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

In the Matter of the Appeal of:

PIERCE ENTERPRISES INC.
11310 Stewart Street
El Monte, California 91731

                                 Employer

Docket No. 95-R6D2-1378

 

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 granted the petition for reconsideration filed in the above-entitled matter by Pierce Enterprises Inc. (Employer), makes the following decision after reconsideration.

JURISDICTION

Employer is a scaffolding subcontractor and was performing work on the Los Angeles Metro Rail project. On March 6, 1995, a representative of the Division of Occupational Safety and Health (the Division) commenced an inspection at 617 Shatto Place, Los Angeles, California, where an underground subway station was being constructed where Employer maintained a place of employment. On April 7, 1995, the Division issued to Employer Citation No. 1, alleging a regulatory violation of section 341(f)(1) [notification of scaffolding erection], and proposing a civil penalty of $275, and Citation No. 2, alleging a serious violation of section 1644(c)(6) [scaffold uplift protection by means of lock pins or equivalent], and proposing a civil penalty of $1,715.

Employer timely appealed both citations on April 13, 1995. The appeal from Citation No. 1 contested the reasonableness of the penalty and abatement changes required. The appeal from Citation No. 2 contested the violation’s existence, the appropriateness of the classification and the reasonableness of the changes required for abatement. Employer's appeal form also asserted there was no real hazard of "uplift" to the scaffold in question.

On November 14, 1995, the Division filed a written motion to amend Citation No. 2 to allege a violation of section 1644(c)(5) [not using couplings or stacking pins to properly align scaffold legs vertically], rather than 1644(c)(6). An administrative law judge (ALJ) of the Board granted the motion, over Employer's objection, at a hearing on January 18, 1996. The ALJ, over the Division’s objection, granted Employer’s motion to expand its appeal to include the reasonableness of the penalty proposed for Citation No. 2. After the hearing, the ALJ issued a decision dated May 14, 1996, denying Employer’s appeal from both citations and assessing $1,990 in civil penalties.

On May 30, 1996, Employer filed a petition for reconsideration of the ALJ’s decision. Employer requested reconsideration only of Citation No. 2. On June 28, 1996, the Division filed an answer to the petition. On July 10, 1996, the Board granted the petition and stayed the ALJ’s decision pending a decision on the petition for reconsideration.

EVIDENCE

In making this decision, the Board relies upon its independent review of the entire evidentiary record in this case, including the tape recording of the hearing and each exhibit admitted into evidence. The Board has taken no new evidence.

ISSUE

Did the ALJ have statutory authority to grant the Division's motion to amend the citation to allege new facts constituting a different violation more than six months after the violation?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

The ALJ Did Not Have Statutory Authority to Grant the Division's Motion to Amend the Citation to Allege New Facts Constituting a Different Violation More Than Six Months after the Violation.

At the beginning of the hearing on January 18, 1996, the ALJ entertained the Division's prehearing written motion to amend the citation, which had been filed and served on November 14, 1995. The Division representative conceded that notwithstanding the statement in the written motion to the contrary, the amendment sought to change not only the section number but also the violation's factual description, giving it a different factual basis. Except for the location of the scaffold in question, the entire description of the violation would be replaced with language tracking another, newly cited safety order. The initial citation concerned the hazard of "uplift" as it might impact the scaffold in question, thus requiring scaffold frame legs to be locked together with securing pins. The amendment sought rather to focus on the scaffold legs' misalignment due to alleged failure to use "stacking couplings" or "stacking pins." The Division acknowledged that the motion was filed more than 6 months after the first citation was issued. However, the Division argued that Employer would not be surprised by the amendment since the Division had issued (on the second day of the inspection) an Order Prohibiting Use (OPU) of that scaffold, referring to section 1644(c)(5). The Division conceded that the citation it issued after the OPU did not refer to section 1644(c)(5) or the scaffold alignment problem. The ALJ nevertheless granted the motion and proceeded with the hearing.

The record raises an issue concerning the jurisdiction of the Division and the Appeals Board, which the parties may not waive, and which can be raised even for the first time on reconsideration, including by the Board itself, when the record justifies such a course. (Sierra Wes Drywall, Inc., OSHAB 94-1071, Decision After Reconsideration (Nov. 18, 1998).)

The sixth paragraph of Labor Code section 6317 states:

No citation or notice shall be issued by the division for a given violation or violations after six months have elapsed since occurrence of the violation.

Board regulation section 371.2(a), promulgated under the authority of the Labor Code provision above, states in part that: "An amendment by the Division that alleges a new violation may be permitted by the Appeals Board, but not after six months have elapsed since the occurrence of the alleged violation." [Emphasis added.] Neither the Division nor the Appeals Board may expand the Legislature’s grant of authority established under Labor Code section 6317, notwithstanding the wishes of the parties. (Sierra Wes Drywall, Inc., supra.)

Although the statutory language in section 6317 is clear, both this Board and its federal counterpart have carved out an exception to the six-month requirement, which extends only as far as necessary to achieve the legislative intent. The exception applies solely to situations where an employer neglects to perform a statutory duty (e.g., to timely report a serious injury accident to the Division), hampering the Division’s ability to timely discover, investigate, and cite a violative condition. (Sierra Wes Drywall, supra.) The six-month period is then "tolled" and begins to run when the Division discovers the violation. Whether or not the employer can demonstrate prejudice or surprise in allowing an amendment is irrelevant under these circumstances to new violations first alleged beyond the six-month statutory period. (Ibid., p. 6.)

Although not an exception to the six-month requirement, the Board has adopted the "relation back" doctrine, which was not affected by the Board’s decision in Sierra Wes, supra. The doctrine states that an amendment to a citation filed beyond the six-month period that was issued within the period does not constitute a new violation if it "relates back" to the original citation. An amendment "relates back" where the proposed amendment seeks merely to substitute the section cited, not the factual description of the violation. (Kenko, Inc., OSHAB 92-473, Decision After Reconsideration (Dec. 6, 1994).) An amendment also relates back where, although the proposed amendment "reframes" the Division's theory alleged in the violation's factual description, the citation relies on the same facts as the original allegation. (A.L.L. Roofing & Building Materials Corporation, OSHAB 92-290, Decision After Reconsideration (Sept. 12, 1994), p. 3.)

In this case, neither the exception to the six-month time bar nor the relation-back doctrine renders the amendment timely under the statutory command in Labor Code section 6317. Employer did not challenge the ALJ's finding that it neglected to notify the appropriate Division office when it commenced erecting the scaffold, which was well before the inspection. But the Division first observed the scaffold on March 6, 1995, and the underlying conditions the Division cited ceased to exist after March 9, 1995, when the Division lifted the Order Prohibiting Use, after determining that Employer had complied with Division abatement instructions. Thus, any citation alleging a violation had to have been issued no later than six months from that date no later than September 9, 1995. Here, the Division did not file a motion to amend the citation until November 14, 1995, more than two months past the six-month statutory period, indeed more than seven months after it issued the original citation.

The allegation constitutes a new violation because they do not truly "relate back" to the same set of facts and elements that the Division was relying upon to prove the initial violation in Citation No. 2. The amendment here did not seek merely to substitute a section number, leaving the factual description unchanged. Nor were the facts to be relied upon the same. As initially issued, the Division's burden in Citation No. 2 included establishing the existence of an "uplift" hazard to the scaffold. The mandated safeguard to address the uplift hazard is locking scaffold leg sections together, which would logically require using securing pins at the top portion of each bottom leg and the bottom portion of the scaffold's upper legs. The amended violation, alleging an alignment hazard, required proof that stacking couplings were not used to ensure proper alignment of the scaffold legs. The safety order requiring coupling or stacking pins for alignment purposes does not mandate the stacking pins be locked together vertically. Hence, the facts and elements of proof required to establish either a violation or a defense would be distinct, as would the parties' legal theories.

The Division's motion to amend the citation therefore alleged a new violation. The amendment did not relate to the same set of facts alleged in the original citation, and was made after the six-month statute of limitations period elapsed on September 9, 1995. The proposed amendment was beyond the authority of the Appeals Board to grant. The order granting the amendment, issued after that date, is therefore void. No evidence was presented to support the original citation.

The Board will therefore grant Employer’s appeal, setting aside the citation and, therefore, the associated civil penalty.

DECISION AFTER RECONSIDERATION

The ALJ decision dated May 14, 1996, is reversed. Employer's appeal from Citation No. 2 is granted, and the citation is set aside.

JAMES P. GAZDECKI, Chairman
BILL DUPLISSEA, Member
OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
SIGNED AND DATED AT SACRAMENTO, CALIFORNIA – August 23, 1999