BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

MNR APPAREL

12345 Foothill Boulevard

Lake Terrace, CA 91342

                              Employer

 

 

Docket No.

01-R4D3-9187 and 9188

 

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 MNR Apparel (Employer).

JURISDICTION

On October 25, 1999, a representative of the Division of Occupational Safety and Health (the Division) conducted an investigation at a place of employment maintained by Employer at 12345 Foothill Boulevard, Sylmar, California (the site).

On November 10, 1999, the Division hand delivered to Employer citations alleging a serious violation of section 2340.23 [opening in control panel box] and general violations of sections 461(a) [no valid permit]; 6151(c)(1) [non-functional toilet]; 2340.16 [blocked electrical panel box]; 2340.21 [electrical box not properly marked] and 3320 [no appropriate warning sign on air compressor] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations.1

A declaration of service was dated November 24, 1999 for the November 10, 1999 service.

Employer phoned the Appeals Board on January 22, 2001, indicating its intention to appeal. On February 7, 2001, the Appeals Board received Employer’s appeal forms and citations.

On September 6, 2001, the Board denied Employer’s appeal because it was 479 days late.

Employer filed a petition for reconsideration, which was received by the Board on October 15, 2001. The cancellation date of the envelope in which the petition was mailed is October 13, 2001. Employer’s proof of service declares that the envelope was deposited in the mail on September 28, 2001.


ISSUE

Has Employer shown good cause for filing a late appeal?

REASON FOR DENIAL
OF
PETITION FOR RECONSIDERATION

Employer through Evelyn Velasco contends that she, “did not appeal on time because [she] did not receive any notification about the findings of Cal/OSHA.”

In earlier correspondence sent to the Appeals Board on July 10, 2001, Ms. Valasco stated that, “When Mr. Magro [the Division’s agent] came to my business on November 1999 in my opinion …he just came to take some pictures and talk about the violations that he saw….”

The Division contests Employer’s request to file a late appeal. The Division contends that they hand delivered the citations to Ms. Velasco on November 10, 1999. They also contend that they sent an abatement reminder letter to Employer to which they did not receive a response.

We reject Ms. Velasco’s claim that she did not receive the citations. Someone in the company had knowledge of the citations in order for Ms. Valasco to have initiated the late filed appeal. In fact, a representative of Employer gave the Board’s receptionist information from the citations when he telephoned to initiate the appeal on January 22, 2001. Ms. Velasco does not explain how she knew of the citations in January 2001 but did not have notice of the citations in November 1999.

The Board credits the Division’s contention that the citations were delivered to Ms. Velasco on November 10, 1999 as shown on their proof of service, which was signed under penalty of perjury.

Lastly, although we accept September 28, 2001 as the filing date for purposes of this petition for reconsideration, we are suspicious that it took the post office 16 days to issue a cancellation stamp and mail the letter.

Based on the totality of the evidence before us, we find that Employer has not established good cause to file a late appeal and the petition is denied.

DECISION

The Board affirms its Order denying Employer’s late appeal dated September 6, 2001.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: November 30, 2001

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