BILL ANALYSIS Ó
SENATE COMMITTEE ON LABOR AND INDUSTRIAL RELATIONS
Senator Tony Mendoza, Chair
2015 - 2016 Regular
Bill No: AB 1050 Hearing Date: June 8,
2016
-----------------------------------------------------------------
|Author: |Low |
|-----------+-----------------------------------------------------|
|Version: |February 10, 2016 |
-----------------------------------------------------------------
-----------------------------------------------------------------
|Urgency: |No |Fiscal: |Yes |
-----------------------------------------------------------------
-----------------------------------------------------------------
|Consultant:|Alma Perez-Schwab |
| | |
-----------------------------------------------------------------
Subject: Occupational safety and health: permanent variances
KEY ISSUES
Should the Legislature require that employers seeking a
permanent variance to an elevator safety order notify affected
workers of the request - including the union representing
elevator workers in the region and those workers who will be
performing the tasks in the proposed variance?
Should the Legislature grant party status to affected workers,
or their authorized representative, to participate in variance
proceedings?
ANALYSIS
Existing law :
1) Permits employers to apply to the Occupational Safety
and Health Standards Board for a permanent variance from an
occupational safety health standard, order, or special
order upon showing an alternate program, method, practice,
means, device, or process which will provide equal or
superior safety for the employees. (Labor Code §143)
AB 1050 (Low) Page 2
of ?
2) Provides that the board shall issue such a variance if
it determines on the record, after opportunity for an
investigation where appropriate and a hearing, that the
proponent of the variance has demonstrated by a
preponderance of evidence that the conditions, practices,
means, methods, operations, or processes used or proposed
to be used by an employer are as safe and healthful as
those which would prevail under the standard.
3) States that the variance shall prescribe the conditions
the employer must maintain and the practices, means,
methods, operations, and processes which the employer must
adopt and utilize to the extent they differ from the
standard in question.
4) Authorizes the board to grant a variance from any
standard or portion thereof where it determines a variance
is necessary to permit an employer to participate in an
approved experiment designed to demonstrate or validate new
and improved techniques to safeguard the health or safety
of workers.
5) Provides that a permanent variance may be modified or
revoked upon application by an employer, employees, or the
division, or by the board on its own motion, as specified.
6) Requires that the board conduct hearings on such
requests for a permanent variance after employees or
employee representatives are properly notified and given an
opportunity to appear. (Labor Code §143.1)
This bill would require employers seeking a permanent variance
to a conveyance covered by the elevator safety orders to notify
the union representing elevator workers in the region where the
building is being constructed or modified and those workers who
will be performing the tasks pursuant to the proposed variance,
or their authorized representative.
This bill would grant these workers, or their authorized
representative, party status upon request to the Standards
Board.
AB 1050 (Low) Page 3
of ?
COMMENTS
1. Background on Variances and the Occupational Safety and Health
Standards Board:
The Occupational Safety and Health Standards Board adopts
safety and health standards that are designed to protect
California workers. However, existing law authorizes and sets
forth a process whereby an employer may apply for a
"variance," which is generally permission to deviate or not
follow an existing standard. These variances fall into two
categories - permanent variances and temporary variances. The
application process for both permanent and temporary variances
includes a requirement that the employer notify employees of
the variance being sought and gives employees an opportunity
to engage in the hearing process.
The focus of this bill is on the permanent variance process
and what constitutes notification to employees - more
specifically, which employees need to be notified of the
variance request. The law requires the Standards Board to
conduct hearings on requests for permanent variances after
employees or employee representatives are properly notified
and given an opportunity to appear. Standards Board
regulations provide that "affected employees" and authorized
employee representative may elect to participate as parties at
any time before commencement of the variance hearing.
(California Code of Regulations, Title 8, Section 406(a)).
The regulations define "affected employee" to mean: "[A]n
employee of the employer seeking the variance who is exposed,
as a result of his or her assigned duties, to the condition or
hazards covered by the standard for which the variance is
sought." (California Code of Regulations, Title 8, Section
403(l)).
The "employees of the employer seeking the variance," however,
may not actually be the workers that will be performing the
duties associated with the variance request because not all
affected workers are technically employees of the applying
employer.
AB 1050 (Low) Page 4
of ?
2. Need for this bill?
As noted above, the Standards Board has authority to consider
variances to Cal/OSHA standards when a building is being
constructed, repaired, or updated - the vast majority of these
variances are requests for conveyances such as elevators and
escalators. Existing law provides that a variance may be
considered by the Standards Board only after notice is given
to employees. However, in practice 'employees' are considered
to be the employees of the applicant who is seeking the
variance, which may not be the employees that will actually
work on the project. For example, in the installation of an
elevator, the employees that will be impacted by a variance
from a safety order will be the employees of the contractor or
elevator manufacturer who are brought in to perform the work.
The author argues that this lack of notification prevents
workers who are actually doing the work from participating in
the variance hearing or even be notified that a variance has
been requested.
This bill would help ensure that a permanent variance request
pertaining to conveyances receives a thorough hearing by
requiring that the applicant notify the union representing
elevator workers in the region where the building is being
constructed or modified and those workers who will be
performing the tasks, or their authorized representative, of
the request for a variance. The bill would also grant these
workers, or their authorized representative, party status upon
request to the Standards Board.
3. Proponent Arguments :
According to proponents, this bill seeks to correct an
oversight in the Cal/OSHA Standards Board variance application
process with respect to requests for an elevator, or other
public conveyances variance. They argue that with these
variance requests, the building owner is not required to
notify those employees who will be installing the conveyance
for which a variance application has been filed. They note
that approximately 90% of all permanent variance applications
are for elevators and other public conveyances, and
approximately 95% of these installations are done by the men
and women of the International Union of Elevator Constructors.
This legislation, they argue, simply requires that the
variance applicant provide notice to these workers, or their
AB 1050 (Low) Page 5
of ?
representatives, of the application for a safety order
variance.
The author and proponents believe that this bill will help
guarantee that a variance request receives a thorough and fair
hearing, while making certain that the Standards Board has all
of the relevant facts before making a decision on a variance
request. They argue that this bill ensures that those workers
who will be the ones actually doing the work will be notified
as part of the application process and will be allowed to
participate in the variance hearing.
4. Opponent Arguments :
Opponents of the measure are opposed unless amended arguing
that this bill creates expansive new notification requirements
for conveyance variance applicants. According to opponents,
this bill is substantially similar to AB 578 (Low) from last
year, which Governor Brown vetoed, indicating that it was
unclear which employees would be affected by the new notice
requirements and questioned why the existing process was not
sufficient to protect workers' rights. Opponents argue that
like its predecessor, this bill creates a new expanded
category of workers and their representatives to be notified
by a conveyance variance applicant and such an expansion
creates a number of compliance and enforcement issues.
First, they argue, the tasks and personnel who will perform
them are not determined until the variance is granted and the
associated work is undertaken, while the notice requirements
are imposed at the beginning of the process. Second, the
workers who perform tasks pursuant to an elevator variance are
not limited to elevator mechanics - administrative, management
and other functions are often required by the variance,
complicating the proposed notification requirements further.
And third, they argue that expanding the notification
requirements and granting party status to such a broad
spectrum opens the door to abuse by periphery interests and
could cause additional delays in the process.
Opponents are proposing an amendment that would strike the
notification requirement "to those workers who will be
performing the tasks pursuant to the proposed variance or
their authorized representative" as well as strike the
language granting these workers party status. They argue that
AB 1050 (Low) Page 6
of ?
these proposed amendments address the notification to the
union without subjecting employers to the onerous requirement
of searching out the identity and contact information for
personnel of contracted conveyance companies. Further, they
argue that the proposed amendments would prevent potential
abuse of an expansion of parties and keep potential delays in
the process under control.
5. Prior Legislation :
AB 578(Low) of 2015, was similar to this bill, but not
identical. AB 578 was broader in its approach and included
notification requirements for both permanent and temporary
variance requests. AB 578 was vetoed by the Governor who
stated, "While this bill is intended to provide an opportunity
for affected workers to be notified of variances and raise
concerns during a relevant hearing, it is unclear what workers
would be affected, and why the current process at the
Occupational Safety and Health Standards Board is not
sufficient. In fact the board routinely works with
stakeholders to provide timely written notice of variance
requests and permits those parties to intervene in the
proceedings. I believe that process is one that provides
adequate opportunity for interested and affected workers to be
heard."
SUPPORT
International Union of Elevator Constructors - Sponsor
California Labor Federation, AFL-CIO
California State Association of Electrical Workers
California State Pipe Trades Council
Coalition of California Utility Employees
State Building and Construction Trades Council
Western States Council of Sheet Metal Workers
OPPOSITION
Associated Builders and Contractors of
California
California Chamber of Commerce
California Manufacturers & Technology
Association Professional Association of
AB 1050 (Low) Page 7
of ?
Specialty Contractors
-- END --