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UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

____________________________________

)

SECRETARY OF LABOR, )

)

Complainant, )

)

v. ) OSHRC Docket No. 13-0224

)

A.H. STURGILL ROOFING, INC., )

)

Respondent, )

____________________________________)

BRIEF OF CALIFORNIA RURAL LEGAL ASSISTANCE, INC. AND CALIFORNIA 

RURAL LEGAL ASSISTANCE FOUNDATION IN SUPPORT OF THE SECRETARY 

OF LABOR

INTRODUCTION AND STATEMENT OF INTEREST

Amici Curiae, California Rural Legal Assistance, Inc., and California Rural Legal 

Assistance Foundation are non-profit legal services providers who have represented low wage 

workers in California since 1966 and 1986, respectively. Amici represent individuals working in 

agriculture, construction, landscaping and other occupations where workers are regularly 

exposed to high heat conditions and the attendant health risks. Many of our clients are seasonal 

workers who travel for work in various areas around California and migrate to other states,

including states that do not have a federally approved State Plan for regulation of occupational 

safety and health. It is common for low-wage construction workers and agricultural workers to 

change employers frequently during their seasonal work and, increasingly, these industries are 

relying on temporary labor supplied by off-site agencies that do not provide training appropriate 
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to all of the worksites where an employee might be assigned. California enforces worker health 

and safety protections under its federal OSHA-approved State Plan. Since 2005 those 

protections have included an outdoor heat standard. Title 8 Cal. Code of Regulations § 3395.

Amici’s interest in the outcome of this case arises from its representation of California workers 

who, while employed outside of the state, may be subjected to less protective heat standards and 

at a greater risk for heat-related illness or death.

Amici support the position of the Secretary in this matter and join in the argument 

submitted by the North America’s Building Trades Unions (NABTU) in their amicus curiae 

brief.

In this brief, Amici will provide information about the historical impact of enforcing 

California’s heat standard since 2005. Amici will address the importance of the various factors 

considered by the Secretary when issuing the citations, particularly the lack of training and 

enhanced observation of new employees. The analysis will address Commission’s question 

regarding “Whether an employer’s knowledge or lack of knowledge of its employees’ underlying 

health conditions or ages ... are relevant to the Secretary’s burden to establish a violation of the 

general duty clause.” 

BACKGROUND

Heat illness has been an identified occupational hazard for decades. State and national 

agencies, industry safety consultants and academic institutions have examined incidents of 

illness and death in thousands of studies.1 NIOSH’s 2016 comprehensive update of its 

 1 A search using the term “heat illness” on the CDC/NIOSH website yielded 2,216 results 

including studies, reports, blogs, advisories and other publications, see:

https://search.cdc.gov/search/?subset=NIOSH&query=heat+illness&utf8=%E2%9C%93&affiliat

e=cdc-main&sitelimit=www.cdc.gov%2Fniosh+%7C+blogs.cdc.gov%2Fniosh-scienceblog%2F. 
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“Occupational Exposure to Heat and Hot Environments”2 report relies upon hundreds of studies, 

and reports analyzing the developments in understanding the impact of heat in an occupational 

setting. While specific recommendations vary, there are generally accepted hazard indicators 

and preventative measures that form the core of industry, agency and medical recommendations 

about how to address the risk of illness and death from occupational heat stress. These include 

heat index monitoring, acclimatization, the availability of shade, hydration and training.3 

Since California adopted heat illness regulations in 2005, Cal/OSHA has documented 

dramatic reductions in the number of heat fatalities per year. In 2015, there was one confirmed 

heat-related fatality compared to 10 in 2005, when the initial emergency standard was enacted. 

In other words, California has seen a 90% decrease in heat-related fatalities in the workplace 

since 2005, while the nation as a whole has experienced a 38% decrease in reported heat 

fatalities during this same time, from 34 to 18.4

These achievements are attributable largely to heat illness prevention regulatory 

requirements (Title 8 California Code Regs. § 3395) that include general provisions including 

training of workers and supervisors in prevention, recognition and response to heat illness (id. § 

3395(h)), providing ready access to shade ( § 3395(d)), and increasing access to drinking water

(id. § 3395(c)). These general requirements are consistent with industry and medical 

recommendations about how to identify and address heat stress risk. However, California’s 

 2 This report can be found at https://www.cdc.gov/niosh/docs/2016-106/pdfs/2016-106.pdf . 3 Id. Executive Summary at v-viii; see also, “CDC Heat Stress Recommendations” found at 

https://www.cdc.gov/niosh/topics/heatstress/recommendations.html ; National Association of 

Homebuilders, Heat Stress Toolbox, found at https://www.nahb.org/en/research/safety/videotoolbox-talks/heat-stress.aspx . 4 Occupational Safety and Health Program, State OSHA Annual Report (SOAR) 9 (2016), 

available at https://www.dir.ca.gov/dosh/reports/State-OSHA-Annual-Report-(SOAR)-FY2016.pdf .
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experience demonstrates that enforcement of these generally accepted standards can reduce the 

incidence of heat related occupational deaths, as the dramatic reduction in heat related deaths 

occurred during a timeframe when California’s heat illness prevention standard was adopted and 

there was a significant increase in rate of compliance. As a result of effective enforcement 

measures, Cal/OSHA found a significant increase in the overall compliance rate with the Heat 

Illness Prevention standard, from 63.3% in 2015 to 73.7% in 2016.5 

Just as major gains have been possible in California through the state’s effective 

enforcement of heat illness prevention standards, so too are positive results achievable in health 

and safety protections at the national level through enforcement of the general duties clause. 

Such enforcement is appropriate given the reasonable expectation that employers like A.H.

Sturgill will know of and follow generally accepted practices regarding heat illness prevention as 

well as their own training protocols. In this case, the Secretary’s citations fell well within the 

criteria for enforcement of the general duties clause. Because the ALJ’s decision is supported by 

the evidence in the record, it should be affirmed.

ARGUMENT

1. THE SECRETARY MET ITS BURDEN OF PROVING THE EXISTENCE OF A 

RECOGNIZED HEAT ILLNESS HAZARD AND FAILURE TO IMPLEMENT 

REASONABLE ABATEMENT MEASURES.

A.H. Sturgill’s argues that the Secretary has not met its burden of showing the existence 

of a hazard by urging the Commission to disregard all of the evidence relied upon by the ALJ 

including Sturgill’s own training protocol, the Secretary’s guidelines, industry resources, 

Sturgill’s own foreman’s acknowledgment of the risk and the ultimate illness and death of an 

employee due to heat illness related complications. (Reply at pages 5-6) However, if an 

 5 Id. at 8.
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employer is allowed to ignore all such factors, there would never be a circumstance when the 

general duties clause may be used as the basis for a heat related citation. 

The Secretary’s evidence, and the ALJ findings established that information was known 

or available to the employer that was not properly taken into consideration when evaluating the 

health hazard confronting employees at its job site. The NWS heat index (CX-3, CX-4 at 2)

provides a bright line for assessing the likelihood of heat related illness. The National Roofing 

Contractors Association (NCRA) toolbox and toolbox talks on heat hazards and a pocket safety 

guide (CX-10; CX-14; RX- 9) demonstrate that assessment of heat risks is industry practice, as 

are recommended prevention measures such as acclimatization, clothing considerations and 

water consumption. These, in addition to the science-based guidelines provided by OSHA (X-5)

are all part of the general information that must be used when assessing the dangers at a 

workplace and designing abatement. Sturgill argues, in essence, that it need not consider these 

sources when it assesses danger, or designs abatement measures unless they are included in 

express regulations. (Reply Brief at p. 5). This head in the sand argument is completely 

contrary to the purpose of the general duties clause which both assumes that it is neither possible 

nor prudent to attempt to identify through regulation all potential work hazards or the appropriate 

steps to be taken. 29 U.S.C. § 654(a)(1). “The general duty clause should still be available for 

use by the Secretary, when an employer is violating a standard of health concerning a wellknown industrial ill that is recognized as a hazard by the industry through its own nationally 

accepted criteria...” Am. Smelting & Ref. Co. v. OSHRC, 501 F.2d 504, 514 (8th Cir. 1974).

Sturgill suggests that once it develops and implements its own hazard abatement 

approach consistent with industry practice, it may not be cited in the absence of a specific 

standard. (Reply at 4-5). This argument is inconsistent with the very notion of the general duties 
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clause. But that argument need not be addressed as the measures taken by A.H. Sturgill were 

inadequate by industry standards. (See Secretary’s Opening Brief at pp. 4, 14-15, 17.)

The law cannot countenance a general standard that allows an employer to ignore the 

breadth of resources available on heat illness, particularly in light of the documented deaths that 

have occurred as a result of this largely preventable hazard. Sturgill attempts to argue that an 

employer can ignore industry recommendations, guidelines from two federal agencies and its 

own training materials, but avoid liability when the predictable injury – or in this case, death –

occurs. Yet that contention runs directly counter to the fundamental purposes of the general 

duties clause. 

2. THERE IS NO NEED TO ADDRESS STURGILL’S KNOWLEDGE OF THE 

AGE OR HEALTH ISSUES OF ITS EMPLOYEES WHEN REVIEWING THE 

CITATION IN THIS CASE.

Amici join the Secretary, Amicus Curiae, NABTU and Respondent, all of whom share 

the position that knowledge of the age and health of M.R. is not relevant to any of the issues in 

this case. As pointed out by the Secretary and NABTU, focusing on this inquiry here, or when 

addressing enforcement of the general duties clause generally, will not promote the interests of 

employees or employers who are genuinely interested in maintaining a safe work place for its 

diverse workforce. Rather, it promotes the notion that health and safety precautions could be 

worker specific, both increasing complexity and the likelihood that certain worker characteristics 

such as age, sex, health, and physical attributes will be preferred. That is contrary to both worker 

protection laws and anti-discrimination protections and therefore should not be a part of the 

Commission’s analysis.
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3. STURGILL’S VIOLATION THE TRAINING REQUIREMENTS OF 29 C.F.R. § 

L 926.2L(B)(2) AS TO M.R. AND OTHER NEW EMPLOYEES IS ALSO 

EVIDENCE OF THE VIOLATION OF THE GENERAL DUTIES CLAUSE.

According to comparative data reported by California, for 2015 Agriculture had the 

highest overall fatality rate of 22.8% followed by construction at 10.1%. In California, for that 

year, the fatality rate for agriculture was 17.1% and construction was 6.8%, again the two highest 

industries in the state. Agriculture had the highest number of heat related deaths between 2005 

and 2016, followed by construction and landscaping.

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 These are highly seasonal industries, in 

California and throughout the country. The increased use of staffing agencies, as was the case 

here, means that “new” or “temporary” employees are showing up at these worksites on a more 

frequent basis.7 Sturgill did not dispute the fact that M.R. and other temporary employees were

not provided even the minimal training given to permanent employees. (ALJ Dec. 6-7.) 

Studies conducted by the California Division of Occupational Safety and Health of 

illnesses and injury incidence in California demonstrated that employees who are new on the job 

are far more likely to fall victim to heat illness. An analysis of reported heat illness incidents in 

2005 revealed that [r]oughly 80% of involved employees had been on the job for fewer than 4 

days.”8 A similar review of 2006 incidents found that “[t]he heat-related incident occurred on 

the first day of work or first day of heat wave for 15% of victims, 1-4 days (30%), 5-7 days 

 6 Occupational Safety and Health Program, supra at 6, 10. 7 OSHA, Protecting Temporary Workers May7, 2018, found at 

https://www.osha.gov/temp_worker; OSHA Policy Background on the Temporary Worker 

Initiative, July 15, 2014, found at 

https://www.osha.gov/temp_workers/Policy_Background_on_the_Temporary_Worker_Initiative

.html . 8 Cal/OSHA Investigations of Heat Related Illnesses, February 17, 2006, p.2, found at 

https://www.dir.ca.gov/oshsb/heatillnessinvestigations.pdf .
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(27%), 8-14 days (9%) and greater than 2 weeks (18%).”9 Sturgill had clearly included some 

level of training as part of its abatement practices for permanent employees and had provided 

them with the industry produced pocket safety guide including information on heat illness and 

toolbox talks on heat hazards. (ALJ Dec. at 6-7). These briefings would have familiarized M.R. 

with abatement measures such as acclimatization, recommended dress, recommended hydration 

the use of shade (see (CX-10; CX-14; RX- 9). But he and other temporary employees were 

denied the benefit of even these minimal measures, 10 given their lack of training. This 

demonstrates that the hazard was known, abatement measures recognized by the industry –

including training – were available, but were not followed by A.H. Sturgill all of which 

contributed to the unnecessary death of M.R.

CONCLUSION

This case demonstrates the need for enforcement of the general duties clause when wellestablished industry and agency recommendations are known to the employer, but ignored. It is 

particularly important in high hazard industries like construction and agriculture that workers be 

afforded the feasible protection measures available to employers, especially when industry 

standards embrace these protections. The case also demonstrates that training requirements, 

either regulatory or based on company practice, must be adhered to for all employees. 

Neglecting the training of new or temporary workers increases risk to all employees. The 

 9 Cal/OHSA investigations of Heat-Related Illness 2006, 4, available at

https://www.dir.ca.gov/dosh/heatillnessinvestigations-2006.pdf . 10 Of note, these materials also emphasize the need to move a victim to a shady area and take 

measures to cool the victim down. (See CX 14). Yet, M.R. was found laying in the sun by the 

EMT responders who themselves shaded him while performing emergency treatment. (ALJ

Dec. 6). This suggests a failure to follow the very abatement measures A.H. Sturgill relies on;

which was likely attributable to a lack of training, and certainly contributed to the hazard of the 

condition.
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Secretary’s actions in this case were consistent with his authority under the general duties clause 

and 29 C.F.R. § l 926.2l(b)(2). As the ALJ’s decision is based on findings supported by the 

record, it should be affirmed.

Respectfully submitted,

Dated: May 14, 2018 CALIFORNIA RURAL LEGAL ASSISTANCE, INC.

CALIFORNIA RURAL LEGAL ASSISTANCE

FOUNDATION

By: _______________________________________

Cynthia L. Rice (Cal. State Bar No. 87630)

 CALIFORNIA RURAL LEGAL ASSISTANCE, INC.

 1430 Franklin, Suite 103

 Oakland, CA 94612

 Telephone: (510) 267-0762

 Facsimile: (510) 267-0763

 crice@crla.org

Javier J. Castro (Cal State Bar No. 306294)

CALIFORNIA RURAL LEGAL ASSISTANCE, INC.

145 East Weber Avenue

Stockton, CA. 95202

Telephone: (209) 946-0605

Facsimile: (209) 946-5730

jcastro@crla.org

Ronald J. Melton (Cal State Bar No. 317630)

CALIFORNIA RURAL LEGAL ASSISTANCE, INC.

 449 Broadway Street

 El Centro, CA 92243

 Telephone: (760) 353-0220

 Facsimile: (760) 353-0047

 rmelton@crla.org

Attorneys for Amicus Curiae, California Rural Legal 

Assistance, Inc.