Home > Health & Safety News, News >

Promises of Appeals Board Reform

Posted on Aug 24, 2009
Tweet This! Email This! Share This on Facebook Bookmark and Share

Congress Building by Michael Smith

The Occupational Safety and Health Appeals Board convened an advisory committee meeting in Oakland Thursday in the face of numerous complaints that it is undermining worker health and safety in California.

Frustrated by the Board’s inaction after months of airing their complaints, 47 Cal/OSHA inspectors signed a June letter protesting arbitrary and unreasonable decisions and practices of the Board that have resulted in cases being unfairly dismissed, witnesses disappearing because of unnecessary continuances of cases, and the waste of Cal/OSHA time and money.

The Board’s recent practices include scheduling multiple hearings before the same judge and with the same Cal/OSHA prosecutor at the same time.

As the 47 inspectors explain about the overscheduling in their letter of June 13:

“How can we…prepare exhibits, witnesses and arguments for three separate cases all scheduled for the same time? How can we convince worker witnesses to travel long distances, and then to come back after they have been sent home because their case wasn’t heard? The simple answer is that we can’t.”

In addition to double-booking cases, the Board’s judges who hear these cases have often refused to inform Cal/OSHA prosecutors which case will be heard first, wasting Cal/OSHA and witness time and resources.

Faced with frustrated, angry and scared witnesses who may not return another day to testify, Cal/OSHA inspectors and supervisors have had to prioritize and pick cases to be sacrificed by offering the offending employer a steep discount from the original citation amount, according to one inspector who spoke at Thursday’s meeting. Needless to say, this practice nullifies the deterrent effect penalties are supposed to have on scofflaw employers.

Thursday’s meeting also included a lengthy discussion over the Board’s refusal to grant, or even respond to, requests to delay a hearing in the face of compelling situations such as the death of an employer’s attorney’s father. In addition, the Board also faced criticism over a judge’s refusal to allow a dead worker’s family to participate in the trial over the hazards that led to his death. The Board blamed its regulations, which it claimed tied its hands.

Equally disturbing are instances where the Appeals Board ignores the law to the detriment of workers in other cases. The Board has narrowed general contractors’ liability for subcontractors’ employees’ injuries, defying appellate case law to the contrary, and has reduced by up to 90% the minimum $5000 statutory penalty for failure to report a serious injury or illness or death of a worker.

The Board and its judges made such reductions in an appalling 30 of 33 failure to report cases, despite the plain language of the Labor Code (§ 6409.1) and the state Legislative Counsel’s office opinion that these reductions are illegal. These decisions directly undermine worker safety and encourage a lack of respect for, and compliance with, health and safety laws.

Heeding the 47 inspector’s complaints about double-booking of cases, Board Chairwoman Candice Traeger produced at the meeting a new schedule showing no more than 2 hearings a day. And after a barrage of criticisms by Cal/OSHA staff and worker advocates at the meeting, Traeger expressed the Board’s willingness to work with the Cal/OSHA attorneys and inspectors and worker advocates to change some of the Board’s rules and practices to correct absurd and unjust results. Let’s hold the Board to that pledge.

Michael Smith is an attorney for Worksafe, an Oakland-based nonprofit that advocates for better safety and health for California workers.

You can also read this article, "Cal/OSHA Inspectors’ Protests Lead to Promises of Appeals Board Reform," by clicking here.

Support Worksafe, Donate Now