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

In the Matter of the Appeal of:

SMITH BROTHERS FARMS, A
PARTNERSHIP (ALBERT M. SMITH)
1089 N. Garfield Avenue
Fresno, California 93722

                                    Employer

 

Docket No. 96-R2D5-1188

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 September 7, 1995, the Division of Occupational Safety and Health (Division) conducted an inspection at a grape vineyard maintained by Smith Brothers Farms, a partnership (Employer) at the Northwest corner of Belmont and Garfield, Fresno, California (the site). On March 6, 1996, the Division issued to Employer Citation No. 1, Item 2, 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 and classification of the violation, and contending that the abatement requirements and civil penalty were unreasonable. After a hearing on the appeal, an administrative law judge (ALJ) of the Board issued a decision on October 2, 1997, finding a general violation of section 3457(c)(1)(C) and assessing a civil penalty of $275.

On October 27, 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 $275 because it found that the absence of drinking cups, 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 5 and 6 of the decision of the ALJ.

On September 7, 1995, Associate Safety Engineer Suzanne Counsilman conducted an inspection at the site. Counsilman found two five-gallon coolers containing an adequate supply of drinking water. These coolers, however, were not equipped with drinking fountains, nor were any single-use cups available on or around the coolers. The person in charge at the site, Mrs. Ambriz Smith, confirmed that there were no cups at the facility and stated she would have to get some.

Employer’s representative, William Smith, testified that Employer regularly maintained the facilities and that it was Employer’s practice to furnish single-use cups with the drinking water. William Smith testified that Employer’s regular practice was for Albert Smith to check on the facilities throughout every workday for supplies. Albert Smith had been away from the work site for about an hour at the time of the inspection. Counsilman inspected two toilet facilities and found them to be sanitary and adequately supplied with wash water, soap, hand towels and toilet paper. William Smith testified that Employer has had difficulty in the past maintaining these supplies as employees frequently took single-use cups and other supplies with them. These supplies included first aid materials, hand towels, toilet paper, and cups. William Smith also testified that the cups disappeared quickly, both in regular use and by employees taking the supplies with them.

Based on this testimony, the ALJ found that the workers were without single-use paper cups for about an hour.

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 drinking 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. The $750 minimum penalty provided by Labor Code section 6712(d)(1) therefore applies.

The Board therefore concludes that Employer failed to provide a facility required by the field sanitation standard, and 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 2, 1997, as to the reduction of the civil penalty, is reversed. A civil penalty of $750 is assessed against Employer.

JAMES P. GAZDECKI, Chairman
BILL DUPLISSEA, Member
OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
SIGNED AND DATED AT SACRAMENTO, CALIFORNIA – May 4, 1999