BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

ENVIROKLEEN CONTRACTORS, INC.

4626 El Dorado Road

El Dorado, CA 95623

                              Employer

 

 

Docket No.

01-R2D1-9198 through 9203

 

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 Envirokleen Contractors, Inc. (Employer).

JURISDICTION

Between April 3, 2000 and September 18, 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 7006 E. Parkway #24, Sacramento, California (the site).

On September 26, 2000, the Division issued to Employer citations for serious and regulatory violations of the occupational safety and health standards and orders found in Title 8, California Code of Regulations.1 The Division proposed civil penalties totaling $11,000 for the violations.

Employer initiated its appeal by phone on October 6, 2000. On October 11, 2000, the Board sent an appeal form to Employer. On November 7, 2000, Employer contacted the Board regarding their delay in returning the appeal form. Employer was advised to send a letter to the Board explaining why they did not send the appeal form within the time allowed. On January 22, 2001, the Board closed Employer's file because the appeal form was not completed and returned.

On January 29, 2001, Employer sent a letter stating that they had hired a consultant to "resolve this unfortunate and unintentional matter." A phone call was placed by the Board to Employer and a message was left for Employer to phone the Board.

On January 31, 2001, Employer stated that they had delivered the completed form to the Board. It was later discovered that they hand-delivered some papers to the Division's office. On February 2, 2001, the Board contacted the Division and Division staff stated that Employer delivered the Notice of Abatement, not an appeal form.

On February 22, 2001, Employer sent a letter and completed appeal forms to the Board requesting that the Board reopen its appeal.

On April 20, 2001, the Division filed a response to Employer's request to have their appeal reopened. The Division states that the company received the citations by certified mail in September 2000. The company was given specific instructions about how to appeal the citations by the Division's industrial hygienist at the closing conference and also by the Board in the first letter to Employer with the appeal form. Employer has not provided good cause for the delay; therefore the Division opposes allowing their appeal to be reopened.

On August 22, 1001, the Board voted to deny Employer's req uest to reopen its appeal.

The Board issued an Order Closing Appeal on January 3, 2002.

On January 29, 2002 Employer filed a Motion to Reconsider the Order Closing Appeal and on February 28, 2002 the Division filed an Answer to Employer's motion.

ISSUE

Has Employer set forth sufficient grounds to grant its petition for reconsideration?

REASON 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 acknowledgement 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 October 6, 2000. This manner of filing is satisfactory to the Board as long as it is followed by the filing of a completed appeal form with the Board within 10 days of the telephone communication. That was not done to the Board's satisfaction in this case. The completed forms were not submitted to the Board until February 23, 2001.

Prompt resolution of citations is imperative to insure that both sides to an appeal have an opportunity to fully present their case.

We held in Timothy J. Koch, Cal/OSHA App. 01-9135, Decision After Reconsideration (Nov. 20, 2001) 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."

Employer contends that the Board should reconsider its decision to close Employer's appeal on several additional grounds.

Employer contends, without delineating a case number or other supporting evidence, that the matter is res judicata because the matter was already adjudicated "by Air Quality Control." The doctrine of res judicata stands for the proposition that a final judgment on the merits has been made by a court of competent jurisdiction. Under Cal/OSHA law appeals of safety and health violations issued by the Division are processed through the California Occupational Safety and Health Appeals Board. All decisions of the Appeals Board are final unless a writ of mandate is applied for in the superior court pursuant to Labor Code section 6627. Decisions by the Air Quality Resources Board are not binding on this Board.2

Employer also contends that it has discovered new evidence. The alleged newly discovered evidence is, at best, set forth in a rambling, non-specific manner but seems to include allegations that the matter was resolved by the parties before the Air Quality Board; that a person named Bradley Carter "lied, deceived, misstated and misrepresented issues of material fact," and that, "Mr. Phillip Bradley … believes that the matter was closed as evidenced by the hearing with Air Quality."

As noted above, this Board is the proper forum to contest safety and health citations issued by the Division of Occupational Safety and Health.

The allegations regarding Mr. Carter and Mr. Bradley are not specific or detailed enough to allow us to make an informed decision whether or not to allow a late filing.3

Only in the rarest circumstances, upon an exceptional showing of good cause, will the Board allow a party to deviate from the filing dates enunciated in sections 359 and 359.1. Good cause has not been established in this case to allow a late filed appeal. The "motion" to reopen the case is denied.

DECISION

The Board affirms its Order Closing Appeal dated January 3, 2002.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: March 15, 2002

1Unless otherwise specified all references are to sections of Title 8, California Code of Regulations.
2 We note from the Answer filed by the Division of Occupational Safety and Health in this case, Exhibit B, that the Air Quality Board Case #851, resulted in a settlement. The only evidence before this Board shows that the violations for which Employer was cited by the Sacramento Metropolitan Air Quality District (SMAQD) were not identical to those for which it was cited by the Division. Further, there was no "final judgment by a court of competent jurisdiction" (or a final adjudication by an administrative agency of competent jurisdiction) as is required for the application of the doctrine of res judicata, since Ms. Verdin chose to settle with SMAQD instead of allowing the notices of violation (NOVs) to be adjudicated. People v. Sims (1982) 32 Cal.3d 468, 484; Younan v. Caruso (1996) 51 Cal. App.4th 401, 406-7. Finally, as Employer states, even if the issues were identical and there had been a final judgment by a court or administrative agency, the doctrine of res judicata only makes such a prior judgment "conclusive upon the parties…" or those in privity with a party. People v. Sims, supra. There is no evidence whatsoever that the Division or the Board were parties to SMAQD's NOV process or its settlement with Employer, or otherwise in privity with SMAQD.
3 There is no evidence showing that any alleged misdeeds by Mr. Carter caused Employer to fail to file its written appeal on time, which is the only issue before this Board on Employer's motion to reconsider the prior Order Closing Appeal. There is no Bradley Carter who works for the Division. While Employer may have a civil cause of action against Mr. Carter, if he did, in fact, mislead it in some way, the Board is unaware of any theory under which an employer can be excused from filing a timely written appeal based upon its own staff's alleged fraud. This Board has consistently held that an employer's internal operating problems, including mishandling of Division citations and failure to inform the proper management of the existence of citations, do not constitute good cause to permit the late filing of an appeal. See Porter Pipe & Supply Cal/OSHA App. 01-9173, Denial of Petition for Reconsideration (Nov. 27, 2001); Kaweah Construction Co., Cal/OSHA App. 87-9005, Denial of Petition for Reconsideration (Mar. 5, 1987); and Cleveland Wrecking Co., Cal/OSHA App. 92-9054, Denial of Petition for Reconsideration (Nov. 18, 1992).