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

In the Matter of the Appeal of:

RANGEL’S LABOR CONTRACTING
10260 South Cornelia
Fresno, California 93706

*

Docket No.

1996-R2D5-2288
and 2289

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 April 19, 1996, the Division of Occupational Safety and Health (Division) conducted an inspection at a grape vineyard maintained by Rangel’s Labor Contracting (Employer) at Bullard and Leonard, Clovis, California (the site). On June 20, 1996, the Division issued to Employer Citation No. 1, alleging a general violation of section 3457(c)(1)(C), [single-use drinking cups] with a proposed civil penalty of $750 and Citation No. 2, alleging a serious violation of section 3457(c)(2)(A) [toilet facilities], also with a proposed civil penalty of $750. 

Employer filed a timely appeal from the citations, contesting the existence of the violations, and contending that the civil penalties were unreasonable. At the hearing, Employer contended that the classification of Citation No. 2 as serious was incorrect. After the hearing on the appeal, an administrative law judge (ALJ) of the Board issued a decision on June 26, 1997, finding a general violation of section 3457(c)(1)(C) and assessing a civil penalty of $50. The ALJ also found a violation of section 3457(c)(2)(A), but reduced the classification from serious to general, and assessed the $750 minimum civil penalty provided by Labor Code section 6712(d)(1). 

On July 25, 1997, the Board, on its own motion, issued an order of reconsideration in this case, limiting the issues to when it was appropriate to impose a civil penalty of $750 pursuant to Labor Code section 6712(d)(1), and whether an employer can satisfy its field sanitation obligations by making arrangements with another party to provide facilities. 

Employer did not file an answer. The Division filed an answer on August 28, 1997. On August 29, 1997, the California Rural Legal Assistance Foundation (the Foundation) filed a petition for intervention, including an amicus brief. On October 3, 1997, the Foundation was granted intervenor status. On November 7, 1997, the Foundation filed a supplemental brief.

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 through four of the decision of the ALJ.  

On April 19, 1996, Associate Safety Engineer Suzanne Counsilman conducted an inspection after receiving a call informing her that there were no toilet facilities in the strawberry field on the northwest corner of Bullard and Leonard in Clovis. While there, she did not see any single-use drinking cups. At the time of inspection, Employer’s water facility consisted of a water jug filled with water and a plastic coffee mug, the personal possessions of the foreman and an employee. There were no single-use cups available, and the jug did not have a fountain. She issued a citation alleging a general violation of 3457(c)(1)(C) and proposed a civil penalty of $750. 

Counsilman was also shown two toilet facilities 1/4 mile from the site, one for women and one for men. Neither belonged to Employer, and each had the name "Castillo," another farm labor contractor, painted on them. The facility had no soap or paper towels, and the men’s stall had no toilet paper. Counsilman issued a citation alleging a serious violation of section 3457(c)(2)(A) for not providing a toilet facility at all and proposing a $750 civil penalty. Counsilman testified that Employer objected to being cited for violations found at the Castillo toilet facilities, both because they belonged to another employer, and because he could potentially be cited for more than one violation because of the separate deficiencies in the toilet and handwashing facilities. Rather than cite Employer for these violations, Counsilman issued the citation alleging Employer had failed to provide its own toilet facilities at the Bullard and Leonard site, proposing a single $750 civil penalty. 

Thomas Rangel, Employer, testified that his foreman had informed him by mobile telephone that the crew was moving to the Bullard and Leonard site. Employer presented no evidence that either he or his foreman mentioned the existence of sanitation facilities at the Bullard and Leonard site, or checked to ensure the presence of supplies of cups, soap, and towels before employees began working there. Employer presented no evidence that it had a practice of inspecting its field sanitation facilities before work started or while employees were working. Rangel testified that he had been told by the owners of the Bullard and Leonard property that there were toilets there. 

Rangel had his own toilet facilities at another site on Herndon Avenue, also in Clovis. Rangel testified that he went to the Herndon site to transport the toilet facilities to the site at Bullard and Leonard. At the Herndon site, he noticed that there were single-use cups by the water jug and thought that an employee had left them behind, so he put them in his truck to take them to the Bullard and Leonard site. By the time he arrived, the safety engineer had left.

The safety engineer stated that work began at the Bullard and Leonard site at 9:30 a.m., and that Rangel arrived with his own toilets at about 11 a.m. She testified that neither the foreman nor any employee notified her that toilet facilities were being transported to the new site.

ISSUES 

1. Does the Appeals Board have the authority to assess a civil penalty of less than $750 for failing to maintain, as opposed to failing to provide, field sanitation facilities in violation of section 3457? 

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

4. Did Employer’s reliance on another employer’s toilet facilities satisfy its obligation to provide a toilet facility? 

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION 

1. The Appeals Board Has the Authority to Assess a Civil Penalty of Less than $750 for Failing to Maintain, as Opposed to Failing to Provide, Field Sanitation Facilities in Violation of Section 3457. 

In Emerald Produce Co., Inc., OSHAB 96-2679, Decision After Reconsideration, issued this same date, the Appeals Board held that not all violations of section 3457 constitute failures to provide facilities required by the field sanitation standard. Where the absence of supplies required by the field sanitation standard was brief, and the employer could show that it had a practice of inspecting to ensure that such supplies were available to employees, and these supplies were available, then the violation would constitute a failure to maintain a facility rather than a failure to provide one. Employer would therefore not be subject to the $750 minimum civil penalty mandated by Labor Code section 6712(d)(1). 

2. The Absence of Single-Use Drinking Cup 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 fountain.

In Emerald Produce, 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 of 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 that 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.

3. Employer Did Not 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. 

Employer showed that it had supplies of single-use cups in reasonable proximity to the Bullard and Leonard site. It therefore established one of the three elements required to rebut the presumption that the $750 minimum civil penalty applied to its failure to have single-use cups at the site while employees were performing agricultural hand labor.

Employer failed to establish that it met the second element-that it had a system for inspecting the facilities which its employees would be using to ensure that supplies were in place before they began work, and for periodically checking to ensure that such supplies were adequately maintained. Rather, the evidence supports the inference that no inspection of any of the facilities was undertaken before work began.  

While Rangel had taken steps to provide some field sanitation facilities, his efforts fell short of that required to establish that the absence of single-use cups was a failure to maintain rather than a failure to provide required field sanitation facilities. Rangel spoke to his foreman by mobile telephone before work started. There was no evidence that either Rangel or his foreman mentioned the need to check for the presence of required supplies, including single-use drinking cups, or to put them in place if they were missing. Employer presented no evidence of any established system for checking the facilities for supplies and maintenance, or that the facilities had been inspected before Rangel’s employees began work. 

Employer therefore failed to rebut the presumption that it failed to provide a facility required by the field sanitation standard. The absence of single-use cups at the point of employee use therefore establishes 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. The Board therefore reverses the decision of the ALJ as to the civil penalty assessed. 

4. Employer’s Reliance on Another Employer’s Toilet Facilities Failed to Satisfy Its Obligation to Provide a Toilet Facility. 

An employer may contract with others to provide field sanitation facilities. Such arrangements are common in the provision of toilets and hand washing facilities. The mere fact that an employer does not own the toilet and handwashing facilities made available to employees does not in itself constitute a violation of section 3457(c)(2)(A). 

While an employer may contract with a vendor or another employer who owns toilet and handwashing facilities to provide and maintain them to its work force, the employer to whose employees such services are provided is not excused if the facilities do not comply with the requirements of the field sanitation standard. As the Foundation points out, the Board has long held that an employer cannot delegate its responsibilities under the Act to another. (MCM Construction, Inc., OSHAB 92-436, Decision After Reconsideration (May 23, 1995).) 

Employer’s understanding that a toilet facility was on the Bullard and Leonard site was insufficient to establish that it provided the required facility. No evidence was presented that Employer or the land owner on whose property the work was to be done had any control over the toilet facility. Neither Employer nor the land owner were shown to have had any legal basis to prevent the owner of the toilets at any time from moving the toilets to another site, just as Rangel removed his toilets from the Herndon site to the Bullard and Leonard site. Further, Employer assumed no responsibility for ensuring that the facilities were in compliance with the requirements of the field sanitation standard. Employer’s foreman could easily have checked for toilet paper, soap, and paper towels, and corrected any deficiencies.  

The Appeals Board finds no basis for disturbing the ALJ’s finding of a violation and assessment of the $750 minimum penalty for Citation No. 2. 

DECISION AFTER RECONSIDERATION 

The decision of the ALJ dated June 26, 1997, as to Citation No. 1, is reversed as to the assessment of a civil penalty of $50. 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