Bendix Forest Products Corp. v. Division of Occupational Saf. & Health

• Decision Date: 16 October 1979
• Docket Number: S.F. 24018
• Citation: 25 Cal.3d 465,158 Cal.Rptr. 882,600 P.2d 1339
• Court: California Supreme Court
• Parties: , 600 P.2d 1339, 1979 O.S.H.D. (CCH) P 23,951 BENDIX FOREST PRODUCTS CORPORATION, Petitioner, v. DIVISION OF OCCUPATIONAL SAFETY AND HEALTH, Respondent.

Page 882

158 Cal.Rptr. 882

25 Cal.3d 465, 600 P.2d 1339, 1979 O.S.H.D. (CCH) P 23,951

BENDIX FOREST PRODUCTS CORPORATION, Petitioner, v. DIVISION OF OCCUPATIONAL SAFETY AND HEALTH, Respondent.

S.F. 24018.

Supreme Court of California, In Bank.

Oct. 16, 1979.

Rehearing Denied Nov. 15, 1979.

Nancy Mahoney Cohen, San Francisco, for petitioner.

Robert D. Peterson, Sacramento, as amicus curiae on behalf of petitioner.

John W. Hawkes and Peter Weiner, San Francisco, for respondent.

MANUEL, Justice.

Bendix Forest Products Corporation (hereafter Bendix) sought a writ of mandamus in the Court of Appeal to review a decision of respondent Division of Occupational Safety and Health, Department of Industrial Relations (hereafter Division), ordering Bendix to provide certain protective clothing to its employees at company expense. ¹ The Court of Appeal issued an alternative writ and thereafter held the directive invalid. We granted a hearing to resolve the issue whether the Division has authority to issue its directive. We hereafter conclude that the Division has the authority to take the action it did and therefore discharge the alternative writ and deny the petition for writ of mandamus.

Bendix is engaged in lumber production at several locations, including Martell in Amador County. The Division is the agency charged with enforcing and administering "all laws and lawful standards and orders, or special orders" requiring a safe working environment and protection of employee health. (Lab.Code, § 6307.) ² On June 27, 1978, a special order was issued by the safety engineer and district manager in the Modesto district office of the Division requiring Bendix, at its expense, to provide gloves or mittens to be worn by employees while removing lumber from the drag chain of the dry kiln area at its Martell facility. At Bendix's request, a hearing on the special order was held before John Hawkes, administrative chief of the Division. ³ In a decision rendered on September 25, 1978, Hawkes held that although the directive in question does not fit under the description of "special order" set out in section 6305, it was nevertheless valid because the Division "has broad authority to issue Orders for certain purposes," and a safety provision in the Administrative Code stating that "Hand protection may be required for employees . . ." (Cal.Admin.Code, tit. 8, § 3384) ⁴ gave the Division discretionary authority to order the use of gloves under certain circumstances and to require that the employer provide them.

Section 6308 provides that "All orders, rules, regulations, findings, and decisions of the division made or entered under this part may be reviewed by the Supreme Court and the courts of appeal as may be provided by law." Absent a clear indication that a writ of review is intended, ⁵ we conclude that the Legislature contemplated review by mandamus or any other writ which may be appropriate. (See Carmona v. Division of Industrial Safety, supra, 13 Cal.3d 303, 308, n.4, 118 Cal.Rptr. 473, 530 P.2d 161; Standard Oil Co. v. State Board of Equal. (1936) 6 Cal.2d 557, 59 P.2d 119; 5 Witkin, Cal. Procedure (2d ed.) Extraordinary Writs, § 210, p. 3965; § 115, pp. 3890-3893; see also Tex-Cal Land Management, Inc. v. Agricultural Labor Relations Bd. (1979) 24 Cal.3d 335, 350, 156 Cal.Rptr. 1, 595 P.2d 579.)

Petitioner Bendix first contends that the Division acted without and in excess of its jurisdiction in issuing the special order. The order, purportedly issued "in accordance with California Labor Code sections 6305 and 6308 for unsafe conditions(s)" that were found during an inspection or investigation, stated that it was based on section 6403, subdivision (a), and described no "unsafe condition" but nevertheless ordered that: "No employer shall fail or neglect to provide and use safety devices and safeguards reasonably adequate to render the employment and place of employment safe; The employer shall provide at its expense, gloves or mittens to be worn by employees while removing lumber from the drag chain of the dry kiln area."

Section 6305, subdivision (b), defines "special order" as "any order written by the chief or his authorized representative to correct an unsafe condition, device, or place of employment which poses a threat to the health or safety of an employee and which cannot be made safe under existing standards or orders of the standards board."

There is no factual dispute in this case. All parties agree that the wearing of gloves or mittens is a necessary safety practice at the Martell facility. The compliance safety engineer who inspected the facility indicated at the hearing that all employees who were handling lumber were wearing mittens and that there was nothing wrong with the mittens: "They were adequate." There was evidence that the employees are required to wear gloves or mittens, subject to immediate suspension for failing to do so and, on the second day, to discharge. The mittens most commonly used are of heavy leather, made for pulling lumber or other heavy labor. Bendix provides gloves or mittens at the Martell facility on a cash or payroll deduction basis but has no objection to employees obtaining them elsewhere.

Since no evidence was presented to warrant the conclusion that a condition existed which posed a threat to the safety or health of the employees and which was not correctable under existing standards or orders of the Standards Board, hearing officer Hawkes properly found that the order issued by the Division does not come within the terms of the statute providing for special orders. The responsibility of the Division to provide for the health and safety of workers is not limited, however, by the statutory provision in section 6305 for issuance of special orders to correct unsafe conditions. As noted earlier, the Division's duties and powers at the present time extend to administering and enforcing "all laws and lawful standards and orders, or special orders." ( § 6307.)

Specific enforcement authority is set out in section 6308. ⁶ The Division's broad authority under this section and other statutory provisions ( § 6306, subds. (a) and (b)) "make clear that the terms of the legislation are to be given a liberal interpretation for the purpose of achieving a safe working environment." (Carmona v. Division of Industrial Safety, supra, 13 Cal.3d 303, 313, 118 Cal.Rptr. 473, 479, 530 P.2d 161, 167.)

We look first to the general laws enacted to insure the health and safety of employees. The primary responsibility for safety has been placed on the employer. "Every employer shall furnish employment and a place of employment which are safe and healthful for the employees therein." ( § 6400.) The employer is required to "furnish and use safety devices and safeguards, and shall adopt and use practices . . . which are reasonably adequate to render such employment and place of employment safe and healthful . . . ." ( § 6401.)

Section 6403, which formed the basis for the Division's action, states: "No employer shall fail or neglect: (a) To provide and use safety devices and safeguards reasonably adequate to render the employment and place of employment safe." Although no general law refers to hand protection, the Standards Board, pursuant to authority set forth in section 142.3, has adopted a regulation or standard which provides that hand protection may be required. ( § 3384, Cal.Admin.Code, tit. 8, Supra, fn. 4.) It was pursuant to these laws and standards that the Division directed Bendix to provide protective hand covering at company expense.

Bendix contends that the decision of the Division, relying on section 6308 as authority for the directive, paints the Division's authority with too broad a brush. Bendix argues that section 6308 gives the Division no authority to act unless the safety or health of employees is endangered, that the safety of employees is taken care of by providing the gloves and mittens on a cash or payroll deduction basis, and that nothing in the general law or the standards of the Board requires that employers pay for safety devices. In sum, Bendix characterizes the Division's action as an attempt to legislate a new standard, encroaching on the authority of the Standards Board which is the only agency which has been delegated powers to "adopt standards." ( § 142.3, subd. (a).) We disagree. The decision of the Division was not a quasi-legislative judgment promulgating a new regulation or standard but rather a specific application of laws and existing regulations. We see no conflict in this exercise of power of the Division vis-a-vis the Standards Board.

Nor do we find error in the Division's interpretation of section 6403 and the accompanying regulation, section 3384. At issue was the meaning of the word "provide" in section 6403, as well as the word "furnish" in section 6401.

Bendix points to traditional practice and customs in the industry for employees to pay for protective devices. The custom and practice of an industry or profession is not controlling in determining the intent of the Legislature or legislative body. (Crees v. California State Board of Medical Examiners (1963) 213 Cal.App.2d 195, 28 Cal.Rptr. 621.) "(W)e know of no rule which says that the conduct of those whose activities are regulated by the statute can aid in its construction." (Jacobsen v. Bd. of Chiropractic Examiners (1959) 169 Cal.App.2d 389, 395, 337 P.2d 233, 237.)

In 1968, prior to the enactment of Cal/OSHA,the Attorney General was asked for an opinion on the subject of safety equipment, specifically whether the statute ( § 6401) and the regulation thereunder (General Safety Order No. 3290) required the employer to pay for necessary and required personal protective clothing and equipment. General Safety Order No. 3290 is now section 3384, here in question. After review of the historical development of the statute and regulation, the Attorney General concluded: "In short, the...