• State Does Not Have To Show Employer Is In Position To Abate Cal-OSHA Violation
  • October 4, 2011 | Authors: Laura Izon Powell; Bruce A. Scheidt; David W. Tyra
  • Law Firm: Kronick Moskovitz Tiedemann & Girard A Law Corporation - Sacramento Office
  • A Court of Appeal recently held that when the Department of Industrial Relations, Division of Occupational Safety and Health (“Division”) issues a citation at a single worksite with multiple employers, it does not have to show the controlling employer was in a position to abate the condition that gave rise to the Cal-OSHA violation. (United Association Local Union 246, AFL-CIO v. Occupational Safety and Health Appeals Board (--- Cal.Rptr.3d ----, Cal.App. 3 Dist., September 16, 2011).)

    The Facts
    Harris Construction Company (“Harris”) was the general contractor for a project to expand Madera Community College. Jeff Gilkison (“Gilkison”) worked for Harris’s subcontractor on the project, Champion Industrial Contractors (“Champion”) as an apprentice pipefitter. Gilkison was instructed by his supervisor at Champion to fix a leak in a pressurized water chill line previously installed by Champion. Gilkison was seriously injured when he mistakenly opened the pressurized line, which caused a large valve to be thrust against his leg.

    Division cited Harris for a general violation of title 8, section 3329 of the California Code of Regulations, which imposes a requirement that pressurized systems be depressurized prior to dismantling or opening. Although Division cited Champion for a Cal-OSHA violation, it cited Harris as a controlling employer based on its subcontract with Champion and Harris’s actual practices. The subcontract provides Champion must stop any part of the work that Harris deems unsafe until Harris is satisfied that corrective measures have been taken. The subcontract further provides that, if Champion fails to make corrective measures, Harris may do so at Champion’s expense. Harris’s office at the worksite was only 600 feet from where Gilkison was injured. Gilkison spoke almost daily with Harris employees about his work. Champion supervisors usually attended Harris’s weekly safety meetings. Harris admitted that it played an active role in safety at the worksite.

    An administrative law judge upheld the citation against Harris. The Occupational Safety and Health Appeals Board (“Board”) held that Division was required to present a prima facie case showing that Harris was in a position to abate the condition that violated Cal-OSHA. The United Association Local Union 246, AFL-CIO and the Division petitioned the trial court for a writ of mandate to vacate the Board’s decision. The trial court vacated the Board’s decision and the Board appealed.

    The Decision
    The Division is primarily responsible for administering and enforcing Cal-OSHA. It may issue citations for Cal-OSHA violations to multiple employers at a single worksite. A citation may be issued to the following categories of employers on a multi-employer worksite: (1) the employer of the employee who has been exposed to the hazard, (2) the employer who created the hazard, (3) the employer with “the responsibility for actually correcting the hazard,” and (4) the employer who is “responsible, by contract or through actual practice, for safety and health conditions on the worksite; i.e., the employer who had the authority for ensuring that the hazardous condition is corrected,” also known as the controlling employer.

    The Division cited Harris because it found Harris was a controlling employer. The Board held that the Division must prove as part of its primary case against a controlling employer that the employer was in a position to abate the condition that led to the injury and the citation. The Court of Appeal held it would be legally improper to impose such a requirement on the Division.

    When the Division alleges a serious violation as opposed to a general violation, the serious violation statute permits an employer to offer the affirmative defense of reasonable diligence. A previous holding by the Court of Appeal reasoned there would be no need for the serious violation statute to allow an employer to assert an affirmative defense of diligence if the Division had to prove lack of diligence as part of its primary case. Although there is no statutory parallel for a general violation, there is no reason why the Division should have to overcome a heavier burden to prove a general violation rather than a serious violation. Imposing a requirement on the Division that it prove a controlling employer is in a “position to abate” would be similar to imposing a lack of reasonable diligence requirement on the Division, a requirement that the Court previously found legally improper.

    Both the Labor Code and the California Code of Regulations define a “controlling employer” as an employer who was responsible, or had the authority based on contract or actual practice, to make sure that the hazardous condition at issue is corrected. The Court found that the Division does not have to prove that a controlling employer was in a position to abate. Instead, in response to a citation, a controlling employer can raise an affirmative defense of due diligence in response to Division’s claims against it.

    Here, the Division’s citation officer considered both Harris’s subcontract with Champion and its actual practices at the worksite in issuing the citation. Harris’s actual practices included a job trailer near the site where the accident occurred, almost daily discussions with Gilkison about his work, safety meetings held weekly with Champion supervisors, and a stipulation by Harris that it played an active role in safety at the worksite. These factors support that the citation was based on actual practices.

    The Court of Appeal remanded the case for further proceedings during which Harris should be allowed to assert a defense of due diligence, if it chooses to do so.