BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

In the Matter of the Appeal of:

JOHN GRIFFIN CONSTRUCTION
P.O. Box 71303
Santee, CA 92072

                              Employer

  Docket No. 99-R3D2-566

 

 

DENIAL OF PETITION
FOR RECONSIDERATION

     

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 John Griffin Construction (Employer).

JURISDICTION

On August 26, 1998, a representative of the Division of Occupational Safety and Health (the Division) conducted an inspection at a place of employment maintained by Employer at Oakdale Street and Craig Avenue, Pasadena, California. On January 22, 1999, the Division issued to Employer Citation No. 1 alleging a serious violation of section 2946(b)(2) [handling energized overhead power lines] with a proposed civil penalty of $4,000.

Employer filed a timely appeal from the citation. On January 19, 2000, the date the matter was scheduled for hearing, the parties entered into a settlement agreement before administrative law judge (ALJ) of the Board for disposition by a written order. On January 31, 2000, the ALJ issued an order reflecting the parties’ agreement. Under the settlement agreement, Employer withdrew its appeal of Citation No. 3 and the related $4,000 civil penalty. The Division withdrew Citations Nos. 1 and 2.

On March 1, 2000, Employer filed a timely petition for reconsideration. The Division did not file an answer.

REASONS FOR DENIAL
OF
PETITION FOR RECONSIDERATION

Labor Code section 6617 sets forth five grounds upon which a petition for reconsideration may be based. They are:

    1. 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.
    2. That the order or decision was procured by fraud.
    3. That the evidence does not justify the findings of fact.
    4. That the petitioner has discovered new evidence material to him, which he could not, with reasonable diligence, have discovered and produced at the hearing.
    5. 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’s petition for reconsideration relies on Labor Code section 6617(d), which allows the Board to reopen a proceeding to receive new material evidence that could not have been discovered and produced at the hearing with reasonable diligence. Employer presents contentions of a newly discovered legal theory and newly discovered factual evidence. Employer also contends that it was misled into believing that a request for a continuance would be granted, by implication invoking Labor Code section 6617(b) as grounds for reconsideration.

The Newly Discovered Law Raised by Employer Does Not Provide a Basis for Reconsideration.

Employer states that the violation occurred when one of its employees put his hand directly on a 16,000 volt line. The safety order cited by the Division in Citation No. 1, section 2496(b)(2) of the High Voltage Safety Orders, requires that employees maintain a clearance of at least six feet from an overhead power line of that voltage. The Division cited Employer for the same conduct in Citation No. 3 under section 8602(h) of the Telecommunications Safety Orders. Table TC-1 in section 8602(h) allows employees engaged in telecommunications work to approach within 36 inches of a 16,000 volt line. Employer states that at some time after it withdrew its appeal, it determined that section 8600(b) of the Telecommunications Safety provides that requirements in other subchapters, including the Electrical Safety Orders, do not apply to telecommunications work if the hazard involved is more specifically addressed by the Telecommunications Safety Orders. Section 8602(h) Table TC-1 is arguably more specific than section 2496(b)(2) of the High Voltage Safety Orders, part of the Electrical Safety Orders.

The Board does not find the belated contention that section 8602(h), Table TC-1, takes precedence over section 2496(b)(2) to be grounds for granting reconsideration. If section 8602(h) were applicable rather than section 2946(b)(2), a violation would still be found because the employee failed to maintain even the 36 inch clearance allowed by section 8602(h) when he placed his hand in direct contact with the 16,000 volt line. Further, this is not an issue of newly discovered evidence, which can be grounds for granting reconsideration if it could not have been discovered with the exercise of diligence, but of newly discovered law. All parties before the Board have the duty to discover legal issues before the hearing, and failure to do so does not provide a basis for granting reconsideration. Finally, newly discovered law is not recognized by Labor Code section 6617(d) as a ground for granting reconsideration.

Employer Did Not Have a Reasonable Basis for Assuming that the Continuance Request It Jointly Made with the Division Would Be Granted.

Employer contends that it was unfairly disadvantaged on the date the hearing was scheduled, January 19, 2000, because it had assumed that a continuance would be granted. Employer states that about a week before the January 19, 2000, hearing date, it joined in the Division’s motion for a continuance, which Employer states was to be based on the ill health of the injured employee, an important Division witness. The Division’s request for a continuance made to the Board and served on Employer on January 12, 2000, was based solely on the employee’s reluctance to testify in a Board proceeding during the pendency of the employee’s lawsuit arising out of the accident.

Section 371.1 of the Board’s regulations states that continuances are disfavored, and requires that good cause be shown if the request for a continuance is made more than 15 days after the service of the hearing notice. The Board’s notice of hearing form repeats these statements. The Division’s January 12 request was denied by the presiding administrative law judge on January 14, 2000, as lacking good cause. Both the Division and Employer were informed of the denial on January 14, 2000, the same day that the presiding administrative law judge ruled on the requests.

Employer states that at some unspecified date after it agreed to the Division’s request for a continuance but before it learned that the continuance had been denied, Employer contacted calendaring personnel at the Board about the possibility of a continuance. The unnamed person or persons told Employer’s representative that the Board would get back to Employer with new dates. Employer’s representative advised its owner that he was not needed for the hearing on January 19. The owner left on a business trip for the week of January 19.

The Board notes that in this appeal, Employer’s representative had made two prior requests for continuance which were granted, one on August 17, 1999, the other on September 8, 1999. Both requests for continuances were made in letters addressed to the presiding administrative law judge. In both instances, the presiding administrative law judge ruled on Employer’s requests, and Employer was timely notified of the presiding administrative law judge’s rulings. Employer’s contact with the Board scheduling personnel did not give it any reasonable basis to assume that its continuance request had been or would be granted without formal notice of the presiding administrative law judge’s ruling on the request.

Employer Has Offered No New Material Evidence that It Could Not Have Discovered with Reasonable Diligence.

Employer’s petition states that as of the date for the hearing, the only defense it had advanced was the independent employee action defense. Employer states that the District Manager recommended that the Division accept Employer’s independent employee action as meritorious, and presented it for internal Division review. At some date before the hearing not disclosed in the petition, Employer was notified that the Division’s legal office had taken the position that the independent employee action defense was invalid because the injured employee was a supervisor. On this basis, Employer agreed to withdraw its appeal.

Employer states that the Division advised it before the hearing that its position that the injured employee was a supervisor was based on a workers’ compensation report that stated he was a supervisor. The employee had once been a supervisor, but had left to work for another employer for two years, then had returned to Employer as a non-supervisory employee several months before the accident. Employer makes no claim that, and provides no explanation as to why, with reasonable diligence, the employee’s non-supervisory status could not have been discovered before the date scheduled for hearing. Employer therefore failed to meet the burden imposed by Labor Code section 6617(d) on the party seeking reconsideration based on newly discovered evidence to show that the new evidence could not have been discovered before the hearing date with the exercise of reasonable diligence.

The Board finds that Employer’s appeal fails to raise any of the grounds for reconsideration required by Labor Code section 6617. Employer’s petition is therefore denied.

DECISION

Employer’s petition is denied and the order dated January 31, 2000, is affirmed.

BILL DUPLISSEA, Member MARCY V. SAUNDERS, Member

SIGNED AND DATED AT SACRAMENTO CALIFORNIA - April 20, 2000