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


In the Matter of the Appeal of:

BRINKS INCORPORATED

One Thorndal Circle

Darien, CT 06820

                              Employer

 

 

Docket No.

97-R3D1-2197

 

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 the Division of Occupational Safety and Health (the Division), makes the following decision after reconsideration.

JURISDICTION

From December 18, 1996 through January 8, 1997 Jagdev Dhillon, a representative of the Division, conducted an inspection at a place of employment maintained by Brink's, Incorporated (Employer) at 798 North Batavia, Orange, California. The Division issued the Citation on January 10, 1997 alleging a general violation of section 3203(a)1 [illness and injury prevention plan] with proposed a civil penalty of $560. The Division served Employer at its Orange, California branch office. The Division did not serve Employer's attorneys, who had represented Employer during the inspection.

On March 17, 1997 Dhillon conducted a follow-up inspection at Employer's place of employment because Employer had not advised the Division that the violation had been abated. A notification of failure to abate (the notification) was issued on April 4, 1997 with a proposed a civil penalty of $5,625. Employer timely appealed the notification.

At a prehearing conference, Employer stated that it would file a motion with the Board to appeal the underlying citation because the citation had not been served on Employer's attorney. The motion was filed on November 21, 1997. The Division did not file an answer to Employer's motion.

The case was heard before administrative law judge (ALJ) Jack L. Hesson. James E. Kellett, Attorney at Law, represented employer. Jagdev Dhillon, Compliance Engineer, represented the Division. At the hearing, the ALJ granted Employer's motion to appeal the citation, noting that the Board's regulations provide that in a hearing on a notification of failure to abate, the existence of the underlying citation may be litigated. In a written decision issued on September 17, 1998, the ALJ set aside the notification, finding that the Division had failed to properly serve the citation.

On October 22, 1998, the Division filed a petition for reconsideration. Employer filed an answer on December 1, 1998.2 On December 11, 1998, the Board granted the Division's petition.

EVIDENCE

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

The original inspection resulted from a shooting of an employee. In the course of the investigation, Dhillon spoke to Jeffrey Pagano, Employer's attorney in New York. Dhillon requested that Pagano provide a copy of Employer's illness and injury prevention plan (IIPP). Pagano provided Employer's IIPP in a letter dated January 8, 1997. The letter referred to the earlier conversation between Dhillon and Pagano. The only violation disclosed by the inspection was that Employer's safety program documents did not include in a single IIPP document the name of the person responsible for safety and a process for identifying hazards.

The Division served the citation alleging that Employer's IIPP violated section 3203(a) by certified mail, but sent it only to Employer's Orange, California address. Tony Villaflor, manager of Employer's Orange office, believing that its attorneys were handling the matter, did not notify the attorneys or file an appeal. The citation became a final order of the Board by virtue of Labor Code section 6601.5 and judgment was entered against Employer in the amount of $560 on October 7, 1997.

Because no notice of abatement or other response had been received from Employer, Dhillon made a follow-up inspection on March 17, 1997. The follow-up inspection disclosed that the IIPP was unchanged. The Division therefore issued a citation on April 4, 1997, alleging that the citation had not been abated. Employer timely appealed, and the notification proceeded to hearing.

The ALJ found that the evidence showed that Employer's IIPP did not include a document that identified a responsible individual or a procedure for identifying and correcting hazards. The ALJ found that because the Division had failed to serve the citation on Employer's attorney, the notification had not been validly issued.

ISSUE

Did the Division's failure to serve the citation on the attorney it knew was representing Employer invalidate the later notification of failure to abate the violation?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

We find that the ALJ properly granted Employer's motion to reopen the citation and set aside the notification because the underlying citation was not served on Employer's attorney who was representing Employer during the investigation.

The Division does not dispute that it was aware that an attorney was representing Employer by the time it issued its citation in this case. The Division's petition for reconsideration argues that the Board has repeatedly held that service of a citation on an employer's business address by certified mail is sufficient. The Division argues that the service by certified mail in this case only on Employer's Orange, California office was fully in compliance with the standards the Board has held were sufficient for valid service of a citation.

In none of the cases cited by the Division's petition was an attorney known to be representing the employer at the time the citation was served. In the only case cited by the Division involving service on an attorney, Hammerhead Framers, Inc., OSHAB 97-9107, Decision After Reconsideration (Dec. 4., 1997), the employer had been represented by an attorney in prior cases. The Division agent sought to personally serve the attorney. As the Division agent was attempting to make service, the attorney stated that he was not representing Hammerhead in the case, and was not authorized to accept service. The Board held that the validity of the attempted personal service turned on whether or not the attorney was representing the employer. In Hammerhead, the service on the attorney was found to be invalid, but only because of the express disclaimer by the attorney of authority to represent the employer.3

The filing of an appeal stays the obligation to abate the violation alleged in the citation. (Section 362.) The obligation to abate the violation or file an appeal is not triggered until the citation has been validly served. Because the notification, issued on April 4, 1997, alleges a failure to abate before the citation was validly served, the Board finds that the notification of failure to abate and its related additional civil penalty should be set aside in this case.

The Board finds that where the Division knows that an attorney represents an employer on an issue that will be the subject of a citation, valid service does not exist unless the attorney is served with the citation relating to that issue. (See, e.g., Lyydikainen v. Industrial Accident Comm. (1939) 36 Cal.App.2d 298, 301.)

DECISION AFTER RECONSIDERATION

The decision of the ALJ dated September 7, 1998 is affirmed. The appeal is granted and the notification of failure to abate is set aside.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: April 26, 2001

1Unless otherwise specified, all section references are to Title 8, California Code of Regulations.
2 Employer also filed a motion for leave to file a supplemental petition on December 1, 1998, but did not file a petition for reconsideration. Section 392.3(a), governing the filing of supplemental petitions for reconsideration, permits a supplemental petition to be filed only if a timely petition for reconsideration has been filed. Because October 27, 1998 was the last date that Employer could have filed a petition for reconsideration under Labor Code section 6614, the Board has not considered Employer's motion to file a supplemental petition either as a motion or as a petition for reconsideration.
3 This does not preclude the Division form prosecuting a citation that has been validly served.