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

In the Matter of the Appeal of:

MANUEL M. RODRIGUEZ
8261 Stine Road
Bakersfield, California 93313

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Docket No.

1996-R2D5-2789

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 place of employment maintained by Manuel M. Rodriguez (Employer) in an orchard on Zachary Road, one mile north of Famoso Road, Famoso, California (the site). On April 19, 1996, the Division issued to Employer Citation No. 1, Item 1, alleging a general violation of section 3457(c)(3)(C) [no toilet paper] with a proposed civil penalty of $750. Citation No. 1, Item 2 for violation of section 3457(c)(3)(B) [maintenance of toilet facilities] was withdrawn for good cause at the hearing. 

Employer filed a timely appeal from the citation, contesting the abatement requirements and contending that the proposed civil penalty was unreasonable. After a hearing on the appeal, an administrative law judge (ALJ) of the Board issued a decision on October 29, 1997. The ALJ found a general violation of section 3457(c)(3)(C), and reduced the proposed civil penalty from $750 to $150. 

On November 19, 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 toilet paper, or whether the absence of toilet paper constituted a failure to maintain a toilet facility, which arguably did not trigger the mandatory $750 minimum penalty.  

Employer did not file an answer. 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. The Division filed an answer on December 26, 1997.

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 April 19, 1996, Associate Safety Engineer Roy Camacho conducted an inspection of the site and observed there was no toilet paper in the dispensers of four toilets. He then cited Employer for a general violation of section 3457(c)(3)(C) for failure to provide toilet paper in the toilet facilities. 

Employer had approximately twenty-five workers thinning Asian pears with hand-held cutting tools. The crew foreman present at the inspection told the safety engineer that the extra supplies were in the superintendent’s truck. At the time of the inspection, the superintendent and his truck were absent. 

Employer testified that there was an established program of inspection and maintenance of the toilets every work morning. The toilets are also checked periodically each day and the superintendent, who is responsible for the toilet paper and other field sanitation supplies, is usually never away from the site for long. Rodriguez also noted difficulty in maintaining the toilet facilities because the employees frequently remove and take the rolls of toilet paper with them. 

ISSUES  

1. Does the absence of toilet paper presumptively establish a failure to provide a required facility? 

2. Did Employer present sufficient evidence to establish that the absence of toilet paper 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 Toilet Paper 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)(3)(C) requires that toilet paper shall be provided in suitable holders in each toilet unit.  

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 toilet paper, 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 that 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 toilet paper is 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. 

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 toilet paper was available to employees at its toilet facility. Therefore, the $750 minimum civil penalty applies, unless the presumption is rebutted.

2. Employer Presented Sufficient Evidence to Establish that the Absence of Toilet Paper Was a Failure to Maintain Rather Than a Failure to Provide a Facility Required by the Field Sanitation Standard. 

Employer established that it had a system of regular inspection. It cleaned and restocked each morning before work began. Employer regularly conducted subsequent inspections throughout the day. In this case, it is reasonably certain that the timing of the inspector’s visit coincided with that period of time when there was a momentary lapse in the restocking of the toilet facilities. This Employer rebutted the presumption that it had failed to provide a facility required by the field sanitation standard. The absence of toilet paper constitutes instead a failure to maintain the facility.  

The importance of Employers being consistently diligent in maintaining toilet facilities, including an adequate supply of toilet paper, cannot be overstated. As a matter of basic sanitation and human dignity, nobody, including those who work in California’s fields, should be deprived of something so basic and so essential. Our recognition that an employer who is reasonably diligent in properly servicing and maintaining toilet facilities should be treated differently than one who is not should not be viewed as one of tolerance for noncompliance with the requirements. As we noted in Emerald Produce, "assessing the same substantial penalty for both a ‘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." Therefore, the ALJ’s assessment of a civil penalty of $150 for the violation of section 3457(c)(3)(C) is upheld. 

DECISION AFTER RECONSIDERATION 

The decision of the ALJ dated October 29, 1997, as to Citation No. 1, Item 1 is affirmed. A civil penalty of $150 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