In the Matter of the Appeal of:


410 North Fairview Avenue

Santa Ana, CA 92703

����������������������������� Employer



Docket No.

00-R3D1-3871 and 3972



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 matter by Maria Garcia.


From May 15, to October 2, 2000, a representative of the Division of Occupational Safety and Health (the Division) conducted an accident inspection at a place of employment maintained by Employer at 410 N. Fairview Avenue, Santa Ana, California (the site).

On October 2, 2000, the Division issued to Employer citations for an alleged serious violation of section 4184(b) [point of operation guarding] and alleged regulatory violations of section 342(a) [report of serious injury]; and section 3203(b) [Injury and Illness Prevention Program documentation] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations.1

Employer filed a timely appeal contesting the existence of each of the alleged violations and the reasonableness of the proposed penalties. Employer also challenged the classification of the violation alleged as serious.

The matter was regularly scheduled for formal hearing to be held on August 14, 2001, before Dale A. Raymond, Administrative Law Judge (ALJ) of the Board. On August 13, 2001, the parties contacted the Appeals Board and spoke with Barbara E. Miller, Presiding Administrative Law Judge, West Covina. Employer was represented by Rutan & Tucker, LLP, by Julie L. Schisler, Attorney. The Division was represented by Thurman Johns, associate compliance engineer.

Based upon extensive discussions between the parties and a review of the evidence to be presented at the formal hearing it was agreed that Employer would withdraw its appeals if the Division agreed to the stipulation set forth below. The Division agreed to the following:

The parties herein agreed as follows:

IT IS STIPULATED by the parties herein that the terms and conditions set forth in the above-described agreement, and the contents of any and all of the parties' settlement, including all files, records and documents pertaining to this action in the possession of the Division or Employer, are not intended to be and shall not be construed by anyone or any proceeding as an admission of negligence, fault, or wrongdoing whatsoever by Employer.

The parties further stipulate that neither Employer's agreement to compromise this matter nor any statement contained in this agreement shall be admissible in any other proceeding, either legal, equitable or administrative, except for purposes of administration and enforcement of Title 8 of the California Code of Regulations.

The parties further stipulate that Employer has entered into this agreement in order to avoid protracted litigation and the costs associated therewith.

The parties further stipulate that no findings or conclusions have been made by any trier-of-fact regarding the citations and fine at issue herein.

An order was issued by the ALJ on August 17, 2001, accepting the agreement of the parties. On September 24, 2001, Richard A. Torres, Attorney at Law, submitted a petition for reconsideration on behalf of the injured worker, Maria Garcia.


In the petition for reconsideration, Ms. Garcia alleges that she is a mentally disabled individual who “currently enjoys a clear case of Serious and Willful Conduct per se as the Employer violated the statutory Workers’ Compensation Appeals Board’s Rules of Practice and Procedure, pursuant to Section 10445 (Serious and Willful Misconduct.)”

Petitioner also contends that she did not receive any consideration of her right to a hearing on the merits of this matter.

Lastly, petitioner contends that her “Petition for Reconsideration” must be accepted as timely as the service of the Order from the Board is defective because the declaration of service by mail is not dated.

The Board is sympathetic to Ms. Garcia’s claims but must deny this petition for reconsideration.

Although the proof of service on the Order received by Mr. Torres may not have been dated, the Board’s original copy clearly indicates that the date the Order was mailed was August 17, 2001, the same date the Order was issued by the ALJ. Ms. Garcia’s petition was not “served” until September 25, 2001 and was not received by the Board until September 27, 2001.

Section 390.3(a) states:

If within 30 days of the filing of an order or decision no petition for reconsideration has been filed, and no reconsideration has been ordered on the Appeals Board’s own motion, the order or decision is a final order of the Appeals Board and not subject to review by any court or agency.

The Board’s Order in this case was issued and served upon the parties by mail on August 17, 2001. Because the Order was served by mail, the time for filing a petition was extended by 5 days pursuant to section 348(c) of the Board’s regulations. Thus, the last day to file a petition for reconsideration challenging the Board’s Order was September 21, 2001, 35 days after service of the order.

This petition was filed 4 days late. The Board has consistently held that the requirement that a petition for reconsideration be mailed or delivered to the Appeals Board within 30 days of the issuance of the decision (or order) to be reconsidered is jurisdictional and the Board is without power to enlarge the time for the filing of a petition for reconsideration. (See Unocal Corporation Cal/OSHA App. 92-639 Denial of Petition for Reconsideration (May 13, 1993) citing Dalton Construction Company, Cal/OSHA App. 83-987, Denial of Petition for Reconsideration (Feb. 7, 1985).) The deadline for filing a petition for reconsideration is jurisdictional and even a petition filed one day beyond the deadline must be denied. (See Beutler Heating & Air Conditioning, Inc. Cal/OSHA App. 93-2220 Denial of Petition for Reconsideration (March 16, 1995) and Edwin D. Chapman Cal/OSHA App. 81-331 Denial of Petition for Reconsideration (Oct. 1, 1981).)

We note also, that petitioner is not a party to this proceeding.

The right to file a petition for reconsideration challenging a decision of the Board is limited to parties. Labor Code section 6614(a). Besides the employer to whom a citation, order or special order has been issued by the Division and, of course, the Division itself [§354(a)], persons who may be entitled to claim party status include any person other than the employer who is obligated to repair a machine, apparatus or equipment which is the subject of a citation or order or pay penalties assessed against the employer [Labor Code §§6319(b) and 6600] or any affected employee [Labor Code §6601]. Section 6603(a) of the Labor Code requires the Board to adopt rules of practice and procedure, which provide affected employees and their representatives an opportunity to participate as parties in the Board’s proceedings. This the Board has done by the adoption of section 354(b) which provides:

(b) An affected employee or authorized representative of an affected employee may move to participate as a party to a proceeding by filing a motion in accordance with section 371.

Section 371, in turn, prescribes the procedures for filing pretrial motions generally and requires, among other things, that the motion be made to the Board in writing, a copy served upon each party and that it be made no later than twenty days prior to the hearing. The records and files in this matter do not reflect any motion made on behalf of petitioner to this effect.

The term “party” clearly has a peculiar significance which goes beyond the mere indication of any person or individual. One who is a party to Board proceedings is entitled to participate fully, to receive notice, to subpoena witnesses, offer evidence, argue and submit briefs, should they be allowed and moreover to petition the Board for reconsideration of any order or decision2.

One may become a party by filing a motion in accordance with section 371 [§354(b)]. An employee shall be made aware of his/her right to make a motion to participate as a party by the Employer posting a participation notice at or near the site of the violation [§356]. There was no claim made in this case that Employer did not post a Participation Notice or that the posted notice did not comply with section 356.1.3 Obviously, for the employee’s participation to be meaningful, the employee must have an opportunity to be heard at any pre-hearing conference in which the parties discuss or propose settlement of the case.
Section 356.1 prescribes language, which must be stated in the “participation notice” required by section 356. We believe that the language of section 356.1 that notice of “…the citation and/or civil penalty has been contested and will be the subject of a hearing…” includes pre-hearing conferences conducted pursuant to section 374. By its design a prehearing conference “affords parties an opportunity to participate in the disposition of the appeal…” [§374]. However, the fact remains that the Petitioner here did not move to participate as a party to the proceedings of the Board in accordance with section 371 so as to entitle Ms. Garcia to participate in the proceedings, including the right to petition for reconsideration.

Ms. Garcia’s last contention is that somehow this settlement will result in her losing rights in her workers’ compensation case. We reject that contention because we do not find that this settlement is res judicata as to the Board that hears workers’ compensation cases. Since Ms. Garcia was not a party to the action and the case was not heard on the merits, but rather Employer’s appeal was withdrawn, we are unaware of any authority which supports the contention that the parties’ disposition in this case will in any manner affect Ms. Garcia’s workers’ compensation claim.


The petition for reconsideration filed by Maria Garcia is denied.


FILED ON: November 13, 2001

1 Unless otherwise specified all references are to sections of Title 8, California Code of Regulations.
2 Section 390(a) of the Board’s regulations provides: “A party aggrieved by an order or decision may, within 30 days of service of such order or decision, petition the Appeals Board for reconsideration with respect to any matters determined or covered by the order or decision.”
3 Petitioner does not claim lack of notice of the appeal proceedings. We note that in its answer to the petition for reconsideration, Employer asserts that, in December 2000, Petitioner’s attorney, Mr. Torres, was provided written notification by Employer’s counsel of the appeal of the Division’s citations and the scheduled prehearing conference. However, since lack of notice is not claimed by Petitioner, we need not render a determination of that matter.