EXECUTIVE SUMMARY

OCCUPATIONAL SAFETY AND HEALTH
APPEALS BOARD

Summary of Pierce Enterprises - DAR


The Division cited Employer for a violation of section 1644(c)(6) [scaffold uplift protection by means of lock pins or equivalent] and before the hearing, but more than six months after the violation occurred, the Division moved to amend the citation to allege a violation of section 1644(c)(5) [not using couplings or stacking pins to properly align scaffold legs vertically]. The ALJ granted the motion over the objections of Employer. The issue before the Board was whether the ALJ had the statutory authority to grant the Division’s motion to amend the citation—more than six months after the violation occurred—to allege new facts constituting a different violation. The Board determined that the amendment was substantial enough so it constituted a new citation. Labor Code section 6317 limits the Division’s power to issuing citations within six months of the violation’s occurrence and the Board may not expand on that legislative grant of authority. In addition, although there are exceptions that toll the running of the six months and there is a well recognized "relation back" doctrine, neither any exception nor the "relation back" doctrine renders the amendment timely under the statutory command of Labor Code section 6317.

PIERCE ENTERPRISES 95-R6D2-1378
August 23, 1999