United Parcel Service v. Cal. OSHAB CA2/5 ( 2021 )

Filed 10/21/21 United Parcel Service v. Cal. OSHAB CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
UNITED PARCEL SERVICE, B308218
Petitioner and Appellant, (Los Angeles County
Super. Ct. No. 18STCP03195)
v.
CALIFORNIA OCCUPATIONAL
SAFETY AND HEALTH
APPEALS BOARD,
Defendant and Respondent.
APPEAL from an order of the Superior Court of Los
Angeles County, Mitchell L. Beckloff, Judge. Affirmed.
Jackson Lewis, Nikki L. Wilson and Dylan B. Carp, for
Petitioner and Appellant.
J. Jeffrey Mojcher, Chief Counsel, Aaron R. Jackson, F.
Elizabeth Clarke and Andia Farzaneh, Staff Counsel, for
Defendant and Respondent.
____________________________________
After a workplace accident, real party in interest California
Department of Industrial Relations, Division of Occupational
Safety and Health (the Division) issued a citation to petitioner
and appellant United Parcel Service (UPS) for failing to require
employees to wear appropriate foot protection in violation of
California Code of Regulations, title 8, section 3385, subdivision
(a).1 The citation was upheld by respondent California
Occupational Safety and Health Appeals Board (the Board). UPS
filed a petition for writ of mandate, which the trial court denied.
On appeal from the order denying the petition, UPS
contends there was no evidence to support finding that footwear
designed to provide protection from 2,500 pounds of compression
would have provided protection from a container greatly
exceeding that weight limit. UPS contends the excessive weight
of the hazard was sufficient to rebut the presumption that
footwear meeting certain standards of the American Society for
Testing and Materials (ASTM) was appropriate footwear under
section 3385, subdivision (a). We conclude substantial evidence
supports the Board’s finding that the Division met its burden to
show employees were exposed to foot injuries through crushing or
penetrating actions, raising a presumption that ASTM-compliant
footwear was appropriate, and UPS did not rebut the
presumption by demonstrating that ASTM-compliant footwear
would have provided no protection or was inappropriate for other
reasons. We affirm.
1All undesignated regulation references will be to title 8 of
the California Code of Regulations unless otherwise stated.
2
FACTUAL AND PROCEDURAL BACKGROUND
Accident and Citation
UPS ships freight by air and operates an airport facility in
Ontario, California where it loads and unloads aircraft. UPS
does not provide footwear for employees who load and unload air
cargo containers. UPS has a footwear policy that states proper
footwear is essential to prevent injuries when items are dropped
or when working close to moving equipment such as air
containers. The A2 air cargo container is the third smallest air
cargo container in its class, and weighs approximately 500
pounds unloaded. UPS’s footwear policy required employees’
shoes to have adequate foot and arch support, a non-slip sole, and
be in good repair. UPS recommended “a sturdy, all-leather, well-
built work shoe or boot.” Loafers, tennis shoes, sandals, and
tennis shoes were not acceptable styles. Some UPS employees
chose to purchase and wear steel-toed shoes, but UPS did not
require them.
On May 24, 2016, UPS employee Steven Sanchez was
working inside an aircraft to offload air cargo containers. While
he was pulling a loaded air cargo container, a butterfly lock got
stuck and prevented the container from moving forward.
Sanchez used his right foot to push down on the lock, but the
container rolled over his foot and the lock pierced his work boot.
Sanchez suffered serious injury when his toes were crushed.
On June 23, 2016, Division Associate Safety Engineer
Leticia Reyes inspected the UPS workplace in Ontario. On
November 23, 2016, the Division issued a citation for a serious
accident as a result of UPS’s failure to require employees to wear
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appropriate foot protection in violation of section 3385,
subdivision (a). The proposed penalty was a fine of $18,000.
Administrative Appeal
UPS appealed the citation to the Board. A hearing was
held on May 17 and August 10, 2017, before an administrative
law judge (ALJ). Sanchez was the sole witness to testify.
The Division filed a post-hearing brief. The Division noted
that a photo of an air cargo container showed it weighed 499
pounds when empty. The Division stated, without citation to the
record, that the weight of a loaded air container could reach 6,000
to 7,000 pounds. The Division argued that the evidence showed a
UPS employee was exposed to a crushing or penetrating foot
injury under the applicable tests. There was a predictable risk
that the forward momentum of a 6,000 to 7,000 pound air
container, without an engineering control, could roll over the foot
of the employee who was pulling it. Because of the exposure to
penetrating and crushing foot injuries, UPS should require
appropriate foot protection as set forth in ASTM F 2412-05 and
ASTM F 2413-05. UPS did not require or provide footwear
meeting the minimum standards.
UPS filed a post-hearing brief. UPS stated that the issues
were whether section 3385, subdivision (a), required employees
who move air containers to wear more protective shoes than
“sturdy work shoes,” and whether UPS could have reasonably
anticipated prior to the injury that more protective shoes were
required. UPS determined that a sturdy work shoe was the
necessary personal protective equipment for employees moving
air containers, and until Sanchez’s injury, there was no reason
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for UPS to think a sturdy work shoe was inadequate. There was
no evidence that UPS was aware an employee would use a foot to
dislodge a butterfly lock or the potential for injury. UPS could
not have anticipated exposure to the hazard. There was no notice
to UPS until after the injury occurred, there was no evidence of
an ongoing hazard of objects falling on employees’ feet, and there
was no evidence that additional foot protection could have
prevented the injury.
The ALJ issued a decision on September 12, 2017, vacating
the citation and setting aside the penalty. The ALJ stated the
issue was whether UPS required employees to wear adequate foot
protection when exposed to crushing injuries. Among other
findings of fact, the ALJ found the container that Sanchez was
unloading weighed about 500 pounds when empty, and
approximately 6,000 to 7,000 pounds when loaded. At the time of
the accident, UPS had a footwear policy designed for foot
protection, and Sanchez was wearing foot protection that
complied with the UPS policy.
The ALJ concluded that the Division established Sanchez
was exposed to a crushing hazard while performing his job
duties. There was no evidence of the type of foot protection, if
any, that would be more appropriate than the protection that
UPS required. However, there was no evidence that steel-toed
shoes would block the forward progress of an air cargo container,
not become lodged underneath a butterfly lock, or prevent
impalement by a butterfly lock if the foot became stuck under it.
Accordingly, the ALJ concluded that the Division failed to meet
its burden to show the footwear required by UPS was not
appropriate.
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The Board ordered reconsideration of the ALJ’s order. The
Division filed a response stating the ALJ did not properly apply
the decisional law. By showing employees were exposed to foot
injury from crushing action, the Division presented sufficient
evidence to establish a presumption that footwear meeting the
standards set forth in the regulations was appropriate, and the
burden shifted to UPS to demonstrate that footwear meeting the
ASTM standards would not provide protection.
On November 15, 2018, the Board issued a decision after
reconsideration. Among the Board’s findings, it found that UPS
did not require its employees to wear appropriate foot protections
because UPS failed to require footwear meeting the requirements
of ASTM F 2412-05 and ASTM F 2413-05. In addition,
appropriate foot protection, particularly as contemplated by the
ASTM standards, could have prevented or ameliorated the
injuries, or the extent of injuries, suffered by Sanchez.
The Board concluded the evidence showed Sanchez was
exposed to foot injuries from crushing or penetrating actions.
The ALJ failed to follow Board precedent in analyzing whether
the Division met its burden to show UPS failed to require
appropriate foot protection. Under the burden shifting analysis
adopted and applied by the Board, by showing employees were
exposed to certain foot injuries, a presumption was created that
footwear meeting the ASTM standards stated in section 3385,
subdivision (c), was appropriate. The employer could rebut the
presumption by demonstrating footwear meeting the ASTM
standards would not offer protection or would be inappropriate
for the workplace hazards. In this case, UPS offered no evidence
that footwear meeting the ASTM standard would fail to provide
protection. Even assuming a fully loaded container weighed
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6,000 to 7,000 pounds, which was not substantiated by the
evidence, the weight of an item alone was not sufficient to rebut
the appropriateness of the ASTM standard. To rebut the
presumption, the employer must prove the standard would
provide no protection at all, showing such footwear would never
be effective. There was no such evidence in the record.
Therefore, the Board found UPS failed to require appropriate foot
protection and did not establish a defense. The Board concluded
that the Division established a serious, accident-related violation
of section 3385, subdivision (a), and the penalty of $18,000 was
reasonable, and therefore, the Board assessed the penalty.
Writ of Administrative Mandamus
On December 14, 2018, UPS filed a petition seeking a writ
of administrative mandamus ordering the Board to set aside its
decision and issue an amended decision. In its opening brief,
UPS conceded that the transcript of the administrative hearing
did not contain testimony establishing the weight of a loaded
container, but stated that the parties agreed a loaded container
weighed 6,000 to 7,000 pounds.
UPS acknowledged that section 3385, subdivision (c)(1),
requires protective footwear to meet the requirements and
specifications in ASTM F 2412-05, Standard Test Methods for
Foot Protection and ASTM F 2413-05, Standard Specification for
Performance Requirements for Foot Protection. UPS explained
that ASTM F 2413-05 classifies protective footwear as Class 50 or
Class 75. Class 50 footwear is designed to withstand an impact
of 50 pounds and a compression force of 1750 pounds. Class 75
footwear is designed to withstand an impact of 75 pounds and a
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compression force of 2500 pounds. UPS argued that footwear
meeting either classification would not have protected Sanchez
from the injury in this case. The standard did not support
finding employees would be protected from forces greater than
2500 pounds, such as the full containers in this case which the
parties had agreed weighed between 6,000 and 7,000 pounds.
UPS argued that the cases relied on by the Board were
decided prior to incorporation of the 2005 ASTM standard in
current section 3385, subdivision (c), replacing the prior
standard. The weight limits of the ASTM standard provide the
regulated community with guidance as to which type of protective
footwear would be effective. Employers reading the plain
language of ASTM F 2413-05 consider the weight limits when
selecting proper footwear. If employees are exposed to potential
compression hazards more than twice the weight limit of the
class 75 rated footwear, the employer cannot assume requiring
class 75 rated footwear provides adequate protection. The ASTM
standard did not ensure employees exposed to potential
compression weights of 6,000 to 7,000 pounds would have
appropriate foot protection when wearing the highest class of
footwear referred to in the standard.
UPS argued that since employees were exposed to weight
limits greater than the limits contemplated by section 3385,
subdivision (c), it was the Division’s burden to prove appropriate
footwear under the circumstances. Based on this analysis, UPS
concluded that the Division failed to meet its burden to establish
the elements of the citation by a preponderance of the evidence.
In support, UPS attached the version of ASTM F 2413-05 in
effect at the time of the injury.
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The Board filed an opposition on the grounds that there
was no evidence in the record that fully loaded containers
weighed 6,000 to 7,000 pounds, and even if they did, there was no
evidence that protective footwear would not mitigate the
likelihood of injury. The Board requested that the trial court
take judicial notice of several decisions by the Board interpreting
and applying the law, as well as ASTM standards F 2412-05 and
F 2413-05, which are incorporated by reference in section 3385,
subdivision (c)(1).
The Division filed a response as well. The Division argued
UPS failed to produce evidence to rebut the evidentiary
presumption that arose when the Division established its prima
facie case.
On August 12, 2020, the trial court issued an order denying
the petition for writ of mandate. The trial court also granted the
Board’s request for judicial notice. The court found the change in
the ASTM footwear standard in March 2005 did not affect the
applicability of the authorities cited by the Board, because the
same burden shifting analysis was applied in the Board’s
decisions before and after March 2005. Under the authorities,
section 3385 creates a presumption that footwear meeting the
ASTM standard is appropriate, and UPS must rebut the
presumption by demonstrating the ASTM standard footwear is
unreasonable or inappropriate under the circumstances. By
presenting evidence sufficient to demonstrate UPS employees
were exposed to foot injury from falling objects, crushing, or
penetrating actions, the Division presented sufficient evidence to
raise a presumption that footwear meeting the standards set
forth in section 3385, subdivision (c), was appropriate. There was
no dispute that UPS did not require employees to wear footwear
9
that complied with the ASTM standards in section 3385,
subdivision (c)(1). Therefore, the Division met its initial burden
and shifted the burden to UPS to demonstrate that the ASTM
standards would provide no protection or be inappropriate.
The trial court found there was no evidence in the record
that air cargo containers weigh 6,000 to 7,000 pounds when
loaded, and therefore, UPS could not demonstrate that the ASTM
standards were inappropriate under the circumstances based on
showing the weight of the object exceeded the impact and
compression force of ASTM’s most protective class of shoes. Even
assuming the weight of the fully loaded cargo containers were a
matter of record, UPS failed to address its responsibilities under
the burden shifting analysis. UPS did not argue that the burden
shifting interpretation was clearly erroneous. UPS made no
showing that the ASTM standard footwear was unreasonable or
inappropriate under the circumstances. There was no evidence
in the record that compliance with the ASTM standards would
provide no protection at all. The court could not rely on UPS’s
unsubstantiated statement that the highest class of footwear
under the ASTM standard would be inappropriate merely
because it exceeded the limits of the ASTM classes of protection.
The trial court denied the petition. UPS filed a timely notice of
appeal.
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DISCUSSION
Standard of Review
“‘“Our function on appeal is the same as that of the trial
court in ruling on the petition for the writ. We must determine
whether based on the entire record the Board’s decision is
supported by substantial evidence and whether it is reasonable.
[Citations.] Where the decision involves the interpretation and
application of existing regulations, we must determine whether
the administrative agency applied the proper legal standard.
[Citation.] Since the interpretation of a regulation is a question
of law, while the administrative agency’s interpretation is
entitled to great weight, the ultimate resolution of the legal
question rests with the courts. . . . An agency’s expertise with
regard to a statute or regulation it is charged with enforcing
entitles its interpretation of the statute or regulation to be given
great weight unless it is clearly erroneous or unauthorized.
[Citations.] The [Cal/OSHA Appeals] Board is one of those
agencies whose expertise we must respect. [Citation.]”
[Citation.] However, “[a]n administrative agency cannot alter or
enlarge the legislation, and an erroneous administrative
construction does not govern the court’s interpretation of the
statute.” [Citation.]’ (Rick’s Electric, Inc. v. Occupational Safety
& Health Appeals Bd. (2000) 80 Cal.App.4th 1023, 1033–1034.)”
(Overaa Construction v. California Occupational Safety & Health
Appeals Bd. (2007) 147 Cal.App.4th 235, 244–245.)
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Appropriate Footwear Required
UPS contends there was no evidence to support the finding
that ASTM-compliant footwear would have prevented or
minimized Sanchez’s injury. We disagree with UPS’s analysis.
Section 3385 states in relevant part: “(a) Appropriate foot
protection shall be required for employees who are exposed to foot
injuries from . . . falling objects, crushing or penetrating actions,
which may cause injuries . . . . [¶] . . . [¶] (c)(1) Protective
footwear for employees purchased after January 26, 2007 shall
meet the requirements and specifications in American Society for
Testing and Materials (ASTM) F 2412-05, Standard Test
Methods for Foot Protection and ASTM F 2413-05, Standard
Specification for Performance Requirements for Foot Protection
which are hereby incorporated by reference.” (§ 3385.)
To prove a violation of section 3385, subdivision (a), the
Division must establish that (1) employees were exposed to foot
injuries from conditions such as crushing or penetrating actions,
and (2) the employer failed to require or provide appropriate foot
protection. (Home Depot USA, Inc. dba Home Depot #6683,
Cal/OSHA App. 1014901, Decision After Reconsideration (July
24, 2017), 2017 WL 3216573 (Ca.O.S.H.A.).) UPS does not
dispute that employees were exposed to foot injuries from
crushing or penetrating actions. Rather, UPS contends there is
not sufficient evidence to support the finding that it failed to
require or provide appropriate foot protection.
Once the Division establishes that employees are exposed
to foot injuries, a presumption arises that footwear meeting the
ASTM standards is appropriate. (MCM Construction, Inc.,
Cal/OSHA App. 94-R3D5-246, Decision After Reconsideration
12
(Mar. 30, 2000), 2000 WL 561866 (Ca.O.S.H.A.); Morrison
Knudsen Corp., Cal/OSHA App. 94-R5D2-2271, Decision After
Reconsideration (Apr. 06, 2000), 2000 WL 561868 (Ca.O.S.H.A.).)
The burden shifts to the employer to show that footwear
compliant with the ASTM standard would not provide protection
or was inappropriate for other reasons. (Morrison Knudsen
Corp., supra, Cal/OSHA App. 94-R5D2-2271.) The bare fact that
the weight of the hazard exceeded the limits of the standard is
insufficient to rebut the appropriateness of ASTM-compliant
footwear. (Ibid.)
In this case, the Division showed UPS employees were
exposed to crushing or penetrating actions, raising a presumption
that ASTM-compliant footwear was appropriate. The burden
shifted to UPS to show footwear meeting the standard was
inappropriate for other reasons or would not have provided
protection. UPS contends that fully loaded air cargo containers
exceeded the weight limit of the standard, but that bare fact does
not rebut the presumption.
UPS asserts the decisions relied on by the Board were
based on evidence that ASTM-compliant footwear would have
provided some protection or minimized injury from objects
exceeding the weight limit. This is incorrect. For example, in the
decision of In The Matter Of The Appeal Of: Zero Corporation,
Cal/OSHA App. 79-R4D5-1161, Decision After Reconsideration
(Nov. 15, 1984), 1984 WL 183121 (Ca.O.S.H.A.), relied on by the
Board in deciding Morrison Knudsen Corp., the Board found the
Division had shifted the burden to the employer and the
presumption was not rebutted, even though the hazard in that
case exceeded the weight limit of the footwear standard and there
13
was no evidence that footwear meeting the standard would have
provided any protection or mitigation from injury.
For the first time on appeal, UPS contends that by failing
to introduce evidence of the weight of a loaded air cargo
container, the Division failed to establish which class of ASTM-
compliant footwear was appropriate, and therefore, the citation
should be reversed for failing to establish the elements. This is
also incorrect. By establishing that UPS employees were exposed
to foot injuries from crushing and penetrating actions, the
presumption arose that ASTM-compliant footwear was
appropriate. The Division did not need additionally to establish
which class of footwear was appropriate. It is undisputed that
UPS did not require or provide footwear meeting either
classification. UPS was required to rebut the presumption with
evidence showing ASTM-compliant footwear would not provide
protection or was not appropriate for other reasons. UPS did not
meet its burden, the evidence supports the Board’s decision, and
the trial court properly denied the petition for writ of mandate.
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DISPOSITION
The order denying the petition for writ of mandate is
affirmed. Respondent California Occupational Safety and Health
Appeals Board is awarded its costs on appeal.
MOOR, J.
We concur:
RUBIN, P.J.
KIM, J.
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