G.E.R.I.N. Home Improvements LLC

Plain-English summary

OSHA issued G.E.R.I.N. Home Improvements four serious citation items and one willful item with proposed penalties totaling $21,600. The company received the citations and an OSHA assistant director expressly told its owner that the contest deadline was March 11, 2015. Its notice was postmarked March 13, and the company later claimed it had not received a notice stating the appeal date. The judge found that OSHA was not required to state a calendar date, that the company had actual deadline notice, and that it offered no excusable neglect or supported merits defense. The contest was dismissed with prejudice and all citations and penalties were affirmed.

Decision snapshot

• Cited standard(s): No specific OSHA standard number is identified in the decision.
• Outcome: Late notice of contest dismissed with prejudice; citations affirmed with $21,600 in penalties.
• Key point: A late contest is not excused when OSHA communicated the exact deadline and the employer offers no supported reason for missing it.

Full text (OSHRC public release)

                           United States of America
             OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                      1120 20th Street, N.W., Ninth Floor
                         Washington, D.C. 20036-3457

SECRETARY OF LABOR,

             Complainant,
                                                     OSHRC DOCKET NO. 15-0992
        v.

G.E.R.I.N. Home Improvements LLC,

             Respondent.


 DECISION AND ORDER GRANTING SECRETARY’S MOTION TO DISMISS
                UNTIMELY NOTICE OF CONTEST

   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). On July 7, 2015, the Secretary filed his Motion to Dismiss

Untimely Notice of Contest (Motion). Complainant seeks the dismissal of G.E.R.I.N. Home

Improvements LLC’s (Respondent) Notice of Contest (NOC) as untimely filed, and an order

affirming the citations and proposed penalties in their entirety. For the reasons that follow, the

Secretary’s Motion is GRANTED.

                                       Background

   The Occupational Health and Safety Administration (OSHA) conducted an inspection of

Respondent’s worksite located at 271 West Putnam Avenue, Greenwich, Connecticut 06830 on

December 18, 2014. On February 12, 2015, OSHA issued a four item serious citation and a one

item willful citation to Respondent. The two citations proposed Respondent pay a penalty in the

amount of $21,600. OSHA mailed the citations to the Respondent’s address at 50 Maple Tree
Ave., Stamford, Connecticut via certified mail on February 13, 2015. The citations were

received by Respondent on February 18, 2015. 1

       The citations informed Respondent of its right to contest the citations and stated, in part:

Right to Contest: …

       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.

(Motion, Exh. A, at p. 2; Biasi Aff., ¶ 6).

       On March 2, 2015, OSHA’s Assistant Director, Steven Biasi, informed Respondent’s

owner, Gerin Santiago, the deadline for filing a NOC was March 11, 2015. (Biasi Aff., ¶ 7).

       Because Respondent received the citations on February 18, 2015, Respondent’s Notice of

Contest (NOC) was due by March 11, 2015. Respondent failed to file its NOC by that date.

       On March 16, 2015, OSHA’s Area Office received a NOC, dated March 12, 2015, from

Respondent’s counsel, postmarked March 13, 2015. (Bias Aff., ¶ 9).

       In a letter dated March 16, 2015, OSHA’s Area Office informed Respondent’s counsel

that the fifteen working day period expired on March 11, 2015; and as such the citations and

proposed penalty were deemed a final order of the Occupational Safety and Health Review

Commission (Commission) and are not subject to review by any court or agency. (Biasi Aff., ¶

10, Exh D).

       On June 17, 2015, OSHA’s Area Office received an unsigned NOC dated June 16, 2015,

that was addressed to the Commission’s Executive Secretary. In it, Respondent stated that it

“never received a notice which indicated the date of appeal. We now seek to appeal this

determination both because the items were minor violations and immediately corrected once the
1
See Motion, at p. 2; Steven Biasi Affidavit (Biasi Aff.), at ¶¶ 3, 4, 6.

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employer was notified of same. The fines assessed seem exorbitant in view of the matters

involved and also since the corrections have been made.” A similar NOC dated June 23, 2015,

along with a June 23, 2015 certificate of service, both signed by Respondent’s counsel, were sent

to the Commission’s Executive Secretary.

     OSHRC docketed the matter as Docket No. 15-0992.

     On July 7, 2015, Complainant filed his Motion. The Secretary’s seeks affirmance of both

citations and their proposed penalties because Respondent failed to file a timely NOC and has

demonstrated neither “excusable neglect” pursuant to Fed. R. Civ. P. 60(b) nor a meritorious

defense.

     Respondent has not filed any response to the Secretary’s Motion.

                                        Discussion

     Upon receiving a citation and notification of penalty, an employer has 15 working days

within which it must file a NOC. See section 10(a) of the Act, 29 U.S.C. § 659(a). If the

employer does not file a NOC within the specified time period, “the citation and the assessment,

as proposed, shall be deemed a final order of the Commission and not subject to review by any

court or agency.” Id. An uncontested citation is generally unreviewable. See Culver v. U.S.

Dept. of Labor Occupational Safety & Health Administration, 248 Fed. Appx. 403 (3rd Cir.

2007).

     Respondent may overcome the Commission’s final order under Federal Rule of Civil

Procedure 60(b) (Rule 60(b)), if it was entered as a result of “mistake, inadvertence, surprise or

excusable neglect.” See George Harms Constr. Co., Inc. v. Chao, 371 F.3d 156, 163 (3rd Cir.

2004) (Commission “has jurisdiction to entertain a late notice of contest under” the excusable

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neglect standard of Rule 60(b)(1)); 2 Branciforte Builders, Inc., 9 BNA OSHC 2113, 2117 (No.

80-1920, 1981). In determining whether a late-filed NOC was due to “excusable neglect,” the

Commission follows the Supreme Court’s test in Pioneer Inv. Serv. Co. v. Brunswick Assoc. Ltd.

Partnership, 507 U.S. 380, 381 (1993). In Pioneer, “excusable neglect” is defined as an

equitable determination of all relevant circumstances surrounding the party’s omission, and the

prejudice these circumstances presented to the opposing party. This definition has been applied

to other federal procedural rules, including proceedings by the Commission. See NW Conduit

Corp., 18 BNA OSHC 1948, 1950 (No. 97-851, 1999). In NW Conduit, the Commission quoted

Pioneer, noting 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. 9-0945, 2000); CalHar Constr., Inc., 18 BNA

OSHC 2151, 2153 (No. 98-0367, 2000); NYNEX, 18 OSHC 1944, 1947 (No. 95-1671, 1999)

(finding because employer failed to present evidence on the reason for delay, it did not establish

excusable neglect). See also Hospital Del Maestro v. NLRB, 263 F.3d 173, 174-75 (1st Cir.

2001) (“excuse given for the late filing must have the greatest import”).

     Here, Respondent has provided no excusable basis for its failure to file a timely NOC

before March 11, 2015. 3 In its NOC postmarked March 13, 2015, Respondent asserted that it

“never received a notice which indicated the date of appeal.” It does not deny receiving the

citations on February 18, 2015. It does not deny receiving citations that stated that its NOC must

be submitted in writing within 15 working days after receipt of the citations. It does not deny

2
But see Chao v. Russell P. Le Frois Builder Inc.,291 F.3d 219 (2d Cir. 2002) (concluding Commission may not
exercise jurisdiction based on Rule 60(b)(1)).
3
The Court also finds that Respondent has not presented adequate evidence to support the proffering of any
meritorious defense(s) to the citations. Instead, Respondent argues that it should be allowed to appeal the citations
because the items were minor violations and immediately corrected, and the proposed fines were exorbitant. An
alleged willful violation is not a minor violation.

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that on March 2, 2015, Assistant Director Biasi informed Mr. Santiago that the deadline for filing

a NOC was March 11, 2015. Instead, Respondent stated that it did not receive a notice which

indicated the date of appeal. OSHA is not required to specify “the date of appeal” in its Citation

and Notification of Penalty. Moreover, Respondent was told by OSHA’s Assistant Director that

the deadline for filing a NOC was March 11, 2015. Respondent failed to heed Mr. Biasi’s notice

and proceeded on its own noncompliant timeline.

    Respondent has remained silent on the NOC issues after this case was docketed at the

Commission. Respondent has not filed a response to the Secretary’s motion. Respondent has

not presented sufficient evidence for the Court to conclude that Respondent timely filed a NOC,

or that its failure to timely file a NOC was due to excusable neglect. Respondent has not

demonstrated any sort of mistake, inadvertence, surprise or excusable neglect that justifies

grounds for relief from the Commission’s final order under Rule 60(b). See Burrow Paper Corp,

No. 09-1559, 2010 WL 1715389, at *2 (O.S.H.R.C.A.L.J. Jan. 19, 2010) (Employer has burden

of its own lack of diligence in acting upon information contained in the citation.). Respondent

also has the burden of proving that it is entitled to Rule 60(b) relief; something it has failed to do

here. NYNEX, 18 BNA OSHC 1967, 1970 (No. 95-1671, 1999).

                                           Order

    The Court finds that Respondent failed to file a timely NOC and no relief under Rule

60(b) is justified.

    The Secretary’s Motion is GRANTED, Respondent’s NOC is dismissed in its entirety

with prejudice as untimely filed, and the citations and penalties are AFFIRMED in all respects.

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SO ORDERED.

                     /s/
                       The Honorable Dennis L. Phillips
                            U.S. OSHRC JUDGE

Date: October 5, 2015
Washington, D.C.

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