STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

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 the Division of Occupational Safety and Health (the Division).

JURISDICTION

On April 19, 2001, a representative of the Division conducted a permit inspection at a place of employment maintained by IME Station Maintenance, Inc. (Employer) at Cypress Avenue and Hilltop Drive, Redding, California (the site).

On May 25, 2001, the Division issued to Employer a citation for a serious violation of section 1541.1(a)(1) [cave-in protection]; a general violation of section 3202(a) [injury and illness prevention program]; and a regulatory violation of section 341(a)(1) [excavation permit] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations.1

Employer filed a timely appeal challenging the existence of the violations. After a hearing before an administrative law judge (ALJ) of the Board, a decision was issued on March 18, 2002, finding that the Division established the general violation of section 3203(a), and granting Employer’s appeal from the other citations.

The Division’s petition for reconsideration is dated April 23, 2002.

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 one day after the statutory deadline?

REASON FOR DENIAL
OF
PETITION FOR RECONSIDERATION

Labor Code section 6614(a) sets forth the deadline for filing a petition for reconsideration from an ALJ decision or an order 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 present case, the decision was served by mail on the parties on March 18, 2002. Because the decision was served by mail, the time for filing a petition was extended by 5 days. (See 8 Cal. Code Regs. § 348(c).) Thus, the last day to file a petition for reconsideration challenging the decision was April 22, 2002, 35 days after service of the decision. Therefore, the petition for reconsideration filed on April 23, 2002, was one day past the statutory deadline. Longstanding Board precedent establishes that the Board does not have jurisdiction to accept the petition.

The Board has had numerous situations in which to visit the issue of late petitions. For example, in Unocal Corporation2, 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 longstanding precedent on late petitions as stated in Dalton Construction Co.3. There, the employer filed its petition with the Board seven 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.4 and Edwin D. Chapman,5 the Division missed the statutory filing deadline by one day and the Board held that missing the deadline, by even 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 a 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 County Fire Protection Dist. (1963) 214 Cal.App.2d 1, 9.)

The Appeals Board finds that the Division did not file its petition within the statutorily prescribed time. Therefore, the Board is without jurisdiction to review the decision issued March 18, 2002.

DECISION

The petition for reconsideration is denied. The ALJ’s decision dated March 18, 2002, is affirmed.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: June 12, 2002

1 Unless otherwise specified all references are to sections of Title 8, California Code of Regulations.
2 Cal/OSHA App. 92-639, Denial of Petition for Reconsideration (May 13, 1993)
3 Cal/OSHA App. 83-987, Denial of Petition for Reconsideration (Feb 7, 1985)
4 Cal/OSHA App. 93-2220, Denial of Petition for Reconsideration (Mar 16, 1995)
5 Cal/OSHA App. 81-331, Denial of Petition for Reconsideration (Oct 1, 1981)