BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

AVEXCO, INC., dba PHOENIX APPAREL

799 S. Towne Ave., #200

Los Angeles, CA 90021

                              Employer

 

 

Docket No.

01-R4D4-9210

 

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 Avexco, Inc. dba Phoenix Apparel [Employer].

JURISDICTION

On October 17, 2000, a representative of the Division of Occupational Safety and Health (the Division) conducted a planned inspection and investigation at a place of employment maintained Employer at 799 S. Towne Avenue, #200, Los Angeles, California (the site). On November 16, 2000, the Division issued to Employer one citation alleging six general violations and one citation alleging a serious violation. The Division proposed civil penalties totaling $6,600.1

Employer initiated its appeal by phone on December 8, 2001. On that same date, the Board sent an appeal form to Employer. On January 30, 2001, Employer’s Safety Consultant phoned the Board and requested that an appeal form be sent to another address. On that same date, the Board sent the appeal form to the other address as indicated by the safety consultant.

On March 29, 2001, the case was closed because no appeal forms were returned to the Board. On April 4, 2001, Employer sent a letter to the Board requesting that the appeal be reopened because of “lost and confused mailing situations” that resulted in the appeal form not being forwarded to the owner in order to timely submit the appeal paperwork. On May 8, 2001, the Division filed a letter response (with a copy mailed to Employer) stating that it did not oppose the late filed appeal based upon its understanding that Employer was only seeking monetary relief from the penalty amount.

On January 3, 2002, the Board issued an order that Employer’s appeal remained closed on the ground that there was no good cause for accepting a late completed appeal form.

On February 4, 2002, Employer sent a letter seeking reconsideration, along with a completed appeal form, requesting that the Board reopen its appeal.

ISSUE

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

REASONS FOR DENIAL
OF
PETITION FOR RECONSIDERATION

Labor Code Section 6319(a) provides that an “employer has 15 working days from receipt of the notice [of a citation] within which to notify the appeals board that he or she wishes to contest the citation or order....”. Section 359 of the Board’s regulations 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.

Employer notified the Board by telephone on December 8, 2000, of its intent to appeal. Pursuant to the above-quoted regulations, this manner is satisfactory as long as it is followed by a completed appeal form submitted to the Board within 10 days of communicating by phone an employer’s intent to appeal. In this case, after two mailings of the appeal form by the Board to Employer-one to Employer’s owner and the other to Employer’s safety consultant-the appeal was closed by the Board because the form was not timely submitted by Employer.

Employer requested that the appeal be reopened but failed to provide the appeal form. In its letter request dated February 4, 2001, Employer’s owner stated that he never received the initial appeal form from the Board and the “second attempt was withheld without my noticing for a period of time that it was too late to answer to the notice by the due date.” (Italics added)2 The request to reopen the appeal was denied since there was no good cause shown for the reopening.

Our review of the record reveals a lack of specific facts offered by Employer’s owner regarding the circumstances of the alleged “withholding” of the second mailing of the appeal form. There is no allegation that the appeal form did not reach Employer. At best, Employer’s assertion suggests that the delay was due to an internal process that prevented him from personally getting the appeal form in sufficient time to return the completed form to the Board. The Board has held that an employer’s internal operating problems do not constitute good cause for filing a late appeal. (Cleveland Wrecking Company, Cal/OSHA App. 92-9054, Denial of Petition for Reconsideration (Nov. 18, 1992)) The fact that the appeal form was received by Employer but was delayed in reaching the owner personally is an internal problem with Employer and cannot establish good cause for not returning the appeal form. (See, Del Monte Glass, Inc., Cal/OSHA App. 87-9009, Denial of Petition for Reconsideration (May 7, 1987) [fact that citation once received by employer, did not reach employer’s president due to internal delay was not good cause for extending appeal period].)

In the request to the Board to reconsider the previous order denying the reopening of the appeal, Employer states the owner’s inability to understand English hindered him throughout the appeal process bringing stress and confusion in the communications between himself and the Division. Employer’s owner refers to alleged miscommunications between him and agents of the Division’s district office in West Covina. Specifically, Employer states that following letters to appeal the citation he sent pictures proving correction of violations and that he understood he was waiting for a possible reduction of penalty, as indicated to him by a Division District Manager. Employer maintains that while “waiting approval on my appeal for a reduction in the fine” he began receiving phone calls to collect the penalty.

The procedures for appeal are clearly outlined in statutory and regulatory provisions. Any review of the appeal procedures for citations issued by the Division reveals that the appeal proceedings are before the Board, a separate agency, and not the Division. The Board recently described the responsibility of an appealing party in proceedings before the Board. In Timothy J. Kock, Cal/OSHA App. 01-9135, Denial of Petition for Reconsideration (Nov. 20, 2001), the Board stated that:

[A]ppeals 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’s approach to simply wait for word from the Board or the Division regarding its request for a reduction in the penalty amount disregards the established procedures for pursuing an appeal set forth in the law and fails to act with the degree of care a reasonably prudent person would undertake in dealing with his or her most important legal affairs.3

It further follows from the responsibilities of an appealing party provided in the Timothy J. Kock case that such responsibility includes taking appropriate steps to understand the appeal procedures. An employer’s responsibility to understand the procedures provided in the law do not require that every Employer have specific language skills. While the requirements are in the English language, the duty to follow the requisite appeal procedures require that every employer use or institute appropriate measures to comply with the law in all respects. Although the Board is sensitive to the panorama of multi-lingual people in this state, a non-English speaking person conducting business in this state must undertake actions to fully understand the requirements and comply with the procedures necessary for pursuing an appeal initiated by it. A non-English-speaking employer can utilize an interpreter, employer representative, English-speaking staff, or consult with an attorney to understand procedural requirements that must be followed. The failure of any employer to undertake actions to understand and comply with the requirements is a failure to exercise the degree of care a reasonably prudent person would undertake in the conduct of its most important legal affairs.

In the instant case, Employer’s owner (president) summarily asserts that his limited English skills led to confusion and miscommunication with the Division regarding the appeal process. Employer does not indicate that he understood that his appeal was pending which would make compliance with the requirements to pursue the appeal unnecessary. Nor is there an assertion that the Division misled Employer regarding the status of the appeal at any time. Other than expressing confusion because of the owner’s limited English,4 no other facts are offered regarding specific action or efforts taken by Employer’s owner to comply with the requisite procedures for pursuing the appeal it initiated with the Board.

Our review of the record shows that the person initiating the appeal by a phone call to the Board was Warren Snyder, a Safety Consultant for Employer, and that there was at least one later phone call from Mr. Snyder to the Board regarding Employer’s non-receipt of the first mailing of the appeal form. Mr. Snyder requested that the second mailing be sent to the owner’s home address after which there was no timely return of the completed form to the Board, which resulted in the closing of the case. These facts indicate that after initiating the appeal, steps were taken by Employer to have its owner personally handle the appeal. Employer provides no indication regarding Mr. Snyder’s involvement in assisting the owner with understanding the appeal process or forms.5 Since Employer’s owner specifically undertook to address the citations with the Division and pursue the appeal following communication of Employer’s intent to appeal, the owner was required to exercise the degree of care a reasonably prudent person would undertake in dealing with his most important legal affairs. We find that the facts offered by Employer, including its failure to submit the appeal forms prior to its recent request for reconsideration, 6 do not establish it exercised the requisite degree of care.

Finally, Employer asserts in its petition that that it is unable to pay the full amount of the penalty suggesting that such financial inability should be considered as a basis for reopening the case. However, while the Board recognizes that financial hardship may, if proven by an employer under specific circumstances, be a basis for penalty reduction, it is not good cause for filing a late appeal. Victory Line, Cal/OSHA App. 95-9191, Denial of Petition for Reconsideration (Feb. 28, 1996). Similarly, a claim for financial hardship cannot be a basis for reopening a case dismissed for failing to timely perfect an appeal.

DECISION

Based upon the above, no good cause exists for reopening Employer’s appeal. The Board affirms its Order Closing Appeal issued January 3, 2002.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: March 26, 2002


1 Employer did not provide a copy of the citations as required on the appeal form it eventually submitted to the Board on February 4, 2002 along with its request to reopen the instant appeal. The information regarding the citations was obtained from the Division as part of the case closing process.
2 The appeal form was eventually sent on February 4, 2002, along with Employer’s request to (reconsider) reopening the closed case.
3 See also, Township Building Services, Inc., Cal/OSHA App. 95-9212, Denial of Petition for Reconsideration (Mar. 18, 1996) [an employer’s choice to wait for responses from the Division does not establish good cause for a late appeal].
4 An Employer’s limited English skills alone has not been a sufficient basis for good cause for granting a late filing nor for extending the time period for filing an appeal. See e.g., M & D Metal Finishing, Cal/OSHA App. 95-9215, Denial of Petition for Reconsideration, (Mar. 14, 1996); R.M. Ochoa Grove Service, Cal/OSHA App. 96-9176, Denial of Petition for Reconsideration (Dec. 3, 1996)
5 We note that, according to Employer, a Korean interpreter was in fact utilized in previous discussions the owner had with the Division following issuance of the citations.
6 The completed appeal form eventually submitted by Employer does not include a copy of the citation that is directed to be attached to the completed form.