Week of September 1, 2014
‘Major Issues’ Affect Cal/OSHA’s Mission Capability,
Federal OSHA Says
The California Division of Occupational Safety and Health,
better known as Cal/OSHA, is so understaffed the agency is
challenged to fulfill its mission, federal OSHA said in its annual
monitoring and evaluation report of the state agency.
Besides understaffing, federal auditors described as
“major issues” a low rate of serious violations and long
citation lapse time, which is the period between the start
of an inspection and issuance of a citation. The critique
covered the 2013 fiscal year.
“The lack of staffing affects the citation lapse time, the
number of inspections conducted, and the response time
to complaints,” federal officials said. “In particular, the
number of inspections conducted by the current
Cal/OSHA staff is well below the federal average. To
compound this problem, there has been a steady
decrease in inspectors since FY 2011.”
The report also said California’s rate of serious, willful or
repeat violations had fallen significantly below the federal
average, suggesting Cal/OSHA’s “limited resources are
not being applied most efficiently and effectively.”
Contributing factors likely included targeting low hazard
industries and inappropriately coding non-enforcement
activities as inspections, auditors said.
Problems also were seen in the state’s program to protect
whistleblowers from retaliation for lodging workplace
health and safety complaints. Documentation of such
cases was “often not adequate,” and in four of 19 cases
auditors examined, the conclusion investigators drew was
not supported by the evidence.
In an August 7 letter to OSHA’s Region 9 Manager,
Christine Baker, Director of the California Department of
Industrial Relations, the agency in charge of Cal/OSHA,
agreed with OSHA’s concerns regarding staffing levels
and enforcement inspections. Baker said a new
leadership team at Cal/OSHA since September 2013 was
working actively “to restore and strengthen” it in key
areas. Cal/OSHA’s FY 2014 budget includes funds to fill
27 previously unfunded positions, she said. In addition,
an infusion of $5.7 million in new money will bring 15
new hires to Cal/OSHA’s process safety management unit.
As for enforcement inspections, “We have initiated
processes to increase the timeliness, volume, and quality
of our inspections,” Baker said. She listed several
“ongoing efforts” then added that the state “will also
work with OSHA to document our high hazard targeting
methods and create a plan for evaluating effectiveness.”
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Judge Denies MSHA’s Motion for Temporary Economic
Reinstatement in Discrimination Case
A mine employee sought temporary economic
reinstatement after filing a discrimination claim over
alleged safety issues, but a judge has ruled physical
reinstatement is the only available remedy.
Cheryl Garcia resigned as an industrial hygienist at Veris Gold
U.S.A., Inc.’s Jerritt Canyon Mill in Nevada alleging she faced
hostility from management. She filed a discrimination claim
with MSHA. In July, Administrative Law Judge David
Simonton ordered Veris to put Garcia back to work while her
discrimination case proceeded through litigation.
But, going to bat for Garcia, MSHA objected, contending
Garcia faced increased hostility from the assistant mill
manager, who had recently been promoted to mill manager.
The agency asked Simonton to economically reinstate Garcia
by directing the company to pay her wages and benefits
rather than have her return to work. Veris objected.
MSHA argued that the relevant discrimination provision of
the Mine Act gave Simonton the authority to order economic
reinstatement. In a decision issued August 22, the judge
disagreed. Quoting directly from the statute, Simonton said
the language indicated physical reinstatement was the sole
remedy. He added that he could not find, nor could MSHA
identify, a single instance where the Federal Mine Safety and
Health Review Commission granted economic relief over an
operator’s objections.
The agency pointed out a 2011 case in which a judge had
economically reinstated a miner over his objections.
However, Simonton dismissed it, saying evidence in that
case indicated there was a potential for workplace
disruption if the complainant returned to work. Garcia’s
allegations of hostility were in dispute, though, because
Veris said it had investigated Garcia’s allegations about the
mill manager and had found them to be meritless.
Simonton also noted that MSHA had offered no
independent corroboration of Garcia’s contentions.
Paraphrasing from the 2011 case, Simonton commented,
“[A]n order of temporary economic reinstatement without the
operator’s consent would deprive Respondent of the labor it
generally receives during temporary physical reinstatement.”
He said Veris had acted in good faith by proposing a
physical reinstatement plan whereby Garcia would get her
old job back and receive full pay and benefits. However,
she had said no, instead requesting part-time weekend
work on a four-week trial basis while she continued work
at her current job.
In striking MSHA’s reconsideration motion, Simonton also
directed the two sides to continue negotiations on his
temporary reinstatement order while continuing a
discussion to settle Garcia’s claim.
On a procedural matter, Simonton said he would normally
have barred MSHA’s motion because it was filed late,
violating a Commission rule. Instead, he agreed to consider it
because the agency had alleged Garcia would face increased
hostility as a result of the mill manager’s promotion.
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