BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

WESLEY BURNETT dba ENVIRON
934 Hermosa Avenue, #11
Hermosa Beach, CA 90254

 

                              Employer

 

Docket Nos. 01-R3D1-491
through 493

DENIAL OF PETITION
FOR RECONSIDERATION

AND

Docket Nos. 99-R3D1-1896
and 1897

GRANT OF PETITION FOR
RECONSIDERATION AND
ORDER OF REMAND

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 (Division) in Docket Nos. 01-R3D1-491 through 493. The Board also hereby grants the petition filed by the Division in Docket Nos. 99-R3D1-1096 and 1897 and issues this Order of Remand.

JURISDICTION

Docket Nos. 01-R3D1-491 through 493

On December 13, 1999, a representative of the Division conducted an inspection at a place of employment maintained by Wesley Burnett dba Environ (Employer) at 133-135 15th Street, Manhattan Beach, California (the site).

On May 12, 2000, the Division issued to Employer a citation for a regulatory violation of section 1529(n)(3)(A) [air monitoring records], and willful/regulatory violations of section 341.6(a) [registration for asbestos related work], and section 341.9(a) [notification to the Division of asbestos related work] of the occupational safety and health standards orders found in Title 8, California Code of Regulations.1

Employer filed a timely appeal and a hearing was scheduled for February 20, 2002. Neither the Division nor Employer appeared at the hearing and on May 31, 2002, the Board issued a Notice of Intent to Grant Appeal. The Notice gave the Division 10 days to file a written motion containing sufficient facts to establish that the failure to appear at the hearing was reasonable and for good cause.

On June 11, 2002, the Division filed a Motion to Reinstate Proceeding, which stated that it did not appear for the hearing due to a miscommunication within its office. Prior to the date of the hearing David Pies, the Division attorney assigned to the case, entered into a settlement agreement with the representative of Employer. A letter sent from Employer’s representative to Mr. Pies on February 4, 2002, confirmed that settlement. Mr. Pies left on vacation on February 16, 2002. Before leaving, Mr. Pies asked another Division attorney to make sure that Employer’s representative came into the office before February 20 to sign the stipulation which contained the parties’ settlement agreement, and then to notify the Board that the case had been resolved by the parties so that the Board could remove the case from its hearing calendar. That did not happen. The Division’s attorney states in his declaration that he did not appear for the hearing on February 20 because he was not aware that the case was on calendar for February 20. He mistakenly thought that the hearing was scheduled at a later date.

The Division received the Notice of Intent to Grant Appeal on June 5 and on June 10, 2002, the stipulation was signed by Employer, but not by Employer’s representative, and submitted to the Board along with the Division's motion for reinstatement2. The stipulation also contained a settlement of another unrelated case involving Employer (Docket Nos. 99-1896 and 1897). On July 17, 2002, the Board issued an Order Granting Employer's Appeal for both docket cases because the Board determined that the Division had not provided good cause for its failure to appear at the hearing. On August 2, 2002, the Division filed a petition for reconsideration asking the Board to set aside its Order Granting Appeal for the two cases and to accept the stipulated agreement of the parties.

EVIDENCE

No hearing has been held in this matter. The Board relies upon its independent review of the record in this case including the pleadings and correspondence submitted by each party.

ISSUES

1. Has the Division established a reasonable basis and good cause for failing to appear at the hearing?
2. Is the case in Docket Nos. 99-R3D1-1896 and 1897 properly before the Board?


REASON FOR DENIAL
OF
PETITION FOR RECONSIDERATION

Docket Nos. 01-R3D1-491 through 493

1. The Division has not Established a Reasonable Basis and Good Cause for Failing to Appear at the Hearing.

In Timothy J. Kock, Cal/OSHA App. 01-9135, Denial of Petition for Reconsideration (Nov. 20, 2001), we held that appeals to the Board should be pursued by the parties to the appeal with the degree of care a reasonably prudent person would undertake in dealing with his or her most important legal affairs. It is incumbent upon both parties to become familiar with the appeal process and requirements in order to further their interests in an orderly disposition of the appeal before the Board, affording due process to all of the parties.

Recently, in the case of Environmental Engineering Technology, Cal/OSHA App. 00-2305, Denial of Petition for Reconsideration (July 3, 2002), we denied reconsideration to an employer who failed to appear at a duly scheduled and noticed hearing and who did not bring a timely motion before the Board under section 383.

In this case, we do not find that the Division has established a statutory basis for reconsidering the Board’s order granting Employer’s appeal. Although its motion for reinstatement was timely, the Division nevertheless failed to provide sufficient facts to show that its failure to appear at the hearing was reasonable and for good cause. The Division’s failure to attend the hearing was attributable to internal operating procedures which we have long held are not valid excuses for the late filing of appeals. (Cleveland Wrecking Company, Cal/OSHA App. 92-9054, Denial of Petition for Reconsideration (Nov. 18, 1992.)) The same rational for denying relief for late-filed appeals attributable to internal operating procedures should apply here. We also find that representations of settlement which, due to internal operating procedures of a party, are not communicated to and accepted by the Board, do not constitute good cause for non-appearance at a duly scheduled and noticed hearing.

The Division argues that Employer withdrew its appeal on February 4, 2002 when Employer sent a letter to the Division communicating such withdrawal. That letter was not sent to the Board. We do not agree with the Division that an appeal is withdrawn when notice of the withdrawal is not given to the Board. The Division’s position overlooks the Board’s jurisdiction over appeals from the initial filing to final disposition of the proceedings. To hold otherwise would not result in judicial economy for the Board and would result in the wasting of public resources by scheduling hearings and reserving space for hearings for which no one but the administrative law judge appears.

The Division also contends that dismissing its case when neither party showed up for the hearing constitutes a denial of equal protection under the United States and California constitutions. We reject this contention. The burden of going forward as well as the burden of proof is on the Division as the prosecutorial agency and no burden of proof attached to Employer under the facts presented here. Accordingly, the Division’s argument is without merit.

REASON FOR GRANTING THE
PETITION FOR RECONSIDERATION AND
REMANDING THE CASE FOR HEARING

Docket Nos. 99-R3D1-1896 and 1897

2. The Case in Docket Nos. 99-R3D1-1896 and 1897 is not Properly Before the Board.

As to docket numbers 99-R3D1-1896 and 1897, we agree with the Division’s contention that this case was not before the Board for hearing on February 20, 2002, and the matter is hereby sent to the Board’s Hearing Operations Unit to schedule a pre-hearing conference and to the Calendaring Unit to schedule a hearing date.


DECISION

Docket Nos. 01-R3D1-491 through 493

The Board affirms its Order Granting Appeal issued July 17, 2002.

Docket Nos. 99-R3D1-1896 and 1897

The Board orders that the appeals in Docket Nos. 99-R3D1-1896 and 1897 be directed to the Hearing Operations Unit to schedule a pre-hearing conference and to the Calendaring Unit to schedule a hearing date.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: September 23, 2002

1 Unless otherwise specified all references are to sections of Title 8, California Code of Regulations.
2 The Division’s motion for reinstatement was filed with the Board within the time period for responding to the Board’s notice of intent to grant appeal and is treated as a response to the Board’s notice pursuant to section 383. The stipulation contained lines for two signatures, one for Employer and one for Employer’s representative but only Employer had signed it.