Davey Tree Surgery Co. v. Occupational Safety & Health Appeals Board

An employee of Davey Tree Surgery Company (Davey) violated a safety order by working in an aerial lift without a safety belt. Davey was cited for violation of the California Occupational Safety and Health Act of 1973 (OSHA) (Lab. Code, § 6300 et seq.) and defended on the ground that the violation was an unforeseeable independent act of an employee. The Occupational Safety and Health Appeals Board (Board) rejected Davey’s position because the violating employee was a foreperson or supervisor whose acts were not subject to the defense. We hold that the Board’s determination was supported by the evidence and was not unreasonable.

Procedural History

On August 3, 1981, the Division of Occupational Safety and Health of the California Department of Industrial Relations (Division) issued a citation to Davey for a general violation of section 3686, subdivision (h), of the General Industry Safety Orders adopted by the California Occupational Safety and Health Standards Board. (Cal. Admin. Code, tit. 8, § 3686, subd. (h).) Davey filed a “Notice of Contest (Appeal),” and an administrative hearing was held on January 7, 1982. The administrative law judge (ALJ) granted the appeal and…