BEFORE THE
OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
DEPARTMENT OF INDUSTRIAL RELATIONS
STATE OF CALIFORNIA

In the Matter of the Appeal of:

EMERALD PRODUCE CO., INC.
P.O. Box 295
Chualar, California 93925

                                    Employer

 

Docket No. 96-R1D2-2679

ORDER VACATING JUNE 25, 1998, DECISION AFTER RECONSIDERATION ;

DECISION AFTER RECONSIDERATION

 

The Occupational Safety and Health Appeals Board (Board), acting pursuant to authority vested in it by the California Labor Code and in accordance with the decision of the Honorable Talmadge Jones of the Superior Court of Sacramento County in Civil Action No. 98-CS-01926, hereby vacates its Decision After Reconsideration issued June 25, 1998, and makes the following decision after reconsideration. The Board also issues orders vacating decisions after reconsideration in five other cases interpreting Labor Code section 6712(d)(1).

JURISDICTION

On June 11, 1996, the Division of Occupational Safety and Health (Division) conducted an inspection at a place of employment maintained by Emerald Produce Co., Inc. (Employer) at Sugar Loaf Ranch, Old Stage Road, Salinas, California (the site). On August 7, 1996, the Division issued to Employer Citation No. 1 alleging a general violation of section 3457(c)(1)(C) [single-use drinking cups]. The Division proposed a civil penalty of $750, the minimum penalty provided by Labor Code section 6712(d)(1) for failure to provide a facility required by section 3457, the field sanitation standard.

Employer filed a timely appeal from the citation, contesting the existence of the violation and contending that the civil penalty was unreasonable. After a hearing on the appeal, an administrative law judge (ALJ) of the Board issued a decision on September 19, 1997. The ALJ found a general violation of section 3457(c)(1)(C), based on a failure to maintain, rather than a failure to provide, a facility required by the field sanitation standard. The ALJ assessed a civil penalty of $280.

On October 17, 1997, the Board, on its own motion, ordered reconsideration in this case. The order limited the issue to whether the mandatory $750 minimum civil penalty applied because Employer failed to provide single-use drinking cups, or whether the absence of such cups constituted a failure to maintain a drinking water facility, which arguably did not trigger the mandatory $750 minimum penalty.

Employer filed a response on November 12, 1997. The Division filed a response on November 21, 1997. On November 17, 1997, the California Rural Legal Assistance Foundation (the Foundation) filed a petition for intervention, which included an amicus brief. On January 27, 1998, the Foundation was granted intervenor status. For the first time since it was established, the Board invited the filing of amicus briefs by the public in order to have the fullest understanding of the issue. Amicus briefs were filed by the California Labor Federation, AFL-CIO; the California Farm Bureau Federation; the Western Growers Association and the California Farm Labor Contractors Association jointly; and the Agricultural Council of California.

On June 25, 1998, the Board issued a Decision After Reconsideration in this case, holding that Employer had failed to provide a facility required by the field sanitation standard. In its June 25, 1998, Emerald Produce Decision After Reconsideration, the Board announced a test for the applicability of the $750 minimum penalty under Labor Code section 6712(d)(1). The June 25, 1998, Decision After Reconsideration reversed the ALJ’s findings that the $750 minimum penalty did not apply, and assessed a civil penalty of $750.

The June 25, 1998, Decision After Reconsideration also held that in certain circumstances where employers failed to have supplies required by the field sanitation standard at the point of employee use, the $750 minimum penalty did not apply. The Board interpreted Labor Code section 6712(d)(1) by applying the $750 minimum penalty only to failures to provide facilities required by the field sanitation standard, because the field sanitation standard itself addressed some of its requirements as duties to provide and others as duties to maintain facilities.

Labor Code section 6712(d)(1) contains no definition of the terms "provide" and "facility." Section 3457 contains no definition of the terms provide and "required," and no general definition of facility, nor does it define "maintain." The term provide is not used in section 3457 in a way that identifies which requirements trigger the $750 minimum civil penalty.

Faced with what it perceived to be ambiguity (or at least vagueness) in the statutory and regulatory language with respect to those terms, as well as the need to provide guidance to the administrative law judges issuing decisions about alleged violations of section 3457, the Board discerned a distinction between a failure to provide and a failure to maintain a required facility. The Board held that a failure to provide a required facility was subject to the statutory minimum penalty of $750, while a mere failure to maintain a facility was subject to the normal penalty provisions under the Director’s regulations.

Even though the Decision After Reconsideration issued on June 25, 1998, found under the Board’s test for distinguishing between a failure to provide and a failure to maintain, that Employer had failed to provide a facility required by the field sanitation standard and therefore, the $750 minimum penalty was assessed, Intervenor Foundation filed a petition for a writ of mandate. The focus of the writ was not on the final decision and penalty assessed, but on the Board’s analysis of the field sanitation standard set forth in section 3457.

On March 5, 1999, 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 Judge Jones’ finding that the statutory and regulatory terms were not ambiguous and that the minimum penalty of $750 provided by Labor Code section 6712(d)(1) applied to not only failures to provide field sanitation facilities but also to what the Board perceived to be mere failures to maintain them, even momentarily.

EVIDENCE

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 ALJ’s decision.

Golinda Vela-Chavez, Employer’s owner, testified that, over the course of a year, Employer employs 8,500 employees as agricultural laborers. At the time of the inspection Employer had 500 employees at Sugar Loaf Ranch, where it was performing agricultural services under agreements between the landowner and other parties. The employees working at the site where the citation was issued were hand-weeding a strawberry field. Drinking water was provided from a 15-gallon water jug not fitted with a fountain. The industrial hygienist cited Employer because (1) he did not see any single-use cups; (2) Employer’s foreman had none; and (3) the foreman’s only source of cups was a supervisor who was absent from the site. The industrial hygienist proposed the statutory minimum civil penalty of $750 because Employer had not provided single-use cups to the employees.

Vela-Chavez testified that supplies are left with second level supervisors to distribute to foremen as needed. Employer presented no evidence that it had a system of regular inspections to ensure single-use cups were available to employees. Vela-Chavez testified that, during the period of highest employment (April through October), Employer spends $1,800 a month on paper supplies, including paper cups. The amount was not itemized, nor did her testimony indicate what portion of the paper supplies ordered consisted of paper cups or other paper products to meet the field sanitation requirements of its work force.

ISSUE

Does the absence of single-use drinking cups establish a failure to provide a required facility?

PRELIMINARY CONSIDERATIONS IN INTERPRETING THE
APPLICABLE STATUTORY AND REGULATORY PROVISIONS

Labor Code section 6712 was adopted in 1990 as part of Senate Bill 1341 (Chap. 1541, Stats. 1990.). Labor Code section 6712 directed the Standards Board to promulgate a regulation at least as effective as the then recently-issued federal field sanitation standard (29 C.F.R. 1928.110, July 1, 1989) and existing state standards (Health & Saf. Code 3700; Lab. Code 2441.) Prior to the Standards Board’s issuance of section 3457, only Title 17, sections 8003 through 8013 of the California Code of Regulations provided sanitation regulations specifically applicable to agricultural workers.

One of the purposes of both Labor Code section 6712(d)(1) and section 3457 of Title 8, California Code of Regulations, was to give meaningful effect to the longstanding prohibition against the use of common cups by any workers. A prohibition against the use of common cups applicable to all employees dates back to at least 1917. (Stats. 1917, p. 1517.) "It has long been recognized that communicable diseases are readily transmitted by common drinking cups and the statutes in the present case were designed to safeguard employees against that hazard." (Parkhurst v. Industrial Accident Comm. (1942) 20 Cal.2d 826, 830.)

Labor Code section 6712(d)(1) mandates that an employer who fails "to provide a facility required by the field sanitation standard" shall be subject to a civil penalty of not less than $750.

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

The Board holds that a civil penalty of at least $750 will apply when single-use cups are absent. The absence of supplies (such as single-use cups) required by the field sanitation standard at the point of employee use establishes a failure to provide a facility, subject to the $750 minimum civil penalty.

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.)

The Absence of Single-Use Drinking Cups Establishes a Failure to Provide a Required Facility.

The Division argues that the ALJ’s decision holding that the violation was a failure to maintain and not to provide a facility must be reversed. The Division contends that when cups are absent, employees are left with the choices of drinking no water at all or drinking only contaminated water, and that a penalty of at least $750 must be assessed.

Consistent with the decision of the superior court in this case, the Board holds that when single-use cups are missing at the point of employee use, a failure to provide a facility required by section 3457 has been established, and a civil penalty of no less than $750 will be imposed.

In this case, since no cups were provided at the point of employee use, the $750 minimum civil penalty applies.

DECISION AFTER RECONSIDERATION

The Board vacates its June 25, 1998, Decision After Reconsideration. The decision of the ALJ dated September 19, 1997, is reversed as to the assessment of a civil penalty of $280. A civil penalty of $750 is assessed against Employer. In all other respects, the decision is affirmed.

JAMES P. GAZDECKI, Chairman

BILL DUPLISSEA, Member

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

SIGNED AND DATED AT SACRAMENTO, CALIFORNIA – May 4, 1999