SOLUS INDUSTRIAL INNOVATIONS v. S.C.Amicus Curiae, State of California, Department of Industrial Relations, Request for Judicial NoticeCal.July 23, 2015 OPY NO. 8222314 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA SOLUS INDUSTRIAL INNOVATIONS,LLC,etal., Petitioners, SUPREME COURT FILED THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, FOR THE COUNTY OF ORANGE, JUL 23 2015Respondent; ~ v. Fran GuiTHE PEOPLE OF THE STATE OF CALIFORNIA, KA. MeGuire Clerk Real Party in Interest. Deputy Petition for Review of a Decision ofthe Court of Appeal, Fourth Appellate District, Division 3, No. Case No. 0047661 SUPERIOR COURT OF THE COUNTY OF ORANGE Civil Case No. 30-2012-00581868-CU-MC-CXC THE HONORABLE KIM G, DUNNING DIRECTOR OF CALIFORNIA DEPARTMENTOF INDUSTRIAL RELATIONS, CHRISTINE BAKER, AND THE CHIEF OF THE DIVISION OF OCCUPATIONAL SAFETY AND HEALTH, JULIANN SUM REQUESTFORJUDICIAL NOTICE IN SUPPORT OF THEIRAMICUS BRIEF; MEMORANDUMOFPOINTS AND AUTHORITIES; DECLARATION OF SUZANNEP. MARRIA; PROPOSED ORDER Filed in support of Appellant/RealParty in Interest Distnct of Attorney (Orange County) Christopher Jagard, Chief Counsel (CSB 191147) Amy D. Martin, Chief Counsel (CSB 148569) Mi Kim, Staff Counsel (CSB 240413) Suzanne P. Marria, Staff Counsel (CSB 120863) JEPARTMENT OF INDUSTRIAL RELATIONS Kathryn J. Woods, Staff Counsel (CSB 228650) OrFICE OF THE DIRECTOR, DEPARTMENT OF INDUSTRIAL RELATIONS LEGAL UNIT DIVISION OF WORKERS COMPENSATION i515 Clay Street, Suite 701 1515 Clay Street, 18th Floor Oakland CA 94612 Oakland, California 94612 Telephone No.: (510) 286-3800 Telephone No.: (510) 286-7100 Facsimile No.: (510) 286-1220 Facsimile No.: (510) 286-0687 (Service on Attorney Genera! required by Rules of Court 8.29(c)(2)(B)) Filing Fee Exempt -- Govt. Code § 6103 NO. 8222314 IN THE SUPREME COURTOF THE STATE OF CALIFORNIA SOLUS INDUSTRIAL INNOVATIONS,LLC,etal., Petitioners, Vv. THE SUPERIOR COURTOF THESTATE OF CALIFORNIA, FOR THE COUNTY OF ORANGE, Respondent; THE PEOPLE OF THE STATE OF CALIFORNIA, Real Party in Interest. Petition for Review of a Decision ofthe Court ofAppeal, Fourth Appellate District, Division 3, No. Case No. 0047661 SUPERIOR COURT OF THE COUNTY OF ORANGE Civil Case No. 30-2012-00581868-CU-MC-CXC THE HONORABLEKIM G. DUNNING _ DIRECTOR OF CALIFORNIA DEPARTMENT OF INDUSTRIAL RELATIONS, CHRISTINE BAKER, AND THE CHIEF OF THE DIVISION OF OCCUPATIONAL SAFETY AND HEALTH, JULIANN SUM REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF THEIRAMICUSBRIEF; MEMORANDUMOFPOINTS AND AUTHORITIES; DECLARATION OF SUZANNEP. MARRIA; PROPOSED ORDER Filed in support of Appellant/Real Party in Interest District of Attorney (Orange County) Christopher Jagard, Chief Counsel (CSB 191147) Amy D. Martin, Chief Counsel (CSB 148569) MiKim,Staff Counsel (CSB 240413) Suzanne P. Marria, Staff Counsel (CSB 120863) DEPARTMENT OF INDUSTRIAL RELATIONS Kathryn J. Woods, Staff Counsel (CSB 228650) OFFICE OF THE DIRECTOR, DEPARTMENTOF INDUSTRIAL RELATIONS LEGAL UNIT DIVISION OF WORKERS COMPENSATION 1515 Clay Street, Suite 701 1515 Clay Street, 18th Floor Oakland CA 94612 Oakland, California 94612 Telephone No.: (510) 286-3800 Telephone No.: (510) 286-7100 Facsimile No.: (510) 286-1220 Facsimile No.: (510) 286-0687 (Service on Attorney General required by Rules of Court 8.29(c)(2)(B)) Filing Fee Exempt ~ Govt. Code § 6103 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: NOTICE IS HEREBY GIVENthat pursuant to Rule 8.252(a) of the California Rules of Court, and California Evidence Code Sections 450, 452, 453 and 459, the Director of the California Department of Industrial Relations, Christine Baker (“DIR”), and the Chief of the Division of Occupational Safety and Health, Juliann Sum (“DOSH”), acting in their official capacities, request that this Court take judicial notice of the following documents: ! Exhibit A: October 18, 1982 Occupational Safety and Health Administration (“OSHA”) Memorandum regarding Reporting System for DOSH Bureau of Investigations (“BOI’) and Attachment (September 2, 1982 BOI Report to OSHA) Exhibit B: Relevant excerpts of Annual Report on Activities of DOSH BOI During Calendar Year 1985 (Submitted to OSHA Regional Administrator on April 8, 1986) Exhibit C: Relevant excerpts of Annual Report on Activities of DOSH BOI During Calendar Year 1986 (Submitted to OSHA Regional Administrator on March 27, 1987) ' Hereafter, the Director ofDIR and the Chief ofDOSH are jointly referred to as “DIR.” The documents are described, and indicated, under penalty of perjury, to be true and correct copies of the originals in the Declaration of Suzanne P. Marria, attached hereto. This request is made on the following grounds: (1) The Evidence Code authorizes this Court to take judicial notice of the material offered by DIR; and (2) The materials offered by DIR are relevant to the issues raised in this appeal and addressed in DIR’s amicusbrief. This request is based on this Notice, the accompanying Memorandum of Points and Authorities, the supporting Declaration of Suzanne P. Marria, Exhibits A through C attached to the declaration, and such other matters as may properly come before the Court. Dated: July42015 Respectfully submitted, By: [a Amy D. Martin, Chief Counsel Suzanne P. Marria, Staff Counsel Katherine J. Woods, Staff Counsel Christopher G. Jagard, Chief Counsel Mi K.Kim, Staff Counsel Attorneys for Amicus Curiae, State of California, Department of Industrial Relations MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION DIR hereby requests this Court take judicial notice of materials relied upon by DIRin drafting its amicus brief. The materials include: e October 18, 1982 OSHA Memorandum regarding Reporting System for DOSH BOIand Attachment (September 2, 1982 BOI Report to OSHA) (Exhibit A, Declaration of Suzanne Marria (Marria Dec.)); e Relevant excerpts of Annual Report on Activities of DOSH BOI During Calendar Year 1985 (submitted to OSHA Regional Administrator on April 8, 1986) (Exhibit B, Marria Dec.); and e Relevant excerpts of Annual Report on Activities of DOSH BOI During Calendar Year 1986 (submitted to OSHA Regional Administrator on March 27, 1987) (Exhibit C, Marria Dec.). Il. THE EVIDENCE CODE AND RULES OF COURT PERMITTHIS COURT TO TAKE JUDICIAL NOTICE OF DOCUMENTS REQUESTED BY DIR Evidence Code section 459 grants appellate courts the sameright and power to take judicial notice as the trial court. (See, e.g., Smith v. Rae- Venter Law Group (2002) 29 Cal.4th 345, 359.) “Judicial notice is 4 the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter.” (Lockley v. Law Office ofCantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal. App. 4th 875, 882 (citation omitted).) Judicial notice may not be taken of any matter unless authorized or required by law. (Cal. Evid. Code § 450.) The Evidence Code provides that judicial notice may be taken of various matters, including: “[o]fficial acts of the legislative, executive, and judicial departments ... of any state of the United States[,/”’ “[f]Jacts and propositions that are of such common knowledge within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute[,]” and “[flacts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Cal. Evid. Code, § 452, subds. (c), (g), and (h).) This Court has the powerto take judicial notice of the recordsandfiles of a state agency. (/bid.; see also People v. Gram (2012) 202 Cal. App. 4th 1125, 1135 [reviewing court taking judicial notice of contract between California Department of Corrections and Rehabilitation and Department of Mental Health under Evid. Code section 452(c)]; Chas. L. Harney, Inc. v. State (1963) 217 Cal. App. 2d 77, 85-86 [judicial notice of records andfiles of State Board of Control and of the office of the State Controller]; Fowler v. Howell (1996) 42 Cal.App. 4th 1746, 1750 [judicial notice of records andfiles of a state administrative board]; Pearson v. State Social Welfare Board (1960) 54 Cal.2d 184, 210 [records of Department of Social Welfare and Board of Social Welfare]; Department ofMental Hygiene v. Rosse (1960) 187 Cal.App.2d 283, 287- 288 [records of Department of Mental Hygiene]; Watson v. Los Altos School Dist. (1957) 149 Cal.App.2d 768 [records of State Board of Education]; Adoption ofMcDonnell (1947) 77 Cal.App.2d 805, 808[files of Department of Social Welfare].) Exhibits A, B, and C are judicially noticeable as official records and acts of DOSH,a state agency. DOSH was required to prepare and submit these reports concerning its BOI’s activities to the U.S. Secretary of Labor and U.S. Occupational Safety and Health Administration (OSHA). (See 29 C.F.R. § 1954.10; 29 C.F.R. § 1902.44(a).) These records are relevant to DIR’s amicus curiae brief because they demonstrate that since DOSH BOI beganreferring cases to prosecutors under section 6315(g), the U.S. Secretary of Labor and OSHA have received information concerning prosecutors’ attempts to recover civil penalties under California’s unfair competition law from employers based on their violation of state workplace safety standards. Exhibits A, B, and C are also judicially noticeable under Evidence Code section 452, subdivisions (g) and (h), as they concern matters of common knowledge and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. It CONCLUSION For all of the foregoing reasons, appellant respectfully moves that this Court take judicial notice of exhibits herein, pursuant to Evidence Code sections 450, 452, 453 and 459 and Rule 8.252, California Rules of Court, as well as the relevant decisional authority. Dated: July 17.2015 Respectfully submitted, By: | AmyD. Martin, Chief Counsel Suzanne P. Marria, Staff Counsel — Katherine J. Woods, Staff Counsel Christopher G. Jagard, Chief Counsel Mi K.Kim, Staff Counsel Attorneys for Amicus Curiae, State of California, Department of Industrial Relations DECLARATION OF SUZANNE P. MARRIA 1. I am an attorney licensed to practice law in the State of California (State Bar No. 120863). I am an attorney employed by the Division of Occupational Safety and Health (“DOSH”) in the California Department of Industrial Relations (“DIR”). 2. I have personal knowledge of the contents of this declaration and may competently testify thereto. 3. As an attorney for DOSH,I have access to official records and files of DOSH, including documents that DOSH has provided to, and received from, the U.S. Secretary of Labor and the federal Occupational Safety and Health Administration (“OSHA”). 4. Exhibits A, B, and C attached to this declaration are true and correct copies of the original offictal records of DOSH. These records are also public records and anyone can review these documents by calling DOSHand requesting review. I personally obtained Exhibits A, B, and C. 5. Exhibit A is a true and correct copy of the October 18, 1982 OSHA memorandum in DOSHfiles regarding the reporting system for DOSH’sBureau ofInvestigations (“BOTI’). Included in Exhibit A is a true and correct copy of the September 2, 1982 BOI Report to OSHA. “ o H GR IS T IG S wh e 8 6. Exhibit B is a true and correct copy of relevant excerpts of the Annual Report on Activities of DOSH BOI During Calendar Year 1985, submitted to OSHA Regional Administrator on April 8, 1986. 7. Exhibit C is a true and correct copy of relevant excerpts ofthe Annual Report on Activities of DOSH BOI During Calendar Year 1986, submitted to OSHA Regional Administrator on March 27, 1987. I declare under penalty of perjury under the laws of the State of tT xa California that the foregoing is true and correct. Executed this FE of DapegASpr PUZANNE July, 2015 in Oakland, California. [Proposed] ORDER TAKING JUDICIAL NOTICE Good cause appearing, IT IS HEREBY ORDEREDthat the request for judicial notice of the Director of the California Departmentof Industrial Relations, Christine Baker, and the Chief of the Division of Occupational Safety and Health, Juliann Sum is granted. IT IS ORDERED thatthis Court shall take judicial notice of the Exhibits A through C contained with this request. Dated: Tani Gorre Cantil-Sakauye Chief Justice 10 ee Torte U.S. Department of Labor Occupational Safety and Health Administrat ion . 450 Golden Gate Avenue San Francisco, California 94102 Reply to the Attention of: DATE: October 18, 1982 MEMORANDUM FOR: Hamilton Fairbur n Assistant Regional Administrator 4 FROM: Maria Barcos-Wall ace ‘(q+ California Project Officer SUBJECT: , Reporting System for Bureau of Investigations (BOI) © On October 14, 1982 I met with Vernita Davidso n, Cal/OSHA Program Office, and Fran Schreiberg, BOI, to discuss and es tablish a regular, consistent reportin g system for BOI activities. ‘The attached p ages represent the agreed to frequency of reporting, time of repor ting, and informationto be reported . With regard to the data to be reported two issues arose: _L. Disclosability of information Because we are requesting that the BOT repor t be submitted to OSHA along with the State Program Quarterly Report 4 question arose about whether the BOI report would be public infor mation as is the data in the Quarterly Report. We agreed that the numerical data under Sect ion C, 1 of the attached reporting format would be disclosable but inf ormation on open cases (item C, 2, & 3) would be for internal administrative use only and not disclosable. . 2. Resource Allocation Though BOI investigators complete .a weekly t ime report, at the present time an automated data system does not exist to link the weekly time reports to the investigations. It was also not known at the time of our meeting whether hours/investigation are cur rently tabulated manually. Fran and Vernita will follow-up on this item a nd determine whether it would be feasible to input data on BOL inves tigations and hours/investiga~ tion using the same programs utilized for DOSH inspections. They are to advice me of their progress on this matte r and will develop some system for this reporting by January 1983.. In addition, I briefly discussed th e issue of the need for specific go als, in terms of projected BOI field investigations ; in FY 83. Fran.indicated that comments on page 5 of the BOI Report to OSHA of September 2, 1982 (copy attached) included these goals. She ag reed that these goals (12-15 investiga- tions/investigator/year) would be mo re clearly noted as a goal in the F Y 83 grant revision and in the grant na rrative progress reports. (more) a Should you hav e any Attachment G,-Gillotti ,. Davidson fF. Schreibe r Ae Carter cc: MBW/cpk -2- questions, co mments, etc. , please le t me know. (end) We rateam te BOL REPORTING FO RMAT Rh. FREQUENCY OF REPORTING: Quarte rly, Federal Fisc al Year to Date. BH. REPORTING DUE DATE: 10 calendar days after end of each quarter. To be submitted along wi th the State Progr am Quarterly Evalu ation Report- To be submitted to O SHA Region IX only : Cc. INFORMATION TO BE REPORTED 1. Summary of inves tigate activity 45 fo llows: Fiscal Year To Date ae ‘Cases investi gated? ‘1) Admin. Invest igation’ 2) Field Investig ation “bp. Cases referred b y Bort c. Cases filed by pa st loases will be l ogged in each of these sections ba sed on the calen dar date when action is ini tiated (e-.g-, If a field investigation is initiated in December 1982 it s hall be logged in the lst Quarter of FY 83 regardless o f when investigation js completed). Ca re must be taken t o assure that case s are counted only o nce, 4s appropriat e, in each of the se categories. 2administrative In vestigation: Revi ew of factual info rmation (Cal/OSHA 4A and/or 4) by BOL S upervising Special Investigator and/o r BOT Supervising Attorney. No fie ld investigation, by BOI investigato rs performed. 3actual field investig ation: Assigned to BO L field staff for inv estigation after review by B O Supervising Spe cial Investigator and/or BOT Superv ising . Attorney. A-B October 14, 1982 2. Adjudication of Cases 1980 °° 1981 1982 1983 a. Cases filed by DAs b. Cases adjudicated as guilty, nolo contendere and/or civil compromise - c, Cases adjudicated as not guilty or dismissed on procedural grounds d. Cases pending 3. Status Log on each case referred by BOL includ ing: - Brief description of. case - BOL recommendationon case ~ Status of action by DA on case - If not accepted by DA, reason .for non-ac ceptance 4. Copy of complaint for each case filed by DA S 5. Summary of disposition and copy of sentenci ng orders for each case filed by DAs. . D. RESOURCE ALLOCATION Ll. Number of Investigators 2. Number of hours. for field investigations per case by sp ecific Case ID. , i 3. Number of investigator hours in other Cal/OSHA su pport activities and description of activities. linformation on Adjudication shall be logged basedo n the Fiscal Year when the case was filed by the DA regardless of the date when the adjudication took place. : , elt Dot ‘bheatch , Be, 6F et £24) : . : e ° . @ Cettegeet sic gl om Rurpesen.’ Ceoh were Ze'¢ Set : . a . . . BUREAU OF INVESTIGATIONS REPORT TO FEDERAL OSHA~ September 2, 1982 Prepared by:- _ Le _ Frances C. Schreiray Supervising Attorney f With the assistance of = Geruld FE. Lomberdo, BOI. Supervising Special Investigator... Kay Kohler, Cal/OSHA Staff Attorney S O R E E N A A P A P T , D E E L D T BS AE ,B I S T A T I S T I C A L S U M M A R Y O F B O I A C T I V I T Y 1980 1981 1982 (8 months only f r o m J a n . 1 t o A u g . 3 1 ) a | 9 9 0 a s l C A S E S I N V E S T I G A T E D 1 . . A. Admin. Investigation? 174 = -212——s«8 a B . A c t u a l F i e l d I n v e s t i g a t i o n 4G, 6 9 4 3 2. C A S E S R E F E R R E D . _ ' B Y B O I — 10. “ 2 7 32Z ° 3 . C A S E S F I L E D B Y D A ' S ( i n c l u d i n g B & P , . 4 p r o s s e c u t i o n s ) C e 8 . 1 5 1 3 4 , A D J U D I C A T I O N O F F I L E D C A S E S A . ’ G u i l t y , N o l o C o n t e n d e r e , a n d © , S u c c e s s f u l C i v i l C o m p r o m i s e — 6 1 3 . 5 B . N o t G u i l t y o r D i s m i s s e d o n t P r o c e d u r a l G r o u n d s 2 ‘ 1 oo 0 " ' C . : P e n d i n g — 0 < 1 8 1 . C a s e s i n v e s t i g a t e d ~ A d m i n i s t r a t i v e I n v e s t i g a t i o n ~ - . r e v i e w o f f a c t u a l i n f o r m a t i o n ( C a l / O S H A 4 A a n d / o r 4 ) b y B O I S u p e r v i s i n g S p e c i a l I n v e s t i g a t o r a n d / o r B O I S u p e r v i s i n g A t t o r n e y , i n w h i c h n o a m o u n t o f f i e l d i n v e s t i g a t i o n c o u l d s u p p o r t a p r o s e c u t a b l e c a s e . A c t u a l f i e l d i n v e s t i g a t i o n » . - a s s i g n e d t o i n v e s t i g a t i v e f i e l d s t a f f f o r ‘ i n v e s t i g a t i o n a f t e r r e v i e w b y B O I S u p e r v i s i n g S p e c i a l I n v e s t i g a t o r a n d / o r B O I S u p e r v i s i n g A t t o r n e y . é Cal/OSHA believes that the effectiveness of the Bureau of Investigations (BOI) program in protecting California workers should be measured not only by statistics, but also by media coverage of BOI cases, and by the ability BOI has to aid the Cal/OSHA field staff with problems that the administrative system cannot solve or with problems that are inappropriate for the field staff. Statistics alone cannot measure BOI's effectiveness. And statistics in a given time frame are affected by a number of other factors such as: a) the time necessary . to: make substantial administrative program changes including reorga- nizing BOI; b) the time necessary to educate ourselves and others . about effective law enforcement tools such as civil prosecutions pur- Suant to section 17200 B&P:'c) the time necesssary to make personnel changes; and d) the time necessary to train existing’ and new personnel to implement a much expanded program. Thus, Cal/OSHA is presenting a report to Federal OSHA concerning the: BOI program. This report is divided into three sections: 1. Cal/OSHA statistics have Significantly improved in (1981, and: greater improvement is projected for 1982. A. Statistics B, Factors which impact statistics 1. BOI has made. considerable administrative improve- ments which will contribute in the future to increased productivity. 2. In order to provide the most effective enforcement ' program possible, BOI has referred cases to prosecutors which they have prosecuted civilly pur- suant to. section 17200 B&P. 2 BOL prosecutions under civil and criminal law are a deterrent as shown by media coverage and reactions by industry, labor, and the community at large. 3. BGI provides valuable assistance to the Cal/OSHA . field staff. SECTION 1 CAL/OSHA STATISTICS HAVE -SIGNIFICANTLY IMPROVED IN 1981, AND GREATER IMPROVEMENT IS PROJECTED FOR 1982 Do Adjudication of guilt is not the standard by which a prosecution is. judged as successful. Adjudication of guilt has different meanings to different people. When a case is disposed of through a plea of Nola Contendere, some people may consider this not to be an adjudica- tion of guilt. However, when a plea of Nolo Contendere is taken by the Court, the Court specifically informs the person entering the plea. that in so doing s/he is saying that s/he did in fact commit the violation of law. The Court requires a factual basis for a plea whether it is a plea of Nolo Contendere or a plea of guilty. Jan -Chatten Brown, Assistant City Attorney with the Office of the City Attorney in Los Angeles, emphasized that, "A plea of Nolo Contendere is exactly the same as a plea of guilty except that it may not be used in civil proceedings. -The communityand the workers consider this a guilty plea anda successful disposition of a case." When a case is ’@ismissed in the interests of justice after an employer has finally been forced to come into compliance through the threat of criminal prosecution,- some people may consider this notto be an adjudication of guilt. However, when a case is disposed of in this fashion, it is a.success despite the fact that the question of guilt was not > , adjudicated. A dismissal in the interests of justice contingent upon an employer coming into compliance does not mean that the defendant was innocent. When a case is disposed of pursuant to Section 1377 of the California Penal Code, some people may consider this not tobe an adjudication cf guilt. However, when a case is disposed of in this fashion, it is a success despite the fact that the question of guilt is not adjudicated. In such cases, it has usually become clear to the --defendant that s/he will either have to enter a plea of guiltyor Nolo Contendere or make a substantial civil settlement to compensate the victim(s) o£ his/her wrongdoing. Often, the local prosecutor feels that adequately compensating the victim is more important than another plea, and thus is willing to-dismiss the criminal proceedings in exchange for a substantial civil settlement. ‘The statistics provided here are a reflection of Cal/OSHA's determina- -ticn that the case was settled successfully. There never have been and neyer will be any pleas of guilty in Cal/OSHA cases.- Ifsuch is a measurement of our success, then we would have to ask the local prose- cutor to try each and everycase because such will be required of them. . : oS ‘ This report shows that.there has been. a substantial increase in BOI | cases investigated, referred, and filed. . In 1980 only 8 BOI cases were filed. The BOI has comea long: way.from that- low filing rate. - T S M R t y Before setting forth the statistics, it is necesssary to explain the compilation method. To compare activity from one year to the next, we. “need a uniform statistical presentation. All statistics presented in . this report are obtained by simply counting cases in. a given calendar year. This is a change from previous statistical presentations. A. STATISTICS */ Se Cases Investigated - In 1981, the total. number of cases actually investigated was approxi-. mately 69. This number only reflects cases for which a BOI investiga- tion began in 1981, and is not an accurate reflection of.workload carried over from investigations opened in 1980. . In 1982, to date, the total number of cases actually investigated is 43. This number only reflects cases for which a BOI investigation ‘began in 1982, and is not an accurate reflection of workload carried. over from investigations opened in198i. Cases Referred In 1981, the BOL referred 27 cases to .the local prosecuter.. These referrals arose from investigations that began in 1980 or 1981. . In 1982, to date, the BOI has already referred 32 cases to the local prosecutor. Again, these referrals arose from investigations: that began in- 1981 or 1982. The BOI has closed and declined to refer 13 cases to date. Of the 32 investigations which the BOI has open (1981 and 1982 cases), we expect that at least 20 more will .be referred to local prosecutors by: the end of 1982. */ In the past. the BOI reported t6 Federal OSHA the total number of fatals and catastrophes which came to it through a case-tracking -process. The BOI next provided the number of cases referred for. .prosecution. The gap between these numbers was substantial. There was no determination.of. the number of cases that the BOT. actually investigated. The Labor Code requires that all fatalities and catastrophes be investigated. - Nevertheless, many of the fatalities -and catastrophes logged in the BOI case-tracking system are investi- gated only to’ the extent necessary to determine that the case is not prosecutable. A review of the Cal/OSHA 4A, the Preliminary Report .of.. Accident, by the BOI Supervising Special Investgigator or by the BOT Supervising Attorneycanbe sufficientto cetermine that ‘no amount of: -- investigation can resuit ima prosecutable case. .-Thus, in this and . in future statistical presentations, the BOI will.‘include. the number --of cases actually. investigated. so. that Federal OSHA has a realistic evaluation of the person-hours expended in. investigation... ‘ + N y a n , kk/ Cases. Filed x*/ In 1981, local prosecutors. filed 15° BOI cases: Only one case was rejected. Again,.these cases may have been referted in 1980 or 1981, and arose from investigations that began'in 1980 or 1981. The 15 cases filed in 1981, to date, have been disposed of in the following fashion: 12 have been settled favorably, 1 was tried and the defen- ‘dants were found guilty, 1 was dismissed due to pre-trial delay, 1 is pending settlement or trial. In 1982, to date, local prosécutors-filed 13. BOI cses. Five cases have been rejected. Again, these cases may: have been referred in 1981 or /1982, and arose from investigations that began in 1981 or 1982. of the 14 case's that are pending with local prosecutors right now, we _ expect that at least 10 will be filed before the end of 1982. The 13. cases filed in 1982, to date, have been disposed of in the following fashion: . 5 have been settled favorably, and 8 are pending settlement or trial. . a _ **/ In 1982 more cases will be referred to prosecutors and sub-+ "sequently rejected than in past years. First, this is due to the BOI's attempt to generate more health and safety referrals from its field staff for criminal or for civil prosecution. Most prosecutors - were unfamiliar with Cal/OSHA cases until BOI took.the time-to educate ‘them, and Cal/OSHA was unfamiliar with the unfair competition law and- needed to be educated. -A program to do this was conducted in late 1981 and early 1982. Second, it was necessary for the BOI and prosecutors to work together on cases in order to understand each others needs. Cases ultimately were found to be not appropriate for either civil or criminal prosecu- ‘tion despite expenditure of. considerable investigative time. Third, BOI future Statistics may show less of a gap between referrals and filings because the BOI is now committed to contacting the prose- -cutor as sdon as possible after the BOI opens an investigation. In this way the prosecutor will have maximum input in the development of the case before it is referred. Contacting the prosecutor at an early stage, however, will not be counted as a referral... A referral will be counted only after the investigation has’been completed and a formal referral of the case is made. Thus, most cases in which the. prosecu- tor shows no interest will, more likely than not, already have been closed by the BOI Supervising Special Investigator or the BOI Supervising Attorney before a formal referral is made. - P e e a e Conclusion Statistics can be provided on a quarterly basis. The BOI, however, does not acceptthat statistics alone can be used to measure the deterrent nature of the program. We believe the measure must include statistics, media coverage, and the assistance provided by the BOI to the Cal/OSHA field staff in bringing about compliance. This may be substantiated by clippings, letters and memos, andoral comments. Raw statistics also may not accurately reflect productivity. Since future productivity is a concern, we have taken personnel actions and ‘ are continuing to do so to address productivity problems. We are _also continually increasing supervision and training provided to the investigators. Finally, the BOI's existence cannot depend on ever-increasing Statistics. At some point we will reach an acceptable levelof productivity. It is not unrealistic to plan that each BOI investiga- tor could produce between 12 and 15 well-investigated cases each year, of which between 7 and 10 are successfully prosecuted. However, these statistics must also account for major catastrophes. Some adjustment or weighting of the cases must be made. In the next year the BOI will attempt to do this.” oo ; PO RM DS BG T: S E upon conviction, while in the civil. proceeding, it is necessary to have an injunction before a contempt action and jail time may be . imposed. However, in reality no judge is likely to impose jail time for a first offender, and most of the BOI cases involve first offenders. Thus, in both criminal and civil proceedings, generally it is necessary for a subsequent violation of the Court Order to occur (either the probation order or the injunction) before Jail time is imposed. . In civil prosecutions under section 17200 B&eP, the BOI may be reim- bursed for costs. The BOI is negotiating agreements with the local . - prosecutors to compensate the BOI for costs incurredin investigating a section 172000 B&P case. Such compensation would not cover normal compliance efforts, but rather would reimburse Cal/OSHA for the extra time expended by the BOI and field staff in gathering evidence for a successful prosecution. Such is not available in criminal or admin- istrative proceedings. : Finally, -both civil and criminal prosecutions by BOI result in publi- city which aids the enforcement program. See Section Two below. The BOI has just begun to utilize this effective civil prosecution - tool. Three 17200 actions have been filed in 1982 against - recalcitrant employers: A.Z.-Decasing, Inc. in Los Angeles County; Certified Garment and Linen Supply, Inc..in Contra Costa County; and Precision Founders, Inc. in Alameda County. The total possible penalties are $242,500. The actions in A.Z. Decasing and Certified Garment and Linen Supply are pending. A final judgment has been. entered in Precision Founders, and the compdny is now enjoined and subject to substantial penalties and possible-contempt if it violates | _any of 42 specific Cal/OSHA regulations involving exposure to such toxic substances as cobalt, cristobalite, nickel, chromium; anhydrous ammonia and PCB's. The discussion above has addressed the merits of prosecutions under section 17200 Bé&P. Specifically, we have attempted to cover the bene- fits and impact on the program that use of this law. provides. We have also tried to compare civil -and criminal prosecutions, but the prosecutor to whom we refer our cases makes the decision as to how the. case-is. filed. Some cases are simply better. suited for civil and others better suited for. criminal Prosecutions. 7 ~9~ ‘F RO E R E B E A G U T E S R E R E A L E S E H I N E R R O U T S A T S M A T S , A T A A E ” SECTION 2 BOI PROSECUTIONS UNDER CIVILAND CRIMINAL LAW ARE A DETERRENT AS SHOWN BY MEDIA COVERAGE, AND REACTION BY INDUSTRY, LABOR, AND THE COMMUNITY AT LARGE. Statistics may reflect many things. Statistics, however, are not able to reflect the deterrent nature of the cases prosecuted by BOI. Just as the deterrent effect of the presence of the highway patrol car visibly stationed at the side of a roadway is. difficult to reflect in tangible statistics, all drivers on that roadway experience firsthand its deterrent effect. The BOI can show an overall increase in the number of cases investigated, referred to local prosecutors, and suc- cesfully prosecuted, but it is impossible to prove by statistics the. deterrent effect of theBOI program. SO Reaction to BOI cases from labor, management, and the community at large is substantial. Many of those reacting receive information _ through the media. Media coverage increases the effectiveness of Cal/OSHA as a whole by making it clear that our enforcement efforts can and will be backed up by serious criminal and civil prosecutions. Others receive information through their unions or trade associations. Cal/OSHA has received phone calls requesting more information regarding specific BOI cases in many instances, and has been asked to provide speakers to numerous industry and union groups to elaborate on the powers of BOI. The uniform response has been that BOI prosecu- tions are an effective deterrrent. a In this section are some examples of responses by labor, management, and the community at large. Also attached are copies of some of the media coverage received in BOI cases. EXAMPLES Polyresins. This case involved the criminal prosecution of the com- pany and its management for total disregard of worker health and | safety which resulted in exposing workers to TDI and causing serious injuries after a spill. Jan Chatten-Brown, Assistant City Attorney in the Office of the City Attorney in Los Angeles, stated: "For years the Los Angeles City Attorney's Office urged Cal/OSHA to refer worker health and safety case for prosecution. Only. during the last year and.a half, have cases. finally begun toflow. Fran Schreiberg and other BOI team members believe in aggressive -enforcement. Through their efforts, better investigated and serious cases have been referred to our office. Cases have been ° .gucecessEully prosecuted, both civilly and criminally. The appropriate choice between civil or criminal prosecution is made _by our office based upon a variety of factors.: > ~1l0- N I I T R E I ST S T e e e e "After completion of the Polyresins prosecution, I spoke with numerous labor union leaders and health professionals. Their opinion consistently was that the cooperative program developed between BOI and local prosecutors is making a. difference. “Development of.a strong enforcement program has been a long time in coming. Now that we have it, it should not be dismantled. Cal/OSHA inspectors are not by background or training in a posi- tion to recognize a. prosecutable case. And once a case is identified, persons with experience in preparing the matter for - prosecution must assure all of the necessary evidence is ready. Eliminating the BOI will eliminate the prosecutor's ability to continue enforcing Cal/OSHA laws." ° oe Certified Garment and Linen Supply and A&H Underground Construction. Sam Mesnick, Assistant District Attorney of.Contra Costa County, former. head of thatoffice'shomicide and trial division and past . board member of the California District Attorneys Association, stated: _ . "This office is currently prosecuting two cases referred by Cal/OSHA's BOI, Certified Garment and Linen Supply, and A & B Underground Construction. In Certified Garment Linen Supply, we have an explosive sweatshop situation which has exposed worke rs to hazardous conditions and injuries. Certified Garment was repeatedly cited by Cal/OSHA over the years but failed to abate unsafe conditions. Both a criminal and a civil complaint pursuant to Business and Professions Code Section 17200 have bee nfiled against the company. The civil complaint asks the Court to appoint a receiver to take control of the business and brin g its operations into compliance. A & H Underground involves a _ -trenching fatality and we are prosecuting both: the corpo ration and its president, The role of the Bureau of Investigations h as been crucial in preparing both of these cases. These are comple x cases and’ need the thorough investigation and research provided by.the BOL's trained investigators and attorneys." ? Exxon Corporation. Following the filing of a criminal a ction against Exxon, and despite the fact that no conviction resulted, the company moved to tighten up their safety program. They accomplis hed this by = giving more authority to their safety inspectors and changi ng other procedures. Among other things they assigned a safety inspectorto every shift during turnarounds (maintenance/repair oper ations), and gave their safety inspectors the ability to shut down a job. This information was gathered in the course of confidential d iscussions between BOI personnel and Exxonsafety inspectors. They are extremely ~ happy with the changes that. have taken place and féel that increased concern for safety is the direct result of the crimi nal prosecution. ~11- P E T E R a e . West.Coast Scaffolding. This case involved the criminal prosecution of a scaffold erecting company in the City of San Francisco. Following the successful completion of this case, an article. appeared - in a trade association newsletter. During subsequent conversations © with. other scaffold.erectors in the area, the BOI learned that this ' segment of industry was aware for the first time that failure to comply with the law could result in criminal prosecution. Louisiana Pacific Corporation. This case involved a criminal prosecution following a fatal accident in a northern California mill. Following the successful completion of the criminal case, this employer underwent a compliance inspection at another: mill. As a result of the inspection numerous violations of safety stan- dards were cited. The employer dispatched two corporate officers from its headquarters to the mill subsequently cited. Following the corporate officers’ inspection of the site, the company fired the mill . Superintendent and forcéd the early retirement of the mill manager because they had not heeded the lesson learned from the initial crimi- “nal prosecution. _Lone Star Industries. This case involved a.criminal prosecution resulting from serious injuries to an employee.’ This employer tried ‘almost every pressure tactic known, including the filing of a CASPA against Cal/OSHA , to avoid criminal prosecution. The company uti- lized three attorneys, one of whom was a laborspecialist headquar- tered in Washington, D.C. He made numérous trips to. California to confer with Cal/OSHA personnel and the District Attorney's Office. When charges ware filed, the employer raised as a defense that Cal/OSEA lacked jurisdiction. When that course of action failed, the employer immediately entered into negotiations with the District - ‘Attorney's Office and entered a plea of Nolo Contendere to avoid further unfavorable publicity which a trial would bring. The vigorous attempt by this employer to avoid criminal prosecution clearly indica- tes its view concerning the seriousness of such an action. The suc- cessful prosecution of this employer should act todeter future unlawful acts. " ‘City of Burbank. This case involved .a criminal prosecution Fonow ing Ene death |‘Of twoworkers in a confined space witha. _texic atmosphere The case received widespread publicity because: it was-the first case involving the criminal prosecution of - public employees.. Following the successful’ completion of that case, the results were disseminated throughout the state. via: association newsletters and publications. One defendant was even ‘sentenced to lecture others in his trade of the consequences of his, criminal acts. Faced with concerns on the part of management, the City of Burbank took steps to come into comgliance. In addition, “this case is a topic of conversation whenever Cal/OSHA personnel attend | » industry.conferences and meetings. The widespread: publicity given... °._. this case can only act as a deterrent to future unlawful/unsafe prattices,. particularly regarding confined spaces,.and ultimately ~12- S R GG RI Y Sa pa Ra rI Y R E T ar se S T E 28 NO PK E E L E S P E T E R C A A T W E S So e R e e R a e e k oe A C T S 2 S ba z ae r e F R result in a safer place of employment for workers in this industry. -Mike, Mason, Chief Counsel of the Legal Unit, made two presentations to sanitary and pollution control associations to discuss thé impact of this case. He stated: "I was profoundly impresssed by the impact that the City of Burbank prosecution had upon responsible management officials.. Never before in my experience in the Cal/OSHA program has the. deterrent effect of a single prosecution led to such positive expressions by employers to assure compliance with safety and health requirements." “W. R. Thomason. “this case involved a criminal prosecution of a’ project superintendent, corporate officers and the corporation following a trench cave-in fatality. The successful prosecution of the project superintendent has.received. widespread publicity in the industry. This publicity has emphasized that individual. management can be held criminally liable for unsafe working conditions. This can only |act as a deterrent . to other managers in the industry. e Joe Adam, Director of Safety and Health, United. Association of © Journeymen and Apprentices of the”Plumbing and Pipefitting Industry, commented: "We are most grateful to Cal/OSHA's Bureau of Investigations for the prosecution of W. R. Thomason for the needless trenching death of one of.our members, a father of five ‘children. This employer had been cited for years by Cal/OSEA for trenching violations but had never’ changed its practices. Now, because of the criminal investigation and prosecution brought by the BOI, W. R. Thomason has started to pay more attention to safety rules. This change of attitude shows the | need for the BOI and criminal prosecutions. against employers like W. R. Thomason." t mpire Plastering. This case involved the successful prosecu~. “tion of a plastering contractor for, multiple safety: violations “which did not result in either an accident or injury. Following the successful completion of this case, the results were publi- cized in a northern Caifiornia plastering industry newsletter. Subsequently, while meeting with another. plastering contractor, a representative of Cal/OSHA was shown a number of copies of the article. At the top, the employer had hand written "To All. Employees", and at the bottom, "I do not want to go to jail for. your violations" The employer was distributing copies of the article te all his employees. . ~13- T I T R E L e T T I P S S L S T o e Golden Gate Transit. This case involved an accident where a bus mechanic received fatal injuries while attempting to change the tire on a transit bus. J. B. Martin, Area Director of Machinists Local 1305,. stated: ‘ , - "This union fully. supports Cal/OSHA's Bureau of Investigations. Recently, one of our members was killed while on the job.. A BOI investigator came to the accident, scene promptly and conducted a very professional, complete and thorough investigation. I felt confident that all possible causes of the accident were explored."- Granite=Ball-Groves. This case involved an-accident where seven & employees received fatal injuries when a work platform fell in excess of 200 feet down a vertical shaft. Thomas Dalzell, Attorney, InternationalBrotherhood of Electical Workers, Local 1245, stated: "Due to the BOI's investigation and the criminal prosecution in the Helms case where 7 workers were killed, the working conditions for our members have improved." Joliann Sum, Business Representative/Industrial Hygienist, a E International Brotherhood of Electrical Workers, Local 1245, stated: - oo, - | oo, "Our union feeis that the Bureau of Investigations is impor- tant as a deterrent against employers who violatehealth and safety requirements. The impact of the BOI can't be eval- uated by the number of prosecutions. Just the existence of the BOI and the threat of criminal or civil prosecutions has © : a widespread deterrent effect." -14- SECTION 3 i { WE Nh aa N F R A O U T N E T e BOI PROVIDES VALUABLE ASSISTANCE TO THE CAL/OSHA FIELD STAFF BOI provides a variety of essential services to the Division field staff: . 1. ‘BOI acts as a Liaison between peace officers and compliance a) personnel when entry with the. assistance of a peace officer is required to effectuate an ‘inspection warrant. 2. BOI conducts investigations of violations of orders prohibiting. "use (Labor Code 86325) issuedbycompliancepersonnel .and sub- mits the case to local prosecutors and’ peace officers for immediate action pursuant to Labor Code.86326. BOI personnel accompany compliance personnel and peace officers to the scene and insure that operations cease until the required safeguards Or: safety. devices are provided. & rl R 3. §BOI personnel have expertise to collect evidence, preserve the. ~ chain of custody, and interview witnesses to ensure that all elements of the violation are provable should a case be referred to a local prosecutor. 4, BOL personnel locate and interview non-cooperative witnesses . whose testimony is important fer the successful resolution of an administrative case. . 5. ‘BOI investigates and refers for prosecution cases pursuant to Labor Code Section 6426 which are referred by field personnel in which false statements have been made in documents required - to be maintained by the Division. 6. BOI investigates and refers for prosecution cases referred by compliance personnel which involve the fraudulent use of the Division's name, image or alleged authority. 7. BOL invrestigates and prosecutes cases pursuant to Labor Code Sections 6509, 7691, and 7266, referred by fiela Personnel ‘involving violations of Division regulations concerning per- mits, pressure vessels, and structural steel constructions. The attached letters from Division Regionai-Managers are concrete examples of the valuable assistance provided by the Bureau'to — “ field compliance personnel. , © l a WE R EY Ta c D A R T S H S E T S O C E D S T I A R S E t C B S O Y a T t a S e - 15 - st e! e y a M P R , t \ \ ~ CAL/OSHA Program Offi ce April 8, 1986 Mr. Russel! B. Swanson Regional Administrator Occupational Safety and Health Admimistration U, S. Department of Lab or 450 Golden Gate Avenue , Box 36017 San Francisco, CA 94102 Attention: Ham Falr burn Dear Mr. Swanson: In accordance with a di scussion with Ray Owen, we are enclosing a copy of +he annual report on activ ities of the DOSH Bureau o f Investigations during calender year 1985. The report is prepared to me et the requirements of Labor Code section 6315.5. ° Sincerely, Dorothy H. Fowler Assistant Program Manage r " enclosure | bee: Ron Rinaldi ) Bob Simpson ) Dave Valoff ) Mike Mason ) w/o enc, B-| y i‘ x ¥ z ‘ INTRODUCTION This report provides a summary of all information required to be reported by the Bureau of Investigations (BOI) to the Division of Occupational Safety and Health pursuant to California Labor Code section 6315.3. The report begins with a summary describing the allocation of Bureau resources in accomplishing its mission.as required by Labor Code 6315.3(e). Sections IA and IB of the report provide charts depicting comprehensive summaries of activity in Northern and Southern California, respectively. The charts delineate the status of each case required to be summarized by Labor Code section 6315.3(c), and (d), i.e., Cases Referred for Prosecution during the Calendar Year, Cases Investigated but Not Referred for Prosecution, and Cases involving a Final Court Disposition during the Calendar Year. Also included are Court Cases in Progress 1-1-85, Investigations Completed during the 1985 Calendar Year, and Court Cases in Progress 12-31-85. Section IC provides a statistical overview of the information contained in the charts found in sections IA and IB as well as statistics on the number of Investigations in Progress on 1-1-85 and on 12-31-85, as required by Labor Code section 6315.3(b). Sections IIA through IID contain case-tracking forms for all cases referred for prosecution during the calendar year. The case-tracking form provides the information required pursuant to Labor Code section 6315.3(c), such as the violation, statute for which the case was referred for prosecution, date of referral to the Bureau, date of referral for prosecution and final court action if the case was prosecuted. The subsections have been organized to parallel the categories used in the IA and IB summaries. “Thus, IIA contains fatalities, IIB, catastrophies, IIC, Cal/OSHA Requests for Prosecution, and IID, Discretionary cases. , Similarly, sections IIIA through IIID contain case-tracking forms for all cases for which a field investigation was completed but the case was not referred for prosecution. The information required by Labor Code section 6315.3(d) as to the violation(s) and the reason(s) for non-referral is contained in the case-tracking form. Section IV reports the Totals of each Type of Report pro- vided to the Bureau as required by Labor Code section 6315.3(a). w e e t r e e e e e e e E U o g P O G e S f e t t e e t e Le ta H E M E e p e e ie gi ne ga t Pa ne S e g e c g i e t li e ia te n oe ad ae d d i e l ee e: SUMMARY OF ALLOCATION OF BUREAU RESOURCES DURING 1985 CALENDAR YEAR The year 1985 was one of transition. At the beginning of this calendar year the Bureau's authorized personnel consisted ofthe administrative chief, supervising attorney and support coun- Sel, supervising special investigator, five field investigators,and office support personnel. Substantial changes in personnel occurred during the year. Two investigators, who had each beenemployed with the Bureau for more than 6 years, left their posi-tions at mid-year. In addition, the Supervising attorney alsodeparted at mid-year. To assure as smooth a transition aspossible, a staff counsel assumed immediate responsibility for legal coordination of Bureau functions. As the year concluded,two staff attorneys became responsible for legal matters per- taining to northern and southern Bureau cases respectively. In addition, the Bureau's investigatory staff was operating with its full complement of field investigators with the exception of one vacant position which was in the process of being filled. (The _ remaining vacancy is still in the process of being filled due’ to careful consideration by the Department to determine whether changes in the investigator job classification would enhance the Bureau's ability to accomplish its’ mission. ) The central purpose of the Bureau is to conduct investiga- tions pursuant to law and to refer appropriate cases to prose- cuting authorities for appropriate action. However, the Labor Code designates certain categories of Mandatory cases which the Bureau is required to investigate. Mandatory investigations are required in cases involving violations of standards, orders, or Special orders, in which there is a serious injury to five or more employees, death, or request for prosecution by Division representatives. Labor Code 6315(a). In addition, the Bureau has discretion to investigate serious injuries to one to four employees or a serious exposure in which the Bureau finds crimi- nal violations may have occurred. Before any field investigatory assignment is made, all cases are subject to administrative review. This review process is akin to an administrative investigation and is designed to screen cases for purposes of ultimate field assignment. A substantial number of cases are closed during the administrative investigation because the attor- ney or supervising special investigator determines, from a review of the factual information available, that further investigation would be unwarranted. Those cases determined to lack the necessary legal or evidentiary elements for criminal or civil charges or which otherwise would have a remote chance of being filed by prosecutorial authorities are closed administratively. The number of administrative closures for 1985 was 102. From an historical context, administrative investigations resulting in closure of the case have accounted for approximately sixty-seven to seventy-five percent of the total cases referred -j- eS Ha na n p e e r t ae ey Je ss ie pe di on . i +o the Bureau during the last five year period. A decision to administratively close a case is at times assisted by the results of a preliminary investigation conducted by a Bureau investigator “pefore a formal case assignment .is made. Those cases which fulfill appropriate criteria during the ‘administrative review process are then assigned to field investi- gators. The purpose of the field investigation is to determine from an evidentiary perspective whether the case warrants speferral to appropriate prosecutorial authorities. During 1985 “46 field investigations were completed. Of that number, twenty- -* nine cases were referred to prosecutorial authorities. In “. igontrast, baSed upon an analysis of the field investigations .--quring 1985, 25 cases were determined to be not suitable for “referral. Given the field investigatory staff, which averaged “approximately 4.5 positions during the calendar year, each investigator averaged approximately 64 field investigations which “ pesulted in referrals. Those field investigations which were found not to be suitable for referral averaged approximately 6 per investigator. . | In addition to the central focus of required field investiga- - tory activity, Bureau investigators are also required to under- take substantial training for purposes of maintaining professional standing. This training included required P.0.5.T. (Peace Officers Standard of Training) courses and comprised approximately 10% of total personnel time. (In addition, one. Bureau investigator was on loan to the State Personnel Board on special assignment for a two week period.) , To implement the requirement that the Bureau review inspec- tion reports involving a serious violation where there have been serious injuries to one to four employees or a serious exposure, field investigatory staff in the latter part of 1985 were required to review relevant accident investigation reports to ascertain patterns of typical serious injuries, illnesses or exposures, eMployers repeatedly associated with such incidents, and appropriate cases for discretionary investigation by the Bureau. We anticipate that the review of appropriate 1985 acci- dent investigation reports will be completed for purposes of managerial evaluation in early 1986. To enhance the Bureau's ability to investigate all mandatory cases, the Department of Industrial Relations has approved imme- diate augmentation of two additional investigator positions which have been proposed in the Governor's budget for the next fiscal year. With these additional investigatory resources and a close working relationship between attorneys and investigators, the Bureau anticipates a substantially higher degree of investigatory activity in 1986. N i 1 1 0 - 1 0 9 - 8 4 S E co . D a t e r e f e r r e d t o B O I : 1 1 - 7 - 8 4 D a t e r e f e r r e d t o D A b y B O I : 1 2 - 3 0 - 8 5 S t a t u t e / v i o l a t i o n : B & P 1 7 , 2 0 0 , e t s e q . B C A C 3 4 1 . 1 ( 1 ) ( 2 ) R E G U L A T O R Y 8 C A C 1 5 4 0 ( d ) - S E R I O U S “B C A C 6 7 6 0 ( a ) - S E R I O U S GF 8 C A C 6 8 1 5 ( a ) - S E R I O U S . B C A C 6 7 9 3 ( a ) - S E R I O U S 8 CA C 68 10 (b ) - SE RI OU S F i n a l d i s p o s i t i o n : N o f i l i n g d e c i s i o n h a d b e e n m a d e a t e n d o f c a l e n d a r y e a r . I i Cc C A S E S R E F E R R E D T O P R O S E C U T O R S I N 1 9 8 5 O R C A S E S R E S U L T I N G I N F I N A L C O U R T D I S P O S I T I O N I N 1 9 8 5 - C a l / O S H A 4 2 - ( R e q u e s t f o r P r o s e c u t i o n f r o m D i v i s i o n t o B O T ) N 1 2 2 6 0 - 0 6 3 - 8 3 D a t e r e f e r r e d t o B O L : 6 - 1 - 8 3 D a t e r e f e r r e d t o D A b y B O I : 6 - 3 - 8 3 S t a t u t e / v i o l a t i o n : . 1 7 2 0 0 B & P 7 9 0 6 L C , 7 9 0 7 L C , 8 c A C 3 9 1 1 , 3 9 0 8 , 3 9 0 4 , 2 3 9 5 , 2 5 3 0 . 4 3 , 4 0 7 0 ( c ) , 2 3 4 0 . 1 7 ( a ) , F i n a l c o u r t d i s p o s i t i o n : N o f i n a l c o u r t d i s p o s i t i o n a t e n d IT 2 3 0 4 . 1 , 2 3 4 0 . 2 6 ( a ) , 2 5 0 0 . 9 ( a ) , 2 5 0 0 . 1 0 , 2 3 9 5 . 7 5 , 2 3 4 0 . 2 3 ( a ) o f c a l e n d a r y e a r . ~ N 2 2 4 0 - 0 5 1 - 8 4 P a g e l N o r d i c S a w & T o o l M a n u f a c t u r i n g D a t e r e f e r r e d t o B O I : 6 - 2 7 - 8 4 D a t e r e f e r r e d t o D A b y B O I : 3 - 8 5 S t a t u t e / v i o l a t i o n : N O R D I C L A R S O N 6 4 2 5 L C H A N S O N . 8 C A C 5 1 5 5 ( c ) (1 ) (A ) T o x i c e x p o s u r e t o C a d m i u m 6 4 2 5 L C | , S a m e 8 C A C 5 1 5 0 (b ) N o l o c a l e x h a u s t s y s t e m w h i l e u s c a d m i u m - c o n t a i n i n g b r a z i n g m a t e r 6 4 2 5 L C S a m e 8 C A C 3 2 0 3 ( a ) ( 1 ) L a c k o f t r a i n i n g 6 4 2 3 ( a ) , S a m e 8 C A C 5 1 5 5 (c ) (1 ) (A ) E x p o s u r e t o C a d m i u m . 8 C A C 5 1 5 0 (b ) N o l o c a l e x h a u s t s y s t e m w h i l e u s c a d m i u m - c o n t a i n i n g b r a z i n g m a t e r 6 4 2 3 ( a ) S a m e M W 6 A 2 V aA ) S a m e 8 CAC 3 2 0 3 ( a ) ( 1 ) L a c k o f t r a i n i n g § $ 2 2 4 0 - 0 5 1 - 8 4 P a g e 2 F i n a l d i s p o s i t i o n : F a v o r a b l e d i s p o s i t i o n p r e t r i a l : N O L O p l e a to C o u n t s I, II , I I I - 3 6 mo . p r o b a t i o n . $ 5 0 0 0 f i n e . LA RS EN , D E W E Y EU GE NE , ET AL N O R D I C S A W A N D T O O L , E T A L ‘ , N O L O p l e a t o C o u n t s I, I I , I I I - 3 6 m o . p r o b a t i o n . $ 5 0 0 0 f i n e H A N S O N , H A R R Y I P S E N , E T A L . $ 2 0 0 0 . 0 0 t o b e c r e d i t e d a g a i n s t $ 1 0 , 0 0 0 f i n e i f D i v i s i o n i m p o s e s s i m i l a r p e n a l t y i n a d m i n i s t r a t i v e a c t i o n s . D e f e n d a n t s t o i n s t i t u t e c o m p r e h e n s i v e m e d i c a l s u r v e i l l a n c e p r o g r a m f o r a f f e c t e d e m p l o y e e s a s p e r s e n t e n c i n g o r d e r . S 2 1 1 0 - 0 2 7 - 8 4 . : - D a t e r e f e r r e d t o B O I : 4 - 2 4 - 8 4 D a t e r e f e r r e d t o D A b y B O I : 6 - 1 9 - 8 4 f o r c r i m i n a l p r o s e c u t i o n 4 - 8 - 8 5 f o r c i v i l p r o s e c u t i o n S t a t u e t / v i o l a t i o n : B & P 1 7 2 0 0 8 C A C 5 2 0 8 ( 1 ) S e r i o u s ° § 2 0 8 ( 1 ) S e r i o u s — D i s p o s i t i o n : D A r e j e c t e d c a s e . M a t t e r n o t p r o s e c u t a b l e . BW B-!) ie tite bs I T D CA SE S R E F E R R E D TO P R O S E C U T O R S IN 19 85 OR C A S E S R E S U L T I N G I N F I N A L C O U R T D I S P O S I T I O N I N 1 9 8 5 - D i s c r e t i o n a r y I n v e s t i g a t i o n s - ( S e r i o u s I n j u r i e s o r S e r i o u s E x p o s u r e s o f 1 t o 4 E m p l o y e e s ) #B-Ls N 1 4 2 3 0 - 1 4 2 - 8 3 P a g e l W e s t e r n G e o p h y s i c a l C o m p a n y D a t e r e f e r r e d t o B O I : 1 2 - 9 - 8 3 D a t e r e f e r r e d t o D A b y B O I : 1 9 8 5 - S t a t u t e / v i o l a t i o n : | W E S T E R N G E O P H Y - B & P 1 7 2 0 3 1 7 2 0 4 1 7 2 0 0 S I C A L V i o l a t i o n s : 1 7 2 0 6 C a l i f o r n i a H e a l t h & S a f e t y C o d e 1 2 1 0 1 ( a ) 1 9 ca Ac 1 5 6 5 . 1 8 C A C 1 5 5 0 ( b ) 1 5 6 5 (a ): 1 5 7 9 ( e ) 1 5 7 9 ( c ) 1 5 6 5 ( b ) 4 0 0 1 15 65 (4 ) 1 5 6 7 ( b ) 1 5 6 7 ( c ) C a l i f o r n i a H e a l t h a n d S a f e t y C o d e 1 2 0 9 1 C a l i f o r n i a V e h i c l e C o d e 3 1 6 1 3 8CAC1 5 6 4 ( a ) B-/aZA . N 1 4 3 0 - 1 4 2 - 8 3 P a g e 2 F i n a l d i s p o s i t i o n : F a v o r a b l e p r e - t r i a l d i s p o s i t i o n . J u d g m e n t e n t e r e d a g a i n s t d e f e n d a n t u n d e r B & P 1 7 2 0 0 , e t s e q . D e f e n d a n t r e s t r a i n e d f r o m a n y v i o l a t i o n o f H e a l t h a n d S a f e t y C o d e 1 2 0 0 0 a n d 1 2 7 2 5 , C a l i f o r n i a V e h i c l e C o d e 3 1 6 0 0 a n d 3 1 6 2 0 , a n d S t a t e F i r e C o d e s a f e t y i n s p e c t i o n p r o g r a m . , etae =e - CAL/OSHA Frogram Office March 27, 1927 Mr. James W, Lake’ cting Reglona! Administrator Occupational Safety and Health Administration. U, S. Department of Labor 450 Golden Gate Avenue, Box 36017 San Francisco, CA 94102 Attention: Ham Fairburn Dear Mr. Lake: We are enclosing a copy of the annual report on activities of the DOSH Bureau of investigations during calendar year 1986. The repor7 is pre- pared to meet the requirements of Labor Code section 6315.3. Similar reports or data have been provided the Reglonal Office in prior years for use in evaluation of the CAL/OSHA program, | Sincerely, Dorothy H. Fowler Assistant Program Manager enclosure bee: Ron Rinaidi ) Bob Simpson } w/o enc. Bob Stranberg) Mike Mason) . Ray Owen) STATE OF CALIFORNIA DEPARTMENT OF INDUSTRI AL RELATIONS DIVISION OF OCCUPATIONA L SAFETY AND HEALTH BUREAU OF INVESTIGATIONS 525 Golden Gate Avenue, Rm . 616 San Francisco, CA 94102 ANNUAL REPORT OF ACTIVITY DURING 1986 Michael D. Mason Chief Counsel (415) 557-2960 A L L O C A T I O N s a n A R Y CZ P| C A L E S U M M A R Y O F A L L O C A T I O N O F B U R E A U R E S O U R C E S D U R I N G 1 9 8 6 C A L E N D A R Y E A R SUMMARY OF ALLOCATION OF BUREAU RESOURCES DURING 1986 CALENDAR YEAR Whereas the year 1985 was characterized as one of transition, the year 1986 was one of consolidation and accomplishment. As stated in the last annual summary, the Department of Industrial Relations approved immediate augmentation in early 1986 of two additional investigator positions which had been proposed in the Governer's budget for the current fiscal year. During the mid part of the calendar year, all eight authorized investigatory positions, including the Supervising Special Investigator, were filled. In addition, two staff.attorneys continued their respon- sibility for legal matters pertaining to northern and southern © Bureau cases respectively. Toward the latter part of the calen- dar year, one vacant position existed as a result of the depar- ture of an individual on the investigatory staff. In summary, during a substantial part of the calendar year, the Bureau's legal and investigatory staff was operating with a substantial compliment of its authorized personnel. (Unresolved was the issue concerning whether the permanent investigator job classifi- cation should be retained or modified). The central purpose of the Bureau is to conduct investiga- tions pursuant to law and to refer appropriate cases to prose- -cuting authorities for appropriate action. However, the Labor - Code designates certain categories of mandatory cases which the Bureau is required to investigate. Mandatory investigations are required in cases involving violations of standards, orders, or special orders, in which there is a serious injury to five or more employees, death, or request for prosecution by Division representatives. Labor Code 6315(a). In addition, the Bureau has discretion to investigate serious injuries to one to four employees or a serious exposure in which the Bureau finds crimi- nal violations may have occurred. Before any field investigatory assignment is made, all cases are subject to administrative review. This review process is akin to an administrative investigation and is designed to screen cases for purposes of ultimate field assignment. A substantial number of cases are closed during the administrative investigation because the attor- ney or supervising special investigator determines, from a review of the factual information available, that further investigation would be unwarranted. Those cases determined to lack the necessary legal or evidentiary elements for criminal or civil charges or which otherwise would have a remote chance of being filed by prosecutorial authorities are closed administratively. Given the increase in authorized personnel and the dedication of the attorneys and investigators working on behalf of the Bureau, substantial increases in productivity occurred in the calendar year 1986. Whereas the number of administrative clo- sures for 1985 was 102, in 1986 there were 216 administrative closures. Whereas in 1985, there were 46 investigations completed during the calendar year, in 1986 there were 80. -l- C-y# Whereas in 1985, 29 cases were referred during the calendar year, in 1986 63 cases were referred. Of the 29 cases referred in 1985, 15 cases were ultimately filed by prosecuting authorities. Of the 63 cases referred during 1986, already 26 cases have been filed by prosecuting authorities. (As this calendar year pro- ceeds, we anticipate that additional cases referred during 1986 will be filed in 1987.) A substantial accomplishment during calendar year 1986 was the ability of the Bureau to expand the number of counties in which cases were referred for prosecution, thereby increasing the number of prosecutorial authorities who are familiar with occupa- tionally-related misdemeanor and felony charging statutes. We are pleased to report that our anticipation in our last annual summary of a substantially higher degree of investigatory acti- vity during calendar year 1986 was fulfilled. C-s CH I L A C A S E S R E F E R R E D - T O P R O S E C U T O R S I N 1 9 8 6 O R C A S E S R E S U L T I N G I N F I N A L C O U R T D I S P O S I T I O N I N 1 9 8 6 - F a t a l i t i e s - C A S E N U M B E R : N 1 1 1 0 - 0 3 6 - 8 5 C A S E N A M E : D A T E R E F E R R E D T O B O I : 4 - 2 4 - 8 5 D A T E R E F E R R E D T O D . A . B Y B O I : 7 - 1 0 - 8 6 S T A T U T E / V I O L A T I O N : B U S I N E S S A N D | P R O F E S S I O N S CO DE A G A I N S T WH OM TI TL E 8 CA L. AD MI N. CO DE 3 4 1 . 1 ( 1 ) 2 1 5 0 9 ( d ) 1 5 1 0 ( a ) 1 5 4 0 ( e ) ( 1 ) “ 1 5 4 0 ( g ) ( 2 ) 1 5 4 0 ( c ) ( 1 ) ° 1 5 4 0 ( d ) 1 5 4 0 ( £ ) 1 7 2 0 0 L A B O R C O D E A G A I N S T W H O M T I T L E 8 C A L . A D M I N . C O D E 6 4 2 3 ( a ) 6 4 2 5 S a m e a s a b o v e F I N A L C O U R T D I S P O S I T I O N : S a n J o a q u i n C o u n t y D e p u t y D i s t r i c t A t t o r n e y S t e p h e n E . T a y l o r d i d n o t f i l e c r i m i n a l c h a r g e s b a s e d o n i n s u f f i c i e n c y o f e v i d e n c e t o p r o v e a v i o l a t i o n o f t h e l a w b e y o n d a r e a s o n a b l e d o u b t . A c i v i l a c t i o n w a s f i l e d a g a i n s t S e e p o r s e a n t t o B u s i n e s s a n d P r o f e s s i o n s C o d e s e c t i o n 1 7 2 0 0 o n 8 - 1 5 - 8 6 f o r r e l a t e d T i t l e 8 C a l . A d m i n . C o d e v i o l a t i o n s . T h e m a t t e r i s s t i l l p e n d i n g . C A S E N U M B E R : N 1 1 1 0 - 0 8 1 ~ 8 5 C A S E N A M E : w a I n c o r p o r a t e d D A T E R E F E R R E D T O B O I : 8 - 1 2 - 8 5 D A T E R E F E R R E D T O D . A . B Y B O I : 8 - 1 1 - 8 6 S T A T U T E / V I O L A T I O N : B & P C O D E - . A G A I N S T W H O M 8 C A L . A D M I N . C O D E 8 C A C § § 3 2 1 0 , 3 6 5 3 , 3 2 0 7 ( b ) , 1 7 2 0 0 . g a . , I n c . 3 3 1 4 ( a ) , 4 0 7 5 , 3 2 0 3 ( a ) ( 1 ) , 5 1 7 4 ( £ ) , 3 3 2 8 ( a ) , 5 1 7 4 ( a ) , 5 1 7 4 ( b ) , 4 0 7 0 ( c ) , 3 6 6 1 l ( c ) , 5 0 2 1 l ( a ) , 3 6 6 4 ( a ) , 3 9 9 9 ( b ) , 1 5 1 5 , 1 6 7 0 ( a ) a n d 1 6 3 2 ( a ) . L A B O R C O D E A G A I N S T W H O M 8 C A L . A D M I N . C O D E L C 6 4 2 5 . 8 C A C 3 3 1 4 ( a ) L C 6 4 2 3 ( a ) LC 64 23 (b ) © | " " 4 i LC 6 4 2 3 ( a ) _ m i 8 C A C § 3 2 0 3 ( a ) L C 6 4 2 3 ( a ) 8 C A C § 4 0 7 5 L C 6 4 2 3 ( a ) " ” 8 C A C § 5 1 7 4 ( E £ ) \ F I N A L C O U R T D I S P O S I T I O N : ‘ V y C a s e s t i l l p e n d i n g a s o f J a n u a r y 1 , 1 9 8 7 . C A S E N U M B E R : S $ 1 1 3 0 - 0 2 3 - 8 6 D A T E R E F E R R E D T O B O I : 2 - 2 6 - 8 6 D A T E R E F E R R E D T O D . A . B Y B O I : J o i n t i n v e s t i g a t i o n S T A T U T E / V I O L A T I O N : B P C 1 7 2 0 0 L C 6 4 2 5 L C 6 4 2 3 : 8 C A C 4 2 0 6 ( a ) - S e r i o u s / W i l l f u l 4 2 0 3 ( b ) - S e r i o u s 4 2 0 8 ( i ) - S e r i o u s 4 2 0 2 ( c ¢ ) - G e n e r a l 4 2 0 8 ( d ) - G e n e r a l 3 2 0 3 ( a ) - G e n e r a l 3 2 2 1 ( a ) - G e n e r a l 3 4 2 ( a ) - G e n e r a l D I S P O S I T I O N : N o n e a t e n d o f c a l e n d a r y e a r .
