BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

MIKE BIGHAM CONSTRUCTION
P. O. Box 6098
Eureka, CA 95502

 

                              Employer

 

 

Docket No.

01-R6D1-3262 through 3265

 

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 Mike Bigham Construction (Employer).

JURISDICTION

On January 19, 2001, a representative of the Division of Occupational Safety and Health (the Division) commenced an inspection of unsafe conditions observed at a place of employment maintained by Employer at 2223 4th Street, Eureka, California (the site).

On July 17, 2001, the Division issued to Employer the following citations alleging serious violations of section 1633(a) [guarding elevator shafts]; section 1637(j) [use of unsafe working platform]; section 1644(a)(6) [scaffold guardrails]; and a general violation of section 3664(a)(17) [enforcement of forklift operating rules] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations.1

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

On March 19, 2002, a hearing was held before Dennis M. Sullivan, Administrative Law Judge (ALJ) of the Board, in Eureka, California. Mike Bigham, Owner, represented Employer. Rodney Gray, High Hazard District Manager, represented the Division.

On April 18, 2002, a decision was issued granting Employer’s appeal from the section 1633(a) violation to the extent of reducing the classification of the violation to general. Employer’s appeal from the other citations were denied.

Employer filed a timely petition for reconsideration on May 22, 2002.

ISSUE

Has Employer established good cause to reconsider the decision of the ALJ?

Employer’s petition for reconsideration states that:

I respectfully submit this Petition for Reconsideration for the decision rendered on April 18, 2002 for Dockets #01-R6D1-3262 through 3265. I am requesting reconsideration based on Labor Code 6617(a) which states that ‘the Board or administrative judge acted without or in excess of its powers’. I feel that my constitutional rights were violated when the fines were levied for an accident or injury that never occurred, and no complaint was ever filed against me or my business.

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 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 (at pg. 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.

Our review of Employer’s allegations reveal that there is no indication of which “constitutional rights” were violated nor a description of the basis for such alleged violations. We find that these allegations are conclusionary and do not rise to the level of specificity that warrant granting the petition for reconsideration.

DECISION AFTER RECONSIDERATION

The Board affirms the ALJ’s decision and the assessment of civil penalties totaling $1,685.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
SIGNED AND DATED AT SACRAMENTO, CALIFORNIA ON July 12, 2002

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