George Harms Construction Co., Inc.

Plain-English summary

George Harms Construction had established mail procedures, and its president acted promptly after learning of the citation through a collection notice. But the employee who signed for, date-stamped, and distributed certified mail did not testify, even though she was the only known person to possess the citation before it disappeared. Without her evidence, the judge could not find that the delay was outside the company's reasonable control. The Secretary's later litigation conduct did not waive the jurisdictional effect of the missed deadline, and the citation was affirmed in all respects.

Decision snapshot

• Cited standard(s): No specific OSHA standard number is identified in this procedural decision.
• Outcome: Rule 60(b) relief was denied, the late notice of contest was dismissed, and the citation was affirmed in all respects.
• Key point: A company seeking excusable-neglect relief must present evidence from the person who actually handled the missing citation when that witness is available and uniquely knowledgeable.

Full text (OSHRC public release)

SECRETARY OF LABOR,
Complainant,
v. OSHRC Docket No. 02-0371
GEORGE HARMS CONSTRUCTION CO, INC.,
Respondent.

APPEARANCES:

Terence Duncan, Esq. John F. Neary, Esq.
Office of the Solicitor Connell Foley, LLP
U.S. Department of Labor Roseland, New Jersey
New York, New York For the Respondent
For the Complainant

Before: Chief Judge Irving Sommer

                               DECISION AND ORDER
   This proceeding is before the Occupational Safety and Health Review Commission (“the

Commission”), pursuant to section 10 of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651
et seq. (“the Act”), for determination of the Secretary’s motion to dismiss Respondent’s request to file a
late notice of contest (“NOC”).
BACKGROUND
The underlying citation and proposed penalty (“citation”) arose from an inspection OSHA
conducted from November 29, 2001 through December 11, 2001, at a work site of Respondent George
Harms Construction Co., Inc., (“Harms”) in Clifton, New Jersey. OSHA sent the citation to Harms’ post
office address, by certified mail, return receipt requested, on December 13, 2001 and Harms received it
on or before December 31, 2001. (Exh. C-1).1 Harms did not file an NOC, and the citation became a final
order of the Commission by operation of law on January 22, 2002. See section 10(a) of the Act.
On February 28, 2002, OSHA mailed to Harms a debt collection notice. On March 8, 2002, Edward
Nyland, Harms’ President, called OSHA, spoke with Assistant Area Director (“AAD”) Steve Kaplan, and
informed him that he had no record of the citation. Also on March 8th, Mr. Nyland mailed a letter to the

      1
        The received date stamped on the return receipt card was partially obscured by the signature

of the employee who accepted it; the month and year are clearly indicated, but not the day. The
mailing, however, was evidently received by Harms at least on or before December 31, 2001, and
the parties so stipulated. (Tr. 17, 109, Exh. C-1).
Commission that essentially requested that Harms be permitted to file an NOC out of time; the reason
given for the failure to file a timely NOC was “clerical error.” (Tr. 11, 66-68, 84-85, Exhs. C-2, C-5, R-2).
The case was docketed at the Commission, and, on April 1, 2002, the Secretary filed a motion for
an extension of time to file her complaint.2 Three weeks later, on April 23, 2002, the Secretary filed a
motion to dismiss the proffered NOC as untimely. Harms cross-moved for permission to file an NOC nunc
pro tunc and to compel the Secretary to file a complaint. A hearing on the timeliness of Harms’ NOC was
conducted, and both parties have filed post-hearing briefs.
In its brief, Harms requests that the untimely filing of the NOC be excused under Federal Rule of
Civil Procedure 60(b)(1)&(6). Harms also asserts that the Secretary’s motion to dismiss was untimely, that
the Secretary waived her right to object to the NOC when she filed her motion for an extension of time to
file her complaint, and that the late filing of the NOC should be excused because the citation was not
addressed to Mr. Nyland.
DISCUSSION
It is clear that Respondent did not file a timely notice of contest. Section 10(a) of the Act requires
an employer to notify OSHA of the intent to contest a citation within 15 working days of receiving it, and,
as indicated above, the failure to do so results in the citation and penalty becoming a final order of the
Commission by operation of law. Under Commission precedent however, an otherwise untimely NOC may
be accepted if the employer can show that the late filing was caused by the Secretary’s deception or her
failure to follow proper procedures. A late filing may also be excused if the final order was entered as a
result of “mistake, inadvertence, surprise or excusable neglect” or for “any other reason justifying relief,
including mitigating circumstances such as absence, illness or a disability that would prevent a party from
protecting its interests.” See Branciforte Builders, Inc., 9 BNA OSHC 2113 (No. 80-1920, 1981); See also
Fed. R. Civ. P 60(b).
Here, Harms presented evidence that it had specific procedures for the handling of mail and the
delivery of important documents. Mr. Nyland also testified that when he works at a site and is therefore
out of the office, as he was in December, 2001, his mail is forwarded to him on a daily basis, and that he
has never had a problem receiving his mail. The evidence also showed that Mr. Nyland acted quickly and
in good faith promptly upon discovering the fact of the citation. (Tr. 73-77, 97-98, 103-104, Exhs. C-2,
C-5, C-3). Also, because the Secretary proceeded to litigate the matter by serving a motion to extend her

       2
           On November 18, 2002, I granted the Secretary’s motion for an extension of time.

time to file her complaint, I find that the late NOC caused her no prejudice.3
When determining whether a party’s neglect may be excused under Rule 60(b)(1), however, the
Commission considers a key factor to be whether the delay was within the reasonable control of the
employer. CalHar Constr. Inc., 18 BNA OSHC 2151, 2153 (No. 98-0367, 2000). It is on this issue that
Harms’ proof falls short because C. Pelsing, the Harms employee who signed for the citation, did not
testify. In addition to being the only Harms employee known to have had possession of the citation at any
time before its disappearance, Ms. Pelsing was also the employee at the company responsible for retrieving
the mail at the post office, accepting certified documents, and date-stamping and distributing the mail. She,
therefore, would have personal knowledge relating to whether office procedures were followed and what
may have happened to the certified document she signed for in December. Moreover, Mr. Nyland was able
to testify only that he had had no prior problems receiving his mail, and that he was unaware of any other
mail delivery issues within the company. (Tr. 73-81, 84, 94-98). By virtue of her position, Ms. Pelsing
would know better whether other Harms employees had had previous problems receiving mail under the
office’s procedures then in effect. There was no indication that Ms. Pelsing is no longer employed by the
company and no reason for her absence from the hearing was given. Without her testimony, I cannot make
a determination that the failure to file a timely NOC was not within the company’s control and I am
accordingly constrained to conclude that Harms failed to show that its neglect should be excused.4
With respect to Harms’ request for relief under Rule 60(b)(6), the record is devoid of evidence that
an illness, absence, disability or similar occurrence, traditionally relied on by courts as a basis for relief
under that section, caused the company to miss the filing deadline. See Branciforte Builders, Inc., 9 BNA
OSHC 2113, 2117 (No. 80-1920, 1981). Nor am I persuaded by Respondent that the Secretary’s motion
to extend her time to serve a complaint satisfied this section’s requirements, as that motion was made after
the contest period had expired.
As is indicated above, Harms also argues that: (1) the late filing should be excused because the
Secretary did not address the citation to Mr. Nyland; (2) the Secretary waived her right to seek dismissal

       3
         See CalHar Constr. Inc., 18 BNA OSHC 2151 (No. 98-0367, 2000), for a discussion of

the factors the Commission will consider in determining whether a company’s delay in filing an
NOC was the result of “excusable neglect.”
4
The problem of the missing evidence was not alleviated by Mr. Nyland’s testimony that Ms.
Pelsing told him that she did not recall receiving anything from OSHA. (See, Tr. 98).While I found
Mr. Nyland to be a credible witness, his testimony on this point establishes only that Ms. Pelsing
made that statement to Mr. Nyland; it does not prove to me that she in fact, could not recall accepting
the citation. Indeed, Mr. Nyland himself admitted that Ms. Pelsing might have been confused by the
fact that the sender’s name on the citation was “Department of Labor.” (Tr. 77).
when she filed her motion to extend her time to serve a complaint; and (3) the Secretary’s motion to
dismiss was untimely. Harms’ argument relating to the Secretary’s failure to address the citation to Mr.
Nyland is denied because neither the Act nor principles of due process require OSHA to direct a citation
to a specific individual within the company, even when there is proof that an express request to do so was
made at the closing conference. Nynex, 18 BNA OSHC, 1944 (No. 95-1671, 1999). Nor, in this case, could
such a failure be deemed a basis for Rule 60(b) relief. Harms did not expressly request that the citation be
forward to Mr. Nyland; at best there was some proof that other OSHA matters had been handled by him
and that the debt collection notice contained the salutation, “Dear Mr. Nyland,” and I find this proof
insufficient to establish that the Secretary failed to follow proper procedures. Further, there was no causal
connection between OSHA’s failure to so address the citation and Harms’ delay in filing the NOC because
Ms. Pelsing was under instructions to give all mail concerning OSHA matters to Mr. Nyland regardless
of whether it had his name on it. (Tr. 34-35, 75-77, 94, 101-102, Exhs. C-1&2, R-3, 5 & 6).
Harms arguments with respect to (2) and (3) are not completely without merit; the Secretary’s
motion for dismissal was served more than five weeks after the late NOC and the matter was clearly in the
appropriate hands at the Department of Labor, as the Secretary’s first action was to seek an extension of
time to serve a complaint. However, as is discussed above, once Harms failed to file a timely NOC, the
citation became a final order of the Commission by operation of law. See Section 10(a) of the Act.
Moreover, because the Secretary’s application raises questions relating to the Commission’s jurisdiction
to hear the merits of the case, the Secretary could not waive her right to seek dismissal, and her motion
therefore could have been filed at any time. See Fed. R. Civ. P. 12 (h)(3).5 Accordingly, Respondent’s
arguments on these issues are also rejected.
In light of the above, I conclude that the citation was properly served, that Harms did not file a
timely NOC, and that Harms is not entitled to relief pursuant to Rule 60(b). The Secretary’s motion to
dismiss is accordingly GRANTED, Respondent’s cross-motion is DENIED, and the citation is AFFIRMED
in all respects.
So ORDERED.

       5
       For the same reasons, I am also not persuaded that statements in the Secretary’s motion for

an extension of time to file her complaint amounted to an admission that the case should settle and
that Respondent’s late NOC ought to be accepted.
 /s/
IRVING SOMMER
Chief Judge

Date: February 3, 2003
Washington, D.C.