46 COR 40-8153 [¶22,938R]
APPEAL – LATE FILING
Cal. Code Regs, tit. 8, §§ 6600, 6601 (2019) – Employer failed to establish good cause for its late appeal.
Digest of COSHAB’s Denial of Petition for Reconsideration dated May 2, 2019, Inspection No. 1307598.
Ed Lowry, Chair.
Judith S. Freyman, Board Member.
Background. The Division issued one citation to Employer, which initiated its appeal more than four months later. The Board sent Employer a notice of untimely appeal, which informed Employer that its appeal appeared to be late and that it could file a declaration showing the appeal was late for good cause. (See Labor Code §6601.)
An Appeals Board ALJ reviewed Employer’s response to the notice and issued an order denying late appeal. The ALJ determined Employer did not establish good cause for the appeal in its response. Employer timely filed a petition for reconsideration.
Denial of petition for reconsideration. Employer’s petition did not state any of the grounds under Labor Code §6617 for reconsideration, which was grounds to deny it (Herron Construction, Inc., Cal/OSHA App. 1113956, DDAR (Dec. 22, 2016) [Digest ¶ 22,642R]). Employer also failed to serve its petition on the Division, despite being informed by the Board of the requirement to do so, which also constituted grounds to deny it (Labor Code §6619).
Employer initiated its appeal well beyond the 15-working day statutory period for commencing an appeal (Labor Code §§6600, 6601). Appeals Board precedent holds that if the citation is signed for by an employee of the cited employer, service is proper and effective (SA Recycling, LLC, Cal/OSHA App. 11-9059 DAR (June 3, 2011) [Digest ¶ 21,853R]). Employer’s petition did not dispute this was the case.
The individual who filed the petition stated he was on medical leave when the citation was served and, as a result, it was not routed to him so he could pass it on to another designated individual. That Employer did not establish procedures for processing important documents during this individual’s absence was an internal operating problem that does not constitute good cause for a late appeal (A L S Fashion, Inc., Cal/OSHA App. 14-9046, DDAR (July 8, 2014) [Digest ¶ 22,383R]). Employer’s petition for reconsideration was denied.