Pulaski v. Cal Osha, C028525.

CourtCalifornia Court of Appeals
Writing for the CourtCallahan
Citation90 Cal.Rptr.2d 54,75 Cal.App.4th 1315
PartiesArt PULASKI et al., Plaintiffs and Respondents, v. CALIFORNIA OCCUPATIONAL SAFTY AND HEALTH STANDARDS BOARD, Defendant and Appellant; American Trucking Associations, Inc., et al., Interveners and Appellants, American Federation of Labor and Congress of Industrial Organizations, Intervener and Respondent.
Docket NumberNo. C028525.,C028525.
Decision Date29 October 1999
90 Cal.Rptr.2d 54
75 Cal.App.4th 1315
Art PULASKI et al., Plaintiffs and Respondents,
American Trucking Associations, Inc., et al., Interveners and Appellants,
American Federation of Labor and Congress of Industrial Organizations, Intervener and Respondent.
No. C028525.
Court of Appeal, Third District.
October 29, 1999.
As Modified on Denial of Rehearing November 24, 1999.

[90 Cal.Rptr.2d 58]

[75 Cal.App.4th 1322]

Daniel E. Lungren and Bill Lockyer, Attorneys General, and Timothy G. Laddish, Senior Assistant Attorney General, for Defendant and Appellant.

Gibson, Dunn & Crutcher, Pamela L. Hemminger, Los Angeles, Eugene Scalia, Washington, D.C., ATA Litigation Center, Daniel R. Barney, and Lynda S. Mounts, Alexandria, VA, for Interveners and Appellants.

Carroll & Scully, Inc., Donald C. Carroll and Charles P. Scully II, San Francisco, for Plaintiffs and Respondents.

Kazan, McClain, Edises, Simon & Abrams, Frances C. Schreiberg, Oakland, Altshuler, Berzon, Nussbaum, Berzon & Rubin, Stephen P. Berzon, Scott A. Kronland, San Francisco, Jonathan P. Hiatt, and Lynn Rhinehart, for Intervener and Respondent.


In 1993, the Legislature enacted Labor Code section 6357, directing the California Occupational Safety and Health (Cal OSHA) Standards Board to "adopt standards for ergonomics in the workplace designed to minimize the instances of injury from repetitive motion."

75 Cal.App.4th 1323

ln response to this legislative mandate, and following a protracted saga of rulemaking, comments and public hearings, Cal OSHA's Standards Board (the Board) promulgated title 8, section 5110 of the California Code of Regulations (Regulation 5110).

No sooner was the ink dry on the final regulation than it came under attack from opposite directions: Labor interests claimed the regulation was too soft, that it contained "loopholes" which were inconsistent with the mandate of Labor Code section 6357 and guaranteed that employers would be able to virtually ignore the problem of repetitive stress injury. Certain employer groups, spearheaded by the American Trucking Associations, Inc., and California Trucking Association, thought the regulation scientifically unsound and issued without substantial compliance with the California Administrative Procedure Act (APA) (Gov.Code, § 11340 et seq.).1

Acting on petitions for writ of mandate (Code Civ. Proa, § 1084 et seq.), the trial court granted most of the relief sought by the Labor petitioners. The court struck four portions of Regulation 5110, found the remainder of the regulation valid, and ordered it to go into effect as modified by the court.

On this appeal by the Board and the Associations, we will conclude that, except for one conspicuous exemption, the regulation is valid, that the trial court improperly invaded the rulemaking authority of the Board by striking the remaining provisions, and that the APA-based challenges to the regulation are meritless. We will reverse with directions.

Section 6357 and the Board's Attempt to Comply

The Board was created by the Legislature as part of the California Occupational Safety and Health Act of 1973. (Lab. Code, § 6300 et seq. [all further unspecified statutory references are to this code]; see Carmona v. Division of Industrial Safety (1975) 13 Cal.3d 303, 306, fn. 1, 118 Cal.Rptr. 473, 530 P.2d 161.) The Board is the only administrative agency empowered

90 Cal.Rptr.2d 59

to adopt statewide occupational health and safety standards. (§ 142.3, subd. (a)(1); National Elevator Services, Inc. v. Department of Industrial Relations (1982) 136 Cal.App.3d 131, 142-143, 186 Cal.Rptr. 165.)

Section 6357 was enacted as part of Assembly Bill No. 110 (1993-1994 Reg. Sess.), an omnibus package of workers' compensation reform legislation. In his message to the

75 Cal.App.4th 1324

Assembly following its signing on July 16, 1993, Governor Wilson hailed the bill as a significant step in handling the "exploding costs" of workers' compensation claims, accomplishing a 14 percent estimated reduction in costs. (Historical Note, 42 West's Ann. Ins.Code (1999 pocket supp.) foll. § 675, p. 37.)

The language of section 6357 is straightforward and simple. "On or before January 1, 1995, the [Cal OSHA] Standards Board shall adopt standards for ergonomics in the workplace designed to minimize the instances of injury from repetitive motion." (Stats.1993, ch. 121, § 71, eff. July 16,1993.)2

Implementation was far from simple. The Board attempted to comply with the deadline of January 1, 1995, but was inundated with an unprecedented amount of testimony during public hearings and comment periods. It also discovered there was no agreement among the affected groups or knowledgeable experts on the means effectively to regulate or prevent repetitive motion injuries (RMIs).3 Moreover, federal OSHA had suspended its efforts to publish a proposed rule governing ergonomics in 1994. Consequently, after many modifications, the Board decided to develop a "performance standard" proposal, which left to the employer the details of implementing a corrective ergonomics program.4

The rulemaking process was long and tedious. Frustrated by the delay, a group of California labor federations and workers claiming injury from repetitive motion filed a petition for writ of mandate to compel the Board to

75 Cal.App.4th 1325

adopt repetitive motion injury standards in accordance with the mandate of section 6357. As a result of the petition, the trial court issued a peremptory writ of mandate, ordering the Board to propose and adopt standards not later than December 1, 1996.

On November 15, 1996, after holding hearings and receiving public comments, the Board.adopted a standard and submitted it to the Office of Administrative Law (OAL) for review. The OAL rejected the regulation and sent it back to the Board for failure to satisfy the clarity standard of Government Code section 11349.1.5 Soon

90 Cal.Rptr.2d 60

thereafter, the Labor petitioners filed a motion to cite the Board for contempt for enacting a regulation which allegedly did not meet the mandate of section 6357, but the court found the request premature.

On June 3, 1997, the OAL approved the standard, with clarifying modifications. Regulation 5110 became effective on July 3, 1997.

Summary of Regulation 5110

Regulation 5110 requires an employer to institute a program designed to minimize RMIs in the workplace whenever two or more of its employees performing repetitive tasks have reported RMIs within a twelve-month time span. (Id., subds. (a), (b).) These so-called "triggering" RMIs must be predominantly work-related and objectively diagnosed by a licensed physician. (Id, subd. (a)(1), (a)(3).)

Once the two-injury threshold is met, the employer is required to establish and implement a program designed to minimize RMIs. The program

75 Cal.App.4th 1326

shall have three components: (1) worksite evaluation, (2) corrective control of exposure to RMIs, and (3) employee training. (Regulation 5110, subd. (b)(1)-(3).)

There are two very important qualifications: (1) Employers with nine or fewer employees are completely exempted from the regulation (the "small employer exemption"), and (2) ergonomics measures carried out by an employer pursuant to the regulation shall be deemed to satisfy the employer's obligations "unless it is shown that a measure known to but not taken by the employer is substantially certain to cause a greater reduction in such [RMIs] and that this alternative measure would not impose additional unreasonable costs" (the "safe harbor" provision). (Regulation 5110, subds. (a), (c).)

Challenges to the Regulation

By stipulation of the parties, the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), and the Associations were permitted to file petitions in intervention on opposite sides of the issue.

The Associations argued the entire regulation should be invalidated because the Board's findings that it would have no significant economic impact and that it was reasonably necessary to effectuate the purpose of the statute were not supported by substantial evidence in the record. The Associations also claimed the Board did not substantially comply with the procedural requirements of the APA.

Labor sought invalidation of various loopholes that it claimed violated the mandate of section 6357: (1) the small employer exemption, (2) the definition of "injury" as predominantly work-related coupled with the requirement the injury be objectively diagnosed by a physician; (3) the two-injury in twelve-months requirement; and (4) the safe harbor provision.

The Board defended the regulation from the attacks launched against it from the two opposing sides.

After exhaustive briefing and a hearing, the trial court denied all of the relief sought by the Associations and granted

90 Cal.Rptr.2d 61

most of the relief sought by Labor. Specifically, the court:

• Upheld the two-injury threshold requirement to trigger the employer's obligation to institute ergonomics measures designed to minimize RMIs.

• Eliminated the exemption for small businesses.

75 Cal.App.4th 1327

• I Excised the requirement that the RMIs be predominantly caused by a work-related repetitive motion task.

• Struck the word "objectively" from the sentence "[T]he RMIs were musculo-skeletal injuries and that a licensed physician objectively identified and diagnosed such."

• Eliminated subdivision (c), the safe harbor provision, protecting an employer that undertakes good-faith measures designed to minimize RMIs.

The court granted a peremptory writ of mandate requiring the Board to refrain from giving "legal force and effect" to those portions of Regulation 5110 it found invalid.6

The Associations and the Board have each appealed from the judgment. Labor initially filed a cross-appeal, but has since withdrawn it. While not...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT