BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

CORNERSTONE PLASTER DESIGNS
4352 Cordero Drive
El Dorado Hills, CA 95762

 

                              Employer

 

Docket Nos.

01-R2D1-2939
through 2943

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 Cornerstone Plaster Designs (Employer).

JURISDICTION

On September 20, 2000, a representative of the Division of Occupational Safety and Health (the Division) conducted a programmed CSHIP inspection at a place of employment maintained by Employer at 3542 Almer & Highland View/Wincrest, El Dorado Hills, California (the site).

On December 12, 2000, the Division issued to Employer the following violations alleging serious violations of section 1644(a)(3) [scaffold legs on metal base plate]; and section 1644(a)(7) [scaffold plank width]; section 1644(a)(6) [guardrails on scaffolds]; section 1513(b) [open trench]; and general violations of section 3203(a) [written Injury & Illness Prevention Plan]; section 1513(a) [debris in work area]; and section 1512(c) [no first aid kit] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations.1

Employer filed a timely appeal contesting the existence of the alleged violations and the reasonableness of the proposed penalties.

A hearing was held before Bref French, Administrative Law Judge (ALJ) of the Board. Todd Ramos, Owner, represented Employer. Allyce Kimerling, Staff Counsel, represented the Division.

The ALJ issued a decision finding that the Division established all the violations and assessed penalties in the amount of $22,635. On August 12, 2002, Employer filed a timely petition for reconsideration. The Division filed an answer on September 12, 2002.

REASON FOR DENIAL
OF
PETITION FOR RECONSIDERATION

At the hearing, the ALJ found and our review of the record confirms that:

Todd Ramos (Ramos) testified that as the owner of Cornerstone Plaster Designs, a sole proprietorship, he has been in business since 1984 as a state licensed contractor. His license has currently lapsed for non-payment of fees. At the time of the Division’s inspection, Employer had subcontracted to do the stucco finishing work on the residence under the plastering subcontractor, Stellar Enterprises. Although Ramos hired the crew (between 8 and 9 employees), Stellar Enterprises financed the labor and materials costs. As a result of the violations, Employer was taken off the job in October, 2000, and Ramos fired the crew. Ramos started working for Stellar Enterprises as a superintendent, however, “for tax purposes” he is not considered a “straight employee” but rather receives paychecks in the name of Cornerstone Plaster Designs from Stellar Enterprises. Stellar Enterprises does not withhold any taxes or social security from his check. Ramos admitted that essentially his yearly salary of $60,000 is “paid under the table”.

Paraphrasing, Employer’s petition alleges, in relevant part, as follows:

He is losing his job, which means he might have to go out on his own again;
The judge abused her power by judging his character instead of just the facts;
The judge entrapped him by asking questions and raising inferences regarding how he was paid and, as a result, he was intimidated and admitted to being paid “under the table” which is not the case. He was not paid cash and he paid appropriate taxes on the money he received from Stellar;
The judge perceived him as a greedy contractor, intent on avoiding responsibility for his employees and the rules. That perception is entirely wrong. It must be based upon some prejudice, dislike, or need to take advantage of a simple and honest person.

Employer further alleges that he has new evidence that SJC, the scaffold company for Stellar Enterprises, set the scaffold and should be liable and that the general contractor should be responsible for the trench violations.

Finally, Employer contends that:

I was either discriminated against because of my race (associated by my last name) and taken advantage of due to lack of court knowledge. Or my religion because the Judge asked me what I did with a portion of my money and I replied “I give 10% to the church”. Maybe she didn’t like me giving my money there.

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

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.
That the order or decision was procured by fraud.
That the evidence does not justify the findings of fact.
That the petitioner has discovered new evidence material to him, which he could not, with reasonable diligence, have discovered and produced at the hearing.
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 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 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 allegations reveal them to be unduly conclusionary or based upon speculation which are not confirmed by our review of the record.

We have independently reviewed the evidence and the ALJ decision and are satisfied the ALJ decision properly applied the law to the facts of the case and that the ALJ’s conduct was legal and appropriate under the circumstances.

DECISION

The Board affirms the ALJ’s decision upholding three general and four serious violations and assessing civil penalties totaling $22,635.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: October 1, 2002

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