Davey Tree Surgery Co. v. Occupational Safety & Health Appeals Bd.

• Decision Date: 10 May 1985
• Citation: 213 Cal.Rptr. 806,167 Cal.App.3d 1232
• Court: California Court of Appeals Court of Appeals
• Parties: , 1984-1985 O.S.H.D. (CCH) P 27,279 DAVEY TREE SURGERY COMPANY, Plaintiff and Appellant, v. OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD, Defendant and Respondent; DIVISION OF OCCUPATIONAL SAFETY AND HEALTH, Real Party in Interest and Respondent. AO22403.

Page 806

213 Cal.Rptr. 806

167 Cal.App.3d 1232, 1984-1985 O.S.H.D. (CCH) P 27,279

DAVEY TREE SURGERY COMPANY, Plaintiff and Appellant, v. OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD, Defendant and Respondent;

DIVISION OF OCCUPATIONAL SAFETY AND HEALTH, Real Party in Interest and Respondent.

AO22403.

Court of Appeal, First District, Division 3, California.

May 10, 1985.

Review Denied Aug. 15, 1985. ^*

Littler, Mendelson, Fastiff & Tichy, Richard A. Leasia, Donald M. Hartford, Jr., San Jose, for plaintiff and appellant.

Robert D. Peterson, Sunset Whitney Ranch, for amicus curiae on behalf of plaintiff and appellant.

Elise B. Manders, Chief Counsel, California Occupational Safety and Health Appeals Board, Sacramento, for defendant and respondent.

Michael D. Mason, Chief Counsel, Neil P. Sullivan, Staff Atty., Div. of Occupational Safety and Health, San Francisco, for real party in interest.

BARRY-DEAL, Associate Justice.

An employee of Davey Tree Surgery Company (Davey) violated a safety order by working in an aerial lift without a safety belt. Davey was cited for violation of the California Occupational Safety and Health Act of 1973 (OSHA) (Lab.Code, § 6300 et seq.) and defended on the ground that the violation was an unforeseeable independent act of an employee. The Occupational Safety and Health Appeals Board (Board) rejected Davey's position because the violating employee was a foreperson or supervisor whose acts were not subject to the defense. We hold that the Board's determination was supported by the evidence and was not unreasonable.

PROCEDURAL HISTORY

On August 3, 1981, the Division of Occupational Safety and Health of the California Department of Industrial Relations (Division) issued a citation to Davey for a general violation of section 3686, subdivision (h), of the General Industry Safety Orders adopted by the California Occupational Safety and Health Standards Board. (Cal.Admin.Code, tit. 8, § 3686, subd. (h).) Davey filed a "Notice of Contest (Appeal)," and an administrative hearing was held on January 7, 1982. The administrative law judge (ALJ) granted the appeal and set aside the alleged violation. However, the Board granted reconsideration and reversed that decision, denying the appeal.

The superior court denied Davey's petition for writ of mandate (Code Civ.Proc., § 1094.5), and this appeal followed.

FACTS

Evidence at Administrative Hearing

Davey is engaged in the business of tree husbandry, tree trimming, and related services. In July 1981, Davey had a contract with a utility company to trim trees away from high voltage wires.

Brian Young, a safety engineer with the Division, testified that on July 24, 1981, he saw one of Davey's two-person aerial lift crews doing this work. He observed one member of the crew on the ground pulling away the cut trees. The other, Charles Gilliam, was about 28 feet above the ground in a lift basket, doing the trimming.

Mr. Gilliam was not wearing a body safety belt which could be hooked to the lift basket. Mr. Young cited Davey for this violation of section 3686, subdivision (h), of title 8 of the California Administrative Code. ¹ Mr. Young testified that Mr. Gilliam's violation posed a serious hazard in that, if a vehicle should hit the Davey truck, the worker could be thrown from the basket, or if the boom should fall for some reason, the worker could be seriously injured.

Davey did not dispute these facts, but relied on the defense of "independent employee act," in support of which it offered this evidence. Howard Bowles, utility operations manager for Davey, testified that each new employee of the company receives a manual which includes all safety rules pertinent to their work. In the section on aerial lifts, the manual states: "An Davey's aerial lift crews normally consist of two people, a foreperson and a climber. Mr. Gilliam's 18-month training, which was completed about 3 months before the incident in question, qualified him as a foreperson. On the day in question Mr. Gilliam was "the working fore[person].... The [person] in charge."

                approved safety belt and lanyard shall be worn in the basket by the lift operator at all times."   Mr. Gilliam received the manual on September 4, 1979, and after 18 months of on-the-job training, he passed a "line clearance tree trimmer test."
                

Bob Martin, Mr. Gilliam's district foreperson, testified that immediately after the citation, Mr. Gilliam told him that he had left his safety belt in another truck. Mr. Martin then said, "[W]hy Chuck you've got two ... climbing belts in the truck at all times and you were instructed to never get in that bucket without a safety belt of some kind on." Mr. Gilliam then "just shrugged his shoulders and said well the man was out there and caught me, ..."

Mr. Bowles also testified that each truck is supplied with several safety belts.

Mr. Gilliam was disciplined for the violation by being given a week off without pay and being demoted to climber.

Findings and Decision Below

Upon this and other evidence, the ALJ found that the lead person (Gilliam) was trimming branches without wearing a body belt, though one was available to him; that he had received 18 months on-the-job training, had passed written tests, and had received a safety manual with all pertinent rules; that one of those rules required wearing a safety belt, and that he knew the rule; that the employer has a policy, known to Gilliam, of sanctioning all employees who violate safety rules; and that he was, in fact, sanctioned.

The ALJ concluded: "Employer has sustained its burden by proving that the act of its lead [person] in not wearing a body belt was an independent act by the employee and one which Employer could not reasonably anticipate...."

Division sought reconsideration on the ground that the employee was a foreperson to whom the independent-employee-action defense does not apply. The Board agreed and in its decision after reconsideration denied the appeal.

The superior court found that there was substantial evidence supporting the Board's determination that Mr. Gilliam was a " 'supervisor' " and that the Board's policy of barring employers from asserting the independent-act defense as to supervisors was neither unreasonable nor arbitrary. The court noted that application of this rule to Davey was "somewhat anomolous" [sic ] because a high percentage of its work force consists of supervisors (one-third or more), but concluded that "rejection of the Board's rule might work considerable mischief with more typical companies where supervisors are less numerous. Not every hard case should result in bad law." Accordingly, the court denied the writ.

DISCUSSION

In this proceeding we are called upon to address the scope of the so-called independent-act defense to cited safety violations and to determine whether the Board properly disallowed the defense in this instance.

When a violation of safety rules occurs, the cited employers may present an affirmative defense under the Board-developed "independent employee action test," if they can show: "1. The employee was experienced in the job being performed, [p] 2. Employer has a well-devised safety program which includes training employees in matters of safety respective to their particular job assignments, [p] 3. Employer effectively enforces the safety program, [p] 4. Employer has a policy which it enforces of sanctions against employees who violate the safety program, and [p] 5. The employee caused a safety infraction which he or she knew was contra to the Employer's safety requirement." (In re Mercury Service, Inc. (Oct. 16, 1980) Dec. After Reconsideration No. 77-R4D1-1133, pp. 2-3.)

Stated another way, and in the negative, the rule provides that "... the violation is deemed unforeseeable, therefore not punishable, if none of the following four criteria exist: (1) that the employer knew or should have known of the potential danger to employees; (2) that the employer failed to exercise supervision adequate to assure safety; (3) that the employer failed to ensure employee compliance with its safety rules; and (4) that the violation was foreseeable." (Gaehwiler v. Occupational Safety & Health Appeals Bd. (1983) 141 Cal.App.3d 1041, 1045, 191 Cal.Rptr. 336 [hereafter Gaehwiler ], citing Newbery Electric Corp. v. Occupational Safety & Health Appeals Bd. (1981) 123 Cal.App.3d 641, 649, 176 Cal.Rptr. 734.)

Even if the above criteria are met and the independent-act test is otherwise established, the Board has a policy against permitting use of the defense where the offending worker is a foreperson or supervisor. (In re Cutter Laboratories (Feb. 24, 1982) Dec. After Reconsideration No. 81-R4D4-440, p. 2, citing In re Western Pipeline, Inc. (Sept. 28, 1981) Dec. After Reconsideration No. 80-R2D4-1426.)

Davey contends that the finding that Mr. Gilliam was a "supervisor" whose violation did not come within the independent-act defense was not supported by substantial evidence and that, in any event, the Board's foreperson exception to the defense is unreasonable and amounts to an improper imposition of strict liability under OSHA.

Scope of Review

Our function, which is the same as that of the trial court, is to determine whether, "based upon the entire record," the Board's decision was supported by substantial evidence, and whether it was reasonable. (Lab.Code, § 6629; Steve P. Rados, Inc. v. California Occupational Saf. & Health Appeals Bd. (1979) 89 Cal.App.3d 590, 594-595, 152 Cal.Rptr. 510; see Gaehwiler, supra, 141 Cal.App.3d at p. 1045, fn. 2, 191 Cal.Rptr. 336.)

Substantial Evidence

As indicated above, the Board held that because Mr. Gilliam was found to be a supervisor, the independent-act defense could not excuse his safety violation. Davey contends that this factual finding is not supported by the record and that it was not fairly litigated. We do not agree.

The Board made express findings, all supported by the testimony and documentary...