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

In the Matter of the Appeal of:

SMITH BROTHERS FARMS, A PARTNERSHIP
(ALBERT M. SMITH)
1089 N. Garfield Avenue
Fresno, California 93722

*

Docket No.

1996-R2D5-1188

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 September 7, 1995, the Division of Occupational Safety and Health (Division) conducted an inspection at a grape vineyard maintained by Smith Brothers Farms, a partnership (Employer) at the Northwest corner of Belmont and Garfield, Fresno, California (the site). On March 6, 1996, the Division issued to Employer Citation No. 1, Item 2, alleging a general violation of section 3457(c)(1)(C), with a proposed 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 and classification of the violation, and contending that the abatement requirements and civil penalty were unreasonable. After a hearing on the appeal, an administrative law judge (ALJ) of the Board issued a decision on October 2, 1997, finding a general violation of section 3457(c)(1)(C) and assessing a civil penalty of $275. 

On October 27, 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 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 did not file an answer. The Division filed an answer on November 25, 1997. On December 1, 1997, the California Rural Legal Assistance Foundation (the Foundation) filed a petition for intervention including an amicus brief. On December 22, 1997, 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 five and six of the decision of the ALJ.  

On September 7, 1995, Associate Safety Engineer Suzanne Counsilman conducted an inspection at the site. Counsilman found two five-gallon coolers containing an adequate supply of drinking water. These coolers, however, were not equipped with drinking fountains, nor were any single-use cups available on or around the coolers. The person in charge at the site, Mrs. Ambriz Smith, confirmed that there were no cups at the facility and stated she would have to get some. 

Employer’s representative, William Smith, testified that Employer regularly maintained the facilities and that it was Employer’s practice to furnish single-use cups with the drinking water. William Smith also testified that the cups disappeared quickly, both in regular use and by employees taking the supplies with them. 

Based on this testimony, the ALJ found that the workers were without single-use paper cups for about an hour.

ISSUES 

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

2. 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?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION 

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

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.)

Section 3457(c)(1)(C) requires that employers provide single-use cups as part of a drinking water facility, unless the water container is fitted with a drinking fountain.  

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 that violations within the first two categories are subject to the $750 minimum civil penalty provided by Labor Code section 6712(d)(1). Violations in the third category where the employer can show it has the missing supplies available at the work site, that it inspects regularly to detect any absences or shortages of supplies, and that any such absence of the required supply was brief, will be treated as a failure to maintain, rather than a failure to provide, a facility required by the field sanitation standard. In such a case, the $750 minimum penalty does not apply, although a lesser penalty may be imposed. 

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. 

Applying the test from Emerald Produce to the facts of this case, the Division raised the presumption that Employer had failed to provide a facility required by the field sanitation standard. It did so by showing that during the inspection no single-use cups were available to employees at its drinking water facility and that the facility was not equipped with a fountain. Therefore, the $750 minimum civil penalty applies, unless the presumption is rebutted.

2. Employer Presented 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. 

William Smith testified that Employer’s regular practice was for Albert Smith to check on the facilities throughout every workday for supplies. Albert Smith had been away from the work site for about an hour at the time of the inspection. Counsilman inspected two toilet facilities and found them to be sanitary and adequately supplied with wash water, soap, hand towels and toilet paper. William Smith testified Employer has had difficulty in the past maintaining these supplies as employees frequently took single-use cups and other supplies with them. These supplies included first aid materials, hand towels, toilet paper, and cups.  

In consideration of the regular inspection schedule practiced by Employer, the ALJ found there was no showing by the Division that the cups had been unavailable long enough for Employer to have detected the violation and replenished the cup supply before the inspection. The ALJ also took into consideration the employer’s history of no previous violations.  

Based upon the totality of the evidence, Employer has rebutted the presumption that it failed to provide a facility required by the field sanitation standard when it had no cups available at the point of employee use. Instead, the violation was one of failing to maintain those supplies. The ALJ’s assessment of a civil penalty of $275 for the violation of section 3457(c)(3)(C) is upheld.

DECISION AFTER RECONSIDERATION 

The decision of the ALJ dated October 2, 1997, as to Citation No. 1, Item 2 is affirmed. A civil penalty of $275 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