BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

SHASTA CONSTRUCTORS, INC.
P. O. Box 491539
Redding, CA 96049

 

                              Employer

 

 

Docket No.

01-R2D2-9236
through 9238

 

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 Shasta Constructors, Inc. (Employer).

JURISDICTION

Employer initiated its appeal by phone on July 6, 2001. On July 10, 2001, the Board sent an appeal form to Employer. On November 6, 2001, the Board closed Employer’s file because the appeal form was not completed and returned.

On November 9, 2001, Employer’s vice president submitted the completed appeal form and stated that he was on vacation the week of July 11 through 19, 2001 and that in his absence the form was attached to the rest of their file and filed away. He then lost track of the appeal process and “failed to contact the department on several occasions when [he] considered the delay in receiving the appeal form”.

Employer returned the completed form on November 9, 2001. The Board found that there was not good cause for the delay, and denied the appeal as untimely on April 4, 2002. Employer filed a petition for reconsideration on April 10, 2002.

REASONS FOR DENIAL
OF
PETITION FOR RECONSIDERATION

Employer petitions for reconsideration alleging in relevant part that:

All of the documentation that supports the basis of the appeal is with merit, and therefore ought to be considered. Our office has a staff of four. Unfortunately, our small business staff does not have ample resources for duplicity of tasks. The appeal information was received while I was on vacation. Without me here to review the information, the appeal form was simply filed with the other documents relative to the incident.

An employer has fifteen working days from the day a citation is received to file an appeal. (Labor Code § 6319(a) and (b).) The Appeals Board may extend the 15 day period for good cause. (Labor Code § 6601; Cal. Code of Regs. Title 8, § 359(b).)

Section 359 of the Board’s regulations allows an appeal to be initiated by a telephone call. Section 359.1 of the Board’s regulations requires that if an appeal is initiated other than by the filing of an appeal form, a completed appeal form must be filed within 10 days after the appeal is initiated. In this case, Employer phoned the Board to initiate its appeal on July 6, 2001. It did not submit a completed appeal form until November 9, 2001.

In Timothy J. Kock, Cal/OSHA App. 01-9135, Denial of Petition for Reconsideration (Nov. 20, 2001), we held 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.

Kaweah Construction Company, Cal/OSHA App. 87-9005, Denial of Petition for Reconsideration (Mar. 5, 1987) is the seminal Appeals Board case on good cause when the proffered excuse is the citations did not timely reach the desk of the appropriate party. In Kaweah, the employer asserted it did not file a timely Notice of Appeal because its field engineer did not tell any supervisor that citations were received and the Notice of Civil Penalty got “lost in the paper shuffle before reaching the President’s desk.” (Kaweah Construction Company, supra, at p.2.) The Appeals Board determined that when a document is lost in the paper shuffle in an office, and an untimely notice of appeal results, no good cause exists to justify an extension. (Ibid.)

Since Kaweah, the Appeals Board has consistently held that when a Notice of Appeal is untimely filed because of internal operating procedures good cause does not exist. (See Del Monte Glass, Inc., Cal/OSHA App. 87-9009, Denial of Petition for Reconsideration (May 7, 1987) [paperwork sent to the company did not “arrive in proper hands” until too late]; Cleveland Wrecking Company, Cal/OSHA App. 92-9054, Denial of Petition for Reconsideration (Nov. 18, 1992) [branch manager did not properly handle citation]; Jesse Aguirre, Farm Labor Contractor, Cal/OSHA App. 93-9013, Denial of Petition for Reconsideration (June 10, 1993) [appeal misplaced during move of its office]; and Laselco Pacific, Cal/OSHA App. 96-9084, Denial of Petition for Reconsideration (July 16, 1996) [citations directed to president of company who was on extended business trip]. It “is the appellant’s obligation to put procedures into place that will ensure that important documents it receives are processed in a timely manner.” (Jesse Aguirre, Farm Labor Contractor, supra.)

This case presents a classic example of an employer blaming internal operating procedures for not filing a timely appeal form.

We do not find that good cause exists for reopening Employer’s appeal.

DECISION

Employer’s petition for reconsideration is denied.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: May 29, 2002