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Agency Oversight: Appeals Board

Posted on Feb 10, 2010
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Testifying

An Employer-Biased Appeals Board

The Occupational Safety and Health Appeals Board ("Appeals Board"), through its administrative law judges (ALJs), hears employer appeals of citations and penalty assessments, either affirming, revising or reversing citations or penalty amounts issued by Cal/OSHA.

The Appeals Board consists of three members, with one seat designated each for a Labor member, Management member, and a Public member. As is the case with the Standards Board, each board member is appointed by the governor.

In June 2009, after years of frustration, in an unprecedented move, 46 Cal/OSHA inspectors signed a letter protesting arbitrary and unreasonable rules and practices of the Appeals Board “that have significantly undermined ability of Cal/OSHA inspectors and attorneys to do their job of protecting the lives, health and safety of California workers.” These arbitrary rules have resulted in cases being unfairly dismissed, witnesses disappearing, and Cal/OSHA having to settle cases for pennies on the dollar. The letter cited several examples of unreasonable Appeals Board practices, including:

Scheduling multiple hearings on the same day. For years, the Appeals Board over-booked hearings, as many as four in a day, before the same judge and with the same Cal/OSHA inspectors and/or attorneys at the same time. Finding it impossible to try three or four cases on the same day or get witnesses to travel long distances to return to testify when a case isn’t heard because of the over-scheduling, Cal/OSHA representatives have had to sacrifice some cases by dismissing citations, reducing citations from serious to general, dropping requirements for correcting unsafe conditions or settling cases for pennies on the dollar.

Denying venue changes. The Board has denied requests for hearings to be set as close to the site of violation as practicable, forcing witnesses to travel 150 miles and even 286 miles to Sacramento. Cal/OSHA cannot defend cases where witnesses are not able to travel those distances.

Dismissing cases on technicalities. Appeals Board judges have dismissed cases where Cal/OSHA incorrectly names an employer, refusing to allow amendments to correct the error. In one case, the employer was cited after a carpenter fell to his death. The judge dismissed the case because Cal/OSHA issued citations using the name provided on the employer’s business cards and safety program instead of its legal name.

After a barrage of criticisms by Cal/OSHA staff, Worksafe and other worker advocates, in fall 2009 the Appeals Board began scheduling no more than 2 hearings a day. It also invited proposed rule changes from stakeholders.

On October 5, 2009, Worksafe and our allies submitted proposed amendments to the Appeal Board’s Rules of Practice and Procedures. Instead of expeditiously addressing Worksafe’s proposed rules, the Appeals Board has chosen to pursue a long, drawn out process. It may be a year or more before we see any real changes.

The Appeals Board also reveals its pro-employer bias when it rewrites laws it disagrees with or when it repeatedly overturns sound decisions by its administrative law judges upholding citations and penalty assessments against employers.

For example, despite the plain language of the Labor Code requiring a minimum $5000 penalty for failure to report a serious injury or illness or death of a worker, the Board has repeatedly reduced those penalties by up to 90%.

In 2007, the Appeals Board reduced fines issued by Cal/OSHA by two-thirds, from more than $1 million to just under $336,000 for all employers. Employers know that all they have to do is file an appeal to get fines reduced or thrown out altogether.

  • In Harris Construction, the Appeals Board rewrote the law by narrowing general contractors’ liability for subcontractors’ employees’ injuries, defying appellate case law to the contrary.
  • Appeals Board ALJs repeatedly reduce or dismiss penalties proposed by DOSH even in situations where workers have died or been seriously injured. In Bimbo Bakeries, an ALJ threw out a fine of $21,750 assessed by DOSH after a worker lost her left arm when it was caught in the gears of a bread-making machine. The ALJ dismissed the case on a technicality: the inspector had retired and DOSH could not prove that he had had permission to enter the factory. Since that 2003 accident, five more employees in Bimbo's California plants have lost fingers or parts of fingers in accidents in which inspectors found similar safety violations. Read an LA Times article about Bimbo Bakeries and further examples of the Appeals Board reducing or dismissing penalties.
  • In the J.F. Shea case, the Appeals Board vacated a DOSH citation against the employer for failing to provide a warning signal and to assure that all persons were at a safe distance or under sufficient cover prior to initiating the firing of explosives. In bending backwards to protect employers, the Board held that the warning signal regulation was neither required to be received nor heard by the exposed employees.
Worksafe is currently helping to plan a legislative oversight hearing at which the Chair of the OSH Appeals Board and the Chief of Cal/OSHA will be questioned about the low levels of penalties finally assessed for many serious health and safety violations—in some cases involving worker deaths—and the even lower amounts ultimately collected after final orders have been entered.
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