Sierra Pack’g v. Chief Ad. Off’r of NOSHA (Nev. Ct. App. – Nov. 16, 2017)
29 C.F.R. § 1910.132(f) requires employers to provide training regarding the use of personal protective equipment to employees exposed to hazards necessitating the use of such equipment. Sierra Packaging and Converting, LLC, argued the Nevada Occupational Safety and Health Administration improperly cited it for violating 29 C.F.R. § 1910.132(f), as no facts established that the subject employees were actually exposed to such a hazard in the course of their work or were required by that regulation to have fall protection training.
Nevada Occupational Safety and Health Administration (NOSHA) received an anonymous complaint alleging that Sierra Packaging and Converting, LLC (Sierra Packaging), violated NOSHA’s health and safety regulations by allowing employees to climb on warehouse racks without personal protection equipment (PPE). Pictures of three employees on the racking without PPE accompanied the complaint.
Cox, an enforcement officer for NOSHA, investigated the complaint. The men in the pictures were three temporary maintenance personnel hired through a subcontractor and working under maintenance manager Tintinger. At the time, Sierra Packaging had just moved to a new location and hired the temporary help for the move. Sierra Packaging also hired another company to install the warehouse racking at its new location, but that company failed to install metal stabilization plates on the racking.
The three employees, assisted by a company interpreter, spoke to Cox regarding the photograph depicting them on the racking without PPE. The employees stated that they had been instructed to install the metal plates that were missing in the racking. Two employees admitted that they were not supposed to climb on the racking; one stated that he had actually been standing on a ladder next to the racking and the other did not say whether he had been standing on the racking. The third employee, however, admitted to Cox that he was in fact standing on the racking without PPE. All three were visibly nervous. One of the employees asserted Tintinger ordered them onto the racks to complete the task and told them to use ladders and PPE. But another stated that the subcontractor who hired the three men ordered them to install the metal plates. The third employee’s statement was silent on this point.
When Cox inquired about the PPE, the men stated that the employer provided them with PPE, and one of them retrieved a harness system and shop pack. At least one employee indicated he had undergone safety training provided in Spanish. Although the three men knew how to don and inspect the PPE, Cox discovered that none of them understood how to utilize the equipment.
Cox also interviewed management, including Tintinger, and learned that management did not know the PPE’s limitations. At the conclusion of the investigation, Cox recommended NOSHA cite Sierra Packaging for a “serious” violation of 29 C.F.R. § 1910.132(f) for failing to provide adequate training regarding PPE. Thereafter, NOSHA issued a citation with notification of penalty for $3,825.
Sierra Packaging contested the citation and the Nevada Occupational Safety and Health Review Board (the Board) held an evidentiary hearing. NOSHA presented evidence, including the anonymous complaint accompanied with pictures of the three men standing on the racking, along with Cox’s testimony and report. NOSHA argued that “[t]he only thing that matters is that these employees . . . had the fall protection equipment but they didn’t know how to properly use it.” Conversely, Sierra Packaging generally denied NOSHA’s allegations, arguing the citation was improper because the employees did not actually need PPE to perform their job duties. But, Sierra Packaging acknowledged that maintenance workers sometimes needed PPE, and Tintinger at one point admitted that he may have directed the three employees to install the metal plates on the racking. In its written decision concluding Sierra Packaging failed to adequately train the employees, the Board focused on the employees’ access to the PPE. The Board found that Sierra Packaging’s evidence was not credible, and upheld NOSHA’s citation. In resolving Sierra Packaging’s subsequent petition for judicial review, the district court agreed with the Board’s conclusion and held that the “Board has taken the reasonable stance that when an employer provides fall protection equipment, it must also provide the training on the safe use of such equipment.” Sierra Packaging appealed.
Sierra Packaging argued that the Board disregarded the plain language of 29 C.F.R. § 1910.132(f)(1), a regulation mandating training for employees required to use PPE. On appeal, Sierra Packaging did not dispute that the three employees were inadequately trained; rather, Sierra Packaging argued that no facts established that the employees were required to be trained under 29 C.F.R. § 1910.132(f). NOSHA countered that, because the evidence established that Tintinger instructed the workers to use PPE, and the employees had access to PPE, 29 C.F.R. § 1910.132(f) required that the employees must also be trained in using PPE.
29 C.F.R. § 1910.132 in relevant part, states:
(a) Application. Protective equipment, including personal protective equipment . ‘ shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment[.]
. . .
(d) Hazard assessment and equipment selection.
(1) The employer shall assess the workplace to determine if hazards are present, or are likely to be present, which necessitate the use of personal protective equipment (PPE).
. . .
(1) The employer shall provide training to each employee who is required by this
section to use PPE. Each such employee shall be trained to know at least the following:
. . .
(iv) The limitations of the PPE.
The Court of Appeals of Nevada explained that the plain language of this regulation mandates training when the employee is “required by this section” to use PPE. Under subsections (a) and (d), PPE is required as “necessary” to protect against hazards. Accordingly, the citation was proper if the employees’ work exposed them to a hazard that required the use of PPE, if the employees were exposed to heights that necessitated the use of fall protection equipment.
29 C.F.R. § 1910.132 does not, however, clarify what evidence NOSHA must present to show exposure to the hazard. The Court noted that although Nevada’s appellate courts had not yet addressed this question, other jurisdictions have held that, where a regulation requires exposure to a hazard, evidence of actual exposure is not required so long as the record demonstrates exposure was reasonably predictable. See Or. Occupational Safety & Health Div. v. Moore Excavation, Inc., 307 P.3d 510 (Or. Ct. App. 2013).
In Moore Excavation, for example, the Oregon Occupational Safety and Health Division cited a company under 29 C.F.R. § 1926.1053(b)(16) for failing to tag as defective a damaged ladder and remove it from service. In reviewing the administrative law judge’s decision to vacate the citation, the Oregon Court of Appeals addressed the burden of proof for that state’s OSHA to show exposure to the hazard. The appeals court relied on the “rule of access” promulgated by the federal Occupational Safety and Health Review Committee, which the appeals court held ultimately requires, simply, that the agency prove that it was reasonably predictable that one or more employees had been, were, or would be exposed to the hazard presented by the violative condition at issue. The Moore court noted that this standard requires more than a mere showing of access to the hazard, but less than proof of actual exposure.
Similarly, the United States Court of Appeals for the Fourth Circuit, while not using the term “rule of access,” explained that, in establishing an exposure to a hazard under 29 C.F.R. § 1926.501(b)(1), OSHA must show a reasonable predictability that the employees either were, or would be, in the “zone of danger.” N&N Contractors, Inc. v. Occupational Safety & Health Review Comm’n, 255 F.3d 122, 127 (4th Cir. 2001). The United States Court of Appeals for the Ninth Circuit likewise addressed employee exposure to the “zone of danger,” concluding that proof of actual exposure to the danger was unnecessary to establish a violation of 29 C.F.R. § 1926.651(c)(2) where the evidence showed it was reasonably predictable that the employees would be exposed to the danger. R. Williams Constr. Co. v. Occupational Safety & Health Review Comm’n, 464 F.3d 1060, 1064 (9th Cir. 2006).
The Court explained that although these cases do not address 29 C.F.R. § 1910.132, the cases suggest a common theme that may be applied to that regulation: where a rule requires OSHA to demonstrate employee exposure to a hazard, OSHA meets its burden of proof by showing that it is reasonably predictable that the employee was or would be exposed to the hazard in the course of the employee’s work. Importantly, this rule comports with the language of 29 C.F.R. § 1910.132, a regulation focusing on the potential for and probability of employee exposure to hazards, rather than actual exposure. The Court therefore agreed with the analysis set forth in Moore Excavation and held that where NOSHA is required to show exposure to the hazard, NOSHA meets its burden of proof by demonstrating that it is reasonably predictable that the employees were or would be exposed to the hazard.
The Court determined that in the present case, the Board employed an incorrect standard in rendering the underlying decision. Under 29 C.F.R. § 1910.132, the citation was proper if the employees’ work exposed them to a hazard that required the use of PPE. The Court explained that pursuant to the “rule of access,” NOSHA could meet its burden of proof here by showing it was reasonably predictable that the employees were or would be exposed to hazardous heights necessitating the use of PPE. Yet instead of focusing on exposure to heights necessitating the use of PPE, the Board predicated its decision on the employees’ access to the PPE and concluded this access triggered 29 C.F.R. § 1910.132(f)’s training requirement. Under the “rule of access,” however, this training requirement only comes into play if it was reasonably predictable that the employees were or would be exposed to hazardous heights requiring the use of PPE. As a result, the Court rejected the Board’s interpretation of 29 C.F.R. § 1910.132 and concluded that its resulting decision was grounded in an error of law that, in this case, infected the proceedings and consequently prejudiced Sierra Packaging’s substantial rights.
Thus, the Court found that pursuant to the “rule of access” it had now adopted, the propriety of the citation against Sierra Packaging needed to be reexamined under the reasonable predictability standard, but this analysis must be carried out by the Board in the first instance, as it is well established that courts may not reweigh the evidence in reviewing an administrative decision. See Nellis Motors v. State, Dep’t of Motor Vehicles, 124 Nev. 1263, 1269-70, 197 P.3d 1061, 1066 (2008) (providing that an appellate court reviewing an administrative decision will not reweigh the evidence or reassess witness credibility). Accordingly, the Court reversed and remanded the case to the district court with instructions to remand the matter to the Board to reevaluate the evidence and reconsider its decision under the standard set forth in its opinion.