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OSHA Audit Reveals Major Flaws

Posted on Oct 22, 2010
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Federal Report Finds Major Flaws in State’s Worker Safety Program

Oakland, California - The long-awaited release today of a federal OSHA audit report of the California Occupational Safety and Health Program, Cal/OSHA, confirms many of the shortcomings and deficiencies in our state program that Worksafe urged federal OSHA to investigate.

While California has historically been a leader in health and safety on the job, recent budget cuts and government hiring freezes, combined with a recalcitrant Appeals Board, has left the agency without the core expert staffing needed to carry out its mission and an overworked and demoralized staff along with a workforce of over 16 million Californians without effective protections from serious workplace hazards. Gail Bateson, Executive Director of Worksafe, observed that “While our state hasn’t experienced large scale deaths of groups of workers like those killed at Massey Coal Mine, Tesoro Refinery, or the BP Deepwater oil platform disasters, as the federal report shows, the deterioration of our basic safety programs puts everyone who reports to a job at increased risk.”

Among the other key findings were:

• serious understaffing of inspectors, with only 36.6% of safety and 16% of health inspectors needed for a state with the size of California’s working population
• lack of a core curriculum to train new inspectors and for the continued training of all inspectors
• delays in Cal/OSHA responding to complaints of job hazards, higher than national average delays in issuance of citations following inspections which lead to delays in correction of hazards
• 96% of “whistleblower” complaints by workers not investigated within the required time period; investigators failing to interview all relevant witnesses; and Labor Commissioner staff who investigate complaints failing to attend Basic Whistleblower training courses
• requiring Cal/OSHA inspectors to present cases before the Appeals Board without legal support or sufficient legal training (which often means going up against big law firm management attorneys), and
• failure to communicate with the families of victims killed on the job about the investigation process and its results or to provide union representatives their rights to participation in the inspection process.

Among the most serious findings are several problems with the Occupational Safety and Health Appeals Board (OSHAB) which handles appeals to citations issued by Cal/OSHA following workplace inspections. The current Appeals Board has consistently shown it will bend over backward to favor employers once cited by inspectors for exposing their employees to serious job hazards, undermining faith in the whole process. As the Los Angeles Times reported on September 26th, since 2003, nine employees of Bimbo bakeries in the state lost parts of fingers or limbs in accidents in recent years but the Appeals Board dismissed citations or greatly reduced penalties on technicalities.

Worksafe reviewed over 250 decisions issued by the Appeals Board over the past four years and shared with federal OSHA auditors its analysis that showed a pattern of the Appeals Board rewriting legislation, ignoring court precedents, and adopting evidentiary and procedural rules that are arbitrary and more onerous than courts of law and those of the federal OSHA appeals board. Today’s audit confirmed our concerns, reporting that “the rules of evidence used by OSHAB prevent many serious hazards from being appropriately classified” and they require an “extreme standard of evidence” for Cal/OSHA inspectors to prove a case. In particular, its requirement to show “serious hazards” and “substantial probability” of harm were found to “far exceed well-settled” federal law. So concerned were the federal auditors about the Appeals Board’s interpretations that it even urged Cal/OSHA to file more lawsuits against the Board to challenge its erroneous decisions.

The federal OSHA report clearly points out what Cal/OSHA must do to ensure that California workers are protected from health and safety hazards on the job. They include filling the 44.5 positions that are vacant so that the agency has sufficient staffing to do trainings and to timely respond to complaints, issue citations, and force employers to correct hazards. They also include stopping furlough Fridays, especially since Cal/OSHA’s budget does not come from the general budget but from federal funds plus separate assessments on employers. Only when fully staffed and trained will Cal/OSHA inspectors be able to do their jobs of protecting the state’s workers.

“Workers have the right to go to work and return home at the end of the day uninjured and alive. It is Cal/OSHA’s responsibility to correct the shortcomings pointed out in the federal OSHA report make sure this happens, says Lora Jo Foo, Legal Director of Worksafe.”

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Press Release Contact: Gail Bateson, Executive Director, (510) 302-1011

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