BILL ANALYSIS Ó
Senate Committee on Labor and Industrial Relations
Ted W. Lieu, Chair
Date of Hearing: April 27, 2011 20011-2012 Regular
Session
Consultant: Alma Perez Fiscal:Yes
Urgency: No
Bill No: SB 829
Author: DeSaulnier
Version: As amended March 24, 2011
SUBJECT
Division of Occupational Safety and Health: Occupational Safety
and Health Appeals Board
KEY ISSUE
Should the Legislature restructure the appeals process for
Division of Occupational Safety and Health (DOSH) citations with
the addition of abatement requirements during an appeal?
Should the Legislature give a family member of an employee and
other specified entities the right to file a complaint with DOSH
regarding an unsafe place of employment?
Should the Legislature allow a deceased worker's family member
to participate in an appeal pending before the Occupational
Safety and Health Appeals Board?
PURPOSE
To revise various provisions regarding citations issued by the
Division of Occupational Safety and Health (DOSH), the persons
or entities who are authorized to participate as a party in an
appeal before the Occupational Safety and Health Appeals Board,
and the procedures that govern the appeals board in hearing and
deciding appeals.
ANALYSIS
With the passage of the Occupational Safety and Health Act of
1970 , Congress created the Federal Occupational Safety and
Health Administration (Federal OSHA) as part of the United
States Department of Labor to ensure safe and healthful working
conditions for working men and women by setting and enforcing
standards and by providing training, outreach, education and
assistance. The OSH Act covers employers and their employees
either directly through federal OSHA or through an OSHA-approved
state program. State programs must meet or exceed federal OSHA
standards for workplace safety and health.
The California Occupational Safety and Health Act of 1973 was
enacted to ensure safe and healthful working conditions for all
California workers by, among other things, authorizing the
enforcement of effective standards as well as assisting and
encouraging employers to maintain safe and healthful working
conditions. The Division of Occupational Safety and Health
(DOSH, also known as Cal/OSHA), within the state Department of
Industrial Relations (DIR), is charged with enforcing
occupational health and safety laws, orders, and standards,
including the investigation of alleged violations of those
provisions.
Existing law empowers DOSH to cite an employer if, upon
inspection or investigation, DOSH believes that the employer has
violated safety laws or any standard, rule, order, or regulation
created through existing law. The citation must be in writing
and include the particular nature of the violation and a
reasonable time for the abatement of the alleged violation.
The Occupational Safety and Health Appeals Board (OSHAB/Appeals
Board), also within DIR, is a three-member judicial body
appointed by the Governor and confirmed by the Senate, which
handles appeals from private and public-sector employers
regarding citations issued by DOSH for alleged violations of
workplace safety and health laws. Employers may contest the
existence of violations alleged in a citation, as well as the
amount of any proposed civil penalty, within 15 working days of
its receipt. (Labor Code §6600) After review and/or a hearing,
OSHAB must issue a decision, based on findings of fact,
affirming, modifying, or vacating DOSH's citation, order, or
proposed penalty, or directing other appropriate relief.
Hearing Date: April 27, 2011 SB 829
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Senate Committee on Labor and Industrial Relations
This Bill would make a number of changes to existing law
governing the Occupational Safety and Health Appeals Board, the
appellate process which it governs, and other related clarifying
and conforming changes.
Specifically, this bill would:
Provide that in adjudicating appeals, the Appeals Board
is subject to and shall apply the rules and regulations
adopted by the Department of Industrial Relations, the
Division of Occupational Safety and Health, and the
standards and orders adopted by the Occupational Safety and
Health Standards Board in order to ensure safe and healthy
working conditions.
Allow the Appeals Board to award reasonable costs,
including attorney's fees, consultant's fees, and witness'
fees, not to exceed five thousand dollars ($5,000) to the
division if 1) it prevails in an appeal filed by the
employer or the appeal is withdrawn, and 2) the Appeals
Board finds that the employer acted in bad faith or had no
factual basis for filing the appeal.
Allow a family member, a community member, employee, or
legal organization to file a complaint with the Division of
Occupational Safety and Health regarding an unsafe place of
employment, giving the Division the opportunity to begin an
investigation.
Require employers that appeal a citation to abate the
hazard pending a decision unless the employer request a
stay of abatement and provides evidence that either no
worker will be exposed to the hazard or the hazard is
unlikely to cause death or serious injury, illness or
exposure to any worker.
o The employer may request a hearing before the
Appeals Board on this issue upon payment of a filing
fee of $250 dollars.
o The Appeals Board may grant a stay of
abatement pending an appeal if certain specified
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criteria are met.
Whenever a citation has been issued, require the Appeals
Board to permit the following individuals to participate in
an appeal and to contest specified characteristics of the
violation:
o An employee or his or her representative, as
specified;
o A union that has a collective bargaining
agreement with any employer that covers the cited
employer's place of employment;
o A deceased worker's successor in interest,
heir, beneficiary, or other representative;
Revise the procedures followed by the Appeals Board in
scheduling hearings, including, requiring the Appeal Board
to ensure that all parties participate fully in any
hearing, receive notices, be permitted to subpoena
witnesses and documents, offer evidence, examine and
cross-examine witnesses, and argue and submit briefs.
Allow specified parties to object, within 15 working
days of notice of a settlement agreement between the
employer and the division, to provisions regarding the
characterization of a violation, as specified.
Require the Appeals Board to provide for the scheduling
of hearings in a manner designed to minimize inconvenience
to the division and all parties and witnesses who are
required to attend the hearings, as specified.
Require the Appeals Board to establish a settlement
program designed to bring the parties to an agreement at
the earliest possible stage of the appeals.
Make several findings and declarations specifying the
duties of the Appeals Board in furthering the purposes of
the Division of Occupational Safety and Health in ensuring
a safe and healthful working environment, as specified.
At any time before an appeal is submitted for decision,
allow the division to add or delete a citation or amend a
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citation or order by adding or striking out the name of any
party, correcting a mistake in the name of a party, or
correcting a clerical error or mistake in any other
respect. The Appeals Board may allow the employer to
amend, according to proof presented by the employer, the
basis of its appeal.
o Each party shall be given notice of the
intended amendment and an opportunity to object, as
specified.
Specify that whenever a case is within the jurisdiction
of the Bureau of Investigations, as specified, the Appeals
Board shall continue any hearing upon the written request
of the division, employer, or any prosecuting attorney with
jurisdiction over a criminal case involving the citation
for which an appeal has been filed.
Require an employer to give notice of any appeal filed
to its employees by posting the docketed appeal form,
participation notice, and notice of hearing at or near the
site of the alleged violation, or as specified. In
addition, the employer would be required to provide notice
to each union, if any, with which it has a collective
bargaining agreement. If an employee was injured or killed
as a result of the alleged violation being appealed, the
employer shall also provide notice to the employee or, if
the employee is deceased, the
employee's family.
For filed petitions for reconsideration, require the
Appeals Board to issue an opinion or order within 90 days
of the filing of the petition for reconsideration. Also if
additional evidence is required, the Appeals Board shall
set a hearing for the taking of additional evidence within
60 days of the filing of the petition for reconsideration.
COMMENTS
Hearing Date: April 27, 2011 SB 829
Consultant: Alma Perez Page 5
Senate Committee on Labor and Industrial Relations
1. Background on Occupational Safety and Health Appeals Board
Oversight
Over the past couple of years, concerns have been raised
regarding the Occupational Safety and Health Appeal Board's
operational practices and the effect of these practices on
appeal outcomes. As a result of the concerns raised by
stakeholders, this and other Committees in the Legislature
have conducted oversight hearings on the Appeals Board since
2009. Critics were concerned that the board's operational
practices made it harder for DOSH to prosecute employers who
violate the state's workplace health and safety laws and led
to the more frequent use of fine and penalty reductions to
settle cases -- many times settling cases that both the
division and employers otherwise would not have agreed to.
On June 13, 2009, 47 DOSH employees wrote a letter to the
Appeals Board protesting the board's policies and practices
and demanding that the board "cease and desist" from practices
they believe undermine their ability to protect workers.
Among the concerns raised at the hearings and in the DOSH
letter, were the effects of the actions taken by the Appeals
Board to reduce the backlog of appeals cases such as the
scheduling of several hearings per day involving the same
judge and staff, denying or even ignoring justified
continuance requests, the scheduling of hearings in remote
locations -- making it difficult for witnesses to attend
hearings, dismissing cases on technicalities, and conducting
drastic penalty reductions.
Some advocates have alleged that the combination of these
factors have resulted in a situation where unscrupulous
employers can utilize the appellate process to delay
enforcement of the law designed to protect workers.
On September 28, 2010, the Federal Occupational Safety and
Health Administration (Fed-OSHA), within the U.S. Department
of Labor, released an audit highlighting several deficiencies
both at the Division of Occupational Safety and Health and the
Occupational Safety and Health Appeals Board. According to the
federal audit, the state's standards and enforcement policies
and procedures differ significantly from the federal and as
result raise questions regarding their equivalent
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Senate Committee on Labor and Industrial Relations
effectiveness. Of particular concern to Fed-OSHA was the
appeals process administered by the OSH Appeals Board which
raised serious concerns about both the procedures and the
results of the process. (Federal Annual Monitoring and
Evaluation Report (FAME), U.S. Department of Labor -
Occupational Safety and Health Administration, 2010)
2. Need for this bill?
Over the past couple of years, the Committee has seen efforts
by the Appeals Board to address some of the concerns
previously raised by advocates by making changes to the
scheduling of hearings -- limiting it to two per day per ALJ,
using Fresno as an additional venue for holding hearings, and
considering regulatory changes to address the board's
practices on requests for continuances. The Appeals Board
also addressed the problem of abatement while a case is under
appeal by creating the Expedited Abatement Hearing Pilot
Project, which dealt with cases involving serious, willful
and/or repeat violations and completed the appeal process for
these cases within four months. The Appeals Board is
considering regulatory changes to make this pilot project
permanent and to address other issues of concern to
stakeholders. There are, however, several issues that critics
believe the Appeals Board still needs to address. For this
purpose, the author has introduced this bill to revise various
provisions regarding citations issued by the department, the
persons or entities who are authorized to participate as a
party in an appeal before the appeals board, and the
procedures that govern the appeals board in hearing and
deciding appeals. The bill also would make other related
clarifying and conforming changes.
3. Suggested Amendments :
One of the provisions of this bill would require that the
Appeals Board issue an opinion or order within 90 days of the
filing of a petition for reconsideration, or upon having
granted reconsideration on its own motion. Labor Code
Sections §6620 and §6622 both reference these provisions and
are both being amended with this bill, however, Labor
Code§6621 also addresses the procedures for petitions for
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Senate Committee on Labor and Industrial Relations
reconsideration. The author should consider amending Labor
Code §6621 to also reference the 90 day timeline in this code
section and make it consistent with the other changes proposed
in this bill.
Amendment:
Labor Code 6621. If at the time of granting reconsideration,
it appears to the satisfaction of the appeals board that no
sufficient reason exists for taking further testimony, the
appeals board may affirm, rescind, alter or amend the order or
decision made and filed by the appeals board or hearing
officer and may, without further proceedings, without notice,
and without setting a time and place for further hearing,
enter its findings, order or decision based upon the record in
the case. The appeals board shall issue an opinion or order
within 90 days of the filing of the petition for
reconsideration.
Additionally, the author may also wish to consider technical
amendments as suggested by Senate Engrossing and Enrolling.
4. Proponent Arguments :
According to the author, the Occupational Safety and Health
Appeals (OSHA) Board has, for several years, followed
procedures and ruled in ways that undermine safety and health
laws and regulations that are meant to protect workers.
Additionally, the author argues that its procedures are also
often unfair to employers. Moreover, the author argues that
the Board has also adopted procedures and evidentiary
standards that are more onerous than many courts, thereby
undermining the division's ability to defend their citations.
Specifically, the author cites instances where the Board has
ignored minimum penalty amounts mandated by statute and
permits the abatement of unsafe conditions to be stayed
pending the outcome of an appeal which results in hazards
going uncorrected for years. Also of concern to the author is
the Board's practice of denying party status to the collective
bargaining agent of workers and to the family members of
deceased workers. According to the author, without more
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Senate Committee on Labor and Industrial Relations
oversight by workers, including the authority to appeal the
characterization of a violation and object to settlements,
employers can get away with minimal penalties that do not
deter bad actors and put the safety of workers at risk.
According to proponents, this bill contains a number of
important changes one of which would address concerns over the
delay in correcting an unsafe condition once an appeal is
filed. This bill would require employers that appeal a
citation to abate the hazard pending a decision unless the
employer provides evidence that either no worker will be
exposed to the hazard or the hazard is unlikely to cause death
or serious injury, illness or exposure to any worker.
Additionally, this bill would grant workers the right to
challenge the adequacy of a citation and will allow families
to have the right to full participation on behalf of a loved
one who has been killed in a workplace incident.
Proponents argue that the safety and health of workers on the
job should be the Appeal Board's primary concern and the
appeals process should not allow for their continued exposure
to hazardous working conditions. Proponents argue that this
bill will refocus the Board on protecting worker health and
safety and assure a fair hearing for all by clarifying
existing laws to ensure that the board complies with both the
"spirit of the law" and the "letter of the law." The author
believes that these changes will better protect the working
class and ensure a fair hearing for all.
5. Opponent Arguments :
Opponents of the bill argue that this bill undermines employer
rights in Cal/OSHA citation appeals. According to opponents,
this bill makes sweeping changes to and imposes new burdens
and fees to the procedures of the Cal/OSHA Appeals Board,
disadvantaging employers and increasing costs to the board and
to employers. According to
opponents, all employers have the right to appeal a Cal/OSHA
citation and proposed penalty for any number of reasons.
Opponents argue that in creating overly complex requirements,
the provisions of this bill would disincentivize employers
from appealing citations, and easily penalizes employers when
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they do appeal.
According to opponents, employers need certainty and,
unfortunately this bill creates a system in which employers
never know when the process is final, or what they can expect.
In addition, opponents argue that by allowing anyone to
participate as a party and hold employers potentially liable
for excessive fees and costs, certainty and fairness for
employers are severely compromised. Opponents believe that
the provisions of this bill create an unfair system designed
to penalize employers and discourage them from exercising
their rights to file an appeal.
Regarding the various provisions of this bill, opponents are
concerned that it would, among other things, require the
Appeals Board to liberally construe safety order in favor of
employees; it would allow anyone, even a party that was not a
participant in the appeals hearing, to seek judicial review at
a later date increasing litigation costs and uncertainty; it
would remove the Appeal Board's independence from the
Division; it would impose an unreasonable filing fee of $250
for an employer to request an abatement hearing, discouraging
employers from exercising their right to file an appeal; it
would unjustly and unreasonably expand who can participate in
an appeal as a party; it would award attorney's fees,
consultants fees, witness fees from the employer to the
Division if the division prevails, creating an unjustified
penalty on the employer; and requires the Appeals Board to
follow short timelines for decision after reconsideration
(DARs) which with the limited resources of the board, would
limit the board's ability to prioritize their work.
Overall, opponents of the measure argue that employers have
rights to due process under the law and this bill would
undermine those rights by expanding the authority of those who
wish to be involved, and further contributing to costs and
uncertainty.
6. Prior Legislation :
AB 2774 (Swanson) of 2010: Chapter 692, Statutes of 2010
This bill established a rebuttable presumption as to when an
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Senate Committee on Labor and Industrial Relations
employer commits a serious violation of the provisions
requiring an employer to provide employees with a safe
workplace, as specified, and establishes new procedures and
standards for an investigation and the determination by the
division of a serious violation by an employer which causes
harm or exposes an employee to the risk of harm.
AB 1988 (Swanson) of 2008: Died in Senate Appropriations
Committee
This bill would have made a number of changes to existing law
governing the Occupational Safety and Health Appeals Board
(OSHAB), the appellate process which it governs, and workplace
safety generally. Among other things, this bill would have
required an employer with 25 or more employees to pay a fee of
$250 for filing an appeal and would have provided a process to
be followed by employers seeking a stay of abatement of
violations cited.
SUPPORT
State Building and Construction Trades Council - Sponsor
Worksafe, Inc. - Co-Sponsor
American Federation of Government Employees, Local 3172
Asian Law Caucus
Asian Pacific American Legal Center
Building and Construction Trades Council of Alameda County,
AFL-CIO
California Alliance for Retired Americans
California Conference Board of the Amalgamated Transit Union
California Conference of Machinists
California Employment Lawyers Association
California Labor Federation, AFL-CIO
California Nurses Association
California Teamsters Public Affairs Council
Communications Workers of American, AFL-CIO
Consumer Attorneys of California
East Bay Alliance for a Sustainable Economy (EBASE)
Engineers and Scientists of California
International Brotherhood of Electrical Workers, Local Union 595
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Senate Committee on Labor and Industrial Relations
International Brotherhood of Electrical Workers, Local Union
1245
International Longshore & Warehouse Union
National Council for Occupational Safety and Health
National Lawyers Guild, Labor & Employment Committee
Professional & Technical Engineers, Local 21
San Diego County Building & Construction Trades Council, AFL-CIO
San Mateo County Central Labor Council
Southern California Coalition for Occupational Safety & Health
UNITE HERE!
UNITE HERE, Local 2850
United Food and Commercial Workers Union, Western States Council
United Steelworkers, Local 675
United Union of Roofers, Waterproofers and Allied Workers, Local
81
University Professional & Technical Employees-Communications
Workers of American, L.9119
54 Constituents
OPPOSITION
Associated Builders and Contractors of California
Associated General Contractors of California
Associated Roofing Contractors of the Bay Area Counties
California Association of Sheet Metal and Air Conditioning
Contractors' National Association
California Attractions and Parks Association
California Automotive Business Coalition
California Beer and Beverage Distributors
California Chamber of Commerce
California Chapter of the American Fence Association
California Citrus Mutual and Nisei Farmers League
California Cotton Growers Association
California Cotton Ginners Association
California Farm Bureau Federation
California Fence Contractors' Association
California Framing Contractors Association
California Grape and Tree Fruit League
California Grocers Association
California Hospital Association
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Senate Committee on Labor and Industrial Relations
California League of Food Processors
California Manufacturers and Technology Association
California Professional Association of Specialty Contractors
California Retailers Association
Construction Employers' Association
District Council of Iron Workers/California Iron Worker Employer
Council (DCIW/CIEC)
Engineering Contractors' Association
Flasher/Barricade Association
Marin Builders Association
Residential Contractor's Association
Robert D. Peterson Law Corporation
Walter & Prince, LLP
Western Agricultural Processors Association
Western Growers
Western Steel Council
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Senate Committee on Labor and Industrial Relations