Loading (50 kb)...'
(continued)
Note: Authority cited: Sections 148.7 and 149.5, Labor Code. Reference: Sections 148.7 and 149.5, Labor Code.
s 346. Tenses, Gender and Number.
Note: Authority cited: Sections 148.7 and 149.5, Labor Code. Reference: Sections 148.7 and 149.5, Labor Code.
s 347. Definitions.
For the purpose of these rules:
(a) "Administrative Law Judge" means any person appointed by the Appeals Board pursuant to Labor Code Sections 6605 and 6607 as a hearing officer to conduct hearings and to decide matters within the jurisdiction of the Appeals Board;
(b) "Affected Employee" means an employee of a cited employer who is exposed to the alleged hazard described in the citation as a result of assigned duties;
(c) "Appeals Board" or "Board" means the Occupational Safety and Health Appeals Board, and includes the chairman and members of the Appeals Board, administrative law judges, and staff of the Appeals Board;
(d) "Authorized Employee Representative" means a labor organization which has a collective bargaining relationship with the cited employer and which represents affected employees or an employee organization which has been formally acknowledged by a public agency as an employee organization that represents affected employees of the public agency;
(e) "Declaration" means a certification in substantially the following form:
(1) If executed within California:
I declare under penalty of perjury that the foregoing is true and correct.
Executed at _____________, California on __________________,
(City) (Date)
(Signature) _______________________________________________
(Typed or printed name)
(2) If executed outside California:
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
________________ (Signature) _____________________________
(Date) (Typed or printed name)
(f) "Division" means the Division of Occupational Safety and Health;
(g) "Division Action" means any citation, notice, special order, order to take special action, notification of penalty, notification of failure to abate alleged violation and of additional civil penalty, or notification of failure to return a signed statement of abatement issued by the Division pursuant to Part 1 (commencing with Section 6300) of Division 5 of the Labor Code or Section 2950 of the Health and Safety Code, which by statute may be appealed to the Appeals Board;
(h) "Docketed Appeal" means any completed appeal form which has been received by the Appeals Board and assigned a specific docket number;
(i) "Employee" means every person who is required or directed by any employer, to engage in any employment, or to go to work or be at any time in any place of employment;
(j) "Employee Appeal" means any appeal filed by an employee from the period allowed by the Division to abate the alleged violation;
(k) "Employer" means the state and every state agency, each county, city, district, and all public and quasi-public corporations and public agencies therein, every person including any public service corporation, which has any natural person in service, and the legal representative of any deceased employer;
( l) "Hearing" means any hearing before the Appeals Board or an Administrative Law Judge set for the purpose of receiving evidence;
(m) "Hearing Record" means the official record of evidence taken by electronic device in any proceeding before the Appeals Board;
(n) "Intervenor" means a person, group of persons, trade association, legal foundation, or public or private interest group who has been granted leave to intervene in any proceeding;
(o) "Memorandum of Items of Costs" means an itemization of costs claimed pursuant to Section 149.5 of the Labor Code;
(p) "Obligor" means a person other than an employer who is obligated to an employer to repair any machine, device, apparatus, or equipment and to pay any penalties assessed against an employer;
(q) "Participation Notice" means a notice informing affected employees of their right to participate in certain proceedings;
(r) "Party" means a person who has made an appearance before the Appeals Board and been granted party status;
(s) "Person" means an individual, firm, partnership, trust, estate, association, corporation, company, or other entity.
(t) "Petition for Costs" means any claim for reasonable costs to be awarded by the Appeals Board pursuant to Section 149.5 of the Labor Code;
(u) "Proceeding" means any adjudicatory action begun by the filing of an appeal and includes a hearing, prehearing conference, petition for costs, reconsideration, or any other act that may result in an order or decision of the Appeals Board;
(v) "Representative" means a person authorized by a party or intervenor to represent that party or intervenor in a proceeding;
(w) "Rule" means any section set forth in this chapter adopted by the Appeals Board;
(x) "Working Days" means any day that is not a Saturday, Sunday or State-recognized holiday as provided in Government Code Sections 6700 and 6701.
Note: Authority cited: Section 148.7, Labor Code. Reference: Section 2015.5, Code of Civil Procedure; Sections 148.7, 149.5, 6301, 6302, 6304, 6304.1 and 6305(b), Labor Code.
s 347.1. Appendices.
Note: Authority cited: Sections 148.7 and 149.5, Labor Code. Reference: Sections 148.7 and 149.5, Labor Code.
s 348. Computation of Time.
(a) In computing the time within which a right may be exercised or an act is to be performed, the first day shall be excluded and the last day shall be included. If the last day is not a working day, time shall be extended to the next working day.
(b) Unless otherwise indicated by proof of service, if the envelope was properly addressed, the mailing date shall be presumed to be:
(1) the postmark date appearing on the envelope if first-class postage was prepaid; or
(2) the date of delivery to a common carrier promising overnight delivery as shown on the carrier's receipt.
(c) Where service of any document, letter, application, request, motion, pleading, brief, decision, petition, answer, memorandum, response, or other writing is by mail, and if within a given number of days after such service, a right may be exercised, or an act is to be performed, the time within which such right may be exercised or act performed is extended five days if the place of address is within the State of California, and 10 days if the place of address is outside the State of California but within the United States. Such extension shall not apply to extend the time for filing an appeal.
Note: Authority cited: Section 148.7, Labor Code. Reference: Section 1013(a), Code of Civil Procedure; and Sections 148.7 and 149.5, Labor Code.
s 349. Late Filing.
Note: Authority cited: Section 148.7, Labor Code. Reference: Sections 148.7, 149.5 and 6601, Labor Code.
s 350. Administrative Law Judge's Oath.
(a) Before entering upon judicial duties, each Administrative Law Judge shall take the following oath or affirmation and sign a written copy: "I do solemnly swear (or affirm) that I will faithfully and fairly hear and determine matters and issues referred to me, to make just findings and to report according to my understanding."
(b) The oath of affirmation taken by an Administrative Law Judge shall apply to all subsequent official actions taken in that capacity and need not be repeated for each matter or proceeding.
Note: Authority cited: Sections 148.7 and 149.5, Labor Code. Reference: Sections 148.7, 149.5 and 6607, Labor Code.
s 350.1. Authority of Administrative Law Judges.
(a) In any proceeding assigned for hearing and decision under the provisions of Labor Code Sections 6604 and 6605, an Administrative Law Judge shall have full power, jurisdiction and authority to hold a hearing and ascertain facts for the information of the Appeals Board, to hold a prehearing conference, to issue a subpoena and subpoena duces tecum for the attendance of a person and the production of testimony, books, documents, or other things, to compel the attendance of a person residing anywhere in the state, to certify official acts, to regulate the course of a hearing, to grant a withdrawal, disposition or amendment, to order a continuance, to approve a stipulation voluntarily entered into by the parties, to administer oaths and affirmations, to rule on objections, privileges, defenses, and the receipt of relevant and material evidence, to call and examine a party or witness and introduce into the hearing record documentary or other evidence, to request a party at any time to state the respective position or supporting theory concerning any fact or issue in the proceeding, to extend the submittal date of any proceeding, to hear and determine all issues of fact and law presented and to issue such interlocutory and final orders, findings, and decisions as may be necessary for the full adjudication of the matter. Final orders, findings, and decisions issued by an Administrative Law Judge shall be the orders, findings, and decisions of the Appeals Board unless reconsideration is granted.
(b) In any proceeding which has been assigned for hearing and preparation of a proposed decision pursuant to Section 6604(b), an Administrative Law Judge shall have the same power, jurisdiction, and authority as set forth in subdivision (a) above except that a proposed decision shall be prepared in such form that it may be adopted by the Appeals Board as the decision in the matter.
Note: Authority cited: Sections 148.7, 149.5, 6604 and 6605, Labor Code. Reference: Section 11182, Government Code; and Sections 148.7, 148.8, 149.5, 6604, 6605 and 6607, Labor Code.
s 350.2. Authority of Executive Officer and Chief Counsel.
The Executive Officer and the Chief Counsel shall have full power, jurisdiction and authority to issue a subpoena and subpoena duces tecum for the attendance of a person and the production of testimony, books, documents, or other things, to compel the attendance of a person residing anywhere in the State, to certify official acts, to grant a withdrawal, disposition or amendment, and to issue such other orders as may be necessary for the full adjudication of the matter. Final orders issued by the Executive Officer or the Chief Counsel shall be the orders of the Appeals Board unless reconsideration is granted.
Note: Authority cited: Sections 148.7, 149.5 and 6604, Labor Code. Reference: Section 11182, Government Code; and Sections 148.7, 148.8, 149.5 and 6604, Labor Code.
s 351. Records of the Appeals Board.
(a) Except where public disclosure of information or exhibits is restricted by law, records of the Appeals Board are public records and are available at its Principal Office in Sacramento, California, for inspection and copying between 8:00 a.m. and 12:00 noon and between 1:00 p.m. and 4:00 p.m. on any working day.
(b) Persons requesting copies of papers, records, or documents are encouraged to employ an independent copy service. However, the Appeals Board will copy and forward papers, records, or documents as its working conditions permit and upon payment of costs, fees, and applicable sales tax.
(c) No costs or fees will be charged for records furnished to California State Agencies.
(d) Payment of costs, fees, and sales tax must accompany the request by check or money order made payable to the Department of Industrial Relations.
(e) Unless otherwise required, compliance by the Appeals Board with a subpoena duces tecum from a court of record, administrative board or commission, hearing officer or other body conducting a legal or administrative proceeding will be pursuant to Article 4 (commencing with Section 1560) of the Evidence Code.
Note: Authority cited: Sections 148.7 and 149.5, Labor Code. Reference: Sections 148.7, 149.5, 6314(a) and 6322, Labor Code.
s 352. Ex Parte Communication.
(a) Except as provided in subsection (b), a person shall not communicate with Appeals Board Members or Administrative Law Judges of the Appeals Board regarding a proceeding.
(b) The following communications are permitted:
(1) Written communications, if copies of them are contemporaneously served by the communicator on all parties to a proceeding in accordance with Sections 355(c) and 355(e);
(2) Oral communications, if advance notice of them is given by the communicator to all parties to a proceeding and adequate opportunity is afforded to all parties to participate in the communication;
(3) Oral or written requests for information related solely to the procedure of the Appeals Board or status of a proceeding;
(4) Oral or written communications which all the parties to a proceeding have agreed may be made on an ex parte basis;
(5) Oral or written communications proposing settlement, or an agreement for disposition of any or all issues in a proceeding; and
(6) Oral or written communications concerning a proceeding, if made more than 30 days after service by the Appeals Board of a final order or decision in that proceeding.
Note: Authority cited: Section 148.7, Labor Code. Reference: Sections 148.7 and 149.5, Labor Code.
s 353. Service, Notice and Posting.
Note: Authority cited: Section 148.7 and 149.5, Labor Code. Reference: Sections 148.7, 149.5 and 6610, Labor Code.
s 354. Party Status.
(a) The Division is a party to all proceedings before the Appeals Board, whether or not the Division has appeared or participated in a proceeding.
(b) An affected employee or authorized representative of an affected employee may move to participate as a party to a proceeding by filing a motion in accordance with Section 371.
(c) Affected employees or authorized representatives of affected employees shall not participate as parties to employers' cost recovery proceedings pursuant to Section 149.5 of the Labor Code.
(d) When an Employee Appeal is filed alleging the unreasonableness of the period allowed by the Division to abate an alleged violation, the employer charged with the responsibility of abating the violation is a party to the proceeding.
(e) An obligor may move to participate as a party to a proceeding by filing a motion in accordance with Section 371.
(f) When an obligor appeal is filed from actions taken by the Division, the employer charged may move to participate as a party at any time prior to the beginning of a hearing.
(g) An obligor shall not participate as a party to employers' cost recovery proceedings pursuant to Section 149.5 of the Labor Code.
(h) A person whose motion for party status has been granted by the Appeals Board becomes a party to the proceeding and is entitled to service of all documents and notices. Each party shall serve within 10 working days of the order granting party status, copies of all documents previously filed with the Appeals Board and not served on the new party. Service shall be in a manner as prescribed in Section 355(c) and proof of such service meeting the requirements of Section 355(e) shall be filed with the Appeals Board.
Note: Authority cited: Sections 148.7 and 6603(a), Labor Code. Reference: Sections 148.7, 6319(b), 6600 and 6603(a), Labor Code.
s 354.1. Intervention.
(a) A person may move to participate as an intervenor in any proceeding by filing a motion in accordance with Section 371. Such participation shall be limited to the terms prescribed in the order of the Appeals Board.
(b) The motion to intervene shall set forth the interest of the moving party in the proceeding and how that interest is similar to that of a party, how the participation of the moving party will assist in the determination of the issues before the Appeals Board, and that intervention will not unnecessarily delay the proceeding.
(c) A person whose motion for intervention has been granted by the Appeals Board is entitled to service of all documents and notices to which parties are entitled and to participate in hearings and prehearing conferences to the extent consistent with the terms prescribed in the order of the Appeals Board granting intervention. An intervenor shall bear the costs of copying documents previously filed with the Appeals Board.
Note: Authority cited: Section 148.7, Labor Code. Reference: Section 148.7, Labor Code.
s 355. Proper Method of Service.
(a) The Appeals Board shall maintain in each proceeding an official address record which shall contain the names and addresses of all parties and intervenors and their representatives, agents, or attorneys of record. Any change or substitution in such information must be communicated promptly in writing to the Appeals Board.
(b) Service on a party or intervenor who has appeared through a representative shall be made upon such representative.
(c) Unless otherwise required, service may be made by personal delivery or by depositing the document in a post office, mailbox or mail chute, or other like facility regularly maintained by the United States Postal Service, sealed, properly addressed, with first-class postage prepaid, by deposit with a carrier guaranteeing overnight delivery, or by facsimile ( "FAX") machine, as provided in subsections (h) and (i) below.
(d) Service is complete at the time of personal delivery or mailing.
(e) Proof of service shall be filed with the document and may be made by any of the following means:
(1) Affidavit or declaration of service by personal delivery, mail, overnight courier or FAX;
(2) Written statement endorsed upon the document served and signed by the party making the statement; or
(3) Letter of transmittal.
(f) Proof of service by the Appeals Board may be made by endorsement on the document served, setting forth the fact of service on the persons listed on the official address record on the date of service. The endorsement shall state whether such service was made personally, by mail, overnight courier or FAX, the date of service and the signature of the person making the service.
(g) Where service is made by the posting of a document, citation, notice, order or decision, proof or certification of such posting shall be filed with the issuing office of the Division not later than the second working day following the posting.
(h) The Appeals Board may serve documents on parties and parties may file documents with the Appeals Board and serve them on other parties by means of FAX under the following conditions:
(1) The length of the document to be filed and/or served shall be no more than twelve (12) pages including cover page and attachments;
(2) A cover sheet shall be attached containing the number of pages transmitted, the FAX number of the sender, the sender's telephone number, and the name of a contact person;
(3) If a document is filed by FAX, all parties shall be served in the same manner or by guaranteed overnight delivery. The FAX transmission shall include a proof of service indicating the method of service on each party.
(i) A document is considered received on the following working day if transmission begins later than 5:00 p.m. Pacific Time.
Note: Authority cited: Section 148.7, Labor Code. Reference: Sections 148.7, 149.5 and 6610, Labor Code.
s 355.1. Use of Facsimile Machines.
Note: Authority cited: Section 148.7, Labor Code. Reference: Section 148.7, Labor Code.
s 356. Notice to Employees of Appeal and Hearing.
(a) The employer shall give notice of an appeal to its employees by posting the docketed Appeal Form, Participation Notice, and Notice of Hearing at or near the site of the alleged violation, positioned so as to be easily read by employees working in the area. If it is not practicable to post the document at or near the site of the alleged violation, the document may be posted in a conspicuous place where it will be readily observable by employees, or at a location to which employees report each day, or at a location from which employees operate to carry out their duties. The docketed Appeal Form, Participation Notice, and Notice of Hearing shall be posted immediately upon receipt from the Appeals Board and shall remain posted until the date of the hearing or receipt of an order disposing of the appeal.
(b) Service of the docketed Appeal Form, Participation Notice, and Notice of Hearing is required, in addition to posting, under the following circumstances:
(1) If affected employees are represented by an authorized employee representative, service in a manner prescribed in Section 355(c) shall be made upon the representative.
(2) If an employee sustained a serious injury or illness, or was killed, as a result of an alleged violation that is being appealed, service in the manner prescribed in Section 355(c) shall be made upon the employee or the representative of the deceased employee.
Note: Authority cited: Section 148.7, Labor Code. Reference: Section 6603(a), Labor Code.
s 356.1. Form of Participation Notice.
(a) The Participation Notice required by Section 356 shall be in the following form:
"Your employer, (name of employer), has been cited by the California Division of Occupational Safety and Health for violation of an Occupational Safety and Health standard. The citation and/or civil penalty has been contested and will be the subject of a hearing before the Occupational Safety and Health Appeals Board. Affected employees are entitled to participate in this hearing as parties under terms and conditions established by the Occupational Safety and Health Appeals Board in its rules of practice and procedure by filing a motion for party status. The motion for party status shall be sent to the Occupational Safety and Health Appeals Board, at the Appeals Board's principal office in Sacramento, California, and shall be accompanied by a proof of service and shall indicate that it was served on the Division and Employer and any other parties as provided in Section 355.
"All papers filed relative to this matter may be inspected at: (A place reasonably convenient to employees, preferably at or near work place.)"
Where appropriate, the second sentence of the above notice will be deleted and the following sentence will be substituted:
"The reasonableness of the period prescribed by the Division of Occupational Safety and Health for abatement of the violation has been contested and will be the subject of a hearing before the Occupational Safety and Health Appeals Board."
(b) For a special order or an order to take special action, the first two sentences of the above notice will be deleted and the following sentences will be substituted:
"Your employer, (name of employer), has been issued an order by the California Division of Occupational Safety and Health. The order has been contested and will be the subject of a hearing before the Occupational Safety and Health Appeals Board."
(c) An employer shall file with the issuing office of the Division, not later than the second working day following the service or posting, proof or certification of service or posting of the docketed Appeal and Participation Notice.
(d) This section and Section 356 do not apply to appeals from citations issued pursuant to Section 2950 of the Health and Safety Code.
Note: Authority cited: Sections 148.7 and 6603(a), Labor Code. Reference: Sections 148.7, 6602 and 6603(a), Labor Code.
s 356.2. Responsibility of Employee to Notify Employer and Other Employees of Proceeding.
(a) When an Employee Appeal is filed by an employee, a copy of the docketed Employee Appeal shall be forwarded by the Appeals Board to the employer.
(b) The employer shall post both a copy of the docketed Employee Appeal and a copy of the Participation Notice. Posting shall be in a manner as prescribed in Section 356(a). The form of the participation notice shall follow the format of section 356.1.
(c) When an Employee Appeal is filed by an employee and there are other employees who are represented by an authorized employee representative, the employee shall, upon receipt of the docketed Employee Appeal and the statement by the Division required by Section 361(e) relating to the reasonableness of the abatement period, serve a copy of the Employee Appeal, the Participation Notice, and the statement on the authorized employee representative. Service shall be in a manner as prescribed in Section 355(c) and proof of such service meeting the requirements of Section 355(e) shall be filed with the Appeals Board.
(d) An authorized employee representative who files an Employee Appeal shall serve a copy of the docketed Employee Appeal upon any other authorized employee representative whose members are affected employees.
(e) Where posting is required by this rule, such posting shall be maintained until the commencement of the hearing or until earlier disposition of the proceeding.
Note: Authority cited: Sections 148.7 and 6603(a), Labor Code. Reference: Sections 148.7 and 6603(a), Labor Code.
s 359. Filing of Appeal - Date.
(a) Except as provided in Section 361.1(b), an appeal shall be deemed filed on the date a communication indicating a desire to appeal the Division action is hand delivered, mailed to, or received by the Appeals Board in Sacramento, California, whichever is earlier. No particular format is necessary to institute the appeal.
(b) 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.
(c) 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.
Note: Authority cited: Section 148.7, Labor Code. Reference: Sections 148.7 and 6601, Labor Code.
s 359.1. Appeal Form.
(a) A completed appeal form shall be filed for each contested Division action.
(b) If an appeal is initiated by other than an appeal form, a completed appeal form shall be filed with the Appeals Board within 10 days of acknowledgement by the Appeals Board of the desire to appeal. Failure to file a completed appeal form may result in dismissal of the appeal.
(c) The Appeals Board shall furnish appeal forms upon request and shall provide them to the district offices of the Division.
(d) Upon receipt of a timely completed appeal form, the Appeals Board shall assign a docket number and deliver or mail a copy of the docketed appeal to each party.
Note: Authority cited: Section 148.7, Labor Code. Reference: Section 148.7, Labor Code.
s 359.2. Issues on Appeal.
Note: Authority cited: Section 148.7, Labor Code. Reference: Sections 148.7, 6317, 6319.5 and 6601, Labor Code.
s 360. Stay of Abatement Period and Abatement Changes.
Note: Authority cited: Section 148.7, Labor Code. Reference: Section 148.7, Labor Code.
s 361. Employer Appeal.
(a) An employer may appeal to the Appeals Board any Division citation or penalty for any ground set forth in Labor Code Section 6600.
(b) An employer may appeal to the Appeals Board a special order or order to take special action for any ground set forth in Labor Code Section 6600.5.
Note: Authority cited: Section 148.7, Labor Code. Reference: Sections 6319(b) and 6600-6602, Labor Code.
s 361.1. Employee Appeal.
(a) An employee or authorized employee's representative may, within 15 working days of the issuance of a citation, special order, or order to take special action, appeal to the Appeals Board the reasonableness of the period of time fixed by the Division for abatement.
(b) An Employee Appeal may be filed with the Division or the Appeals Board. No particular format is necessary to institute the appeal, but the notice of appeal must be in writing.
(c) If an Employee Appeal is filed with the Division, the Division shall note on the face of the document the date of receipt, include any envelope or other proof of the date of mailing, and promptly transmit the document to the Appeals Board.
(d) The Division shall, no later than 10 working days from receipt of the Employee Appeal, file with the Appeals Board and serve on each party a clear and concise statement of the reasons why the abatement period prescribed by it is reasonable.
Note: Authority cited: Sections 148.7 and 6603(a), Labor Code. Reference: Sections 148.7 and 6602, Labor Code.
s 361.2. Appeal by Persons Obligated to Employer.
(a) An obligor may appeal to the Appeals Board a citation alleging a violation involving any machine, device, apparatus, or equipment to which the obligation applies, for any ground set forth in Labor Code Section 6600.
(b) An obligor may appeal to the Appeals Board a special order or order to take special action ordering changes to any machine, device, apparatus, or equipment to which the obligation applies, for any ground set forth in Labor Code Section 6600.5.
Note: Authority cited: Section 148.7, Labor Code. Reference: Sections 148.7, 6319(b) and 6600-6602, Labor Code.
s 361.3. Issues on Appeal.
The issues on appeal shall be limited to those set forth in the Division action that is contested by a docketed appeal, subject to the following limitations:
(a) If the Division action appealed from is a citation, the employer must specify on the appeal form which one or more of the following issues it is raising in its appeal;
(1) The existence of the violation alleged in the underlying citation;
(2) The classification of the violation;
(3) The abatement period;
(4) The reasonableness of the changes required by the Division to abate the violation; or
(5) Only the reasonableness of the proposed penalty.
If the appeal contests only the reasonableness of the proposed penalty, the issues on appeal shall be limited to the classification of the violation and the reasonableness of the proposed penalty, unless a timely motion pursuant to Section 371 is granted to amend the appeal to contest the existence of the violation, the abatement period, or the reasonableness of the changes required by the Division to abate the violation.
(b) If a citation is classified as a repeat violation pursuant to Section 334(d), the earlier citation established by failure to appeal or the entry of a final disposition by the Appeals Board shall not be in issue and shall not be a docketed appeal.
(c) If an employer files a timely appeal from a notification of failure to abate but did not file an appeal from the underlying citation, the existence of the alleged violation shall be an issue in the same hearing if the employer files a motion, in accordance with Section 371, demonstrating good cause for having not appealed the underlying citation.
(d) If the Division amends a citation for the sole purpose of revoking an abatement credit, the employer may appeal the revocation within 15 working days from receipt of the amended citation. The amendment shall not give the Appeals Board jurisdiction over any other issue.
Note: Authority cited: Section 148.7, Labor Code. Reference: Sections 148.7, 6317, 6319.5 and 6601, Labor Code.
s 362. Stay of Abatement Period and Abatement Changes.
Unless otherwise provided by statute, all abatement periods and changes required by the Division are stayed upon the filing of a docketed appeal with the Appeals Board and remain stayed until withdrawal of the appeal or a final disposition of the proceeding by the Appeals Board.
Note: Authority cited: Section 148.7, Labor Code. Reference: Section 148.7, Labor Code.
s 363. Consolidation and Severance.
(a) The Appeals Board may consolidate for hearing and decision any number of proceedings involving the same employer.
(b) Upon motion of a party or upon its own motion, the Appeals Board may consolidate for hearing and decision any number of proceedings involving different employers where the facts and circumstances are similar and consolidation will result in conservation of time and expense. Any party may object to consolidation in writing within 10 days of the date of service of the order of consolidation.
(c) Consolidated proceedings may be severed by the Appeals Board for good cause.
Note: Authority cited: Section 148.7, Labor Code. Reference: Section 148.7, Labor Code.
s 364. Withdrawal of Appeal.
(a) An appellant may withdraw an appeal by written notification at any time before a decision is issued or by oral motion on the hearing record. The Appeals Board shall grant such withdrawal by letter, order or decision served on the parties.
(b) An appeal so dismissed shall be reinstated by the Appeals Board if the appellant files a written motion with sufficient facts to show that the withdrawal resulted from misinformation given by the Division or the Appeals Board, or from fraud or coercion. A motion for reinstatement must be filed within 60 days of service of the letter, order or decision or, in the event of fraud which could not have been suspected or discovered with the exercise of reasonable diligence, within 60 days of discovery of such fraud. The motion shall be accompanied by a declaration containing a statement that any facts therein are based upon the personal knowledge of the declarant.
Note: Authority cited: Section 148.7, Labor Code. Reference: Section 148.7, Labor Code.
s 364.1. Withdrawal of Division Action.
(a) The Division may withdraw its action by written motion at any time or by oral motion on the hearing record.
(b) If the motion is made prior to the hearing, the Division shall serve a copy of the motion to withdraw on each party and on any authorized employee representative if known to the Division to represent affected employees. Service shall be in a manner as prescribed in Section 355(c) and proof of such service meeting the requirements of Section 355(e) shall be filed with the Appeals Board.
(c) Upon a showing of good cause, the Appeals Board shall grant such withdrawal by order or decision served on the parties.
(d) The employer shall post for 15 working days a copy of the order or decision granting the withdrawal. Posting shall be in a manner as prescribed in Section 356(a).
Note: Authority cited: Sections 148.7 and 6603(a), Labor Code. Reference: Sections 148.7 and 6614, Labor Code.
s 364.2. Disposition of Appeal.
(a) Upon a showing of good cause, the Appeals Board may dispose of the issues on appeal by granting a written motion of the parties made at any time or an oral motion of the parties made on the hearing record or in the prehearing conference.
(b) The Division shall serve a copy of the disposition on any authorized employee representative if known to the Division to represent affected employees. Service shall be in a manner as prescribed in Section 355(c) and proof of such service meeting the requirements of Section 355(e) shall be filed with the Appeals Board.
(c) The Appeals Board shall grant such disposition by order or decision served on the parties.
(d) The employer shall post for 15 working days a copy of the order or decision and a copy of the disposition. Posting shall be in a manner as prescribed in Section 356(a).
(e) An appeal hearing will be taken off calendar if a disposition is received by the Appeals Board's Sacramento office before 10:00 a.m. on the working day preceding the first day of the hearing. If the terms of the disposition are given orally, confirmation by both the employer and the Division is required. The Appeals Board may allow up to 30 days for submission in writing of such oral dispositions.
Note: Authority cited: Sections 148.7 and 6603(a), Labor Code. Reference: Sections 148.7 and 6614, Labor Code.
s 368. Amendment.
Note: Authority cited: Sections 148.7 and 6603(a), Labor Code. Reference: Sections 11507 and 11516, Government Code; and Sections 148.7, 6317, 6319 and 6603(a), Labor Code.
s 370. Application of Article.
This article applies to all proceedings before the Appeals Board brought pursuant to Part 1 (commencing with Section 6300) of Division 5 of the Labor Code, Section 2950 of the Health and Safety Code and a petition for costs pursuant to Article 6 but not a proceeding under reconsideration pursuant to Article 5.
Note: Authority cited: Sections 148.7 and 149.5, Labor Code. Reference: Sections 148.7 and 149.5, Labor Code.
s 371. Prehearing Motions.
(a) Any motion or request for action, any opposition thereto, and any reply relating to any proceeding shall be in writing and directed to the Appeals Board. The caption of each motion or request shall contain the title and docket or petition number of the proceeding and a clear and plain statement of the relief sought, together with the grounds therefor.
(b) Any motion or request, any opposition thereto, and any reply shall be signed by the party filing or by the party's representative, and a copy shall be served on all parties. Service shall be in a manner as prescribed in Section 355(c) and proof of such service meeting the requirements of Section 355(e) shall be filed with the Appeals Board.
(c) Unless otherwise ordered, the following dates shall apply to prehearing motions or requests:
(1) A motion or request shall be served and filed no later than 20 days before the hearing date.
(2) Any opposition to the motion shall be served and filed no later than 10 days from service of the motion or request.
(3) Any reply papers shall be served and filed no later than 5 days before the hearing date.
(d) A request to file a motion, opposition, or reply later than the times specified in (c) shall be granted if accompanied by a declaration showing good cause for the late filing.
Note: Authority cited: Section 148.7, Labor Code. Reference: Sections 148.7 and 149.5, Labor Code.
s 371.1. Motions Concerning Hearing Dates.
(a) Continuances are disfavored.
(b) A motion for a continuance shall be made in writing and shall be made promptly once the reason necessitating a continuance is ascertained. The motion shall be directed to the Appeals Board. Service shall be in a manner as prescribed in Section 355(c) and proof of such service meeting the requirements of Section 355(e) shall be filed with the Appeals Board. It shall contain:
(1) The date(s) presently assigned for hearing and the date(s) to which continuance is sought;
(2) Facts in support of the motion; and
(3) An indication of whether the other parties to the appeal were contacted, and if so, their position on the motion.
(c) Any opposition to a motion for continuance shall be filed with the Appeals Board at any time prior to a ruling on the motion. Service shall be in a manner as prescribed in Section 355(c) and proof of such service meeting the requirements of Section 355(e) shall be filed with the Appeals Board.
(d) The motion shall be granted in the following circumstances:
(1) An emergency arises, including, but not limited to, death or illness of a party, witness, or representative; or
(2) Any other reason constituting good cause, if the motion is made no later than 15 days after service of the hearing notice.
(e) The following circumstances shall not constitute good cause:
(1) Failure to obtain representation, unless a substitution is required through no fault of the party.
(2) Failure of another party to comply with a request for discovery, unless the Appeals Board orders a continuance of the hearing after a motion to compel discovery has been filed pursuant to Section 372.6. A continuance of the hearing may be ordered only if:
(A) a motion to compel discovery was filed at a time which would not have foreseeably delayed the hearing, or good cause for such later filing is shown, and
(B) the matters sought to be discovered are of sufficient importance to warrant a continuance of the hearing.
Note: At-hearing sanctions for discovery abuses are specified in Section 372.7 of these regulations.
(f) Once a motion for continuance has been ruled on by the Appeals Board, a motion for continuance based on the same grounds shall not be entertained at the hearing.
Note: Authority cited: Section 148.7, Labor Code. Reference: Sections 148.7 and 149.5, Labor Code.
s 371.2. Amendments Prior to Hearing.
(a) Once an appeal is docketed by the Appeals Board, any proposed amendment of the citation or appeal shall be made in accordance with the procedures set forth in Section 371. An amendment by the Division that alleges a new violation may be permitted by the Appeals Board, but not after six months have elapsed since occurrence of the alleged violation.
(b) Each party shall be given notice as provided in Section 371 of the intended amendment and an opportunity to prepare a response to an amendment which presents a new charge or defense. Any new charges or defenses shall be deemed controverted.
Note: Authority cited: Section 148.7, Labor Code. Reference: Section 11507, Government Code; Sections 6317 and 6603(a), Labor Code.
s 372. Identity of Witnesses.
After initiation of a proceeding, a party, upon written request made to another party, is entitled to obtain prior to the hearing the names and addresses of witnesses to the extent known to the other party, including, but not limited to, those intended to be called to testify at the hearing. Nothing in this section requires the disclosure of the identity of a person who submitted a complaint regarding the unsafeness of an employment or place of employment unless that person requests otherwise. A request under this section for a list of witnesses to be called may be satisfied only by the service of a list of witnesses.
Note: Authority cited: Sections 148.7, 149.5 and 6603(a), Labor Code. Reference: Section 11507.6, Government Code; and Sections 148.7, 149.5, 6309 and 6603(a), Labor Code.
s 372.1. Access to Documents.
After initiation of a proceeding and prior to the hearing, a party, upon written request made to another party, is entitled to inspect and make a copy of any of the following in the possession or custody or under the control of the other party:
(a) Any statements of parties or witnesses relating to the subject matter of the proceeding;
(b) All writings or things which the party then proposes to offer in evidence;
(c) Any other writing or thing which is relevant and which would be admissible in evidence;
(d) Inspection and investigative reports made by or on behalf of the Division or other party pertaining to the subject matter of the proceeding, to the extent that such reports
(1) Contain the names and addresses of witnesses or of persons having personal knowledge of the acts, omissions or events which are the basis of the proceeding, or
(2) Reflect matters perceived by the Division in the course of its inspection, investigation or survey, or
(3) Contain or include by attachment any statement or writing described in (a) to (c), inclusive, or summary thereof.
(e) For the purpose of this section, "statements" include written statements by the person, signed or otherwise authenticated, stenographic, mechanical, electrical or other recordings or transcripts thereof, of oral statements by the person, and written reports or summaries of such oral statements.
(f) Nothing in this Section requires the disclosure of the identity of a person who submitted a complaint regarding an unsafe condition in an employment or place of employment unless that person requests otherwise. Nothing in this section authorizes the inspection or copying of any writing or thing which is privileged from disclosure by law or otherwise made confidential or protected as attorney's work product.
(g) Parties shall arrange a mutually convenient time for inspecting and copying the writings or things within 30 days of service of the written request. Unless other arrangements are made, the party requesting the writings must pay for the copying.
(h) Within 30 days of service of the written request, a party claiming that certain writings or things are privileged against disclosure shall serve on the requesting party a written statement setting forth what matters are claimed to be privileged and the reasons therefor.
Note: Authority cited: Sections 148.7 and 6603(a), Labor Code. Reference: Section 11507.6, Government Code; and Sections 148.7, 149.5, 6309, 6322 and 6603(a), Labor Code.
s 372.2. Subpoena and Subpoena Duces Tecum.
(a) Before the hearing has commenced, the Appeals Board shall issue a subpoena and subpoena duces tecum at the request of a party for attendance of a person at a hearing and for production of a document or thing at the hearing or prehearing conference or at any reasonable time and place. After the hearing has commenced, the Appeals Board may, upon a showing of good cause by the requesting party, issue a subpoena or subpoena duces tecum.
(b) Application for a subpoena duces tecum requires:
(1) Compliance with the provisions of Section 1985 to 1985.4, inclusive, of the Code of Civil Procedure as a condition precedent to the issuance of a subpoena duces tecum; and that
(2) The application for a subpoena duces tecum shall be in the form of an affidavit or declaration under penalty of perjury and shall show good cause for the production of the document or thing requested, specifying the exact document or thing desired to be produced, setting forth in full detail the materiality thereof to the issues involved in the proceeding, and stating that the witness has the desired document or thing in the possession or control of the witness. The application shall also state that if the personal attendance of the witness or other qualified custodian of the records is not required, compliance pursuant to Article 4 (commencing with Section 1560) of the Evidence Code will be permitted.
(c) Any subpoena or subpoena duces tecum issued pursuant to subdivision (a) extends to all parts of the State. The provisions of Sections 1987 and 1988 of the Code of Civil Procedure are applicable to the service of a subpoena or a subpoena duces tecum. Service must be made so as to allow the witness a reasonable time for preparation and travel to the place of attendance. Service of a subpoena or subpoena duces tecum is made by delivering a copy to the witness together with a copy of the affidavit or declaration upon which the subpoena duces tecum is based, giving or offering at the same time, if demanded, the fees to which the witness is entitled for travel to and from the place designated. See Section 382 for amount of witness fees and mileage. Service shall be made by personal delivery or by certified mail return receipt requested or by messenger.
(1) Service by personal delivery may be made by any person.
(2) Service by messenger shall be effected when the witness acknowledges receipt of the subpoena to the sender, by telephone, by mail, or in person, and identifies himself or herself either by reference to date of birth and driver's license number or Department of Motor Vehicles identification number, or the sender may verify receipt of the subpoena by obtaining other identifying information from the recipient. The sender shall make a written notation of the acknowledgment. A subpoena issued and acknowledged pursuant to this section has the same force and effect as a subpoena personally served. Failure to comply with a subpoena issued and acknowledged pursuant to this section may be punished as a contempt and the subpoena may so state.
(d) All witnesses appearing pursuant to subpoena, other than the parties or officers or employees of the State or any political subdivision thereof, shall receive fees, and all witnesses appearing pursuant to subpoena, except the parties, shall receive mileage in the same amount and under the same circumstances as prescribed by law for witnesses in civil actions in a superior court. Fees and mileage shall be paid by the party at whose request the witness is subpoenaed. See Section 382 for amount of witness fees and mileage. All reasonable costs, as defined at Section 1563(b)(1) of the Evidence Code, incurred by a witness not a party, with respect to the production of a business record pursuant to a subpoena duces tecum, shall be paid to the witness before being required to deliver the document.
(e) No witness shall be obligated to attend unless the witness is a resident of the state at the time of service.
(f) Upon timely motion of a party or witness, or upon its own motion, after notice to the parties and an opportunity to be heard, upon a showing of good cause, the Appeals Board may order the quashing of a subpoena or subpoena duces tecum entirely, may modify it, or may direct compliance with it upon other terms or conditions. In addition, the Appeals Board may make any other order as may be appropriate to protect a party or witness from unreasonable or oppressive demands. (continued)