BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

AMS STAFF LEASING
14160 Dallas Parkway, #700
Dallas, TX 75340

 

                              Employer

 

 

Docket No.

01-R3D2-9251
and 9252

 

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 AMS Staff Leasing (Employer).

JURISDICTION

Between August 17 and August 23, 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 the corner of El Nopal and Master Boulevard, Lakeside, California (the site).

On September 1, 2000, the Division issued to Employer citations for an alleged serious violation of section 1670(a) [fall protection] and general violations of sections 1509(a) [Injury and Illness Prevention Program (IIPP)], Section 1509(b) [no written Code of Safe Practices] and section 3203(a)(7) [training and instructions in IIPP] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations.1

The citations were issued to both AMS Staff Leasing and RDS Unlimited. RDS Unlimited timely appealed the citations, AMS Staff Leasing did not.

On April 4, 2002, after full consideration of Employer’s explanation of why it was late, the Board issued an Order Denying Late Appeal. Employer’s original position was that they were:

[N]ot familiar with the workings of the Cal/OSHA system of citations and the Dual Employer relationship and responsibilities as outlined for California employers in the California Code of Regulations. As a staff leasing employer in the state of Texas, they deal with the Fed/OSHA regulations for nearly all other clients, except for the one related to this action, RDS Unlimited in San Diego, California. Fed/OSHA does not have a clear definition of the Dual Employer relationship of employers as California does. And Texas, well what else do I need to say-it’s a different world there.

The Division opposed the late filing on the ground that Employer’s misunderstanding of the appeal process does not constitute good cause for filing a late appeal.

EVIDENCE

No hearing has been held in this matter. In making this decision, the Board relies upon its independent review of the entire record in this case which includes the Board’s file.

ISSUE

Has Employer provided good cause for reversing the Board’s order denying its late appeal?

REASON FOR DENIAL
OF
PETITION FOR RECONSIDERATION

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).)

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 are not persuaded by Employer’s contention that it should be excused from following the Occupational Safety and Health Appeals Board time lines because it is located in Texas and unfamiliar with California occupational safety and health law. We agree with the Division’s contention stated in its letter dated November 9, 2001, that Employer’s misunderstanding of the appeal process does not constitute good cause for filing a late appeal2.

Employer further suggests that the letter sent by the Board on September 11, 2001 requesting the completion and return of enclosed appeal forms caused Employer to believe that the appeal was accepted by the Board as timely. The Board’s letter directed Employer to return the completed appeal forms by September 24, 2001 and Employer faxed the completed appeal forms that date to the Board.

Employer’s claim is misplaced. The Board’s letter dated September 11, 2001 specifically acknowledged receipt of Employer’s “intent to appeal” effective July 7, 2001, which “is hereby acknowledged as the date of your appeal for purposes of determining whether it was timely filed”. (See §359(a).) It further directed Employer to complete and timely return the enclosed appeal form in order “to perfect your appeal.” (§359.1(b))3

Both the letter and the cited regulations distinguish between two requirements for “filing” an appeal and “perfecting” an appeal. The 15 working day period to file an appeal begins to run from an employer’s receipt of a citation issued by the Division, not from the receipt of appeal forms sent to it by the Board. (Lab. Code §6601.) The 15 working day deadline is plainly stated on each citation and as the Board has previously held, provides adequate notice of the appeal period. (See Brick “N” Wire, Inc., Cal/OSHA App. NDN, Denial of Petition for Reconsideration (Feb. 10, 1981.) When an appeal is initiated by means other than the submission of an appeal form with the citation attached, the Board has no way of knowing the issuance date of the citation or the service date of the citation from which to calculate the 15 working days to determine the timeliness of an appeal until the forms are returned with the citations attached. Once the forms and citations are submitted, the Board may need to request the certified mail return receipt to determine exactly when the citations were received by an employer, to determine the timeliness of an appeal.

Since Employer was informed that July 7, 2001 was the effective date for purposes of determining whether the appeal was timely, any reliance upon the deadline for submitting completed appeal forms—for purposes of perfecting an appeal and determining its timeliness—is unjustified and misplaced.

DECISION

Employer’s petition for reconsideration is denied. The Board’s Order Denying Late Appeal issued April 4, 2002, is affirmed.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: June 24, 2002

1 Unless otherwise specified all references are to sections of Title 8, California Code of Regulations.
2 In its petition for reconsideration Employer asserts and discusses a defense to the citations based upon the “dual employer” scenario and its status as an employee leasing company. These points address the merits of the case – not whether “good cause” exists to extend the statutory deadline for filing an appeal which is the only issue before us. Employer was the entity issued the subject citation and was responsible for timely filing an appeal therefrom.
3 Failure to timely return the completed appeal forms may provide an independent basis for dismissing the appeal (§359.1(b))