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Chapter 7. Appeal Proceedings of California Labor Code >> Division 5. >> Part 1. >> Chapter 7.
Any employer served with a citation or notice pursuant to
Section 6317, or a notice of proposed penalty under this part, or any
other person obligated to the employer as specified in subdivision
(b) of Section 6319, may appeal to the appeals board within 15
working days from the receipt of such citation or such notice with
respect to violations alleged by the division, abatement periods,
amount of proposed penalties, and the reasonableness of the changes
required by the division to abate the condition.
Any employer served with a special order or any action
order by the division pursuant to Section 6308, or any other person
obligated to the employer as specified in subdivision (b) of Section
6319, may appeal to the appeals board within 15 working days from the
receipt of the order with respect to the action ordered by the
division, abatement periods, the reasonableness of the changes
required by the division to abate the condition.
If within 15 working days from receipt of the citation or
notice of civil penalty issued by the division, the employer fails to
notify the appeals board that he intends to contest the citation or
notice of proposed penalty, and no notice contesting the abatement
period is filed by any employee or representative of the employee
within such time, the citation or notice of proposed penalty shall be
deemed a final order of the appeals board and not subject to review
by any court or agency. The 15-day period may be extended by the
appeals board for good cause.
If, within 15 working days from receipt of a special order,
or action order by the division, the employer fails to notify the
appeals board that he or she intends to contest the order, and no
notice contesting the abatement period is filed by any employee or
representative of the employee within that time, the order shall be
deemed a final order of the appeals board and not subject to review
by any court or agency. The 15-day period may be extended by the
appeals board for good cause.
If an employer notifies the appeals board that he or she
intends to contest a citation issued under Section 6317, or notice of
proposed penalty issued under Section 6319, or order issued under
Section 6308, or if, within 15 working days of the issuance of a
citation or order any employee or representative of an employee files
a notice with the division or appeals board alleging that the period
of time fixed in the citation or order for the abatement of the
violation is unreasonable, the appeals board shall afford an
opportunity for a hearing. The appeals board shall thereafter issue a
decision, based on findings of fact, affirming, modifying or
vacating the division's citation, order, or proposed penalty, or
directing other appropriate relief.
(a) The rules of practice and procedure adopted by the
appeals board shall be consistent with Article 8 (commencing with
Section 11435.05) of Chapter 4.5 of Part 1 of Division 3 of Title 2
of, and Sections 11507, 11507.6, 11507.7, 11513, 11514, 11515, and
11516 of, the Government Code, and shall provide affected employees
or representatives of affected employees an opportunity to
participate as parties to a hearing under Section 6602.
(b) The superior courts shall have jurisdiction over contempt proceedings, as provided in Article 12 (commencing with Section 11455.10) of Chapter 4.5 of Part 1 of Division 3 of Title 2 of the Government Code.
(b) The superior courts shall have jurisdiction over contempt proceedings, as provided in Article 12 (commencing with Section 11455.10) of Chapter 4.5 of Part 1 of Division 3 of Title 2 of the Government Code.
The appeals board may, in accordance with rules of practice
and procedure which it shall adopt, direct and order a hearing
officer:
(a) To try the issues in any proceeding before it, whether of fact or of law, and make and file a finding, order, or decision based thereon.
(b) To hold hearings and ascertain facts necessary to enable the appeals board to determine any proceeding or to make any order or decision that the appeals board is authorized to make, or necessary for the information of the appeals board.
(a) To try the issues in any proceeding before it, whether of fact or of law, and make and file a finding, order, or decision based thereon.
(b) To hold hearings and ascertain facts necessary to enable the appeals board to determine any proceeding or to make any order or decision that the appeals board is authorized to make, or necessary for the information of the appeals board.
The appeals board may appoint one or more hearing officers in
any proceeding, as it may deem necessary or advisable, and may
defer, remove to itself, or transfer to a hearing officer the
proceedings on any appeal. Any hearing officer appointed by the
appeals board has the powers, jurisdiction, and authority granted by
law, by the order of appointment, and by the rules of the appeals
board.
Any party to the proceeding may object to the reference of
the proceeding to a particular hearing officer upon any one or more
of the grounds specified in Section 641 of the Code of Civil
Procedure and such objection shall be heard and disposed of by the
appeals board. Affidavits may be read and witnesses examined as to
such objections.
Before entering upon his duties, the hearing officer shall be
sworn, before an officer authorized to administer oaths, faithfully
and fairly to hear and determine the matters and issues referred to
him, to make just findings and to report according to his
understanding. In any proceedings under this chapter, the hearing
officer shall have the power to administer oaths and affirmations and
to certify official acts.
The appeals board or a hearing officer shall, within 30 days
after the case is submitted, make and file findings upon all facts
involved in the appeal and file an order or decision. Together with
the findings or the decision, there shall be served upon all the
parties to the proceedings a summary of the evidence received and
relied upon and the reasons or grounds upon which the decision was
made.
Within 30 days after the filing of the findings, decision, or
order, the appeals board may confirm, adopt, modify or set aside the
findings, order, or decision of a hearing officer and may, with or
without further proceedings, and with or without notice, enter its
order, findings, or decision based upon the record in the case.
Any notice, order, or decision required by this part to be
served upon any person either before, during, or after the
institution of any proceeding before the appeals board, shall be
served in the manner provided by Chapter 5 (commencing with Section
1010) of Title 14 of Part 2 of the Code of Civil Procedure, unless
otherwise directed by the appeals board. In the latter event the
document shall be served in accordance with the order or direction of
the appeals board. The appeals board may, in the cases mentioned in
the Code of Civil Procedure, order service to be made by publication
of notice of time and place of hearing. Where service is ordered to
be made by publication the date of the hearing shall be fixed at more
than 30 days from the date of filing the application.
(a) If the employer fails to appear, the appeals board may
dismiss the appeal or may take action upon the employer's express
admissions or upon other evidence, and affidavits may be used without
any notice to the employer. Where the burden of proof is upon the
employer to establish the appeals board action sought, the appeals
board may act without taking evidence. Nothing in this section shall
be construed to deprive the employer of the right to make any showing
by way of mitigation.
(b) The appeal may be reinstated by the appeals board upon a showing of good cause by the employer for his failure to appear.
(b) The appeal may be reinstated by the appeals board upon a showing of good cause by the employer for his failure to appear.
No informality in any proceeding or in the manner of taking
testimony shall invalidate any order, decision, or finding made and
filed as specified in this division. No order, decision, or finding
shall be invalidated because of the admission into the record, and
use as proof of any fact in dispute of any evidence not admissible
under the common law or statutory rules of evidence and procedure.
The appeals board, a hearing officer, or any party to the
action or proceeding, may, in any investigation or hearing before the
appeals board, cause the deposition of witnesses residing within or
without the state to be taken in the manner prescribed by law for
like depositions in civil actions in the superior courts of this
state under Title 4 (commencing with Section 2016.010) of Part 4 of
the Code of Civil Procedure. To that end the attendance of witnesses
and the production of records may be required. Depositions may be
taken outside the state before any officer authorized to administer
oaths. The appeals board or a hearing officer in any proceeding
before the appeals board may cause evidence to be taken in other
jurisdictions before the agency authorized to hear similar matters in
such other jurisdictions.
(a) At any time within 30 days after the service of any final
order or decision made and filed by the appeals board or a hearing
officer, any party aggrieved directly or indirectly by any final
order or decision, made and filed by the appeals board or a hearing
officer under any provision contained in this division, may petition
the appeals board for reconsideration in respect to any matters
determined or covered by the final order or decision and specified in
the petition for reconsideration. Such petition shall be made only
within the time and in the manner specified in this chapter.
(b) At any time within 30 days after the filing of an order or decision made by a hearing officer and the accompanying report, the appeals board may, on its own motion, grant reconsideration.
(b) At any time within 30 days after the filing of an order or decision made by a hearing officer and the accompanying report, the appeals board may, on its own motion, grant reconsideration.
No cause of action arising out of any final order or decision
made and filed by the appeals board or a hearing officer shall
accrue in any court to any person until and unless the appeals board
on its own motion sets aside such final order or decision and removes
such proceeding to itself or such person files a petition for
reconsideration, and such reconsideration is granted or denied.
Nothing herein contained shall prevent the enforcement of any such
final order or decision, in the manner provided in this division.
The petition for reconsideration shall set forth specifically
and in full detail the grounds upon which the petitioner considers
the final order or decision made and filed by the appeals board or a
hearing officer to be unjust or unlawful, and every issue to be
considered by the appeals board. The petition shall be verified upon
oath in the manner required for verified pleadings in courts of
record and shall contain a general statement of any evidence or other
matters upon which the applicant relies in support thereof.
The petition for reconsideration may be based upon one or
more of the following grounds and no other:
(a) That by such order or decision made and filed by the appeals board or hearing officer, the appeals board acted without or in excess of its powers.
(b) That the order or decision was procured by fraud.
(c) That the evidence does not justify the findings of fact.
(d) That the petitioner has discovered new evidence material to him, which he could not, with reasonable diligence, have discovered and produced at the hearing.
(e) That the findings of fact do not support the order or decision.
(a) That by such order or decision made and filed by the appeals board or hearing officer, the appeals board acted without or in excess of its powers.
(b) That the order or decision was procured by fraud.
(c) That the evidence does not justify the findings of fact.
(d) That the petitioner has discovered new evidence material to him, which he could not, with reasonable diligence, have discovered and produced at the hearing.
(e) That the findings of fact do not support the order or decision.
The petitioner for reconsideration shall be deemed to have
finally waived all objections, irregularities, and illegalities
concerning the matter upon which the reconsideration is sought other
than those set forth in the petition for reconsideration.
A copy of the petition for reconsideration shall be served
forthwith upon all parties by the person petitioning for
reconsideration. Any party may file an answer thereto within 30 days
thereafter. Such answer shall likewise be verified. The appeals board
may require the petition for reconsideration to be served on other
persons designated by it.
Upon the filing of a petition for reconsideration, or having
granted reconsideration upon its own motion, the appeals board may,
with or without further proceedings and with or without notice
affirm, rescind, alter, or amend the order or decision made and filed
by the appeals board or hearing officer on the basis of the evidence
previously submitted in the case, or may grant reconsideration and
direct the taking of additional evidence. Notice of the time and
place of any hearing on reconsideration shall be given to the
petitioner and adverse parties and to such other persons as the
appeals board orders.
If at the time of granting reconsideration, it appears to the
satisfaction of the appeals board that no sufficient reason exists
for taking further testimony, the appeals board may affirm, rescind,
alter or amend the order or decision made and filed by the appeals
board or hearing officer and may, without further proceedings,
without notice, and without setting a time and place for further
hearing, enter its findings, order or decision based upon the record
in the case.
After the taking of additional evidence and a consideration
of all of the facts the appeals board may affirm, rescind, alter, or
amend the original order or decision. An order or decision made
following reconsideration which affirms, rescinds, alters, or amends
the original order or decision shall be made by the appeals board but
shall not affect any right or the enforcement of any right arising
from or by virture of the original order or decision unless so
ordered by the appeals board.
Any decision of the appeals board granting or denying a
petition for reconsideration or affirming, rescinding, altering, or
amending the original findings, order, or decision following
reconsideration shall be made by the appeals board and not by a
hearing officer and shall be in writing, signed by a majority of the
appeals board members assigned thereto, and shall state the evidence
relied upon and specify in detail the reasons for the decision.
A petition for reconsideration is deemed to have been denied
by the appeals board unless it is acted upon within 45 days from the
date of filing. The appeals board may, upon good cause being shown
therefor, extend the time within which it may act upon that petition
for not exceeding 15 days.
(a) (1) Except as provided in subdivision (b), the filing of
a petition for reconsideration suspends for a period of 10 days the
order or decision affected, insofar as it applies to the parties to
the petition, unless otherwise ordered by the appeals board.
(2) Except as provided in subdivision (b), the appeals board, upon the terms and conditions which it by order directs, may stay, suspend, or postpone the order or decision during the pendency of the reconsideration.
(b) The filing of a petition for, or the pendency of, reconsideration of a final order or decision involving a citation classified as serious, repeat serious, or willful serious does not stay or suspend the requirement to abate the hazards affirmed by the decision or order unless the employer demonstrates by a preponderance of the evidence that a stay or suspension of abatement will not adversely affect the health and safety of employees. The employer must request a stay or suspension of abatement by filing a written, verified petition with supporting declarations within 10 days after the issuance of the order or decision.
(2) Except as provided in subdivision (b), the appeals board, upon the terms and conditions which it by order directs, may stay, suspend, or postpone the order or decision during the pendency of the reconsideration.
(b) The filing of a petition for, or the pendency of, reconsideration of a final order or decision involving a citation classified as serious, repeat serious, or willful serious does not stay or suspend the requirement to abate the hazards affirmed by the decision or order unless the employer demonstrates by a preponderance of the evidence that a stay or suspension of abatement will not adversely affect the health and safety of employees. The employer must request a stay or suspension of abatement by filing a written, verified petition with supporting declarations within 10 days after the issuance of the order or decision.
Nothing contained in this chapter shall be construed to
prevent the appeals board, on petition of an aggrieved party or on
its own motion, from granting reconsideration of an original order or
decision made and filed by the appeals board within the same time
specified for reconsideration of an original order or decision.
Any person affected by an order or decision of the appeals
board may, within the time limit specified in this section, apply to
the superior court of the county in which he resides, for a writ of
mandate, for the purpose of inquiring into and determining the
lawfulness of the original order or decision or of the order or
decision following reconsideration. The application for writ of
mandate must be made within 30 days after a petition for
reconsideration is denied, or, if a petition is granted or
reconsideration is had on the appeals board's own motion, within 30
days after the filing of the order or decision following
reconsideration.
The writ of mandate shall be made returnable at a time and
place then or thereafter specified by court order and shall direct
the appeals board to certify its record in the case to the court
within the time therein specified. No new or additional evidence
shall be introduced in such court, but the cause shall be heard on
the record of the appeals board, as certified to by it.
The review by the court shall not be extended further than to
determine, based upon the entire record which shall be certified by
the appeals board, whether:
(a) The appeals board acted without or in excess of its powers.
(b) The order or decision was procured by fraud.
(c) The order or decision was unreasonable.
(d) The order or decision was not supported by substantial evidence.
(e) If findings of fact are made, such findings of fact support the order or decision under review. Nothing in this section shall permit the court to hold a trial de novo, to take evidence, or to exercise its independent judgment on the evidence.
(a) The appeals board acted without or in excess of its powers.
(b) The order or decision was procured by fraud.
(c) The order or decision was unreasonable.
(d) The order or decision was not supported by substantial evidence.
(e) If findings of fact are made, such findings of fact support the order or decision under review. Nothing in this section shall permit the court to hold a trial de novo, to take evidence, or to exercise its independent judgment on the evidence.
The findings and conclusions of the appeals board on
questions of fact are conclusive and final and are not subject to
review. Such questions of fact shall include ultimate facts and the
findings and conclusions of the appeals board. The appeals board and
each party to the action or proceeding before the appeals board shall
have the right to appear in the mandate proceeding. Upon the
hearing, the court shall enter judgment either affirming or annulling
the order or decision, or the court may remand the case for further
proceedings before the appeals board.
The provisions of the Code of Civil Procedure relating to
writs of mandate shall, so far as applicable, apply to proceedings in
the courts under the provisions of this part. A copy of every
pleading filed pursuant to the terms of this part shall be served on
the appeals board and upon every party who entered an appearance in
the action before the appeals board and whose interest therein is
adverse to the party filing such pleading.
No court of this state, except the Supreme Court, the courts
of appeal, and the superior court to the extent herein specified, has
jurisdiction to review, reverse, correct, or annul any order or
rule, or decision of the appeals board, or to suspend or delay the
operation or execution thereof, or to restrain, enjoin, or interfere
with the appeals board in the performance of its duties.
The filing of a petition for, or the pendency of, a writ of
mandate shall not of itself stay or suspend the operation of any
order, rule or decision of the appeals board, but the court before
which the petition is filed may stay or suspend, in whole or in part,
the operation of the order or decision of the appeals board subject
to review, upon the terms and conditions which it by order directs.
