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Cal/OSHA’s Abuse of the 1BY Process Continues

We continue to recommend that employers say “No thanks” to the offer to participate in the pre-citation “interactive” process kicked off by an Intent to Issue Citation letter, known by its form number 1BY. But don’t take our word for it.

This e-mail was sent to Cal/OSHA  following the issuance of citations which were based in part on information volunteered in response to a 1BY letter. It is presented here verbatim, except for redaction of the names of the writer, the inspector and the employer, although we expect there was no need for that. We expect that this e-mail has been passed around Cal/OSHA and has generated much mirth.

<<Mr. [DELETED],

Well I hate to say it but my friends, CALOSHA friends and the lawyers were all absolutely right.  The1BY process is a self-incrimination process.  You took my words twisted them some and came out with two serious citations just like everyone told me would happen.  I am not sure anything will happen on Tuesday as I have now been burned by trying to work with you, the District Manager and Regional Manager…I can’t trust the lot of you because there was no trust to begin with on your side.  I was a friend of CALOSHA but now know I as the fool for believing.  Shame on me.  Everyone warned me, but I stood up for the process and now being burned, you could say the bridge has been burned for me as well.  I was a huge supporter of CALOSHA but now after going through this process with your Regional manager, District Manager and you, have made me an enemy and untrusting of you and the process.  Remember when you told me it would all be fine?

The 1BY is an incrimination process nothing more.  I should have retained a lawyer for the company and now more than every probably need one, because how do I trust you and your word?  [We have] worked and developed our program with CALOSHA and worked very hard to have an exemplary program.  The program we have worked and worked well but you found the only miniscule flaw and pounced on it.  Found one and made two citations, congratulations the three of you should be proud.

Funny last week many people wanted me to take the exams to join CALOSHA, there is no way I could work for an organization that talks out of both sides of its mouth, my integrity is too high for that.


If anyone at Cal/OSHA should ever ask you why they are not trusted or respected by the “regulated community,” show them this letter.



Comment from Anonymous
Time March 10, 2014 at 9:14 am

I agree completely. A similar situation happened to us where a consultation officer told us one thing, we followed those instructions, then an enforcement officer fined us. At the appeals meeting with the District Manager, he went so far as to call the consultation officer in front of us, ask him if he told us this info, the consultation officer said ‘no’ (lied through his teeth) and the District Manager started laughing, hung up and accused us of making the story up. That was the day I no longer respected Cal OSHA. I think this particular District Manager is no longer employed with this particular office, but he presented as an arrogant, pompous and overconfident scumbag. Cal OSHA needs to seriously get its act together.

Comment from Admin
Time March 10, 2014 at 10:04 am

Anonymous’s comment raises two points worth blogs in themselves. First, we find that employers are increasingly leery of doing anything to upset Cal/OSHA, fearing that questioning Cal/OSHA’s actions or filing an appeal will lead to, how shall we say this, “heightened scrutiny” in the future.
Second, we have strongly recommended Consultation in the past, and will continue to do so. The Enforcement folks are usually appreciative, though not always, when employers show their pro-active side. In this case, however, Anonymous should have documented the conversation with Consultation in one of two ways: Either by getting the Consultation inspector to agree to provide a written letter or e-mail confirming what they talked about, or by sending a confirming letter to Consultation describing their agreement and asking to be notified if their recollection is in any way inaccurate.
We suspect that Anonymous’ discussion was informal; that is, not part of a response by Consultation to a formal request for assistance. We will write about how employers can gain valuable assistance from Consultation and avoid the problem Anonymous faced in a future blog.

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