A California sheet metal company failed to show that it did not consent to an inspection, was improperly cited and denied due process because the original file was stolen.

In Nolte Sheet Metal Inc. v. Occupational Safety and Health Appeals Board, the California Court of Appeals, 5th District in Fresno unanimously affirmed citations imposed by the California Division of Occupational Safety and Health.

In June 2014, Cal/OSHA inspected Fresno, California-based Nolte Sheet Metal Inc. and issued several citations. The compliance officer was accompanied by several armed Department of Insurance officials and requested to inspect the premises. The owner was not on site, but his son, who identified himself as the foreman, allowed the inspectors into the facility. He later claimed that he was an hourly worker, not an officer of the company or an owner, and did not know that he had the ability to reject the inspection request.

In August 2014, the company received notice that it was being cited for four serious violations. In October 2014, the file prepared by the Cal/OSHA office on the day of the inspection was taken during a car burglary, which was reported to the police.

Nolte appealed to the Occupational Safety and Health Appeals Board, which concluded that evidence supported the violations underlying the challenged citations, and an administrative law judge affirmed that decision.

Eventually, the company filed for court review of the administrative agency’s decision, arguing that the company did not consent to an inspection, the lack of the original inspection file amounted to spoliation and denied the company due process, and the violations were improperly classified as serious.

The appellate court found that substantial evidence supported the appeals board’s findings and affirmed the citations.

The appellate court held that Cal/OSHA provided substantial evidence that Nolte voluntarily consented to the inspection. Even though the company argued that the son did not have the authority to consent to the inspection, the appellate court noted that the son signed the inspection consent form, identified himself as someone of authority as foreman, and later attended an informal conference, all pointing to the reasonable and good faith assumption that the son had the authority to consent to the inspection.

The appellate court also dismissed Nolte’s argument that the failure to preserve the original document denied the company due process, noting that Cal/OSHA recovered all of the documents in the original inspection file absent some handwritten investigative notes. Even if some of the unpreserved documents may have been useful, the company failed to establish bad faith in the loss of the file, the appellate court said.

Finally, the court found no evidence that the citations were wrongly classified as serious and affirmed the decision.