In the Matter of the Appeal of:

P.O. Box 713083
Santee, CA 92072


  Docket No. 99-R3D2-1705




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 proceeding by Bourgeois, Inc. (Employer).


From September 29, 1998, through February 1, 1999, a representative of the Division of Occupational Safety and Health (the Division) conducted an inspection at a place of employment maintained by Employer at Westgate Los Coches Reservoir, Lakeside, California. On March 5, 1999, the Division issued to Employer Citation No. 1 alleging a general violation of section 3328(b) [failure to follow manufacturer’s maintenance recommendations] with a proposed civil penalty of $100.

On April 5, 1999, Employer filed a timely appeal from the citation, raising the independent employee action defense.

A hearing was held and on February 7, 2000, an administrative law judge (ALJ) of the Board issued a decision, finding that Employer had violated section 3328(b), and assessing a civil penalty of $100. Employer filed a timely petition for reconsideration on March 7, 2000. The Division did not file an answer.


Employer’s petition for reconsideration failed to meet any of the statutory grounds for reconsideration of a decision of an ALJ. Labor Code section 6617 sets forth five grounds upon which a petition for reconsideration may be based. They are:

(a) That by such order or decision made and filed by the appeals board or hearing officer, the appeals board acted without or in excess of its powers.

(b) That the order or decision was procured by fraud.

(c) That the evidence does not justify the findings of fact.

(d) That the petitioner has discovered new evidence material to him, which he could not, with reasonable diligence, have discovered and produced at the hearing.

(e) That the findings of fact do not support the order or decision.

Labor Code section 6616 requires that:

The petition for reconsideration shall set forth specifically and in full detail the grounds upon which the petitioner considers the final order or decision made and filed by the appeals board or a hearing officer to be unjust or unlawful, and every issue to be considered by the appeals board.

Employer does not state in its petition which ground or grounds for reconsideration it is relying upon.

The Division cited Employer, alleging that it had violated section 3328(b) by failing to follow manufacturer’s recommendations in replacing a bolt holding a blade on an Ammbusher mower, a large piece of brush mowing equipment.

Employer, on its docketed appeal form, did not mark the box indicating that it was contending that the safety order was not violated, but stated only that it was the result of the employee’s failure to follow Employer’s instructions and procedures. Employer did not amend its appeal at any time during the proceeding.

Section 361.3 of the Board’s regulations provides:

The issues on appeal shall be limited to those set forth in the Division action that is contested by the filing of a docketed appeal . . . .

The ALJ found, based on the appeal form, that Employer’s appeal was limited to the independent employee action defense. The independent employee action defense concedes the existence of a violation, but allows the employer not to be held responsible for the violation if the employer can show that it made adequate efforts to prevent the independent act of the employee that caused the violation. The employer must prove each of the five elements of the defense. The first element of the independent employee action defense is that "[t]he employee was experienced in the job being performed."

The ALJ found that Employer failed to prove that the employee was experienced in the job being performed within the meaning of the independent employee action defense. The ALJ pointed out that the Board has consistently held that where the work involved is potentially highly dangerous, the employee must have sufficient experience to have become reasonably proficient in performing the specific operation on the type of machine involved in the violation. The evidence showed that the deceased employee had worked for Employer for six months, but had only eight hours experience operating the Ammbusher mower, the type of machine involved in the violation. The evidence gave no indication that the employee had replaced a bolt holding a blade on an Ammbusher mower during his eight hours of experience, or that it could be inferred without any other evidence that eight hours of operation of an Ammbusher mower would probably be enough for the employee to become proficient at replacing the bolts used to hold blades in place. The ALJ therefore found that the employee was not experienced in replacing a blade on an Ammbusher mower, and that therefore, the independent employee action defense was not established.

The main thrust of Employer’s petition is that the evidence fails to establish the existence of the violation alleged, that the employee failed to follow the manufacturer’s maintenance recommendation. For the first time at the petition for reconsideration stage, Employer seeks to prove that the violation did not occur. It may not do so. Section 390 of the Board’s regulations precludes Employer from raising any matters on reconsideration which were not determined or covered by the decision.

Only one contention in the petition addresses Employer’s independent employee action defense, the sole issue raised in the appeal. Employer contends that the employee had worked on brush-mowing equipment made by other manufacturers. The ALJ’s findings agree with this contention. Employer also contends that such work on other equipment gave the employee sufficient experience to satisfy the first element of the independent employee action defense. The ALJ found that the Ammbusher brush mower was different than the types of equipment that the employee had substantial experience with. Employer contends that a person experienced in the industry would understand that the difference between the Ammbusher mower and the other types of mowers the employee operated is not significant. Employer does not explain how any evidence in the record supports this argument, as required by Labor Code section 6616.

The Board therefore finds that Employer’s petition fails to allege any of the grounds for reconsideration allowed by Labor Code section 6617. Employer’s petition must be denied.


Employer’s petition is denied and the decision dated February 7, 2000, is affirmed.