1. Occupational Safety & Health Appeals Board

Precedential Decisions of the Appeals Board

Noteworthy recent Decisions of the Appeals Board

Inspection #1336276: Rios Farming Company, LLC., February 2023

Index of Precedential Decisions of the Appeal Board

Pursuant to Government Code section 11425.60, a decision that contains a significant legal or policy determination of general application that is likely to recur may be designated as precedential. The cases in this index have been determined by the Board to meet that requirement.

Once a decision is designated as precedential, the Board may rely on it, and the parties may cite to this designation in their arguments to the Board. The Board may designate some cases as partially precedential, for the legal or policy determination identified in the index, while others are fully precedential. Additionally, the Board may remove a precedential decision from this list, thereby rescinding its precedential designation.

The Board evaluates each case on the facts it contains and then determines what law and principles should be applied to those facts. Thus, the mere listing of a case in this index does not necessarily mean that legal or policy determinations discussed in that case will apply automatically to the facts and circumstances contained in a later case.

This list should be used as an aid in legal research only.

Case Name Cal/OSHA App. Document DAR Date Precedential Sub-Topics
AMENDMENTS
L & S Construction 10-1821 DAR 10/7/2016 Fully The Board has authority to amend citations and appeals where appropriate if no prejudice to other party.
Marine Terminals Corp. dba Evergreen Terminals 08-1920 DAR 3/5/2013 Fully Post submission amendments allowed to conform to proof provided non-moving party is given opportunity to show it would be prejudiced by the proposed amendment(s).
BURDEN OF PROOF
Wal-Mart Stores 1195264 DAR 11/04/2019 Partially  
CITATION CLASSIFICATIONS
Barrett Business Services, Inc. 315526582 DAR 12/14/2016 Partially Strict rules of pleading do not apply in administrative proceedings; it is sufficient that the cited employer is informed of the substance of the allegation(s) made against it.
Bellingham Marine Industries, Inc. 12-3144 DAR 10/16/2014 Partially If an employer contends a more specific safety order is applicable, it must show it was in compliance with that safety order.
Gateway Pacific Contractors, Inc. 10-1502 DAR 10/4/2016 Partially Employers must provide means of safe egress from trenches and excavations. Excavations must be properly shored or sloped.
MCM Construction, Inc. 13-3851 DAR 2/22/2016 Fully Accident-related
National Distribution Center, LP, Tri-State Staffing 12-0391 DAR 10/5/2015 Fully Serious violation presumption and rebuttal
Pierce Enterprises 00-1951 DAR 3/20/2002 Partially Accident-related
RNR Construction, Inc. 1092600 DENIAL 5/26/2017 Fully Accident-related, Serious violation presumption and rebuttal
Shimmick Construction Company, Inc. 1192534 DAR 8/26/2022 Fully Serious violation presumption and rebuttal.
Staffchex 10-2456 DAR 8/28/2014 Partially Accident-related
Synergy Tree Trimming, Inc. 317253953 DAR 5/15/2017 Fully Serious violation presumption and rebuttal
Timberworks Construction, Inc. 1097751 DAR 3/12/2019 Fully Serious violation presumption and rebuttal
United Parcel Service 1158285 DAR 11/15/2018 Fully Accident-related, Serious violation presumption and rebuttal
DEFENSES
A&C Landscaping 03-4795 DAR 6/24/2010 Fully Employers' defenses to reduce penalties: Duplicative penalty
Barrett Business Services, Inc. 315526582 DAR 12/14/2016 Partially Employers' constitutional defenses: Due process
Bay Cities Paving and Grading, Inc. 12-1665 DENIAL 5/16/2014 Fully Employers' legal defenses: Logical time defense
Bellingham Marine Industries, Inc. 12-3144 DAR 10/16/2014 Partially Employers' legal defenses: More specific safety order applies, Independent Employee Action Defense, Newbery, and Statute of Limitations

Employers' constitutional defenses: Due process
Bimbo Bakeries USA 03-5215 DAR 6/9/2010 Partially Employers' constitutional defenses: 4th amendment
Brunton Enterprises, Inc. 08-3445 DAR 10/11/2013 Partially Employers' legal defenses: Newbery and Independent Employee Action Defense
Buzek Construction, Inc. 1203246 DAR 3/24/2019 Fully Employers' equitable defenses: Equitable estoppel
City of Sacramento, Dept. of Public Works 93-1947 DAR 2/5/1998 Partially Employers' legal defenses: Independent Employee Action Defense
Coast Waste Management 11-2385 DAR 10/7/2016 Fully Employers' legal defenses: Applicability of a safety standard, More specific safety order applies
Dish Network California Service Corporation 12-0455 DAR 8/28/2014 Fully Employers' legal defenses: Applicability of a safety standard
Gateway Pacific Contractors, Inc. 10-1502 DAR 10/4/2016 Partially Employers' defenses to reduce penalties: Duplicative penalty
Maria De Los Angeles Colunga dba Merced Farm Labor 08-3093 DAR 2/26/2015 Fully Employers' defenses to reduce penalties: Financial hardship
McCarthy Building Companies, Inc. 11-1706 DAR 1/11/2016 Fully Employers' legal defenses: Due diligence defense
MCM Construction, Inc. 13-3851 DAR 2/22/2016 Fully Employers' constitutional defenses: Due process
Mercury Service 77-1133 DAR & Grant of PFR 10/16/1980 Partially Employers' legal defenses: Independent Employee Action Defense
National Distribution Center, LP, Tri-State Staffing 12-0391 DAR 10/5/2015 Fully Employers' legal defenses: Independent Employee Action Defense

Employers' constitutional defenses: Unconstitutional vagueness
Nicholson-Brown, Inc. 77-024 DAR & Grant of PFR 12/20/1979 Fully Employers' legal defenses: Logical time defense
OC Communications, Inc. 14-0120 DAR 3/28/2016 Partially Employers' constitutional defenses: Unconstitutional vagueness
Owens-Illinois Glass Container, Inc. 09-2021 DAR & REMAND 6/16/2014 Fully Employers' equitable defenses: Equitable estoppel
Paramount Farms, King Facility 09-864 DAR 3/27/2014 Partially Employers' legal defenses: Independent Employee Action Defense
PDM Steel Service Centers, Inc. 13-2446 DENIAL 6/10/2015 Partially Employers' legal defenses: Independent Employee Action Defense
Pierce Enterprises 00-1951 DAR 3/20/2002 Partially Employers' legal defenses: Independent Employee Action Defense, Statute of limitations
RNR Construction, Inc. 1092600 DENIAL 5/26/2017 Fully Employers' legal defenses: Independent Employee Action Defense

Employers' burden to prove affirmative defenses
Rudolph and Sletten, Inc. 01-478 DAR 3/30/2004 Partially Employers' constitutional defenses: 4th amendment
Sacramento County Water Agency
Department of Water Resources		 1237932 DAR 5/21/2020 Partially  
Shimmick-Nicholson Construction 12-0781 DENIAL 9/3/2015 Partially Employers' legal defenses: Statute of Limitations.
Shimmick-Nicholson Construction 1021893 DAR 7/24/2017 Partially Employers' constitutional defenses: Due process
Staffchex 10-2456 DAR 8/28/2014 Partially Employers' legal defenses: Independent Employee Action Defense
Synergy Tree Trimming, Inc. 317253953 DAR 5/15/2017 Fully Employers' legal defenses: Newbery, Independent Employee Action Defense
Timberworks Construction, Inc. 1097751 DAR 3/12/2019 Fully Employers' legal defenses: Independent Employee Action Defense
United Parcel Service 1158285 DAR 11/15/2018 Fully Employers' legal defenses: Unforeseeable Extreme Departure Defense
United Pumping Service, Inc. 1509967 DAR 3/23/2022 Fully Statute of limitations
DIVISION'S BURDEN TO CITE CORRECT ENTITY
Shimmick-Nicholson Construction 1021893 DAR 7/24/2017 Partially The Division has the burden to prove it cited the correct entity.
DIVISION'S BURDEN UNDER LABOR CODE § 6432
Echo Alpha, Inc.,
John Stagliano, Inc.,
Evil Angel Productions, and
John Stagliano Inc. dba
Evil Angel Video		 14-802-804 DAR 12/24/2015 Partially  
ELEVATOR REGULATION (§ 1630)
Armour Steel Co. 08-2649 DAR 2/7/2014 Partially Construction passenger elevator safety order violation considered in light of conditions at time of inspection, not after later changes.
EMPLOYERS' BURDEN TO PROVE EXCEPTIONS
Dish Network California Service Corporation 12-0455 DAR 8/28/2014 Fully The Division must prove applicability of the cited safety order. Employer must prove that exception(s) apply.
Guardsmark 10-2675 DENIAL 9/22/2011 Fully Exceptions to application of safety order are affirmative defense and employer has burden of proof as to them.
EXPOSURE ANALYSIS
Armour Steel Co. 08-2649 DAR 2/7/2014 Partially The Division has burden to prove exposure to the violative condition.
Benicia Foundry & Iron Works, Inc. 00-2976 DAR 4/24/2003 Partially Exposure to hazard may be proved by showing employee access to zone of danger was reasonably predictable in course of work duties or personal activities taken during work.
Dynamic Construction Services Inc. 1005890 DAR 12/1/2016 Partially The Division may establish exposure either by showing employee(s) was actually exposed to the zone of danger or by showing employee access to zone of danger was reasonably predictable in the course of assigned work or personal activities during work.
Gateway Pacific Contractors, Inc. 10-1502 DAR 10/4/2016 Partially Division must show employees worked in excavation in which water had or was accumulating and that employer failed to take adequate protective measures to prove a violation of section 1541(h)(1).
Guimarra Vineyards Corp. 1256643 Denial 5/26/2020 Partially Employer’s failure to implement its heat illness prevention plan was a violation.
RNR Construction, Inc. 1092600 DENIAL 5/26/2017 Fully Exposure may be proved by showing actual exposure to the violative condition or by proof that it was reasonably predictable that employee(s) had access to the zone of danger.
EMPLOYER-EMPLOYEE RELATIONSHIP
Barrett Business Services, Inc. 315526582 DAR 12/14/2016 Partially Dual employment (primary and secondary employers)
Buzek Construction, Inc. 1203246 DAR 3/24/2019 Fully Employer v. independent contractor status
Guardsmark 10-2675 DENIAL 9/22/2011 Fully Multi-employer worksites
McCarthy Building Companies, Inc. 11-1706 DAR 1/11/2016 Fully Multi-employer worksites
MCM Construction, Inc. 13-3851 DAR 2/22/2016 Fully Scope of Employment
Shiho Seki dba Magical Adventure Balloon Rides 11-0477 DENIAL 8/31/2011 Partially Employee v. independent contractor status
Staffchex 10-2456 DAR 8/28/2014 Partially Dual employment (primary and secondary employers)
Walmart Associates, Inc., dba Walmart Fulfillment Center # 8103 1461476 DAR 7/22/2022 Fully Dual employment (primary and secondary employers); Labor Code section 2810.3 (client employer).
FOOT PROTECTION (§ 3385)
Golden State FC, LLC dba Amazon Fulfillment Center SJC7 1310525 DAR 4/14/2021 Fully To prove a violation of section 3385, the Division must establish that employee(s) were exposed to foot injuries and that employer failed to provide adequate foot protection.
United Parcel Service 1158285 DAR 11/15/2018 Fully To prove a violation of section 3385, the Division must establish that employee(s) were exposed to foot injuries and that employer failed to provide adequate foot protection.
UPS Ground Freight Inc. dba UPS Freight 1111325 DENIAL 11/22/2017 Fully The California Supreme Court has ruled that employers must furnish and pay for required safety equipment. (Bendix Forest Products.) That case and Labor Code sections 6401 and 6403 gave employers fair notice of their obligations regarding protective equipment.
HEAT ILLNESS PREVENTION
Olam West Coast, Inc. dba Olam West Spices and Vegetable Ingredients 1334740 DAR 2/17/2022 Fully Section 3395, subdivisions (h) and (g) (decision interpreting training and acclimatization requirements)
Rios Farming Company, LLC 1336276 DAR 2/6/2023 Fully Section 3395, subdivision (c) (decision interpreting provision of water requirements)
INFERENCES
BHC Fremont Hospital, Inc. 13-0204 DENIAL 5/30/2014 Fully Failure to produce evidence which is within the party’s power to produce may raise inference that such evidence would have been adverse.
RNR Construction, Inc. 1092600 DENIAL 5/26/2017 Fully Inference can be drawn from evidence introduced at a hearing.
INTERLOCUTORY ORDERS
Shimmick-Nicholson Construction 1080515 DENIAL 3/30/2017 Partially  
INJURY AND ILLNESS PREVENTION PROGRAM
Barrett Business Services, Inc. 315526582 DAR 12/14/2016 Partially § 3203, subds. (a)(3), (a)(4), (a)(5), (a)(7)
BHC Fremont Hospital, Inc. 13-0204 DENIAL 5/30/2014 Fully § 3203, subd. (a)(6)
Brunton Enterprises, Inc. 08-3445 DAR 10/11/2013 Partially § 3203, subd. (a)(4)
Coast Waste Management 11-2385 DAR 10/7/2016 Fully § 3203, subds. (a)(2), (a)(4), (a)(6), and (a)(7)
Marine Terminals Corp. dba Evergreen Terminals 08-1920 DAR 3/5/2013 Fully § 3203, subd. (a)(2)
MCM Construction, Inc. 13-3851 DAR 2/22/2016 Fully § 3203, subds. (a)(6) and (a)(7)
National Distribution Center, LP, Tri-State Staffing 12-0391 DAR 10/5/2015 Fully § 3203, subd. (a)(6) and (a)(7)

Injury and Illness Prevention Program and joint employers
OC Communications, Inc. 14-0120 DAR 3/28/2016 Partially § 3203, subd. (a)(4)
Timberworks Construction, Inc. 1097751 DAR 3/12/2019 Fully § 3203, subds. (a)(4) and (a)(7)
INTRODUCTION OF EVIDENCE/EVIDENTIARY RULES
Armour Steel Co. 08-2649 DAR 2/7/2014 Partially Hearsay
Barrett Business Services, Inc. 315526582 DAR 12/14/2016 Partially Preponderance of the evidence
Bellingham Marine Industries, Inc. 12-3144 DAR 10/16/2014 Partially Hearsay
C.A. Rasmussen, Inc. 08-0219 DAR 7/19/2012 Partially Hearsay
Forklift Sales of Sacramento, Inc 05-3477 DAR 7/7/2011 Partially Transportation includes loading and unloading of transport vehicles.
Pierce Enterprises 00-1951 DAR 3/20/2002 Partially Hearsay: Authorized admissions; Newly discovered evidence
Ventura Coastal, LLC. 317808970 DAR 9/22/2017 Partially A supervisor’s knowledge is imputed to the employer.
JURISDICTION
Adecco, Inc. Branch 5100 08-4312 DENIAL 8/25/2010 Fully Board lacks jurisdiction to grant reconsideration if petition is filed after time allowed in Labor Code section 6614.
LATE APPEALS
Adecco, Inc. Branch 5100 08-4312 DENIAL 8/25/2010 Fully Late appeal not granted when employer’s failure to notify Board of new address caused failure to receive notice.
Quintana Construction Inc. 1198572 Denial 6/24/2020 Partially Appeals Board lacks jurisdiction to grant a petition for reconsideration which is filed late.
Rafidain, Inc dba Genie Car Wash & Oil Change 1162918 DENIAL 5/12/2017 Fully Employer must handle citation appeals as it would its most important legal affairs. Citation package legally sufficient to put cited employer on notice of its legal rights and obligations.
MEANING OF GOOD CAUSE
SA Recycling, LLC 11-9059 DENIAL 6/3/2011 Partially  
PENALTY CALCULATIONS
Armour Steel Co. 08-2649 DAR 2/7/2014 Partially Division's burden to prove penalty calculation
C.A. Rasmussen, Inc. 08-0219 DAR 7/19/2012 Partially Proper way to apply section 336 calculations; employer given maximum credits when Division is unable to show a factual basis for its adjustments and credits.
Plantel Nurseries 01-2346 DAR 1/8/2004 Partially  
M1 Construction 12-0222 DAR 7/31/2014 Partially  
REPORTING REQUIREMENTS (§ 342)
Allied Sales 11-0480 DAR 11/29/2012 Fully Penalty for failure to report
Bellingham Marine Industries, Inc. 12-3144 DAR 10/16/2014 Partially Reporting under § 342
Burbank Recycling, Inc. 10-0562 DAR 6/30/2014 Partially Reporting under § 342
Central Valley Engineering & Asphalt 08-5001 DAR 12/4/2012 Fully Penalty for reporting late
STATUTORY REQUIREMENTS
Adecco, Inc. Branch 5100 08-4312 DENIAL 8/25/2010 Fully Lab. Code, §§ 6614, 6616, and 6617
The Herrick Corp. 07-0495 DAR 3/26/2012 Partially Appeals Board construes statutes and regulations broadly to be protective of workers; gives words their common sense meaning in light of purpose for enactment.
McCarthy Building Companies, Inc. 11-1706 DAR 1/11/2016 Fully Lab. Code, § 6618
Quintana Construction Inc. 1198572 Denial 6/24/2020 Partially Appeals Board lacks jurisdiction to grant a petition for reconsideration which is filed late.
STATUTORY/REGULATORY INTERPRETATION
Sacramento County Water Agency
Department of Water Resources		 1237932 DAR 5/21/2020 Partially  
Papich Construction 1204848 DAR 12/26/2018 Partially  
SETTLEMENTS
K H S & S of Concord, Inc. 11-0374 DAR 9/4/2014 Fully Affected employee may participate as a party upon motion; as long as he/she has opportunity to provide input to settlement discussions, he/she may not by objection prevent settlement in absence of fraud, misrepresentation, or violation of Board rules or public policy.
SHADE REQUIREMENTS (§ 3395)
Harris Rebar Northern California, Inc. 1086663 DAR 9/22/2017 Fully 'Shade' in section 3395(d)(3) means shade as defined in section 3395(b). Industrial equipment may not provide shade as so defined.
STIPULATIONS
C.A. Rasmussen, Inc. 08-0219 DAR 7/19/2012 Partially A stipulation satisfies an evidentiary burden and establishes the facts it states.
SUPERVISOR STATUS
City of Sacramento, Dept. of Public Works 93-1947 DAR 2/5/1998 Partially The independent employee action affirmative defense (IEAD) does not apply when employee who violated safety rule was a supervisor. Supervisor generally means someone with responsibility to ensure safety.
TRENCHES / EXCAVATION (§ 1541)
Gateway Pacific Contractors, Inc. 10-1502 DAR 10/4/2016 Partially Employer must provide safe means of egress from trenches and excavations.
Shimmick-Nicholson Construction 1021893 DAR 7/24/2017 Partially Board applies usual meaning of terms not defined in a safety order. ‘Encumbrance’ not defined in section 1541.
USE OF EQUIPMENT (§3328)
Guy F. Atkinson Construction, LLC. 1332867 DAR 7/13/2022 Partially  
VALLEY FEVER
Papich Construction Company, Inc. 1236440 DAR 3/26/2021 Fully Employee exposure
VARIANCE
Armour Steel Co. 08-2649 DAR 2/7/2014 Partially Although employers may seek a variance from the Standards Board, the Appeals Board lacks authority to grant such relief.

March 2024

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