BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

PORTER PIPE & SUPPLY

750 Diamond Avenue

Red Bluff, CA 96080

                              Employer

 

 

Docket No.

01-R2D3-9173 through 9175

 

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 Porter Pipe & Supply (Employer).

JURISDICTION

Between May 21 and May 23, 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 750 Diamond Avenue, Red Bluff, California (the site).

On November 2, 2000, the Division issued to Employer citations for alleged serious violations of sections 5021(a), and 4980(a) and general violations of sections 5043, 5031(c), and 5031(a) of the occupational safety and health standards and orders found in Title 8, California Code of Regulations.1

The citations were issued on November 2, 2000 and received by Employer on November 6, 2000. Employer phoned the Board on February 20, 2001, to initiate an appeal and returned its completed appeal forms to the Board on March 5, 2001.

On September 6, 2001 the Board denied the appeal as untimely after full consideration of Employer’s explanation up to that date. The information available to the Board at that time was that according to Employer’s current manager the previous manager did not tell anyone about the citations at the time they were received by Employer.

The previous manager told the owner that he had taken care of everything regarding the inspection and had repaired everything that needed repair. Before the issuance of the citations that manager started missing work beginning in October, 2000 due to illness and subsequently passed away from that illness on January 4, 2001. Thus, the reason for Employer’s late appeal filing.

The Division opposed the late appeal because on May 22, 2000, during the inspection, Employer’s cranes were also red tagged. The Division called Employer and requested abatement statements but did not receive them.

EVIDENCE

No hearing has been held in this matter. In making this decision, the Board relies upon its independent review of the entire record in this case.

ISSUE

Has Employer provided good cause for reversing the Board’s order denying its late appeal?

REASON FOR DENIAL
OF
PETITION FOR RECONSIDERATION

Labor Code section 6601 provides that if an employer fails to notify the Board of its intent to appeal within 15 working days after receiving a citation, the citation shall be deemed to be a final order of the Board, not subject to review by any court or agency. This section also vests the Board with the discretion to extend the statutory deadline upon a showing of good cause. The Board’s regulations state that an extension of the appeal period may be granted where sufficient facts are shown to establish a reasonable basis for the late filing. (§ 359(b).)

Section 359 of the Board’s regulations allows an appeal to be initiated by a telephone call. Section 359.1 of the Board’s regulations requires that if an appeal is initiated other than by the filing of an appeal form, a completed appeal form must be filed within 10 days after the appeal is initiated.

Employer phoned the Board to initiate its appeal on February 20, 2001, 84 days after their deadline to appeal. On September 6, 2001, the Board issued an order denying Employer’s late appeal after finding that good cause did not exist for Employer’s filing its appeal 84 days late.

Employer filed a timely petition for reconsideration on October 9, 2001, realleging that good cause exists for filing its appeal 84 days late because their manager “…had been ill and took a turn for the worse in October 2000, and got progressively worse until his death in January 4, 2001 and when Mr. Radford received these original citations in November 2000 he did not tell anyone, no one was aware of these citations being issued except Mr. Radford. It must have been overlooked due to his illness”.

Employer also alleges that, “During the year of 2000 Mr. Porter (the owner) was hospitalized 3 different times having major surgery. Between the operations Mr. Porter was recuperating from each individual surgical procedure. The main office is located in Fontana, California. This is where he conducts all purchases & sales. Normally Mr. Porter would travel 2 to 3 times a year to Red Bluff, California where we manufacture the steel pipe.”

Employer does not dispute that it received the citations, but contends that the citations should have been sent to its main office in Fontana and not to the Red Bluff office.

Employer also contends that, “Porter Pipe & Supply is a small company. We employ 10 people including Mrs. Porter and myself. The work is seasonal, what we do is we make casing. 95% of our sales are wholesale, selling to major pipe companies that are in the west half of the United States serving primarily the west coast. If our company is put out of business there will be a significant increase to the western states. No other pipe company wants to make pipe at wholesale prices. We are going to bring our financial records to show you what we are talking about.”

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….”

Our records show that the citation was properly served by certified mail and signed for on November 6, 2000.

In American Alliance Always Available dba Drain Patrol, Cal/OSHA App. 01-9051 Denial of Petition for Reconsideration (July 24, 2001) we held that, “[s]ervice 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”.

We still feel that good cause does not exist in this case to extend the filing period.

Kaweah Construction Company, Cal/OSHA App. 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., Cal/OSHA App. 87-9009, Denial of Petition for Reconsideration (May 7, 1987) [paperwork sent to the company did not “arrive improper hands” until too late]; Cleveland Wrecking Company, Cal/OSHA App. 92-9054, Denial of Petition for Reconsideration (Nov. 18, 1992) [branch manager did not properly handle citation]; Jesse Aguirre, Farm Labor Contractor, Cal/OSHA App. 93-9013, Denial of Petition for Reconsideration (June 10, 1993) [appeal misplaced during move of its office]; and Laselco Pacific, Cal/OSHA App. 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, at p.2.)

Like the cases cited above this case presents an example of a failure of an employer’s internal operating procedures. Under the facts presented in this case, like the facts presented in American Alliance Always Available dba Drain Patrol, supra, we believe that we are properly exercising the discretion vested in the Appeals Board by insisting on timely appeals.

No other allegations asserted by Employer come within the purview of Labor Code section 6617 governing the grounds on which a petition for reconsideration may be based. Employer’s petition is denied.


DECISION

The Board affirms its Order Denying Late Appeal dated September 6, 2001.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: November 27, 2001

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