June 17, 2009 The Pump Handle 4Comment

A group of 47 H&S inspectors, supervisors and managers from California OSHA (Cal/OSHA) sent a pointed letter to the three-person OSH Appeals Board demanding they “cease and desist” their destructive practices.  This Appeals Board is equivalent to the OSH and MSH Review Commissions; it exists because California is one of the 23 States that operates its own OSHA program.  

The CalOSHA employees wrote, we:

 “strongly protest Board policies and practices that have significantly undermined our ability to do our job of protecting the lives, health and safety of California’s workers.”

It’s amazing to me (and refreshing) in these dire economic times, with Governor Schwarzenegger slashing the state budget, that these state employees are willing to act collectively and speak up.  Their outrage stems from a practices that started four years ago by the OSHAB to reduce a backlog of 4,000 cases.  

Some cases were taking 2-3 years for a hearing by an administrative law judge.  (We know that under the OSH Act, an employer can’t be compelled to correct hazards until the company’s appeals are exhausted—not a good way to prevent injuries and illnesses.)   The California OSHAB’s brilliant scheme for “resolving” the backlog was…..get this…..over-booking the ALJ’s schedule.   The judge will be given three or four cases to be heard at exactly the same date and the same time.  The result: the Cal/OSHA managers and attorneys have to pick a small subset of cases to go to hearing and “settle” the rest of them.

The Cal/OSHA employees write:

“How can we…prepare exhibits, witnesses and arguments for three separate cases all scheduled for the same time?  How can we convince worker witnesses to travel long distances, and then to come back after they have been sent home because their case wasn’t heard?  The simple answer is that we can’t.”

“The Board has continued to refuse to even indicate which case will be heard first.  The Board has continued to hold hearings at distant locations where worker witnesses have great difficulty in appearing.  The Board has continued to deny, or simply ignore, legitimate requests for continuances.”

“That’s why there have been hundreds more ‘settlements’ over the last four years, many with drastic reductions in final penalties.  These policies are in addition to the recent practice of the Board to dismiss cases, even those with serious injuries, on minor technicalities; and to unilaterally ‘interpret’ legislation and ignore court rulings, so as to restrict the Division’s ability to enforce the law.”

The CalOSHA employees go on:

“As you must know, those of us representing the Division at appeal hearings are frequently ‘out-gunned’ by the employers’ corporate attorneys who have more resources, personnel and time—even before we have been tripled booked with hearings, often in places where worker witnesses find it difficult to appear.  …We know that not all citations are ‘open and shut’ cases and we believe everyone, including employers, should have the right to a speedy appeal and an impartial review of the facts.  All we want is a level playing field.”

Over the last year, I’ve heard a number of very troubling complaints about abuse of power and/or substandard peformance by some of the OSHA State-Plan States: Nevada, North Carolina, and Minnesota come to mind.  I wonder if its time for some oversight of OSHA’s oversight of them?

4 thoughts on “CalOSHA inspectors demand change

  1. Celeste,

    I hate to risk adding my own state to your list of vaguely described troubles (we probably all have at least a few areas where we don’t want to hold ourselves up as examples — just as probably every federal region probably has them as well). But sometimes state plans actually have more rigorous and more protective requirements. For example, California has a modest ergonomics standard, Washington adopted one (although it was later repealed by the voters), and Michigan is actively considering one.

    But for an example that relates more directly to your post: Whatever might be said about penalty amounts (our average is certainly low in any national comparison), in the state of Oregon employers are required to correct serious violations even during an appeal. As you note, that is not true in the federal law — and it means that employers cannot delay correcting violations here in Oregon simply by filing an appeal. I certainly consider that to be a strength of our particular approach (having worked under the common “abatement is stayed during appeal” approach as well).

    Michael Wood, CSP
    Administrator, Oregon OSHA

  2. Mike,
    Thanks as always for alerting me to examples of OSHA State Plans that have features that better than federal OSHA—I am especially impressed by Oregon’s requirement for hazard abatement during the appeal process. Thanks too for reminding me of State plans that have adopted protective workplace standards that go well beyond federal OSHA.

  3. I received the following comment from a reader and received permission to post it here:

    As a former Cal/OSHA attorney I can confirm that the problems stated in
    the petition are absolutely true. It is the reason I resigned from the
    Cal/OSHA Legal Unit. It is the reason why a lot of dedicated, hard
    working personnel have decided to move on to other careers or retire
    earlier than they otherwise would. I was a shop steward for the (scab)
    union for California’s state attorneys—believe me, these courageous
    employees are targets for retaliation.

    The Unions representing the workers at Cal/OSHA, in my opinion, must
    take a more aggressive role in protecting its members from the
    outrageous working conditions at Cal/OSHA. The Union movement in
    California should do likewise. The current powers that be are
    decimating the Cal/OSHA program. The damage may be irrevocable. The
    current budget crisis may be used as an excuse (by referendum or a state
    constitutional convention) to eliminate the state program. If Labor
    wants a strong and effective state program in California…now is the time
    to step up to the plate.

    Also, it seems to me that the problems stated in this petition can be
    the basis of a formal CASPA complaint.

  4. So is it the ALJ Board that is the problem? No has asked them their side. I wonder if they are just short staffed.

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