BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 829|
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THIRD READING
Bill No: SB 829
Author: DeSaulnier (D)
Amended: 5/31/11
Vote: 21
SENATE LABOR & INDUSTRIAL REL. COMMITTEE : 5-0, 4/27/11
AYES: Lieu, DeSaulnier, Leno, Padilla, Yee
NO VOTE RECORDED: Wyland, Runner
SENATE APPROPRIATIONS COMMITTEE : 6-3, 5/26/11
AYES: Kehoe, Alquist, Lieu, Pavley, Price, Steinberg
NOES: Walters, Emmerson, Runner
SUBJECT : Division of Occupational Safety and Health:
Occupational
Safety and Health Appeals Board
SOURCE : State Building and Construction Trades Council
Worksafe, Inc.
DIGEST : This bill revises and recasts various provisions
regarding citations issued by the Department of Industrial
Relations, the persons or entities who are authorized to
participate as a party in an appeal before the Occupational
Safety and Health Appeals Board (Board), and the procedures
that govern the Board in hearing and deciding appeals. The
bill also makes other related clarifying and conforming
changes.
ANALYSIS : Existing law establishes the Division of
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Occupational Safety and Health (Division) in the Department
if Industrial Relations (DIR) to enforce employment safety
laws. Existing law authorizes the Division to conduct
hearings, inspections, and investigations regarding alleged
violations of employment safety laws and to issue citations
to employers. Existing law establishes in DIR, and
prescribes procedures for the appeals board to hear and
decide employer appeals of the division's enforcement
actions.
This bill revises and recast various provisions regarding
citations issued by DIR, the persons or entities who are
authorized to participate as a party in an appeal before
the Board, and the procedures that govern the Board in
hearing and deciding appeals. The bill also makes other
related clarifying and conforming changes.
Background
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 Board since 2009.
Critics were concerned that the Board's operational
practices made it harder for the Division of Occupational
Safety and Health 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 the Division employees wrote a letter
to the 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 Division's letter, were the effects of the actions
taken by the 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
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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 United States
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 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)
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
Fiscal Impact (in thousands)
Major Provisions 2011-12
2012-13 2013-14 Fund
Revision of employment
Unknown, major costs annually, Special*
safety appeals process ongoing
* Occupational Safety and Health Fund
SUPPORT : (Verified 5/31/11)
State Building and Construction Trades Council (co-source)
Worksafe, Inc. (co-source)
American Federation of Government Employees, Local 3172
Asian Law Caucus
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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
Engineers and Scientists of California
International Brotherhood of Electrical Workers, Local
Union 595
International Brotherhood of Electrical Workers, Local
Union 1245
International Longshore & Warehouse Union
Iron Worker Employer
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
OPPOSITION : (Verified 5/31/11)
Associated Builders and Contractors of California
Associated General Contractors of California
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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
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 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
ARGUMENTS IN SUPPORT : According to the author's office,
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's office argues that its procedures are also often
unfair to employers. Moreover, the author's office 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
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citations.
Specifically, the author's office 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's office 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's office, without more 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 addresses concerns over the
delay in correcting an unsafe condition once an appeal is
filed. This bill requires 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 grants 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 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's office believes that these changes will
better protect the working class and ensure a fair hearing
for all.
ARGUMENTS IN OPPOSITION : Opponents of the bill argue
that this bill undermines employer rights in Cal/OSHA
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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 disincentivize employers from appealing
citations, and easily penalizes employers when they do
appeal.
PQ:do 5/31/11 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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