BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

 

In the Matter of the Appeal of:

DOUGLAS E. BARNHART, INC.

3387 Dry Creek Road

San Diego, CA 92127

                              Employer

 

 

Docket No.

99-R3D2-180

 

DECISION AFTER

RECONSIDERATION

 

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 Douglas E. Barnhart, Inc. (Employer), makes the following decision after reconsideration.

JURISDICTION

Between September 25, 1998 and January 11, 1999, a representative of the Division of Occupational Safety and Health (the Division) conducted an inspection at a place of employment maintained by Employer at 122 West 4th Avenue, Escondido, California (the site).

On January 13, 1999, the Division cited Employer for a regulatory violation of section 1509(c) [Code of Safe Practices not posted or available at the job site] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations.1

Employer filed a timely appeal contesting the existence and classification of the violation and the reasonableness of both the abatement requirements and the proposed civil penalty.

The matter was heard before Jack L. Hesson, Administrative Law Judge (ALJ) for the California Occupational Safety and Health Appeals Board, at San Diego, California. Robert P. Stricker, Attorney, represented Employer. David Pies, Staff Counsel, represented the Division. A decision was issued on February 10, 2000 finding a regulatory violation of section 1509(c) and assessing a civil penalty of $375.

Employer filed a timely petition for reconsideration on February 15, 2000, alleging that the evidence does not justify the findings of fact and that the findings of fact do not support the ALJ’s decision. The Division filed an answer on March 16, 2000 and the Board granted Employer’s petition on March 20, 2000.

EVIDENCE

Employer was engaged in renovation and remodeling work at three different school sites within 2.1 miles or 6 minutes travel time from one another. Employer posted its Code of Safe Practices at one of the three schools where it maintained an office. All employees and sub-contractors reported to the office each day before being sent to specific work sites. At issue is whether a single posting complies with section 1509(c), which requires posting or availability of the Code of Safe Practices at each job site.

Elisa Koski, (Koski) the inspecting officer for the Division, conducted an inspection at Central Elementary School located at 122 West 4th Street, Escondido, California where Employer was renovating and remodeling an auditorium. The inspection was the result of a complaint about health conditions at the site. After an opening conference with the school principal and Employer’s assistant superintendent, John Marinucci, Koski requested the Code of Safe Practices for that site. She was told that it was at a different location, Grant Middle School, located about 1.2 miles or 4 minutes away. During the inspection at Central Elementary School Koski interviewed one of the employees present at the Central Elementary School site. She cited Employer for a regulatory violation of section 1509(c) because the Code of Safe practices was not posted at the job site and the supervisor did not have a copy readily available.

On cross-examination Koski confirmed that she had been told that Employer’s Safety Department had decided that posting at one school was in compliance with the regulation. She could not recall seeing a sign indicating that the Code of Safe Practices was at the other school.

Assistant superintendent Marinucci testified that he is familiar with the project at issue. Employer’s bid covered all three schools, and in Employer’s opinion all three work locations were one job site. It posted the Code of Safe Practices covering all three schools at its office trailer located at Grant Middle School. All employees had to sign in at that location at the start of each workday. He considered it better to have the Code at a central location rather than in his truck.

Kimlee Lindgren De Ruyter, Director of Safety Services for the San Diego Chapter of the Associated General Contractors of America, testified for Employer. She testified that it is standard practice in San Diego County to post the Code of Safe Practices at a conspicuous place at the location where employees report to work.

Mike Pennington, a safety officer for Employer, testified that the Division’s High Hazard Unit had previously found such posting adequate.

ISSUE

Must an Employer post a copy of the Code of Safe Practices at each job site or have it available at each job site to comply with section 1509(c)?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

Employer was cited under section 1509(c), which reads as follows:

The Code of Safe Practices shall be posted at a conspicuous location at each job site office or be provided to each supervisory employee who shall have it readily available.

In this case, we decide whether an employer complies with section 1509(c) if the employer who is performing work at multiple sites, but with one central office, posts the Code of Safe Practices at only the central office and not the various job sites, and in the alternative does not have the Code of Safe Practices available through a supervisory employee at each site.

Employer considered the three work locations to be one job site. Neither the regulation nor any previous Board decision provides any exception to the requirement that the Code of Safe Practices be available at each job site for sites in close proximity to an office where the Code of Safe Practices is posted. The regulation provides that it must be posted or provided at each job site, and Employer was performing work at three different job sites. We find that a job site is any location where an employer has employees performing work for its benefit. We find that the statutory scheme created by the legislature mandates such a result.

As we noted in Manpower, OSHAB 98-4158, Decision After Reconsideration (May 14, 2001):

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.

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.”

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., S. G. Borello & Sons v. Department of Industrial Relations, (1989) 48 Cal.3d. 341, 345.)

Although section 1509(c) is a regulatory section, the purpose of the section is to promote employee safety by making employees aware of safe work practices. The Appeals Board considered a similar issue in Griffith Company, OSHAB 86-1202, Decision After Reconsideration (Mar. 20, 1987). In that case the Code of Safe Practices was posted at the employer’s main yard where all employees met before being dispatched to different job sites. The employer did not provide the Code of Safe Practices at the inspection site. The Board held that “the safety order is clear and can be satisfied only by posting the Code at each job site or having a copy of the Code under the immediate control of the supervisor…” at each site.

Any holding contrary to requiring that the Code of Safe Practices be available at each job site would result in unwieldy, subjective enforcement, a result which we have previously held to be undesirable. (Obayashi, OSHAB 98-3674, Decision after Reconsideration (June 5, 2001).)

If we were to adopt Employer’s position, posting of the Code of Safe Practices could be avoided by a failure to provide job offices or employee supervisory personnel at various work sites.

Under employer’s argument, we envision an employer arguing that an office at a central location, in, say, Sacramento would excuse compliance at satellite locations elsewhere in the state where Employer also had job sites. The reason that the Code of Safe Practices must be posted or provided to each supervisory employee who shall have it readily available at individual job sites is to inform workers of safe working practices and to protect them from job related injuries.

We would be remiss to allow employers to evade their responsibilities to fairly participate in promoting worker safety by allowing any erosion of employers’ obligations to provide information, education and training in the field of occupational safety and health.

Employer’s appeal is denied.

DECISION AFTER RECONSIDERATION

The Board affirms the ALJ’s decision finding a regulatory violation of section 1509(c) and assessing a civil penalty of $375.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: September 19, 2001

1 Unless otherwise specified all references are to sections of Title 8, California Code of Regulations.