BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

ENVIRONMENTAL ENGINEERING TECHNOLOGY
529 West 182nd Street
Gardena, CA 90248

 

                              Employer

 

 

Docket No.

00-R3D1-2305

 

DENIAL OF PETITION

FOR RECONSIDERATION


The Occupational Safety and Health Appeals Board (Board), acting pursuant to authority vested in it by the California Labor Code hereby denies the petition for reconsideration filed in the above-entitled matter by Environmental Engineering Technology (Employer).

JURISDICTION

On December 13, 1999, a representative of the Division of Occupational Safety and Health (the Division) conducted an inspection at a place of employment maintained by Employer at 1315 South Alameda Street, Compton, California (the site).

On June 8, 2000, the Division issued to Employer citations for regulatory violations of section 341.6(a) [engaged in asbestos work with expired registration] and section 341.9(a) [removal of asbestos containing floor tile without notifying the Division of Occupational Safety and Health] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations.1

Employer through its representative Dan Napier, Certified Industrial Hygienist, filed an appeal with the Board on June 28, 2000.

On November 6, 2000, all parties participated in a pre-hearing conference by telephone. The Division was represented by Albert Cardenas, Staff Counsel, and Mr. Napier represented Employer. The case was not settled and was ordered to proceed to hearing.

On December 12, 2000, all parties were served with a “Notice of Hearing” notifying the parties that a hearing was set for March 9, 2001, at 9:00 a.m. at the Division of Occupational Safety and Health located at 2100 E. Katella Avenue, Suite 265, Anaheim, California 92806.

On March 6, 2001, Mr. Napier sent the following letter to Vincent Fazzino:

Dear Mr. Fazzino: I have tried to contact you, but you have not returned calls or made any attempt to contact me. There is a DOSH Hearing on the San Bernardino matter on Friday March 9, 2001. I am resigning representing you in any and all matters. The bills for the work already completed have not been paid. Further I am unable to meet and confer with you as you have not returned calls or discussed these matters. I have been able to negotiate the serous penalty, and obtain a favorable settlement with DOSH, however you have refused to discuss those settlement offers with me or DOSH,

You will be required to present your case on Friday at the Anaheim office of DOSH at 0900. Sincerely, Dan Napier Certified Industrial Hygienist.

On March 30, 2001, Mr. Fazzino sent the following letter to Mr. Napier at 15342 Hawthorne Boulevard, Suite 400, Lawndale, California:

Dear Mr. Napier, The purpose of this correspondence is to notify you of my demand for the immediate return of all my case files that are now in your possession. As you are already aware on or about March 9, 2001, you resigned from my employment as an industrial hygienst in regards to my dealings with DOSH. At the time of your resignation you were in possession of said DOSH files, aforesaid files to date have not been returned. This letter will remind you of your obligations and your duty of care to return my files forthwith. Further should I endure harm or prejudice to my case, due to your refusal to act responsibly I will hold you legally liable in that event.
Sincerely Best Regards Vincent Fazzino

On March 9, 2001, Environmental Engineering Technology failed to appear at the duly noticed hearing in the above-entitled proceeding. On April 2, 2001, employer sent a letter to the Board stating that their representative had “abandoned” his services in the matter, had been difficult to work with, uncooperative and unresponsive and Employer asked the Board to order the representative to return Employer’s file to them. No mention was made of Employer’s failure to appear at the hearing.

On October 5, 2001, the Board sent Employer by certified mail, return receipt requested, a “Notice of Intent to Dismiss Appeals.” The notice gave Employer 10 days to provide the Appeals Board with a statement containing sufficient facts to show that Employer’s failure to appear at the hearing was reasonable and for good cause. No statement was received by the Appeals Board. Employer received the certified Notice on October 9, 2001.

On April 15, 2002, the Appeals Board issued an “Order Dismissing Appeal.”

On May 15, 2002, Employer filed an unverified petition for reconsideration alleging in relevant part that:

The main reason for this appeal is because I strongly believe that the finding has no merit into it; ‘(because Employer was not the contractor on the job) and … I do not believe that I was treated with dignity but rather as acrimony and I want to clear my name of any bad reputation if there is any.

Employer further informed the Board that:

I would also like to bring into your attention that the Federal Bureau of Investigation raid my office and warehouse and confiscated my books and records and so far after passing of more than two years have not released any of them to me and have not indicated or filed of any kind.

On May 23, 2002, the Board sent the following letter to Mr. Fazzino:

Dear Mr. Fazzino:

The Board is in receipt of the petition for reconsideration you recently filed on May 15, 2002, above-cited matter. Labor Code 6616 requires verification of the petition which is explained in the attached outline. You must also attach a proof of service to your petition stating that you have served all parties.

Therefore, you must do the following: (1) mail a copy of the petition to the Division and to the Legal Unit at the address listed below, and (2) send to the Board a proof of service stating that a copy of the petition was mailed to that address. The following is the address of the Division and the Legal Unit to serve:

DOSH–Legal Unit District Manager
Albert Cardenas, Staff Counsel 2100 E. Katella Avenue, Rm. 140
320 W. 4th Street, #400 Anaheim, CA 92806
Los Angeles, CA 90013

IMPORTANT: Further action cannot be taken until the Board receives a verification and proof of service of the petition for reconsideration. The verification and proof of service must be served upon the Appeals Board and the Division of Occupational Safety and Health no later than five days from the date of this letter. If you fail to do so, the petition may be dismissed.

If you have any questions, please call this office immediately at (916) 274-5751.

REASON FOR DENIAL
OF
PETITION FOR RECONSIDERATION

In Timothy J. Kock, Cal/OSHA App. 01-9135, Denial of Petition for Reconsideration (Nov. 20, 2001), we held that:

[A]ppeals to the Board should be pursued by the appealing party with the degree of care a reasonably prudent person would undertake in dealing with his or her most important legal affairs. It is incumbent upon an appealing party to become familiar with the appeal process and requirements in order to further its interests in an orderly disposition of the appeal by the Board, affording due process to all of the parties, and avoiding undue prejudice to the Division and any third party to the appeal.

In this case, Employer failed to appear at the scheduled and duly noticed hearing on March 9, 2001.2

Employer did not bring any motion before the Board pursuant to section 383 to explain why it did not appear on March 9, 2001. Mr. Napier’s letter to Mr. Fazzino dated March 30, 2001, also does not present the Board with any insight as to why Employer did not appear at the scheduled hearing.

Mr. Fazzino also did not respond to the Board’s “Notice of Intent to Dismiss Appeals” which was sent by the Board by certified mail on October 5, 2001, and received by Employer on October 9, 2001.

The Notice stated that Employer’s appeal would be dismissed unless Employer provided the Board with a written motion to reinstate the appeal within 10 days. (See §383(b).) The Notice explained that the written motion must contain sufficient facts to establish that Employer’s failure to appear at the hearing was reasonable and for good cause.

Employer did not send to the Board any explanation for its failure to appear at the hearing and therefore failed to provide good cause to reschedule the hearing.

Based upon Employer’s failure to provide good cause to reinstate his appeal, the Board dismissed Employer’s appeal on April 15, 2002. Employer filed an unverified petition for reconsideration. That petition does not satisfy any of the grounds listed in Labor Code section 6617. In addition, Employer did not file a timely verification and proof of service although it should be noted that timely filing of those documents would not change our decision in this case3.

DECISION

The Board denies Employer’s petition for reconsideration and affirms the Order Dismissing Appeal issued April 15, 2002.

MARCY V. SAUNDERS, Member
GERALD P. O’HARA, Member

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: July 3, 2002

1 Unless otherwise specified all references are to sections of Title 8, California Code of Regulations.
2 We disapprove of the manner in which Mr. Napier withdrew from the case. However, under the facts of this case we believe that had Mr. Fazzino had a viable defense he would have appeared on March 9, 2001, to testify.
3 The letter from the Board to Employer explaining the verification and proof of service requirements was sent to Employer on May 23, 2002 and contained a five-day deadline to respond. Employer responded on June 11, 2002 by sending in a verification and an incorrect proof of service, which was received by the Board on June 13, 2002.