BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

In the Matter of the Appeal of:

PACIFIC CAST PRODUCTS, INC.
8831 Cedar Street
Bellflower, CA 90706

                                     Employer

  Docket Nos. 99-R4D2-2855                       through 2858

 

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 Pacific Cast Products, Inc. (Employer).

JURISDICTION

On January 14, 1999, a representative of the Division of Occupational Safety and Health (Division) conducted an inspection at a place of employment maintained by Employer at 8831 Cedar Street, Bellflower, California (the site). On June 1, 1999, the Division issued to Employer citations alleging general and serious violations of the General Industrial Safety Orders appearing in Title 8 of the California Code of Regulations, with proposed civil penalties totaling $4,225.

Employer filed timely appeals from the citations, contesting the existence of the violations in Citation No. 1 and the reasonableness of the proposed civil penalties for Citation Nos. 1 through 4. In a decision dated May 2, 2000, an administrative law judge of the Board (ALJ) denied Employer’s appeal and assessed civil penalties totaling $4,225.

On June 2, 2000, Employer filed a petition for reconsideration. The Division filed an answer on June 16, 2000.

EVIDENCE

The Board has taken no new evidence in this case.

ISSUE

Has Employer raised a valid ground for reconsideration of the ALJ’s decision?

REASONS FOR DENIAL
OF
PETITION FOR RECONSIDERATION

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

(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 provides 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.

While not specifically stated in statutory terms, Employer’s petition contends that the evidence does not support the ALJ’s findings that the safety orders had been violated as alleged in Citation Nos. 2, 3, and 4.

Employer did not contest the existence of the violations in Citation Nos. 2, 3, and 4 on its appeal forms that it filed as to those citations. Rather, it checked only that it was contesting the appropriateness of the civil penalties. Employer at no time moved to amend its appeals of Citations Nos. 2, 3, and 4 to contest the existence of the violations alleged in those citations.

Section 361.3 of the Board’s regulations requires that an employer specifically indicate whether the appeal contests the existence of the alleged violation. Employer did not mark the appeal form to indicate that the safety order had not been violated, i.e., that the violation did not exist.
Rather, it contested only the reasonableness of the civil penalties proposed by the Division in Citation Nos. 2, 3, and 4. At no time did Employer amend its appeal. Where an employer appeals only the reasonableness of the civil penalty, the violation’s existence is established by operation of law. Employer is therefore precluded from contesting the existence of the violation on reconsideration.

The petition alleges that the compliance officer "repeatedly lied" by testifying that two different band saws were shown in two different Division photographs, and that only a single band saw was shown by the photographic evidence. Employer’s position is contrary to the ALJ’s credibility finding, which was supported by substantial evidence. Employer failed to present substantial evidence to reverse the ALJ’s credibility resolution. Employer’s position is contradicted by its own signed statements of abatement for Citation No. 4. The statements of abatement refer to two different band saws, "verticle [sic] band saw #1, mfg. Moore Machine," and to "[y]ellow color verticle [sic] band saw mfg. Cresent Machine Co."

Employer did contest the existence of Citation No. 1, Items 1, 2, and 3 in its original appeals, but the ALJ, based on her crediting the Division’s evidence, found violations. Employer’s petition as to Item 1 relies solely on an amended citation issued by the Division after the Item as originally issued had been appealed. Because the Division had no jurisdiction to issue an amended citation after the appeal had been filed, the amended citation has no effect. As to Item 3, the petition does not challenge the evidence that Employer failed to secure the drill press. Employer contends that the top of the drill press was not as high as a typical table or workbench and that the drill press was not heavy enough to cause an injury. Neither of these contentions puts in issue the ALJ’s finding that the drill press was not secured as alleged in the citation and required by the safety order. Further, the photographic evidence shows that the top of the drill press is considerably above a workbench or table next to it. Employer’s petition raises no grounds for finding that the evidence does not support the ALJ’s finding that the safety orders were violated as alleged.

Employer contends that the ALJ decision impermissibly increased the amounts of the civil penalties.

Employer bases its contention that civil penalties for Citation Nos. 1, 2, 3 were impermissibly increased over those proposed by the Division on its proffered evidence that the Division offered to settle for less before hearing. The Board has held that offers of settlement are not admissible as evidence in its proceedings. Employer’s other basis for contending that the civil penalties for Citation Nos. 1, 2, and 3 were impermissibly increased is that the Division issued amended citations and an amended notice of proposed penalties reducing the civil penalties and classifications for these citations on November 24, 1999, after Employer had filed its appeal. Because appeals of each of these citations had been filed before November 24, 1999, the Division was without authority to amend the citations or proposed civil penalties. The Division did not move to amend the citations in the proceeding before the Board, therefore the amended citations had no effect in the proceeding that had come under the Appeals Board’s jurisdiction as the result of Employer having filed its appeal. The amended citation never became a part of the Board’s proceeding, and therefore, may not be considered by the Board for any purpose.

Employer’s petition therefore fails to raise any grounds to prove that the facts found by the ALJ do not support the decision, and the Board therefore denies Employer’s petition.

DECISION

Employer’s petition for reconsideration is denied. The decision dated May 2, 2000, is affirmed and civil penalties totalling $4,255 are assessed.

BILL DUPLISSEA, Member MARCY V. SAUNDERS, Member

SIGNED AND DATED AT SACRAMENTO, CALIFORNIA - July 19, 2000