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Worker safety appeals board rulings raise question

The board often reduces or dismisses penalties against companies that Cal-OSHA has fined.

October 21, 2009|Jessica Garrison

Rosa Frias was working the evening shift at Bimbo Bakeries in South San Francisco when she reached into her bread-making machine to remove a hunk of dried dough.

She screamed as her left hand, and then her lower arm, were sucked into the gears of the Winkler stringline proofer. That night, the limb had to be amputated above the elbow.

The incident drew a $21,750 fine from the California Division of Occupational Safety and Health. But Bimbo paid nothing. It appealed to the Cal-OSHA Appeals Board, which dismissed the case on a technicality: The inspector had retired and Cal-OSHA could not prove that he had had permission to enter the factory.

Since that 2003 accident, five more employees in Bimbo's California plants have lost fingers or parts of fingers in accidents in which inspectors found similar safety violations. In two of those accidents, the appeals board reduced the fines by thousands of dollars.

"That is mind-boggling," said Linda Delp, director of UCLA's Labor Occupational Safety and Health program.

It is not, however, unusual for companies to fare well on appeals. A Times review found that the board has repeatedly reduced or dismissed penalties levied by Cal-OSHA over the last few years, even in situations in which workers have died or been seriously injured. The board's actions have done more than save companies money. They have undermined Cal-OSHA's efforts to prevent future accidents, according to labor advocates, inspectors and state documents.

Earlier this year, 47 inspectors and district managers at Cal-OSHA, about a quarter of the staff, signed a letter to the board complaining that Cal-OSHA's "deterrent effect has been significantly undermined as employers learn they can 'game the system.' "

"It sends a message that all an employer has to do is appeal," said Jeremy Smith of the California Labor Federation, a group that lobbies on behalf of unions. "Penalties will get whittled down, and the employer can write that off as the cost of doing business."

Candice Traeger, the chairwoman of the appeals board, acknowledged that during her tenure thousands of cases had been settled, often for cents on the dollar.

It is not because the board favors employers, she said: Rather, the board had to clear a backlog of 2,500 cases, a goal it accomplished earlier this year.

The backlog, which had drawn a federal complaint, was bad for workers, she said, because companies did not have to fix problems while their cases languished.

"Eliminating the backlog . . . was what gave us the flexibility [to] do what we are doing now, which is make and create a better appeals process," said Traeger, a former Teamster union steward and executive at UPS who was appointed in 2004 by Gov. Arnold Schwarzenegger.

In May, however, the state Senate Committee on Labor and Industrial Relations took Traeger's board to task over the way it had whittled down its caseload.

Drawing in part from testimony at a Senate oversight hearing, the committee issued a report that cited "drastic" penalty reductions for employers and a flawed hearing process. According to the report, the board scheduled multiple cases to be heard simultaneously by the same judges, often far from where witnesses lived.

"Many argue that this practice is resulting in fines and penalties for real workplace hazards being withdrawn, downgraded and severely reduced in coerced settlements," the report said.

Traeger countered that many cases have been settled because Cal-OSHA inspectors have not properly issued citations or documented the problems -- not her board's fault.

"Honestly, nobody likes us," Traeger said. "I tend to think that means we're doing something right. We're balanced, we're in the middle. We make a determination on what's right under each case."

In California, imposing safety fines on an employer can be an elaborate process.

First, a Cal-OSHA inspector cites violations, which can be appealed to an administrative law judge appointed by the appeals board. Then the three-member board can either accept the judge's decision or change it. Its decisions, in turn, can be appealed in state court. (Any fines collected go to the state, not the employees.)

The current board is made up of industry representative Traeger, public representative Robert Pacheco and labor representative Art Carter. Carter was appointed in March after the labor seat had been vacant for two years.

There is no simple way to assess all 18,000-plus appeals the board has handled since 2005 because the dockets are not readily accessible. But one measure of the board's record is to look at cases in which the panel has stepped in to review its own judges' decisions. These "Decisions after Reconsideration" are the board's way of setting precedent for its judges to follow.

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