BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

LA MEDITERRANEE
2936 College Avenue
Berkeley, CA 94705

 

                              Employer

 

 

Docket No.

00-R1D4-4040
and 4041

 

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 proceeding by La Mediterranee, (Employer).

JURISDICTION

From April 24, 2000, through October 16, 2000, the Division of Occupational Safety and Health (Division) conducted an accident investigation at a place of employment maintained by Employer at 2936 College Avenue, Berkeley, California (the site). On October 17, 2000 the Division issued to Employer one citation alleging one regulatory and one general violation and one citation alleging one serious violation of the occupational safety and health standards and orders found in Title 8, California Code of Regulations with proposed civil penalties totaling $14,800.

Employer initiated a timely appeal to the citations. A hearing was held before Bref French, Administrative Law Judge (ALJ) for the Board, at Oakland, California. Brad Knypstra, Attorney at Law, represented Employer. Michael Horowitz, District Manager, represented the Division. William Resnick, Attorney at Law, represented the third party, Celia Roe.

. On October 15, 2001, the ALJ issued a decision denying Employer's appeal and assessing civil penalties of $14,800. An Amended Decision1 issued on October 30, 2001 correcting misspelled words in the October 15, 2001 Decision.

On February 12, 2002, Employer filed a petition for reconsideration with the Board. The Division filed an answer on March 1, 2002. The third party did not file an answer. On March 15, 2002, Employer filed a “Supplemental Response To Employer La Meditarranee’s Petition For Reconsideration.”


EVIDENCE

In making this decision, the Board relies upon its independent review of the entire file in this case. The Board has taken no additional evidence.

ISSUE

Does the Appeals Board have jurisdiction to consider a petition for reconsideration that was filed with the Board 85 days after the statutory deadline?

REASONS FOR DENIAL
OF
PETITION FOR RECONSIDERATION

Labor Code section 6614(a) sets forth the deadline for filing a petition for reconsideration from a decision of the Board:

At any time within 30 days after the service of any final order or decision made and filed by the appeals board or a hearing officer, any [aggrieved] party … may petition the appeals board for reconsideration … . Such petition shall be made only within the time and in the manner specified in this chapter.

A regulation of the Board provides that “[t]he petition for reconsideration shall be filed at the Appeals Board in Sacramento, California, and shall be deemed filed on the date it is delivered or mailed to the Appeals Board.” (8 Cal. Code Regs. § 390(a).)

In the instant case, the decision was served by mail on the parties on October 15, 2001. Because the decision was served by mail, the time for filing a petition for reconsideration was extended by 5 days. (See § 348(c).) Thus, the last day to file a petition for reconsideration challenging the decision was November 19, 2001, 35 days after service of the decision. Therefore, the petition for reconsideration filed on February 12, 2002, was filed 85 days past the statutory deadline. Longstanding Board precedent establishes that the Board does not have jurisdiction to accept the petition.2

The Board has had numerous situations in which to visit the issue of late petitions. For example, in Unocal Corporation, Cal/OSHA App. 92-639, Denial of Petition for Reconsideration (May 13, 1993), the Board was also presented with a late petition for reconsideration. There, the petition was filed with the Board 40 days after the statutory deadline. In rejecting the late petition, the Board followed its long-standing precedent on late petitions as stated in Dalton Construction Co., Cal/OSHA App. 83-987, Denial of Petition for Reconsideration (Feb. 7, 1985). In Dalton the employer filed its petition with the Board 7 days late. In rejecting the petition the Board held that:

The requirement that a petition for reconsideration be mailed or delivered to the Appeals Board within 30 days of the issuance of the decision to be reconsidered is jurisdictional and the Appeals Board is without power to enlarge the time for the filing of a petition for reconsideration. (Id. at p.3 Emphasis added.)

Also, in both Beutler Heating & Air Conditioning, Inc., Cal/OSHA App. 93-2220, Denial of Petition for Reconsideration (Mar. 16, 1995) and Edwin D. Chapman, Cal/OSHA App. 81-331, Denial of Petition for Reconsideration (Oct. 1, 1981), the Division missed the statutory filing deadline by one day and the Board held that missing the deadline, even by one day, was fatal to the Division’s petitions.

The courts and other adjudicatory agencies have reached the same conclusion when interpreting similar statutory filing deadlines. It is well established that if a time limitation for filing a document with an agency is jurisdictional, and the document is filed beyond the time limit, neither the agency nor a court may grant relief since they lack jurisdiction over the matter. (See Humbert v. Castro Valley Co. Fire Protection Dist. (1963) 214 Cal.App.2d 1, 9)

The Appeals Board finds that Employer did not file its petition for reconsideration within the statutorily prescribed time. Therefore, the Board is without jurisdiction to review the decision issued October 15, 2001.

DECISION

The petition for reconsideration is denied.


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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: April 4, 2002

1 The Amended Decision was issued nunc pro tunc; i.e., entry is an entry made now of something actually previously done to have effect of former date.
2 In its petition, Employer alleges that newly discovered evidence requires the hearing be re-opened. We need not reach this issue as the Board is without jurisdiction as discussed in this decision.