BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD


In the Matter of the Appeal of:

P & L MARBLE (WEST), INC.
dba P & L Marble, Inc.,
9711 East Valley Boulevard, Suite B
Rosemead, CA 91770

                              Employer

 

Docket Nos.

01-R4D2-3212
and 3213

 

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 P & L Marble (West), Inc. (Employer).

JURISDICTION

On February 1, 2001, a representative of the Division of Occupational Safety and Health (the Division) conducted an accident inspection at a place of employment maintained by Employer at 9711 East Valley Boulevard, Rosemead, California (the site). The Division issued to Employer citations alleging a serious violation of section 3704 [securing loads]; general violations of sections 3668(a)(1) [safe operation], 2340.16(a) [work space], 3203(a) [IIPP documentation]; and regulatory violations of sections 342(a) [reporting accident] and 3664(a)(1) [operating rules] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations.1 The Division proposed civil penalties totaling $14,695 for the violations.

Employer filed a timely appeal contesting the existence of the alleged violations, the classifications, and the reasonableness of the proposed penalties, and raising the independent employee action defense.

On September 16, 2002, a telephonic prehearing conference was held before Jack L. Hesson, Administrative Law Judge (ALJ) of the Board. Robert S. Altagen, Attorney, represented Employer. Mark Pisani, District Manager, represented the Division.

Based upon a review of the evidence to be produced at the formal hearing, the Division moved to modify each item and citation.  For the general and regulatory violations set forth in Citation 1, the Division moved to increase Employer’s Good Faith credit to 30%.  For the violations of 3668(a)(1); 2340.16(a); and 3203(a), the Division also moved to reduce Severity, Extent, and Likelihood, reducing the penalty for each to $50.  The Division further moved to withdraw the violation of section 342(a) [reporting accident] because the Division responded before Employer could report the accident, and reduce the proposed penalty for violation of section 3664(a)(1) to $0 pursuant to section 336(k). For the serious violation of section 3704, the Division moved to reduce the Likelihood rating from High to Moderate.  As a result, the base penalty was reduced to $18,000 and then reduced 40% for the size of the Employer, resulting in an adjusted penalty of $10,800.

Employer agreed to waive any claim for costs and moved to withdraw its appeals from the citations, as amended, which was granted. Employer requested a 24 month payment plan promising to provide supporting documentation within 30 days. The parties also stipulated to standard language for settlements, including Employer’s non-admission of any violation, and entry into the settlement agreement to avoid protracted litigation and costs.

On October 22, 2002, the ALJ issued an Order indicating that since he had not received the supporting documentation for the payment plan within 30 days, the request for payment plan was denied. The Order further decreed that the citations were established, modified, or withdrawn and that the final penalties assessed for each violation were in the amounts indicated above.

Employer filed a timely petition for reconsideration on the grounds that Employer has discovered new evidence material to him which he could not, with reasonable diligence, have discovered and that Employer, through inadvertence and excusable neglect did not submit the documents within 30 days. In support of the stated grounds Employer summarily states that it did not submit the supporting documentation for the requested payment plan within the 30-day time period because it was unable to obtain the documents sooner, and further, that the financial statements were submitted November 5, 2002 (20 days after expiration of the 30-day submission deadline and 13 days after the ALJ issued the Order).2

REASON FOR DENIAL
OF
PETITION FOR RECONSIDERATION

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 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, at p. 2:

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.

In this case, Employer summarily states that Employer “was unable to obtain the documents sooner.” There are no facts offered to establish or explain why Employer could not obtain and provide the supporting documents within the 30 day period. Absent such facts, we are unable to determine that such information could not have been timely obtained and provided in the exercise of reasonable diligence.

Additionally, we have held that appeals to the Board should be pursued by the appealing party with the degree of care a reasonably prudent person would undertake in dealing with his or her most important legal affairs and that it is incumbent that a party become familiar with the appeals process and requirements. (Timothy J. Kock, Cal/OSHA App. 01-9135, Denial of Petition for Reconsideration (Nov. 20, 2001).) This duty includes adherence with time requirements set by the Board during the appeal process, including the 30 day period set for providing supporting documentation for Employer’s requested payment plan.

In cases pending disposition before the Board, there must be a sufficient showing by an employer to support a proposed plan or request for payment of penalties over time. Since no supporting documentation was presented to the ALJ by Employer within the specified time frame, the ALJ appropriately denied the request for payment plan.

Based upon the above, we find that Employer failed to establish grounds for its petition for reconsideration.

DECISION

The Board affirms the ALJ’s order and the assessment of civil penalties totaling $10,950.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: January 9, 2003

1 Unless otherwise specified all references are to sections of Title 8, California Code of Regulations.
2 A review of the Board’s file reveals that the financial statements were received by the ALJ on November 5, 2002.