BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

J.M.C. BUILDING SERVICE
970 Terra Bella Avenue, #1
Mountain View, CA 94043

 

                              Employer

 

Employer Docket Nos.

02-R1D3-009
through 014

 

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 J.M.C. Building Service (Employer).

JURISDICTION

On July 19, 2001, a representative of the Division of Occupational Safety and Health (the Division) conducted a planned inspection at a place of employment maintained by Employer at 1855 South Grant Street, San Mateo, California (the site).

On December 5, 2001, the Division issued to Employer the following citations, alleging serious violations of sections 3294(c)(1) [perimeter guarding system], 3286(d)(5) [knots in lanyards], 3286(a)(4) [anchorages], 3286(a)(1)(A) [use of boatswain chairs], 3212(d)(1) [guardrails], and a general violation of section 3282(p)(2) [written assurances or OPOS], of the occupational safety and health standards and orders found in Title 8, California Code of Regulations.1

Employer filed a timely appeal contesting the existence of the alleged violations, the abatement requirements, and the reasonableness of the proposed penalties. Employer also alleged that the employees involved did not work for J.M.C. Building Service.

On June 17, 2002, a telephonic prehearing conference was held before Dale A. Raymond, Administrative Law Judge (ALJ) of the Board. Juan A. Contreras, Owner, represented Employer. Allyce Kimerling, Staff Counsel, represented the Division.

At the prehearing conference, the Division made the following motions, without objection:

1) To reduce the proposed penalty for Citation No. 6 under section 336(k) to $270 as it addressed the same fall hazard as Citation No. 2; and
2) To withdraw Citation Nos. 4 and 5 as the safety orders did not apply to Employer.

Good cause having been established, the motions were granted.

The parties agreed that the penalties, totaling $5,770 would be payable in 11 monthly installments of $480 and a final payment of $490 beginning September 1, 2002. Failure to make an installment by the fifth day of the month shall result in the remaining balance becoming immediately due and payable without further order.

Employer moved to withdraw its appeals from the citations, as amended. The motion was granted and the agreement of the parties was accepted. An order was issued by the ALJ on June 18, 2002 affirming the agreement of the parties.

On July 23, 2002, Employer filed a timely petition for reconsideration requesting that, “…all OSHA citations against JMC Building Service be withdrawn in this matter.”

REASON FOR DENIAL
OF
PETITION FOR RECONSIDERATION

Employer wants the citations issued against it withdrawn alleging in relevant part, “…our legal grounds are simple and clear …this was not our building, items used were not our equipment, and those involved in the work were not our employees.”

Employer further states that:

We have recently been informed by our accountant and our insurance company, that the ramifications of being found at fault on any of these violations will have a drastically expensive and lengthy impact on our company, both financially and on our reputation.

Labor Code section 6617 sets forth five grounds upon which a petition for reconsideration may be based:

(a) That by such order or decision made and filed by the appeals board or hearing officer, the appeals board acted without or in excess of its powers.
(b) That the order or decision was procured by fraud.
(c) That the evidence does not justify the findings of fact.
(d) That the petitioner has discovered new evidence material to him, which he could not, with reasonable diligence, have discovered and produced at the hearing.
(e) That the findings of fact do not support the order or decision.

Employer’s petition fails to satisfy any of the grounds enunciated in Labor Code section 6617. Employer entered into an agreement with the Division and now does not want to live up to that agreement, ostensibly because the violations will have an impact on the reputation of the company and its finances.

Employer does not allege that the order on stipulation was procured by fraud. Rather, it appears that Employer was not prepared to participate meaningfully in the negotiations because of a lack of preparation on its part to fully understand the appeals process and the ramifications of admitting the violations.

We held in Timothy J. Kock, Cal/OSHA App. 01-9135, Denial of Petition for 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.” We further held that “[i]t 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….” Inherent in the obligation to familiarize oneself with the appeal process is the obligation to familiarize oneself with the consequences of admitting a violation. In the instant case Employer admitted to the violations but apparently was unprepared for the prehearing conference. To grant the petition in the absence of fraud would unduly prejudice the rights of others to prompt and final resolutions of appeals.

In addition, it would create the undesirable consequence of diminishing the integrity of the appeals process by rewarding unprepared litigants and those who change their minds upon learning of the adverse impact on the reputation of the company and its finances.

We find that petitioner has not established that the order of the ALJ based upon the agreement of the parties was procured by fraud as provided in Labor Code section 6617(a) and hereby deny Employer’s petition for reconsideration.


DECISION

The Board affirms the ALJ’s order and the assessment of a $5,770 civil penalty.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: September 10, 2002

1 Unless otherwise specified all references are to sections of Title 8, California Code of Regulations.