BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

 

In the Matter of the Appeal of:

STRONG ELECTRIC

P. O. Box 9049

South Laguna Beach, CA 92652

                              Employer

 

 

Docket No.

01-R3D1-244 and 245

 

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 Brian Strong dba Strong Electric (Employer).

JURISDICTION

On October 11, 2000, a representative of the Division of Occupational Safety and Health (the Division) conducted a complaint inspection at a place of employment maintained by Employer at 1077 Miramar, Laguna Beach, California (the site).

On November 10, 2000, the Division cited Employer for the following alleged violations of the occupational safety and health standards and orders found in Title 8, California Code of Regulations.

Cit./Item Section Classification Penalty
1 1

341(a)(1)

Regulatory $ 175
  [excavation permit]    
       
2 1509(a) General $85
  [use of defective pneumatic hammer]    
       
3 1541(k)(1) General $85
  [daily excavation inspection]    
       
2 1541.1(a)(1) Serious $2,360
  [cave-in protection]    

 

Employer filed a timely appeal contending that the safety orders were not violated.

A pre-hearing conference was held on May 29, 2001, before an administrative law judge (ALJ) of the Board. Brian Strong, Owner, represented Employer. Robert Klein, Safety Engineer, represented the Division.

At the pre-hearing conference, the Division moved to withdraw Citation No. 2 based on insufficient evidence and Employer moved to withdraw its appeal from Citation No. 1.

The motions were granted and an Order was issued by the ALJ on June 20, 2001 setting forth the agreement of the parties.

On July 17, 2001 Employer filed a petition for reconsideration. The petition for reconsideration was not verified under oath or served on the Division as required by Labor Code sections 6616 and 6619. Employer subsequently served the verified petition on the Division on August 24, 2001. The Division did not file an answer.

REASON FOR DENIAL
OF
PETITION FOR RECONSIDERATION

Pursuant to Labor Code section 6616, a petition for reconsideration must: “[S]et 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 and unlawful….” And, the petition must be based on one or more of the following grounds, specified in Labor Code section 6617:

(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.

Employer does not allege in its petition that the Appeals Board acted in excess of its powers in granting the motions that disposed of the case or that the order was procured by fraud.

Nor does the petition allege newly discovered evidence. There is no allegation in the petition that the evidence Employer now wants the Board to review was not available for discussion at the prehearing conference. It appears that Employer merely has had a change of heart concerning the agreement reached with the Division at the prehearing conference.

The petition requests:

[T]otal dismissal of Citation 1, Items 1, 2, and 3. Also due to lack of evidence; insufficient evidence.

The petition further states:

Item (1) less that 5 ft., see enclosed photo’s.
Item (2) See enclosed photo’s, Prevention program and require Postings by Labor Board located in small corner of garage.
Item (3) See yellow card provided by Edison issued 10/10/00, Showing Edison Daily Inspection Notes
Thank for your reconsideration and please dismiss with prejudice.

This case involved a telephonic pre-hearing conference, which did not include the taking of testimony. The ALJ’s order is based solely on an agreement between the Division and Employer. The Division agreed to withdraw Citation No. 2 and Employer moved to withdraw its appeal from Citation No. 1.

Section 391 governs the format for filing petitions for reconsideration. It states:

A petition for reconsideration shall set forth specifically and in full detail the grounds upon which the petitioner considers the order or decision to be unjust or unlawful, and every issue to be considered by the Appeals Board on reconsideration. Any objection or issue not raised in the petition for reconsideration is deemed waived by the petitioner. 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.

In this case we find the petition is unduly conclusionary and contains no more than an allegation of a statutory ground for reconsideration without any supporting evidence.

Further, the petition does not comply with section 391 as it only requests review of Employer’s decision to withdraw its appeal asking that we now unilaterally, without benefit of hearing or other due process measures, dismiss the Division’s citation. This request is without merit.

Employer’s petition for reconsideration is denied.

DECISION

The Board affirms the ALJ’s order and the assessment of civil penalties totaling $345.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: August 31, 2001