Urban Erectors, LLC

Plain-English summary

OSHA mailed Urban Erectors a two-item serious citation with $9,240 in proposed penalties. The company’s secretary signed for the citation, but the company said she did not open the envelope and misplaced or discarded it. Urban Erectors filed its notice of contest about four months after the statutory deadline. The judge found service was proper when the company employee received the certified mailing and that internal mishandling was within the employer’s control, not excusable neglect. The company also failed to identify a meritorious defense. The late notice was dismissed, and the citations and penalties were affirmed.

Decision snapshot

• Cited standard(s): The order does not identify the substantive standards; it applies the 15-working-day contest rule in 29 U.S.C. § 659(a).
• Outcome: Late notice of contest dismissed; two serious items and $9,240 in penalties became final.
• Key point: An employer must maintain reliable procedures for handling OSHA mail, and an employee’s internal mishandling usually does not excuse a late contest.

Full text (OSHRC public release)


Document

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW
C OMMISSION

1120 20 th
Street, N.W., Ninth Floor

Washington, D.C.

20036-3457

SECRETARY OF LABOR,

Complainant,

v.

OSHRC
D ocket No.
17- 0140

URBAN ERECTORS, LLC,

Respondent.

DECISION AND ORDER GRANTING SECRETARY’S MOTION TO DISMISS

RESPONDENT’S LATE NOTICE OF CONTEST

This matter is before the Occupational Safety and Health Review Commission (“the Commission”) under section 10(a) of the Occupational Safety and Health Act of 1970, codified at 29 U.S.C. § 651 (“the Act”). The Secretary of L abor (“Secretary”) has filed a Motion to D ismiss
Urban Erectors, LLC ’s
(“Respondent”) notice of co ntest (“NOC”) on the grounds that
it was unt imely filed. On April 27, 2017, Respondent filed its
Motion in O pposition
to the Secretary’s M otion
along with a Motion for Dismissal of the Citations . For the reasons that follow, th e Secretary’s Motion for an Order Dismissing Respondent’s Late Notice of Contest is GRANTED and Respondent’s Motion for Dismissal of
the
Citations is DENIED.

Background 1

The Occupational Safety and Health Administration (“OSHA”) Area Office located in
Tarrytown, NY
(“the OSHA office”) conducted an inspection of Respondent’s operation, d .b.a . Urban Erectors , LLC , on or about
June 6 through June 16, 2016 , at its worksite located at
1524 Boone Ave, Bronx, NY 10460 . As a result of the inspection, OSHA issued a Citation and Notification of Penalty (“Citation”)
to Respondent on
or about August 1 , 2016 , that included: Serious Citation 1, It ems 1 and 2
with proposed penalties totaling $
9,240 .00 . The Citation advised Respondent that its NOC was due within 15 working days from receipt which
would have been August 25 , 2016 .

On August 1 , 2016 , the OSHA office sent a copy of the Citation to Respondent, via United States Postal Service (“USPS”) certified mail (tracking
number
7015 1520 0001 4091 4066 ), to its business address
(6 Keiffer Lane, Kingston, NY 12401 ). On August 4 , 2016 , the Citation was delivere d
and signed for by “Jamie Sanchez”. On December 13 , 2016 , OSHA sent Respondent a delinquency letter indicating that payment of the proposed penalties was past due and interest was accruing under the Debt Collections Act
at the same address (6 Keiffer Lane, Kingston, NY 12401) via USPS certified mail (tracking number 7015 3430 0000 7837 1490) .
On December 19, 2016, the letter was delivered and signed for by the same person, “Jamie Sanchez”. Thereafter, o n
or about December 21, 2016 ,
the Commission received a letter from Respondent
contesting the Citation
four months after its NOC was due . Although not specified in
its
late NOC letter, t he undersigned treats Respondent’s
December 21, 2016,
letter as a claim for relief from a final order under Rule 60(b) of the Federal Rules of Civil Procedure (“Rule 60(b)”).

Discussion

Section 10(a) of the Act requires an employer to notify OSHA within 15 working days of receiving a citation of its intent to contest the citation and/or proposed penalty. 29 U.S.C. § 659 (a). Failure to do so results in the citation becoming a final order of the Commission “and not subject to review by any court or agency.”
Id.

A party adversely affected by a final order may seek relief under
R ule 60(b) . The Second Circuit Court of Appeals , which has appellate jurisdiction over this case,
has held that § 10(a) of the Act precludes the Commission from exercising jurisdiction to apply Rule 60(b) to excuse a late NOC.
Chao v. Russell P. LeFrois Builder, Inc.,
291 F.3d 219 (2 nd
Cir. 2002). However, t he Commission
takes the position that it has the authority to grant relief under Rule 60(b) . Jackson Assocs. of Nassau,
16 BNA OSHC 1261, 1263 (No. 91-0438, 1993)
(finding that nothing in the Act precludes the application of Rule 60(b) of the Federal Rules of Civil Procedure to Commission Proceedings) .

It is Respondent’s burden to show a sufficient basis for the relief. Roy Kay, Inc.,
13 BNA OSHC 2021 (No. 88-1748, 1989).

Inter alia,
Rule 60(b) permits such a late filing to be excused 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).

Additionally, a movant seeking relief under Rule 60(b) must also demonstrate the existence of a meritorious defense. Northwest Conduit Corp. , 18 BNA OSHC 1948, 1951 (No. 97-851, 1999). That element can be
“satisfied with minimal allegations that the employer could prove a defense if given the opportunity.”
Jackson Assoc. , 16 BNA OSHC at 1267.
Respon dent did not
assert
a “meritorio us
defense” in its late NOC, nor did it assert such a defense in its opposition to the Secretary’s motion .

In this
case, Responden t filed a late NOC
l etter with the Commission, four
months af ter it
received the Citation package. In its
December 21, 2016, late NOC
letter ,
Respondent merely contested the Citation without offering a reason for the delay in filing its NOC. However, in its April 27, 2017, opposition to the Secretary’s motion, Respondent concedes receipt of the Citation on August 4, 2016, but states “apparently, the secretary who signed for the citation package didn’t open the envelope to discover the citation was enclosed and misplaced or discarded the envelope in the office.”

Proper Service

By its response in opposition to the Secretary’s motion, Respondent seems to take the position that it didn’t receive proper notice/service of the Citation because it was received and mishandled by its own
secretary and therefore
its NOC is not late. The Commission has held that the test to be applied in determining whether service is proper is whether the service is reasonably calculated to provide an employer with knowledge of the citation and notification of penalty and an opportunity to determine whether to abate or contest. B.J. Hughes, Inc. , 7 BNA OSHC 1471, 1474 (No. 76-2165, 1979). Further, the Commission has held that service upon an employee who will know to whom in the corporate hierarchy to forward the documents will satisfy this test. Id.

In this case, Respondent states
that the Citation was received by its secretary. While Respondent asserts that its secret ary failed to open the envelope to discover
the Citation package, it does not assert that the secretary did not know the proper person to forward the document(s) to within the company’ s hierarchy. Service of the Citation upon Respondent was perfected
and proper
when its secretary received it on August 4, 2016, notwithstanding what she did, or did not do, with the Citation thereafter.

Excusable Neglect

Although Respondent’s reason for failing to file a timely NOC does not appear to be the result of “excusable neglect”, the undersigned is compelled to analyze its justification on those grounds.

The Commission follows the test outlined by the Supreme Court in
Pioneer Inv.
Serv. v. Brunswick Assoc ., 507 U.S. 380 (1993) (“ Pioneer” ) , to evaluate a claim of excusable neglect. Using the
Pioneer
test, the Commission considers all relevant circumstances, including: 1) the danger of prejudice to the opposing party, 2) the length of the delay and its potential impact on judicial proceedings, 3) the reason for the delay, including whether it was in the reasonable control of the movant, and 4) whether the movant acted in good faith. Id. The Commission has held that the “reason for the delay, and 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., BNA OSHC
1147, 1148 (No. 9-0945, 2000);
CalHar Constr. Inc ., 18 BNA OSHC 2151, 2153 (No. 98-0367, 2000). Here, Res pondent asserts that the delay in filing its NOC was caused by a secretary who failed to open the envelope to discover the Citation. The Commission expects employers to maintain orderly procedures for handling important documents. NYNEX,
18 BNA OSHC 1967, 1970 (No. 95-1671, 1999) (quoting
Louisiana-Pacific Corp. , 13 BNA OSHC
2020, 2021 (No. 86-1266, 1989)). T he delay
in filing its NOC
was definitely within the “reasonable
control” of Respondent in that the Citation was received at its office by one of its own employees .
The Commission has
denied Rule 60(b) relief in cases where the late filing was due to mishandling the citation, changes in management, or absence of the individual responsible for OSHA matters.

See, e.g., Louisiana-Pacific Corp ., 13 BNA OSHC at
202 1 ;
J.F. Shea Co ., 15 BNA OSHC 1092, 1094 (No. 89-976, 1991);
E.K. Constr. Co ., 15 BNA OSHC 1165, 1166 (No. 90-2460, 1991).
Finally,
Commission
precedent is well- settled that the OSHA citation plainly states the requirement to file an NOC within the prescrib ed 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 OSH C at 2022 ;
Acrom Constr. Serv., Inc ., 15 BNA OSHC 1123, 1126 (No. 88-2291, 1991).

I find that the record clearly establishes that Respondent was served with the Citation, via USPS, which set forth the requirement to file an NOC within the 15-day timeframe required by the Act. Further, I find that Responde nt’s
NOC was due on or before August 25 , 2016 ; however, the Commission
did no t receive
a n
NOC
in this case
until
December 21 st . Respondent’s NOC was untimely and relief under Rule 60(b) is not warranted in this case.

ORDER

For all of the foregoing reasons, the Secretary’s Motion to Dismiss Respondent’s Late Notice of Contest is GRANTED, and the Citations and proposed penalties are affirmed in all respects.

SO ORDERED.

/s /Keith E. Bell

Keith E. Bell

Judge, OSHRC 

Dated:
September 18, 2017

Washington, D.C.

"

1
The background information is based on the Secretary’s motion to dismiss, supporting memorandum of law, and the exhibits attached thereto, which
include the following: 1)
Citation and Notification of Penalty;
2)
USPS Certified Mail Receipt; 3)
USPS Tracking Information Sheet; 4) Debt Collection
Letter dated December 13, 2016, together with USPS Certified Mail Receipt; 5) Late Notice of Contest
letter dated December 21, 2016; 6) The Secretary’s Motion to Dismiss Respondent’s Late Notice of Contest dated April 11, 2016; and 7) Respondent’s Motion in Opposition to the Secretary’s Motion to Dismiss dated April 27, 2017.