BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

TIMOTHY J. KOCK

1010 Toledo Street

Los Angeles, CA 90042

                              Employer

 

 

Docket No.

01-R4D2-9135 and 9136

 

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 Timothy J. Kock (Employer).

JURISDICTION

On May 22, 1998, a representative of the Division of Occupational Safety and Health (the Division) conducted a complaint inspection at a place of employment maintained by Employer at 1010 Toledo Street, Los Angeles, California (the site).

On July 7, 1998, the Division issued to Employer citations for a serious violation of section 1541.1 [protection from cave-in], a general violation of section 1509(a) [Injury and Illness Prevention Program], section 1509(c) [posting of Code of Safe Practices], and section 1541 [protection from loose rock or soil], and a willful/regulatory violation of section 341.1 [issuance of permits] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations.1 The Division proposed civil penalties totaling $6,320 for the violations.

Employer initiated its appeal by phone on July 29, 1998. On July 31, 1998, the Board sent an appeal form to Employer. On October 16, 1998, the Board closed Employer’s file and sent Employer a letter to that effect because the appeal form was not completed and returned.

On November 9, 2000, Employer phoned the Board and requested that its appeal be reopened. On December 6, 2000 Employer sent a letter to the Board with the citations and stated that its completed appeal form was returned to the Board in August 1998. On January 12, 2001 the Board sent another appeal form to Employer along with instructions to complete and return it or the case would remain closed.

On January 23, 2001, Employer submitted two completed appeal forms and asked the Board to reopen its appeal because Employer was unaware that the Board had not received the forms in August 1998.

Although Employer returned the completed forms on January 23, 2001, the Board found that there was not good cause for the delay of over two years and on September 4, 2001 the Board issued an Order Closing Employer’s Appeal.

On October 3, 2001, Employer filed a timely petition for reconsideration.

ISSUE

Has Employer established good cause for having its appeal reopened?

REASONS FOR DENIAL
OF
PETITION FOR RECONSIDERATION

Labor Code section 6319 states that an “employer has 15 working days from receipt of the notice [of citation] within which to notify the appeals board that he or she wishes to contest the citation or order…”

Title 8 California Code of Regulations section 359 states:

(a) Except as provided in Section 361.1(b), an appeal shall be deemed filed on the date a communication indicating a desire to appeal the Division action is hand delivered, mailed to, or received by the Appeals Board in Sacramento, California, whichever is earlier. No particular format is necessary to institute the appeal.
(b)The time for filing any appeal may be extended or a late filing permitted upon a written showing of good cause that contains sufficient facts to show or establish a reasonable basis for the late filing.
(c)A request to file a late appeal shall be accompanied by a declaration containing a statement that any facts therein are based upon the personal knowledge of the declarant.

Section 359.1 states:

(a) A completed appeal form shall be filed for each contested Division action.
(b) If an appeal is initiated by other than an appeal form, a completed appeal form shall be filed with the Appeals Board within 10 days of acknowledgment by the Appeals Board of the desire to appeal. Failure to file a completed appeal form may result in dismissal of the appeal.
(c) The Appeals Board shall furnish appeal forms upon request and shall provide them to the district offices of the Division.
(d) Upon receipt of a timely completed appeal form, the Appeals Board shall assign a docket number and deliver or mail a copy of the docketed appeal to each party.

In this case, Employer filed its appeal by telephone on July 29, 1998. This manner of filing is satisfactory to the Board so long as it is followed up by filing a completed appeal form with the Board within 10 days of communicating by telephone the desire to appeal. That was not done to the Board’s satisfaction in this case. The completed forms were not submitted to the Board until January 23, 2001.

Employer contends that it submitted the forms originally in August 1998. However, Employer has not presented any proof to the Board to substantiate this claim. Prompt resolution of citations is imperative to insure that both sides to an appeal have an opportunity to fully present their case. In this case, after an absence of two years, the Division would be at a distinct disadvantage in going forward.

We hold 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. It is incumbent upon an appealing party to become familiar with the appeal process and requirements in order to further its interests in an orderly disposition of the appeal by the Board, affording due process to all of the parties, and avoiding undue prejudice to the Division and any third party to the appeal.

We hold that, if an employer elects to use first class mail without certifying, registering, or otherwise preserving a record of the deposit of the mailing, the burden is on the person who used the mail to substantiate his or her claim of actual mailing. Obviously we cannot place the burden on the non-appealing party (here, the Division) or the Board to prove mailing by the Employer. To allow an appealing party to proceed without any proof of timely mailing would reward non-diligent or dishonest litigants, unduly prejudice the rights of the nonappealing party, and further, diminish the integrity of the appeal process. Here, without a record of the mailing we cannot determine with any level of certainty that that was done in this case as purported by Employer.

Additionally, we will further address Employer’s assertion that it submitted two mailings to perfect its appeal-in August 1998 and January 2001. Notwithstanding the failure to prove the mailings on the two occasions as discussed above, the correspondence between the Board and Employer and the time frame for perfecting the appeals demonstrate that Employer did not act with the degree of care a reasonably prudent person would undertake in dealing with his or her most important legal affairs.

Employer first requested (in a phone call to the Board) to reopen its appeal on November 9, 2000 more than two years after the purported first mailing of the appeal forms in August 1998 and only after receiving notice of a pending judgment for collection of civil penalties under the citations.2 Employer is the party who, through an appeal to this Board, initially sought to challenge citations with civil penalties totaling $6,320. Even if Employer believed that it perfected its appeal, no explanation was given by Employer as to why there were no inquiries to the Board regarding a docket number for the case,3 verification of receipt of the appeal documents, nor any other status inquiries during this long time period.

Further, in a letter dated November 24, 2000, Employer submitted a request to file a late appeal after confirming that the Board did not receive the required appeal forms in August 1998. The letter was received by the Board on December 8, 2000 and was accompanied by some, but not all, of the requested documents, i.e., the appeal form was not submitted. Only on January 23, 2001 did the Board receive the completed appeal form.4 Employer dated the appeal form on January 21, 2001. It can hardly be argued that diligence was exercised by Employer in providing the necessary appeal form document over three and one-half months following Employer’s “discovery” that the Board did not receive the appeal documents.

Employer has not presented sufficient evidence to prove its assertions of mailing nor has it provided any explanation for the extraordinary delay in exercising diligence in perfecting and prosecuting the subject appeal. Employer’s petition for reconsideration is denied.

DECISION

The Board affirms its Order Closing Appeal issued September 4, 2001.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: November 20, 2001

1 Unless otherwise specified all references are to sections of Title 8, California Code of Regulations.
2 On October 16, 1998, the Board mailed employer a notice stating that the case was closed as of that date due to employer’s failure to return forms required to perfect the appeal. The letter notice was addressed the same as all correspondence sent to Employer by the Board and is the same address as indicated in Employer’s letterhead in all correspondence received by the Board from Employer. The notice stated that if Employer wished to re-open the appeal, it must show cause why the appeal forms were not timely returned which was to be provided by a written statement within 15 days from the date of the letter. No such request was received by the Board within the stated time period.
3 In an initial letter dated July 31, 1998 sent to Employer following the Board’s receipt of a phone call from Employer indicating an intention to appeal, it states “[i]f your appeal meets all legal requirements, it will be docketed for hearing upon receipt of your Appeal form(s) and citations(s). The Board then will send you two docketed copies of each timely appeal.
4 On January 12, 2001, the Board sent Employer another letter with an enclosed appeal form along with an instruction to submit a written explanation and a sample declaration form explaining why the appeal documents were not returned within the required time period, so the Board could determine if good cause exists.