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Chapter 3.3. Occupational Safety and Health Appeals Board

Article 6. Employers' Cost Recovery

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396. Definitions.


As used in Sections 395 to 397, inclusive, of these rules:

(a) “Burden of proof” means the burden on an employer petitioning for costs to establish by a preponderance of the evidence that the issuance of a citation was the result of arbitrary or capricious action or conduct by the Division.

(b) “Citation is withdrawn” means that after an employer has filed an appeal in accord with Section 359, and the Appeals Board has acknowledged jurisdiction, that the Appeals Board grants the Division's motion or petition to withdraw the citation.

(c) “Final decision” means a decision or order of the Appeals Board or an Administrative Law Judge which has not been stayed or from which no petition for reconsideration has been filed or no reconsideration has been granted on the Appeals Board's own motion within the time permitted by law. If the Appeals Board has granted reconsideration, a decision or order shall be final 30 days after the decision after reconsideration has been issued unless a writ of mandate has been filed as provided by law. If a writ of mandate has been filed, a decision or order shall be final after a judgment has been entered and no appeal is pending in the courts.

(d) “Prevails in the appeal” occurs when an employer has prevailed in the appeal on an item of a citation or a total citation. An employer who appeals the existence of a violation shall not be deemed to have prevailed in the appeal if the alleged violation is affirmed and the Appeals Board only amends the classification of the violation or reduces the amount of proposed civil penalty.

(e) “Reasonable costs” means costs necessarily incurred by an employer in preparing for and pursuing an appeal of a citation. Reasonable costs are those costs allowed under Section 149.5 of the Labor Code, including attorney's fees, consultant's fees, witness' fees and mileage, costs of discovery, costs of depositions, and costs of service of process if such costs were necessary disbursements for preparing and proceeding with a hearing on the citation. Determination of the appropriateness of an award of costs lies within the discretion of the Appeals Board. Where a citation covers more than one item, costs shall be apportioned to each item.

NOTE: Authority cited: Sections 148.7 and 149.5, Labor Code. Reference: Section 149.5, Labor Code.

HISTORY

1. Amendment filed 6-5-80; effective thirtieth day thereafter (Register 80, No. 23).

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

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