BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

 

In the Matter of the Appeal of:

MOHAMMAD R. GORSI

P.O. Box 540

Sutter, CA 95982

                              Employer

 

 

Docket No.

99-R2D1-2972

 

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 Mohammad R. Gorsi (Employer), makes the following decision after reconsideration.

JURISDICTION

On August 12, 1999, a representative of the Division of Occupational Safety and Health (the Division) conducted an accident investigation at a place of employment maintained by Employer in the vicinity of Kylie Court, Yuba City, California (the site). On October 20, 1999, the Division issued to Employer a citation alleging a general violation of section1 3457(c)(2)(A) [adequate number of toilet facilities], with a proposed civil penalty of $750.

Employer filed a timely appeal contesting the existence of the alleged violation.

On June 23, 2000, this matter came on regularly for hearing before Manuel M. Melgoza, administrative law judge (ALJ), in Sacramento, California. Arshed Ali Gorsi, foreman and brother of owner Mohammad R. Gorsi, represented Employer. Jose Roy Camacho, compliance officer, represented the Division.

On June 28, 2000, the ALJ issued a decision denying Employer's appeal.
On August 2, 2000, Employer filed a petition for reconsideration. The Division did not file an answer.

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.

Employer was cited for not providing a sufficient number of toilet facilities for its employees. At the time of the Division's inspection, Employer had 24 men and women harvesting fruit in an orchard. Section 3457(c)(2)(A) requires that Employer have one toilet facility for every 20 employees, and separate toilets for men and women. Employer was found to have provided only one toilet at the site.

Although he did not advise Employer of the specific section number under investigation, the inspector testified that he explained to a representative of Employer that he was investigating whether there were a sufficient number of toilets at the site for the size of the crew working there. Employer's representative claimed that Employer had another toilet available somewhere in the orchard. The inspector was unable to find the toilet after an hour of searching. The ALJ credited the testimony of the Division's inspector, and specifically discredited Employer's testimony regarding the availability of a second toilet.

Based on the testimony of the Division's inspector, the ALJ affirmed the violation and the proposed civil penalty of $750.

ISSUE

Did Employer raise a valid ground for reconsideration?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

Employer set forth three contentions in its petition:

1. The $750 civil penalty assessed by the ALJ was excessive;
2. The notice of hearing failed to adequately explain the procedure for requesting an interpreter; and
3. That the Division inspector failed to advise Employer of the specific allegation which precluded Employer from presenting relevant evidence during the investigation that would have precluded the issuance of a citation.

Employer's first contention, that the $750 civil penalty assessed by the ALJ for the violation of section 3457(c)(2)(A) is excessive, is without merit. There is no dispute that the violation was for failure to provide required toilet facilities for employees engaged in hand agricultural labor. The Board has previously held that under Labor Code section 6712(d)(1), $750 is the minimum penalty that can be assessed for the violation of section 3457(c)(2)(A), the violation found in this case.2

Employer's second contention is that the notice of hearing did not adequately inform it of the procedures for requesting an interpreter.

The Board's file contains the notice of hearing issued by the Board in this case.3 The notice of hearing advised all parties that they were entitled to the assistance of an interpreter and to the issuance of subpoenas in accordance with established rules of practice and procedure. The notice indicated that the procedure for requesting the assistance of an interpreter could be initiated by applying to the Board's headquarters. The notice contained the address of the Board's headquarters. Employer was therefore informed that it was entitled to the assistance of an interpreter and referred to the Board's rules of practice and procedure which fully state all the requirements for requesting an interpreter. The notice of hearing further advised where an application for such assistance should be made.4 The Board finds that Employer had adequate notice to enable it to determine how to request the assistance of an interpreter.

Employer's third contention is that it was denied the opportunity to present relevant evidence during the investigation because the Division failed to advise Employer of the specific allegation that was being investigated. Employer contends that had it been so advised, it would have informed the inspector that other toilets were located on Employer's property. The ALJ found that, consistent with the Division's normal practice, Employer was not advised of the specific section number and factual allegation that would be alleged in the citation that was later issued. The ALJ, however, also found that the inspector informed Employer that the Division was investigating whether Employer had provided an adequate number of toilet facilities for the size and composition of the crew working at the site that day. The ALJ further found that Employer did tell the inspector that there were toilet facilities elsewhere on the property.

The Board finds that the record supports the ALJ's findings that Employer was advised generally of the substance and of the type of evidence relevant to the potential citation under investigation. The ALJ's unchallenged findings5 further show that Employer was not only given, but took full advantage of, the opportunity to provide relevant information during the investigation. The Board therefore concludes that the petition's third contention, that Employer was denied notice of the nature of the charges under investigation, is contrary to the ALJ's unchallenged findings and without merit.

The Board finds that Employer's petition for reconsideration presents no grounds for overruling the ALJ's decision.

DECISION AFTER RECONSIDERATION

The ALJ's decision is affirmed. The appeal is denied and a civil penalty of $750 is assessed.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
SIGNED AT WEST COVINA, CALIFORNIA - April 20, 2001

1 Unless otherwise specified, all section references are to Title 8, California Code of Regulations.
2 Quang Trinh, OSHAB 93-1697, DAR (May 4, 1999); Rangel's Labor Contracting, OSHAB 96-2288, DAR (May 4, 1999).
3 A declaration of service by mail states that the notice of hearing was served on all parties.
4 The Board's rules of practice and procedure are made available, without cost, from the Board at the address indicated, and are accessible at the Board's Internet site at: www.dir.ca.gov/OSHAB/oshab.html.
5 Labor Code section 6618 provides: "The petitioner for reconsideration shall be deemed to have finally waived all objections, irregularities, and illegalities concerning the matter upon which the reconsideration is sought other than those set forth in the petition for reconsideration."