BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

OLTMANS CONSTRUCTION COMPANY

10005 Mission Mill Road

Whittier, CA 90601-1739

                              Employer

 

 

Docket No.

00-R3D1-618

 

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 Oltmans Construction Company (Employer).

JURISDICTION

On October 15, 1999, a representative of the Division of Occupational Safety and Health (the Division) conducted a planned programmed investigation at a place of employment maintained by Employer at the corner of California and Bison, Irvine, California (the site).

On November 12, 1999, the Division issued to Employer a citation alleging a serious violation of section 1541.1(a)(1) [unprotected excavation] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations.1

Employer filed a timely appeal.

A hearing was held before Ashaki A. Hesson, Administrative Law Judge (ALJ) of the Board. Patricia McNamara, Corporate Safety Director, represented Employer. Robert D. Klein, Safety Engineer, represented the Division.

On December 28, 2001, the ALJ issued a decision finding that the Division established the violation. On January 28, 2002, Employer filed a petition for reconsideration.

ISSUE

Has Employer stated sufficient grounds for the Board to grant its petition for reconsideration?

REASONS FOR DENIAL
OF
PETITION FOR RECONSIDERATION

Employer’s petition states that the grounds for its reconsideration are that:

1. The safety order was not violated.
2. The classification (i.e., serious, willful, repeat) is incorrect.
3. That the proposed penalty is unreasonable.
4. Failure to follow policy and procedures.
5. Violation of Fourth Amendment rights.
6. Any other legal or factual issues that may apply.
7. That the evidence presented at the hearing supports the above facts and does not justify the findings of fact.
8. That the findings of fact do not support the order or decision.
9. 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.
10. That the appeals board failed to render its decision within thirty days of
the hearing but rather granted itself a fifteen month extension.

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:

The petition for reconsideration shall set forth specifically and in full detail the grounds upon which the petitioner considers the final order or decision made and filed by the appeals board or a hearing officer to be unjust or unlawful, and every issue to be considered by the appeals board.

These requirements are mandatory. Louis G. Beary Plastering, Cal/OSHA App. 76-1296, Denial of Petition for Reconsideration (Nov. 14, 1977). Employer’s petition plainly failed to meet these statutory requirements.

The Board has adopted regulations implementing this statutory provision. Section 391 of the regulations states that “…[t]he petition for reconsideration will be denied if it contains no more that 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 detail. (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).) The Board stated the policy underlying this specificity rule in Lusardi Construction Company, supra:

Without specific and detailed allegations in the petition, there is nothing of substance for the Appeals Board to review and weigh against the judge’s findings and decision to determine whether or not to grant Employer’s petition for reconsideration.

Our review of Employer’s first through ninth allegations reveals them to be conclusionary and without merit and we find that these allegations do not rise to the level of specificity that warrant granting the petition for reconsideration.

We addressed the legal merit of Employer’s tenth allegation in Dayton Hudson, Cal/OSHA App. 99-912, Decision After Reconsideration (Dec. 10, 2001). In that case, we held that the Board does not lose jurisdiction if the decision of the ALJ is not filed within 30 days of the hearing or date of submittal. In Dayton Hudson, supra, we relied upon an earlier decision, Roof Structures, Inc., Cal/OSHA App. 78-478, Decision After Reconsideration (Jun. 30, 1981).

In that case, citing Coombs v. Industrial Acc. Com., (1926) 76 Cal.App. 565 and Peak v. Industrial Acc. Com., (1947) 82 Cal.App.2d 926, we held that the statutory language was directory and not mandatory. We held that, “[t]o follow Employer’s argument to its logical conclusion would mean that if an administrative law judge failed to file his decision within the prescribed period, the Appeals Board would lose jurisdiction to hear the appeal and the Division’s citation and penalty would be final. Such a result was surely not intended by the Legislature or desired by Employer.”

In Novo-Rados Enterprises, Cal/OSHA App. 76-305, Decision After Reconsideration (Feb. 23, 1983) while addressing the same issue, we noted that, “[t]he courts have gone much further, characterizing the position, like that taken here by Employer as ‘absurd’.”

Based on Board precedent, we find that the ALJ’s issuance of a decision more than 30 days after the hearing did not divest the Board of its jurisdiction to determine the matters, which are the subject of this appeal.

DECISION

The Board affirms the ALJ’s decision and the assessment of a $560 civil penalty.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: March 19, 2002

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