BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

In the Matter of the Appeal of:

LABOR READY, INC.

1016 S. 28th Street

Tacoma, WA 98409

                              Employer

 

 

Docket No.

99-R3D3-3350

 

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 Labor Ready, Inc. (Employer), makes the following decision after reconsideration.

JURISDICTION

Employer provides temporary employees to other employers. From August 30, through November 15, 1999, the Division of Occupational Safety and Health (the Division), through Compliance Engineer Terry Saville, conducted an accident investigation at a place of employment where Employer assigned the injured employee to work at 8032 Limonite Avenue, Riverside, California (the site).

On November 15, 1999, the Division issued to Employer a citation for a regulatory violation of section 342(a) [failure to report accident] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations1 and proposed a civil penalty of $300.

Employer filed a timely appeal contesting the existence of the alleged violation, the classification, and the reasonableness of the proposed penalty. Employer also appealed on the grounds that it did not control the site, was not obligated to report the accident, and that the citation was in conflict with Federal Occupational Safety and Health Administration interpretations2.

This matter came on regularly for hearing before an Administrative Law Judge (ALJ) of the Board, in San Bernardino, California. John R. Epperson, Attorney, represented Employer. Allan Coie, Staff Counsel, represented the Division. The parties introduced a stipulated statement of the facts, and the matter was submitted. On September 5, 2000, the ALJ issued a decision granting Employer’s appeal on the ground that Employer was not exercising direction and control over the injured employee and was not responsible for reporting the accident to the Division. On October 10, 2000, the Division filed a timely petition for reconsideration. Employer filed an answer on November 13, 2000 and the Board granted the Division’s petition on November 15, 2000.

EVIDENCE

Employer was cited by the Division for a regulatory violation of section 342(a). At the hearing the parties stipulated to the facts in writing (joint Exhibit 1) and presented legal argument on whether Employer is obligated to report a serious accident.

The parties stipulated as follow3:

Employer supplies temporary laborers to its customers. It provides general safety training, and personal protective equipment, if necessary, before dispatch to the customer. The customer provides job specific training and other equipment. Employer has an Injury and Illness Prevention Program (IIPP) which was revised in 1999 in consultation with the Division’s Oakland Office.

On June 4, 1999, Employer dispatched an employee, Eric Cramer, to work for Aaron Management Construction (Aaron) at the site. Aaron supervised Cramer and directed his activities at the site. At approximately 10:20 a.m. Cramer was injured when a ladder provided by Aaron collapsed. Aaron called 911 and paramedics responded to the call. Cramer was hospitalized for approximately 36 hours, subsequently recovered from his injuries, and was hired by Aaron. Neither Aaron nor Employer notified the Division of the accident. The Fire Department notified the Division at approximately 5 p.m. on the accident date.

The Division cited Aaron for a violation of section 3279 [portable metal ladders]. Only Employer was cited for failing to report the accident.

ISSUE

Is a primary employer relieved of the obligation to report a serious injury, illness or death under section 342(a), occurring at a location controlled by a secondary employer?

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 working men and women. 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 therefore accomplished by ensuring that employees will not be exposed to unsafe working conditions, which could cause injuries or death. (Moran Constructors, Inc.)4

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, in language which largely parallels its statutory predecessors, grants exceedingly broad authority to enforce regulations to protect the health and safety of employees throughout the state. For instance Labor Code section 6307 provides: “The division has the power, jurisdiction and supervision over every employment and place of employment in this state, which is necessary to adequately enforce . . . all laws and lawful standards and orders, . . . requiring such employment and place of employment to be safe, and requiring the protection of the life, safety, and health of every employee in such employment or place of employment.” (Emphasis added) (United Air Lines, Inc. v. Occupational Safety and Health Appeals Board (1982), 32 Cal.3d 762)

The language of section 6307 makes it clear that the Legislature in enacting the Act contemplated jurisdiction over multiple employers at a single place of employment.

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, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 3455, United Air Lines, Inc. v. Occupational Safety and Health Appeals Board, supra.)

In this case, taking into consideration the Act’s remedial purpose, we decide whether a primary employer who supplies a worker to a construction site is responsible under section 342(a) to report a serious injury to the Division of Occupational Safety and Health.

Section 342(a) states:

(a) Every employer shall report immediately by telephone or telegraph to the nearest District Office of the Division of Occupational Safety and Health any serious injury or illness, or death, of an employee occurring in a place of employment or in connection with any employment.
Immediately means as soon as practically possible but not longer than 8 hours after the employer knows or with diligent inquiry would have known of the death or serous injury or illness. If the employer can demonstrate that exigent circumstances exist, the time frame for the report may be made no longer than 24 hours after the incident.
Serious injury or illness is defined in section 330(h), Title 8, California Administrative Code.

The authority cited immediately following the safety order makes it plain that the provision is grounded in statute, specifically Labor Code section 6409.1 which states, in pertinent part:

(a) Every employer shall file a complete report of every occupational injury or occupational illness . . . to each employee which results in lost time beyond the date of the injury or illness, or which requires medical treatment beyond first aid, with the Department of Industrial Relations. . . .
(b) In every case involving a serious injury or illness, or death, in addition to the report required by subdivision (a), a report shall be made immediately by the employer to the Division of Occupational Safety and Health by telephone or telegraph. [Emphasis added.]

Neither the Labor Code nor the safety order’s provisions make an exception for “special employers”, “primary employers,” “joint employers,” etc. The language unambiguously imposes the requirement on all employers whose employees suffer any serious injury, illness or death.

This is consistent with the Legislature’s intent. The Labor Code, at section 6400(a) and 6401 states:

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, Labor Code sections 6402 and 6403 state, in part, that “no employer shall” require or permit any employee to go to or be in a work place that is not safe or healthful, and that “No employer shall fail or neglect to do . . . every other thing reasonably necessary to protect the life, safety, and health of employees.” Labor Code section 6413.5 states that “Any employer” who fails to comply with any provisions of sections 6409(a), 6409.1, 6409.2, 6409.3 or 6410 may, in addition, be assessed a separate penalty if the violative conduct becomes a pattern or practice.

The Labor Code also authorizes the Division to require employers to perform “any other act which the protection of the life and safety of the employees in employments and places of employment reasonably demands.” (Labor Code, § 6308(c))

Section 342(a) was enacted to carry out specific mandates that directly relate to employee safety. In Bayles Ranch,6 this Board discussed the underpinnings of that safety order, stating:

The statutory requirement to report employee serious injuries to the Division is based on the concept that by so doing the Division would be alerted in a timely fashion to inspect the Employer’s workplace to determine whether unsafe conditions existed. Without such a requirement, the Division would not be in a position to act expeditiously, if at all.

More recently, in Dubug #7, Inc.,7 the Board stated:

The purpose behind the requirement is to provide for a timely inspection by the Division of potentially dangerous conditions or equipment that may pose a safety or health risk to other employees.

The public policy considerations underlying section 342(a) thus apply squarely to the Legislature's clear expressions at Labor Code section 6400 et seq., quoted above. (Pacific Gas and Electric Co.)8 Absent some ambiguity, a statutory exception, or an application that thwarts the Legislative intent, all employers have a separate, independent, non-delegable duty to report employment related serious injuries suffered by their employees, as long as they learn or with diligent inquiry can learn, of the injury or illness. (Steve P. Rados, Inc.9 and Jaco Oil Company10)

We reject Employer's argument that the duty is delegable or that impracticability is a defense. The Board has consistently found that employers have a non-delegable duty to ensure the safety of their employees, no matter whether another entity or employer created a hazard or whether the employer lacked direct control over the activity at the site. (Kennedy Painting Contractor, Inc.11; Cal-Cut Pipe & Supply, Co.,12; Rick Torrey, dba Another Roofing Co.13. In Cal-Cut Pipe & Supply, supra, where a general contractor was seeking to avoid responsibility for a worker it sent to help a subcontractor at a distant site, the Board held:

An Employer cannot contract away its responsibilities to its employees which have been imposed by a safety order. . . When an employer assigns an employee to a work site, it has a non-delegable duty to inspect the site and make certain that it is safe for its employees' intended activities.
Mere distance from its normal operations is not a sufficient consideration to absolve an employer of its responsibility . . . Employer cannot escape liability by its assertions of lack of control. Each Employer in the State of California owes a duty to its employees to furnish a safe and healthful place of employment. Labor Code section 6400.

The Board again rejected the "lack of control of the work site" defense in Tri-City Reinforcing Corp.14.

The Board also has repeatedly stated that an "Employer may not rely on third parties to fulfill its responsibility" for the safety of their employees, regardless of whether, under other regulations or by contract, another entity is additionally obligated to ensure no one is exposed. (Katzir Floor & Home Design15, and cases cited therein; and see MCM Construction, Inc.,16) Thus, employers may not avoid, by asserting lack of direct control or contractual impediments, the statutory duty (Labor Code § 6400) to provide their workers with a safe work place.

Employer’s reliance on Abel Lopez dba King City Labor Supply et al.17 is rejected. The Appeals Board has recently departed from that decision’s holding which required actual knowledge by an employer before the duty to report attaches. (Lakeside Veterinary Hospital,18 and Steve P. Rados, Inc., supra) Also, the Board’s reliance on a “dual employment” analysis in Abel Lopez conflicts with the clear legislative mandate. Where statutory language is clear, we must first construe its meaning from the words of the statute itself, and attempt to effectuate the purpose the Legislature intended. (See Department of Personnel Administration v. Superior Court (1992) 5 Cal.App.4th 155, 173-174; and Moyer v. Workmen’s Compensation Appeals Board (1973) 10 Cal.3d. 222.) The Board may carve out an exception only where necessary to achieve the legislative intent. (Sierra Wes Drywall, Inc.)19

As noted above, we hold that the legislative intent of the Act is to make all employers accountable for reporting serious injuries under the Act and that any contrary holding would be inconsistent with the legislative intent.

To the degree if any that Abel Lopez, supra, is inconsistent with this holding, it is reversed.

DECISION AFTER RECONSIDERATION

The Board reverses the ALJ’s decision and denies Employer’s appeal.

MARCY V. SAUNDERS, Member
GERALD P. O’HARA, Member
OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: May 11, 2001

1 Unless otherwise specified all references are to sections of Title 8, California Code of Regulations.
2 The Appeals Board is not constrained to follow federal OSHA precedent. The California Occupational Safety and Health Act of 1973 (Act) establishes the sovereignty and preeminence of California law and
the interpretation of that law by California Courts. (Kaiser Steel Corporation, Steel Manufacturing Group, OSHAB 78-1161, Decision After Reconsideration (Mar. 5, 1981) See also United Air Lines, Inc. v. Occupational Safety and Health Appeals Board, (1982) 32 Cal. 3d 762)
3 The facts in this case do not establish that Employer knew or should have known with diligent inquiry of the accident. We are not sure why the stipulated agreement did not address this issue. We note however, that the accident occurred at 8032 Limonite Avenue and we take judicial notice under Evidence Code section 452 that 8032 Limonite Avenue is an urban area readily accessible to hospitals, emergency services and telephones.
4 OSHAB 74-381, Decision After Reconsideration (Jan. 28, 1975)
5 In Borello the California Supreme Court addressed Labor Code sections dealing with employer-employee relationships within the context of Worker’s Compensation Law. The Court noted that its decision “has implications for the employer-employee relationship upon which other state social legislation depends".
6 OSHAB 86-1270, Decision After Reconsideration (Feb. 4, 1988)
7 OSHAB 92-1329, Decision After Reconsideration (June 26, 1995)
8 OSHAB 76-966, Decision After Reconsideration (July 31, 1979)
9 OSHAB 97-575, Decision After Reconsideration (Nov. 22, 2000)
10 OSHAB 97-943, Decision After Reconsideration (Nov. 22, 2000)
11 OSHAB 75-133, Decision After Reconsideration (May 5, 1976)
12 OSHAB 76-955, Decision After Reconsideration (Aug. 26, 1980)
13 OSHAB 89-355, Decision After Reconsideration (Aug. 15, 1990)
14 OSHAB 93-3101, Decision After Reconsideration (June 30, 1999)
15 OSHAB 94-2980, Denial of Petition for Reconsideration (June 11, 1996)
16 OSHAB 92-436, Decision After Reconsideration (May 23, 1995)
17 OSHAB 80-1143, Decision After Reconsideration (Aug. 28, 1986)
18 OSHAB 97-1410, Decision After Reconsideration (Nov. 22, 2000)
19 OSHAB 94-1071, Decision After Reconsideration (Nov. 18, 1998)