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

In the Matter of the Appeal of:

PHILIP GIBA FARMS
444 West Avenue, H-6
Lancaster, California 93534

*

Docket No.

1996-R2D5-2543

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 August 2, 1996, the Division of Occupational Safety and Health (Division) conducted an inspection at an onion field at the intersection of 50th Street East and P Street, Palmdale, California (the site). On August 5, 1996, the Division issued to Employer Citation No. 1 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 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 October 6, 1997, denying Employer’s appeal and affirming the civil penalty of $750.  

On October 28, 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 page two of the decision of the ALJ.  

On August 2, 1996, Associate Safety Engineer Roy Camacho conducted an inspection of the site. Camacho found that while Employer had provided employees with an adequate amount of potable drinking water, the water container was not fitted with a fountain, and no single-use cups were available. Employer provided only one common plastic cup. 

Employer testified it had provided single-use cups in the past, but based on employee preference, changed to the common cup several months prior to the inspection. The general practice was for the employees to rinse out the cup after each use. Employer testified it was unaware of the prohibition of common-use cups, and since he knew of the employees’ preference for the common cup, he made no attempt to provide employees with single-use cups. The ALJ found Employer was otherwise conscientious about meeting the requirements of the field sanitation standard. 

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 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 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.

2. 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 at one time supplied single-use cups to its employees, but for at least several months before the inspection, consciously decided to supply its employees with only a common cup for drawing drinking water. Therefore, Employer’s evidence is insufficient to rebut the presumption established by the Division’s evidence that it failed to provide a facility required by the field sanitation standard. Rather, the evidence establishes that Employer failed to provide a required part of a facility for a prolonged period and is therefore subject to the $750 minimum civil penalty. 

Employer’s evidence that it provided a common cup based on employee preference does not provide a defense, nor does it rebut the presumption that Employer failed to provide a required facility. Employee preference is not a ground for disregarding the requirements of any safety orders. In Certified Grocers of California, Ltd., OSHAB 78-607, Decision After Reconsideration (October 27, 1982), the Board held that employers are required to comply with all safety orders and are not permitted the discretion to decide when to follow a safety order, or substitute a safety measure for that required by a safety order. 

Thus, Employer failed to provide a facility required by the field sanitation standard. 

DECISION AFTER RECONSIDERATION 

The decision of the ALJ dated October 6, 1997, as to Citation No. 1 is affirmed. 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