BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

QUALITY STRUCTURES, INC.
P. O. Box 1493
Temecula, CA 92503

 

                              Employer

 

Docket No .

02-R3D2-9084

 

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 Quality Structure, Inc. (Employer).

JURISDICTION

Between May 18 and August 7, 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 Highland Park and Toussaches Way, Fallbrook, California (the site).

On August 20, 2001, the Division issued a citation to Employer alleging general violations of section 1509(a) [no effective Injury and Illness Prevention Program established]; section 1509(e) [tailgate meetings]; and section 1512(b) [emergency medical services] and a regulatory violation of section 14301(a) [private employer not maintaining injury and illness log] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations.1 The citation was received by Employer on August 23, 2001 and the deadline to appeal was September 14, 2001.

Employer’s representative signed an appeal form on September 24, 2001, it was mailed to the Appeals Board on October 4, 2001 and received by the Board on October 9, 2001. On October 17, 2001 the Board requested the return receipt card from the Division to determine when the citation was received by Employer. That card was received by the Board showing that Employer received the citations on August 23, 2001; it was signed by Tracy Cox. On October 30, 2001 the Board sent a letter to Employer asking for an explanation for the late filing of the appeal. On November 6, 2001 Employer’s representative responded but did not send a copy of the response to the Division as required. On January 2, 2002 the Board sent Employer’s explanation to the Division for their input. The Division did not respond and on May 22, 2002 the Board voted to deny the late appeal.

On September 11, 2002, the Appeals Board issued an “Order Denying Late Appeal” on the ground that good cause was not established for filing the appeal 20 days late.

Employer filed a timely petition for reconsideration on October 15, 2002.

ISSUE

Has Employer established good cause for filing its appeal 20 days late?

REASON FOR DENIAL
OF
PETITION FOR RECONSIDERATION

Employer seeks to have the Board accept its late filed appeal. Initially, in asserting good cause existed for filing a late appeal, Employer stated that:

1. Its staff did not turn the citation over to the owners because they were confused. They thought that they had to fill out a 160 form for the division (signed statement of abatement) before they could appeal the citations.
2. The representative was on vacation and Employer did not send the citation to him until he got back.
3. Employer’s representative was confused – he thought he had called the Board and initiated the appeal within the 15 working day deadline.

These reasons were considered and rejected by the Board as not constituting good cause for filing a late filed appeal. Employer now contends in its petition for reconsideration that:

Quality Structures has spent over $100,000 on fall protection to keep their personnel safe. Proof of how safe they are, they received 4 generals related to paperwork only as a result of a sweep/CSHIP. As you will agree this is an endorsement on their concern of safety, especially when the best safety engineer Mil Dunn, who is respected, wrote the violations and did not find a serious violation relating to personnel.

I realize that it is the responsibility of my client to process the appeal paper work in a timely matter, however after an investigation of whom was at fault, we have found that the person in charge, who is no longer with Quality Structures, did not bring it to anyone’s attention because she was about to be fired for lack of performance and wanted to hurt the company.

It is impossible to always be responsible for all your employees.

Since Kaweah Construction Company, Cal/OSHAB App. 87-9005, Denial of Petition of Reconsideration (Mar. 5, 1987) [paperwork issued to non-management employee rather than a management employee] 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 September 11, 2002, denying Employer’s late appeal.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: December 4, 2002

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