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

In the Matter of the Appeal of:

PHILIP GIBA FARMS
444 West Avenue, H-6
Lancaster, California 93534,

                                  Employer

 

Docket No. 96-R2D5-2543

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 hereby vacates its Decision After Reconsideration issued June 25, 1998, and makes the following decision after reconsideration.

JURISDICTION

On August 2, 1996, the Division of Occupational Safety and Health (Division) conducted an inspection at an onion field at the intersection of 50th Street East and P Street, Palmdale, California (the site). On August 5, 1996, the Division issued to Employer Citation No. 1 alleging a general violation of section 3457(c)(1)(C), [single-use drinking cups] with a proposed 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, an administrative law judge (ALJ) of the Board issued a decision on October 6, 1997, denying Employer’s appeal and affirming the civil penalty of $750.

On October 28, 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 did not file an answer. The Division filed an answer on November 25, 1997. On December 1, 1997, the California Rural Legal Assistance Foundation (the Foundation) filed a petition for intervention, including an amicus brief. On December 22, 1997, the Foundation was granted intervenor status.

The Board affirmed 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.

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 court’s 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.

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 page 2 of the decision of the ALJ.

On August 2, 1996, Associate Safety Engineer Roy Camacho conducted an inspection of the site. Camacho found that while Employer had provided employees with an adequate amount of potable drinking water, the water container was not fitted with a fountain, and no single-use cups were available. Employer provided only one common plastic cup.

Employer testified it had provided single-use cups in the past, but based on employee preference, changed to the common cup several months prior to the inspection. The general practice was for the employees to rinse out the cup after each use. Employer testified it was unaware of the prohibition of common-use cups, and since he knew of the employees’ preference for the common cup, he made no attempt to provide employees with single-use cups. The ALJ found Employer was otherwise conscientious about meeting the requirements of the field sanitation standard.

ISSUE

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

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

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

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.)

Section 3457(c)(1)(C) requires that employers provide single-use cups as part of a drinking water facility, unless the water container is fitted with a fountain.

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.

Employer’s evidence that it provided a common cup based on employee preference does not provide a defense. Employee preference is not a ground for disregarding the requirements of any safety orders. In Certified Grocers of California, Ltd., OSHAB 78-607, Decision After Reconsideration (October 27, 1982), the Board held that employers are required to comply with all safety orders and are not permitted the discretion to decide when to follow a safety order, or substitute a safety measure for that required by a safety order.

Thus, Employer failed to provide a facility required by the field sanitation standard. The Board assesses a civil penalty of $750.

DECISION AFTER RECONSIDERATION

The Board vacates its June 25, 1998, Decision After Reconsideration. The decision of the ALJ dated October 6, 1997, as to Citation No. 1 is affirmed. 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