BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

MOUNTAIN CASCADE, INC.
P.O. Box 5050
Livermore, CA 94550

 

                              Employer

 

Docket No .

02-R1D5-9013

 

DECISION AFTER
RECONSIDERATION

 

The Occupational Safety and Health Appeals Board, (Board) acting pursuant to authority vested in it by the California Labor Code and having taken the petition for reconsideration filed in the above-entitled matter by Mountain Cascade, Inc. (Employer) under submission, makes the following decision after reconsideration.

JURISDICTION AND BACKGROUND INFORMATION

On August 17, 2000, Steve Williams (Williams), a compliance officer for the Division of Occupational Safety and Health (Division), conducted a permit inspection at a place of employment maintained by Employer at West American Canyon Road, American Canyon, California (the site). On that same date, Williams issued a field citation alleging a serious violation of section 1541.1(b) [excavation safety] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations.1 A civil penalty of $2,700 was proposed for the violation.

Williams gave a copy of the citation to Pedro Paredes (Paredes), a foreman for Employer at the site. No copy of the citation was ever mailed to Employer by certified mail or other mail delivery system, and a copy of the citation was never presented to an officer of Employer’s corporation or a person designated as a proper recipient of service.

By letter dated August 28, 2001, the State of California, Department of Industrial Relations, Accounting Unit, notified Employer that it still owed $2,700 as a result of the citation issued on August 17, 2000. Employer claimed this was its first notice of the citation and filed an appeal from the citation on September 17, 2001.

On April 15, 2002, the Appeals Board issued an Order denying the late appeal, finding that good cause had not been demonstrated for filing the appeal late. Thereafter, on May 3, 2002, Employer filed a petition for reconsideration arguing that Paredes had never been served with the citation. On May 21, 2002, this Board issued an Order to Show Cause advising the parties that Barbara E. Miller, Presiding Administrative Law Judge, would conduct a hearing and make a factual determination regarding the issue of service of the citation.

A hearing was held in Santa Rosa, California on June 17, 2002. Ray Towne, Staff Counsel, represented the Division. Robert D. Peterson, Attorney, represented Employer. The Notice of Hearing specifically stated that the hearing was to determine whether Paredes was personally served and whether Paredes was a proper recipient of service of the citation. The parties presented oral and documentary evidence and were given a full opportunity to examine and cross-examine witnesses and the matter was submitted.

On June 25, 2002, after considering a report from its Presiding ALJ, the Appeals Board took the petition for reconsideration under submission and gave the parties an opportunity to file written briefs on the facts and issues presented at the aforementioned evidentiary hearing.

ISSUE

At the evidentiary hearing, Employer withdrew its contention that Mr. Paredes had not been given a copy of the citation. Accordingly, the only issue before us is as follows:

Did personal service of the citation on Paredes constitute sufficient and appropriate notice to Employer of the citation?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

This decision after reconsideration is based upon our independent review of the evidence presented at the hearing, the audiotapes, and long-standing Board precedent on the issue of personal service.

For purposes of this proceeding, the circumstances surrounding service of the citation are no longer in dispute. On August 17, 2000, Williams conducted a permit inspection of a large development site at which Mountain Cascade was performing the underground work. Williams observed what he considered to be a violation, a fact Employer disputes. After Williams spoke with Paredes, the excavation was filled in so that the depth, without shoring, was acceptable. In other words, if there was a violation, it was immediately abated.

At the hearing, Paredes described himself as a labor foreman. He had worked for Mountain Cascade for 16 years, but was promoted to the position of foreman approximately nine to ten months prior to the inspection. Mountain Cascade had approximately 250 employees on the date of the inspection. Paredes was the foreman for a crew of 9. He considered his brother, Raphael Paredes, to be a lead laborer. From time to time, an operating engineer was also on site, working the excavator.

At the time of the inspection, Williams asked no questions about Paredes’s duties and responsibilities for Mountain Cascade. He did not seek to identify the superintendent or any other individual at a level higher than that of Paredes, although Williams did determine that there was a tool shed at the site but no job site trailer and that there was no superintendent on site at the time of the inspection.

Paredes testified that his job was to see that the work got done properly and safely. He had no authority to hire, fire, or discipline, and if he saw a safety infraction, he was to notify the Safety Coordinator, Leslie Flannery. The superintendent visited the job site daily. Paredes had no authority with regard to the management of the company and he was not authorized to make any expenditure using company funds. In addition, although the Appeals Board has not made it a requirement for personal service, Paredes had not been designated as a proper recipient of service for the corporation. Paredes gave Williams the name of the CEO for Mountain Cascade.

Roger Williamson, a Vice President for Mountain Cascade testified that the corporation is in good standing and was so at the time of the inspection on August 17, 2000. Its officers are registered with the Secretary of State. He knows that the corporation is in good standing because it is the contractor on a number of public works projects and good standing is a condition for being awarded public works contracts. He testified that he knows there are no tax or other liens against the corporation.

The Division acknowledged that it made no effort to serve Employer by certified mail following delivery of the field-issued citation. When Williams returned to his office he presented his work to the District Manager. Williams indicated that review by the District Manager is necessary to make sure that compliance officers conform to the Division’s policies and procedures. The District Manager signed the original citation and that signed copy is in the Division’s files.

Based on the evidentiary record described above, Employer argues that the Division did not satisfy the standards for personal service set forth by the Appeals Board in North Bay Construction, Inc., Cal/OSHA App. 80-1489, Decision After Reconsideration (Dec. 30, 1981) and Abbett Electric Corp., Cal/OSHA App. 79-1449, Decision After Reconsideration (Dec. 30, 1981). Employer argues that even though Paredes got a copy of the citation that does not satisfy the Division’s burden of establishing effective service.

In North Bay, supra at pg. 3-4, the Board set forth its analysis and the standard for measuring the adequacy of personal service. In that case, service was upon an equipment operator who was not a management employee. No evidence established that Employer delegated to him the authority to accept service of the citation or that Employer had actual notice of the citation until after receipt of the notice.

Notice or knowledge of a citation is obligatory so that an employer may exercise the right to contest a citation and the Division may require that it abate any violative condition. By requiring that the Division notify an employer of a citation by certified mail, the Legislature and the Director of Industrial Relations clearly intend that an employer is to receive notice by a means reasonably calculated to bring it to the attention of someone in authority. Thus, if there is to be a departure from the statutory requirement, the alternative method must be of equal significance. Personal service is a uniformly recognized and acceptable method of acquiring jurisdiction over a party and bringing something to someone's attention. It is the functional equivalent of service by certified mail. Personal service upon an employer in the context of these types of proceedings may even be preferred because it immediately brings a citation for a hazardous or unhealthful condition to an employer's attention and starts the abatement period for that condition.

For personal service to have the same assurances of notice as service by certified mail, personal service must be upon someone responsible for conducting an employer's business affairs. Such a person would normally be part of an employer's management. It is reasonable to expect that actual notice of a citation to this type of person will result in notice to whomever has the authority to contest the citation, or order the disbursement of funds to pay a penalty or abate a violative condition. Personal service of a citation upon anyone else does not insure its being brought to the attention of someone in authority. Absent proof or a stipulation of actual notice to an employer, the Division has the burden of establishing that a citation was served upon an employer by personal service upon a member of employer's management, or was served upon an employer by certified mail. Any doubt the Division has about the status and authority of the person personally served may be resolved by following-up personal service with service by certified mail. [Emphasis added.]

In Abbett, supra, a companion case, the Division served a labor foreman who was not the highest ranking person on the job site. Employer denied ever receiving the citation. The Division failed to show that the labor foreman was responsible for conducting Employer's business affairs. In that case the Board held:

The test for personal service is whether service is reasonably calculated to bring the citation to the attention of someone in authority, someone who is responsible for conducting an employer's business affairs. A person in charge of a job site is not necessarily a management employee and is not necessarily responsible for conducting business affairs or dealing with the Division.

The Division argues that Paredes clearly had authority beyond that of an ordinary labor foreman because he had under his control a lead laborer and an operating engineer, two men who were at a rank higher than a mere laborer. Contrary to the Division’s contentions, the record supports a finding that Paredes was a labor foreman, a status that is not determined by the rank of the people being directed. Even if his status was somewhat higher, there is no evidence that he was a representative of management for purposes of service. Even though Paredes was the highest-ranking representative of Employer at the time of the inspection, the superintendent was at the site daily and Paredes clearly had no role in the management of the corporation or in conducting its business affairs. He was not authorized to expend any money and, even in matters of safety, he was to contact Employer’s safety coordinator.

The Division also cites several Decisions After Reconsideration to support its position that a foreman is a member of the management team. It is true that there are many cases where the Appeals Board has found that a foreman is a representative of the employer for purposes of attributing knowledge to an employer of safety infractions. California Erectors, Bay Area, Inc., Cal/OSHA App. 84-337, Decision After Reconsideration (Sept. 26, 1985). If a foreman or even a leadman, depending on job duties, is present, aware of, or commits a safety violation, an employer may not avail itself of the independent employee action defense. Davey Tree Surgery Company v. Occupational Safety and Health Appeals Board (1985) 167 Cal. App. 3d 1232. Similarly, statements made by a foreman may be considered admissions by the employer, capable of overcoming certain rules of evidence.

The Appeals Board, however, has always made a distinction between the level of supervision required with regard to employer knowledge for purposes of serious and willful violations, and the level of responsibility necessary for personal service. The obvious legal distinction is that the former provides an evidentiary rule imputing a foreman's knowledge to an employer for purposes of establishing a serious or willful violation while the latter provides a standard for providing effective service of a citation consistent with fundamental concepts affording due process for an employer and establishing personal jurisdiction over an employer in the matter which is the subject of administrative action.

The distinction is also rooted in the fact that the statutory scheme in the Occupational Safety and Health Act favors service of citations by means of certified mail. Indeed, the provisions that address the time for filing appeals explicitly state that the time begins to run after receipt of notice or citation “served by certified mail.” (Labor Code §6319)

Although not the issue presented here, we are of course mindful of the importance of expeditious action when an imminent threat exists to the health or safety of any employee. We note that in such cases, the Division has the authority to issue an order prohibiting use. (Labor Code §6325). Such action was not necessary here because Paredes immediately corrected what the Division perceived to be the problem.

We are also mindful of the fact that the requirements placed upon the Division are not onerous. Williams returned to his office and the District Manager signed off on the citation issued in the field on August 19, 2000, two days after the inspection. The importance of notification to the proper representative of a corporation, when balanced against the minor inconvenience of sending a document by certified mail, must prevail.

This matter was presented to the Appeals Board as a petition for reconsideration contesting an order denying leave to file a late appeal. On reconsideration, the Board has now determined that the citation was not properly served on Employer and sets aside the previous order denying leave to file a late appeal and allows the late appeal. However, it would not serve the parties or the public to require further proceedings because the citation was not properly served and the defect cannot be corrected in that more than six months have lapsed since the violation occurred. Accordingly, we must set aside the subject citation and the related civil penalty.

DECISION

Employer’s petition for reconsideration is granted and the citation and civil penalty are set aside.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: November 1, 2002

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