BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

 

In the Matter of the Appeal of:

RAINBOW CONSTRUCTION
P.O. Box 2769
Ukiah, CA 95482

                             Employer

  Docket No. 00-R1D5-9187

 

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 Rainbow Construction (Employer).

JURISDICTION

From February 22 through February 28, 2000, a representative of the Division of Occupational Safety and Health (Division) conducted an inspection at a place of employment maintained by Employer in the 1300 block of Hastings Road, Ukiah, California. On February 28, 2000, the Division issued to Employer a citation alleging a serious violation of section 3657(a)(2) [elevated work platform not chained to mast], with a proposed civil penalty of $2,025. The period to file an appeal expired on March 22, 2000.

Employer filed its appeal from the citation on March 28, 2000, six days past the deadline to appeal. The Board mailed a letter to Employer on May 17, 2000 giving Employer until May 31, 2000 to provide an explanation of why the appeal was not filed in a timely manner. Employer did not submit a letter of explanation to the Board.

On September 14, 2000 since no response had been received from Employer, the Board issued an Order Denying Late Appeal.

On October 10, 2000, Employer filed a petition for reconsideration asking the Board to reverse its previous order. The Division did not file an answer.

EVIDENCE

No hearing has been held in this matter. In making this decision, the Board relies upon its independent review of the entire record in this case.

ISSUE

Has Employer provided good cause for reversing the Board’s order denying its late appeal?

REASONS FOR DENIAL
OF
PETITION FOR RECONSIDERATION

Labor Code section 6601 provides that if an employer fails to notify the Board of its intent to appeal within 15 working days after receiving a citation, the citation shall be deemed to be a final order of the Board, not subject to review by any court or agency. This section also vests the Board with the discretion to extend the statutory deadline upon a showing of good cause. The Board’s regulations state that an extension of the appeal period may be granted where sufficient facts are shown to establish a reasonable basis for the late filing. ( 359(b).)

Section 359 of the Board’s regulations allows an appeal to be initiated by a telephone call. Section 359.1 of the Board’s regulations require that if an appeal is initiated other than by the filing of an appeal form, that a completed appeal form must be filed within 10 days after the appeal was initiated.

Under established Board procedure, when an appeal is filed by telephone, a Board employee completes a telephone contact form establishing the date the appeal was initiated. Then an appeal form with a cover letter explaining the process of filing an appeal is sent by a Board employee to the employer with a 10 day deadline to return the form.

Had Employer telephoned the Appeals Board on or before March 22, 2000, its appeal would have been accepted in that initial telephone conversation, and the cover letter sent out with the appeal form would have acknowledged a date on or before March 22, 2000, as the date for determining whether the appeal was timely filed.

It is undisputed that the citation was received by Employer on March 1, 2000, by certified mail, making March 22, 2000 the final day to initiate a timely appeal. Employer’s appeal was not filed until March 28, 2000, when Employer called the Board to initiate its appeal, six days past the due date. A completed appeal form was received by the Board on April 11, 2000.

It is also undisputed that Employer did not provide any response to the Board’s May 17, 2000 letter in which the Board requested good cause for the late filing of Employer’s appeal. Because the Board did not receive any statement of cause for the lateness of the appeal from Employer, the Board issued its September 14, 2000 order denying late appeal. In its petition for reconsideration, Employer states it has no record of having received the Board’s May 17, 2000 letter.

The only reason Employer offers for the late initiation of the appeal is a claim that it was given a six day extension of time to file past the due date by Susan Florentine, a Board employee, in a telephone conversation.

Employer’s petition does not state what date it alleges Susan Florentine granted it a six day extension of time to file its appeal. The Board’s file shows that Employer’s first contact with the Appeals Board was a telephone call on March 28, 2000 handled by a Board employee other than Susan Florentine. The Board’s file shows Susan Florentine did not become involved in Employer’s appeal until March 29, 2000 when, pursuant to an established Board procedure, she signed a cover letter transmitting an appeal form to Employer. The cover letter stated that the Board acknowledged March 28, 2000 as the date of Employer’s appeal for determining whether it was timely filed.

Therefore, the only record as to when Employer could have had a telephone conversation with Susan Florentine establishes that it would not have been until after Employer’s first contact with the Appeals Board on March 28, 2000. Employer’s only explanation, that Susan Florentine gave it an extension of time to file its appeal, could not have occurred until after March 28, and therefore does not explain Employer’s six day delay in filing its appeal. Ms. Florentine may have granted Employer an extension of time to return a completed appeal form, which the Board has authority to do. Had Employer telephoned the Board to initiate an appeal by March 22, there would have been no reason for Employer to have requested, or for the Board to have granted, a six day extension to initiate the appeal. The telephone call would have been sufficient to initiate the appeal, and no extension of time would have been necessary.

Employer’s petition provides no explanation or reason for its appeal having been initiated six days after the period allowed by Labor Code section 6601. In the absence of any explanation of the six day delay, the Board finds Employer has not shown good cause for the Board to accept its appeal.

Because no grounds have been shown to reverse the Board’s order denying its late appeal, Employer’s petition for reconsideration is denied.

DECISION

Employer’s petition for reconsideration is denied. The order of the Board dated September 14, 2000 denying Employer’s late appeal is affirmed.

BILL DUPLISSEA, Member MARCY V. SAUNDERS, Member

SIGNED AND DATED AT SACRAMENTO, CALIFORNIA - November 22, 2000