BILL NUMBER: SB 829	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  JULY 1, 2011
	AMENDED IN SENATE  MAY 31, 2011
	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, 6309, 6317, 6600,
6601, 6601.5, 6602, 6603, 6610, 6625, and 6630 of, to add Sections
6319.6, 6603.1, 6603.2, and 6603.3 to, and to repeal Section 149.5
of, 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 
 promote  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   director and a party
 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.  An
affected person may seek judicial review of a final decision of the
appeals   board, but if the affected person did not
participate in an appeal to the appeals board or its hearing officer,
the affected person may seek judicial review if he or she seeks to
enforce the right of the public to safe and healthy working
conditions on behalf of working men and women in the state and the
issues that form the basis of the affected person's petition for writ
were considered by the appeals board. Nothing in this section is
intended to eliminate or limit any other exceptions to any
requirement under law that   administrative remedies be
exhausted before judicial action is sought. 
  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   those  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 repealed.
  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 the
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 may investigate and conduct an onsite
inspection of a serious violation charged in a complaint from a
source other than those described in (1) to (5), inclusive, of this
subdivision before investigating any 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 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, Article 4 (commencing with Section 3550) of Chapter
2 of Part 1 of Division 4 of this 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 regarding occupational
safety and health, 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.  If an employer or employee contests the period of time
fixed for correction of a violation classified and cited as serious,
willful, repeated serious, or a failure to abate a serious violation,
any hearing on that issue shall be conducted as soon as 
reasonably  possible and shall take precedence over other
hearings conducted by the board.
  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 terms and conditions of the abatement of the
violation, the characterization of the violation, or both: 

   (b) Any individual or entity described in subdivision (c) may
submit an appeal to the appeals board, within 15 working days of
actual notice of a citation or notice pursuant to Section 6308 or
6317, regarding the period of time fixed in the citation or order for
abatement.  
   (c) The appeals board shall permit any of the following to
participate as a party in an appeal by the employer pursuant to
subdivision (a) or to file an appeal pursuant to subdivision (b):

   (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) 
    (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 
terms and conditions of abatement, the characterization of any
violation, or both,   abatement period  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  terms and conditions of abatement,
the characterization of any violation, or both, is filed 
 abatement period 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 terms and conditions of abatement are unreasonable or that
the characterization of any violation is improper, the appeals board
  that the period of time fixed in the citation or order
for abatement 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 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   Provide 
 parties with the opportunity to  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   settlement
discussions  at the prehearing conference, hearing, or in any
other  appeals board  proceedings where settlement may be
reached. 
   (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 for the completion of
the hearings without significant lapses in time if the hearings are
not completed within the scheduled time. The appeals board shall set
the 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. 
   (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   Division 5
(commencing with Section 6300), the standards and orders adopted by
the division or the department pursuant to Division 5, and the
standards and orders adopted by the Occupational Safety and Health
Standards Board pursuant to Chapter 6 (commencing with Section 140 of
Division 1), in order to promote  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
 the board and its judges determine  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.   calculated to fully
ascertain the facts necessary to determine whether the employer
committed the violation or violations alleged in the citation or
whether the employer has a defense to the allegations. Any party may
object to questions propounded or evidence sought by the appeals
board or   administrative law judge in the same manner and
subject to the same standards as if the appeals board or
administrative law judge were a party. 
   (b) It is the intent of the Legislature that hearings held
pursuant to this 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 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   may
 , at any time before  an appeal is submitted for
decision at the close of the hearing, regardless of whether the
statute of limitations has run, allow the division to add or delete a
citation or amend a citation or order   a decision
becomes final, regardless of whether the statute of limitations has
run, allow the division to add or amend a citation or order if the
amendment is   consistent with the transaction or occurrence
contained in the original citation or order  according to proof
presented. 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,  or is being actively
investigated or prosecuted by a prosecuting attorney with
jurisdiction over a criminal case involving a citation for which an
appeal has been filed pursuant to Section 6602,  the appeals
board shall continue any  hearing   proceeding
before it  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   the case  . 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 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. 18.  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.