C & C Roofing

Plain-English summary

OSHA issued C & C Roofing one serious citation with a proposed $2,000 penalty after inspecting a Colorado Springs worksite. The company filed its notice of contest 48 days late. It did not respond to the Secretary's dismissal motion or the judge's order to show cause, and it offered no basis for relief based on mistake, inadvertence, surprise, or excusable neglect. The judge vacated the late notice of contest and affirmed the citation and penalty as a final order.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1903.17(a); 29 U.S.C. § 659(a)
• Outcome: The late notice of contest was vacated, and the citation was affirmed with a $2,000 penalty.
• Key point: An employer seeking relief from a late notice of contest must provide a supported reason for missing the statutory deadline.

Full text (OSHRC public release)

                   UNITED STATES OF AMERICA
       OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
OSHRC DOCKET NO. 13-0312
v.
C&C ROOFING,
Respondent.

    Timothy S. Williams, Esq., Office of the Solicitor, U.S. Department of Labor, Denver, CO
            For Complainant

    No Appearance for the Respondent

Before: Administrative Law Judge Patrick B. Augustine

                                   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”). The Occupational Safety and Health Administration (“OSHA”)

conducted an inspection of a C&C Roofing (“Respondent”) worksite in Colorado Springs,

Colorado on October 30, 2012. As a result of the inspection, OSHA issued a Citation and

Notification of Penalty (“Citation”) to Respondent alleging one serious violation of the Act with

penalties totaling $2,000.00. The Citation was issued on November 8, 2012. Respondent

contested the Citation by filing a Late Notice of Contest on January 29, 2013.

                                        Procedural History

    On May 21, 2013, Complainant filed a Motion to Dismiss Respondent’s Notice of

Contest, which requested that the Citation be affirmed as a final order of the Commission. See

Villa Marina Yacht Harbor, Inc., 19 BNA OSHC 2185 (No. 01-0830, 2003) (dismissing notice

of contest filed one day late). Specifically, Complainant argued that Respondent is not entitled
to relief pursuant to Federal Rule of Civil Procedure 60(b), because (1) Respondent filed its

Notice of Contest 48 days late; and (2) Respondent failed to establish any reason that would

justify relief from the operation of Section 10(a) of the Act, 29 U.S.C. § 659(a). Respondent did

not file a response to Complainant’s motion. On June 17, 2013, the Court issued an Order to

Show Cause, whereby Respondent was “ORDERED TO SHOW CAUSE WITHIN TEN (10)

DAYS of this Order as to why the Court should not issue judgment against Respondent and

affirm the proposed violations in this case . . . .” The Respondent has not responded to the Order

to Show Cause.

                                        Discussion

   Rule 60(b) states that “[o]n motion and just terms, the court may relieve a party or its

legal representative from a final judgment, order, or proceeding . . . .” Fed. R. Civ. P. 60(b).

The rule lists the reasons that would provide a sufficient basis for granting the relief requested.

Id. The subsection applicable in this case is (b)(1), which states that “mistake, inadvertence,

surprise, or excusable neglect” constitutes a sufficient basis for Rule 60(b) relief. Id. Rule 60(b)

motions claiming excusable neglect are evaluated pursuant to the criteria set forth in Pioneer

Investment Servs. v. Brunswick Assocs., 507 U.S. 380, 395 (1993). See Northwest Conduit

Corp., 18 BNA OSHC 1948, 1999 OSHD (CCH) ¶ 31,949 (No. 97-851, 1999). Under Pioneer,

the Court must consider “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, 507 U.S. at 395. According to the Commission, “the reason for the delay, including

whether it was within the reasonable control of the movant” is the “key factor” in the

determination of whether an employer has established excusable neglect. A.W. Ross Inc., 19

BNA OSHC 1147, 2000 OSHD (CCH) ¶ 32,197 (No. 99-0945, 2000) (citing Calhar Constr., 18
BNA OSHC 2151, 2000 OSHD (CCH) ¶ 32,081 (No. 98-0367, 2000)).

   Complainant contends that Respondent has failed to establish mistake, inadvertence,

surprise, inexcusable neglect, or that Respondent’s failure to file a timely notice of contest was

due to misrepresentation or other conduct on behalf of Complainant. See Craig Mech., Inc., 16

BNA OSHC 1763 (No. 92-0372-S, 1994); see also Roy Kay, Inc., 13 BNA OSHC 2021 (No. 88-

1748, 1989) (holding the burden is on Respondent to show sufficient basis for relief).

Specifically, Complainant argues that Respondent received actual notice of the Citation and

failed to comply with the instructions—typed in bold-face print—indicating the deadline for

filing a notice of contest. By failing to file a response to the Order to Show Cause, Respondent

has failed to provide the Court with any supportable reason it could consider to justify its failure

to file its Notice of Contest within the 15-day period provided by 29 C.F.R. § 1903.17(a). See

also 29 U.S.C. § 659(a).

   The Court finds that the service effected by Complainant was “reasonably calculated to

provide [Respondent] with knowledge of the citation and notification of proposed penalty and an

opportunity to determine whether to abate or contest.” B. J. Hughes, Inc., 7 BNA OSHC 1471,

1474, 1979 CCH OSHD ¶ 23,675 (No. 76-2165, 1979). The Court further finds that Respondent

has failed to establish any plausible excuse or rationale that would justify relief from the

operation of Section 10(a) of the Act. See 29 U.S.C. § 659.

   Accordingly, with respect to the above-referenced docket, Respondent’s Notice of

Contest is hereby VACATED and the violations and penalties alleged in the Citation and

Notification of Penalty are AFFIRMED.
 ORDER

1. Citation 1, Item 1 is AFFIRMED and a penalty of $2,000.00 is ASSESSED.

SO ORDERED.

Date: July 23, 2013 __/s/_______
Denver, Colorado Patrick B. Augustine
Judge, OSHRC