Chapter 3.3. Occupational Safety and Health Appeals Board
Article 1.5. Service of Documents and Duty to Notify Others of Appeal and Hearing

§ 359. Filing an Intent to Appeal and Late Appeals.

(a) Except as provided in Section 361.1, subsection (b), an appeal shall be deemed filed on the date the Appeals Board is notified of an intent to file an appeal.

(b) An intent to file an appeal may be made by telephone, in writing or in person delivered to the Appeals Board's main office, or online via the OASIS system. The Board shall also make available an optional paper appeal form, downloadable from its website, that may be used to demonstrate intent. The optional form may be mailed or delivered to the Appeals Board's main office.

(c) A communication to the Division of Occupational Safety & Health indicating an intent to appeal is not an intent to file an appeal.

(d) An appeal is timely if the intent to appeal is mailed to or received by the Appeals Board within 15 working days of the date the citation is received by the cited employer. The time for filing any appeal may be extended or a late filing permitted upon a written showing of good cause that contains sufficient facts to show or establish a reasonable basis for the late filing.

(e) A request to file a late appeal shall be accompanied by a declaration containing a statement that any facts therein are based upon the personal knowledge of the declarant.

(f) The current address and phone number of the Appeals Board's main office shall be stated on the citation(s) and posted on the Appeals Board's website.

(g) The Board may find good cause for a late appeal exists where:

(1) A settlement has been reached between the parties within 3 months of issuance of a citation; and

(2) The appellant is able to demonstrate that settlement was actively pursued by the parties during the period prior to filing of the late appeal.

(h) The parties may submit a stipulation to demonstrate that the requirements of subsections (g)(1) and (g)(2) have been met.

(i) Negotiations that do not result in an executed settlement agreement are not good cause for a late appeal under subsection (g). As stated in subsection (d), an employer must contact the Appeals Board within 15 working days of receipt of a citation to preserve its right of appeal.

(j) The Board may find good cause exists for a late appeal on the issue of abatement where:

(1) The employer submitted proof of abatement to the Division timely as required in the citation; and

(2) The Division does not accept the proof of abatement; or

(3) The Division fails to modify the penalty as required following submittal of proof of adequate abatement.

(k) Acceptance of a late appeal under subsection (j) does not appeal any other portion of the citation or notification of penalty.

Note: Authority cited: Section 148.7, Labor Code. Reference: Sections 148.7, 6601 and 6603, Labor Code.

HISTORY

1. Amendment filed 2-1-84; effective thirtieth day thereafter (Register 84, No. 5).

2. Amendment of section heading and subsections (a) and (b) and new subsection (c) filed 10-30-92; operative 11-30-92 (Register 92, No. 44).

3. Amendment of section heading and subsection (a) filed 11-26-2007; operative 12-26-2007 (Register 2007, No. 48).

4. Amendment of section heading, section and Note filed 8-2-2016; operative 10-1-2016 (Register 2016, No. 32).