Cal/OSHA Failed To Quash Bias Findings Against Its Investigator

The Division of Occupational Safety and Health filed – and lost – an unusual motion in a case against an employer. Cal/OSHA attempted to expunge comments included in the decision by the administrative law judge that directly impugns the credibility of its inspector.

The decision, which is linked at the end of this article, included a lengthy statement with specificity by the judge about the bias and credibility of the inspector.

Some of the questions about Cal/OSHA’s filing, which was denied by the Judge, are:

• Was it an attempt to cover up an inspector’s bias against an employer by an inspector with clear and convincing animosity toward and employer?
• Could it be that the government is afraid of the fallout or of what an appellate judge might think?
• Or is this evidence that can be used by other employers when the same inspector is on the case?
• Is it, as DOSH contends, an attempt to “remove findings that are not essential to the Decision’s rulings”?
• And, finally, does the Division of Industrial Relations allow Cal/OSHA to harbor and protect inspectors who are demonstrably showing their negative personal feelings about industries or specific individual employers?

Read on and decide for yourself.

The employer is Sea World. It successfully accused the investigator in this case, Senior Safety Engineer Darcy Murphine, of considerable bias, so much so that it argued that all of the citations in the case should have been thrown out. And they all were, save one.

Administrative Law Judge Howard Chernin dismissed a serious violation and a violation of the serious injury/fatality reporting standard, and $23,000 in penalties. Sea World was ordered to pay only $560.

As it happens, the one violation Chernin found which there was evidence enough to uphold was a general violation on Sea World’s Injury and Illness Prevention Program. He ruled the IIPP was too hard for employees to understand and lacked several crucial elements. IIPP violations are common.

Chernin’s ruling that Murphine was biased, “evasive and obstinate,” he wrote, questioning her credibility. “Murphine’s tweets about Employer during an active investigation calls into question her and the Division’s impartiality and integrity during the investigation,” Chernin said.

But that wasn’t okay with Cal/OSHA. It attempted to expunge the Judge’s critical comments in its “request for modification of decision.”

Cal/OSHA argued of the decision that “finds bias on the part of the Division’s compliance officer,” that “These findings, however, are not relevant to the outcome.”

Chernin denied the motion, telling DOSH that the proper procedure is a Petition for Reconsideration before the full Appeals Board. It is unknown at this time if the Division will seek reconsideration.

Inspector’s Ideological Bias

Defense attorneys in Cal/OSHA cases contend that inspector bias is common. Cal-OSHA Reporter contacted some defense attorneys not directly connected to case. We provided anonymity. Here’s what they say about inspector bias.

“The typical inspector is biased against the employer,” says one attorney. He or she says there is a general bias against employers and even personal biases, such as appears to be in the case with Sea World.

“Most new inspectors are being hired out of college, don’t have a lot of real-world experience and don’t know the context in which the safety orders are applied,” the attorney tells Cal-OSHA Reporter. Another factor is that DOSH doesn’t seem to hire as many inspectors who have worked in the private sector as in the past. “The new hires at DOSH appear to be ideologically driven,” the attorney says. “They’re to the left of Obama.”

Another employer attorney agrees. “Stuff like this happens all the time, we just don’t have the evidence” to prove it, the lawyer says. “There is a general bias.” But the attorney defends the inspectors too, saying he or she believes that many times the bias is a matter of inspectors becoming jaded, similar to what the police experience. “All [the inspectors] see are serious accidents.”But the counsel says a different attitude in the Division has developed in the past five years or so. Cal/OSHA has long held a “pro-employee” attitude, which the lawyer says is a proper stance. “But now the feeling is you have to be anti-employer to be pro-employee.”

The attorney also agrees that personnel changes affect inspections. For instance, industrial hygienists now do engineering-related inspections. They might understand a regulation, “but applying it is the disconnect.”

Worker Burned – Whose Fault?

The incident that revived Sea World’s bias charges against Murphine occurred in September 2014, when a kitchen worker at the Water Stone Grill at the Aquatica park in Chula Vista suffered serious burns to a hand when she inadvertently immersed her hand in a deep fryer. Sea World asserts that it had sufficient protections in place to prevent such incidents and that the worker simply wasn’t paying attention to what she was doing.

Murphine was sent to investigate, which, given her history with this employer, was a questionable decision by the DOSH district office.

As a result of her investigation, Cal/OSHA cited Sea World for:

Allegedly failing to provide appropriate hand protection under General Industry Safety Orders §3384(a). “The employer did not select, provide and require employees to use the appropriate hand protection for the task which exposes them to the hazard of skin contact with hot oil,” the citation reads.

An Injury and Illness Prevention Program that was too hard for workers to navigate and was missing key elements, such as identifying and correcting workplace hazards and ensuring that employees comply with safe and health work practices. (GISO §3203(a)).

Failing to report the serious injury within the required eight hours, per §342(a). DOSH withdrew this citation before the hearing

ALJ Chernin vacated the hand-protection citation (General Industry Safety Orders §3384) because DOSH could not show that the protection she was provided – sleeves covered by Kevlar gloves and a long-handled skimmer – was inappropriate. The Division “failed to present evidence as to what would have been appropriate,” he held.

That left the IIPP violation, which the ALJ upheld despite his findings that Murphine was not credible and harbored bias against the employer. Defense counsel maintained that the violation should be dismissed because her bias “tainted the Division’s investigation.” In fact, counsel said, she “manufactured” the violation due to her bias.

But Chernin disagreed, saying despite her bias, there was “ample independent evidence” to demonstrate that Sea World’s IIPP didn’t comply with General Industry Safety Orders §3203. The problem? Employees had to “jump around” the IIPP to find the information they needed.

The Case for Murphine’s Bias

What did Murphine do that convinced Chernin she was not credible in her testimony? She has a long history with Sea world which is discussed below. For the instant case there’s all of this:

Central to the bias allegations in this case are tweets posted to Murphine’s Twitter account that appear to be critical of Sea World, which she identified as “SW.” Chernin stated, “Employer’s allegations go to the heart of fundamental due process and the integrity of the Division’s prosecutorial role.”

He also noted that while “public prosecutors” such as Cal/OSHA inspectors “have a duty of zealous advocacy,” there also is an expectation that they will exercise “objective and impartial consideration of each individual case.”

When she started the investigation in September 2014, Murphine asked for and received Sea World’s IIPP, but in fact only received part one of the sizable document. She expressed “surprise” at receiving an incomplete IIPP, because in her other investigations of Sea World, Murphine had determined that it met IIPP requirements.

But instead of clarifying whether she had the complete IIPP, Chernin writes, she simply issued a citation.

Sea World attorneys questioned Murphine about her tweets, and she admitted she created them during and after the investigation, but denied that Sea World was the subject. “Her denial was not credible,” Chenin says. “A reasonable observer would likely conclude from the tweets that Murphine holds a bias against Employer, given that all of her tweets about Employer are critical of its operations.”

Sea World also questioned her about a withdrawn 2006 narrative summary, which it argues led to a “grudge” against Sea World because of this “perceived rebuke.” Murphine denied that, but Chernin states:

“Murphine’s cross-examination was not credible due to her combativeness and evasiveness, leading [the ALJ] to conclude that more likely than not she harbors some bias against Employer as a result of the above-described actions.”

He did say that Murphine testified credibly about the difficulties workers had in navigating Sea World’s IIPP, adding that there was “ample evidence” to support a violation. The penalty is a mere $560.

Long History with Sea World

Murphine has a long and controversial history with Sea World. In 2006, after Cal/OSHA opened an investigation into a serious injury to a Sea World trainer, Murphine wrote an investigative summary stating that it was just a “matter of time” before a Sea World trainer would be killed because of its killer whale training practices.

DOSH retracted her summary.

Then, in 2014 following a Fed-OSHA investigation of Sea World’s Orlando, Florida, facility, Cal/OSHA initiated an investigation in San Diego, sending Murphine to conduct apparently clandelstine surveillance at the park. The park’s attorneys allege that she posed as a guest and surreptitiously took videos of a trainer interacting in what is known as the “Med” pool with a whale.

Sea World had stopped allowing trainers to interact with whales in the main pool after the 2006 incident, in which a trainer suffered a broken ankle, puncture wounds and almost drowned after an orca grabbed him by the ankle and dragged him under the water. This incident led to Murphine’s “matter of time” investigative note.

DOSH says the 2014 incident violated rules set down by Fed-OSHA in the Orlando case and cited the theme park to the tune of $25,000. The cases were similar: In the Orlando case a trainer was also dragged under the water by a whale, and was killed. The Cal/OSHA investigation was spurred by an anti-Sea World website called The Dodo. The site calls Sea World a “soulless corporation that mistreats and abuses its animals.”

Sea World says Fed-OSHA contacted Cal/OSHA after the a Dodo article was published, at which point it dispatched Murphine to the park, where she posed as a guest and videoed the training session. She was working with John Hargrove, a former Sea World trainer, who turned activist, the employer alleged.

The employer had taken aim at Murphine, calling her an animal rights axe “anti-Sea World” and animal rights activist “with an ax to grind.”

Cal/OSHA and Sea World settled the case, with the Division dropping all the citations and issuing a Special Order outlining how trainers should interact with whales. Sea World declared victory, saying its protocols already closely matched the Special Order.

The accompanying sidebars show the inconsistencies in Murphine’s sworn testimony versus an earlier deposition, and the anti-Sea World bias demonstrated by her Tweets.

Cal-OSHA Reporter posed more than a dozen questions to the Department of Industrial Relations about this unusual case, given the importance of holding officials like Cal/OSHA inspectors “to high ethical standards.”

We asked DOSH: why DOSH filed the request for modification on the decision; what steps it plans to take now that the request has been denied; why Murphine was assigned to the most recent Sea World case, given her history with the employer; will she be assigned to future Sea World cases, is she being disciplined for the tweets, or conversely, has she been promoted, as has been rumored; does DIR/DOSH have a policy on inspectors’ use of social media or is it contemplating such a policy; and is there a policy requiring inspectors to set aside their personal feelings or potential bias when assigned to inspect a particular business or industry?

The agency’s response is at right.