OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

The Occupational Safety and Health Appeals Board (Board), acting pursuant to authority vested in it by the California Labor Code and having granted the petition for reconsideration filed in the above entitled matter by Manpower (Employer), makes the following decision after reconsideration.

JURISDICTION

The primary employer, Manpower, headquartered in Milwaukee, Wisconsin, supplies temporary employees to secondary employers, which Employer refers to as “customers.” From November 24 through November 30, 1998, Dwight Goossen, Compliance Engineer for the Division of Occupational Safety and Health (the Division) commenced an accident investigation involving an employee Manpower sent to a construction site to work for Paul Davis Construction at 798 South 6th Street, Grover Beach, California. On December 9, 1998, the Division issued a citation to Employer alleging a regulatory violation of section 3203(b)(1) [inspection records for site] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations1 and proposing a $300 civil penalty.

Employer timely appealed, contesting the violation on all available grounds.

On December 17, 1999, a hearing was held before Manuel M. Melgoza, Administrative Law Judge (ALJ) for the Board, in San Luis Obispo, California. Robert D. Peterson, Attorney, represented Employer. Dwight Goossen represented the Division. The parties offered oral and documentary evidence, and the matter was submitted for decision on December 31, 1999. On January 24, 2000, the ALJ issued a decision denying Employer's appeal. Employer timely filed a Petition for Reconsideration on February 29, 2000. The Division filed an answer on April 4, 2000 and the Board granted Employer's petition on April 7, 2000.

EVIDENCE

John Malott, a laborer, began working for Manpower on October 19, 1998. Prior to that, he had worked directly for Paul Davis Construction. When Manpower hired him, it sent him to a construction site to work as a laborer. On November 10, 1998, Malott was injured at work while helping to load heavy equipment onto a truck-trailer.

In the few weeks before the accident, neither Manpower nor the secondary employer, Paul Davis Construction inspected the construction site where Malott worked.

Goossen cited Manpower for failing to record any safety inspections of the site to which it sent Malott. He reasoned that section 3202(a) requires all employers to conduct at least one site inspection and, once the inspection is completed, they must document the inspection according to section 3203(b)(1).

The parties differed over whether Employer’s own policies mandated safety inspections at customer sites by Manpower staff. During the investigation, Employer's branch manager, Monica Garcia, told Goossen that Manpower had not inspected the Paul Davis Construction site even though Manpower normally conducts safety inspections. She also told him Manpower tries to inspect each jobsite to which it sends employees. Goossen examined Employer’s injury and illness prevention program (IIPP), and found it contained provisions stating Employer’s policy is to conduct, record, and keep the records of safety inspections at “customer's worksites.” He concluded that Employer had not followed its own inspection policy here.

Robin Hendrickson, Manpower's Safety and Health Manager, testifying for Employer, acknowledged the existence of numerous IIPP provisions calling for Manpower to inspect customer sites and to keep records of those inspections, but insisted the policy is not mandatory. The policies do not, as interpreted by Manpower's practice, require Employer to inspect every site to which it sends workers.2

When Employer receives a request for workers from a customer, Employer’s staffing specialists inquire about the nature of the job and the skills required. The customer is asked to describe whatever safety program it may have.

Employer’s representatives do not specifically inquire about site safety inspections or obtain specifics or documents to verify that they are done.

In support of Employer’s position that requiring it to conduct inspections at every work location is unreasonable, unfeasible and, burdensome, Hendrickson testified that in its San Jose franchise alone, Manpower has 6,000 to 7,000 employees. These employees are sent to many job locations, involving several industries.3 The tasks employees perform range from construction work to clerical work. At the Santa Maria branch office, Employer has only Monica Garcia and one staff specialist available to fulfill customer requests for temporary workers. Sometimes, a customer may call with an “immediate need” request. An “immediate need” request is occasioned by a worker’s unexpected absence and the customer needing someone to fill-in immediately, sometimes mid-day. In her opinion, in such cases, there is no time for a pre-inspection by Manpower. At other times, the customer requests someone to come in for less than a full day’s service, such as when a payroll or inventory must be finished and the customer has a temporary personnel shortage.

Hendrickson did not know, however, if John Malott was assigned to the Paul Davis Construction site on an “immediate need” basis. She acknowledged Malott had been working at the site - for Manpower as his primary employer and for Paul Davis Construction as his secondary employer - for a few weeks by the accident date.

Asked to describe the procedures followed when a customer asks for laborers for a construction site with which Manpower is unfamiliar, Hendrickson testified that Manpower does not typically conduct inspection visits before assigning workers. Rather, the staffing specialist takes initial information over the telephone, including a site description, and makes assignments depending on the job duties. Afterwards, Manpower routinely visits the construction sites. In Hendrickson’s words, when Manpower makes a site inspection:

[D]epends on the timing of when they need the laborer. It depends on the schedule of the secondary employer, when we can schedule something. But it is the hope and the goal of Manpower, yes, to get out there within . . . at least the first 30 days if not before.

ISSUE

Is a primary employer required under section 3203(b)(1) to conduct inspections at the secondary employer's worksite to which it sends employees?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

The California Occupational Safety and Health Act of 1973 (hereinafter referred to as the Act) was enacted for the purpose of assuring safe and healthful working conditions for all California workers. Implicit in this purpose is the knowledge that employees will not be exposed to injuries or death when the working environment is safe. The intent of the Act is accomplished by ensuring that employees will not be exposed to unsafe working conditions which could cause injuries or death. (Moran Constructors, Inc., OSHAB 74-381, Decision After Reconsideration (Jan. 28, 1975).)

The goal of the Occupational Safety and Health program in California remains preventive in nature, that is, to prevent an injury from ever taking place. The surest and quickest way to prevent an injury from occurring due to an existing hazard is to look to the employer of the exposed employee. (Moran, supra.)

In establishing an employer’s duty to maintain a safe working environment, the relevant Labor Code provisions speak in the broadest possible terms and have been interpreted in the broadest terms even before the adoption of the Act. (See e.g., Carmona v. Division of Industrial Safety (1975) 13 Cal.3d 303)

The Act embodies remedial social legislation, which must be liberally construed with particular reference to the history and fundamental purposes of its statutes. (See e.g., Borello & Sons v. Department of Industrial Relations (1989) 48 Cal.3d 341, 345.)4

In this case, Manpower, the primary employer, was cited for a violation of section 3203(b)(1). Manpower argues that section 3203(b)(1) does not apply to the primary employer, but only to the secondary employer who has supervision over the work site.

Labor Code sections 6400 and 6401 command that “Every employer shall furnish employment and a place of employment that is safe and healthful for the employees therein [and] every employer shall do every other thing reasonably necessary to protect the life, safety, and health of employees.” (Emphasis added.) Likewise, section 6402 states: “No employer shall . . . permit any employee to go or be in any employment or place of employment which is not safe and healthful.”

To carry out these legislative mandates, the Occupational Safety and Health Standards Board (Standards Board) promulgated section 3203(a), which requires “every employer” to establish, implement and maintain an effective injury and illness prevention program. The program must contain minimum elements, including procedures to inspect the work place to identify unsafe conditions and work practices. (See § 3203(a)(4).) We hold that section 3203(a) requires all employers to take steps to ensure that the places where their employees work have been inspected for safety and health concerns.

In Manpower, Inc., OSHAB 78-533, Decision After Reconsideration (Jan. 8, 1981) we upheld a section 3203(a)(1) violation against Manpower because it failed to instruct temporary employees sent to a customer’s site on hazards specific to their assignments and failed to inquire about the secondary employer’s safety program before assigning the temporary workers there. We held that both primary and secondary employers have a non-delegable duty to inspect the temporary worker’s assigned work place.

In Adia Personnel Services, OSHAB 90-1226, Decision After Reconsideration (Aug. 4, 1992) the Appeals Board reaffirmed Manpower, Inc., supra. In that case, Adia Personnel Services assigned employees to secondary employers to fill clerical, industrial and technical positions. Adia was cited for a violation of section 3203(a), after one of its employees was injured when he fell from a pallet elevated by a forklift.

Upon review, the Board upheld the citation, affirming the primary employer’s responsibility to provide adequate safety training.

An employer cannot avoid its responsibility to conduct a workplace safety inspection in conformance with section 3203(a)(4). As demonstrated in the Manpower and Adia decisions we have recognized that the up-front participation of a primary employer is crucial to employee safety. Without adequate safety training, an employee begins work with little or no idea of the hazardous conditions or practices existing at his or her new workplace. Similarly, if the primary employer fails to conduct an inspection of the secondary employer’s work site, it can provide no meaningful information to its employee regarding foreseeable hazards. Consequently, the effectiveness of its safety training would be significantly decreased.

We agree with the ALJ that absent unusual mitigating factors the only way to comply with the statutory mandate is not to “permit any employee to go to or be in a place of employment which is not safe,” and “to make sure the place has been inspected before a construction worker begins his job at the construction site.” (See also Cal-Cut Pipe & Supply Co., OSHAB 76-955, Decision after Reconsideration (Aug 26, 1980).)

Section 3203(a) does not explicitly prohibit primary employers from cooperating with secondary employers in fulfilling the duty to inspect the work place, although both retain ultimate responsibility to ensure the inspections are executed. There may, then, be circumstances under which the secondary employer’s inspection, on both employer’s behalf, may satisfy the duty outlined in section 3203, as long as both employers document compliance, and keep the records as required by section 3203(b)(1).

Manpower further argues that it would not be reasonable or practicable to require it to inspect the Paul Davis Construction worksite because it does not possess the experience and expertise to effectively predict hazards at construction sites and to determine the safeguards necessary to protect employees at construction sites. We disagree that this is a valid reason to excuse Manpower from complying with the law. Manpower has undertaken as a business enterprise the business of furnishing qualified workers to secondary employers. As noted by the Division in their argument, we “cannot exempt an employer from occupational safety and health standards based on [their] ignorance or lack of expertise in [their] own business.”

If Employer believes it has no duty to inspect and/or document inspections at any customer worksites, or if it believes it cannot feasibly comply with the above section, it is in effect requesting a variance that the Appeals Board has no authority to grant. Labor Code section 143 provides such an avenue for Employer through the Standards Board. This is the same suggestion the Appeals Board gave Employer in the earlier Manpower, Decision After Reconsideration, in response to similar arguments. Employer’s appeal is denied.

DECISION AFTER RECONSIDERATION

The Board affirms the ALJ’s decision and the assessment of a $300 civil penalty.

MARCY V. SAUNDERS, Member
GERALD P. O’HARA, Member

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: May 14, 2001

1 Unless otherwise specified all references are to sections of Title 8, California Code of Regulations.
2 In a previous appeal involving this same Employer, the Appeals Board specifically found: “Company policy requires an inspection of the customer’s site on the first day of a new assignment of an employee to that customer, or if an employee complains about an unsafe condition at the site, or if there is a worker’s compensation claim at the site.” Manpower, Inc. OSHAB 78-533, Decision After Reconsideration (Jan. 8, 1981), p.2. The record does not indicate whether or when there has been a change in this policy.
3 Another of Employer’s franchises is in southern California, with additional “branch” offices throughout the state.
4 In Borello the California Supreme Court addressed Labor Code sections dealing with employer-employee relationships within the context of Workers’ Compensation Law. The Court noted that its decision “has implications for the employer-employee relationship upon which other state social legislation depends".