An Interesting Multi-employer Worksite Citation Challenge

Tim Bormann, CIH, FAIHA

A general building contractor at a jobsite in Oakland in June, 2014 was cited by Cal/OSHA for one violation of 8 CCR §3276(e)(15)(E) – employees shall not sit, kneel, step or stand on the pail shelf, topcap or the step below the topcap of a step ladder.  Cal/OSHA issued a serious citation to the contractor as the controlling employer with a proposed penalty of $6,750. Pursuant to 8 CCR §336.10. a “controlling employee may be issued citations on multiemployer construction worksites when [Cal/OSHA] has evidence that an employee was exposed to a hazard in violation of any requirement enforceable by [Cal/OSHA]”.  The contractor contended that the safety order was not violated by any workers in its control and that the citation was unreasonable and wrongfully assigned to the contractor.  The contractor filed a timely appeal of the single citation to the Occupational Safety and Health Appeals Board.

A hearing was held before an Administrative Law Judge (ALJ) in October, 2015.  The ALJ issued a Decision upholding the citation and the penalty.  The ALJ determined that the worker on the ladder was employed by the contractor.  Two Cal/OSHA witnesses testified giving the name of the worker. The ALJ found this testimony credible. The ALJ issued a Decision upholding the citation and penalty on December 17, 2015.

The contractor filed a timely petition for reconsideration to the Appeals Board.  On March 4, 2016 the Appeals Board issued a Decision After Reconsideration (DAR) denying the contractor’s petition for reconsideration.  It’s important to note that according to the written Decision by the Appeals Board, “had [the contractor] demonstrated that the worker on the ladder was an independent contractor, the citation would probably have been vacated”.

This is where it gets more interesting; 35 days after the Appeals Board’s denial was issued, filed and served, and the contractor filed a petition for writ of mandate.  The Board and Cal/OSHA challenged the contractor’s writ on “untimeliness” grounds.  The trial court granted the motion to dismiss on timeliness.  Writs must be filed within 30 days after a decision by the Appeals Board.  The contractor then took the issue to the Court of Appeal (First Appellate District) arguing that California Labor Code §6627 which states that an application for writ must be made “within 30 days after a “petition for reconsideration is denied …” is ambiguous.  The contractor contended that the deadline should be 30 days from when the company learned of the DAR.  The contractor stated the ambiguity is established between the filing date of a decision and the date it becomes effective.  The contractor learned of the DAR several days after the filing by the Appeals Board.

The First Appellate District Court ruled that the contractor’s argument was rejected, finding no ambiguity in the law.  We (Court) decline [Contractor’s] request to read anything more, or different, into this straightforward language”.  The Court added the date the decision is filed, is what triggers a limitation period, not when the decision is served.  If the law was unclear before, this ruling certainly clarifies it.  As a general rule we recommend you appeal all citations and retain an attorney familiar with Cal/OSHA procedures/regulations (call our office for recommendations).  Be sure you keep apprised of the status of the appeal and the timeframe for the various steps in the appeal process.  If you have any questions regarding Cal/OSHA investigations at the worksite, please give us a call.