EXECUTIVE SUMMARY

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

Summary of Bud of California – Denial of Petition for Reconsideration

The ALJ found a violation of section 3457(c)(3)(G)(2) on the testimony of the compliance officer that no handwashing water would come out of the drum when the spigot was opened, the unit was on level ground and there were no signs of leakage around it. Employer’s petition for review “reargued evidence” that there was an adequate supply (2”) of water in the drum but the unit was parked on a row and tilted away from the spigot. Employer sought to introduce new evidence, a photograph of a unit like the one involved in the violation. The Board gives “great weight” to the ALJ’s credibility findings regarding the compliance officer’s testimony that the ground was level and there were no signs of leakage. “Simply rearguing the evidence” doesn’t meet the section 390.1(a)(3) requirements for a petition for reconsideration (the ground that the evidence doesn’t support the findings). Employer didn’t prove it couldn’t have produced a photograph of the unit at the hearing with the exercise of reasonable diligence (section 390.1(a)(3)). The petition for reconsideration was denied.

Bud of California, 01-2068
September 10, 2002