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

In the Matter of the Appeal of:

MANUEL M. RODRIGUEZ
8261 Stine Road
Bakersfield, California 93313

 

                              Employer

 

Docket No. 96-R2D5-2789

 

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

JURISDICTION

On April 19, 1996, the Division of Occupational Safety and Health (Division) conducted an inspection at a place of employment maintained by Manuel M. Rodriguez (Employer) in an orchard on Zachary Road, one mile north of Famoso Road, Famoso, California (the site). On April 19, 1996, the Division issued to Employer Citation No. 1 alleging a general violation of section 3457(c)(3)(C) [no toilet paper] with a proposed civil penalty of $750.

Employer filed a timely appeal from the citation, contesting the abatement requirements and contending that the proposed civil penalty was unreasonable. After a hearing, an administrative law judge (ALJ) of the Board issued a decision on October 29, 1997. The ALJ found a general violation of section 3457(c)(3)(C), and reduced the proposed civil penalty from $750 to $150.

On November 19, 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 toilet paper, or whether the absence of toilet paper constituted a failure to maintain a toilet facility, which arguably did not trigger the mandatory $750 minimum penalty.

Employer did not file an answer. On December 22, 1997, the California Rural Legal Assistance Foundation (the Foundation) filed a petition for intervention including an amicus brief. The Division filed an answer on December 23, 1997. On January 27, 1998, 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 $150 because it found that the absence of toilet paper under the facts presented here, was a failure to maintain a facility.

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 pages 2 and 3 of the decision of the ALJ.

On April 19, 1996, Associate Safety Engineer Roy Camacho conducted an inspection of the site and observed there was no toilet paper in the dispensers of four toilets. He then cited Employer for a general violation of section 3457(c)(3)(C) for failure to provide toilet paper in the toilet facilities.

Employer had approximately twenty-five workers thinning Asian pears with hand-held cutting tools. The crew foreman present at the inspection told the safety engineer that the extra supplies were in the superintendent’s truck. At the time of the inspection, the superintendent and his truck were absent.

Employer testified that there was an established program of inspection and maintenance of the toilets every work morning. The toilets are also checked periodically each day and the superintendent, who is responsible for the toilet paper and other field sanitation supplies, is usually never away from the site for long. Rodriguez also noted difficulty in maintaining the toilet facilities because the employees frequently remove and take the rolls of toilet paper with them.

ISSUE

Does the absence of toilet paper establish a failure to provide a required facility?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

The Absence of Toilet Paper 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)(3)(C) requires that toilet paper shall be provided in suitable holders in each toilet unit.

In Emerald Produce Co., Inc., OSHAB 96-2679, Decision After Reconsideration, issued this same date, the Appeals Board vacated its June 25, 1998, Decision After Reconsideration and held that any absence at the point of employee use of supplies required by the field sanitation standard, such as toilet paper, was a failure to provide a facility required by the field sanitation standard.

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 29, 1997, as to the reduction of the civil penalty, is reversed. 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