BILL ANALYSIS Ó
Senate Committee on Labor and Industrial Relations
Senator Ben Hueso, Chair
Date of Hearing: June 11, 2014 2013-2014 Regular
Session
Consultant: Gideon L. Baum Fiscal:Yes
Urgency: No
Bill No: AB 1634
Author: Skinner
As Introduced/Amended: February 10, 2014
SUBJECT
Occupational safety and health: violations.
KEY ISSUE
Should the Legislature require that the Occupational Safety and
Health Appeals Board (OSHAB) only be permitted to stay the
abatement of a serious, willful or repeat violation if the
Division of Occupational Safety and Health (DOSH) determines
that a stay of the abatement will not adversely impact the
health and safety of employees?
ANALYSIS
Existing law provides the California Occupational Safety and
Health Act of 1973 for the purpose of assuring safe and
healthful working conditions for all California working men and
women by authorizing the enforcement of effective standards,
assisting and encouraging employers to maintain safe and
healthful working conditions, and by providing for research,
information, education, training, and enforcement in the field
of occupational safety and health.
(Labor Code §6300)
Existing law provides that the Division of Occupational Safety
and Health (DOSH) may, among other things, require the
performance of any act which the protection of the life and
safety of the employees in places of employment reasonably
demands through a special order or action order. (Labor Code
§6308)
Existing law provides that if, upon inspection or investigation,
DOSH believes that an employer has violated any standard, rule,
order, or regulation established for workplace safety, DOSH must
issue a citation to the employer. Each citation shall be in
writing and shall describe with particularity the nature of the
violation, including a reference to the provision of the code,
standard, rule, regulation, or order alleged to have been
violated. In addition, the citation shall fix a reasonable time
for the abatement of the alleged violation. (Labor Code §6317)
Existing law provides that if an employer is served with a
citation or special order, the employer may appeal to the
Occupational Safety and Health Appeals Board (OSHAB) within 15
working days from the receipt of the citation or order with
respect to violations alleged by the division, abatement
periods, amount of proposed penalties, and the reasonableness of
the changes required by the division to abate the condition.
(Labor Code §§ 6600 & 6600.5)
Existing law also provides that the period specified for
abatement shall not commence running until the date the citation
or notice is received by certified mail and the certified mail
receipt is signed, or if not signed, the date the return is made
to the post office. If DOSH officially and directly delivers the
citation or notice to the employer, the period specified for
abatement shall commence running on the date of the delivery.
(Labor Code §6317)
Existing law provides that, if an employer can show a good-faith
effort to comply with the abatement requirement of a citation,
but the abatement has not been completed because of factors
beyond his reasonable control, DOSH, after an opportunity for a
hearing, must issue an order affirming or modifying the
abatement requirements in such citation. (Labor Code §6319.5)
Existing law defines a "serious violation" as a violation where
DOSH determines that there is a substantial probability that
death or serious physical harm could result from a condition
which exists, or from one or more practices, means, methods,
operations, or processes which have been adopted or are in use
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Senate Committee on Labor and Industrial Relations
in a place of employment. (Labor Code §6309)
Existing California Regulations require that, unless otherwise
specified by statute, all abatement periods and changes required
by the Division are stayed upon the filing of a docketed appeal
with the Appeals Board and remain stayed until withdrawal of the
appeal or a final disposition of the proceeding by the Appeals
Board. (California Code of Regulations Title 8, § 362)
This bill would provide that any appeal of a citation that is
classified and cited as a serious violation, a repeat serious
violation, or a willful violation cannot stay the abatement
dates unless DOSH determines that a stay of the abatement will
not adversely impact the health and safety of employees.
COMMENTS
1. AB 1634 and Occupational Safety and Health Appeals Board
Regulations:
As noted above, existing law allows employers to contest
citations or special orders issues by the Division of
Occupational Safety and Health (DOSH). However, under
Occupational Safety and Health Appeals Board (OSHAB)
regulations (8 CCR § 362), all abatement activity must be
stayed while an issue is pending before OSHAB. According to
several stakeholders, this can create a situation where
workers continue to work under unsafe conditions while the
appeal is pending.
In an effort to address this concern, OSHAB promulgated
regulations last year which would expedite hearings in order
to avoid abatement delays (8 CCR §373). The OSHAB regulations
create a three-step process once OSHAB is aware of that an
alleged violation is classified by DOSH as a Serious, Repeat
Serious, Willful Serious, Willful, Willful Repeat or Failure
to Abate, and either abatement is on appeal, or abatement has
not occurred.
1) Within 30 days of an appeal being filed, a telephonic
conference to see, among other things, if an expedited
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process is appropriate;
2) Within 60 days of the telephonic conference, the parties
would hold a preconference hearing to, among other things,
stipulate to undisputed facts and identify witnesses and
evidence to be used by both parties.
3) Within 60 days of the preconference hearing, the hearing
itself would be scheduled.
The regulations would also allow OSHAB or a party to bring a
motion to shorten the timeframes discussed above on a showing
of good cause.
According to data released by OSHAB, from July 1, 2013 to
April 30, 2014, OSHAB has conducted 155 expedited hearings; 54
of the cases were abated within 30 days, 22 cases were abated
within 31-60 days, 26 cases were abated within 61-90 days, and
22 cases were abated within 91-120 days. In 4 cases,
abatement took longer than 120 days, and 26 cases are still
waiting for hearings. In short, 80% of cases were abated
within 90 days under the existing process.
2. Why Didn't OSHAB End Automatic Abatement Stays in the 2013
Regulations?
In the initial statement of reasons for the expedited
abatement hearing process, OSHAB said the following:
Alternatives to this rule were proposed by stakeholders,
namely, repeal of the automatic stay provision. However, such
alternative would not be less burdensome and equally
effective. Rather, such would result in employers who contest
the abatement ordered by the Division having no remedy to
obtain a stay other than by seeking one from the superior
court. This is costly for employers and the Division, which
must respond.? A compelling argument was also made that the
merits of ordering a stay turn on whether the violation
occurred, and so any procedure addressing the merits of a stay
requires a hearing on the merits of the alleged violation.
For purposes of allowing discovery by the parties, reaching
the merits consumes approximately 120 days of time.
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OSHAB also noted that the "great majority of employers who
appeal also voluntarily abate the cited condition" and that
the 4-5 month expedited abatement process was a significant
reduction over the existing process.
3. Washington State Abatement Process :
The author of this bill notes that legislation was signed into
law in April 2011 in the State of Washington creates a similar
process to AB 1634. The law (WAC 296-900-17006) requires that
the employer request from WA's DOSH a stay of abatement for
any violation classified as serious, willful, repeat serious,
or failure to abate serious. WA's DOSH may only abate the
hazard if doing so would not have a negative impact on the
health and safety of impacted workers.
4. Proponent Arguments :
Proponents note that if an employer appeals the citation
existing law stays all hazard abatement during the appeal. The
appeal is resolved through a hearing before the Occupational
Safety and Health Appeals Board (OSHAB), which proponents note
can occur months or years after the citation is issued and a
hazard identified. Proponents argue that AB 1634 requires an
employer to abate any safety violations cited as "serious,"
"willful," or "repeat" as required by DOSH, even during an
employer's appeal. Proponents believe that AB 1634 ensures
places of employment can be safe without having to wait for
the completion of the often timely appeals process.
5. Opponent Arguments :
Opponents argue that AB 1634 reverses the right of an employer
to stay abatement while an appeal of the citation is pending.
It requires an employer to specifically request a stay when
filing an appeal of a serious, willful, repeat, or failure to
abate citation. Opponents also note that the construction of
AB 1634 is confusing and unclear. Opponents believe that the
expedited appeal process has been created specifically to
address this situation, and that the expedited hearing process
is working and improving workplace safety, making AB 1634
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unnecessary.
6. Prior Legislation :
AB 1165 (Skinner) of 2013 was very similar to this bill. AB
1165 was vetoed by Governor Brown, who directed Cal/OSHA to
consult with the author to make sure the Appeals Board process
is working as intended in his veto message.
SUPPORT
State Building and Construction Trades Council of California
(Sponsor)
American Federation of State, County and Municipal Employees,
AFL-CIO
Asian Pacific Environmental Network
California Conference Board of the Amalgamated Transit Union
California Conference of Machinists
California Environmental Justice Alliance
California Labor Federation, AFL-CIO
California Teamsters Public Affairs Council
Engineers and Scientists of California
International Longshore &Warehouse Union
Professional & Technical Engineers, Local 21
UNITE HERE
United Steelworkers, District 12
Utility Workers Union of America, Local 132
WORKSAFE
OPPOSITION
Air Conditioning Trade Association
Associated Builders and Contractors - San Diego Chapter
Associated Builders and Contractors of California
Associated General Contractors of California
Associated Roofing Contractors of the Bay Area Counties, Inc.
Brawley Chamber of Commerce
Brea Chamber of Commerce
California Asian Pacific Chamber of Commerce
California Association of Winegrape Growers
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Senate Committee on Labor and Industrial Relations
California Automotive Business Coalition
California Chamber of Commerce
California Chapter of American Fence Association
California Construction & Industrial Materials Association
California Farm Bureau Federation
California Fence Contractors' Association
California Framing Contractors Association
California Grocers Association
California League of Food Processors
California Manufacturers and Technology Association
California Professional Association of Specialty Contractors
California Restaurant Association
California Retailers Association
Construction Employers Association
Chambers of Commerce Alliance of Ventura and Santa Barbara
Desert Hot Springs Chamber of Commerce and Visitors Center
El Centro Chamber of Commerce
Flasher Barricade Association
Fresno Chamber of Commerce
Fullerton Chamber of Commerce
Greater Bakersfield Chamber of Commerce
Lake Tahoe South Shore Chamber of Commerce
Marin Builders Association
National Federation of Independent Business
Oxnard Chamber of Commerce
Palm Desert Area Chamber of Commerce
Plumbing-Heating-Cooling Contractors Association of California
Porterville Chamber of Commerce
Redondo Beach Chamber of Commerce
Residential Contractors Association
San Diego East County Chamber of Commerce
San Fernando Valley Chamber of Commerce
San Gabriel Valley Legislative Coalition of Chambers
San Jose Silicon Valley Chamber of Commerce
Santa Clara Silicon Valley Central Chamber of Commerce &
Convention-Visitors Bureau
Simi Valley Chamber of Commerce
Southwest California Advocacy Associates
Southwest California Legislative Council
The Chamber of the Santa Barbara Region
Torrance Area Chamber of Commerce
Turlock Chamber of Commerce
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Valley Industry and Commerce Association
Visalia Chamber of Commerce
Walter & Prince LLP
Western Electrical Contractors Association
Western Growers Association
Western States Petroleum Association
Western Steel Council
Wine Institute
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Senate Committee on Labor and Industrial Relations