BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

ROSS LEE COMPANY
12808 Palo Alto Drive
Victorville, CA 92392

                              Employer

 

 

Docket No.

01-R3D3-9206
through 9209

 

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 Ross Lee Company (Employer).

JURISDICTION

On November 5, 1998, a representative of the Division of Occupational Safety and Health (the Division) conducted an inspection and investigation at a place of employment maintained Employer at 25541 Barton Road, Loma Linda, California. On February 22, 1999, the Division issued to Employer one citation alleging one regulatory violation and seven general violations and three other citations each alleging one serious violation. The Division proposed civil penalties totaling $6,050.

The deadline for Employer to appeal was March 16, 1999.

On September 28, 2000, Employer appealed.

Employer states that when they received the citations they called the Division to make an appointment “to appeal”. Employer states that they showed up for their appointment but the person in charge was not there. The receptionist told Employer that someone would get back to him. No one did for a year and a half.

The Division states that Employer did not request an informal conference or anything else from them.

REASON FOR DENIAL
OF
PETITION FOR RECONSIDERATION

Employer alleges that:

When I received the Citations in February of 1999, I did call & make an appointment to meet with your people to appeal this case. I did show up at the appointed time & place. The lady that was there told me the person in charge was not there. She told me you people would get back to me. So I waited for OSHA to get back to me. I did not hear from you for about a year & one half.

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).)

Employer further contends, “the reason I did not appeal this case in time is because OSHA did not give me the chance to appeal it at the proper time”. Each citation issued to Employer, specifically pages one through four, contains information regarding Employer’s appeal rights and responsibilities and provides clear instructions as to when and where an appeal must be initiated. Page one of the citations advises Employer that it “must contact the Appeals Board, in writing or by telephone, within 15 working days from the date of receipt of this Citation.” The address and phone number for the Appeals Board is boldly set forth on page two. A phone call to the Board will initiate the appeal and stay the 15-day filing period and appeal forms will then be sent to the caller to be returned within ten days. (§§359(a); 359.1(b).)

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.

In Timothy J. Kock, Cal/OSHA App. 01-9135, Denial of Petition for Reconsideration (Nov. 20, 2001), we held 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 find that Employer did not pursue its appeal in a reasonable manner and therefore do not find good cause to allow Employer’s late appeal.

DECISION

The Board affirms its Order Denying Late Appeal issued January 3, 2002.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: March 28, 2002