"Based on these findings, the Division [that is, Cal/OSHA] does not need to establish that the [controlling] Employer knew of the violation or, in exercising reasonable diligence, could have known of the ... violation in order for the Employer to be liable as a controlling employer under section 336.10."

You might want to read that paragraph again slowly and let its meaning sink in. Those are the words of the Cal/OSHA Appeals Board in C. Overaa & Company, Decision After Reconsideration (DAR) 01-3560, 2004 CA OSHA App. Bd. LEXIS 15, decided last April. In this decision the Board announced once and for all that it will treat controlling employers (read, general contractors) on multi-employer jobsites as strictly liable for any of its subcontractors’s violations. Evidence of the general’s efforts to insure that the workplace is as safe as humanly possible is irrelevant under this decision.

It is hard to conceive of a more myopic and counter-productive ruling, although the competition over the past five years has been fierce. In fact, the Board already said the same thing to exposing employers in Airco Mechanical, Inc, DAR 99-3140, 2002 CA OSHA App. Bd. LEXIS 62 (April 25, 2002).

The only good thing we can say about this decision is that it was not written by lawyers or judges. It was written by the Appeals Board’s two members, Marcy Saunders and Jerry O’Hara, both of whom are retired union representatives. No voices from management were allowed to intrude on their trashing of fairness and reason. In fact there has been no one in the management seat at the Board for over five years.

So, help us find the wisdom – the carrot if you will – in this decision. If the general contractor will be cited regardless, how does this decision encourage greater efforts to make multi-employer worksites safe? How does this decision reward an employer which goes out of its way to create imaginative, effective safety incentives?

When it comes to budgeting for safety programs, is the money that might be used to promote safety among subcontractors better spent by being placed in a fund for the inevitable penalties if something truly beyond the controlling employer’s control occurs?

And how do we explain to out-of-state contractors that California really is a good place to do business when we are asked to advise them on the regulatory climate here?

Welcome Candice Traeger

As bad as the Overaa decision is, it may be the end of the labor-side swing of the pendulum: Governor Schwartzenegger has appointed Candice Traeger to the management seat on the Appeals Board. She will also serve as the Board’s Chair, with responsibilities for supervision of the judges and administration of the Board’s work flow. Her appointment will become official after confirmation by the State Senate.

Traeger comes to the Board from UPS, where she gained a solid knowledge of both federal and California OSHA regulations and was active in the company’s governmental affairs work. She also has training as a lawyer, which can only be good news in light of the Overaa decision.

Happy New Year to All !!