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(b) The Appeals Board may designate specific issues to be addressed. The Appeals Board shall, within a reasonable time before the oral argument is to take place, notify all parties and intervenors of the date, time, and place for which oral argument has been set and the issues to be heard.
(c) The Appeals Board may request the filing of briefs either before or after oral argument by issuance of an order in writing, or at oral argument may order the filing of briefs on the record of the oral argument.
(d) Should either party fail to appear for oral argument, the party present may be allowed to proceed with its argument.
(e) A brief of an amicus curiae (amicus) may be filed only by leave of the Appeals Board. The brief shall be filed within the time allowed for the filing of the answer or brief of the party whose position the amicus will support unless the Board grants leave for filing at a later date specified by the order of the Appeals Board. Unless otherwise ordered, an amicus may not file a responding brief.
(f) An amicus will not be permitted to participate in oral argument without leave of the Appeals Board. An amicus may move no later than 10 days before oral argument is scheduled to participate in oral argument. Its motion shall identify its interest and state the reasons its participation would be helpful. Any opposition to the motion of an amicus to participate in oral argument shall be filed and served no later than 5 days before the date of oral argument.
(g) When reconsideration has been granted, either by petition or on the Appeals Board's own motion, the Appeals Board may request that additional evidence be submitted. Notice and an opportunity to respond to the request shall be given to all parties.
Note: Authority cited: Sections 148.7 and 149.5, Labor Code. Reference: Sections 148.7, 149.5 and 6620, Labor Code.
s 394. Taking of Additional Evidence by Further Hearing.
(a) When reconsideration has been granted either by petition or on the Appeals Board's own motion, the Appeals Board may order that additional evidence be taken at a further hearing. Notice of the time and place of further hearing shall be given to all parties and to such other persons as the Appeals Board may direct.
(b) The issues on further hearing shall be limited to those set forth in the order.
(c) The time limit at Section 385(a) for filing an order or decision shall not apply to further hearings during reconsideration.
Note: Authority cited: Sections 148.7 and 149.5, Labor Code. Reference: Sections 148.7 149.5 and 6620, Labor Code.
s 395. Application of Article.
This article shall apply to all petitions for costs to the Appeals Board brought pursuant to Section 149.5 of the Labor Code.
Note: Authority cited: Sections 148.7 and 149.5, Labor Code. Reference: Section 149.5, Labor Code.
s 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.
s 397. Petition for Costs Procedures.
(a) Any employer who appeals a citation resulting from an inspection or investigation conducted on or after January 1, 1980, issued by the Division for violation of an occupational safety and health standard, rule, order, or regulation established pursuant to Chapter 6 (commencing with Section 140) of Division 1 of the Labor Code may file a petition for costs together with a memorandum of items of cost with the Appeals Board to claim reasonable costs, not to exceed five thousand dollars ($5,000) in the aggregate per citation if either the employer prevails in the appeal or the citation is withdrawn, and the employer alleges that the issuance of the citation was the result of arbitrary or capricious action or conduct by the Division. The burden of proof shall be on the employer to establish by a preponderance of the evidence that the issuance of the citation was the result of arbitrary or capricious action or conduct by the Division.
(b) The procedures are:
(1) If an employer who appeals a citation prevails in the appeal of the citation or the citation is withdrawn and the employer wishes to claim reimbursement for reasonable costs alleging that the issuance of the citation was the result of arbitrary or capricious action or conduct by the Division, the employer shall file a petition for costs together with a memorandum of items of cost with the Appeals Board. The petition must be filed not more than 60 days after the filing of a final decision granting the Division's motion or petition to withdraw the citation, or a final decision granting the appeal. A petition for costs shall be deemed filed on the date it is delivered or mailed to the Appeals Board in Sacramento, California. A petition for costs shall set forth specifically and in full detail the grounds upon which the employer's claim is made and identify the particular item or items of the citation for which the petition for costs is being filed. A petition for costs shall be verified upon oath in the manner required for verified pleadings in courts of record.
(2) Upon receipt of a petition for costs, the Appeals Board shall enter a petition number on the petition and serve a copy on the Division. The Division shall have 30 days from the service of a petition for costs to file a response with the Appeals Board.
(3) The Appeals Board shall review the petition for costs, and the response, if any, and shall by order or notice exercise one of the following three options:
(A) The petition for costs may be summarily dismissed if no grounds are set forth or there are insufficient facts alleged to establish that the citation was issued as a result of arbitrary or capricious action or conduct by the Division. The employer may file a petition for reconsideration of the cost order denying the petition for costs within 30 days after issuance of a cost order. Petitions for reconsideration and answers, if any, shall be in conformity with Article 5 of these rules, or
(B) The petition for costs may be granted by a cost order and costs may be awarded if from a review of the petition for costs and the response submitted, if any, it is established that the Division issued a citation as the result of arbitrary or capricious action or conduct. The Division and the employer shall have the right to file a petition for reconsideration of the cost order granting the petition for costs within 30 days after service of such an order. Petitions for reconsideration and answers, if any, shall be in conformity with Article 5 of these rules, or
(C) If a review of the petition for costs and response, if any, establishes that a factual dispute exists, the matter shall be set for hearing. Parties shall receive not less than 15 days notice of hearing.
(4) If a hearing is ordered, the Division and employer shall have their cases prepared, discovery completed and be ready to proceed at the time of hearing. Ten calendar days before the time of hearing, an employer may file with the Appeals Board and the Division a supplemental memorandum of costs setting forth necessary disbursements claimed. When a party desires to present any point which requires a consideration of a prior hearing record, the party shall, prior to the hearing, request and pay the cost of preparing the prior hearing record.
(5) A hearing shall be conducted in accord with these rules.
(6) A cost decision shall be filed as provided in Section 385. A copy of the cost decision with a summary of the evidence received and relied upon and the reasons or grounds upon which the decision was made shall be mailed or served on each party or his representative together with a statement informing the parties of the right to petition the Appeals Board for reconsideration of the cost decision within 30 days after the service of the cost decision. Petitions for reconsideration and answers, if any, shall be in conformity with Article 5 of these rules.
Note: Authority cited: Section 148.7, Labor Code. Reference: Section 149.5, Labor Code.
Appendix A and Appendix B.
Note: Authority cited: Sections 148.7 and 149.5, Labor Code. Reference: Sections 148.7 and 149.5, Labor Code.
(Originally Printed 1-26-74)
8 CCR T. 8, Div. 1, Chap. 3.5, Refs & Annos, 8 CA ADC T. 8, Div. 1, Chap. 3.5, Refs & Annos
s 401. Location of Principal Office.
Note: Authority cited: Section 143.2, Labor Code. Reference: Section 143.2, Labor Code.
s 402. Tenses, Gender and Number.
Note: Authority cited: Section 143.2, Labor Code. Reference: Section 143.2, Labor Code.
s 403. Definitions.
For the purpose of these rules:
(a) "Standards Board" or "Board" means the Occupational Safety and Health Standards Board; except that wherever the words "Standards Board" or "Board" alone are used, the power to act may be delegated by the Board and whenever the words "Board itself" are used, the power will be exercised by the Board acting through a quorum of its members;
(b) "Chairperson" means the member of the Standards Board designated by the Governor to hold the office of chairperson;
(c) "Hearing Officer" means any person appointed by the Standards Board to preside over any variance or appeal from a temporary variance hearing or to hear and determine any such matter within the jurisdiction of the Standards Board;
(d) "Department" means the Department of Industrial Relations;
(e) "Division" means the Division of Occupational Safety and Health;
(f) "Appeals Board" means the Occupational Safety and Health Appeals Board;
(g) "Code" means the Labor Code;
(h) "Rule" means any section set forth in this subchapter adopted by the Standards Board;
(i) All terms which are defined in the code shall be construed as defined therein.
(j) "Representative" means any person, including an authorized employee representative, authorized by a party or intervenor to represent the party or intervenor in a proceeding. Unless the context otherwise requires the term "representative" is included in the words "appellant," "party," "petitioner," "employer" or "employee."
(k) "Authorized employee representative" means a labor organization which has a collective bargaining relationship with an 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 employees of the public agency.
(l) "Affected Employee" means an employee of the employer seeking the variance who is exposed, as a result of his/her assigned duties, to the condition or hazards covered by the standard from which the variance is sought.
(m) "Proceeding" means any proceeding before the Standards Board or before a hearing officer relating to a permanent or interim variance or appeal from a temporary variance.
(n) "Employer" means (1) the State and every State agency; (2) each county, city, district and all public and quasi-public agencies therein; (3) every person, including any public service corporation which has any natural person in service; (4) any Conveyance Owner as defined in subsection (o); and (5) any employer who employs "affected employees" as defined by Rule 403(l).
(o) "Conveyance Owner" means a person or entity that has custody of a conveyance covered by the Elevator Safety Orders, or that owns property on or in which such a conveyance is to be installed.
Note: Authority cited: Section 143.2, Labor Code. Reference: Sections 143 and 143.2, Labor Code.
s 404. Computation of Time.
In computing the time within which any act must be performed, "days" shall refer to calendar days. The first day shall be excluded and the last day shall be included. If the last day is a Saturday, Sunday or holiday, the required act must be performed by the following Monday, or if that Monday is a holiday, by the next day that is not a holiday.
Note: Authority cited: Section 143.2, Labor Code. Reference: Sections 143 and 143.2, Labor Code; and Sections 12 and 12(a), Code of Civil Procedure.
s 404.1. Late Filing.
Unless otherwise specified in the code, the time for filing any application, appeal, petition, answer, pleading, brief, or other document to the Standards Board may be extended or a late filing permitted upon a showing of good cause.
Note: Authority cited: Section 143.2, Labor Code. Reference: Sections 143.2 and 6455, Labor Code.
s 405. Hearing Officers.
All hearings of the Standards Board relating to permanent or temporary variances shall be conducted by hearing officers on the staff of the Appeals Board or appointed by the Standards Board.
Note: Authority cited: Section 143.2, Labor Code. Reference: Section 143.2, Labor Code.
s 405.1. Authority of Hearing Officers.
(a) Every hearing in a variance or appeal from a temporary variance proceeding shall be presided over by a hearing officer.
(b) When the Standards Board or a hearing panel hears the matter, the hearing officer shall preside at the hearing, rule on the admission and exclusion of evidence, and advise the Board or panel on matters of law; the Board or panel shall exercise all other powers relating to the conduct of the hearing but may delegate all or any of them to the hearing officer. When the hearing officer alone hears a matter, the hearing officer shall exercise all powers relating to the conduct of the hearing.
(c) A hearing officer or Standards Board member shall voluntarily disqualify himself/herself and withdraw from any case in which he/she cannot accord a fair and impartial hearing or consideration.
Note: Authority cited: Section 143.2, Labor Code. Reference: Sections 143, 143.1, 143.2 and 6457, Labor Code.
s 405.2. Standards Board Records Not Subject to Subpoena.
Note: Authority cited: Section 143.2, Labor Code. Reference: Section 143.2, Labor Code.
s 406. Party Status.
(a) Affected employees and/or an authorized employee representative may elect to participate as parties at any time before the commencement of the hearing, unless, for good cause shown, the Standards Board allows such election at a later time.
(b) The Division shall be deemed a party to all variance proceedings before the board, whether or not the division has appeared or participated in the proceeding and shall be entitled to receive the same service and notice as any other party.
Note: Authority cited: Section 143.2, Labor Code. Reference: Sections 143.1, 143.2 and 147, Labor Code.
s 406.1. Intervention; Appearance by Nonparties.
(a) A petition for leave to intervene may be filed at any stage of a proceeding before commencement of the hearing.
(b) The petition shall set forth the interest of the petitioner in the proceeding and show that the participation of the petitioner will assist in the determination of the issues and questions, and that the intervention will not unnecessarily delay the proceeding.
(c) The Standards Board may grant a petition for intervention to such an extent and upon such terms as the board shall determine.
(d) Any person whose petition for intervention has been granted shall be entitled to all notices to which parties are entitled.
Note: Authority cited: Section 143.2, Labor Code. Reference: Section 143.2, Labor Code.
s 407. Service and Notice.
Note: Authority cited: Section 143.2, Labor Code. Reference: Sections 143.1 and 143.2, Labor Code.
s 407.1. Proof of Service by Parties.
Note: Authority cited: Section 143.2, Labor Code. Reference: Sections 143.1 and 143.2, Labor Code.
s 407.2. Responsibilities of Employers to Notify Employees of Proceedings.
Note: Authority cited: Section 143.2, Labor Code. Reference: Sections 143.1 and 143.2, Labor Code.
s 407.3. Responsibilities of Employees to Notify Employers and Other Employees of Proceedings.
Note: Authority cited: Section 143.2, Labor Code. Reference: Section 6455, Labor Code.
s 411. Applications for Permanent Variances.
(a) Any Employer desiring a permanent variance from an occupational safety or health standard, regulation or order contained in California Code of Regulations, Title 8 shall file a written application for a variance, submitted under penalty of perjury, with the Standards Board. Note: See Rule 403(n) for definition of Employer.
(b) Six copies of the application for variance shall be submitted and shall include:
(1) The name and address of the Employer;
(2) The address(es) where the variance will be in effect;
(3) A description of the conditions, practices, means, methods, operations, or processes used or proposed to be used by the Employer to provide health and safety equal or superior to that provided by the regulations;
(4) A statement showing how the conditions, practices, means, methods, operations, or processes used or proposed to be used would provide health and safety equal or superior to that provided by the regulation from which a variance is sought;
(5) A certification that the Employer will comply with the notification and posting requirements contained in Rules 411.2 and 411.3 below;
(6) A specification of the Title 8 regulation from which the permanent variance is sought, including the appropriate subsections, if applicable;
(7) A statement of whether or not an appeal has been filed or is pending with the Occupational Safety and Health Appeals Board relative to the same safety order, including the Occupational Safety and Health Appeals Board docket number.
(8) A statement estimating the number of witnesses to be called by the Employer at the hearing and of the amount of time the Employer will require to present its case at the hearing; and
(9) Six copies of any photographs, blueprints or other illustrative materials submitted to document or clarify the application.
Note: Authority cited: Section 143.2, Labor Code. Reference: Sections 143, 143.1, 143.2 and 146, Labor Code.
s 411.1. Denial of Defective Application for Permanent Variance.
An application for permanent variance that fails to comply with rule 411 shall not be docketed or considered by the Board. Employers shall be advised of the application's defective areas and requested to correct or resubmit the application in accordance with the Board Rules. Failure to correct or resubmit the application in accordance with the Board Rules within 60 days shall result in automatic denial of the application. A denial of the application pursuant to this Rule shall be without prejudice to the filing of another application.
Note: Authority cited: Section 143.2, Labor Code. Reference: Section 143.2, Labor Code.
s 411.2. Compliance with Notification and Posting Requirements Regarding Variance Proceedings and Temporary Variance Appeals.
The notification and posting requirements contained in Sections 411.3 and 412.2 shall be satisfied as follows:
(a) Notification to a party who has appeared through a representative shall be made through such representative. Notification to an authorized employee representative shall be in addition to providing notice to the affected employees.
(b) Unless otherwise ordered, notification may be provided by postage-prepaid first class mail or by personal delivery. Notification is deemed effective at the time of mailing or personal delivery.
(c) Proof of notification or posting by parties may be made by any of the following means:
(1) Affidavit of service;
(2) Written statement endorsed upon the document served and signed by the party making the statement; or
(3) Letter of transmittal.
(d) Proof of notification or posting shall be submitted to the Board no later than the second working day following the posting or notification.
Note: Authority cited: Sections 143.2 and 6457, Labor Code. Reference: Sections 143, 143.2 and 6457, Labor Code.
s 411.3. Employer Posting and Notification Responsibilities.
Regarding Variance Proceedings and Temporary Variance Appeals.
(a) Employers shall post a copy of the following documents at the place(s) where notices to employees are usually posted. In lieu of posting, Conveyance Owners shall immediately provide copies of these documents to the building maintenance provider and to the maintenance provider for the conveyance.
(1) The docketed variance application or temporary variance appeal, or a statement giving a summary of the application or appeal that specifies where a copy may be examined. This posting shall occur immediately upon the Employer's receipt of the notice indicating that the variance application or appeal has been docketed.
(2) A notice contained in the application, or provided as a separate document but posted simultaneously with the application, informing affected employees of their right to:
(A) party status and to participate in the variance proceedings;
(B) inspect and copy all pleadings at a reasonable time; and
(C) petition the Standards Board for a hearing.
(3) A copy of the notice of hearing, which shall be posted immediately upon its receipt.
Exception: If the variance or appeal pertains to an elevator, escalator or other conveyance covered by the Elevator Safety Orders that is in a building that is under construction or otherwise unoccupied, and neither a maintenance provider for the conveyance nor a building maintenance provider has been retained or designated, the Conveyance Owner shall attest to these facts in its application. If a conveyance maintenance and/or building maintenance provider is retained or designated after the variance or appeal is requested, but before a hearing is held, the Conveyance Owner shall immediately comply with this section and shall inform the Board, in writing, of the actions taken to comply.If the variance or appeal pertains to an elevator, escalator or other conveyance covered by the Elevator Safety Orders that is in a building that is under construction or otherwise unoccupied, and neither a maintenance provider for the conveyance nor a building maintenance provider has been retained or designated, the Conveyance Owner shall attest to these facts in its application. If a conveyance maintenance and/or building maintenance provider is retained or designated after the variance or appeal is requested, but before a hearing is held, the Conveyance Owner shall immediately comply with this section and shall inform the Board, in writing, of the actions taken to comply.
(b) In addition to complying with subsection (a), Employers shall provide any authorized employee representative with the following documents immediately upon their receipt:
(1) a copy of the docketed variance application or temporary variance appeal;
(2) a copy of the notice set forth in (a)(2);
(3) a copy of the notice of hearing.
(c) Where posting is required, such posting shall be maintained until the commencement of the hearing or until earlier disposition of the variance request or appeal.
Note: Authority cited: Sections 143.2 and 6457, Labor Code. Reference: Sections 143, 143.2 and 6457, Labor Code.
s 411.4. Notice of Denial of Interim Variance.
Note: Authority cited: Section 143.2, Labor Code. Reference: Section 143.2, Labor Code.
s 412. Appeals from Temporary Variances.
(a) Any employer or other persons adversely affected by the granting or denial of a temporary variance by the Division may appeal the Division's decision to the Board.
(b) Such appeal from a temporary variance shall be in writing and shall include:
(1) The name and address of the appellant;
(2) The address of the place or places of employment involved;
(3) A specification of the temporary variance in question and of the standard or portion thereof from which the variance was allowed or denied and the grounds upon which it is based; and
(4) A statement of facts which shows that the appellant is either the affected employer or is a person adversely affected by the granting or denial of the temporary variance.
Note: Authority cited: Section 143.2, Labor Code. Reference: Section 6455, Labor Code.
s 412.1. Correction of Defective Appeal from a Temporary Variance.
If any variance appeal fails to state the grounds upon which it is based, the appellant shall be notified that it does not comply with the Standards Board rules and shall be granted fifteen days after the date of mailing of such notice within which to file an amended appeal. If within the time permitted the appellant fails to amend the appeal to conform with rule 412 the appeal shall be dismissed.
Note: Authority cited: Section 143.2, Labor Code. Reference: Section 143.2, Labor Code.
s 412.2. Notification Requirements for Employees Appealing Temporary Variances.
(a) Where an affected employee or an authorized employee representative appeals the granting or denial of a temporary variance, the employee or representative shall provide the Employer with a copy of the appeal for posting in the manner prescribed in Rule 411.3.
(b) An authorized employee representative who appeals the granting or denial of a temporary variance shall be responsible for serving any other authorized employee representative whose members are affected employees.
Note: Authority cited: Sections 143.2 and 6457, Labor Code. Reference: Sections 143, 143.2 and 6457, Labor Code.
s 415. Referral of Variance Applications and Temporary Variance Appeals to the Division.
(a) Applications for variances and appeals from temporary variances relating to occupational safety and health standards filed with the Board in proper form will be promptly referred to the Division for evaluation.
(b) Hearings on applications for variances and appeals will be scheduled so that the Division's evaluation report will be available for presentation at the hearing.
Note: Authority cited: Section 143.2, Labor Code. Reference: Section 147, Labor Code.
s 416. Publication of Variance Applications.
Note: Authority cited: Section 143.2, Labor Code. Reference: Section 143.1, Labor Code.
s 417. Assignment to Hearing Panels.
(a) The chairperson may assign variance proceedings before the board to a hearing panel consisting of one or more members for hearing and preparation of a proposed decision in such form that it may be adopted as the decision in the case. Assignments by the chairperson of members on such hearing panels shall be rotated among the members with the composition of the members so assigned being varied and changed to assure that there shall never be a fixed and continued composition of members.
(b) A variance proceeding shall be heard and decided by the Standards Board itself at the request of any two members of the Standards Board.
Note: Authority cited: Section 143.2, Labor Code. Reference: Section 143.2, Labor Code.
s 417.1. Objection to Hearing Panel or Hearing Officer or Board Member.
(a) Any party may request, in writing, that a variance proceeding be heard by the board itself rather than by a hearing panel. Such a request must be accompanied by a showing of good cause and may be granted or denied at the discretion of the chairperson. The request must be made prior to, or upon receipt of, the notice of hearing and at least ten working days prior to the scheduled hearing date. Failure to provide a timely request will be sufficient grounds for denying the request. The hearing shall not be held until a determination is made on the party's request.
(b) Disqualification of Hearing Officer or Standards Board Member.
(1) Any party may request the disqualification of any hearing officer and/or Standards Board member by filing an affidavit, at least ten working days prior to the scheduled hearing date, stating with particularity the grounds upon which it is claimed that a fair and impartial hearing cannot be accorded.
(2) The name of the hearing officer and the hearing panel members shall be included in the notice of hearing served on all parties. If any change is made to the hearing panel and/or hearing officer assignments subsequent to service of the notice of hearing, the parties, whenever possible, shall be notified of such changes. If the parties are notified of such changes less than ten working days before the scheduled hearing, a party wishing to request a disqualification must make the request as soon as it learns of the new assignment(s). Under such circumstances, the request initially may be made orally, including by telephone, and shall be made to the board before the hearing is convened whenever possible. The request shall then be submitted in writing, in accordance with subsection (b)(1), as soon as possible, and no later than ten working days after the oral request is made. If the request to change the hearing panel and/or hearing officer assignments cannot be made prior to the beginning of the hearing because the parties were not notified of such assignments, or not notified in a timely manner, the request shall be made prior to the taking of evidence at the hearing. If an oral request is made on the record at the hearing and is fully explained at that time, a written request need not be submitted.
(3) The request to disqualify the hearing officer and/or a Standards Board member shall be determined by the Standards Board. In the case of a request to disqualify a Standards Board member, the individual member named in the request shall not participate in the disqualification decision pertaining to him or her.
(4) If a request to disqualify is made prior to the hearing being convened, the hearing shall not begin until a determination has been made on the party's request. If a party is unable to make its request prior to the convening of the hearing because it was not timely notified of the hearing panel and/or hearing officer assignments, the hearing will be held for the sole purpose of allowing the party to state its request on the record. The remainder of the hearing will be postponed until a determination on the request has been made.
(5) Failure to make a request to disqualify in accordance with the time specifications in this subsection is sufficient grounds for denying the request.
Note: Authority cited: Section 143.2, Labor Code. Reference: Sections 143 and 143.2, Labor Code.
s 417.2. Merger of Successive Variance Applications or Appeals.
If, at the time any variance application or appeal is filed, one or more prior applications or appeals by or involving the same employer and involving the same or similar issues have not been decided by the board or a hearing officer, such prior applications or appeals may, upon notice to the parties, be deemed merged into the last application or appeal filed, and the Standards Board may issue a single decision.
Note: Authority cited: Section 143.2, Labor Code. Reference: Section 143.2, Labor Code.
s 417.3. Withdrawal of Variance Applications and Temporary Variance Appeals.
(a) A variance application or appeal may only be withdrawn by written request and before a final decision is issued by the Board. If such request is made, the Board shall issue a decision dismissing the appeal or application.
(b) A variance application or appeal so dismissed shall be reinstated by the board if the party files a written petition and shows therein that the request for withdrawal resulted from misinformation given by the Division, Appeals Board or Standards Board or from fraud or coercion. Any petition for reinstatement shall be made within 60 days after personal service or mailing of the decision dismissing the variance application or appeal, or, in the event of fraud, within 60 days after discovery of such fraud.
Note: Authority cited: Section 143.2, Labor Code. Reference: Sections 143.2 and 6457, Labor Code.
s 417.4. Dismissal of Late Appeals.
If any appeal is not filed within the time permitted by the code or these rules, the board shall issue a decision dismissing the appeal unless the appellant shows good cause for late filing. If good cause is shown, the appeal shall be decided on the merits.
Note: Authority cited: Section 143.2, Labor Code. Reference: Sections 143.2 and 6455, Labor Code.
s 417.5. Dismissal of Variance Applications.
If an Employer fails to pursue its variance application after the application is docketed, or causes significant delay in the processing of its application, the Board will provide the Employer with written notice of the Board's intent to dismiss the application. Unless the Employer responds to the notice within 30 days from the date of service, and subsequently assists in the processing of the variance application, the Board may dismiss the application without prejudice.
Note: Authority cited: Section 143.2, Labor Code. Reference: Sections 143 and 143.2, Labor Code.
s 418. Pre-Hearing Requests for Action.
All requests for action by the Standards Board relating to any proceeding pending before the Board shall be made in writing and directed to the hearing officer assigned to the matter, or to the executive officer if a hearing officer has not been assigned. Each written request shall contain the variance docket number and shall indicate the type of relief sought. If a hearing officer has been assigned, the hearing officer may resolve such requests without the Board's involvement.
Note: Authority cited: Section 143.2, Labor Code. Reference: Sections 143 and 143.2, Labor Code.
s 419. Consolidation of Proceedings.
Any number of proceedings may be consolidated for hearing or decision when the facts and circumstances are similar and no substantial right of any party will be prejudiced.
Note: Authority cited: Section 143.2, Labor Code. Reference: Section 143.2, Labor Code.
s 420. Pre-Hearing Conference.
(a) At any time before a hearing, the Standards Board or the hearing officer may, on its own initiative, or at the request of a party, direct the parties or their representatives to exchange information or to participate in a pre-hearing conference for the purpose of considering matters which will tend to simplify the issues or expedite the proceedings. If a hearing officer has been assigned, the hearing officer may resolve such requests without the Board's involvement.
(b) The Standards Board or the hearing officer may issue a prehearing order which includes the agreements reached by the parties. Such order shall be served on all parties and shall be a part of the record.
Note: Authority cited: Section 143.2, Labor Code. Reference: Sections 143 and 143.2, Labor Code.
s 421. Time and Place of Hearing.
(a) Variance appeals from temporary variances shall be given scheduling priority over variance applications.
(b) Applications for variances shall be scheduled for hearing as soon as practicable after receipt.
(c) Except as hereinafter provided, the Standards Board may set the time and place of hearing at its principal office or at another location designated by the Board that is more convenient for the applicant.
(d) Where, because of the distance involved or for other reasons, it is impractical for parties and their witnesses to appear at the same place of hearing, a videoconference hearing may be scheduled.
Note: Authority cited: Section 143.2, Labor Code. Reference: Sections 143.2, 147 and 6457, Labor Code.
s 422. Witnesses and Subpoenas.
(a) A party shall arrange for the presence of his/her witnesses at a hearing in a variance proceeding.
(b) A subpoena may be issued by the Standards Board or a hearing officer on the board's or hearing officer's own motion.
(c) A subpoena to compel the attendance of a witness shall be issued by the hearing officer upon request made by a party and a showing of the need therefor.
(d) An application for subpoena duces tecum for the production by a witness of books, papers, correspondence, memoranda, or other records, including records of the Division, shall be made by affidavit to the hearing officer and shall give the name and address of the person to be subpoenaed, shall describe the matters or things desired to be produced and show the materiality thereof to the issues involved in the proceeding and that, to the best of the applicant's knowledge, the witness has such matters or things in his/her possession or under his/her control.
(e) If the hearing officer finds that the affidavit is complete and supports the application for the subpeona duces tecum, the hearing officer shall issue the requested subpoena.
(f) Each party shall arrange for the service of all subpoenas, including subpoenas duces tecum, issued to the party. A copy of the affidavit for subpoenas duces tecum shall be served with such subpoena.
Note: Authority cited: Section 143.2, Labor Code; and Section 11400.20, Government Code. Reference: Sections 143.2 and 6457, Labor Code; and Section 11450.20, Government Code.
s 422.1. Confidential Evidence.
(a) Any exhibit or evidence that contains, or that might reveal, a trade secret as defined in Civil Code Section 3426.1 shall be considered confidential. The Board shall take such appropriate action that is within its control to protect the confidentiality of trade secrets.
Note: Authority cited: Section 143.2, Labor Code; and Section 6254(k), Government Code. Reference: Sections 143.2 and 6457, Labor Code.
s 423. Conduct of Hearing.
(a) Testimony shall be taken only on oath, affirmation, or penalty of perjury.
(b) Each party shall have these rights: To call and examine parties and witnesses; to introduce exhibits; to question opposing witnesses and parties on any matter relevant to the issues even though that matter was not covered in the direct examination; to impeach any witness regardless of which party first called him/her to testify; and to rebut the evidence against him/her.
(c) The Standards Board members or hearing officer may question any party or witness and may admit any relevant and material evidence.
(d) The taking of evidence in a hearing shall be controlled by the hearing officer in the manner best suited to ascertain the facts and safeguard the rights of the parties. Prior to taking evidence, the hearing officer shall explain the issues and the order in which evidence will be received.
(e) The hearing shall be conducted in the English language. On the notice of hearing the Board shall notify each party of the right to an interpreter. A party or a party's witness who does not proficiently speak the English language shall be provided an interpreter if a request for language assistance is provided to the Board at least ten working days prior to the date of the hearing. A party may provide its own interpreter, if the interpreter is approved by the hearing officer as proficient in the English language and the language in which the witness will testify. The hearing officer shall approve any person whose name appears on the current list of interpreters published by the State Personnel Board. The interpreter shall not have any involvement in the issues of the case prior to the hearing.
(f) The cost of the interpreter shall be paid by the Standards Board if the hearing officer so directs, otherwise by the party requiring the interpreter. This determination shall be made consistent with Government Code Section 11435.25(b).
Note: Authority cited: Section 143.2, Labor Code; and Section 11400.20, Government Code. Reference: Sections 143.2 and 6457, Labor Code; and Sections 11425.10, 11435.15, 11435.20, 11435.25, 11435.30, 11435.55, 11435.60 and 11435.65, Government Code.
s 424. Evidence Rules.
The hearing need not be conducted according to technical rules relating to evidence and witnesses. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions. Hearsay evidence may be used for purpose of supplementing or explaining other evidence but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. The rules of privilege shall be effective to the extent that they are otherwise required by statute to be recognized at the hearing, and irrelevant and unduly repetitious evidence shall be excluded.
Note: Authority cited: Section 143.2, Labor Code. Reference: Sections 146 and 6457, Labor Code.
s 424.1. Official Notice.
(a) In reaching a decision, official notice may be taken, either before or after submission of the case for decision, of any generally accepted technical or scientific matter within the field of occupational safety and health, and determinations, rulings, orders, findings and decisions, required by law to be made by the Division, the Appeals and the Standards Board.
(b) The Standards Board shall take official notice of those matters set forth in Sections 451 and 452 of the Evidence Code.
(c) Each party shall be given reasonable opportunity to present information relevant to (1) the propriety of taking official notice, and (2) the tenor of matters to be noticed.
Note: Authority cited: Section 143.2, Labor Code. Reference: Sections 451 and 452, Evidence Code; and Sections 143.2 and 6457, Labor Code.
s 424.2. Continuance of Hearings and Further Hearings.
(a) The Standards Board may continue a hearing to another time or place on its own motion or may order further hearing on a matter at any time prior to the issuance of the Board's decision. Written notice of the time and place of the continued hearing shall be in accordance with Rule 411.2.
(b) Any party may request a continuance or further hearing, but such requests are disfavored and shall only be granted upon a clear showing of good cause. The parties are expected to submit for decision all matters in controversy and all necessary evidence at a single hearing.
Note: Authority cited: Section 143.2, Labor Code. Reference: Sections 143.2 and 6457, Labor Code.
s 424.3. Representation at Hearing.
(a) Employers must attend the variance hearing, either in person or through a representative. The representative does not need to be an attorney-at-law.
(b) A representative of a party shall be deemed to control all matters respecting the interest of such party in the proceeding.
(c) Affected employees who are represented by an authorized employee representative may appear through such authorized employee representative.
(d) Withdrawal of appearance of any representative may be effected by filing a written notice of withdrawal with the Board.
(e) The Standards Board or hearing officer may refuse to allow any person to represent a party in any hearing when such person engages in unethical conduct or intentionally fails to observe the provisions of the code, proper instructions or orders of the Standards Board or these rules.
Note: Authority cited: Section 143.2, Labor Code. Reference: Sections 143, 143.1, 143.2, 146 and 6457, Labor Code.
s 424.4. Exclusion of Witnesses.
Upon a demonstration of good cause by any party, the Standards Board, in its discretion, may exclude from the hearing room any witnesses not under examination at this time; but a party to the proceeding, and the party's counsel or representative cannot be excluded.
Note: Authority cited: Section 143.2, Labor Code. Reference: Sections 143.2 and 6457, Labor Code.
s 424.5. Oral Arguments and Briefs.
Note: Authority cited: Section 143.2, Labor Code. Reference: Sections 143.2 and 6457, Labor Code.
s 425. Judicial Enforcement.
(a) If any witness refuses to attend or testify or produce any papers required by a subpoena issued by the Standards Board, any party may file with the board a petition for judicial enforcement. The petition shall be verified and shall set forth that due notice of time and place of attendance of the person or the production of the papers has been given, that the person has been subpoenaed in the manner prescribed by law or these rules and that he/she has failed and refused to attend or produce the papers required by subpoena before the officer in the case or proceeding named in the subpoena, or has refused to answer questions propounded to him/her in the course of the hearing.
(b) If the Standards Board determines that judicial enforcement is appropriate it will petition the superior court in the county in which the hearing is pending for an order compelling the person to attend and testify or produce the papers pursuant to Government Code Sections 11186 through 11188, inclusive.
Note: Authority cited: Section 143.2, Labor Code. Reference: Sections 143.2 and 6457, Labor Code; and Sections 11186-11188, Government Code.
s 425.1. Witness Fees.
Witnesses subpoenaed for any hearing are entitled to fees and mileage as set forth in Sections 11450.40 and 68093 of the Government Code.
Note: Authority cited: Section 143.2, Labor Code; and Section 11400.20, Government Code. Reference: Sections 143.2 and 6457, Labor Code; and Sections 11450.40 and 68093, Government Code.
s 425.2. Failure to Appear.
(a) Where it appears on record that a party was served with notice of hearing, but fails to appear at such hearing, either in person or by representative, the Standards Board may take the proceeding off calendar; may, after notice, dismiss the proceeding; or may hear the evidence from any party that attends the hearing and, after notice, make such decision as is just and proper.
(b) Any proceeding may be reinstated by the Board, at its discretion, if a non-appearing Employer submits to the Board, in writing, a reasonable explanation for the Employer's failure to appear at the hearing. The explanation must be submitted within ten days after service of the notification of intent to dismiss.
Note: Authority cited: Section 143.2, Labor Code. Reference: Sections 143.2 and 6457, Labor Code.
s 426. Decision; Action on Proposed Decision.
(a) A variance hearing may be held before the Standards Board itself, a hearing panel or a hearing officer. If a proceeding is heard before the Standards Board itself or a hearing panel, the hearing officer, if requested, shall assist and advise them. Where a proceeding is heard before the Standards Board itself, no member of the Board who did not hear the evidence shall vote on the decision. (continued)