BEFORE THE
OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
DEPARTMENT OF INDUSTRIAL RELATIONS
STATE OF CALIFORNIA

In the Matter of the Appeal of:

FOOD TOWN (IGA)
J. GILL INTERNATIONAL, INC.
2224 El Camino Avenue
Sacramento, CA 95821

                                        Employer

  Docket Nos. 98-R2D1-9312
                     through 9314

 

DECISION AFTER RECONSIDERATION AND ORDER TO DOCKET APPEAL

The Occupational Safety and Health Appeals Board (Board), acting pursuant to authority vested in it by the California Labor Code, and having granted the petition for reconsideration filed in the above-entitled proceedings by Food Town (IGA) (Employer) issues a decision after reconsideration and order docketing appeal.

JURISDICTION

From October 23 through 31, 1997, a representative of the Division of Occupational Safety and Health (Division) conducted an inspection at a place of employment maintained by Employer at 2224 El Camino Avenue, Sacramento, California. On April 7, 1998, the Division issued to Employer Citation No. 1, alleging two general violations, and Citation Nos. 2 and 3 each alleging a serious violation of California industrial safety orders found in Title 8 of the California Code of Regulations. Civil penalties totaling $2,200 were proposed for the alleged violations.

Employer filed the documentation for its appeal of the citations with the Board on May 13, 1998. Pursuant to Labor Code section 6601, Employer has only fifteen working days from receipt of the citations to file an appeal. In this case, Employer’s appeal was due May 1, 1998. Because the first record the Board had of Employer’s appeal was the documentation submitted on May 13, 1998, (12 days past the deadline to appeal) the Board mailed Employer a letter inviting it to submit a statement explaining why the appeal was not filed in a timely manner.

On July 13, 1998, Employer responded with a declaration indicating that Employer's president, Janak S. Gill (Gill), had been out of the country during the time the citations were received at Employer’s place of business, and upon his return Mr. Gill went to the office of the Division, instead of the Board, to discuss his appeal. The Board reviewed Mr. Gill’s declaration and following long-standing Board precedent that "internal operating problems" such as Employer’s do not constitute "good cause" for a late appeal, on January 26, 1999, issued an Order Denying Late Appeal. On February 11, 1999, Employer filed a petition for reconsideration. The Division did not file an answer.

On March 23, 1999, the Appeals Board issued a Denial of Petition for Reconsideration of the Board’s Order Denying Late Appeal. The denial was based on the fact that the Appeals Board’s records indicated that the appeal was 12 days late, and the explanation proffered by Employer did not constitute good cause for the late filing. Once again, Mr. Gill, as he had in the July 1998, letter, presented the same explanation about being out of the country and going to the Division office but provided no specific dates.

Employer immediately responded to the denial of petition for reconsideration and this time provided the Appeals Board with information, including specific dates, indicating that the appeal may have been timely. In light of that information, and in order to protect Employer’s appeal rights and to insure that the Division had an opportunity to respond to Employer’s information, the Board issued an Order Rescinding Denial of Petition for Reconsideration; Granting Petition for Reconsideration and Request for Additional Evidence. That Order was issued on April 27, 1999, and gave Employer 15 working days from the date of the Order to submit an explanation as to why Employer’s appeal was timely. The written explanation was to be accompanied by a declaration made under penalty of perjury that any facts set forth in the statement are true and based upon personal knowledge of the declarant. Employer was also instructed to send a copy of the written statement and accompanying declaration to the Division. The Division was given 15 days to respond.

On April 30, 1999, Employer provided the detailed explanation, with an accompanying declaration, and proof of service on the Division. No response or objection was received from the Division. Based on the evidence contained in Employer’s declaration, the Board finds that the appeal was not late.

Employer received the citations from the Division on April 10, 1998, making May 1, 1998, the last day employer could file an appeal. Employer’s president, Janak S. Gill (Gill) was out of the country until April 28, 1998. On the following day, April 29, 1998, Mr. Gill opened the envelope containing the citations, read the appeal information, and called the Appeals Board to initiate an appeal. Due to some miscommunication, the Appeals Board’s receptionist, instead of taking the appeal information, instructed Mr. Gill to go to the Division office on Arden Way in Sacramento, California.

The next day, April 30, 1998, Mr. Gill went in person to the Division office in Sacramento and asked to talk to the manager. The Division office made an appointment for Mr. Gill to meet with Mr. William Estakhri, the Division district manager, on May 12, 1998. The meeting took place, and at that time Mr. Estakhri advised Mr. Gill that he had to file his appeal with the Appeals Board. On May 13, 1998, Mr. Gill personally delivered the appeal forms to the Appeals Board office.

ISSUE

Did Employer initiate its appeal within the 15-day statutory filing period?

REASONS FOR DECISION

Labor Code section 6601 provides that if an employer fails to notify the Board of its intent to appeal within 15 working days after receiving a citation, the citation shall be deemed a final order of the Appeals Board.

Here, it is undisputed that Employer’s written appeal was not filed with the Board until May 13, 1998, 12 days past the due date. The issue before the Board is whether or not Employer took sufficient steps to initiate its appeal in a timely manner, even though the forms were not received by the Board until after the May 1, 1998, deadline.

Attached to every citation issued to Employer is an information packet that sets forth an Employer’s appeal rights and provides clear instructions as to when and where an appeal must be initiated. The information sheet advises Employer that it must "contact the Appeals Board, in writing or by telephone, within 15 working days from the date of receipt of a Citation." The address and phone number for the Appeals Board is boldly set forth. A phone call to the Board will initiate the appeal and stay the 15-day filing period and appeal forms will then be sent to the caller to be returned within ten days. (359(a); 359.1(b).) Employer’s declaration, signed by Mr. Gill, declares that a telephone call was made to the Appeals Board on April 29, 1998 making the appeal timely.

In addition, Mr. Gill went in person to the Division office on April 30, 1998, still within the statutory deadline. Although appeals must be initiated with the Appeals Board, and not the Division, an appeal initiated in error with the Division, as long as it is timely, is considered a timely appeal.

So although Employer, through Mr. Gill, did not give the Board receptionist the necessary appeal information when he called on April 29, 1998, nor did he initiate the appeal in person when he went to the Division office on April 30, 1998, it appears that Employer did take prompt and timely steps to preserve its appeal rights.

Under these circumstances, and in light of the absence of any opposition from the Division, the Board concludes that Employer’s call to the Board on April 29, 1998, was timely, and the appeal will be deemed initiated as of that date.

DECISION

The decision of the Board dated January 26, 1999, denying Employer’s request to file a late appeal is reversed. Employer’s appeal will be docketed and both a prehearing conference by phone and a hearing will be scheduled.

JAMES P. GAZDECKI, Chairman

BILL DUPLISSEA, Member

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

SIGNED AND DATED AT SACRAMENTO CALIFORNIA – June 9, 1999