BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA


In the Matter of the Appeal of:

AMERICAN ALLIANCE ALWAYS AVAILABLE

dba Drain Patrol

2400 Lindbergh Street

Auburn, CA 95602

                              Employer

 

 

Docket No.

01-R6D2-9051 and 9052

 

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 American Alliance Always Available dba Drain Patrol (Employer).

JURISDICTION

Employer is a California corporation headquartered in Auburn, California with an office in San Diego.

Between January 21, 2000 and April 13, 2000, a representative of the Division of Occupational Safety and Health (the Division) conducted an inspection at a place of employment maintained by Employer at 5235 Mount Blanca, San Diego, California (the site). On July 17, 2000, Employer received two citations each alleging a serious violation of the occupational safety and health standards and orders found in Title 8 of the California Code of Regulations. Civil penalties totaling $5,850 were proposed for the alleged violations.

The citations were sent to Employer’s San Diego address on July 17, 2000, by certified mail, and signed for by a Julie Estill on July 19, 2000. Employer filed its appeal from the citations on September 27, 2000, 50 days past the deadline to appeal. The Board mailed a letter to Employer on November 9, 2000, inviting it to submit a statement explaining why the appeal was not filed in a timely manner.

On November 17, 2000, in response to that letter, Employer filed a request to file a late appeal with the Board. The Division did not file a response. The Board reviewed Employer’s request and on May 9, 2000, issued an Order Denying Late Appeal, in which the Board found that Employer had not demonstrated good cause for the late filing. On June 5, 2001, Employer filed a petition for reconsideration. The Division did not file an answer.

ISSUE

Does service of the citation by certified mail to Employer’s San Diego office comply with Labor Code section 6319(a) or was service required to be made upon a corporate officer in Auburn?

REASONS FOR DENIAL
OF
PETITION FOR RECONSIDERATION

Employer argues that service of the citation was improper because service must be made upon a person listed with the Secretary of State’s office in Sacramento.

Labor Code section 6319(a) provides in part:

If, after an inspection or investigation, the division issues a citation pursuant to section 6317. . . it shall. . . notify the employer by certified mail of the citation, or order, and that the employer has 15 working days from receipt of the notice within which to notify the appeals board that he or she wishes to contest the citation or order. . . .

Employer further contends that: “…a receptionist at an office of our company by the name of Julie Estill, signed for the citations on July 19th, 2001. The receptionist did not forward the notices nor does she remember what she did with them nor where they were for nearly two months after receiving it. (Our corporate office received it immediately upon its discovery by the satellite office’s Executive Director.) … Receptionists, however, are traditionally paid the least due to the low level of responsibility which is asked of them. As such, the service to our receptionist, Ms. Estill, should be thoughtfully considered in the above light with regard to responsibility and position in our organization.”

An employer has fifteen working days from the day a citation is received to file an appeal. (Labor Code § 6319(a) and (b).) The Appeals Board may extend the fifteen-day period for good cause. (Labor Code § 6601; Cal. Code of Regs. Title 8, § 359(b).)

To our knowledge, no published authority from either the California Courts of Appeal or the California Supreme court addresses “good cause” under Labor Code section 6319 or the California Code of Regulations, Title 8, section 359. However, the Appeals Board has previously addressed the issue.

Kaweah Construction Company, OSHAB 87-9005, Denial of Petition for Reconsideration (Mar. 5, 1987) is the seminal Appeals Board case on good cause when the proffered excuse is the citations did not timely reach the desk of the appropriate party. In Kaweah, the employer asserted it did not file a timely notice of appeal because its field engineer did not tell any supervisor that citations were received and the notice of civil penalty got “lost in the paper shuffle before reaching the President’s desk.” (Kaweah Construction Company, supra, at p. 2.) The Appeals Board determined that when a document is lost in the paper shuffle in an office, and an untimely notice of appeal results, no good cause exists to justify an extension. (Ibid.)

Since Kaweah, the Appeals Board has consistently held that when a notice of appeal is untimely filed because of internal operating procedures good cause does not exist. (See Del Monte Glass, Inc., OSHAB 87-9009, Denial of Petition for Reconsideration (May 7, 1987) [paperwork sent to the company did not “arrive in proper hands” until too late]; Cleveland Wrecking Company, OSHAB 92-9054 Denial of Petition for Reconsideration (Nov. 18, 1992) [branch manager did not properly handle citation]; Jesse Aguirre, Farm Labor Contractor, OSHAB 93-9013 Denial of Petition for Reconsideration (June 10, 1993) [appeal misplaced during move of its office]; and Laselco Pacific, OSHAB 96-9084 Denial of Petition for Reconsideration (July 16, 1996) [citations directed to president of company who was on extended business trip].) It “is the appellant’s obligation to put procedures into place that will ensure that important documents it receives are processed in a timely manner.” (Jesse Aguirre, Farm Labor Contractor, supra.)

This case presents a classic example of an employer blaming internal operating procedures for not filing a timely appeal. Service by certified mail on a company ensures reliable service. The employer controls the service because it can designate which person has authority to sign for the certified mail or whether or not it wants to refuse service all together. The issues presented in this case are the exact issues, which we decided the same way, in C & R Transfer, Inc., OSHAB 97-9051, Denial of Petition for Reconsideration (July 16, 2001).

In this case, Employer apparently gave Ms. Estill the authority to sign for the certified mail. It is not unusual for an employer to designate a trusted employee to sign for certified mail. We believe we are properly exercising the discretion vested in us by insisting on timely appeals and not allowing a 50-day late appeal under the facts of this case.

DECISION

Employer’s petition for reconsideration is denied and the Board’s order denying Employer’s late appeal dated May 7, 2001, is affirmed.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON July 24, 2001