Elan Lawn and Landscape Service, Inc.

Plain-English summary

Elan Lawn filed its notice of contest one day after the deadline calculated from a disputed certified-mail receipt, and the judge denied relief without a hearing. The Commission noted that the Secretary's dismissal request did not comply with the rule requiring a separate motion and consultation with the opposing party, safeguards especially important for a pro se employer facing default. Elan submitted affidavits asserting that it did not employ the person who signed the receipt, its office was closed on the stated delivery date, and it tried unsuccessfully to contact OSHA before the deadline. The Commission remanded for a complete evidentiary record on whether the contest was timely and, if not, whether excusable neglect and a meritorious defense justified relief.

Decision snapshot

• Cited standard(s): None identified in this procedural remand decision.
• Outcome: Denial of late-contest relief was remanded for an evidentiary proceeding.
• Key point: A pro se employer must receive a fair opportunity to develop evidence on disputed receipt, excusable neglect, and a meritorious defense before default.

Full text (OSHRC public release)

Elan Lawn & Landscape Service, Inc., Docket No. 08-0700

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No. 08-0700

ELAN LAWN AND LANDSCAPE SERVICE,
INC.,

Respondent.

APPEARANCES:

Sharon D. Calhoun, Attorney; Stanley E. Keen, Regional Solicitor; Gregory F. Jacob, Solicitor of
Labor; U.S. Department of Labor, Washington, DC

For the Complainant

Leslie W. Langbein, Esq.; Langbein & Langbein, P.A., Miami Lakes, FL

For the Respondent

REMAND ORDER

Before: THOMPSON, Chairman; ROGERS, Commissioner.

BY THE COMMISSION:

At issue on review is a decision and order by Chief Administrative Law Judge Irving
Sommer denying Elan Lawn and Landscape Service, Inc. (“ELL”) relief under Federal Rule of
Civil Procedure 60(b) for a late-filed notice of contest (“NOC”) and affirming five citation items.
For the following reasons, we remand the case to the judge for further proceedings consistent
with this opinion.

Background

After an inspection of an ELL worksite in Pembroke Pines, Florida, the Occupational
Safety and Health Administration (“OSHA”) issued ELL by certified mail, return receipt
requested, two citations under the Occupational Safety and Health Act of 1970 (“the Act”),
29 U.S.C. §§ 651-78, alleging five violations with a total proposed penalty of $13,800. The
certified mail receipt for the citations was dated April 19, 2008, and signed for by a “T.G.
Fedez.” On May 13, 2008, one day after the fifteen working day period for notifying the
Secretary of its intent to contest the citations expired, ELL submitted a written NOC in the form
of a letter to the Executive Secretary. Section 10(a) of the Act, 29 U.S.C. § 659(a). ELL,
appearing pro se at the time, included in the letter a request for a hearing and explained that an
ELL employee had left two unreturned voicemail messages for Ramona Morris, the OSHA Area
Office representative who had previously met with company officials to discuss the citations.
According to the letter, when an ELL employee finally reached Morris on May 13, she informed
him that “the deadline was missed.”

On July 11, 2008, the Secretary submitted an Opposition to Relief under Rule 60(b) in
which she moved to dismiss the NOC as untimely and argued there was no basis for affording
ELL relief under Rule 60(b).

According to the Secretary, Morris “was in the office” and “has
no record of receiving [ELL’s] calls or of voicemails.” ELL filed nothing in response,
subsequently claiming in its petition for discretionary review that it had neither been contacted
by the Secretary nor received her filing. On August 8, the judge issued a decision in which he
denied ELL relief under Rule 60(b)—primarily for a failure to support a finding of “excusable
neglect”—and affirmed the citations without holding a hearing.

ELL, now represented by counsel, claims that had it been aware of the Secretary’s
opposition filing and that the judge would render a decision on the matter without the benefit of
a hearing, it would have obtained counsel and produced evidence to demonstrate that its NOC
was timely or, alternatively, that it deserved Rule 60(b) relief. Specifically, ELL claims it never
employed a “T.G. Fedez,” its offices were not open on April 19, 2008, and it had attempted to
contact OSHA about the citations but received no response until after the contest deadline
allegedly expired. ELL has also submitted two sworn affidavits from an officer of the company
and an employee declaring these facts.

Discussion

Under “long-standing Commission precedent,” relief may be granted under Rule 60(b)
from a final judgment that is due to a late-filed NOC. Nw. Conduit Corp. , 18 BNA OSHC 1948,
1949 (No. 97-851, 1999). The moving party bears the burden of showing that it is entitled to
such relief. NYNEX , 18 BNA OSHC 1967, 1970 (No. 95-1671, 1999). Rule 60(b) provides that
the judge may grant relief for reasons including “mistake, inadvertence, surprise, or excusable
neglect.” In determining excusable neglect, the Commission takes into account “all relevant
circumstances surrounding the party’s omission,” including: “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.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.
P’ship , 507 U.S. 380, 395 (1993).

In denying ELL relief under Rule 60(b), the judge had before him only a NOC he found
was filed one day late and an unrebutted filing from the Secretary opposing Rule 60(b) relief.
The judge relied primarily on the fact that “the delay [in filing] was within [ELL’s] reasonable
control[,]” citing cases where the Commission denied relief because the employer’s lack of
“orderly procedures . . . for handling important documents” caused the late filing. He also relied
on the Secretary’s assertions that ELL “has a history of OSHA citations” and noted that an
“additional reason for denying relief” was ELL’s failure to “allege it has a meritorious defense to
the citation.” See Nw. Conduit Corp. , 18 BNA OSHC at 1951 (moving party must allege a
meritorious defense to be eligible for relief under Rule 60(b)).

Although we cannot verify ELL’s claim that it did not receive the Secretary’s opposition
filing given the limited record before us, we note that in filing the motion to dismiss ELL’s NOC
the Secretary failed to comply with Commission Rule 40(a), 29 C.F.R. § 2200.40(a), in two
respects: she did not make the motion “in a separate document” and she failed to state whether
she conferred with ELL regarding the motion.

The Secretary’s apparent failure to confer with
ELL before filing the motion eliminated one of the functions of Commission Rule 40(a)—to
ensure that a party in jeopardy of being defaulted is warned of that possibility by the moving
party. See A A Plumbing, Inc. , 20 BNA OSHC 2203, 2204 (No. 04-1299, 2005) (remanding case
for pro se employer to explain reasons for failing to file a timely answer where Secretary failed
to follow Commission Rule 40(a)); Dore & Assocs. Contracting Inc. , 19 BNA OSHC 1438,
1438 n.1 (No. 01-0067, 2001) (remanding case where Secretary failed to comply with
Commission Rule 40(a) by not contacting pro se employer for a motion to dismiss untimely
NOC). Compliance with Commission Rule 40(a) is particularly important when the party is
appearing pro se , as ELL was at the time. As the Commission has recognized, pro se employers
are “often confused by legal terminology and may not be fully cognizant of the legal
technicalities of the judicial process.” A A Plumbing, Inc. , 20 BNA OSHC at 2204 (internal
quotation omitted).

Absent any communication or contact here from either the judge or the Secretary after
filing its NOC, ELL was not fully aware of its procedural position and may not have realized its
ability to address the possibility of relief under Rule 60(b). In fact, ELL maintains that its NOC
was timely because it did not receive the citations until after April 19, an argument it would have
had no reason to raise in the NOC and, apparently without notice of the opposition filing or that
there would be no evidentiary hearing, it had no reason to raise before the judge issued his
decision. Thus, ELL was not given a full opportunity to present evidence as to the timeliness of
its NOC, to respond to the Secretary’s opposition, and to allege a meritorious defense.

Under these circumstances, we conclude that this matter should be remanded to the judge
“to conduct an appropriate evidentiary proceeding.” Dore & Assocs. , 19 BNA OSHC at 1439;
see A A Plumbing, Inc. , 20 BNA OSHC at 2204 (remanding case for pro se employer to explain
reasons for failing to file a timely answer where Secretary failed to follow Commission Rule
40(a)); Mannkraft Corp. , 1993 WL 387778 at *1 (remanding case to permit pro se employer to
develop an evidentiary record to “establish whether its notice of contest should be reinstated”);
Vern’s Mfg., Inc. , 14 BNA OSHC 1846, 1847 (No. 89-3082, 1990) (remanding untimely NOC
case where no hearing was held, no affidavits were filed, and employer was pro se ). On remand,
ELL should be given an opportunity, based on a complete evidentiary record, to address whether
its NOC was timely and, therefore, should be reinstated. If the judge finds the NOC to be
untimely, he should then reconsider in light of the complete evidentiary record whether
excusable neglect exists, as well as reevaluate whether ELL has alleged a meritorious defense.
See Architectural Glass & Metal Co. , 19 BNA OSHC 1546 (No. 00-0389, 2001) (remanding
case to judge to consider evidence to determine whether Rule 60(b) relief may be granted); Dore
& Assocs. , 19 BNA OSHC at 1439 (same); Nw. Conduit Corp. , 18 BNA OSHC at 1951
(applying Pioneer factors in analyzing excusable neglect).

Accordingly, we remand the matter to the judge to develop the record, to consider any
evidence with respect to whether ELL filed a timely NOC and, if that claim is not supported by
the evidence, to reconsider whether relief under Rule 60(b) is warranted.

SO ORDERED.

/s/

Horace A. Thompson III

Chairman

Dated: September 8, 2008                                            /s/

Thomasina V. Rogers

Commissioner

Secretary of Labor,

Complainant,

v.

OSHRC Docket No. 08-0700

Elan Lawn & Landscape Service, Inc.,

Respondent.

Before: Chief Judge Irving Sommer

DECISION AND ORDER

This matter 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 Respondent’s late-filed
notice of contest (“NOC”) should be accepted.

Background

The Occupational Safety and Health Administration (“OSHA”) inspected a work site of
Respondent, located in Pembroke Pines, Florida, on January 16, 2008. As a result, OSHA issued
to Respondent a Citation and Notification of Penalty (“Citation”) on April 14, 2008. OSHA
mailed the Citation to Respondent’s address in Pembroke Pines, Florida, by certified mail, return
receipt requested, and a representative of Respondent, T. G. Fedez, signed for the Citation on
April 19, 2008. 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 upon the date it
received the Citation, Respondent was required to file an NOC on or before May 12, 2008.
However, Respondent did not file an NOC by that date. In a letter dated May 13, 2008,
addressed to the Commission, Respondent stated as follows:

On May 6 th 2008, our company had an informal meeting with an OSHA
representative Ms. Ramona Morris, at the Ft. Lauderdale branch in Florida. We
were told that we had until May 12 th to request a formal meeting with OSHA to
dispute our citations. A telephone call was placed on Friday the 9 th and Monday
the 12 th to Ms. Morris. Messages were left on her voicemail but received no
response until noon May 13 th . At that time we were told that the deadline was
missed.

Given the circumstances, we would like to request that the review commission
hear our case regarding our recent OSHA citations.

The letter is signed by Yoram Gozlan, vice-president of operations.

Only July 11, 2008, the Secretary filed her opposition to the request for relief.

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. 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
“circumstances such as absence, illness, or a similar disability [that would] prevent a party from
acting to protect its interests.” See Branciforte Builders, Inc. , 9 BNA OSHC 2113, 2117 (No. 80-1920, 1981) (citations omitted). The moving party has the burden of proving that it is entitled to
Rule 60(b) relief.

Although Respondent’s letter indicates that it contacted Ms. Morris of the Ft. Lauderdale
OSHA office and left messages on her voice mail, the Secretary’s opposition states that Ms.
Morris was in the office on the days in question and that there was no record of calls from
Respondent or voice mail messages left by Respondent on those days. Regardless, even if
Respondent did leave the messages it claims, the Commission has held that OSHA’s failure to
return an employer’s telephone calls does not serve as a basis for Rule 60(b) relief where the 15-day NOC deadline was unequivocally stated on the face of the OSHA citation. Craig Mech.,
Inc. , 16 BNA 1763, 1765-66 (No. 92–0372 , 1994). As the Secretary notes in her opposition, the
Citation sent to Respondent states, 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.

Based on the foregoing, there is no reason to conclude that the late filing here was due to
deception or failure to follow proper procedures on the part of the Secretary. Turning to whether
Respondent’s late filing was due to “excusable neglect,” the Commission follows the Supreme
Court’s test in Pioneer Inv. Serv. v. Brunswick Assoc. , 507 U.S. 380 (1993). See Northwest
Conduit Corp. , 18 BNA OSHC 1948, 1950 (No. 97-851, 1999). Under that test, the Commission
takes into account all relevant circumstances, including 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. Id . at 1950, quoting 507 U.S. at 395. The Commission has held that
the “reason for the delay, including whether it was within the reasonable control of the movant,”
is a “key factor” and, in appropriate circumstances, the dispositive factor.

A.W. Ross, Inc. , 19
BNA OSHC 1147, 1148 (No. 99-0945, 2000); CalHar Constr., Inc. , 18 BNA OSHC 2151, 2153
(No. 98-0367, 2000).

I find the length of delay in filing here, which was one day, to be insignificant. I further
find that the Secretary has not been prejudiced and that the delay would have little impact on
judicial proceedings. Moreover, I do not question Respondent’s good faith in this matter.

In regard to the reason for the delay, and whether it was within the reasonable control of
the movant, I agree with the Secretary that the delay was within the reasonable control of
Respondent. The Citation itself provided Respondent with all the necessary information to file
an NOC. Further, the Commission has specifically held that the OSHA 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).

Also significant in this case is the fact that Respondent itself admits in its NOC letter that
Ms. Morris advised it on May 6, 2008, that it had until May 12, 2008, “to request a formal
meeting with OSHA to dispute our citations.” Thus, Respondent had not only the written
warning set out in the Citation, it also had an oral warning on May 6, 2008, of the final date by
which it had to contest the Citation. Commission precedent is well settled that a business must
have orderly procedures in place for handling important documents and that if the lack of such
procedures caused the late filing, Rule 60(b) relief will not be granted. NYNEX , 18 BNA OSHC
1967, 1970 (No. 95-1671, 1999); E.K. Constr. Co. , 15 BNA OSHC 1165, 1166 (No. 90-2460,
1991); Stroudsburg Dyeing & Finishing Co., 13 BNA OSHC 2058 (No. 88-1830, 1989);
Louisiana Pacific Corp. , 13 BNA OSHC 2020, 2021 (No. 86-1266, 1989). The Commission has
thus denied relief in cases where the person responsible for filing the NOC was absent, even if
due to illness, and where a disruption to the employer’s business, such as a change in
management, had occurred. See, e.g., Jackson Assoc. of Nassau , 16 BNA OSHC 1261, 1265
(No. 91-0438, 1993); E.K. Constr. Co. , 15 BNA OSHC 1165, 1166 (No. 90-2460, 1991);
Louisiana-Pacific Corp. , 13 BNA OSHC 2020, 2021 (No. 86-1266, 1989).

Based on the facts of this case and the foregoing Commission precedent, I am
constrained to find that the delay was not due to excusable neglect; in this regard, I note the
Secretary’s statement in her opposition that Respondent has a history of OSHA citations and is
therefore very familiar with the NOC requirements. Accordingly, I conclude that Respondent has
not demonstrated that relief pursuant to Rule 60(b) is justified.

There is an additional reason for denying relief in this matter. As the Secretary points out,
besides showing the late filing was caused by excusable neglect, the party seeking relief must
also allege it has a meritorious defense to the citation. See, e.g., Northwest Conduit Corp. , 18
BNA OSHC 1948, 1951 (No. 97-851, 1999). Although Respondent’s letter sets out an
explanation for the late filing, there is no allegation of a meritorious defense to the Citation.

In view of the foregoing, there is no basis for the granting of relief under Rule 60(b).
Respondent’s request for relief is accordingly DENIED, and the Citation is AFFIRMED in all
respects.

SO ORDERED.

/s/

Irving Sommer

Chief Judge

Dated: August 8, 2008

Washington, D.C.