BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

LEINER HEALTH PRODUCTS

P. O. Box 3185

Garden Grove, Ca 92841

                              Employer

 

 

Docket No.

01-R3D1-9180

 

DECISION AFTER

RECONSIDERATION

 

The Occupational Safety and Health Appeals Board (Board), acting pursuant to authority vested in it by the California Labor Code and having taken the petition for reconsideration filed in the above-entitled matter by Leiner Health Products (Employer), under submission makes the following decision after reconsideration.

JURISDICTION

On January 30, 1998, the Division of Occupational Safety and Health (Division) issued a citation to Employer for a violation of section 3314(a)1 [employee did not de-energize compression machine prior to hand wiping excess oil off machine]. The citation was received by Employer on February 2, 1998. According to Board records Employer initiated an appeal from that citation by letter dated March 14, 2000. On March 21, 2000 the Board sent an appeal form to Employer along with instructions that the form be completed and returned to the Board together with the citation being appealed. On April 3, 2000, the Board received the completed appeal form. Upon receipt of the appeal form with the citation attached the Board determined that the appeal was probably being filed late and on April 26, 2000 sent a letter to the Division requesting the certified mail return receipt indicating the date Employer received the citation from the Division. The Division provided a return receipt indicating that Employer received the citation on February 2, 1998.

On January 9, 2001 the Board sent a letter to Employer stating that it’s appeal had been filed 749 days late and requested an explanation for the late filing.

On January 22, 2001 Employer responded by stating that it had appealed the citation on February 13, 1998. Employer submitted a declaration by its Human Resources Manager, Jill Stambler that she had received the citation in this matter (Inspection No. 125909788) as well as another citation (Inspection No. 125909812) and faxed an appeal to the Board on February 13, 1998 for both citations2. Employer included a fax cover sheet that indicates that 5 pages were faxed to the Board on February 13, 1998 but there is no identifier on the cover sheet indicating to what citations it refers.

On September 6, 2001 the Appeals Board issued an Order Denying Late Appeal stating:

The Occupational Safety and Health Appeals Board (Appeals Board) has reviewed your statement explaining why your appeal was filed 749 days late. Based upon this review, the Appeals Board finds that good cause for the late filing does not exist. Therefore, your appeal will not be docketed and your file will be closed.

Employer filed a timely petition for reconsideration on October 5, 2001. The Division filed its answer on November 8, 2001. On November 16, 2001 the Board issued an order taking Employer’s petition for reconsideration under submission.

ISSUE

Has Employer established good cause for filing a late appeal?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

Employer contends that: “…the evidence does not justify the findings of fact made by the Board ….” Employer based this argument on its assertion that Employer’s, Human Resources Manager, Jill Stambler filed appeals from inspection numbers 125909788 and 125909812 on February 13, 1998. In support of its argument Employer submitted a purported copy of the appeal form it allegedly sent the Board.

Employer also contends that the Division cannot provide evidence when the citation was served and thus any appeal is timely.

Employer further contends that it “understood” that the citation involved was dismissed along with another citation in exchange for Employer waiving costs and that, “it is undisputed that the Company has already paid any and all monetary penalties associated with these Citations.”

The Division responds that there is no evidence upon which any finding can be made, as there is no record and:

To the extent that Employer’s submitted documentation can be considered a record to establish its intent to file a timely appeal, Employer still falls short of establishing that there is now good cause for allowing filing of a late appeal.

The Division further contends that:

Employer notes that it did pay the fine for citation not appealed; it is a curious admission, for it demonstrates Employer’s understanding that this citation was not appealed rather than proving some intention on Employer’s part to appeal the citation.

This Board first notes that Employer has experience in the method of perfecting appeals from safety and health citations. Since 1996, Employer has filed ten appeals.3

We are troubled by Employer’s proffered evidence in this case. The Inspection Number listed on the copy of the appeal form Employer submitted with its petition for reconsideration is 125909768 and not 125909788. Employer does not offer any phone billing records, return receipts or other credible proof that it timely filed its appeal. Employer submits a document, which it argues, shows that they faxed a copy of their appeal to the Board on February 13, 1998. We do not give credence to the document Employer submits because there is no identifying fax marking on the document to suggest when it was faxed. Indeed, the only identifying mark on the appeal forms Employer alleges it sent to the Board is a DOSH fax transmittal indicator that indicates that the Division sent the forms to someone in 1994.

In addition, Employer argues that the Division has no proof that they served the citation on Employer but we note that the Division has provided to the Board a copy of the certified mail return receipt that shows that Employer received the citation on February 2, 1998.

Additionally, the copy of the citation submitted by Employer has a “received” stamp on it, which indicates it was received on February 2, 1998. The stamp appears to be unique to Employer in that of the thousands of documents the Board receives each year from the Division, none have had such a stamp on them. In her declaration Ms. Stambler indicates that she received the citation shortly after February 6, 1998. Although Ms. Stambler may not have received the citation until after February 6, 1998, it is clear to us that Employer received the citation on February 2, 1998.

In Timothy J. Kock, Cal/OSHA App. 01-9135, Denial of Petition for Reconsideration (Nov. 20, 2001) we held that: “Prompt resolution of citations is imperative to insure that both sides to an appeal have an opportunity to fully present their case” and 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.”

The Timothy J. Kock case goes on to state 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 non-appealing 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.”

Like our holding in the Timothy Kock case, we find it would not promote justice to put the burden on the Division to establish service where Employer acknowledges that it was served with the citation. In this case the facts establish that the Division did serve Employer with the citation pursuant to the certified mail return receipt submitted by the Division.

We see no difference between our analysis in Timothy J. Kock regarding the burden being on an employer who uses the mail and this case where Employer used a fax machine to inform the Board of its appeal to prove that the appeal was actually received by the Board.

We find that Employer’s failure to present credible proof that it timely filed its appeal does not demonstrate that Employer acted with the degree of care a reasonably prudent person would undertake in dealing with his or her most important legal affairs.

We find that Employer’s late filing is without good cause and the petition for reconsideration is denied.

DECISION AFTER RECONSIDERATION

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

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: January 11, 2002

1 Unless otherwise specified, all section references are to Title 8, California Code of Regulations.
2 A review of the Board’s records reveals that Inspection No. 125909812 refers to a separate violation and citation, Docket No. 00-R3D1-3879. This case was resolved separately by the Appeals Board pursuant to a settlement order issued March 19, 2001.
3 Docket No. 01-9180, filed March 14, 2000; Docket No. 96-1086, filed February 26, 1996; Docket Nos. 97-2901/02, filed October 8, 1997; Docket No. 00-3879, filed March 31, 2000; Docket Nos. 98-2729/32, filed August 18, 1989; Docket Nos. 98-2727/28, filed August 18, 1998; Docket No. 98-3911, filed November 12, 1998; Docket No. 98-3910, filed November 12, 1998; Docket Nos. 98-3892/93, filed November 12, 1998; Docket No. 01-414, filed February 6, 2001.