Sweet Spot?

The news late last week that Kari Johnson, the Cal/OSHA Appeals Board’s controversial executive officer had resigned effective immediately reminded us of a comment made at the Board’s recent stakeholders’ meeting. The Board’s management member Judi Freyman was pleased to say that the Board has found its “sweet spot.” We don’t know what she meant by that unless she was being ironic. Tell us why we’re wrong to think that.

For example, last year Oakland Superior Court judge Evelio Grillo’s decision in the BART case. The Board decided that Cal/OSHA had let BART off too easy in a death case and, on its own motion, bumped citations classified Serious to Willful Serious, with penalties increased accordingly. This was perfectly consistent with the Board's public interest member Ed Lowery’s earlier pronouncement that the Board's purpose is not to judge the validity of citations neutrally, but to support Cal/OSHA's enforcement actions. How that interpretation of the Act came to light 40-some years into the Board’s existence was not explained.

Judge Grillo begged to differ: The Board, he held, is a "neutral adjudicative body," not a "law enforcement body." Using criminal law as an analogy, Judge Grillo held that Cal/OSHA’s role is to bring charges against employers. The Board's role is to judge, not to prosecute.

But as if that wasn’t embarrassing enough, Judge Grillo then considered a second case which concerned whether A C Transit’s buses qualify as outdoor workplaces for the purposes of enforcement of the heat illness regulation. Cal/OSHA said they do; the Board said they do not. In a rare case of a writ brought by Cal/OSHA against the Board, the issue was which of these agencies trumps the other in interpreting the meaning of regulations issued by the Standards Board. Easy answer, right? Guess again.

Remarkably, Judge Grillo held that when these two agencies disagree, the Division's - not the Board's - interpretation must be followed. After all, he reasoned, Cal/OSHA and not the Board was actively involved in the writing of the regulation, so it is in a better position to say what the regulation was meant to cover. But since the Board never plays a part in the development of safety orders, and Cal/OSHA always does, we cannot think of a case in which Cal/OSHA could not pull rank on the Board.

This is a truly remarkable line of reasoning: When the Board and Cal/OSHA agree on the interpretation of a regulation, the Board is expected to be neutral in its application of the law. When the two disagree, the Board must adopt Cal/OSHA’s interpretation and apply the law as Cal/OSHA says it should be applied.

Judge Grillo’s decision in the AC Transit case is on appeal to the Third Circuit. If it stands he will have gone Ed Lowery one better: The Board doesn't just support Cal/OSHA, its role is to be Cal/OSHA’s Charlie McCarthy.

We cannot think of a more humiliating position for the Board to be in. How sweet...for Cal/OSHA.

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