Mission Constructors, Inc.

Plain-English summary

OSHA cited Mission Constructors after inspecting a Tampa construction site. The employer's representative had a notice of contest prepared but did not file it by the deadline because he was trying to arrange an informal conference with OSHA. He sent it seven days late, despite the citation's clear deadline and his experience representing employers in OSHA matters. The judge found that the delay was within the representative's control and resulted from simple negligence rather than excusable neglect. The citation and proposed penalty were affirmed in full.

Decision snapshot

• Cited standard(s): None identified in the decision.
• Outcome: Rule 60(b) relief was denied, and the citation and proposed penalty remained final.
• Key point: An employer remains bound by its representative's failure to file a notice of contest while pursuing an informal conference.

Full text (OSHRC public release)

Mission Constructors, Inc., Docket No. 06-2050

SECRETARY OF LABOR,    

Complainant,

v.

OSHRC DOCKET NO. 06-2050

MISSION CONSTRUCTORS, INC .,

Respondent

Appearances:

Leslie P. Brody, Esquire                                   Thomas H. Scott, CSP

U.S. Department of Labor                                W.C. Blayney & Associates

Dallas, Texas                                                    Humble, Texas

For the Complainant.                                        For the Respondent.

Before:              G. Marvin Bober

Administrative Law Judge

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 sole purpose of determining whether the late-filed notice of
contest (“NOC”) of Respondent, Mission Constructors, Inc., should be accepted pursuant to Rule
60(b) of the Federal Rules of Civil Procedure (“Rule 60(b)”).

Background

The Occupational Safety and Health Administration (“OSHA”) inspected a construction work
site in Tampa, Florida, on August 31, 2006. As a result, OSHA issued a Citation and Notification
of Penalty (“Citation”) to Respondent on September 21, 2006. The Citation was sent by certified
mail, return receipt requested, and Respondent received and signed for the Citation on September
25, 2006. Section 10(a) of the Act requires an employer to notify the Secretary of its intent to contest
a citation within 15 working days of receipt, and the failure to file a timely NOC results in the
citation becoming a final order of the Commission by operation of law. Based on the date it received
the Citation, Respondent was required to file an NOC by October 17, 2006. However, Respondent
did not file an NOC by that date. Rather, on October 24, 2006, Repondent’s representative sent a
letter to OSHA requesting a “late conference due to mis-communications;” attached to the letter was
an NOC dated October 10, 2006. On November 10, 2006, OSHA sent a letter to Respondent’s
representative, stating that because the NOC letter was not received by October 17, 2006, the
Citation had become a final order of the Commission; the letter also stated that to pursue the matter
further, Respondent would need to contact the Commission directly. On December 21, 2006,
Respondent’s representative sent a letter to the Commission. The letter explained that Respondent
had attempted to have an informal conference with OSHA but “ran out of time” because the required
OSHA personnel were not available for a conference. The letter also requested a hearing before the
Commission to determine the merits of the Citation. See ALJ Exhibits 1-5. On January 25, 2007, the
Secretary filed her opposition to Respondent’s request for relief under Rule 60(b). The administrative
trial in this matter was held on March 16, 2007, in Houston, Texas.

The Relevant Testimony

Thomas Scott, Respondent’s representative, testified his office had called OSHA several times
to set up an informal conference. He explained that his office’s practice, when a client receives a
citation, is to have an informal conference with OSHA within the 15-day period; his office tries to
settle the citation at the conference but has an NOC prepared to present at the conference if the case
does not settle. He also explained that Commission judges had told him an informal conference must
be held before an NOC can be filed, and he said that in cases where that had not been done the judge
would not allow the case to proceed until the parties went back and had the informal conference. As
to the phone calls that were made, Mr. Scott discussed R-1, a diary of the actions his company had
taken in this matter.

Mr. W. C. Blayney called OSHA on October 10, 2006,

but was evidently unable
to talk to the person who could schedule a conference. Mr. Scott called OSHA on October 11 and
attempted to set up an informal conference; he was told an OSHA official would return his call. On
October 13, Mr. Blayney spoke to Karen Stone at OSHA and was told that October 13 was the last
day to contest the Citation; Mr. Scott agreed that date was incorrect and did not know why R-1
showed it as the final day to file an NOC. On October 17, Mr. Blayney spoke to Ms. Stone again; Mr.
Scott agreed the note for that date referenced the NOC dated October 10. Mr. Scott further agreed that
R-1 had an entry in bold type stating the 15-day period for contesting the Citation ended on October
17; he explained that the NOC was not filed on that date because no informal conference had taken
place. Mr. Scott indicated that the October 24 letter stated that his company’s safety department had
all gone out of town and had just returned; the thrust of the letter was the hope that his company could
still settle the case in an informal conference. Mr. Scott also indicated that the December 21 letter to
the Commission stated his office had requested an informal conference with OSHA and that Ms.
Stone had told Mr. Blayney October 17 was the final day to contest the citation. (Tr. 6-21).

Karen Stone, the assistant area director (“AAD”) who supervised the compliance officer who
issued the Citation, testified that she was the person in charge of the Mission Constructors case. Ms.
Stone identified C-1 as the OSHA diary sheet relating to the subject case. She noted that R-1 showed
that Mr. Blayney had called her office on October 10 and had left a message that he would call her
back on October 11; however, there was no indication on R-1 that he called again on October 11, and,
to her knowledge, Mr. Scott had not called on that day. The next record of any call regarding Mission
Constructors was on October 23; an individual named Joan from W.C. Blayney & Associates called
and asked what the last date to contest the Citation was; the AAD responded that the date was
October 17, that no changes could be made to the Citation, and that she could establish a payment
plan. On October 24, Mr. Blayney called and asked the AAD to give him an additional 15 days to
settle the case; the AAD advised him that she had no authority to do so. Mr. Blayney stated that he
had been on the road and had been busy and had missed the date to resolve the case; the AAD advised
Mr. Blayney to file a late NOC. (Tr. 21-24, 28-30).

Discussion

The record in this case plainly shows that Respondent did not file its NOC within the requisite
15-day period set out in the Act. Despite the language of section 10(a) of the Act, however, the
Commission has recognized under Rule 60(b) situations where noncompliance with the 15-day filing
requirement will not preclude it from exercising jurisdiction to excuse some inadvertent late filings.
Jackson Assoc. of Nassau , 16 BNA OSHC 1261, 1264 (No. 91-438, 1993) (Section 10(a) of the Act
does not preclude the Commission from deciding whether to grant relief under Rule 60(b)).

Rule 60(b) provides, in pertinent part, that “[o]n motion or upon such terms as are just, the
court may relieve a party or a party’s legal representative from final judgment, order, or proceeding
for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) ... ; (3) fraud
( ... ), misrepresentation, or other misconduct of an adverse party;

(4) ... ; (5) ... ; or (6) any other
reason justifying relief from the operation of the judgment.”

The party seeking relief has the burden
of proving it is entitled to relief.

There is no contention, and no evidence, that the delay in filing in this case was due either to
deception on the part of the Secretary or her failure to follow her own procedures. However, in its
January 29, 2007 letter to the undersigned, Respondent’s representative stated that the company was
“specifically claiming ‘Excusable Neglect’ ” in this matter. See ALJ Exhibit 7 (emphasis in original).

In determining whether an employer’s failure to file a timely NOC was due to excusable
neglect, the Commission follows the Supreme Court’s test set out in Pioneer Inv. Serv. v. Brunswick
Assoc. Ltd. P’ship , 507 U.S. 380 (1993) (“ Pioneer ”).

See Northwest Conduit Corp. , 18 BNA OSHC
1948, 1950 (No. 97-851, 1999). In Pioneer , the Court stated as follows:

With regard to [whether] a party’s neglect of a deadline is excusable, ... we conclude
that the determination is at bottom an equitable one, taking account of all relevant
circumstances surrounding the party’s omission. These include, as the Court of
Appeals found, the danger of prejudice to the [opposing party], the length of the delay
and its potential impact on judicial proceedings, the reason for the delay, including
whether it was within the reasonable control of the movant, and whether the movant
acted in good faith.

507 U.S. at 395 (footnote omitted).

The Court also stated in Pioneer that the “proper focus is upon whether the neglect of
respondents and their counsel was excusable.” Id . at 397 (emphasis in original). This is so because
“clients must be held accountable for the acts and omissions of their attorneys.” Id . at 396. The Court
made the further statement that:

Petitioner voluntarily chose this attorney as his representative in the action, and he
cannot now avoid the consequences of the acts or omissions of this freely selected
agent. Any other notion would be wholly inconsistent with our system of representative litigation, in which each party is deemed bound by the acts of his lawyer-agent
and is considered to have notice of all facts, notice of which can be charged upon the
attorney.

Id . at 397 (citation omitted).

Turning to the factors set out in Pioneer , I find that the late filing in this case has resulted in
little prejudice to the Secretary. I further find that the length of the delay, which was seven days after
the NOC period ended, is not substantial and that the impact on judicial proceedings is likewise
insubstantial.

Finally, I find that Respondent itself has not acted in bad faith in this matter.

In my opinion, the reason for the delay, and whether it was in the reasonable control of the
movant, is the most significant factor. As a preliminary matter, I note that the testimony Mr. Scott
gave as to the reason for the delay conflicts significantly with the testimony of Ms. Stone. Thus,
credibility becomes an issue.

However, even assuming arguendo that the essential facts are as he
gave them, that is, that the delay was due to his inability to have an informal conference with OSHA
before the NOC filing period ended, that reason is no basis for finding that the late filing was caused
by excusable neglect. First, the Citation itself stated on page 1, in bold and underlined text, as follows:

Unless you inform the Area Director in writing that you intend to contest the
citation(s) and/or proposed penalty(ies) within 15 working days after receipt, the
citation(s) and the proposed penalty(ies) will become a final order of the
Occupational Safety and Health Review Commission and may not be reviewed
by any court or agency.

Second, the Commission has held that the citation clearly states the requirement to file an
NOC within the prescribed period and that an employer “must bear the burden of its own lack of
diligence in failing to carefully read and act upon the information contained in the citations.” Roy
Kay, Inc. , 13 BNA OSHC 2021, 2022 (No. 88-1748, 1989); Acrom Constr. Serv., Inc. , 15 BNA
OSHC 1123, 1126 (No. 88-2291, 1991). The Commission has also held that ignorance of procedural
rules does not constitute “excusable neglect” and that mere carelessness or negligence does not justify
relief. Acrom Constr. Serv., Inc. , 15 BNA OSHC 1123, 1126 (No. 88-2291, 1991); Keefe Earth
Boring Co. , 14 BNA OSHC 2187, 2192 (No. 88-2521, 1991).

Third, W.C. Blaney & Associates, the company for which Mr. Scott works, provides
consulting and representation in OSHA matters and presumably should be well aware of the 15-day
period within which an employer must file its NOC. This is particularly so in light of Mr. Scott’s
testimony that he had represented approximately 40 employers in OSHA cases in the past eight years.
(Tr. 11).

Based on the foregoing, I find that the reason for the delay in this case constituted simple
negligence, and not “excusable neglect,” especially since Respondent was represented by a company
that provides consulting and representation in OSHA matters.

I also find that the reason for the delay
was wholly within the control of Respondent’s representative. Finally, I find that Respondent is bound
by the acts of its representative in this matter, in light of the Supreme Court’s decision in Pioneer ,
supra . Under the circumstances of this case, I conclude that Respondent has not met its burden of
showing that it is entitled to relief pursuant to Rule 60(b).

For all of the reasons set forth above, the Citation and Notification of Penalty issued on
September 21, 2006, is AFFIRMED in its entirety.

So ORDERED.

/s/

G. MARVIN BOBER

Judge, OSHRC

Dated: May 10, 2007

Washington, D.C.