BILL NUMBER: SB 829	AMENDED
	BILL TEXT

	AMENDED IN SENATE  MAY 3, 2011
	AMENDED IN SENATE  MARCH 24, 2011

INTRODUCED BY   Senator DeSaulnier

                        FEBRUARY 18, 2011

   An act to amend Sections 148.5, 148.6, 148.8, 149.5, 6309, 6317,
6600, 6601, 6601.5, 6602, 6603, 6610, 6620,  6621,  6622,
6625, 6627, and 6630 of, and to add Sections 6319.6, 6603.1, 6603.2,
and 6603.3 to, the Labor Code, relating to employment safety.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 829, as amended, DeSaulnier. Division of Occupational Safety
and Health: Occupational Safety and Health Appeals Board.
   Existing law establishes the Division of Occupational Safety and
Health in the Department of Industrial Relations to enforce
employment safety laws. Existing law authorizes the division to
conduct hearings, inspections, and investigations regarding alleged
violations of employment safety laws and to issue citations to
employers. Existing law establishes the Occupational Safety and
Health Appeals Board in the department and prescribes procedures for
the appeals board to hear and decide employer appeals of the division'
s enforcement actions.
   This bill would revise and recast various provisions regarding
citations issued by the department, the persons or entities who are
authorized to participate as a party in an appeal before the appeals
board, and the procedures that govern the appeals board in hearing
and deciding appeals. The bill also would make other related
clarifying and conforming changes.
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 148.5 of the Labor Code is amended to read:
   148.5.  The appeals board, in adjudicating appeals, shall
liberally construe the provisions of Division 5 (commencing with
Section 6300), as well as the standards and orders adopted by the
Division of Occupational Safety and Health or the department pursuant
to that division, and the standards and orders adopted by the
Occupational Safety and Health Standards Board pursuant to Chapter 6
(commencing with Section 140) in order to ensure safe and healthy
working conditions for the working men and women of this state. A
decision of the appeals board is final, except for any rehearing or
judicial review as permitted by Chapter 7 (commencing with Section
6600) of Part 1 of Division 5.
  SEC. 2.  Section 148.6 of the Labor Code is amended to read:
   148.6.  A decision of the appeals board is binding on the director
and the Division of Occupational Safety and Health with respect to
the parties involved in the particular appeal. The director, a party,
and any affected person may seek judicial review of an appeals board
decision irrespective of whether or not he or she appeared or
participated in the appeal to the appeals board or its hearing
officer.
  SEC. 3.  Section 148.8 of the Labor Code is amended to read:
   148.8.  The appeals board and its duly authorized representatives
in the performance of its duties has the powers of a head of a
department as set forth in Article 2 (commencing with Section 11180)
of Chapter 2 of Part 1 of Division 3 of Title 2 of the Government
Code, except for Section 11185 of the Government Code. In
adjudicating appeals, the appeals board is subject to and shall apply
the rules and regulations adopted by the department for the purpose
of assisting in the enforcement of the provisions of this code
regarding occupational safety and health.
  SEC. 4.  Section 149.5 of the Labor Code is amended to read:
   149.5.  (a) The appeals board may award reasonable costs,
including attorney's fees, consultant's fees, and witness' fees, not
to exceed five thousand dollars ($5,000) in the aggregate, to any
employer who appeals a citation resulting from an inspection or
investigation conducted on or after January 1, 1980, issued for a
violation of Division 5 (commencing with Section 6300) or of an
occupational safety and health standard, rule, order, or regulation
adopted pursuant to Chapter 6 (commencing with Section 140) of
Division 1 if (1) the employer prevails in the appeal or the citation
is withdrawn, and (2) the appeals board finds that the issuance of
the citation was the result of arbitrary or capricious action or
conduct by the division. The appeals board may award reasonable
costs, including attorney's fees, consultant's fees, and witness'
fees, not to exceed five thousand dollars ($5,000) in the aggregate,
to the division if (1) it prevails in an appeal filed by the employer
or the appeal is withdrawn, and (2) the appeals board finds that the
employer acted in bad faith or had no factual basis for filing the
appeal.
   (b) Costs and fees awarded to the division shall be deposited into
the division's regular operating budget.
   (c) The payment of costs and fees by the division pursuant to this
section shall be from funds in the division's regular operating
budget. The division shall show in its proposed budget for each
fiscal year the following information with respect to the prior
fiscal year:
   (1) The total costs paid.
   (2) The number of cases in which costs were paid.
  SEC. 5.  Section 6309 of the Labor Code is amended to read:
   6309.  (a) If the division learns or has reason to believe that an
employment or place of employment is not safe or is injurious to the
welfare of an employee, it may, on its own motion, or upon
complaint, summarily investigate the same with or without notice or
hearings. However, if the division receives a complaint from (1) an
employee, (2) an employee's representative, including, but not
limited to, an attorney, a family member, a union representative,
regardless of whether the representative's union has a collective
bargaining agreement with the employer, or a community, employee, or
legal organization, (3) a health or safety professional, (4) a
government agency representative, or (5) an employer of an employee
directly involved in an unsafe place of employment, that his or her
employment or place of employment is not safe, it shall, with or
without notice or hearing, summarily investigate the complaint as
soon as possible, but not later than three working days after receipt
of a complaint charging a serious violation, and not later than 14
calendar days after receipt of a complaint charging a nonserious
violation. The division shall attempt to determine the period of time
in the future that the complainant believes the unsafe condition may
continue to exist, and shall allocate inspection resources so as to
respond first to those situations in which time is of the essence.
For purposes of this section, a complaint is deemed to allege a
serious violation if the division determines that the complaint
charges that there is a substantial probability that death or serious
physical harm could result from a condition which exists, or from
one or more practices, means, methods, operations, or processes which
have been adopted or are in use in a place of employment. When a
complaint charging a serious violation is received from a state or
local prosecutor, or a local law enforcement agency, the division
shall summarily investigate the employment or place of employment
within 24 hours of receipt of the complaint. All other complaints are
deemed to allege nonserious violations. The division may enter and
serve any necessary order relative thereto. The division is not
required to respond to a complaint within this period where, from the
facts stated in the complaint, it determines that the complaint is
intended to willfully harass an employer or is without any reasonable
basis.
   (b) The division shall keep complete and accurate records of all
complaints, whether verbal or written, and shall inform the
complainant, whenever his or her identity is known, of any action
taken by the division in regard to the subject matter of the
complaint, and the reasons for the action, within 14 calendar days of
taking any action. The records of the division shall include the
dates on which any action was taken on the complaint, or the reasons
for not taking any action on the complaint. The division shall,
pursuant to authorized regulations, conduct an informal review of any
refusal by a representative of the division to issue a citation with
respect to an alleged violation. The division shall furnish the
employee or the representative of employees requesting the review a
written statement of the reasons for the division's final disposition
of the case.
   (c) The name of a person who submits to the division a complaint
regarding the unsafe condition of an employment or place of
employment shall be kept confidential by the division, unless that
person requests otherwise.
   (d) The division shall annually compile and release on its
Internet Web site data pertaining to complaints received and
citations issued.
   (e) The requirements of this section do not relieve the division
of its requirement to inspect and  assure  
ensure  that all places of employment are safe and healthful for
employees. The division shall maintain the capability to receive and
act upon complaints at all times.
  SEC. 6.  Section 6317 of the Labor Code is amended to read:
   6317.  (a) If, upon inspection or investigation, the division
believes that an employer has violated Section 25910 of the Health
and Safety Code, Division 5 (commencing with Section 6300) of this
code, or any standard, rule, order, or regulation adopted pursuant to
Chapter 6 (commencing with Section 140) of Division 1 of this code,
or any standard, rule, order, or regulation established pursuant to
this code, it shall with reasonable promptness issue a citation to
the employer. Each citation shall be in writing and shall describe
with particularity the nature of the violation, including a reference
to the provision of the code, standard, rule, regulation, or order
alleged to have been violated. In addition, the citation shall fix a
reasonable time for the abatement of the alleged violation. The
period specified for abatement shall not commence running until the
date the citation or notice is received by certified mail and the
certified mail receipt is signed, or if not signed, the date the
return is made to the post office. If the division officially and
directly delivers the citation or notice to the employer, the period
specified for abatement shall commence running on the date of the
delivery.
   (b) A "notice" in lieu of citation may be issued with respect to
violations found in an inspection or investigation which meet either
of the following requirements:
   (1) The violations do not have a direct relationship upon the
health or safety of an employee.
   (2) The violations do not have an immediate relationship to the
health or safety of an employee, and are of a general or regulatory
nature. A notice in lieu of a citation may be issued only if the
employer agrees to correct the violations within a reasonable time,
as specified by the division, and agrees not to appeal the finding of
the division that the violations exist. A notice issued pursuant to
this paragraph shall have the same effect as a citation for purposes
of establishing repeat violations or a failure to abate. Every notice
shall clearly state the abatement period specified by the division,
that the notice may not be appealed, and that the notice has the same
effect as a citation for purposes of establishing a repeated
violation or a failure to abate. The employer shall indicate
agreement to the provisions and conditions of the notice by his or
her signature on the notice.
   (c) Under no circumstances shall a notice be issued in lieu of a
citation if the violations are serious, repeated, willful, or arise
from a failure to abate.
   (d) The director shall prescribe guidelines for the issuance of
these notices.
   (e) The division may impose a civil penalty against an employer as
specified in Chapter 4 (commencing with Section 6423). A notice in
lieu of a citation may not be issued if the number of first instance
violations found in the inspection (other than serious, willful, or
repeated violations) is 10 or more violations.
   (f) No citation or notice shall be issued by the division for a
given violation or violations after six months have elapsed since
occurrence of the violation, except that a citation may be amended
pursuant to Section 6603.2.
   (g) The director shall prescribe procedures for the issuance of a
citation or notice.
   (h) The division shall prepare and maintain records capable of
supplying an inspector with previous citations and notices issued to
an employer.
  SEC. 7.  Section 6319.6 is added to the Labor Code, to read:
   6319.6.  (a) The appeals board shall not stay an abatement measure
required by the division as part of an enforcement action pending
appeal unless the employer indicates, by verified petition in its
notice of appeal to the appeals board, that it seeks a stay of
abatement and states the reasons why abatement is not necessary to
protect the health or safety of employees. The employer may submit
additional evidence, under penalty of perjury, accompanying the
verified petition, upon which a decision may be made. Any party may,
within 10 calendar days of the employer's notice of appeal, submit
declarations or other evidence, under penalty of perjury, as to why
abatement should not be stayed. The employer may request a hearing
before the appeals board on this issue upon payment of a filing fee
of two hundred fifty dollars ($250).
   (b) The appeals board may make a determination regarding the
request for a stay of abatement based on the employer's verified
petition and the evidence submitted under penalty of perjury by the
employer and any other party, or may hold a hearing within 30
calendar days of receipt of the verified petition. The abatement
shall be stayed pending the determination.
   (c) The appeals board shall issue a written determination within
30 calendar days of receipt of the employer's petition for a stay of
abatement, or within 10 days of completion of the hearing if a
hearing is held, granting or denying the requested stay of abatement
with an explanation of the reasons for its decision.
   (d) The appeals board may grant a stay of abatement pending appeal
if it finds either of the following:
   (1) No employee will be exposed to an unsafe or unhealthy
condition.
   (2) The condition is unlikely to cause death, serious injury or
illness, or serious exposure to any worker.
   (e) Notwithstanding subdivision (c), the appeals board may take an
additional 30 days to complete the hearing process if it determines
that the complexity of the matter requires the additional time for an
adequate resolution and that employee safety will not be jeopardized
by the delay.
   (f) The appeals board may order the employer to implement interim
safety or health measures as part of a determination that the matter
will be extended for the additional 30 days pursuant to subdivision
(e) or should it grant a stay of abatement.
  SEC. 8.  Section 6600 of the Labor Code is amended to read:
   6600.  (a) 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 the citation or the 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.
   (b) Whenever a citation has been issued or a notice served
pursuant to Section 6308 or 6317, the appeals board shall permit any
of the following, within 15 working days of actual notice of the
citation or notice, to participate in an appeal and to contest the
reasonableness of the period of time fixed in the citation or order
for the abatement of the violation, the sufficiency of the changes
required to abate the condition,  and   or 
the characterization of the violation:
   (1) An employee or his or her representative, as described in
Section 6309.
   (2) A union that has a collective bargaining agreement with any
employer that covers the cited employer's place of employment.
   (3) A deceased worker's successor in interest, heir, beneficiary,
or other representative.
   (c) The appeals board may allow any other person or entity to
participate as a party in an appeal in the interests of justice.
   (d) The division is a party to all proceedings before the appeals
board, whether or not the division has appeared or participated in a
given proceeding.
  SEC. 9.  Section 6601 of the Labor Code is amended to read:
   6601.  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 it intends to contest
the citation or notice of proposed penalty, and no notice contesting
the abatement period, the sufficiency of the changes required to
abate the condition, or the characterization of any violation is
filed by any party described in subdivision (b) of Section 6600
within that 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.
  SEC. 10.  Section 6601.5 of the Labor Code is amended to read:
   6601.5.  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, the
sufficiency of the changes required to abate the condition, or the
characterization of any violation is filed by any party described in
subdivision (b) of Section 6600 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.
  SEC. 11.  Section 6602 of the Labor Code is amended to read:
   6602.  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, that the changes required to abate the
condition are insufficient, or that the characterization of any
violation is improper, 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 or order, and may modify the
proposed penalty, if the penalty modification is not in conflict with
any other section of this code or regulation of the department, or
direct other appropriate relief.
  SEC. 12.  Section 6603 of the Labor Code is amended to read:
   6603.  (a) The rules of practice and procedure adopted by the
appeals board shall do all of the following:
   (1) 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.
   (2) Ensure that all parties participate fully in any hearing,
receive notices, be permitted to subpoena witnesses and documents at
any time before the completion of the hearing, offer evidence,
examine and cross-examine witnesses, and argue and submit briefs.
Parties shall also have the right to participate fully in the
settlement of a matter at the prehearing conference, hearing, or in
any other proceedings where settlement may be reached. A party
described in subdivision (b) of Section 6600 may object, within 15
working days of notice of the settlement agreement between the
employer and the division, to provisions regarding the
characterization of a violation, the amount of time in which
abatement is to be accomplished, or the nature and sufficiency of
abatement in a settlement agreement, if any of those are at issue in
the appeal.
   (3) Provide for the scheduling of hearings in a manner designed to
minimize inconvenience to the division and all parties and witnesses
who are required to attend the hearings, and to be completed without
significant lapses in time should the hearing not be completed
within the time originally scheduled. The appeals board shall set
initial hearing dates, subject to change upon agreement of the
parties within 30 days of the notice of the initial hearing date, and
shall not grant subsequent continuances absent good cause.
   (4) Establish a settlement program designed to bring the parties
to an agreement at the earliest possible stage of the appeal.
   (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.
  SEC. 13.  Section 6603.1 is added to the Labor Code, to read:
   6603.1.  (a) The Legislature finds and declares that it is the
duty of the appeals board to further the purposes of this division,
which include ensuring safe and healthful working conditions for all
working men and women in the state. The appeals board and its
administrative law judges shall, in the conduct of hearings, gather
evidence through oral testimony and records that is best calculated
to ascertain the substantial rights of the parties and carry out
justly the letter and spirit of this division, make a complete
inquiry into the facts as to whether the employer committed the
violation or violations alleged in the citation, and ensure that a
full hearing record is obtained.
   (b) It is the intent of the Legislature that hearings held
pursuant to this  chapter   division  be
conducted in an informal setting that preserves the rights of the
parties. In conducting hearings, the appeals board shall permit
hearsay and opinion evidence, according it the weight that is
appropriate under the circumstances, call and examine a party or any
witness, and  , on own its own motion,   on its
own motion  may admit any relevant and material evidence.
  SEC. 14.  Section 6603.2 is added to the Labor Code, to read:
   6603.2.  (a) The appeals board shall, at any time before an appeal
is submitted for decision, regardless of whether the statute of
limitations has run, allow the division to add or delete a citation
or amend a citation or order by adding or striking out the name of
any party, correcting a mistake in the name of a party, or correcting
a clerical error or mistake in any other respect. The appeals board
may allow the employer to amend, according to proof presented by the
employer, the basis of its appeal. Leave to amend shall be liberally
granted if the factual circumstances serving as the basis for the
amendments have been litigated by the parties.
   (b) Each party shall be given notice of the intended amendment and
an opportunity to object on the basis of prejudice. If prejudice is
shown, the amendment shall not be granted. However, if the prejudice
can be remedied by a continuance of the hearing, a continuance for
further proceedings shall be granted in lieu of denying the
amendment.
  SEC. 15.  Section 6603.3 is added to the Labor Code, to read:
   6603.3.  Whenever a case is within the jurisdiction of the Bureau
of Investigations pursuant to Section 6315, the appeals board shall
continue any hearing upon the written request of the division,
employer, or any prosecuting attorney with jurisdiction over a
criminal case involving the citation for which an appeal has been
filed pursuant to Section 6602. In lieu of a continuance, the appeals
board may dismiss the employer's appeal with leave to refile within
15 calendar days of the completion of the criminal case. Completion
of the criminal case shall be deemed to occur on the date of a
verdict of not guilty or the date of sentencing after a verdict or
plea of guilty or no contest.
  SEC. 16.  Section 6610 of the Labor Code is amended to read:
   6610.  (a) 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 circumstances
addressed 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 more than 30 days from the date the application was filed.
   (b) The employer shall give notice of any appeal filed pursuant to
Section 6602 to its employees by posting the docketed appeal form,
participation notice, and notice of hearing at or near the site of
the alleged violation, or, if that is not practicable, at a
conspicuous place where it will be readily observable by employees or
at a location where employees report each day. The employer shall
provide notice to each union, if any, with which it has a collective
bargaining agreement. If the employer is cited as a controlling
employer pursuant to paragraph (3) of subdivision (b) of Section
6400, it shall provide notice to the employers at the place of
employment on the dates of any alleged violations. If an employee was
injured, made ill, or killed as a result of the alleged violation
that is being appealed, the employer shall also provide notice to the
employee or, if the employee is deceased, the employee's family.
  SEC. 17.  Section 6620 of the Labor Code is amended to read:
   6620.  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, and shall issue an opinion
or order within 90 days of the filing of the petition for
reconsideration. If the appeals board grants reconsideration and
directs the taking of additional evidence, it shall set a hearing for
the taking of additional evidence within 60 days of the filing of
the petition for reconsideration. Notice of the time and place of any
hearing on reconsideration shall be given to the petitioner and
adverse parties and to any other persons as the appeals board orders.

   SEC. 18.    Section 6621 of the   Labor Code
  is amended to read: 
   6621.  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.  The appeals board shall issue an opinion
or order within 90 days of the filing of the petition for
reconsideration. 
   SEC. 18.   SEC. 19.   Section 6622 of
the Labor Code is amended to read:
   6622.  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 virtue of the original order or decision unless so ordered
                                           by the appeals board. The
appeals board shall issue an opinion or order within 90 days after
the hearing at which additional evidence is received.
   SEC. 19.   SEC. 20.   Section 6625 of
the Labor Code is amended to read:
   6625.  The filing of a petition for reconsideration shall suspend
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. The appeals board upon the terms and conditions
that it by order directs, may stay, suspend, or postpone the order or
decision during the pendency of the reconsideration, except as to
requirements for abatement set forth in Section 6319.6.
   SEC. 20.   SEC. 21.   Section 6627 of
the Labor Code is amended to read:
   6627.  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 or she resides, in which
the employer is located, or in which the appeals board is located,
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. For purposes of this
section, "any person affected" includes the division, the employer,
a party, an intervenor, and any person seeking to enforce the public'
s right to safe and healthful working conditions on behalf of
employees within the state, regardless of whether that person has a
beneficial interest in the order or decision at issue. 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.
   SEC. 21.   SEC. 22.   Section 6630 of
the Labor Code is amended to read:
   6630.  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, and
any person affected as defined in Section 6627, 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.