Simon Roofing and Sheet Metal, Inc.

Plain-English summary

Simon Roofing filed its notice of contest months late after a temporary employee signed for the OSHA citation and the document was misplaced. The judge denied relief, finding that the company's mail-handling procedures were inadequate. The Third Circuit later vacated the Commission's final order on the Secretary's unopposed motion and directed the agency to apply intervening circuit decisions. The Commission remanded the case to the chief administrative law judge to weigh all relevant factors in deciding whether the delay resulted from excusable neglect.

Decision snapshot

• Cited standard(s): None specified in this late-filing remand order.
• Outcome: The case was remanded to the chief administrative law judge for a new excusable-neglect analysis.
• Key point: A late notice of contest required consideration of all relevant excusable-neglect factors under the controlling Third Circuit decisions.

Full text (OSHRC public release)

Simon Roofing and Sheet Metal, Inc., Docket No. 03-0640

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SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No. 03-0640

SIMON ROOFING AND SHEET METAL, INC.,

Respondent.

REMAND
ORDER

This
case is before the Commission on remand from the United States Court of Appeals
for the Third Circuit. Simon Roofing v. Secretary of Labor , No. 04-1338
(3d Cir. October 28, 2004) (unpublished order). In its order, the Third Circuit
summarily granted the Secretary’s unopposed motion asking the court to
vacate the Commission’s final order, and remand the proceeding for the
Commission to apply George Harms Constr. Co. v. Chao , 371 F.3d 156 (3d
Cir. 2004) and Avon Contractors, Inc. v. Secretary of Labor , 372 F.3d
171 (3d Cir. 2004), and weigh all relevant factors to determine whether or not
Simon Roofing is entitled to relief based on excusable neglect under Federal
Rule of Civil Procedure 60(b). See Chemetron Corp. v. Jones , 72 F.3d
341, 349-50 (3d Cir. 1995).

Accordingly,
we remand this case to the Chief Administrative Law Judge for further
proceedings consistent with the court’s order.

It is so ordered.

/s/

W.
Scott Railton

Chairman

/s/

James
M. Stephens

Commissioner

/s/

Thomasina
V. Rogers

Commissioner

Dated:
November 22, 2004

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No. 03-0640

SIMON ROOFING AND SHEET METAL, INC.,

Respondent.

Appearances:

Jennifer
Marciano,
Esquire                            Samuel
J. Samaro, Esquire

U.S.
Department of
Labor                              Pashman
Stein

New
York, New
York                        Hackensack,
New Jersey

For
the
Complainant.                                      For
the Respondent.

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(c) of the Occupational
Safety and Health Act of 1970, 29 U.S.C. § 651 et seq . (“the
Act”), for the purpose of determining whether the Secretary’s
motion to dismiss Respondent’s notice of contest as untimely should be
granted. A hearing in this regard was held on October 9, 2003, in New York, New
York. Only Respondent has filed a post-hearing brief.

Background

The
Occupational Safety and Health Administration (“OSHA”) inspected a
work site of Respondent, Simon Roofing and Sheet Metal, Inc.
(“Simon”), on November 19, 2002. On November 29, 2002, OSHA issued
to Simon a Citation and Notification of Penalty (“Citation”). OSHA
mailed the Citation to Simon by certified mail, return receipt requested, and,
on December 4, 2002, a temporary employee of Simon signed for the Citation.
Section 10(a) of the Act requires an employer to notify the Secretary of the
intent to contest a citation within 15 working days of receipt, and the failure
to file a timely notice of contest (“NOC”) results in the citation
becoming a final order of the Commission by operation of law. Based on the date
that it received the Citation, Simon was required to file its NOC by December
26, 2002. However, Simon did not file an NOC by that date, due to the fact that
the Citation had been misplaced after it was received. On March 19, 2003,
Simon’s corporate safety and health manager called OSHA and spoke with
the assistant area director (“AAD”), explaining that she had just
become aware of the Citation. The AAD advised her that the Citation was already
a final order and provided her the Commission’s address. The safety
manager sent a letter to the Commission on March 21, 2003, requesting, in
effect, that Simon’s late NOC be accepted under the circumstances. The
Secretary filed her motion to dismiss on June 6, 2003, and Simon filed its
opposition to the motion on June 16, 2003. (Tr. 4-16; C-1-3).

Discussion

The
record plainly shows that Simon did not file an NOC within the requisite 15
working-day period. However, an otherwise untimely NOC may be accepted where
the delay in filing was caused by deception on the part of the Secretary or her
failure to follow proper procedures. A late filing may also be excused,
pursuant to Federal Rule of Civil Procedure 60(b) (“Rule 60(b)”),
if the final order was entered as a result of “mistake, inadvertence,
surprise or excusable neglect” or “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).

At
the hearing, Benita Thompson, Simon’s corporate safety and health
manager, testified that she is the person who would receive matters such as the
Citation in this case. She recognized the signature on the certified mail
return receipt card as that of the temporary employee who was working for Simon
at the time the Citation was issued, and she surmised that Simon’s
receptionist had been away from her desk for some reason and that the temporary
employee had signed for the Citation, after which it was misplaced. Ms. Thompson said the practice then was for the receptionist to sign
for certified mail and to distribute it accordingly. She also said the
receptionist would have known to give her the Citation and that although she
(Thompson) was in Simon’s Baton Rouge office at that time, the Citation
would have been brought to her attention if it had not been misplaced. She
explained that the practice was for the office manager to call her once or
twice a week when she was out of the office in order to go over all of the mail
that was in her box; she further explained that she would then tell the office
manager what to do with any correspondence she had received. Ms. Thompson noted
that after this incident, Simon had put a new procedure in place for handling
certified mail; certain designated full-time employees in the office are the
only ones who are allowed to sign for certified mail, and, after the certified
mail is signed for, it is taken directly to the person for whom it is intended,
and that person also signs for it. (Tr. 11-16).

As
indicated above, the issue here is whether the misplacing of the Citation,
which resulted in the late-filed NOC, may be deemed “excusable
neglect” under Rule (60)(b) such that Simon may be granted relief from
the Citation’s having become a final order. The Commission has held that
a key factor in determining whether a late filing was due to excusable neglect
is “the reason for the delay, including whether it was within the
reasonable control of the movant.” CalHar Constr., Inc. , 18 BNA
OSHC 2151, 2153 (No. 98-367, 2000), citing to Pioneer Inv. Serv. v.
Brunswick Assoc. , 507 U.S. 380, 395 (1993). The Commission has also held
that a business must maintain orderly procedures for the handling of important
documents and that when the lack of such procedures results in an untimely NOC,
the late filing will be deemed to be simple negligence and not excusable
neglect. Louisiana-Pacific Corp ., 13 BNA OSHC 2020, 2021 (No. 86-1266,
1989). The Commission has accordingly denied Rule 60(b) relief in cases where
the late filing was due to an employee’s mishandling or misplacing the
citation or the failure of the employee who received the citation to bring it
to the attention of proper company officials. J.F. Shea Co. , 15 BNA OSHC
1092, 1094 (No.89-976, 1991); Louisiana-Pacific Corp ., 13 BNA OSHC 2020,
2021 (No. 86-1266, 1989); Stroudsburg Dyeing & Finishing Co. , 13 BNA
OSHC 2058 (No. 88-1830, 1989).

Based
on the evidence and the foregoing Commission precedent, I conclude that the
late filing here was due to Simon’s lack of proper procedures for the
handling of important documents. Although Ms. Thompson testified that the
temporary employee was assisting with Simon’s accounts and was not
working as a receptionist, it is clear that she signed for the subject
Citation, and she may well have done so on a number of occasions. (Tr. 13).
Further, Simon should have known that other individuals, including the
temporary employee, would accept mail in the absence of the receptionist and
should have had a procedure geared towards preventing what happened here.
Finally, that Simon instituted a new procedure after this incident indicates
that the previous procedure was deficient. I am sympathetic to Simon’s
plight, and I am well aware of the large penalty involved in this matter.
However, I am constrained to decide cases based upon the facts and
circumstances presented and upon Commission precedent. The employer has the
burden of showing it is entitled to relief, and Simon, in my opinion, has not
established a reason that would justify the granting of Rule 60(b) relief in
this case. The Secretary’s motion to dismiss Simon’s NOC as
untimely is therefore GRANTED, and the Citation is AFFIRMED in all respects.

So
ORDERED.

/s/

Irving
Sommer

Chief
Judge

Date: November 24, 2003

Washington,
D.C.