OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
DEPARTMENT OF INDUSTRIAL RELATIONS
STATE OF CALIFORNIA
In the Matter of the Appeal of:
|Docket Nos. 93-R3D2-1697 and
ORDER VACATING JUNE 25, 1998,
DECISION AFTER RECONSIDERATION
The Occupational Safety and Health Appeals Board (Board), acting pursuant to authority vested in it by the California Labor Code vacates its Decision After Reconsideration dated June 25, 1998, and makes the following decision after reconsideration.
On July 14, 1993, the Division of Occupational Safety and Health (Division) conducted an inspection at a place of employment maintained by Quang Trinh (Employer) at a farm east of El Camino Real Road, Carlsbad, California (the site). On the same date, the Division issued to Employer Citation No. 1 alleging a serious violation of section 3457(c)(1)(A) [drinking water] and Citation No. 2 alleging a serious violation of section 3457(c)(2)(A) [toilet facilities with required handwashing facilities] with total proposed civil penalties of $3,500.
Employer filed a timely appeal from the citations, contending that both the abatement requirements and the civil penalties were unreasonable. After a hearing, an administrative law judge (ALJ) of the Board issued a decision on July 8, 1994, finding serious violations of both sections 3457(c)(1)(A) and 3457(c)(2)(A), and reducing the civil penalty for each citation to $100.
On August 5, 1994, the Board, on its own motion, ordered reconsideration to determine whether the mandatory $750 minimum civil penalty required by Labor Code section 6712 applied to the violations. To decide this issue, the Board had to determine whether Employer failed to provide facilities required by the field sanitation standard.
Employer did not file an answer. The Division filed an answer on September 12, 1994. On September 12, 1994, the California Rural Legal Assistance Foundation (the Foundation) and Mauricio Dominguez, an individual farmworker who has been employed by various agricultural employers in the Fresno area, filed a petition for intervention, including an amicus brief. On September 28, 1994, the Foundation was granted intervenor status.
The Board reversed the decision of the ALJ, consistent with the test the Board articulated in Emerald Produce Co., Inc., OSHAB 96-2679, Decision After Reconsideration (June 25, 1998), and assessed a civil penalty of $750 for each violation.
On March 5, 1999, pursuant to a petition for writ of mandate filed by Intervenor Foundation, the superior court ordered the Board to vacate its June 25, 1998, Decision After Reconsideration, and issue a new Decision After Reconsideration, in accordance with the courts judgment that the minimum penalty of $750 provided by Labor Code section 6712(d)(1) applied not only to failures to provide field sanitation facilities but also to what the Board perceived to be mere failures to maintain them, even momentarily.
In making this decision, the Board relies upon its independent review of the entire evidentiary record in this case, including the tape recordings of the hearing. The Board has taken no new evidence. The Board adopts and incorporates by this reference the summary of evidence set forth on pages 2 and 3 of the decision of the ALJ.
On July 14, 1993, Darcy Shadbolt, an Associate Industrial Hygienist, conducted an inspection of the site. She observed about 15 workers harvesting bok choy (Chinese celery). No drinking water or single-use cups were available, and the nearest toilet facility was approximately 1/2 mile away. She further testified that there was no handwashing facility at the toilet. Employer presented no evidence contradicting Shadbolts testimony, except that a hose was nearby from which employees could obtain water. The Division issued citations for no potable water and no toilet/handwashing facility; classified each violation as serious; and proposed a $1,750 civil penalty for each violation. In accordance with the Directors regulations (8 California Code of Regulations §§334-336), because both were serious violations, the Division proposed an initial gravity-based penalty of $5,000. A thirty percent credit, reducing the civil penalty to $3,500 was accorded for Employers size, (between 10 and 30 employees) and the $3,500 was reduced to $1,750 through the fifty percent abatement credit. No other credits were allowed.
Employer is a tenant farmer who rents land from various landowners. His family includes 9 children, the youngest of whom is 14. Apart from this personal information, he presented no records or information about the financial condition of the farming business.
Employers practice was to hire itinerant workers. They could bring their own water, or use a hose that was located nearby. Quang Trinh testified that he drank from the hose himself, and that the water was furnished by the government. No evidence was presented as to whether the water met public health standards for potable water. After the inspection, Trinh attempted to comply with the requirements by moving the portable toilet facility closer to his workers.
1. Does the absence of potable drinking water establish that Employer failed to provide a facility required by the field sanitation standard, triggering a civil penalty of at least $750?
2. Does the absence of a toilet facility with the required handwashing facility establish that Employer failed to provide a facility required by the field sanitation standard, triggering a civil penalty of at least $750?
FINDINGS AND REASONS
DECISION AFTER RECONSIDERATION
Labor Code section 6712(d)(1) provides:
Notwithstanding Sections 6317 and 6434, any employer who fails to provide the facilities required by the field sanitation standard shall be assessed a civil penalty under the appropriate provisions of Sections 6427 to 6430, inclusive, except that in no case shall the penalty be less than seven hundred fifty dollars ($750) for each violation. (Emphasis added.)
In Emerald Produce Co., Inc., OSHAB 96-2679, Decision After Reconsideration, issued this same date, the Board vacated its June 25, 1998, Decision after Reconsideration, and held that any absence of supplies required by the field sanitation standard, such as single-use cups, at the point of employee use was a failure to provide a facility required by the field sanitation standard.
1. The Absence of a Drinking Water Facility Establishes that Employer Failed to Provide a Facility Required by the Field Sanitation Standard.
Section 3457(c)(1)(A) requires that employers provide potable drinking water. Employer testified that prior to being cited, he provided no drinking water for his employees. They had to either provide it themselves or get water from a hose.
Employer did not specifically appeal the classification of the violations. It is well established that where the reasonableness of the civil penalties is the only issue raised by the employer, the classification, but not the existence, of the violation is placed in issue. (Anderson, Clayton & Company, Oilseed Processing Division, OSHAB 79-131, Decision After Reconsideration (July 30, 1984).) The Board finds that Employer failed to provide potable drinking water in violation of section 3457(c)(1)(A). Employer therefore failed to provide a facility required by the field sanitation standard, and is subject to the $750 minimum civil penalty mandated by Labor Code section 6712(d)(1).
The Division failed to present sufficient evidence to establish that the violation was "serious," as defined in Labor Code section 6432(a). Labor Code section 6432(a) states that a serious violation will be deemed to exist if there is a substantial probability of death or serious physical harm resulting from a condition or a practice which exists in a place of employment. While the safety engineer testified that heat prostration may, in some severe cases, result in death, there was no evidence that severe heat prostration would probably and directly result from drinking water from the hose. No other evidence of any consequence resulting in serious injury or death was presented. Since the Division had the burden of proof on this issue, and failed to meet it, the Board must reclassify the violation from serious to general.
Section 335(a)(1)(A)i. of the Directors regulations provides that for a general violation pertaining to employee illness or disease where the violation is one that may result in loss of more than one day of work or considerable temporary discomfort, the gravity of the violation shall be classified as high. The illnesses likely to result from drinking non-potable water testified to by the safety engineer fall into this category. Section 336(b) provides that for general violations of high gravity, the base penalty shall be $2,000. According Employer the same credits applied by the Division, a 30 percent credit for size would reduce the penalty to $1,400, and the further 50 percent credit for abatement would reduce the penalty to $700. The Board will not allow these credits full application because the failure to provide potable water is a violation of the field sanitation standard. Therefore, the $750 minimum civil penalty mandated by Labor Code section 6712(d)(1) applies to Citation No. 1.
2. The Absence of a Toilet with a Handwashing Facility Establishes that Employer Failed to Provide a Facility Required by the Field Sanitation Standard.
There is no dispute concerning Employers failure to provide a handwashing facility. Employer presented no evidence to contradict the Divisions evidence that no handwashing facility existed in conjunction with its toilet facilities. The Board finds that the evidence supports the conclusion that Employer failed to provide a handwashing facility as required by section 3457(c)(2)(A). This violation constitutes a failure to provide a facility required by the field sanitation standard, and the $750 minimum civil penalty mandated by Labor Code section 6712(d)(1) applies.
As with Citation No. 1, the safety engineers testimony failed to provide evidence that death or severe physical harm would more likely than not result from employees inability to wash their hands after using the toilet. The Board therefore finds that the violation is properly classified as general rather than serious. Because Employers appeal of only the reasonableness of the civil penalty opens the issue of the violations classification, the Board can, and based on the evidence, does reclassify the violation from serious to general.
Shadbolts testimony did establish that the illnesses resulting from the inability of employees to wash their hands would more likely than not result in loss of more than one day of work or considerable temporary discomfort. These general violations are properly characterized as warranting a high gravity rating under section 335(a)(1)(A)i. Section 336(b) assigns a general violation of high gravity a base penalty of $2,000. Applying the same adjustment factors from section 336 for size and abatement set forth above in the discussion of Citation No. 1, the civil penalty would be reduced to $700. The violation of section 3457(c)(2)(A) shown here constitutes a violation of the field sanitation standard; thus, the $750 minimum civil penalty mandated by Labor Code section 6712(d)(1) applies to Citation No. 2.
DECISION AFTER RECONSIDERATION
Docket No. 93-R3D2-1697
The decision of the ALJ dated July 8, 1994, as to Citation No. 1 is reversed as to the classification of the violation as serious, and as to the assessment of a civil penalty of $100. The violation is reclassified as general, and a civil penalty of $750 is assessed.
Docket No. 93-R3D2-1698
The decision of the ALJ dated July 8, 1994, as to Citation No. 2 is reversed as to the classification of the violation as serious and as to the assessment of a civil penalty of $100. The violation is reclassified as general, and a civil penalty of $750 is assessed.
JAMES P. GAZDECKI, Chairman
BILL DUPLISSEA, Member
OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
SIGNED AND DATED AT SACRAMENTO, CALIFORNIA May 4, 1999