (b)(5).

The Division filed a petition for reconsideration with the California Occupational Safety and Health Appeals Board which concluded the ALJ improperly denied the two requests to amend and upheld the citation based on violation of both section 1632, subdivision (b)(1) and 1626, subdivision (a)(2).

L & S Framing Inc.,filed a petition for a writ of mandate in the trial court and the trial court denied the petition. L & S Framing Inc., then filed an appeal with th California Court of Appeal which affirmed the trial court in the unpublished case of L & S Framing Inc., v Cal/SOSHA – C096386 (June 2023).

On appeal the employer asserts the trial court erred in permitting the Appeals Board to amend the citation, and asserts the Appeals Board ultimately found a violation based on two regulations that were not correctly pled.

In rejecting this assertion, the Court of Appeal noted that the Labor Code provides that the “rules of practice and procedure adopted by the appeals board shall be consistent with,” among other things, Government Code section 11507. which provides, in part: “At any time before the matter is submitted for decision, the agency may file, or permit the filing of, an amended or supplemental accusation . . . .” Thus, Government Code section 11507 contemplates amendments to accusations, and, pursuant to Labor Code section 6603, the rules of practice adopted by the Appeals Board shall be consistent with that provision.

Section 371.2, a rule of practice and procedure adopted by the appeals board, expressly addresses amendments of a citation or appeal. Among other things, it provides that a “request for an amendment that does not cause prejudice to any party may be made by a party or the Appeals Board at any time.”

“[A]mendments to pleadings in the administrative hearing context are liberally allowed.” (Calstrip Steel Corporation (Cal. OSHA, June 30, 2017, Nos. 12-R3D6-1998, 1999) 2017 CA OSHA App.Bd. Lexis 66 at p. *15.)

The employer also argued the issue of “did the location from which Mariano fell constitute a stairwell within the meaning of section 1626, subdivision (a)(2) and/or a floor opening within the meaning of section 1632, subdivision (b)(1).” Or is 1716.2, subdivision (f) the applicable regulation. That regulation requires fall protection “around all unprotected sides or edges” for work performed on floors that will later be enclosed by framed exterior walls, but only when the work is performed more than 15 feet above the floor level below. The fall here was less than 11 feet to the concrete floor below.

The Appeals Board concluded that, when plaintiff’s workers removed the railing, they “create[ed] a hole or empty space from which people or things could fall through.” The Appeals Board continued: “Mariano fell through the opening, which was unguarded and unprotected contrary to section 1632, subdivision (b)(1)’s mandate.”

Thus, the Court of Appeal concluded the Appeals Board’s construction and interpretation of section 1632, subdivision (b)(1) comports with the plain meaning of the terms used in that provision. In the particular context of workplace health and safety here at issue, our high court has reviewed the statutory structure and – noting that the relevant provisions “speak in the broadest possible terms” – has concluded that “the terms of the legislation are to be given a liberal interpretation for the purpose of achieving a safe working environment.”

Cal/OSHA May Amend Citations Before, During and After ALJ Hearings

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