Chapter 3.3. Occupational Safety and Health Appeals Board

Article 4. Hearing

§381. Contempt; Bad Faith Actions and Tactics.

(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 Administrative Law Judge or the Appeals Board may, on its own motion or the motion of a party:

(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 Administrative Law Judge or 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.

(c) For purposes of subsection (b), before an order for reasonable costs is issued, a noticed hearing will be scheduled. An order to show cause will be issued stating the date, time, and place of the hearing at which all parties will have an opportunity to be heard as to whether or not reasonable costs should be ordered.

(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 decision by an Administrative Law Judge under this section shall be subject to review by a petition for reconsideration under Article 5 of the Appeals Board's regulations. A final decision, as defined in Section 396(c), is enforceable as provided in Section 11455.30 of the Government Code.

NOTE: Authority cited: Sections 148.7 and 6603, Labor Code. Reference: Sections 11186-11188, 11455.10, 11455.20 and 11455.30, Government Code; and Sections 148.7, 148.8, 149.5 and 6603, Labor Code.


HISTORY

1. Amendment filed 10-30-92; operative 11-30-92 (Register 92, No. 44).

2. Amendment of section heading, section and Note filed 6-23-97; operative 7-1-97 (Register 97, No. 26). This interim regulation is exempt from most of the procedural requirements of the Administrative Procedure Act (specifically, from Articles 5 and 6 of Chapter 3.5, Division 3, Title 2, Government Code) and from review by the Office of Administrative Law pursuant to Government Code sections 11400.20 and 11400.21 and will expire on December 31, 1998, unless earlier terminated or replaced by, or readopted as, permanent following the procedures of the Administrative Procedure Act.

3. Permanent adoption of amended section heading, section and Note, including additional amendment of subsection (b), filed 7-11-97; operative 7-11-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 28).

4. Amendment of section heading and amendment of subsections (a), (b) and (c)-(d) filed 8-16-99; operative 9-15-99 (Register 99, No. 34).