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

In the Matter of the Appeal of:

QUANG TRINH
1759 W. Knapp Drive
Vista, California 92083

*

Docket No.

 

1993-R3D2-1697
and 1698

DECISION AFTER
RECONSIDERATION
Employer
*

The Occupational Safety and Health Appeals Board (Board), acting pursuant to authority vested in it by the California Labor Code and having ordered reconsideration on its own motion in the above entitled matter, makes the following decision after reconsideration.

JURISDICTION 

On July 14, 1993, the Division of Occupational Safety and Health (Division) conducted an inspection at a place of employment maintained by Quang Trinh (Employer) at a farm east of El Camino Real Road, Carlsbad, California (the site). On the same date, the Division issued to Employer Citation No. 1 alleging a serious violation of section 3457(c)(1)(A) [drinking water] and Citation No. 2 alleging a serious violation of section 3457(c)(2)(A) [toilet facilities with required handwashing facilities] with total proposed civil penalties of $3,500. 

Employer filed a timely appeal from the citations, contending only that the civil penalty was unreasonable. After a hearing, an administrative law judge (ALJ) of the Board issued a decision on July 8, 1994, finding serious violations of both sections 3457(c)(1)(A) and 3457(c)(2)(A), and reducing the civil penalty for each citation to $100.

On August 5, 1994, the Board, on its own motion, ordered reconsideration to determine whether the mandatory $750 minimum civil penalty required by Labor Code section 6712 applied to the violations. To decide this issue, the Board must determine whether Employer failed to provide facilities required by the field sanitation standard. 

Employer did not file an answer. The Division filed an answer on September 12, 1994. On September 12, 1994, the California Rural Legal Assistance Foundation (the Foundation) filed a petition for intervention, including an amicus brief. On September 28, 1994, the Foundation was granted intervenor status.

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 two and three of the decision of the ALJ.  

On July 14, 1993, Darcy Shadbolt, an Associate Industrial Hygienist for the Division, conducted an inspection of the site. She testified that she observed about 15 workers harvesting bok choy (Chinese celery). No drinking water or single-use cups were available, and the nearest toilet facility was approximately 1/2 mile away. She further testified that there was no handwashing facility at the toilet. Employer presented no evidence contradicting Shadbolt’s testimony, except that a hose was nearby from which employees could obtain water. The Division issued citations for no potable water and no toilet/handwashing facility; classified each violation as serious; and proposed a $1,750 civil penalty for each violation. In accordance with the Director’s regulations (8 California Code of Regulations 334-336), because both were serious violations, the Division proposed an initial gravity-based penalty of $5,000. A thirty percent credit, reducing the civil penalty to $3,500 was accorded for Employer’s size, (between 10 and 30 employees) and the $3,500 was reduced to $1,750 through the fifty percent abatement credit. No other credits were allowed.  

Employer is a tenant farmer who rents land from various landowners. His family includes nine children, the youngest of whom is 14. Apart from this personal information, he presented no records or information about the financial condition of the farming business. 

Employer’s practice was to hire itinerant workers. They could bring their own water, or use a hose that was located nearby. Quang Trinh testified that he drank from the hose himself, and that the water was furnished by the government. No evidence was presented as to whether the water met public health standards for potable water. After the inspection, Trinh attempted to comply with the requirements by moving the portable toilet facility closer to his workers.

ISSUES 

1. Does the absence of potable drinking water establish that Employer failed to provide a facility required by the field sanitation standard, triggering a civil penalty of at least $750? 

2. Does the absence of a toilet facility with the required handwashing facility establish that Employer failed to provide a facility required by the field sanitation standard, triggering a civil penalty of at least $750?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION 

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.)

In Emerald Produce Co., Inc., OSHAB 96-2679, Decision After Reconsideration, issued this same date, the Appeals Board recognized three categories of violations involving failures to furnish facilities or parts of facilities required by the field sanitation standard: (1) a failure to provide any facility at all; (2) a failure or frequent failures to provide part of a facility over an extended period; and (3) a brief failure to maintain a required supply constituting a part of a facility, such as single-use cups, where the employer shows that it had supplies available and a system for inspecting the facility to detect and cure shortages of such supplies.  

The Board held in Emerald Produce that violations within the first two categories are subject to the $750 minimum civil penalty provided by Labor Code section 6712(d)(1), while violations in the third category do not require imposition of the $750 minimum penalty. 

1. The Absence of a Drinking Water Facility Establishes that Employer Failed to Provide a Facility Required by the Field Sanitation Standard. 

Section 3457(c)(1)(A) requires that employers provide potable drinking water. Employer testified that prior to being cited, he provided no drinking water for his employees. They had to either provide it themselves or get water from a hose. The Board finds that Employer failed to provide potable drinking water in violation of section 3457(c)(1)(A). Employer therefore failed to provide a facility required by the field sanitation standard, and is subject to the $750 minimum civil penalty mandated by Labor Code section 6712(d)(1). 

Employer did not specifically appeal the classification of the violations. It is well established that where the reasonableness of the civil penalties is the only issue raised by the employer, the classification, but not the existence, of the violation is placed in issue. (Anderson, Clayton & Company, Oilseed Processing Division, OSHAB 79-131, Decision After Reconsideration (July 30, 1984).) 

The Division failed to present sufficient evidence to establish that the violation was "serious," as defined in Labor Code section 6432(a). Labor Code section 6432(a) states that a serious violation will be deemed to exist if there is a substantial probability of death or serious physical harm resulting from a condition or a practice which exists in a place of employment. While the safety engineer testified that heat prostration may, in some severe cases, result in death, there was no evidence that severe heat prostration would probably and directly result from drinking water from the hose. No other evidence of any consequence resulting in serious injury or death was presented. Since the Division had the burden of proof on this issue, and failed to meet it, the Board must reclassify the violation from serious to general.

Section 335(a)(1)(A)i. of the Director’s regulations provides that the gravity of the violation shall be classified as high for general violations pertaining to employee illness or disease where the violation is one that may result in loss of more than one day of work or considerable temporary discomfort. The illnesses likely to result from drinking non-potable water fall into this category. Section 336(b) provides that for general violations of high gravity, the base penalty shall be $2,000. According Employer the same credits applied by the Division, a 30 percent credit for size would reduce the penalty to $1,400, and the further 50 percent credit for abatement would reduce the penalty to $700. The Board will not allow these credits full application. The violation of section 3457(c)(1)(A) shown here falls within the first category of violations of the field sanitation standard the Board recognized in Emerald Produce, supra, failure to provide a facility at all. Therefore, the $750 minimum civil penalty mandated by Labor Code section 6712(d)(1) applies to Citation No. 1.

2. The Absence of a Toilet with a Handwashing Facility Establishes that Employer Failed to Provide a Facility Required by the Field Sanitation Standard. 

There is no dispute concerning Employer’s failure to provide a handwashing facility. Employer presented no evidence to contradict the Division’s evidence that no handwashing facility existed in conjunction with its toilet facilities. The Board finds that the evidence supports the conclusion that Employer failed to provide a handwashing facility as required by section 3457(c)(2)(A). This violation constitutes a failure to provide a facility required by the field sanitation standard, and the $750 minimum civil penalty mandated by Labor Code section 6712(d)(1) applies. 

As with Citation No. 1, the safety engineer’s testimony failed to provide evidence that death or severe physical harm would more likely than not result from the employees’ inability to wash their hands after using the toilet. The Board therefore finds that the violation is properly classified as general rather than serious. Because Employer’s appeal of only the reasonableness of the civil penalty opens the issue of the violation’s classification, the Board can, and based on the evidence, does reclassify the violation from serious to general.  

Shadbolt’s testimony did establish that the illnesses resulting from the inability of employees to wash their hands would more likely than not result in loss of more than one day of work or considerable temporary discomfort. These general violations are properly characterized as warranting a high gravity rating under section 335(a)(1)(A)i. Section 336(b) assigns a general violation of high gravity a base penalty of $2,000. Applying the same adjustment factors from section 336 for size and abatement set forth above in the discussion of Citation No. 1, the civil penalty would be reduced to $700. The violation of section 3457(c)(2)(A) shown here falls within the first category of violations of the field sanitation standard the Board recognized in Emerald Produce, supra, failure to provide a facility at all; thus, the $750 minimum civil penalty mandated by Labor Code section 6712(d)(1) applies to Citation No. 2. 

DECISION AFTER RECONSIDERATION
Docket No. 93-R3D2-1697 

The decision of the ALJ dated July 8, 1994, as to Citation No. 1 is reversed as to the classification of the violation as serious, and as to the assessment of a civil penalty of $100. The violation is reclassified as general, and a civil penalty of $750 is assessed.

Docket No. 93-R3D2-1698 

The decision of the ALJ dated July 8, 1994, as to Citation No. 2 is reversed as to the classification of the violation as serious and as to the assessment of a civil penalty of $100. The violation is reclassified as general, and a civil penalty of $750 is assessed.

JAMES P. GAZDECKI, Chairman
BILL DUPLISSEA, Member
BRYAN E. CARVER, Member

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
SIGNED AND DATED AT SACRAMENTO, CALIFORNIA-JUNE 25, 1998