Section 340.44 - Conduct of Hearing

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Chapter 3.2. California Occupational Safety and Health Regulations (CAL/OSHA)
Article 1.6. Adjudicative Hearings--General Rules of Practice and Procedure--Denial, Suspension or Revocation of Permits, Licenses, Certifications, Registrations or Other Authorizations and Orders Prohibiting Use, Issued by the Division of Occupational Safety and Health

(a) The Presiding Officer shall be responsible for receiving evidence both from Division representatives and the appellant and shall issue a decision as set forth in this article. Parties shall have the opportunity to present relevant documentary or other evidence through the presentation of direct testimony, the cross-examination of witnesses, and the rebuttal of any evidence presented during hearing. The Presiding Officer may also examine witnesses or request the presentation of additional relevant evidence.

(1) Upon motion, the Presiding Officer may exclude witnesses from the hearing room. Each party may designate one representative who may stay in the hearing room, even if the representative will also serve as a witness.

(2) A party may appear in person or through a representative who is not required to be an attorney.

(3) Designated employee representatives may make written request to participate in the hearing if it is established that such participation will be relevant to any issues presented at the hearing.

(4) The Presiding Officer shall receive evidence under oath or affirmation under penalty of perjury. The hearing shall be tape-recorded, unless the parties agree to some other method of recording the hearing. If the parties do not agree to an alternative method of recording, the Presiding Officer shall make the official record of the hearing by tape recording, and may allow each party to make and pay for an additional record if, in the Presiding Officer's opinion, the making of the additional record or records would not unduly disrupt the proceedings.

(b) The hearing shall not be subject to the technical rules relating to evidence or witnesses. However, only relevant evidence of the sort responsible persons are accustomed to rely upon in conducting serious affairs shall be admitted and relied upon in rendering a decision. Hearsay evidence is admissible but, if objected to, may not be solely relied upon without other supporting evidence unless the hearsay would be admissible over objection in a civil proceeding.

(c) Any hearing conducted pursuant to this article shall be open to the public as required pursuant to Government Code section 11425.20.

(d) During all stages of a hearing, the Presiding Officer and all parties to the hearing shall be subject to the provisions of Article 7 (commencing with section 11430.10), of Chapter 4.5 of Part 1, Division 3, Title 2 of the Government Code regarding ex parte communication.

(e) The matter shall be deemed submitted at the conclusion of the hearing unless some other submission date is agreed to between the parties or otherwise designated by the Presiding Officer.

(f) The Presiding Officer shall, on behalf of the Director or Division, issue and serve a written decision on the parties no later than thirty (30) calendar days after submission of the matter for decision, except as follows.

(1) The time for issuance and service of the decision may be extended by the Presiding Officer for good cause.

(2) For an Order Prohibiting Use, a decision concerning the validity of the order shall be made as soon as possible, but not more than two working days, after the conclusion of the hearing.

(g) Decisions shall be in writing and shall include findings of fact and conclusions supporting the decision. However, at his or her discretion, a Presiding Office may issue a preliminary decision without setting forth findings of fact and conclusions supporting the decision, as long as a complete decision is issued within the time period provided in this section.

(h) Any right to request review of the decision shall be governed by the specific regulation or statute authorizing the action taken by the Division.

Authority cited: Sections 60.5 and 6308, Labor Code; and Section 11400.20, Government Code. Reference: Sections 60.5, 6308 and 6308.5, Labor Code; and Section 11400.20, Government Code.