BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA


In the Matter of the Appeal of:

ALVINO RODRIGUEZ, JR. dba ARTWOOD FINE FURNITURE MFG.

2434 Seaman Ave.

So El Monte, CA 91733

                              Employer

 

 

Docket No.

97-R6D2-3466

and

98-R6D2-1823 through 1836

  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 issued an Order of Remand of the petition for reconsideration filed in the above-entitled matter by Alvino Rodriguez Jr. dba Artwood Fine Furniture Mfg. (Employer), makes the following decision after reconsideration.

JURISDICTION

Between November 17, 1997, and May 14, 1998, a representative of the Division of Occupational Safety and Health (Division) conducted a high hazard inspection at a place of employment maintained by Employer at 2434 Seaman Avenue, South El Monte, California. Following the inspection the Division issued to Employer 15 citations alleging regulatory, general and serious violations of the occupational safety and health standards and orders found in Title 8, California Code of Regulations and proposed civil penalties totaling $25,265.

Employer filed a timely appeal from the citations contesting the existence and classification of all alleged violations, the reasonableness of the abatement requirements, and the reasonableness of each proposed civil penalty.

A hearing was held on February 23, 1999. At the hearing the Division moved to reduce the civil penalties for Citation Nos. 13 and 14 and to reduce the classification and the civil penalty for Citation No. 15. The total amended civil penalties were $19,150. Employer withdrew its appeal from all the citations and the civil penalties, as amended, and requested relief from the civil penalties based on financial hardship. Following the hearing, an administrative law judge of the Board (ALJ) issued a Consolidated Decision denying Employer’s appeal from the citations and finding that Employer had failed to introduce adequate financial documentation to establish a viable financial hardship defense. The ALJ also found, pursuant to prior Board precedent, that it was not appropriate to reduce civil penalties where, as in this case, Employer had made almost no effort to abate the violations.

On April 13, 1999, Employer filed a petition for reconsideration of the ALJ’s decision. The gravamen of the petition was that Employer wanted an additional opportunity to present the ALJ with documentation in support of the financial hardship defense. Employer alleged that due to a misunderstanding with the Division attorney as to what was required to support this defense, Employer did not bring adequate documentation and witnesses to the hearing.

On May 12, 1999, the Appeals Board inadvertently issued an Order of Remand of Employer’s petition. On June 2, 1999, the Board rescinded the Order of Remand and granted Employer’s petition for the limited purpose of allowing Employer the opportunity to verify and serve its petition on the Division. On May 18, 1999, Employer verified the petition and served it on the Division. On August 5, 1999, the Appeals Board issued an Order of Remand for the presiding administrative law judge to conduct further proceedings in this matter. A new hearing was scheduled to be held on December 1, 1999, but Employer failed to appear.

EVIDENCE

The Board has taken no additional evidence. In making this decision the Board relies upon the entire record in this case, including all documents in the Board’s file.

ISSUE

Should Employer be allowed to provide additional evidence regarding its financial hardship?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

The Board sent the Notice of Hearing to Employer’s address by first class mail on August 31, 1999. The ALJ and the Division representative appeared for the hearing on December 1, 1999, but Employer failed to appear.

Section 383 of the Board’s regulations authorizes the Board to reinstate an appeal upon a showing of good cause. The regulation provides that after a party fails to appear at a hearing, the Board may reschedule the hearing if the non-appearing party files a written motion requesting that the Board do so. The motion must contain sufficient facts to establish a reasonable basis, or “good cause” for the failure to appear.

On September 13, 2000, the Appeals Board sent to Employer by certified mail a Notice of Intent to Dismiss Appeals. The Notice stated that Employer’s appeal would be dismissed unless Employer provided the Board with a written motion to reinstate the appeal within 10 days. The Notice explained that the written motion must contain sufficient facts to establish that Employer’s failure to appear at the hearing was reasonable and for good cause.

Employer did not send to the Board any explanation for its failure to appear at the hearing and therefore has failed to provide good cause to reschedule the hearing. Since Employer failed to provide additional support for its claim of financial hardship the Board cannot provide relief to Employer from the $19,150 in civil penalties.

DECISION AFTER RECONSIDERATION

The decision of the ALJ dated April 1, 1999 is reinstated and affirmed. Employer’s appeal is denied. Civil penalties totaling $19,150 are assessed.

BILL DUPLISSEA, Member
MARCY V. SAUNDERS, Member

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
SIGNED AND DATED AT SACRAMENTO, CALIFORNIA - February 23, 2001