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Appeals Board Erred on Harris Decision

Posted on Apr 6, 2010
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Judge Says Appeals Board Erred on Harris DAR, Orders New Decision
Cal-OSHA Reporter
Friday, March 26, 2010

SACRAMENTO — California’s Occupational Safety and Health Appeals Board overstepped its bounds when it sided with an employer and ruled in 2007 that the Division of Occupational Safety and Health (DOSH) must prove that so-called “controlling employers” are in a position to abate specific hazards on multiemployer worksites, a Sacramento Superior Court judge has concluded.


The case, Harris Construction, has been remanded back to the board for a Decision After Reconsideration (DAR) that comports to the 2007 Overaa Construction case, in which the California Court of Appeal held that DOSH does not have to demonstrate lack of due diligence by an employer.

The Appeals Board unsuccessfully attempted to have the Overaa ruling decertified by the California Supreme Court after the board issued the Harris DAR.

In a March 19 hearing on Harris, Judge Patrick Marlette told Appeals Board Chief Counsel Jeff Mojcher, “It’s pretty black letter. The board can’t add that,” referring to the burden of proof it placed on the Division. But the ruling leaves plenty of room for an affirmative defense for employers in general-violation cases. They already have such a defense against serious violations.

He is requiring the board to vacate the DAR and issue a new decision without the DOSH burden of proof. The writ does not limit the board’s discretion in any other respect, specifically mentioning an affirmative defense.

In the original DAR, the board wrote, “We believe responsibility for safety requirements should be placed on those who have the greatest practical opportunity and ability to [ensure] compliance with applicable safety standards. [DOSH] must present a prima facie case demonstrating that the employer was in a position to abate the specific violative condition at issue. In order to meet its burden, the Division must show a nexus between the employer’s role and responsibilities and the violation in question.”

It said DOSH has the burden of proving each element of a violation by a preponderance of the evidence and that the employer was in a position to abate the specific violative condition at issue.

In Harris, an apprentice worker for a subcontractor was injured when a piece of pressurized piping broke off and forced his leg against a thrust block, tearing through his muscle and an artery. DOSH cited general contractor Harris for a general violation of General Industry Safety Orders §3329(d), alleging that the controlling employer failed to ensure the pressurized chill water line was depressurized before opening. The apprentice thought he had depressurized it when in fact he had done the opposite.

An administrative law judge upheld the citation, but the board took it under reconsideration and issued the controversial DAR. DOSH did not appeal it, but the worker’s union, United Association Local 246, intervened and was granted “beneficially interested party” status. The Appeals Board had contended that the union lacked status to bring the petition for writ of mandate. The writ charged that the Harris decision was “clearly erroneous” and in excess of the board’s jurisdiction.

Citing Overaa, Marlette noted that California courts give “great weight” to the expertise of bodies such as the Appeals Board. “However, an administrative agency cannot alter or enlarge the legislation, and an erroneous administrative construction does not govern the court’s interpretation of the statute,” he said.

The statute in question is Labor Code §6400(b)(3), which states that DOSH may issue citations to the “employer who was responsible, by contract or through actual practice, for safety and health conditions on the worksite, which is the employer who had the authority for ensuring that the hazardous condition is corrected (the controlling employer).”

United Association argued that the board erred by adding a new requirement before a controlling employer citation could be upheld. “This argument is persuasive,” Marlette said in his preliminary ruling, which he issued March 18 and affirmed at the hearing. Overaa, he added, “strongly indicates that the Appeals Board would commit ‘legal error’ by imposing proof requirements on the Division going beyond the terms of the statute.”

The Court of Appeal in Overaa also stated that there would be no need for LC §6432, which allows employers to use diligence as an affirmative defense, if lack of diligence were an element of DOSH’s prima facie case.

“If it was not ‘legal error’ for the Appeals Board to reject the additional ‘reasonable diligence’ requirement in Overaa,” Marlette writes, “and because there was no basis for imposing a heavier burden on the Division for a general violation than it would bear in a case of a serious violation, then logically it is ‘legal error’ for the Appeals Board to impose the additional requirement on the Division of showing that the controlling employer was ‘in a position to abate the specific violative condition at issue’ in this case.”

The judge said the board’s error resulted in it effectively altering the Labor Code, and the DAR “is not entitled to any weight or deference as an administrative interpretation of law.”

During oral arguments, Marlette likened himself to an umpire “calling balls and strikes.”

Mojcher, in his argument against the tentative ruling, said what the board was trying to convey in its DAR was that LC §6400(b)(3) focuses on specific hazardous conditions. “There has to be some way for the general [contractor] to do something about that condition,” he said. The fact pattern in Overaa was completely different from Harris, Mojcher added. Overaa involved a “patently violative condition.” Harris’ safety staffers, who had communicated with the worker before the incident, could not have known of the hazard if they could have read his mind, since he believed he had depressurized the pipe.

The counsel suggested that the board might not have sufficiently articulated its case in the DAR.

Marlette suggested that requiring controlling employers to physically check on worksite conditions isn’t an onerous burden. “It’s not up to me to say what Harris should have been doing, but entities do checklists all the time,” he said, mentioning pilots as one example.

Attorney Fran Schreiberg, a Worksafe volunteer who was instrumental in writing AB 1127, underscored that employers have the ability to raise an affirmative defense. “The question of burden is not a magical question, it’s a procedural question,” she said.

Attorney Fred Walter, representing Associated General Contractors of California as amicus to the Appeals Board, said the ruling was narrow, focusing only on the DOSH burden and preserving the affirmative defense. “If you’re going to lose, this is the best way to lose,” he tells Cal-OSHA Reporter.

DOSH Chief Len Welsh noted irony in that Overaa, the Appeals Court Decision the board tried to have decertified, opened the door for the board to recognize the same mitigating factors that lead to its dismissal of the Harris citation. Mojcher’s arguments before Judge Marlette “all go to what should be the elements of an affirmative defense,” Welsh says.

The Division is crafting an affirmative defense for controlling employers and could have it ready for comment this spring. Welsh says DOSH will propose this regulatory fix because the courts are “failing on the issue.”

Mojcher said he would confer with Appeals Board members about whether it would appeal Marlette’s ruling.

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