BENDIX FOREST PRODUCTS CORPORATION v. STATE DEPARTMENT OF INDUSTRIAL RELATIONS (1979)

Bendix Forest Products Corporation, a lumber industry employer, challenges an order by the Division of Industrial Safety of the Department of Industrial Relations of the State of California requiring it to furnish, at the employer's expense, gloves or mittens for employees to use in removing lumber from drag chains at dry kilns.

Melbourne Davis, a compliance safety engineer employed by respondent, issued as a “Special Order” the challenged order. At petitioner's request, a hearing on the special order was held before John W. Hawkes, Administrative Chief of the Legal Unit of the Division of Industrial Safety. At the hearing, the evidence was uncontradicted that petitioner's employees had been using gloves or mittens supplied by petitioner and paid for by the employees. According to Engineer Davis, “there (was) nothing wrong with the mittens they were wearing they were adequate” and “all employees who were handling lumber, they had mittens.” Davis' order was upheld by Hawkes.

We conclude that the Division of Industrial Safety order exceeded its authority under the Labor Code, in that it was not authorized to make a legislative ruling with an economic basis in the guise of a safety order.

The issue presented is controlled by an interpretation of the California Occupational Safety and Health Act of 1973. (Lab.Code, s 6300 et seq.),^[FN1] and in particular the relative functions of the Occupational Safety and Health Standards Board (hereinafter Standards Board) and the Division of Industrial Safety (hereinafter Division).

Initially, we must consider the procedure by which we examine the issue raised. Petitioner petitioned this court for a writ of mandate. We issued an alternative writ. Upon closer examination, it appears that the appropriate procedure is an examination of the issue by petition for writ of review, not mandamus. Section 6308, subdivision (c) provides, in relevant part: “All orders, rules, regulations, findings, and decisions of the division made or entered under this part may be reviewed by the Supreme Court and the courts of appeal as may be provided by law.” It is the clear direction of the Legislature that the decisions of the Division will be examined by writ of review.

In Carmona v. Division of Industrial Safety (1975) 13 Cal.3d 303, 118 Cal.Rptr. 473, 530 P.2d 161, the so-called “short-handled hoe case,” the Supreme Court examined the issue raised therein by way of mandamus, not review, because under the circumstances of the case it was found appropriate to “compel the division to exercise jurisdiction and determine whether the short-handled hoe is ‘unsafe’ under the existing regulation” (p. 309, fn. 4, 118 Cal.Rptr. p. 476, 530 P.2d p. 164). In Carmona, the division had not exercised jurisdiction, and it was appropriate to direct such exercise by mandamus. In the same footnote, however (at p. 308, 118 Cal.Rptr. 473, 476, 530 P.2d 161, 164), the court noted that the 1973 act did provide that “under the present section 6308, this court retains jurisdiction to review decisions of the division interpreting and applying existing regulations.”

We conclude that petitioner's relief is by way of petition for writ of review. We treat this petition as such.

A review of the California statutes relating to safety conditions of employment reveals that since 1913 such statutes have existed in California. (Stats.1913, ch. 176, s 52, p. 306.) In 1937 those provisions became a part of the newly adopted Labor Code. Division 5, section 6300 et seq. of the code stated the requirement that “Every employer shall furnish employment and a place of employment which are safe for the employees therein,” and empowered the Industrial Accident Commission to enforce that requirement. (Stats.1937, ch. 90, s 6300 et seq., pp. 306-326.)

In 1945, the functions specified in Division 5 of the Labor Code were transferred from the Industrial Accident Commission to the Division of Industrial Safety, and a separate board, the Industrial Safety Board, was created as an entity within the Division of Industrial Safety. (Stats.1945, ch. 1431, ss 28, 78 et seq., pp. 2688-2689, 2698-2704.) Approval of three of the five board members was required for the issuance of general safety orders. (Stats.1945, ch. 1431, s 81, p. 2699.)

On October 1, 1973, the California Occupational Safety and Health Act of 1973 went into effect, effecting “a considerable reorganization of the statutory provisions governing the activities of the Division of Industrial Safety, and establish(ing) a new body, the Occupational Safety and Health Standards Board, as the new ‘legislative’ branch of the agency empowered to promulgate general safety and health orders and standards. (See Lab.Code, s 140 et seq.).” (Carmona v. Division of Industrial Safety, Supra, 13 Cal.3d at p. 306, fn. 1, 118 Cal.Rptr. at p. 475, 530 P.2d at p. 163.) The new act also created the Occupational Safety and Health Appeals Board, and established procedures for appealing citations issued by the Division requiring abatement of unsafe conditions and appealing civil penalties assessed by the Division. (See ss 148, 6302, 6600.)

The Standards Board “may adopt, amend or repeal occupational safety and health standards and orders” and “shall be the only agency in the state authorized to adopt occupational safety and health standards.” (s 142.3, subd. (a).) The function of the Division is spelled out in section 142, which provides that it “shall enforce all occupational safety and health standards adopted” by the Standards Board.

The Division operates through both general and special orders. Section 6305 defines such orders as follows:

(a) “Occupational safety and health standards and orders” means standards and orders adopted by the standards board pursuant to Chapter 6 (commencing with Section 140) of Division 1 and general orders heretofore adopted by the Industrial Safety Board or the Industrial Accident Commission.

(b) “Special order” means any order written by the chief or his authorized representative to correct an unsafe condition, device, or place of employment which poses a threat to the health or safety of an employee and which cannot be made safe under existing standards or orders of the standards board. Such orders shall have the same effect as any other standard or order of the standards board, but shall apply only to the employment or place of employment described in the written order of the chief's authorized representative.

The review by Hawkes of the special order was authorized under section 6308, subdivision (c).^[FN2] In his decision holding the order valid, Hawkes conceded that the order was not valid as a “special order.” A special order is defined by section 6305, subdivision (b) as an order “to Correct an unsafe condition.” (Emphasis added.) Hawkes properly found that the instant order “does not fit under that description.” It is apparent that there was no correction of an unsafe condition necessary, because the employees did in fact have the gloves or mittens required to make their employment safe. The only issue was who was to pay for the gloves or mittens.

The Division then determined, however, that “under the authority of Section 6308 the Division has broad authority to issue Orders for certain purposes,” and concluded that the Division was within its authority in issuing the order, which it erroneously characterized as “requiring the use of gloves by employees.” Although that may be a part of the order, the significant language of the order is that the employer shall provide, “at its own expense,” the gloves or mittens. The Division contends that the order made here falls within those standards and orders adopted by the Standards Board (s 6305, subd. (a)), and that the Division was authorized to enforce the order under section 6308, which provides in relevant part:

The division, in enforcing occupational safety and health standards and orders and special orders may do any of the following:

(a) Declare and prescribe what safety devices, safeguards, or other means or methods of protection are well adapted to render the employees of every employment and place of employment safe as required by law or lawful order.

The Division cited title 8 of the Administrative Code, and in particular section 3384, in support of its determination. That section provides in pertinent part: “Hand protection may be required for employees whose work regularly exposes their hands to hazardous substances, cuts or burns.” The Administrative Code provisions, beginning with section 3200, are occupational safety and health standards and orders adopted by the Standards Board created by the 1973 act, and those previously adopted by the Industrial Safety Board or the Industrial Accident Commission prior to the adoption of the 1973 act.

Under the 1973 act, “Every employer shall furnish employment and a place of employment which are safe and healthful for the employees therein.” (s 6400.) “Every employer shall Furnish And use safety devices and safeguards, and shall adopt and use practices, means, methods, operations, and processes which are reasonably adequate to render such employment and place of employment safe and healthful. Every employer shall do every other thing reasonably necessary to protect the life, safety, and health of employees.” (s 6401, emphasis added.) Furthermore, “No employer shall fail or neglect: (a) To Provide and use safety devices and safeguards reasonably adequate to render the employment and place of employment safe. . . . (c) To do every other thing reasonably necessary to protect the life, safety, and health of employees.” (s 6403, emphasis added.)

The Division is given “the power, jurisdiction, and supervision over every employment and place of employment in this state, which is necessary to adequately enforce and administer all laws and lawful standards and orders, or special orders requiring such employment and place of employment to be safe, and requiring the protection of the life, safety, and health of every employee in such employment or place of employment.” (s 6307.) More specifically, the Division, in enforcing standards and orders, is given authority to “Declare and prescribe what safety devices, safeguards, or other means or methods of protection are well adapted to render the employees of every employment and place of employment safe as required by law or lawful order,” to “Enforce . . . standards and orders adopted by the standards board . . . or special orders relative to the protection of the life and safety of employees in employments and places of employment,” and to “Require the performance of any other act which the protection of the life and safety of the employees in employments and places of employment reasonably demands.” (s 6308.)

It is apparent from the statutory scheme that the Standards Board, not the Division, is the policy maker and standard setter. The Division has the duty of enforcing Standards Board policy. What legislative power it is given is strictly circumscribed by section 6305, subdivision (b)‘s authorization of special orders only where the condition cannot be made safe under existing standards or orders of the Standards Board.

The Division reads section 6308 as a grant of additional legislative power. But that section refers specifically to what the Division may do “in enforcing occupational safety and health standards and orders and special orders.” Subdivision (a) of that section allows the Division to “declare and prescribe” what safety devices are “well adapted” to render the place of employment safe. This clearly authorizes the Division only to evaluate particular devices to determine if their operations meet the safety demands recognized by law or safety order. Subdivision (b) authorizes the Division to enforce all standards and orders. This must be read as authorizing only actions directed at securing compliance with present requirements, not amendment of Standards Board standards or orders, as has taken place here. Subdivision (c) allows the Division to “require the performance of any other act which the protection of the life and safety of the employees in employments and places of employment reasonably demands.” While this authority may seem broad, it must be limited to making rulings required by consideration of “safety,” much as a special order can be issued only if safety requires. Read any other way would authorize the Division to completely bypass the Standards Board, setting all standards in an ad hoc fashion on its own.

Standards are to be set by the Standards Board, after notice to the public and public hearings (see s 140, et seq.). The Division may make policy only to fill voids in board standards, and even then the policies apply only to particular employers and must be justified by the need to rectify an unsafe condition. A determination of who is to pay for safety equipment is clearly a determination to be made by the Standards Board (or under industry-wide standards for requiring payment set by the board), and is outside the authority of the Division.

Since any decision of the nature made in the instant case is outside the authority of the Division, we need not make a determination as to whether the Standards Board itself is authorized to make general orders on economic grounds. However, we feel compelled to make some observations in that regard. Petitioner asserts that the matter of the employer's purchase of gloves and mittens has been a union demand since 1941 and that the demand was dropped during negotiations for the current contract. Presently, the employer provides gloves and mittens on a cash or payroll deduction basis at the worksite. These facts are apparently not in dispute.

In support of its contention that the Division has the authority to order a particular employer to pay for safety devices, respondent relies heavily upon Oakland Police Officers Association v. City of Oakland (1973) 30 Cal.App.3d 96, 106 Cal.Rptr. 134, wherein the court held that under section 6401, imposing a duty on every employer to “furnish” safety devices, the Legislature meant also pay for such safety devices. The issue in Oakland Police Officers Association was who would pay for the guns used by police officers in Oakland. The court held that the fact that the employees had been providing such safety devices at their own expense did not relieve the employer from the obligation under the Labor Code. This case seemingly supports the Division's contention, at least about the authority of the Standards Board to require such payment. We note, however, that in Oakland Police Officers Association, the Department of Industrial Relations was not a party and the court did not address itself specifically to the powers of the Standards Board under the act. This may account for the fact that the Oakland Police Officers Association court did not discuss the Attorney General's opinion (51 Ops.Cal.Atty.Gen. 105, 108-109 (1968)). The Attorney General's opinion suggests that the word “furnish” does not necessarily mean to pay, indicating that when the Legislature has seen fit to settle the issue of who shall pay, it has added words to that effect. The opinion then goes on to suggest that whether the employer would be compelled to pay for safety equipment depends upon how the board decides the question of whether an agreement existed between the employer and employees concerning who would pay for such equipment. We question the validity of the Oakland Police Officers Association case as authority for reading section 6401 in the manner read by the Division.

The cause is remanded to the Division of Industrial Safety of the Department of Industrial Relations, with directions to annul its order requiring petitioner to provide, at its expense, gloves or mittens for its employees.

FOOTNOTES

1.  All statutory references are to the Labor Code unless otherwise indicated.

2.  Section 6308, subdivision (c) provides in pertinent part:An employer may request a hearing on a special order or action ordered pursuant to this section, at which the employer, owner or any other person may appear and show cause why he should not comply with such order or action. The division shall conduct such hearing at the earliest possible time.

SCOTT, Associate Justice.

WHITE, P. J., and FEINBERG, J., concur.