BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

RAFAEL V. ANDRADE, FLC

2291 Learned Avenue

Stockton, CA 95205

                              Employer

 

 

Docket No.

00-R2D2-4233

 

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 Rafael V. Andrade, FLC (Employer).

JURISDICTION

On May 24, 2000, a representative of the Division of Occupational Safety and Health (the Division), inspected an orchard, at a place of employment maintained by Employer at Comstock and Duncan, Linden, California (the site).

On November 21, 2000, the Division issued a citation to Employer alleging general violations of sections 3439(a) [first-aid materials not available at site]; 3457(c)(2)(A) [insufficient number of toilets provided at site]; and 3457(c)(3)(G)3 [no soap/cleansing agent] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations.1

Employer timely appealed, denying the existence of the alleged violations.

A hearing was held before Manuel M. Melgoza, Administrative Law Judge (ALJ) of the Board. Eduardo Araya, bookkeeper, represented Employer. John P. Caynak, Jr., district manager, represented the Division.

On September 13, 2001, the ALJ issued a decision affirming the cited violations. Employer filed a timely petition for reconsideration on October 17, 2001.

ISSUE

Has Employer set forth a valid ground for the Board to grant reconsideration?

REASONS FOR DENIAL
OF
PETITION FOR RECONSIDERATION

Employer alleges in its petition:

1. The Board or administrative law judge acted without or in excess of its powers. The fines for the alleged violations are excessive and did not take into account any information and/or explanation I provided.

2. The evidence does not justify the findings of fact made by the Board or administrative law judge. The summary contains factual errors, indicating to me that the full scope of the facts was not clearly understood.

3. At the original hearing, I did not ask Fidel Andrade to be a witness, as I expected that the information I presented would be sufficient. I have asked him to appear at the reconsideration hearing and barring any unforeseen circumstances, he will be present.

4. The findings of fact made by the Board or administrative law judge do not support the order or decision. The department’s testimony was given full credibility, eventhough the information under which I am being penalized, was not corroborated at the field, by the inspector. On the contrary, my explanations were not given the right consideration and instead were made to fit or accommodate the position of the department.

Labor Code section 6617 sets forth five grounds upon which a petition for reconsideration may be based:

(a) That by such order or decision made and filed by the appeals board or hearing officer, the appeals board acted without or in excess of its powers.
(b) That the order or decision was procured by fraud.
(c) That the evidence does not justify the findings of fact.
(d) That the petitioner has discovered new evidence material to him, which he could not, with reasonable diligence, have discovered and produced at the hearing.
(e) That the findings of fact do not support the order or decision.

Labor Code section 6616 provides that a petition for reconsideration must, “set forth specifically and in full detail the grounds upon which the petitioner considers the … decision made … by the … hearing officer to be unjust or unlawful, and every issue to be considered by the appeals board .…” The Board has adopted regulations implementing this statutory provision. Section 391 of the regulations states that, “… The petition for reconsideration will be denied if it contains no more than allegations of the statutory grounds for reconsideration, unsupported by specific references to the record and principles of law involved.

The Board has consistently rejected petitions that do not contain sufficient details of the grounds or references to the hearing record. (See, e.g., Lusardi Construction Company, Cal/OSHA App. 86-318, Denial of Petition for Reconsideration (Oct. 29, 1986); Paterson Pacific Parchment Co., Cal/OSHA App. 80-1238, Denial of Petition for Reconsideration (Apr. 22, 1981).)

In this case, Employer is apparently not satisfied with the credibility determinations made by the ALJ.

It is the responsibility of the ALJ to listen to the testimony given, calculate the demeanor of the witnesses; assess the credibility of the witnesses; and assign weight to conflicting testimony. The findings of the ALJ are entitled to deference unless they are opposed by evidence of considerable weight. (Lamb v. Workmen’s Compensation Appeals Bd., (1974) 11 C.3d 274, 280.)

Employer’s dissatisfaction with the amount of the penalties imposed, without explaining in detail why the penalties imposed are legally incorrect, is insufficient reason to merit granting the petition for reconsideration.

Suggesting at the petition for reconsideration level that the Board entertain the testimony of Fidel Andrade also does not warrant reconsideration. There has not been a showing by Employer that the evidence sought to be considered through Mr. Andrade could not have been presented at the hearing and therefore is “new evidence” within the meaning of Labor code section 6617(d).

Employer’s petition for reconsideration is denied.

DECISION

The Board affirms the ALJ’s decision finding three general violations and assessing civil penalties totaling $1,635.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: December 7, 2001


1 Unless otherwise specified all references are to sections of Title 8, California Code of Regulations.