BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

 

In the Matter of the Appeal of:

LONE PINE NURSERIES

1690 Via Cancion

San Marcos, CA 92069

                              Employer

 

 

Docket No.

00-R3D2-2817

 

DECISION AFTER

RECONSIDERATION


The Occupational Safety and Health Appeals Board (Board), acting pursuant to authority vested in it by the California Labor Code and having granted the petition for reconsideration filed by the Division of Occupational Safety and Health [Division] in the above-entitled matter, makes the following decision after reconsideration.

JURISDICTION

From August 16 through September 16, 1999, a representative of the Division conducted a program inspection at two places of employment maintained by Employer at 1690 Via Cancion, San Marcos, California, and on El Camino Real, in Carlsbad, California (the sites). The Division issued to Employer a citation alleging: a general violation of section1 3203(a) [failure to have an operative IIPP] with a proposed civil penalty of $85; a general violation of section 3457(c)(1)(C) [single-use drinking cups] with a proposed civil penalty of $750; a general violation of section 3457(c)(3)(G)(3) [soap and single-use towels] with a proposed civil penalty of $750; a regulatory violation of section 3457(c)(3)(G)(4) [posted sign for hand washing water] with a proposed civil penalty of $175.00; and a general violation of section 3439(a) [no first-aid kit] with a proposed civil penalty of $85.

Employer filed a timely appeal contesting the existence and classification of the alleged violations and the reasonableness of the proposed penalties.

On March 27, 2001, a hearing was held before an administrative law judge (ALJ), in San Diego, California. Employer was represented by Eugene Carl, owner. Albert Cardenas, staff counsel, represented the Division.

On April 12, 2001, the ALJ issued a decision denying the appeal from Item 1 and affirming the proposed civil penalty of $85, and further, granting Employer's appeal with respect to Items 2 through 5 and setting aside the proposed civil penalties thereon.

On May 17, 2001, the Division filed a petition for reconsideration with respect to the four items (Item Nos. 2 through 5) in which the ALJ granted Employer’s appeal on the grounds that the Division failed to establish the following: that Employer was an agricultural employer, that Employer was engaged in an agricultural operation, and that the activities involved hand-labor operations. The Board granted the Division’s petition on July 6, 2001. On July 11, 2001, Employer submitted a letter response to the petition.

EVIDENCE

Wendy Carleson [Carleson], an associate industrial hygienist for the Division, testified that on August 16, 1999, she commenced an inspection pursuant to the Agricultural Safety and Heath Inspection Program (ASHIP) at two locations where Employer maintained nurseries. She testified that she lived in the “north county area” which is an agricultural area with nurseries and that, on August 13, 1999, she saw two workers in the field at the El Camino Real (Carlsbad) nursery site. The two workers did not speak English so she left her business card with a request that they pass it on to their boss.

On August 16, 1999, in response to Carleson’s request for the workers’ boss to contact her, Carleson received a phone call from Eugene Carl [Carl], the owner. Carleson informed Carl of her desire to inspect the premises at Employer’s nursery sites to which he consented. Carleson subsequently met Carl at an office located at Employer’s San Marcos nursery site. Carleson proceeded with her inspections at Employer’s two nursery sites at El Camino Real (Carlsbad) and San Marcos.

During the opening conference with Employer, Carleson requested Employer’s Injury and Illness Prevention Program (IIPP). Carl indicated that he did not have a written program, nor did Employer subsequently produce one prior to issuance of the citation.

According to Carleson, Employer was “a wholesale grower of trees and shrubs,” and she was informed by Carl that Employer had been in business for twelve years.

During Carleson’s inspection of Employer's San Marcos nursery on August 17, 1999, she spoke with two workers at the main office who told her that they obtained water from a spigot in the field area. During a closing conference, Carl did not deny that the workers drank from a hose or claim that there were single-use drinking cups at the site. Carleson testified in a response to the ALJ’s question regarding what she observed the workers doing that the workers were: “[m]aintaining the nursery--trees and shrubs, watering, rotating them, … working outside.” She also testified that she observed two workers at each of the two locations of Employer’s nursery business and that the workers were doing the same thing at both locations.

At Employer's San Marcos nursery, Carleson observed that there was no hand-washing facility with soap or single-use towels located in proximity to a pit toilet facility. The men indicated that they washed their hands from a hose in the field. Although there was water at a sink in the office trailer in the center of the nursery, they rarely went to the trailer and did not use the sink. The work area was “a little walk” from the office trailer. There was no signage indicating that water was for hand-washing purposes only.

At Employer's Carlsbad nursery, Carleson indicated that there was also no signage at the hand-washing facility. Additionally, there was no first-aid kit or materials at the site, which was isolated and without a means to communicate with Employer's main office. Carlson did not ask Carl if he had a first-aid kit in his truck although she asked him about the availability of a first-aid kit at the Carlsbad site.

ISSUES

1. Did the Division prove that Employer was engaged in an “Agricultural Operation” within the meaning of sections 3457 and 3437?
2. Did the Division prove that Employer was an “Agricultural Employer” within the meaning of section 3457?
3. Did the Division prove that the workers were engaged in “Hand-labor Operations” pursuant to section 3457(c]?
4. Did Employer violate the provisions of sections 3457(c) and 3439(a)?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

1. The Division Sufficiently Proved that Employer Was Engaged in an “Agricultural Operation” for Purposes of Sections 3457 and 3437?

Employer was cited for violations consisting of field sanitation requirements contained in sections 3457(c)(1)(C), 3457(c)(3)(G)(3), and 3457(c)(3)(G)(4). Employer was also cited for violation of section 3439(a).

The subject sections for which Employer was cited are included in Article 13 of Title 8, which pertains to “Agricultural Operations.” The field sanitation requirements in section 3457 for which Employer was cited in Item Nos. 2 through 4, inclusive, provides the following definitions:

(b) “Agricultural operation” means any operation necessary to farming pursuant to Section 3437. [Italics added]

Further, section 3437, in relevant part provides:

Agricultural Operations. All operations necessary to farming in all of its branches, including maintenance of machinery or other facilities, and the planting, cultivating or growing, keeping for sale, harvesting, transporting on the farm or to the place of first processing, any tree, plant, animal, fowl, fish, insect or products thereof. [Italics added]

When the above-quoted regulatory definitions are read together, the fundamental element for coverage requires that the employer be engaged in an agricultural operation as defined in sections 3457 and 3437. The definition provided in section 3437 is quite broad in its coverage to “all operations necessary to farming in all of its branches” with express application to “cultivating or growing, keeping for sale, … any tree, plant, … or products thereof.”2 Although the word “farming” is not defined in any of the regulations contained in Article 13 - Agricultural Operations, the described activities provided in the definition of “agricultural operations” in section 3437 denotes the type of activities intended to be covered under the field sanitation requirements contained in section 3457.

In this case, the Division’s inspector testified that Employer operated a “nursery business” at two sites that she inspected. Preliminarily, Carleson testified that the inspection was part of a program inspection targeting agricultural industries in general under the Agricultural Safety and Health Inspection Program (ASHIP]. Carleson testified that Employer’s business was “a wholesale grower of trees and shrubs” and that the owner explained to her that they had been in business for twelve years. When subsequently asked by the ALJ at the hearing as to what the workers were doing in the field, Carleson responded: “[m]aintaining the nursery--trees and shrubs, watering, rotating them, … working outside.” She also testified that she observed two workers at each of the two locations of Employer’s nursery business and that the workers were doing the same thing at both locations.3

The Board finds that there was sufficient testimony regarding the activities of Employer’s business to establish it was an “agricultural operation” within the meaning of sections 3457 and 3437. Carleson’s testimony, although very generally worded, appears to be based upon personal observation of the activities of workers and reasonable inferences that were drawn therefrom. This finding is also made due to the fact that Employer neither disputed, nor objected to the Division’s witness regarding her testimony in this regard. Nor did Employer otherwise controvert this testimony through his own testimony or documentary evidence. Moreover, at the time for presentation of Employer’s case, Employer offered absolutely no testimony or documentary evidence, and in his closing statement, affirmatively accepted the evidence as represented by the Division.

The Board has consistently held that the Division has the burden of proving all elements of a violation by a preponderance of the evidence. (Alfredo Annino/Alfredo Annino Construction of Nevada, Inc., Cal/OSHA App. 98-312, Decision After Reconsideration, (April 25, 2001).) However, “preponderance of the evidence” is usually defined in terms of probability of truth, or of evidence that when weighed with that opposed to it, has more convincing force and greater probability of truth with consideration of both direct and circumstantial evidence and all reasonable inferences to be drawn from both kinds of evidence. (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 483, review denied.) Full consideration is to be given to the negative and affirmative inferences to be drawn from all the evidence, including that which has been produced by the defendant. (Id.)

A corollary to this standard of proof is that, where there is no dispute, objection, nor evidence to the contrary presented by the adverse party regarding specific evidence presented by the party who bears the burden of proving all elements of a violation, the Board must give full consideration to the negative and affirmative inferences drawn from the evidence presented by the sole party offering the evidence.

The Division has the burden to establish that Employer performed an “agricultural operation” that would subject it to the field sanitation requirements in section 3457. Under these circumstances and our independent review of the testimony, the only reasonable conclusion from the evidence presented was that Employer was engaged in an agricultural operation which, at the very least, involved an “operation necessary to farming” consisting of “the cultivating or growing, [or] keeping for sale, … tree[s], plant[s], ... or products thereof” within the meaning of section 3437.

Although there was no direct testimony that Employer was engaged in “farming,” there was evidence that activities under the regulatory definition were being performed because the nursery had trees and shrubs that were being maintained (i.e., watered, rotated) at the field sites.4 We find that such maintenance of nursery plant stock equates to “cultivating or growing” a tree or plant product within the meaning of section 3437.

The ALJ made no adverse credibility finding regarding Carleson’s testimony-only that such statements were “conclusory”, and thus, insufficient.

A witness, however, can testify in general statements of fact, which establish an essential element of a violation, and such statements may be based upon facts previously obtained or ascertained by the witness. In this case, the Division’s witness asserted that Employer is a “wholesale grower of trees and shrubs” and observed workers “maintaining the nursery-trees and shrubs, watering, rotating them, ... working outside.” These statements contained factual assertions and constituted evidence that preponderates towards establishing that Employer was “growing trees and other plants” (shrubs) which are “agricultural operations” within the meaning of section 3437.5

In this case, it is not a matter of there being no evidence regarding Employer performing an agricultural operation in a nursery business, but rather the quantum of evidence on the issue. Here, the Division presented testimony regarding the operations and activities of Employer, which tend to establish that it performed activities constituting “agricultural operations” as defined in sections 3457(b) and 3437. Employer did not cross-examine the witness regarding her statements of Employer’s activities or operations, made no foundational objections, nor otherwise challenged the described testimony. Because Employer failed to make an objection or other challenge to the evidence presented by the Division, the Board must base its findings upon the testimony presented by the Division.6

Although the amount of evidence can be described as minimal, it can hardly be said that the Division failed to meet its burden of proof where the only evidence presented renders Employer’s business an agricultural operation as the term is specifically defined in the subject regulation. The only reasonable conclusion that can be rendered is that Employer was engaged in an “agricultural operation.” 7

Accordingly, we hold that the watering and rotating of trees and shrubs at a nursery equates to cultivation and growing of trees and plant products so as to constitute an agricultural operation pursuant to sections 3457 and 3437, as a matter of law. The Division met its burden of proving by a preponderance of the evidence that Employer was performing an agricultural operation.

2. The Division Sufficiently Established that Employer Was an “Agricultural Employer”

Having determined that Employer was engaged in an agricultural operation, we now address the ALJ’s additional determination that the Division failed to prove by a preponderance of the evidence that the Employer was an “agricultural employer” within the meaning of section 3457. The field sanitation requirements in section 3457 are expressly made applicable to all agricultural employers. (§3457(a)). Section 3457(b) provides:

Agricultural employer” means any person, corporation, association, or other legal entity that:
A. Owns or operates an agricultural establishment;
B. Contracts with the owner or operator of an agricultural establishment in advance of production for the purchase of a crop and exercises substantial control over production; or
C. Recruits and supervises employees or is responsible for the management and condition of an agricultural establishment.

Agricultural establishment” is a business operation that uses paid employees in agricultural operations.

It is apparent that “agricultural establishment,” upon which the definition of “agricultural employer” relies, is also significantly based on the term “agricultural operations.” Accordingly, we adopt and incorporate the above discussion and findings with respect to Employer’s activities constituting an “agricultural operation.” We now turn to a review of the facts presented which address the determination of Employer’s status as an “agricultural employer” under the above-quoted definitions.

We adopt the ALJ’s express factual finding that “[d]uring Carleson’s subsequent inspection of Employer’s nursery facilities, Carl verified that Employer had employees working at its San Marcos and El Camino Real (Carlsbad) nurseries.” (ALJ Decision, p. 3)8 In addition to the adopted portions, we find that additional facts are relevant to Employer’s status as an agricultural employer. It was Carl, the owner of the business, who returned the inspector’s phone call request made to the two workers on August 13, 1999 when Carleson gave the workers her business cards to give to their boss. Carl further consented to Carleson’s request to inspect Employer’s business premises. Further, Carleson’s inspection of Employer’s business to which Carl consented covered two sites, which included the Carlsbad location that Carleson initially visited on August 13, 1999 where she met two workers in the field. The San Marcos site where Carleson met with Carl also had a nursery facility where Carleson also observed two other workers in a field. Carl also stated to Carleson that he regularly visits the Carlsbad site during the day.

These findings of fact along with Carleson’s testimony that Employer was a “wholesale grower of trees and shrubs,” the workers at both locations were watering, rotating, and maintaining tress and shrubs, working outside, the affirmative acceptance by Employer of the evidence presented by the Division, as well as the inferences to be drawn therefrom, preponderates towards establishing that Employer “operated” an agricultural establishment consisting of a business that used employees in agricultural operations at the two inspected nursery facilities. We would find it most difficult, and moreover, completely contrary to the uncontroverted evidence, to infer otherwise. Accordingly, we find that Employer, in its operation of nursery facilities, was an agricultural employer within the meaning of section 3757(b) rendering Employer subject to the field sanitation requirements.

We thus similarly reverse the ALJ’s decision that the Division failed to meet its burden by a preponderance of the evidence that Employer who operated a nursery business was an “agricultural employer.”

3. The Division Failed to Prove That Employees Were Engaged in “Hand-labor Operations” Necessary To Establish Violations of Section 3457(c).

The ALJ also found that even assuming that Employer was performing an agricultural operation, there was no evidence that the workers were engaged in “hand-labor operations” which is required to render the field sanitation requirements of section 3457(c) applicable to Employer. The cited violations that are governed by this requirement are Items 2 through 4, inclusive.

Section 3457(c) provides:

Agricultural operations not involving hand-labor operations shall meet the requirements of Sections 3360-3368.
All other agricultural operations shall meet the following requirements:
...

Applying the plain meaning to the language creating the distinction, for coverage based upon whether agricultural operations involve hand-labor, it is clear that the Division must also establish that Employer’s agricultural activities or operations involve hand-labor operations in order for the field sanitation requirements in section 3457(c) to be applicable to Employer. While we have determined above that Employer performs an “agricultural operation” within the meaning of section 3457(b), that section of the regulation further defines the term “hand-labor operations” as follows:

“Hand-labor operations” means agricultural activities or agricultural operations performed by hand or with hand tools in the production of food, fiber, or other materials such as seed, seedlings, plants, or parts of plants. “Hand-labor operations “ also include other activities or operations performed in conjunction with hand-labor in the field. Some examples of “hand-labor operations” are the hand-manipulation of irrigation pipes and other irrigation equipment by irrigators; hand-cultivation, hand-weeding, hand-planting and hand harvesting of vegetables, nuts, fruits, seedlings or other crops, including mushrooms; ... “Hand-labor” does not include such activities as logging operations, the care or feeding of livestock, or hand-labor operations in permanent structures (e.g., canning facilities or packing houses).

The above sections clearly reflect a distinction between hand-labor activities or operations and those not involving hand-labor operations. In promulgating different standards based upon the described type of operation, the Standards Board saw fit to establish special requirements for agricultural activities or operations performed by hand or with hand tools. Due to the transitory nature of hand-labor operations, as opposed to mechanized agricultural operations, we recognize that the Standards Board has a basis for promulgating more stringent field sanitation requirements in order to protect those workers engaged in hand-labor operations. (See also, Labor Code §6712(a)).

The somewhat broad description of activities which constitute hand-labor operations which also includes “other activities or operations performed in conjunction with hand-labor in the field” manifests an intent by the Standards Board to provide expansive coverage of the field sanitation requirements to field workers performing hand-labor related activities. However, the extended coverage still requires performance of associated hand-labor in the field. Further, the regulation is quite clear that other agricultural operations not involving hand-labor shall meet other sanitation requirements provided in sections 3360-3368. (§3457(c))

The Division thus has the burden of proving by a preponderance of the evidence that Employer’s agricultural activities or operations were performed by hand or with hand tools, or performed in conjunction with hand-labor in order to sustain a violation of section 3457(c).

The ALJ determined that there was “no evidence whatsoever with respect to Items 2 through 4 that the workers were engaged in “hand-labor operations.” (ALJ Decision p. 6) The ALJ only looked to several of the examples provided in the definition for “hand labor-operations” without addressing the actual definitional language that must be applied. The definitional language provides for “agricultural activities or agricultural operations performed by hand or with hand tools in the production of food, fiber, or other materials such as seed, seedlings, plants, or parts of plants,” and includes “other activities or operations performed in conjunction with hand-labor in the field. (§ 3457(b)). 9

We find that the record is devoid of any evidence regarding specific activities or operations performed by hand or with hand tools, or other evidence from which an inference of the existence of hand-labor operations can be made.

Where a moving party seeks to prove an essential element of its case by circumstantial evidence, liability will not follow unless it shows that the inferences favorable to it are more reasonable or probable than those against it. (Leslie G. v. Perry & Associates, supra)10

While Carleson testified to activities she observed the workers perform, the general description of the workers “watering and rotating” trees and shrubs neither directly proves nor justifies an inference that such activities involved hand-labor operations within the meaning of section 3457(b). Both watering and rotation of trees and shrubs can conceivably be performed either by hand or mechanically with watering also capable of being performed automatically. Although the definition of hand-labor operations includes as an example “hand manipulation of irrigation pipes and other irrigation equipment by irrigators” (§3457(b)), the “hand-labor” aspect of the activity as well as the other activities listed as examples in section 3457(b) must still be addressed and established by some evidence.

The Board is left to speculate regarding the manner in which the workers performed “watering” and “rotating” of the trees and shrubs and surmise as to whether Carleson’s observation was simply based upon seeing water sprayed from sprinkler heads in the fields which may or may not have been hand manipulated by the workers, or simply based upon observing them hand watering the trees and shrubs.

The Division argues that the non-exclusive examples of hand-labor operations provided in the definitional provision makes it “hardly unreasonable to conclude that the watering of plants and shrubs, and maintenance of them as is required for their cultivation, fits in accord with regulations pertaining to hand-labor operations.” (Pet. for Reconsideration, p. 4)

Carleson’s description of “rotating” and otherwise “maintaining” the trees and shrubs does not establish that the activities were performed by hand or with hand tools absent additional evidence to justify such inference. Employer’s performance of hand-labor operations is a fundamental issue regarding the applicability of the cited section that cannot simply rest on broadly described activities. An inference of hand-labor operations made simply from Carleson’s statements describing only more general agricultural operations would undermine the regulatory definition of “hand-labor operations” which is a category of agricultural operations for which specific field sanitation requirements, i.e., including the cited violation of section 3439(a), apply. The Division’s position that the watering or other maintenance of trees and shrubs as is required for their cultivation is in accord with hand-labor operations begs the proverbial question that the activities were actually performed by hand or with hand tools.

The Division’s argument further ignores the significance of the recognized distinction made by the Standards Board, which delineates different sanitation standards for agricultural operations involving hand-labor and those not involving hand-labor. Since the field sanitation requirements in section 3457(c) are expressly intended to only cover hand-labor operations, the Division must not only ascertain the applicability of the section but must prove by a preponderance of the evidence this essential element for establishing coverage of Employer.

Regarding an essential element of a violation relating to coverage of the requirements to Employer, the Board is not prepared to simply infer such coverage of the regulation to Employer absent some evidence of actual hand-labor operations or activities, or evidence which allows a reasonable inference that Employer’s agricultural operations or activities are performed by hand or with hand tools.

We find that the Division failed to prove by a preponderance of the evidence that Employer’s agricultural operations or activities were performed by hand or with hand tools so as to render the field sanitation requirements in section 3457(c) applicable to Employer. Thus, in spite of a reversal of the ALJ decision as to the specific determinations that Employer was an not ‘agricultural employer” nor engaged in “agricultural operations” as previously discussed above, the cited violations of Items 2 through 4 cannot be sustained because the instant finding nonetheless renders section 3457(c) inapplicable to Employer on other grounds.

The Board grants Employer’s appeal as to Items 2 through 4, inclusive, pertaining to violations of section 3457(c).

4. Employer Violated the Provisions of Section 3439(a).

The ALJ did not reach a determination of the violation of section 3439(a) [Item 5] based upon the adverse ruling that the Division did not meet its burden of proving that Employer performed an “agricultural operation” and that Employer operated an “agricultural establishment.” However, since we reverse the ALJ’s decision regarding those determinations as discussed above, we review the record independently with respect to the remaining subject violation.11

The orders in Article 13 expressly apply to agricultural operations. (§3436) The definitions applicable to the article provide a definition of “agricultural operations.” (§3437) Our previous analysis that finds that Employer was performing “agricultural operations” pursuant to section 3437 (and §3457(b) which refers to §3437) establishes that Employer performed an “agricultural operation.” Thus, Employer is subject to the requirements of section 3439(a).

Employer was cited for not providing adequate first-aid materials on site or in a nearby vehicle for employees working at the Carlsbad site as required by section 3439(a). Section 3439(a) provides, in relevant part:

There shall be adequate first-aid materials immediately available at the farm headquarters and/or worker transportation buses. Such materials shall be kept in a sanitary and usable condition. A frequent inspection shall be made of all first-aid materials, which shall be replenished as necessary. In the case of employers whose workers are widely scattered in small crews that are contacted by a traveling foreman, adequate protection may be accomplished by having a first-aid kit in the foreman’s car or vehicle.

The Division met its burden of proving by a preponderance of the evidence that a first-aid kit was not immediately available at the Carlsbad field site to meet workers’ first-aid needs, e.g., for cuts or scrapes. Carleson testified that the site was fairly isolated with no means to communicate with the Employer’s main office in the event of a medical need. Carleson testified that she asked Carl if there was a first-aid kit at the Carlsbad site available for workers to which Carl responded in the negative. Further, Employer presented no evidence that a first-aid kit was immediately available in Carl’s truck within the meaning of section 3439(a). Although Carl informed Carleson that he visits the site during the day, he did not state that he had a kit in his truck on the day of inspection.

The evidence established that there was no first-aid kit immediately available for workers at the site on the date of the inspection, and thus, a violation of section 3439(a) was established.

DECISION AFTER RECONSIDERATION

The Board affirms in part and denies in part the ALJ’s decision. Employer’s appeal from Items 2 through 4, inclusive, pertaining to violations of section 3457(c), is granted and the civil penalties are set aside.

Employer’s appeal from Item 5 is denied and a civil penalty of $85 is assessed.

MARCY V. SAUNDERS, Member
GERALD P. O’HARA, Member

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: October 30, 2001

1 Unless otherwise specified, all section references are to Title 8, California Code of Regulations.
2 The listed activities are in the disjunctive so that any one of the several listed activities would render the operation covered under the Article.
3 The ordinary meaning of the word “nursery” is “a place where young trees or other plants are raised for experimental purposes, for transplanting, or for sale.” Webster’s New World Dictionary of the American Language, 2nd College ed., 1974, p. 978. At least conceptually, this definition comports with the language in the definition of agricultural operations provided in section 3437.
4 Indeed, it would be most difficult if not incredible for an inspector to testify from personal observation about the tree or other plants “growing” or “keeping for sale.” Inferences must be made from facts reflecting the covered activity.
5 The Division has the burden of proving the elements of its case. It presented some witness testimony establishing that Employer performed an agricultural operation to which the Employer neither objected to nor disputed. Nonetheless, the Division’s witness was certainly subject to cross-examination as well as foundational objections to challenge or otherwise question the veracity of such testimony.
6 The Board cautions, however, that there is certainly a risk associated with the Division presenting little evidence to establish a required element of a violation even where there is no dispute by the adverse party. Unlike this case, a trier of fact may nevertheless find credibility lacking in the testimony that is presented on the matter.
7 While the ALJ found that there was no evidence presented that the individual shrubs were actually “kept for sale” rather than for future stock or planting purposes at other locations, we need not address that determination since we hold that an ‘agricultural operation” is established under the “cultivating or growing” activity provided in section 3437. The listed activities are in the disjunctive so that any one of the listed activities can satisfy the definitional requirement.
8 The ALJ made this finding “based on the Division’s credible, unrefuted evidence” upon which the ALJ held that a violation of section 3203(a) was established. Although we adopt the ALJ’s factual finding for purposes of our review, there is no pending review of the violation of section 3203(a) because neither party sought reconsideration of that determination.
9 “Production” means “1. the act or process of producing.” “”Produce” and “producing” is defined as “...2. to bring forth; bear; yield ...” Webster’s New World Dictionary of the American Language, 2nd College ed., 1974, p. 1134.
10 An inference must be drawn from evidence and not based upon speculation as to probabilities without evidence. (Krause v. Apodaca (1960) 186 Cal.App.2d 413)
11 The ALJ’s decision contains a finding that the Division failed to establish Employer operated an “agricultural establishment” which was purportedly required to sustain a violation of section 3439(a). However, neither of the terms “agricultural employer” nor “agricultural establishment” are contained in section 3439(a). Moreover, the definitions of these terms are contained in the definitional provisions applicable to only the field sanitation requirements in section 3457(c).