DECISION: 'Having found that Respondent has engaged in certain unfair labor practices in violation of Sections 8(a)(5), (3), and (1) of the Act, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act.' UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD DIVISION OF JUDGES SAN FRANCISCO BRANCH OFFICE SUNSET CULTURAL CENTER and ANDREW HURCHALLA An Individual

 

https://drive.google.com/file/d/1eOEgBQnfBxikvfBEGogocsgNDgtUb9kn/view?usp=sharing 

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
SUNSET CULTURAL CENTER
and
ANDREW HURCHALLA
An Individual
Case 32–CA–242555
DECISION
(Pending Board Decision)
March 2, 2021

CONCLUSIONS OF LAW

1. Respondent Sunset Cultural Center (Respondent) is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.

2. International Association of Machinists and Aerospace Workers, Local Lodge 2949, AFL–CIO (the Union) is a labor organization within the meaning of Section 2(5) of the Act with 9(a) status under the Act.

3. Respondent has violated Section 8(a)(3) and (1) of the Act by prohibiting its subcontractors from employing Hurchalla to perform work at its theater facility and causing them to remove him from working on events at that facility, in each case for engaging in union and other protected conduct.

4. The foregoing unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act.

REMEDY

Having found that Respondent has engaged in certain unfair labor practices in violation of Sections 8(a)(5), (3), and (1) of the Act, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Therefore, I shall recommend that Respondent, having discriminatorily caused employee Anthony Hurchalla to be prohibited from performing work at its theater facility and causing him to be removed from that facility, should be required to restore the status quo ante by rescinding these actions and removing all references to them from Respondent’s files. Further, I shall recommend that Respondent should make Hurchalla whole for any loss of earnings and other benefits. Backpay shall be computed in accordance with Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). Respondent should be ordered to compensate the above-named employees for the adverse tax consequences, if any, of receiving lump sum backpay awards and to file a report with the Social Security Administration allocating backpay awards to the appropriate calendar quarters for each employee. Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB 101 (2014). In addition to the backpay-allocation report, Respondent must file with the Regional Director a copy of Hurchalla’s corresponding W-2 form(s) reflecting the backpay award. 

 On these findings of fact and conclusions of law and on the entire record, I issue the following recommended.

ORDER

Respondent Sunset Cultural Center, its officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Prohibiting its subcontractors from employing Anthony Hurchalla to perform work at Respondent’s theater facility.

(b) Causing its subcontractors to remove Anthony Hurchalla from working on events at Respondent’s theater facility.

(c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) Rescind the ban on allowing Anthony Hurchalla to perform work at Respondent’s theater facility and make him whole for any loss of earnings and other benefits suffered as a 5 result of his ban from working at the facility in the manner set forth in the remedy section of this decision.

(b) Compensate Anthony Hurchalla for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and file with the Regional Director for Region 32, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating his backpay award to the appropriate calendar year(s).

(c) Within 14 days’ of the date of the Board’s Order, remove from its files all references to Anthony Hurchalla’s discriminatory ban from working at Respondent’s theater facility, and notify him in writing that this has been done and that the ban will not be used against him in any way.

(d) Preserve and, within 14 days of a request following the Board’s Order, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order.

(e) Within 14 days after service by the Region, post at Respondent’s theater facility copies of the attached notice marked “Appendix.” Copies of the notice, on forms provided by the Regional Director for Region 32, after being signed by Respondent’s authorized representative, shall be posted by Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, the notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if Respondent customarily communicates with its employees by such means. Reasonable steps shall be taken by Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, Respondent has gone out of business or closed its theater operation, Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed at Respondent’s theater operation at any time since December 3, 2018.

(f) Within 21 days after service by the Region, file with the Regional Director for Region 32 a sworn certification of a responsible official on a form provided by the Region attesting to the steps that Respondent has taken to comply.

It is further ordered that the complaint allegations are dismissed insofar as they allege violations of the Act not specifically found.

Dated: Washington, D.C. March 2, 2021

Mara-Louise Anzalone
Administrative Law Judge

REFERENCE:

SUNSET CULTURAL CENTER

---

Case Number:   32-CA-242555
Date Filed:   06/03/2019
Status:  Open

Location:  Carmel, CA
Region Assigned:  Region 32, Oakland, California

Docket Activity

05/05/2021 ES Office EOT Response

04/30/2021 Exceptions to ALJD

04/30/2021 Brief in Support of Exceptions

03/18/2021 ES Office EOT Response

03/02/2021 Order Transferring Proceeding to the Board

03/02/2020 Administrative Law Judges Decision

03/20/2020 Post-Hearing Brief to ALJ

03/19/2020 Post-Hearing Brief to ALJ

01/30/2020 Administrative Law Judges Order

12/23/2019 Administrative Law Judges Order

PUBLIC RECORDS ACT (PRA) LOG MARCH 2020: PRA 2020-027

REQUEST NUMBER 2020-027

REQUEST DATE 3/16/2020

STATUS

COMPLETED DATE 6/11/2020

REQUESTOR Paterson

INFORMATION REQUESTED Electronic copies of correspondence between the City of Carmel-by-the-Sea and Sunset Cultural Center, Inc. between February 20, 2019 and the present on any and all topics.

Correspondence between Christine Sandin, Executive and Artistic Director, Board of Trustee members, Sunset Center, and the City regarding issues pertaining to non-infrastructure city-owned physical building city responsibilities.

Issue pertaining to such items as CAL/OSHA Citation and Notification of Penalty and Settlement Order, NLRB claim, DLSA overtime wage claim settlement, et. cetera

https://drive.google.com/file/d/1UCObaEau3eyW0EeoN-VmTvlFxY5MpxxC/view?usp=sharing

PRA 2020-027 City Response

UNITED STATES OF AMERICA NATIONAL LABOR RELATIONS BOARD REGION 32, SUNSET CULTURAL CENTER and ANDREW HURCHALLA, an Individual (CASE NO. 32-CA-242555): GENERAL COUNSEL’S BRIEF TO THE ADMINISTRATIVE LAW JUDGE & CLOSING BRIEF OF RESPONDENT SUNSET CULTURAL CENTER

ABSTRACT: RE: UNITED STATES OF AMERICA NATIONAL LABOR RELATIONS BOARD REGION 32, SUNSET CULTURAL CENTER and ANDREW HURCHALLA, an Individual (CASE NO. 32-CA-242555), the NATIONAL LABOR RELATIONS BOARD SUNSET CULTURAL CENTER Case page is reproduced; the document copies of GENERAL COUNSEL’S BRIEF TO THE ADMINISTRATIVE LAW JUDGE by Lelia M. Gomez, Esq., Counsel for the General Counsel, National Labor Relations Board, Region 32, dated March 20, 2020 and the CLOSING BRIEF OF RESPONDENT SUNSET CULTURAL CENTER by Rona P. Layton, Layton Law Firm, submitted on March 19, 2020, are embedded. The CONCLUSION of the GENERAL COUNSEL’S BRIEF TO THE ADMINISTRATIVE LAW JUDGE states: Based on the forgoing, Counsel for the General Counsel respectfully requests that the Administrative Law Judge issue a recommended order requiring Respondent to fully remedy the above-described violation, rescind its permanent “do not dispatch” status against Hurchalla, cease and desist from further unlawful conduct, post the proposed Notice to Employees at Respondent’s facility, and order such other relief as may be necessary and appropriate to effectuate the policies and purpose of the Act. And the CONCLUSION of the CLOSING BRIEF OF RESPONDENT SUNSET CULTURAL CENTER states: For all of those reasons, Respondent Goodwill Central Coast requests that the complaint in this case be dismissed.

 

SUNSET CULTURAL CENTER

Case Number: 32-CA-242555

Location: Carmel, CA

Date Filed: 06/03/2019

Region Assigned: Region 32, Oakland, California

Status: Open

Docket Activity

Date	Document	Issued/Filed By
03/20/2020	Post-Hearing Brief to ALJ	Counsel for GC / Region
03/19/2020	Post-Hearing Brief to ALJ	Employer
01/30/2020	Administrative Law Judges Order	NLRB - ALJ
12/23/2019	Administrative Law Judges Order	NLRB - ALJ
10/29/2019	RD Order to Reschedule Hearing*	NLRB - GC
10/24/2019	RD Order to Reschedule Hearing*	NLRB - GC
09/15/2019	Answer to Complaint*	Charged Party / Respondent
09/03/2019	Complaint and Notice of Hearing*	NLRB - GC
09/03/2019	Notice of Hearing in ULP Case*	NLRB - GC
06/03/2019	Initial Letter to Charged Party*	NLRB - GC
06/03/2019	Initial Letter to Charging Party*	NLRB - GC

The Docket Activity list does not reflect all actions in this case.

* This document may require redactions before it can be viewed. To obtain a copy, please file a request through our FOIA Branch.

Allegations

·     8(a)(3) Discharge (Including Layoff and Refusal to Hire (not salting))

Participants

Participant	Address	Phone
Charged Party / Respondent Legal Representative RONA LAYTON LAYTON LAW FIRM	111 N Market St Ste 300 San Jose, CA 95113-1116	(408)892-9870
Charged Party / Respondent Employer SUNSET CULTURAL CENTER	P.O. Box 1950 Carmel By The Sea, CA 93921	(831)620-2040
Charging Party Individual

SOURCE: NATIONAL LABOR RELATIONS BOARD

REFERENCE:

NATIONAL LABOR RELATIONS BOARD

Basic Guide to the National Labor Relations Act

General Principles of Law Under the Statute and Procedures of the National Labor Relations Board

Unfair Labor Practices of Employers

Section 8(a)(3)—Discrimination Against Employees. Section 8(a)(3) makes it an unfair labor practice for an employer to discriminate against employees “in regard to hire or tenure of employment or any term or condition of employment” for the purpose of encouraging or discouraging membership in a labor organization. In general, the Act makes it illegal for an employer to discriminate in employment because of an employee’s union or other group, activity within the protection of the Act. A banding together of employees, even in the absence of a formal organization, may constitute a labor organization for purposes of Section 8(a)(3). It also prohibits discrimination because an employee has refrained from taking part in such union or group activity except where a valid union-security agreement is in effect. Discrimination within the meaning of the Act would include such action as refusing to hire, discharging, demoting, assigning to a less desirable shift or job, or withholding benefits.

The union security exception to Section 8(a)(3). As previously noted, Section 8(a)(3) provides that an employee may be discharged for failing to make certain lawfully required payments to the exclusive bargaining representative under a lawful union-security agreement. For a fuller discussion of this issue, see pages 2–3, above.

Even when there is a valid union-security agreement in effect, an employer may not pay the union the dues and fees owed by its employees. The employer may, however, deduct these amounts from the wages of its employees and forward them to the union for each employee who has voluntarily signed a dues “checkoff” authorization. Such checkoff authorization may be made irrevocable for no more than a year. But employees may revoke their checkoff authorizations after a Board-conducted election in which the union’s authority to maintain a union-security agreement has been withdrawn.

The Act does not limit employer’s right to discharge for economic reasons. This section does not limit an employer’s right to discharge, transfer, or layoff an employee for genuine economic reasons or for such good cause as disobedience or bad work. This right applies equally to employees who are active in support of a union and to those who are not.

In situations in which an employer disciplines an employee both because the employee has violated a work rule and because the employee has engaged in protected union activity, the discipline is unlawful unless the employer can show that the employee would have received the same discipline even if he or she had not engaged in the protected union activity.

An employer who is engaged in good-faith bargaining with a union may lock out the represented employees, sometimes even before impasse is reached in the negotiations, if it does so to further its position in bargaining. But a bargaining lockout may be unlawful if the employer is at that time unlawfully refusing to bargain or is bargaining in bad faith. It is also unlawful if the employer’s purpose in locking out its employees is to discourage them in their union loyalties and activities, that is, if the employer is motivated by hostility toward the union. Thus, a lockout to defeat a union’s efforts to organize the employer’s employees would violate the Act, as would the lockout of only those of its employees who are members of the union. On the other hand, lockouts are lawful that are intended to prevent any unusual losses or safety hazards that would be caused by an anticipated “quickie” strike. And a whipsaw strike against one employer engaged in multiemployer bargaining justifies a lockout by any of the other employers who are party to the bargaining.

Examples of violations of Section 8(a)(3). Examples of illegal discrimination under Section 8(a)(3) include:

• Discharging employees because they urged other employees to join a union.

• Refusing to reinstate employees when jobs they are qualified for are open because they took part in a union’s lawful strike.

• Granting of “superseniority” to those hired to replace employees engaged in a lawful strike.

• Demoting employees because they circulated a union petition among other employees asking the employer for an increase in pay.

• Discontinuing an operation at one plant and discharging the employees involved followed by opening the same operation at another plant with new employees because the employees at the first plant joined a union.

• Refusing to hire qualified applicants for jobs because they belong to a union. It would also be a violation if the qualified applicants were refused employment because they did not belong to a union, or because they belonged to one union rather than another.

GENERAL COUNSEL’S BRIEF TO THE ADMINISTRATIVE LAW JUDGE

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

REGION 32

SUNSET CULTURAL CENTER and ANDREW HURCHALLA, an Individual

Case 32-CA-242555

Lelia M. Gomez, Esq.

Counsel for the General Counsel

National Labor Relations Board, Region 32

CLOSING BRIEF OF RESPONDENT SUNSET CULTURAL CENTER

UNITED STATES OF AMERICA

NATIONAL LABOR RELATIONS BOARD

REGION 32

SUNSET CULTURAL CENTER and ANDREW HURCHALLA, an Individual

CASE NO. 32-CA-242555

Rona P. Layton

Layton Law Firm

United States Government

NATIONAL LABOR RELATIONS BOARD

Division of Judges

901 Market Street — Suite 485

San Francisco, CA 94103-1779

Phone (415) 356-5255 Fax 415.356.5254

December 20, 2019

 United States Government

NATIONAL LABOR RELATIONS BOARD

Division of Judges

901 Market Street — Suite 485

San Francisco, CA 94103-1779

Phone (415) 356-5255 Fax 415.356.5254

January 30, 2020

On 2019: Lininger v. Pfleger et al., Sunset Cultural Center, Inc. (SCC) $17,700.00 Cal/OSHA Penalty, & Harary “Nameless Bafoon (sic)" Fiasco

"...2019 was a fantastic year in the Village,..." 

CR

To paraphrase Kimberly A. Strassel (2019’s Adult of the Year, WSJ, Friday, January 3, 2020), it is the rare official who does not circle the wagons, also “the rare person willing to subject his institution to scrutiny for its own good-and that of the country” (city).

SETTLEMENT ORDER Inspection No. 1380281 BEFORE THE STATE OF CALIFORNIA OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD In the Matter of the Appeal of: SUNSET CULTURAL CENTER, INC.: TOTAL PENALTY $17,700.00

ABSTRACT: BEFORE THE STATE OF CALIFORNIA OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD, In the Matter of the Appeal of: SUNSET CULTURAL CENTER, INC., Inspection No. 1380281, SETTLEMENT ORDER , Dated: 12/05/2019, Administrative Law Judge Martin Fassler: FINAL PENALTY ASSESSED Citation 1 $1,500.00 (PENALTY PROPOSED BY DOSH IN CITATION $5,000.00) and Citation 2 $16,200.00 (PENALTY PROPOSED BY DOSH IN CITATION $16,200.00), Total Penalty $17,700.00. The Settlement Order document copy is embedded.

STATE OF CALIFORNIA 

DEPARTMENT OF INDUSTRIAL RELATIONS
OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
2520 VENTURE OAKS WAY, SUITE 300
SACRAMENTO, CA 95833
ATTN: Christine Sandin
Sunset Cultural Center, Inc.
P.O. Box 1950
Carmel By The Sea, CA 93921
ATTN: Gary Rubell
Compliance Matters Consulting
24053 Via Vizcaya
Valencia, CA 91354
BEFORE THE
STATE OF CALIFORNIA
OCCUPATIONAL SAFETY AND HEALTH
APPEALS BOARD
In the Matter of the Appeal of:
SUNSET CULTURAL CENTER, INC.
P.O. BOX 1950
CARMEL BY THE SEA, CA 93921
Employer
Inspection No. 1380281

SETTLEMENT ORDER

REFERENCE:
Citation 1 Item 1 Type of Violation: Regulatory
Title 8 CCR Section 342( a)
(a) Every employer shall report immediately by telephone or telegraph to the nearest District Office of the Division of Occupational Safety and Health any serious injury or illness, or death, of an employee occurring in a place of employment or in connection with any employment.
Immediately means as soon as practically possible but not longer than 8 hours after the employer knows or with diligent inquiry would have known of the death or serious injury or illness. If the employer can demonstrate that exigent circumstances exist, the time frame for the report may be made no longer than 24 hours after the incident.
Serious injury or illness is defined in section 330(h), Title 8, California Administrative Code.

Employer failed to timely report to the Division the serious injury suffered by an employee who fell onto sheet metal on February 16. 2019. The employer reported the serious injury on February 20, 2019.

Date By Which Violation Must be Abated: Corrected During Inspection
Proposed Penalty: $5000.00

Citation 2 Item 1 Type of Violation: Serious
Title 8 CCR Section 3203(a)
(a) Effective July 1, 1991 , every employer shall establish, implement and maintain an effective Injury and Illness Prevention Program (Program). The Program shall be in writing and, shall, at a minimum:

(4) Include procedures for identifying and evaluating work place hazards including scheduled periodic inspections to identify unsafe conditions and work practices. Inspections shall be made to identify and evaluate hazards:
(A) When·the Program is first established;
(B) Whenever new substances, processes, procedures, or equipment are introduced to the workplace that represent a new occupational safety and health hazard; and
(C) Whenever the employer is made aware of a new or previously unrecognized hazard.
(6) Include methods and/ or procedures for correcting unsafe or unhealthy conditions, work practices and work procedures in a timely manner based on the severity of the hazard:
(A) When observed or discovered; and,
(B) When an imminent hazard exists which cannot be immediately abated without endangering employee(s) and/ or property, remove all exposed personnel from the area except those necessary to correct the existing condition. Employees necessary to correct the hazardous condition shall be provided the necessary safeguards.

(7) Provide training and instruction:

(A) When the Program is first established;
(B) Whenever new substances, processes, procedures, or equipment are introduced to the workplace that represent a new occupational safety and health hazard; and
(C) Whenever the employer is made aware of a new or previously unrecognized hazard.
(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.

Prior to and during the course of the investigation, including but not limited to February 16, 2019, the employer failed to establish, implement. and maintain an effective Injury and Illness Prevention Program in the following instances:

Instance #l
The employer failed to provide training and instructions to all employees on the following:

Injury and Illness Prevention Program
Personal Protective Equipment
General Safety and Health
Elevated Work Platform
Fall Protection

The employer did not provide training and instruction documentation upon request.
(Reference Title 8 CCR 3203(a) (7)

Instance #2

The employer failed to ensure hazards identify and evaluate during periodic inspections conducted were corrected when observed or discovered. (Reference Title 8 CCR 3203(a)(4) and (6))

Date By Which Violation Must be Abated: July 03, 2019

Proposed Penalty: $16200.00

STATE OF CALIFORNIA DIVISION OF OCCUPATIONAL SAFETY AND HEALTH (DOSH): Sunset Cultural Center - Inspection 1380281

ABSTRACT:  The Inspection Report. State of California Division of Occupational Safety and Health (DOSH): Sunset Cultural Center - Inspection 1380281, including CITATION AND NOTIFICATION OF PENALTY and NOTICE OF PROPOSED PENALTIES document copy is embedded.

Inspection Report

State of California Division of Occupational Safety and Health (DOSH):

Sunset Cultural Center - Inspection 1380281

BEFORE THE STATE OF CALIFORNIA OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD In the Matter of the Appeal of: SUNSET CULTURAL CENTER, INC. Employer (Inspection No. 1380281): NOTICE OF DOCKETED APPEAL & AMENDED NOTICE OF EXPEDITED CONFERENCES AND HEARING

ABSTRACT: The appeal of SUNSET CULTURAL CENTER, INC. “has been approved and docketed.  However it remains in the Expedited category and has been scheduled for expedited conferences and hearings," according to Phyllis Eldredge, OSHAB Headquarters, Sacramento. The Notice of Docketed Appeal and Amended Notice of Expedited Conferences and Hearings document copies are embedded.  Importantly, SUNSET CULTURAL CENTER, INC Appeal of: CITATION AND NOTIFICATION OF PENALTY CITATION No.: 1 ITEM No.: 1 __ NOTIFICATION OF FAILURE TO ABATE ALLEGED VIOLATION __ SPECIAL ORDER / ORDER TO TAKE SPECIAL ACTION Specific ground(s) for this appeal are: X The safety order was not violated. X The proposed penalty is unreasonable. CITATION AND NOTIFICATION OF PENALTY CITATION No.: 2 ITEM No.: 1 __ NOTIFICATION OF FAILURE TO ABATE ALLEGED VIOLATION __ SPECIAL ORDER / ORDER TO TAKE SPECIAL ACTION Specific ground(s) for this appeal are: X The safety order was not violated. X The classification (i.e. serious, willful, repeat) is incorrect. X The proposed penalty is unreasonable.

NOTICE OF DOCKETED APPEAL

AMENDED NOTICE OF EXPEDITED CONFERENCES AND HEARING

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

1. A status conference will be conducted by telephone with:

Judge Martin Fassler on August 26, 2019 at 9:30 a.m. 2. A prehearing conference will be conducted by telephone with: Judge Martin Fassler on October 14, 2019 at 1:30 p.m. 3. A hearing has been set at: Location: 1515 Clay Street, Rm 1303                 Oakland, CA 94612 Date and time: December 3, 2019 at 9:00 a.m. Judge: Martin Fassler

STATE OF CALIFORNIA DEPARTMENT OF INDUSTRIAL RELATIONS DIVISION OF OCCUPATIONAL SAFETY AND HEALTH, CITATION AND NOTIFICATION OF PENALTY PACKAGE & EXPEDITED PROCEEDINGS LETTER TO Sunset Cultural Center, Inc., Summary of Penalties for Inspection Number 1380281 Citation 1 Item 1, Regulatory $5000.00 & Citation 2 Item 1, Serious $16,200.00 TOTAL PROPOSED PENALTIES $21200.00

ABSTRACT: A SUMMARY OF STATE OF CALIFORNIA DEPARTMENT OF INDUSTRIAL RELATIONS DIVISION OF OCCUPATIONAL SAFETY AND HEALTH, CITATION AND NOTIFICATION OF PENALTY TO: Sunset Cultural Center, Inc. is featured. The 10-page CITATION AND NOTIFICATION OF PENALTY PACKAGE and EXPEDITED PROCEEDINGS LETTER TO Sunset Cultural Center, Inc. document copies are embedded.

SUMMARY OF STATE OF CALIFORNIA DEPARTMENT OF INDUSTRIAL RELATIONS DIVISION OF OCCUPATIONAL SAFETY AND HEALTH, CITATION AND NOTIFICATION OF PENALTY TO: Sunset Cultural Center, Inc. 

State of California

Department of Industrial Relations

Division of Occupational Safety and Health

Fremont District Office

CITATION AND NOTIFICATION OF PENALTY

To:

Sunset Cultural Center, Inc. and its successors

P.O.  Box 1950

Carmel. CA 93921

Inspection #: 1380281

Inspection Date (s): 02/22/2019-06/06/2019

Issuance Date: 06/10/2019

Abstract

What was employee doing just before incident occurred?

EE# 1, a Production Manager for a community performing arts center, was working by himself near the back entrance of the stage room. There was to be a musical venue event later in the evening, and EE#l was moving equipment and allocating space for musicians to put down their instruments and personal belongings.

What happened?

The accident occurred at approx, !2:20PM on 2/16/2019 in Carmel-by-the-Sea, CA. DOSH was notified by the I-IR Director on 2/20/2019 at 4:57PM, and CSI-10 inspector was present on location at 1 0:30AM on 2/22/2019. EE#1 had driven a Genie GS-2632 electric scissor lift from inside the Stage Room out of the building doors, and parked the vehicle adjacent to an outdoor Air Conditioning unit what was mounted on a 3-inch concrete square pad. EE#l wanted to temporarily place the vehicle outside so other musicians can put their belongings near where the vehicle was parked. As it was windy and started to rain, EE# 1 used a black poly tarp to cover the upper part of the scissor lift. As EE#l was step down from the scissor lift, his feet slipped, and he fell on top of one of the four corners of air conditioning unit that had exposed L-shaped metal posts, resulting in a laceration to EE#l upper left thigh. EE#l went back in the Stage Room, where two stage technicians aided him and called for emergency medical services.

What was the injury or illness?

EE#l sustained deep laceration to his upper left thigh which required 8 stitches. He was taken to Community Hospital of Monterey Peninsula at 1:00 PM 2/16/2019 and was discharged at 5:00PM 2/17/2019.

What was the object or substance that directly harmed the employee?

The exposed L-shaped metal support posts around the corners of the air conditioning unit caused an impalement injury to EE#l.

Victim 1

Injured/Deceased Name: Gary Brunclik

Citation and Notification of Penalty

Company Name: Sunset Cultural Center, Inc.

Citation 1 Item 1 Type of Violation: Regulatory

Title 8 CCR Section 342( a)

(a) Every employer shall report immediately by telephone or telegraph to the nearest District Office of the Division of Occupational Safety and Health any serious injury or illness, or death, of an employee occurring in a place of employment or in connection with any employment. Immediately means as soon as practically possible but not longer than 8 hours after the employer knows or with diligent inquiry would have known of the death or serious injury or illness. If the employer can demonstrate that exigent circumstances exist, the time frame for the report may be made no longer than 24 hours after the incident.

Serious injury or illness is defined in section 330(h), Title 8, California Administrative Code.

Employer failed to timely report to the Division the serious injury suffered by an employee who fell onto sheet metal on February 16, 2019. The employer reported the serious injury on February 20, 2019.

Date By Which Violation Must Be Abated: Corrected During Inspection

Proposed Penalty: $5000.00

Citation 2 Item l Type of Violation: Serious

Title 8 CCR Section 3203( a)

(a) Effective July 1, 1991, every employer shall establish, implement and maintain an effective Injury and Illness Prevention Program (Program). The Program sholl be in writing and, shall, at a minimum:

(4) Include procedures for identifying and evaluating work place hazards including scheduled periodic inspections to identify unsafe conditions and work practices. Inspections shall be made to identify and evaluate hazards:

(A) When·the Program is first established;

(B) Whenever new substances, processes, procedures, or equipment are introduced to the workplace that represent a new occupational safety and health hazard; and

(C) Whenever the employer is made aware of a new or previously unrecognized hazard.

(6) Include methods and/or procedures for correcting unsafe or unhealthy conditions, work practices and work procedures in a timely manner based on the severity of the hazard:

(A) When observed or discovered; and,

(B) When an imminent hazard exists which cannot be immediately abated without endangering employee(s) and/or property, remove all exposed personnel from the area except those necessary to correct the existing condition. Employees necessary to correct the hazardous condition shall be provided the necessary safeguards.

(7) Provide training and instruction:

(A) When the Program is first established;

(B) Whenever new substances, processes, procedures, or equipment are introduced to the workplace that represent a new occupational safety and health hazard; and

(C) Whenever the employer is made aware of a new or previously unrecognized hazard.

(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.

Prior to and during the course of the investigation, including but not limited to February 16, 2019, the employer failed to establish, implement, and maintain an effective Injury and Illness Prevention Program in the following instances:

Instance #I

The employer failed to provide training and instructions to all employees on the following:

Injury and illness Prevention Program

Personal Protective Equipment

General Safety and Health

Elevated Work Platform

Fall Protection

The employer did not provide training and instruction documentation upon request

(Reference Title 8 CCR 3203(a) (7)

Instance #2

The employer failed to ensure hazards identify and evaluate during periodic inspections conducted were corrected when observed or discovered. (Reference Title 8 CCR 3203(a) (4) and (6))

Date By Which Violation Must Be Abated: .July 03, 2019

Proposed Penalty: $16200.00

NOTICE OF PROPOSED PENALTIES

Company Name: Sunset Cultural Center, Inc.

Summary of Penalties for Inspection Number 1380281

Citation 1 Item 1, Regulatory  $5000.00

Citation 2 Item 1, Serious     $16,200.00

TOTAL PROPOSED PENALTIES $21200.00

STATE OF CALIFORNIA

DEPARTMENT OF INDUSTRIAL RELATIONS

DIVISION OF OCCUPATIONAL SAFETY AND HEALTH

CITATION AND NOTIFICATION OF PENALTY PACKAGE

TO: Sunset Cultural Center, Inc.



EXPEDITED PROCEEDINGS LETTER
TO: Sunset Cultural Center, Inc.

REFERENCE:
The show must go on at the Sunset Center in Carmel after safety violations and fines.
Pam Marino
MONTEREY COUNTY WEEKLY
Jul 18, 2019