 civil penalty under the appropriate provisions of Sections 6427 to 6430, inclusive, except that in no case shall the penalty be less than seven hundred fifty dollars ($750) for each violation. (Emphasis added.)
In Emerald Produce Co., Inc., OSHAB 96-2679, Decision After Reconsideration, issued this same date, the Board vacated its June 25, 1998, Decision after Reconsideration, and held that any absence of supplies required by the field sanitation standard, such as single-use cups, at the point of employee use was a failure to provide a facility required by the field sanitation standard.
1. The Absence of a Drinking Water Facility Establishes that Employer Failed to Provide a Facility Required by the Field Sanitation Standard.
Section 3457(c)(1)(A) requires that employers provide potable drinking water. Employer testified that prior to being cited, he provided no drinking water for his employees. They had to either provide it themselves or get water from a hose.
Employer did not specifically appeal the classification of the violations. It is well established that where the reasonableness of the civil penalties is the only issue raised by the employer, the classification, but not the existence, of the violation is placed in issue. (Anderson, Clayton & Company, Oilseed Processing Division, OSHAB 79-131, Decision After Reconsideration (July 30, 1984).) The Board finds that Employer failed to provide potable drinking water in violation of section 3457(c)(1)(A). Employer therefore failed to provide a facility required by the field sanitation standard, and is subject to the $750 minimum civil penalty mandated by Labor Code section 6712(d)(1).
The Division failed to present sufficient evidence to establish that the violation was "serious," as defined in Labor Code section 6432(a). Labor Code section 6432(a) states that a serious violation will be deemed to exist if there is a substantial probability of death or serious physical harm resulting from a condition or a practice which exists in a place of employment. While the safety engineer testified that heat prostration may, in some severe cases, result in death, there was no evidence that severe heat prostration would probably and directly result from drinking water from the hose. No other evidence of any consequence resulting in serious injury or death was presented. Since the Division had the burden of proof on this issue, and failed to meet it, the Board must reclassify the violation from serious to general.
Section 335(a)(1)(A)i. of the Directors regulations provides that for a general violation pertaining to employee illness or disease where the violation is one that may result in loss of more than one day of work or considerable temporary discomfort, the gravity of the violation shall be classified as high. The illnesses likely to result from drinking non-potable water testified to by the safety engineer fall into this category. Section 336(b) provides that for general violations of high gravity, the base penalty shall be $2,000. According Employer the same credits applied by the Division, a 30 percent credit for size would reduce the penalty to $1,400, and the further 50 percent credit for abatement would reduce the penalty to $700. The Board will not allow these credits full application because the failure to provide potable water is a violation of the field sanitation standard. Therefore, the $750 minimum civil penalty mandated by Labor Code section 6712(d)(1) applies to Citation No. 1.
2. The Absence of a Toilet with a Handwashing Facility Establishes that Employer Failed to Provide a Facility Required by the Field Sanitation Standard.
There is no dispute concerning Employers failure to provide a handwashing facility. Employer presented no evidence to contradict the Divisions evidence that no handwashing facility existed in conjunction with its toilet facilities. The Board finds that the evidence supports the conclusion that Employer failed to provide a handwashing facility as required by section 3457(c)(2)(A). This violation constitutes a failure to provide a facility required by the field sanitation standard, and the $750 minimum civil penalty mandated by Labor Code section 6712(d)(1) applies.
As with Citation No. 1, the safety engineers testimony failed to provide evidence that death or severe physical harm would more likely than not result from employees inability to wash their hands after using the toilet. The Board therefore finds that the violation is properly classified as general rather than serious. Because Employers appeal of only the reasonableness of the civil penalty opens the issue of the violations classification, the Board can, and based on the evidence, does reclassify the violation from serious to general.
Shadbolts testimony did establish that the illnesses resulting from the inability of employees to wash their hands would more likely than not result in loss of more than one day of work or considerable temporary discomfort. These general violations are properly characterized as warranting a high gravity rating under section 335(a)(1)(A)i. Section 336(b) assigns a general violation of high gravity a base penalty of $2,000. Applying the same adjustment factors from section 336 for size and abatement set forth above in the discussion of Citation No. 1, the civil penalty would be reduced to $700. The violation of section 3457(c)(2)(A) shown here constitutes a violation of the field sanitation standard; thus, the $750 minimum civil penalty mandated by Labor Code section 6712(d)(1) applies to Citation No. 2.
DECISION AFTER RECONSIDERATION
Docket No. 93-R3D2-1697
The decision of the ALJ dated July 8, 1994, as to Citation No. 1 is reversed as to the classification of the violation as serious, and as to the assessment of a civil penalty of $100. The violation is reclassified as general, and a civil penalty of $750 is assessed.
Docket No. 93-R3D2-1698
The decision of the ALJ dated July 8, 1994, as to Citation No. 2 is reversed as to the classification of the violation as serious and as to the assessment of a civil penalty of $100. The violation is reclassified as general, and a civil penalty of $750 is assessed.
JAMES P. GAZDECKI, Chairman
BILL DUPLISSEA, Member
OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
SIGNED AND DATED AT SACRAMENTO, CALIFORNIA May 4, 1999Social Cognitive Theory of Self Regulation. role of Learning and Performance. NJ: Lawrence Erlbaum Associates. right memoranda Affecting Learning.
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