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

In the Matter of the Appeal of:

EMERALD PRODUCE CO., INC.
P.O. Box 295
Chualar, California 93925

*

Docket No.

1996-R1D2-2679

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. The Board today announces in this case and five others its interpretation of Labor Code section 6712(d)(1).

 JURISDICTION 

On June 11, 1996, the Division of Occupational Safety and Health (Division) conducted an inspection at a place of employment maintained by Emerald Produce Co., Inc. (Employer) at Sugar Loaf Ranch, Old Stage Road, Salinas, California. On August 7, 1996, the Division issued to Employer Citation No. 1 alleging a general violation of section 3457(c)(1)(C). The Division proposed a civil penalty of $750, the minimum penalty provided by Labor Code section 6712(d)(1) for failure to provide a facility required by section 3457, the field sanitation standard. 

Employer filed a timely appeal from the citation, contesting the existence of the violation and contending that the civil penalty was unreasonable. After a hearing on the appeal, an administrative law judge (ALJ) of the Board issued a decision on September 19, 1997. The ALJ found a general violation of section 3457(c)(1)(C)-based on a failure to maintain, rather than a failure to provide, a facility required by the field sanitation standard. The ALJ assessed a civil penalty of $280. 

On October 17, 1997, the Board, on its own motion, ordered reconsideration in this case. The order limited the issue to whether the mandatory $750 minimum civil penalty applied because the employer failed to provide single-use drinking cups, or whether the absence of such cups constituted a failure to maintain a drinking water facility, which arguably did not trigger the mandatory $750 minimum penalty.

Employer filed a response on November 12, 1997. The Division filed a response on November 21, 1997. On November 17, 1997, the California Rural Legal Assistance Foundation (the Foundation) filed a petition for intervention, which included an amicus brief. On January 27, 1998, 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 ALJ’s decision. 

Golinda Vela-Chavez, Employer’s owner, testified that, over the course of a year, Employer employs 8,500 employees as agricultural laborers. At the time of the inspection Employer had 500 employees at Sugar Loaf Ranch, where it was performing agricultural services under agreements between the land owner and other parties. The employees working at the site where the citation was issued were hand-weeding a strawberry field. Drinking water was provided from a 15-gallon water jug not fitted with a fountain. The industrial hygienist cited Employer because (1) he did not see any single-use cups; (2) Employer’s foreman had none; and (3) the foreman’s only source of cups was a supervisor who was absent from the site. The industrial hygienist proposed the statutory minimum civil penalty of $750 because Employer had not provided single-use cups to the employees.

Vela-Chavez testified that supplies are left with second level supervisors to distribute to foremen as needed. Employer presented no evidence that it had a system of regular inspections to ensure single-use cups were available to employees. Vela-Chavez testified that, during the period of highest employment (April through October), Employer spends $1,800 a month on paper supplies, including paper cups. The amount was not itemized, nor did her testimony indicate what portion of the paper supplies ordered consisted of paper cups or other paper products to meet the field sanitation requirements of its work force.

ISSUES 

1. Does the absence of single-use drinking cups presumptively establish a failure to provide a required facility? 

2. May Employer rebut the presumption that it failed to provide a required facility by showing that it has regularly provided single-use cups and their absence was a temporary failure to maintain a required facility? 

3. Did Employer present sufficient evidence to establish that the absence of single-use drinking cups was a failure to maintain rather than a failure to provide a facility required by the field sanitation standard? 

PRELIMINARY CONSIDERATIONS IN INTERPRETING THE
APPLICABLE STATUTORY AND REGULATORY PROVISIONS 

At the outset, we are mindful that our role is not to substitute our view of what is wise public policy for the Legislature’s but to be faithful to the law as declared by the Legislature. As pointed out in the amicus brief of the California Labor Federation, "an administrative body like the Appeals Board must follow a command of the Legislature and cannot fail to enforce a statute unless the Legislature has given it the discretion to do so." The question is what does that command mean and when does it apply. The starting point in our analysis is to determine what authority the Legislature vested in the Board under Labor Code section 6712(d)(1). 

Where necessary to discern the meaning of the statutory language, it is appropriate to consider the intent of the Legislature in enacting the statute. (2A Sutherland, Statutory Construction (5th ed. 1992) 47.01, pp. 136-137.) Moreover, a statute should be construed to avoid giving it a strained meaning or one which leads to absurd results. (Id., 46.07, pp. 126-133.) 

Labor Code section 6712 was adopted in 1990 as part of Senate Bill 1341. (Chap. 1541, Stats. 1990.) Labor Code section 6712 directed the Occupational Safety and Health Standards Board (Standards Board) to promulgate a regulation at least as effective as the then recently-issued federal field sanitation standard (29 C.F.R. 1928.110, July 1, 1989) and existing state standards (Health & Saf. Code 3700; Lab. Code 2441). Prior to the Standards Board’s issuance of section 3457, only Title 17, sections 8003 through 8013 of the California Code of Regulations provided sanitation regulations specifically applicable to agricultural workers. 

One of the purposes of both Labor Code section 6712(d)(1) and section 3457 of Title 8, California Code of Regulations, was to give meaningful effect to the long-standing prohibition against the use of common cups by any workers. A prohibition against the use of common cups applicable to all employees dates back to at least 1917. (Stats. 1917, p. 1517.) "It has long been recognized that communicable diseases are readily transmitted by common drinking cups and the statutes in the present case were designed to safeguard employees against that hazard." (Parkhurst v. Industrial Accident Comm. (1942) 20 Cal.2d 826, 830.)  

It is also clear from reviewing the regulatory scheme for promoting workplace safety and health, as Intervenor Foundation asserts, that in enacting Senate Bill 1341, the source of Labor Code section 6712, the Legislature and Governor explicitly created field sanitation exceptions to the penalty scheme and the abatement rules which apply to other standards. At least one of the objectives in doing so was to reduce the costs of workers’ compensation by providing for field sanitation. 

Over the past several years, the applicability of the minimum penalty has been addressed in a number of appeals heard by ALJs who, without the benefit of a Decision After Reconsideration from the Board, have not always reached the same conclusion as to how the statute should be construed. Given the importance of agriculture to California and the importance of adequate sanitation facilities to the men and women who labor in the fields, the Board ordered reconsideration on its own motion of this and five other cases. By issuing this Decision After Reconsideration, the Board seeks to ensure that such appeals are handled consistently. 

The Board invited the filing of amicus briefs by the public, to make certain that it had the fullest understanding of the competing legal contentions. This was the first occasion in which the Appeals Board has invited briefing from the public on an issue before it. Amicus briefs were filed by the California Labor Federation, AFL-CIO; the Farm Bureau; the Western Growers Association and the California Farm Labor Contractors Association jointly (Western Growers); and the Agricultural Council of California (Agricultural Council). 

Labor Code section 6712(d)(1) mandates that an employer who fails "to provide a facility required by the field sanitation standard" shall be subject to a civil penalty of not less than $750. Another part of Labor Code section 6712, section 6712(a)(4), requires that toilet facilities be serviced and maintained. The statute does not define either provide or maintain nor does it indicate how, if at all, the two words are distinguishable. Accordingly, it is appropriate to consider what purpose the Legislature had in mind when it enacted Labor Code section 6712(d)(1).

The meaning of Labor Code section 6712(d)(1) depends upon the interpretation of the field sanitation standard, section 3457. The "facilities required to be provided by the field sanitation standard" referred to in Labor Code section 6712(d)(1) cannot be readily identified in section 3457. Section 3457 does not use the statute’s term provide consistently, nor does it set forth a definition of facility applicable to drinking water requirements; moreover, the regulation also uses the term maintain rather than provide to state many of its requirements. 

The amicus brief filed by the California Labor Federation, AFL-CIO, contends that the Appeals Board is not vested with authority to interpret Labor Code 6712(d)(1), citing Henning v. Division of Occupational Safety & Health (1990) 219 Cal.App.3d 748. In Henning, the court held that where statutory language was intelligible to a court, administrative agencies had no discretion to interpret it. The court held that, on the other hand, where "the intelligibility of the statutory language depends upon the employment of administrative expertise, . . . it is the purpose of the statutory scheme to invoke" the agency’s expertise to provide the required interpretation. (Henning, supra, at 219 Cal.3d at 758.) Labor Code section 6712(d)(1) is intelligible only after section 3457 has been interpreted. Labor Code section 6712(d)(1) therefore implicitly contains within it a delegation of interpretive authority by the Legislature to the Appeals Board. (Asimov, The Scope of Judicial Review of California Administrative Agencies (1995) 42 UCLA L. Rev. 1157, pp. 1198-1199.). 

This delegation is consistent with the Appeals Board’s role as the primary interpreter of the regulations in Title 8 of the California Code of Regulations promulgated by the Standards Board. The Appeals Board is one of the agencies whose special expertise in interpreting applicable regulations has been judicially recognized. (C.E. Buggy, Inc. v. Occupational Safety & Health Appeals Bd. (1989) 213 Cal.App.3d 1150, 1158; Davey Tree Surgery Co. v. Occupational Safety & Health Appeals Bd. (1985) 167 Cal.App.3d 1232, 1239; Asimov, supra. at 1198-1199.) Further, final assessment of what constitutes a reasonable civil penalty is vested with the Appeals Board. (Labor Code 6602, 6650.) 

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION 

The Board holds that the minimum civil penalty will apply when single-use cups are absent, unless the employer can show it made adequate efforts to provide them. The absence at the point of employee use of supplies (such as single-use cups) required by the field sanitation standard presumptively establishes a failure to provide a facility, subject to the $750 minimum civil penalty. An employer may rebut the presumption by showing that (1) the supplies were absent at the point of employee use for only a short time; (2) the missing supplies were readily available; and (3) there was an inspection system to ensure that supplies of single-use cups or other required supplies would be maintained. If the employer establishes all three elements, it will have rebutted the presumption. Such a violation shall then constitute a failure to maintain rather than to provide a facility, and, while it is still a violation, the $750 minimum penalty shall not apply.

The absence of required supplies from the point where they are accessible to employees is a failure to meet a requirement of the field sanitation standard, and therefore is a violation of that standard, whether or not it is subject to the Labor Code section 6712(d)(1) $750 minimum civil penalty. Absent highly unusual circumstances, a violation will be found whenever single-use cups or other supplies required by the field sanitation standard are missing at the point of employee use, and the appropriate penalty will be imposed. 

Statutory Provisions 

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.)

The Board must determine which violations of the field sanitation standard constitute a failure to provide a required facility, triggering the $750 minimum penalty mandated by Labor Code section 6712(d)(1). 

Simply finding all failures to meet any requirement of the field sanitation standard as subject to the $750 minimum civil penalty would not be faithful to the Legislature’s intent. Had the Legislature intended all requirements to be subject to the $750 civil penalty, the statute would have applied the minimum civil penalty to all failures to meet any requirement of the field sanitation standard, not just failures to provide facilities. The field sanitation standard includes separate requirements to allow reasonable use of the facilities, and to maintain them, in addition to the requirements to provide facilities. The reasonable use and maintenance requirements are not expressly included in the employer’s obligation to provide a facility, and therefore would not necessarily be subject to the $750 minimum civil penalty.

Key Statutory and Regulatory Terms Undefined 

Section 6712 contains no definition of the terms provide and facility. Section 3457 contains no definition of the terms provide and required, and no general definition of facility. Title 8 of the California Code of Regulations contains no definition of facility that would apply to section 3457. 

The term provide is not used in section 3457 in a way that identifies which requirements trigger the $750 minimum civil penalty. The term provide is not used in section 3457(c)(1)(C), the subdivision requiring single-use cups. The meaning of these statutory terms must largely be deduced from their context in section 3457 in light of the statutory and regulatory purposes to be achieved. 

Only the term facility is somewhat helpful in distinguishing to which requirements the $750 civil penalty applies from those it does not, because it is at least partially defined. The only definitions addressing what constitutes a facility in section 3457 are those of handwashing and toilet facilities, in section 3457(b): 

"Handwashing facility" means a facility providing either a basin, container, or outlet with an adequate supply of potable water, soap or other suitable cleansing agent, and single-use towels.

"Toilet facility" means a fixed or portable facility designed for the purpose of adequate collection and containment of the products of both defecation and urination which is supplied with toilet paper adequate to employee needs. Toilet facility includes biological, chemical, flush and combustion toilets and sanitary privies, in portable or [f]ixed form." (Emphasis added.)

While not directly applicable to the drinking water requirements of section 3457(c)(1), these definitions, as the only definitions of field sanitation facilities contained in section 3457, offer helpful guidance, by analogy, for construing what is a facility required by the field sanitation standard in this context.  

First, both definitions state that the facility is to be supplied, as appropriate, with potable water, soap, and single-use towels, or toilet paper. Therefore, the only available definitions of facilities in the field sanitation standard draw a distinction between parts of facilities that are in the nature of hardware, such as sinks and toilets, which once provided, are relatively permanent, and supplies, such as toilet paper and paper towels, which may be continuously used up during a working day and may therefore have to be repeatedly replenished. Single-use cups fall within the part of a facility that are supplies. Providing them means frequent inspection and replenishment are necessary. 

Second, the section 3457(b) definitions strongly suggest that when section 3457 uses the term facility, it refers to all the components named in the definition as collectively making up a facility required by section 3457. The toilet facility is the physical structure of the toilet and outhouse, supplied with toilet paper. Toilet paper is not a facility in and of itself.

Appropriateness of Minimum Civil Penalty 

The terms of the statute and regulation lead the Board to hold that failures to provide a facility fall into one of three classes. First, an employer may totally fail to provide any facility at all, both hardware and supplies. Second, an employer may provide the basic structure but substantially fail to supply or maintain it. Third, an employer may provide the facility and make a generally sufficient effort to inspect and replenish the required supplies, but a component is found by the inspection to have been missing only for a brief time.  

An employer who totally fails to provide a facility or who frequently or for prolonged periods fails to service and maintain a facility demonstrates a basic lack of concern about the safety and health of its employees. Such failure warrants a strong reminder to the employer of its duty to comply with the field sanitation standard. The $750 minimum penalty mandated by Labor Code section 6712(d)(1) is such a reminder.

On the other hand, a brief, infrequent service or maintenance lapse by an employer who provides a required facility and makes a good faith and reasonably diligent effort to keep it properly serviced and maintained does not establish that the employer needs an unusually high penalty to be effectively reminded of its field sanitation responsibilities. In fact, assessing the same substantial penalty for both a total "failure to provide" and a brief, non-pervasive "failure to maintain" might have the unintended effect of discouraging employers who are endeavoring to meet their field sanitation responsibilities. 

Based on these considerations, it seems logical that the Legislature intended the $750 minimum penalty mandated by Labor Code section 6712(d)(1) to apply to instances in which, for an appreciable time, a required facility or supply is not at a field where employees are working. It applies to instances in which the facility, though present, lacks required supplies, and the employer either has no supplies available or lacks a system to ensure exhaustion of supplies is detected and corrected within a reasonable time.

As Western Growers states in its amicus brief, "It does not make any sense to impose the same $750.00 fine for a failure to have any toilet facility whatsoever, versus imposing the same fine for an employer missing a roll of toilet paper, paper cups or hand towels." Stated somewhat differently by the Agricultural Council, application of what it calls the standard of strict liability advocated by the Division places "employers who temporarily and/or momentarily run out of a product, such as paper towels or single use cups, in the same category as employers who willfully fail to comply with any or all of the standards."

1. The Absence of Single-Use Drinking Cups Establishes a Rebuttable Presumption of a Failure to Provide a Required Facility. 

Where the duty imposed involves ongoing replenishment and replacement, it is much more important to encourage an ongoing process ensuring that supplies are checked and maintained than to end the inquiry as soon as it has been determined that the employer did not have any single-use cups or toilet paper in receptacles at the time of the inspection. 

When the section 3457 requirement is directed at an aspect of the facility that can only be maintained or supplied by ongoing replenishment, the Board believes that the failure to meet that requirement, if the failure was brief and exceptional, is more accurately characterized as a maintenance violation. 

The Board holds that when single-use cups are missing at the point of employee use, a rebuttable presumption arises that a failure to provide a facility required by section 3457 has been established-and a civil penalty of at least $750 will apply. This holding is consistent with the Legislature’s intent to give meaningful effect to the prohibition against common drinking cups through the $750 minimum penalty provision in Labor Code section 6712.

2. An Employer May Rebut the Presumption It Has Failed to Provide a Required Facility by Showing It Has Regularly Provided Single-Use Cups and Their Absence Was a Temporary Failure to Maintain a Required Facility.

The raising of this presumption does not mean the employer may not show it has been providing the facilities and that the absence was a temporary breakdown in its maintenance efforts. The burden, however, shifts to the employer to establish that it has made a reasonably diligent effort to check and replenish supplies, and that the interruption in their availability was brief. Absent such a showing, the employer is subject to the $750 minimum penalty, or more, if appropriate. 

Whether the absence of single-use cups is a failure to provide or a failure to maintain, a violation of the field sanitation standard exists. The issue is not whether there is a violation but rather whether the statutory minimum penalty of $750 must be assessed. 

The Division argues that the ALJ’s decision holding that the violation was a failure to maintain and not to provide a facility must be reversed. The Division contends that when cups are absent, employees are left with the choices of drinking no water at all or drinking only contaminated water, and that a penalty of at least $750 must be assessed.

The Board disagrees with the Division. Well attended facilities will occasionally run out of supplies even where the employer has a system to check and replenish them. Where the employer has a system to bring required supplies to the work place and makes regular inspections to check for their exhaustion and to replenish them, the employer cannot be characterized as not providing its employees with a facility required by the field sanitation standard. We therefore conclude that Labor Code section 6712(d) does not require the $750 minimum civil penalty where the employer has met its obligation to provide supplies, with only an unusual and brief exception.

3. Employer Did Not Present Sufficient Evidence to Rebut the Presumption That It Failed to Provide a Facility Required by the Field Sanitation Standard. 

Employer’s evidence in this case was insufficient to rebut the presumption that it failed to provide a facility required by the field sanitation standard. While it was able to show that it had supplies of single-use cups available, it failed to establish that the absence of single-use cups was brief, and that it had a system in place to inspect the facility to ensure cups were available. 

Employer’s owner testified that its foremen were instructed to keep the drinking water tanks supplied with single-use cups. No evidence of a system for checking supplies at the strawberry field where the inspection took place was presented. The absence of any used cups on the site, either discarded on the ground or collected in refuse containers, strongly suggests that the absence of single-use cups was not a brief or momentary lapse in a sufficient maintenance effort. Finally, while Employer’s owner testified that it spent $1,800 a month on paper supplies during its six busiest months, no evidence was presented as to how much of the $1,800 was for the purchase of single-use cups or any other field sanitation supplies required by section 3457. The paper supplies could have included paper to be used for packing and harvesting or office use. 

Because Employer failed to establish that it made an adequate effort to reasonably ensure that the required supplies were accessible to employees at the point of use, the Board will affirm the decision of the ALJ finding a general violation of section 3457(c)(1)(C). The Appeals Board holds that Employer failed to provide facilities required by section 3457, and that the $750 minimum civil penalty required by Labor Code section 6712(d)(1) be imposed.

 DECISION AFTER RECONSIDERATION 

The decision of the ALJ dated September 19, 1997, as to Citation No. 1, is reversed as to the assessment of a civil penalty of $280. A civil penalty of $750 is assessed against Employer. In all other respects, the decision is affirmed.

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