BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

MASCON, INC.
P. O. Box 255802
Sacramento, CA 95865

 

                              Employer

 

Employer Docket No.

02-R2D1-9008

 

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 Mascon, Inc. (Employer).

JURISDICTION

Between October 2, 2001 and October 29, 2001, a representative of the Division of Occupational Safety and Health (the Division) conducted an inspection at a place of employment maintained by Employer at 8625 Serio Way, Elk Grove, California (the site).

On November 14, 2001, the Division issued to Employer a citation for a serious violation of section 1670(a) [lack of fall protection] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations.1

Employer initiated its appeal by phone on December 17, 2001 and submitted its appeal form on January 3, 2002. The Board sent Employer a letter on January 31, 2002 asking it to explain why the appeal was filed late. Employer was given until February 15, 2002 to respond. Employer did not respond and on July 16, 2002, the Board issued an order denying Employer’s appeal as untimely. Employer filed a timely petition for reconsideration on July 29, 2002.

EVIDENCE

No hearing has been held in this matter. The Board relies upon its independent review of the record in this case including the pleadings and correspondence submitted by each party, the citation and the certified mail return receipt indicating that Employer received the citation on November 16, 2001.1

ISSUE

Has Employer established good cause for filing a late appeal?

REASON FOR DENIAL
OF
PETITION FOR RECONSIDERATION

Labor Code section 6319 states that an “employer has 15 working days from receipt of the notice [of citation] within which to notify the appeals board that he or she wishes to contest the citation or order…”

Title 8, California Code of Regulations, section 359 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.

On November 16, 2001, at the U.S. Post Office, Employer’s owner received and signed for a mailing sent certified, return receipt requested from the Division, which contained the citation that was issued November 14, 2001.

Employer initiated its appeal in this matter on December 17, 2001, which was 6 days late.

On July 16, 2002, the Board denied the appeal because Employer failed to timely explain why the appeal was filed late.

On July 29, 2002, Employer petitioned for reconsideration from the order denying late appeal contending that it had notified the Board by way of facsimile on February 15, 20022, that:

MASCON Inc. received the citation on 11/16/01, a Friday. It is dated 11/14/01. The citation was forwarded to the subject jobsite staff for formal review and reply back to the main office by 11/22/01, Thanksgiving Day. This did not happen. The jobsite superintendent thought the main office was preparing the reply. We at the main office directed the superintendent to handle it at the jobsite level. When I inquired of Wayne Lukins (superintendent) of the outcome of the appeal on 12/14/01, he advised us of his misunderstanding. We immediately contacted Ms Kathleen Veloria on 12/17/01 and requested an appeal. She followed up with the required form on 12/20/01 and we filed our written appeal.

Mascon concluded that:

We respectfully request that the above be considered reasonable justification for an extension of the appeal period.

As we have noted several times in the past, Kaweah Construction Company, Cal/OSHA App. 87-9005, Denial of Petition for Reconsideration (Mar. 5, 1987) is the Board’s seminal case on good cause when the proffered excuse is that the citations did not timely reach the desk of the appropriate party. In Kaweah Construction Company, 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, supra, at p. 2.) The 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 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 of 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 of Reconsideration (Nov. 18, 1992) [branch manager did not properly handle citation]; Jesse Aguirre, Farm Labor Contractor, Cal/OSHA App. 93-9013, Denial of Petition of Reconsideration (June 10, 1993) [appeal misplaced during move of its office]; and Laselco Pacific, Cal/OSHA App. 96-9084, Denial of Petition of 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, at p. 2.

Like the cases cited above, this case presents an example of a failure of an employer’s internal operating procedures. Under the facts presented in this case, we believe that we are properly exercising the discretion vested in the Board by insisting on timely appeals and find that Employer has not established good cause for filing an untimely appeal.

DECISION

The Board affirms its Order dated July 16, 2002, denying Employer’s late appeal.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: September 17, 2002

1 Unless otherwise specified, all section references are to Title 8, California Code of Regulations.
2 The Board did not receive the facsimile in question, but for purposes of this petition it is deemed timely sent.