All Steel, Inc.

Plain-English summary

OSHA issued All Steel two citations containing four items and proposed $2,800 in penalties. The company filed its notice of contest 53 days after the statutory deadline, explaining that family illness and the demands of keeping the business operating caused the delay. The judge found those general assertions insufficient to establish excusable neglect and noted that the company gave no explanation for waiting more than a month to mail a notice dated earlier. All Steel also did not respond to the Secretary's dismissal motion or identify a supported merits defense. The late contest was dismissed and the 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 $2,800 in penalties.
• Key point: Business pressures and unsupported references to family illness do not excuse a late contest when the employer controlled the filing and did not act diligently.

Full text (OSHRC public release)

                          United States of America
              OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

              Complainant,

         v.

ALL STEEL, INC. OSHRC DOCKET NO. 15-1302
And Its Successors

              Respondent.

For Complainant: Timothy S. Williams, Esq., U.S. Department of Labor, Office of the Solicitor, 1244 Speer Blvd.
Suite 515, Denver, CO

For Respondent: Calvin Inda, All Steel Inc., 8498 61.5 Road, Montrose, CO 81401

BEFORE: Administrative Law Judge Patrick B. Augustine

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

                                             Jurisdiction

    This proceeding is before the Occupational Safety and Health Review Commission (the

“Commission”) pursuant to § 10(c) of the Occupational Safety and Health Act of 1970, 29

U.S.C. § 651 et seq. (the “Act”) due to a filing of a Notice of Contest (“NOC”) by Respondent

with the Commission.

                                     Procedural Background

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

of Respondent’s worksite located at 8498 61.5 Road, Montrose, Colorado from March 23, 2015

to March 24, 2015. On May 8, 2015, OSHA issued two Citations with four items to Respondent.

The two Citations proposed Respondent pay a penalty in the amount of $2,800.00. OSHA

mailed the Citations to Respondent’s worksite via United States Postal Service (USPS) certified
mail. Based on the certified mail return receipt provided by USPS, the citations were received by

and signed for by Respondent on May 14, 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, ¶ 2.

    Because Respondent received the citations on May 14, 2015, Respondent’s NOC was due

by June 5, 2015. Respondent failed to file its NOC by that date. Respondent contacted the

OSHA area office on June 23, 2015 to discuss the Citations. Respondent was informed that: (i)

Respondent had missed the 15 working day contest period; (ii) the Citations had become a final

order of the Commission; and (iii) it should contact the Commission’s Executive Secretary to file

an untimely NOC. Two weeks later Respondent submitted an untimely NOC to OSHA via

electronic mail. 2 OSHA responded by again informing Respondent that the date to contest the

Citations had passed. OSHA also provided the address of the Commission if Respondent wished

to petition the Commission to reopen the matter.

    By letter dated June 24, 2015 (which was not postmarked until July 28, 2015) addressed

to the Commission’s Executive Secretary, Respondent indicated that it would like to submit a

late NOC. In its NOC, Respondent does not dispute the Citations were received and signed for at

its office. Respondent asserts that the violations were corrected during the inspection. Calvin

1
See Motion, Exh. A.
2
Although the NOC is dated June 24, 2015, Respondent did not email it to OSHA until July 6, 2015. Motion, Exh.
B.

                                                   2

Inda states on behalf of Respondent that “[due to illness in my family and also working and

keeping my employees working, I have been unable to respond before now.”

    Thus, if Respondent filed its NOC after the fifteen-day window, the Citations become a

final order of the Commission. Respondent filed its NOC fifty-three days after the expiration of

the fifteen-day window. 3 Thus, by operation of law, the Citations have become a final order of

the Commission.

    By filing a late NOC Respondent has, in effect, requested relief from the operation of §

10(c) of the Act. 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)(“Rule 60(b)”). The rule lists the reasons that would provide a sufficient basis for granting

the relief requested. Id. Subsection (b)(1) states that “mistake, inadvertence, surprise, or

excusable neglect” constitute sufficient bases upon which Rule 60(b) relief can be granted. Id.

    On September 24, 2015, Complainant filed his Opposition to Request To File Untimely

Contest (“Motion”) 4 Complainant 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 Rule 60(b) nor a meritorious defense. Respondent has not filed

any response to the Motion. Complainant contends Respondent has failed to establish mistake,

inadvertence, surprise, or excusable neglect. Finally, Complainant argues Respondent received

actual notice of the Citations and failed to comply with the instructions—typed in bold-face and

underlined print—indicating the deadline for filing a NOC. See Motion, ¶2.

3
Although the NOC letter is dated June 24, 2015, the envelope in which it was mailed to the Commission was
postmarked on July 28, 2015.
4
Even though Complainant’s pleading does not state specifically that it is a Motion to Dismiss Respondent’s Late
NOC, in his requested relief Complainant requests an Order of Dismissal. The Court will treat Complainant’s
pleading as a Motion to Dismiss under Commission Rule 40.

                                                   3

Controlling Case Law

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

within which it must file a NOC. See § 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).

     However, the Commission has recognized two situations where the finality of § 10(a) of

the Act, 29 U.S.C. § 659(a), does not preclude the Commission from hearing an employer’s

challenge to the citations even when a timely notice of contest has not been filed. The first is

where the Secretary has employed deceptive practices or fails to comply with required

procedures. See Secretary of Labor v. Louisiana-Pacific Corp., 13 BNA O.S.H.C. 2020 (No. 86-

1266, 1989). Respondent does not contend this situation is present in this case.

     The second situation is where the employer requests relief under Rule 60(b).                  The

Commission has held that an employer may move under Rule 60(b) for permission to file a late

NOC. Branciforte Builders, 9 BNA OSHC 2113 (No. 80-1920, 1981). The burden is on the

employer to show sufficient basis for relief under the rule. Id.

     Respondent may overcome the Commission’s final order under 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 neglect standard of Rule 60(b)(1)); 5

5
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)).

                                                 4

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). 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. 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”).

                                         Analysis

   Respondent seeks relief from the operation of § 10(a) of the Act, which states:

   If, within fifteen working days from the receipt of the notice issued by the Secretary the
   employer fails to notify the Secretary that he intends to contest the citation or proposed
   assessment of penalty . . . 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.

   29 U.S.C. § 659(a).



                                             5

Respondent bears the burden of demonstrating that it is entitled to relief. See Burrows

Paper Corp., 23 BNA OSHC 1131 (No. 09-1559, 2010); Louisiana-Pacific Corp., 13 BNA

OSHC 2020, 2021 (No., 86-1266, 1989). Here, Respondent has provided no excusable basis for

its failure to file a timely NOC before June 5, 2015. 6 Respondent does not dispute that the

Citations were received and signed for on May 14, 2015. Respondent does not explain why a

letter dated June 24, 2015 containing the NOC was not postmarked until July 28, 2015 – over

thirty days later.

    Respondent’s states that since he was “working and keeping my employees working, I

have been unable to respond before now.” In JLD Custom Carpentry, OSHA Docket 12-0972

(Aug. 13, 2012, ALJ Coleman), the Respondent failed to timely file a NOC and explained that

his “oversight” was due to being “so overwhelmed with trying to find work to support [his]

family and the time got away from [him].” Id. The ALJ considered the factors relevant to

“excusable neglect” and determined that “the third enumerated factor – the reason for the delay,

including whether it was within the reasonable control of the movant – is the most relevant

factor.” Id. The ALJ found that the late NOC was the result of Respondent’s simple negligence

and oversight which apparently arose from the pressures of operating a business and held that

these reasons were insufficient to constitute “excusable neglect” under Rule 60(b). Id. The ALJ

also found that Respondent’s admitted “oversight” in failing to timely file a NOC was wholly

within the Respondent’s control. Id. As in JLD Custom Carpentry, this Court finds that simple

6
The Court also finds that Respondent has not presented adequate evidence to support the proffering of any
meritorious defense(s) to the citations.

                                                6

negligence and oversight are not grounds for relief under Rule 60(b) 7 and the filing of the NOC

was within Respondent’s control to accomplish.

    In addition, the Court also finds Respondent did not act in good faith. The late NOC

while dated June 24, 2015 was not postmarked until July 28, 2015. The delay demonstrates

Respondent’s lack of good faith in wanting to timely act to protect its interests. In addition, it is

clear that Respondent failed to have into place proper business processes and practices to ensure

timely action as may be required during the course of business operations. To the extent that

Respondent’s request for relief is premised on its failure to properly handle mail or documents,

the Court would note that the Commission expects employers to “maintain orderly procedures

for handling important documents.” Louisiana-Pacific Corp., 13 BNA OSHC 2020 (No. 86-

1266, 1989); see also NYNEX, 18 BNA OSHC 1967 (No. 95-1671, 1999) (“‘The Commission

has consistently denied relief to employers whose procedures for handling documents were to

blame for untimely filings’ of [Notices of Contest].” (quoting E.K. Constr. Co., Inc., 15 BNA

OSHC 1165, 1166 (No. 90-2460, 1991))).

    Respondent also states that its failure to file a timely NOC was due in part “to illness in

my family….” Respondent only provides the barest of allegations with no supporting detail. As

noted previously, it is Respondent’s burden to show its entitlement to relief on this basis.

Respondent has failed to do so with respect to the assertion of illness. See Subzero Technologies,

24 BNA OSHC 1767 (No. 12-1244, 2013)(“late filing of the notice of contest was merely simple

negligence of its owner, due to the owner’s inattentiveness to the citation as result of a family

medical crisis”, which did not constitute excusable neglect).

7
As noted in JLD Custom Carpentry, a long line of Commission decisions rejects the notion that negligence or
carelessness can justify relief under Rule 60(b). See Acrom Constr. Serv., 15 BNA OSHC 1123, 1126 (No.88-2291,
1991); see also Roy Kay, Inc., 13 BNA OSHC 2021, 2122 (no. 88-1748, 1989); Keefe Earth Boring Co., 14 BNA
OSHC 2187, 2192 (No. 88-2521, 1991).

                                                  7

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

Commission. Respondent has not presented sufficient evidence for the Court to conclude that

Respondent’s 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 Respondent failed to file a timely NOC and no relief under Rule 60(b) is

justified.

    The Complainant’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.

    SO ORDERED.

                                                    /s/ Patrick B. Augustine
                                                  Patrick B. Augustine
                                                  Judge - OSHRC

Date: October 26, 2015
Denver, CO

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