375. Application of Article.

This article applies to all hearings before the Appeals Board, including a further hearing during reconsideration pursuant to Article 5 and a hearing on petition for costs pursuant to Article 6.

(a) The Appeals Board may assign to an Administrative Law Judge for hearing and order or decision, or for hearing and proposed order or decision, or for hearing before the Appeals Board itself, any proceeding, any further hearing during reconsideration pursuant to Article 5, and hearing on petition for costs pursuant to Article 6.

(b) The Appeals Board may assign to an Administrative Law Judge any other proceeding that requires a hearing and order or decision.

© The Appeals Board may transfer to another Administrative Law Judge any proceeding if no oral testimony has been received. In the event proceedings have commenced and the assigned Administrative Law Judge is unable to complete the proceeding because of death, extended absence or disqualification, the Appeals Board may reassign such proceedings to another Administrative Law Judge who shall conduct a hearing de novo. The hearing de novo may be waived if all parties stipulate that the newly assigned Administrative Law Judge may review the hearing record and all of the evidence received, and that the hearing may proceed as if he had presided from the beginning.

(d) The Appeals Board may assign a further hearing or supplemental proceedings to the Administrative Law Judge who heard the original proceeding.

(a) The name of the particular Administrative Law Judge assigned by the Appeals Board to a proceeding is available upon request at the time the proceeding is noticed for hearing.

(b) A party wishing to object to the assignment of any proceeding to a particular Administrative Law Judge upon any one or more of the grounds specified in section 641 of the Code of Civil Procedure shall, at least 5 working days prior to the scheduled hearing, file with the Appeals Board or Administrative Law Judge a motion to disqualify the assigned Administrative Law Judge together with supporting affidavit or declaration. The hearing shall not begin until the Appeals Board has ruled on the motion.

(a) Appeals shall be heard promptly.

(b) Appeals relating to a special order, order to take special action, the reasonableness of the abatement period and an expedited proceeding shall be given priority over other proceedings.

© If the parties submit a written stipulation agreeing to delay a hearing until the conclusion of a review of the case by the Bureau of Investigations, the Appeals Board shall delay the hearing for a period not exceeding two (2) years.

(d) The Appeals Board shall set the place of the hearing at a location as near as practicable to the place of employment where the violation is alleged to have occurred.

(a) Testimony shall be taken only on oath, affirmation, or penalty of perjury.

(b) Each party shall have these rights: To call and examine witnesses; to introduce exhibits; to question opposing witnesses on any matter relevant to the issues even though that matter was not covered in the direct examinations; to impeach any witness regardless of which party first called the witness to testify; and to rebut any opposing evidence. If a party does not testify on his or her behalf, the party may be called and examined as if under cross-examination.

© The Appeals Board may call and examine a party or witness and may, on its own motion, admit any relevant and material evidence.

1. The taking of evidence in a hearing shall be controlled by the Appeals Board in the manner best suited to ascertain the facts and safeguard the rights of the parties. Prior to taking evidence, the Appeals Board shall define the issues and explain the order in which evidence will be received.
1. Once a hearing has commenced and until a decision is issued, all motions or questions regarding the proceeding shall be referred to the assigned Administrative Law Judge. If written, the motion shall be served in a manner as prescribed in section 355© and proof of service meeting the requirements of section 355(e) shall be filed with the Appeals Board. An opposing party may respond in the manner and within such time as the Administrative Law Judge may direct.

(f) Continuance requests shall be entertained at the hearing only in cases of:

(1) unforeseen emergencies, including, but not limited to, death or illness of a party, witness, or representative, or (2) non-appearance of a subpoenaed witness whose testimony is material to the outcome of the proceeding.

The hearing need not be conducted according to technical rules relating to evidence and witnesses. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions. Hearsay evidence may be used for the purpose of supplementing or explaining other evidence but over timely objection shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. An objection to hearsay evidence is timely if made before submission of the case or raised in a petition for reconsideration. The rules of privilege shall be effective to the extent that they are otherwise required by statute to be recognized at the hearing and irrelevant evidence shall be excluded. The Appeals Board may exclude evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time.

(a) In reaching a decision, official notice may be taken, either before or after submission of the proceeding for decision, of any generally accepted technical or scientific matter within the field of occupational safety and health, and determinations, rulings, orders, findings and decisions required by law to be made by the Division, the Appeals Board or the Standards Board.

(b) The Appeals Board shall take official notice of those matters set forth in section 451 of the Evidence Code, including but not limited to:

(1) The decisional, constitutional, and public statutory law of this State and of the United States and the provisions of any county or city charter;

(2) The contents of each occupational safety and health standard and order or notice of the repeal of such standard and order;

1. The true signification of all English words and phrases and of all legal expressions;
1. Facts and propositions of generalized knowledge that are so universally known that they cannot reasonably be the subject of dispute.

© The Appeals Board may take official notice of those matters set forth in section 452 of the Evidence Code, including but not limited to:

(1) Regulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States;

(2) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States;

(3) Records of any court of this state or any court of record of the United States or of any state of the United States;

(4) Facts and propositions that are of such common knowledge within California that they cannot reasonably be the subject of dispute;

(5) Facts and propositions that are not reasonably subject to dispute and arecapable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.

(d) Each party shall give notice of a request to take official notice and be given reasonable opportunity on request to present information relevant to (1) the propriety of taking official notice, and (2) the tenor of the matter to be noticed.

(a) During the pendency of any proceeding, no exhibit filed or received in evidence shall be released into the custody of a party or representative except upon stipulation of all parties or upon order of the Appeals Board.

(b) At any time after a proceeding becomes final, the Appeals Board may, upon request or on its own motion, with or without notice, return to the owner or proponent, all exhibits of a physical, mechanical, or demonstrative character, unless the parties stipulate to some other disposition. The owner or proponent shall bear the cost of return of the exhibit.

(a) The hearing and prehearing conference shall be conducted in the English language. The Appeals Board shall notify each party of the right to an interpreter at the time they are notified of the date of the prehearing conference and of the hearing date.

(b) A party who does not proficiently speak or understand the English language or who requests an interpreter shall be provided, during the hearing or prehearing conference, an interpreter approved by the Appeals Board. A request for an interpreter shall be made to the Appeals Board no later than 10 working days prior to the date the interpreter is needed. The cost of providing the interpreter for a party shall be paid by the party requesting the interpreter unless the Appeals Board directs that the Appeals Board shall pay the cost of providing the interpreter due to financial hardship of the requesting party.

© If a party's witness does not proficiently speak or understand the English language, the terms and conditions set forth in subsection (b) shall apply. The party presenting the witness may request the Appeals Board to provide an interpreter under those terms and conditions. The cost of providing the interpreter for a witness shall be paid by the party presenting the witness unless the Appeals Board directs that the Appeals Board shall pay the cost of providing the interpreter due to financial hardship of that party.

(d) Language assistance for a party or a party's witness includes oral interpretation or written translation of a language other than English into English or of English into another language.

(e) A person whose name appears on the list of interpreters known to be proficient in various languages published by the State Personnel Board shall be eligible to be examined by the Appeals Board relating to terminology and procedures generally used in hearings before the Appeals Board.

(f) In the event that interpreters on the approved list cannot be present at the hearing or the prehearing conference, or if there is no interpreter on the approved list for a particular language, the Appeals Board may qualify and appoint other interpreters.

(g) Before appointment of an interpreter, the Appeals Board or a party may conduct a brief supplemental examination of the prospective interpreter to see if the person has the qualifications necessary to serve as an interpreter in the hearing or prehearing conference and to see if the person understands terms and procedures generally used in hearings and prehearing conferences before the Appeals Board, can explain these terms and procedures in English and the other language being used, and can interpret these terms and procedures into the other language. An interpreter shall not have had any involvement in the issues of the proceeding prior to the hearing or prehearing conference, and shall disclose to the Appeals Board and to all parties any actual or apparent conflict of interest. Any condition that interferes with the objectivity of an interpreter constitutes a conflict of interest. A conflict may exist if an interpreter is acquainted with or related to a party or witness to the proceeding or if an interpreter has an interest in the outcome of the proceeding.

(h) The Appeals Board shall disqualify an interpreter if the interpreter cannot understand and interpret the terms and procedures used in the hearing or prehearing conference, has engaged in conduct creating the appearance of bias, prejudice, or partiality, or has disclosed privileged or confidential communications.

(a) Any exhibit which contains or which might reveal a trade secret referred to in section 1905 of Title 18 of the United States Code, information that is confidential pursuant to Chapter 3.5 (commencing with section 6250) of Division 7 of Title 1 of the Government Code, or photographs taken by the Division during the course of any inspection or investigation, shall be considered confidential.

(b) The Appeals Board shall issue such orders as may be appropriate to protect the confidentiality of trade secrets or other such confidential information.

© If testimony is taken which would reveal the substance of trade secrets or other such confidential information, the Appeals Board may exclude from the hearing room any person or witness; but a party to the proceeding, the party's representative, and the inspector or investigator for the Division and the Division's representative shall not be excluded.

The Appeals Board shall make the official record for hearings. The record shall be made by means of an electronic device or by a court reporter. A party desiring the presence of a court reporter must make its own arrangements.

(a) A party may appear in person or through a representative who is not required to be an attorney at law. A representative shall file a written notice of representation with the Sacramento Office of the Appeals Board and serve a copy on all parties. Service shall be in a manner prescribed in section 355© and proof of such service meeting the requirements of section 355(e) shall be filed with the Appeals Board.

(b) A representative of a party shall be deemed to control all matters respecting the interest of such party in the proceeding.

© An employee who is represented by an authorized employee representative may appear through such authorized employee representative.

(d) A representative may withdraw its representation of a party by filing a written notice of withdrawal with the Appeals Board and by serving a copy on all parties. Service shall be in a manner as prescribed in section 355© and proof of such service meeting the requirements of section 355(e) shall be filed with the Appeals Board.

Upon motion of a party, the Appeals Board may exclude from the hearing room any witnesses not at the time under examination; but a party to the proceeding, the party's representative, and the inspector or investigator for the Division and the Division's representative shall not be excluded.

(a) Prior to the close of the hearing, the Appeals Board may, on its own motion or upon motion of a party, grant oral argument.

(b) A motion for leave to submit a written post-hearing brief shall be made prior to the close of the hearing and shall be granted in the discretion of the Appeals Board upon a determination that the brief will be productive and will not unreasonably delay the disposition of the proceeding. A party shall file its brief within 15 working days from the date of the hearing. Opposing parties may file an answer within 10 working days from service of the brief. The Appeals Board, upon a showing of good cause, may extend or reduce the above filing dates for submission of a brief. Service on a party shall be in a manner as prescribed in section 355© and proof of such service meeting the requirements of section 355(e) shall be filed with the Appeals Board. An original brief shall be filed with the Appeals Board in Sacramento, with a copy provided to the Administrative Law Judge assigned to the hearing.

(a) If any person in proceedings before the Appeals Board disobeys or resists any lawful order or refuses, without substantial justification, to respond to a subpoena, subpoena duces tecum, or refuses to take the oath or affirmation as a witness or thereafter refuses to be examined or is guilty of misconduct during a hearing or so near the place thereof as to obstruct the proceedings, the Appeals Board may:

(1) Certify the facts to the Superior Court in and for the county where the proceedings are held for contempt proceedings pursuant to Government Code section 11455.20;

(2) Exclude the person from the hearing room;

(3) Prohibit the person from testifying or introducing designated matters in evidence;

(4) Establish designated facts, claims, or defenses if the person is a party;

(5) Grant the appeal without further proceedings if the person is a representative of the Division; or

(6) Dismiss the appeal without further proceedings if the person is the Employer or a representative of the Employer.

(b) If, after the docketing of an appeal and before submission of the appeal proceeding as provided in section 385, a party, representative or both engage in bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay, the Appeals Board may order that party, representative or both to pay any reasonable expenses, including attorney's fees, incurred by another party as a result of those bad faith actions or tactics.

(1) "Frivolous" MEANS TOTALLY AND COMPLETELY WITHOUT MERIT OR FOR THE SOLE PURPOSE OF HARASSING AN OPPOSING PARTY.

© For purposes of subsection (b), each party or representative shall be given notice of the Appeals Board's intent to order reasonable expenses incurred and an opportunity to be heard at a hearing before a decision is filed.

(d) A decision ordering or denying the payment of reasonable expenses incurred shall be in writing and comply with the provisions of section 385. A decision ordering a party to pay reasonable expenses incurred by another party shall state in detail the conduct or circumstances justifying the order. A final decision, as defined in section 396©, is enforceable as provided in section 11455.30 of the Government Code.

(a) witnesses subpoenaed for any deposition or hearing are entitled to the following fees and mileage, payable in advance:

(1) Witness fee for each day's actual attendance of thirty-five dollars ($35);

(2) Mileage actually traveled, both ways, of twenty cents ($.20) a mile;

(b) A party who subpoenas a peace officer as listed at Government Code section 68097.1 shall reimburse the public entity for the full cost to the public entity incurred in paying the officer his salary or other compensation and traveling expenses for each day that such officer is required to remain in attendance. The amount of one hundred fifty dollars ($150), together with the subpoena, shall be tendered to the person accepting the subpoena for each day that the officer is required to remain in attendance pursuant to the subpoena. If the actual expenses should later prove to be less than the amount tendered, the difference shall be refunded; or if the actual expenses should later prove to be more than the amount tendered, the difference shall be paid to the public entity by the party at whose request the subpoena was issued.

(a) If after service of a notice of hearing, notice of consolidated hearing, or continuance, a party fails to appear at a hearing either in person or by representative, the Appeals Board may take the proceeding off calendar; may, after notice, dismiss the proceeding; or may receive evidence from any party that appears.

(b) Any proceeding may be reinstated by the Appeals Board if the non-appearing party files a written motion, no later than ten (10) days after receipt of notification of intent to dismiss, that contains sufficient facts to establish a reasonable basis for the failure to appear at the hearing. A party opposing the reinstatement of any proceeding may file a response no later than ten (10) days from service of the reinstatement request. The motion and response shall be accompanied by a declaration containing a statement that any facts therein are based upon the personal knowledge of the declarant. Service shall be in a manner as prescribed in section 355© and proof of such service meeting the requirements of section 355(e) shall be filed with the Appeals Board.

(a) If a proceeding is referred to an Administrative Law Judge for hearing and preparation of a proposed order or decision pursuant to Labor Code section 6604(b), the judge shall prepare a proposed order or decision in such form that it may be adopted as the order or decision in the case. A copy of the proposed order or decision shall be a public record. The Appeals Board may confirm, adopt, modify or set aside the proposed order or decision of the Administrative Law Judge and may, with or without further proceedings and with or without notice, enter its order, findings, or decision based upon the record in the case. Whenever the Appeals Board determines that additional evidence is necessary, it may take additional evidence in the case, or it may reassign the case to the same or to another Administrative Law Judge to take additional evidence. If the case is so reassigned to an Administrative Law Judge, the judge shall prepare a proposed order or decision.

(b) The Appeals Board shall take action on a proposed order or decision as described in subsection (a) above within 30 days after the case is submitted.

(a) Unless otherwise ordered, allproceedings shall be submitted at the close of the hearing. The Appeals Board or Administrative Law Judge may extend the submission date and shall, within 30 days after the proceeding is submitted, summarize the evidence received and relied upon, make findings upon all facts involved in the appeal, and file an order or decision with the reasons or grounds upon which the order or decision was made.

(b) The order or decision shall be in writing, signed and dated by the Administrative Law Judge or the members of the Appeals Board deciding the proceeding.

© A copy of the order or decision shall be served on each party or representative together with a statement informing the parties of their right to petition the Appeals Board for reconsideration of the order or decision within 30 days of service of the order or decision.

(a) The Appeals Board may amend the issues on appeal or the Division action after a proceeding is submitted for decision in order to:

(1) Correct a clerical error;

(2) Address an issue litigated by the parties;

(3) Amend the section number cited in the citation if the same set of facts apply to both the cited and proposed sections; or

(4) Amend any part of the Division action to conform it to a statutory requirement.

(b) Each party shall be given notice of the intended amendment and the opportunity to show that the party will be prejudiced thereby. If such prejudice is shown, the amendment shall not be made.