Filed 10/21/21 United Parcel Service v. Cal. OSHAB CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

UNITED PARCEL SERVICE,

Petitioner and Appellant,

v.

CALIFORNIA OCCUPATIONAL 

SAFETY AND HEALTH 

APPEALS BOARD,

Defendant and Respondent.

 B308218

 (Los Angeles County

 Super. Ct. No. 18STCP03195)

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.

____________________________________
2

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.

1 All undesignated regulation references will be to title 8 of 

the California Code of Regulations unless otherwise stated.
3

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, wellbuilt 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 
4

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 
5

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.
6

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
7

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 
8

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. 
9

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 
10

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. 
11

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.)
12

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 
13

(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 
14

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 ASTMcompliant 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.
15

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.