BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

E. TAPIA FOUR CROP CONTRACTOR
22080 Corning Road
Corning, CA 96021

 

                              Employer

 

Docket Nos .

02-R2D3-9132
through 9135

 

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 E. Tapia Four Crop Contractor (Employer).

JURISDICTION

Between October 15, and November 9, 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 22080 Corning Road, Corning, California (the site).

On December 5, 2001, the Division issued citations to Employer for serious violations of section 3439(a) [first-aid kit]; section 3457(c)(3)(G)3 [soap of other suitable cleansing agent and single-use towels shall be provided for handwashing; section 3440(c) [power take-off guarding]; section 3457(c)(3)(G)1 [pure, wholesome and potable water not available for handwashing purposes]; a general violation of section 3457(c)(2)(A) [toilet and handwashing facilities] and a repeat general violation of section 3203(a) [no written Injury and Illness Prevention Program] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations.1

Employer, through Eduardo Araya, Bookkeeper, initiated its appeal by phone on February 14, 2002 and submitted its appeal form on March 6, 2002. The deadline to appeal was January 14, 2002; therefore Employer’s appeal was filed 30 days late. The Board sent Employer a letter on May 15, 2002, asking it to explain why the appeal was filed late. Employer was given until May 30, 2002, to respond. Employer’s response was not received by the Board and on October 3, 2002, the Board issued an order denying Employer’s appeal as untimely. Employer filed a timely petition for reconsideration on November 7, 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’s representative received the citations on December 19, 2001.

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.

In this case, Employer’s representative initiated the appeal by telephone on February 14, 2002, and submitted an appeal form on March 6, 2002. The Board’s file contains a return receipt from the U.S. Post Office indicating that the citations were received by Employer on December 19, 2001, making the deadline to file an appeal January 14, 2002.

Employer justifies its late filing by referring the Board to a letter ostensibly sent to the Board on May 27, 2002. That letter, which was never received, states in relevant part that:

The above mentioned inspection was appealed late due to the fact that when the original papers were mailed to me and received at my address. I was out of the country, in Mexico. I was still out of the country by the time that this was to be appealed. Please note that I left for Mexico prior to Christmas and did not return until the end of January of this year. Had I been here in the U.S.A., this would have been appealed on a timely basis.

Employer fails to mention in any of his correspondence that the citations were sent by certified mail and signed for on December 19, 2001, by a Jose Diaz. Employer does not explain why Jose Diaz or Eduardo Araya, his bookkeeper, who ultimately pursued the appeal, failed to timely follow up on the citations. He does not assert that they didn’t have authority to conduct his business, only that he was out of the country.

In that regard, this case is a typical case of an employer’s internal operating procedures being to blame for not prosecuting the appeal timely.

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, 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]; 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]; and 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].) The Board held in Jesse Aguirre, Farm Labor Contractor, supra, at p.2, that 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.”

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 October 3, 2002, denying Employer’s late appeal.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: December 27, 2002

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