United Ass'n Local Union 246 v. Occupational Safety & Health Appeals Board

*276 Opinion

Under the California Occupational Safety and Health Act of 1973 (Cal-OSHA) (Lab. Code, § 6300 et seq.) 1 and the California Code of Regulations (Cal. Code of Regs., tit. 8, § 330 et seq.), 2 the Department of Industrial Relations, Division of Occupational Safety and Health (the Division), may issue citations to multiple employers at a single worksite for a Cal-OSHA violation (§ 6400; tit. 8, § 336.10). One type of multiple employer, among others, is the “controlling employer,” i.e., the employer responsible, by contract or through actual practice, for safety and health conditions at the worksite. (§ 6400, subd. (b)(3); tit. 8, § 336.10.)

We conclude that the Occupational Safety and Health Appeals Board (the Board) improperly held—in the Board’s decision at issue here (Harris-Board Decision) 3 —that the Division had to demonstrate, as an element of its prima facie case against a controlling employer cited for a general violation of Cal-OSHA, that “the employer was in a position to abate the . . . violative condition at issue” (Harris-Board Decision, supra, 2007 CA OSHA App.Bd. Lexis 50 at p. *15). We reach this conclusion based on our opinion in Overaa Construction…