Rieber Contracting, Inc.

Plain-English summary

Rieber Contracting, a commercial construction contractor, received a serious citation under 29 C.F.R. § 1926.416(a)(1) with a proposed $9,282 penalty. The citation was delivered by certified mail to the company's address, but its mail practice was to leave documents in a mixed household and business stack until the traveling owner returned. Rieber filed its notice of contest 56 days after the deadline. The judge found that the delay was within the company's control because it lacked an orderly procedure for handling important mail. The judge also found a lack of good faith because Rieber waited further after OSHA explained how to submit a late contest. The late contest was dismissed with prejudice, and the serious citation, classification, and $9,282 penalty were affirmed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.416(a)(1)
• Outcome: The late contest was dismissed with prejudice, leaving the serious citation and $9,282 penalty in effect.
• Key point: Employers must maintain reliable procedures for certified business mail; leaving important documents in an unattended household stack is not excusable neglect.

Full text (OSHRC public release)

Rieber Contracting, Inc. FRCP 60(b)OSHRC DOCKET NO.19-1670

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant,   

v.

RIEBER CONTRACTING, INC.

OSHRC DOCKET NO.

19-1670

Respondent.   

For Complainant:

Elaine M. Smith , Esq.
and Rachael Parsons, Esq. , U.S. Department of Labor, Office of

t he Solicitor,
2300 Main Street, #1020, Kansas City, MO

For Respondent: Jalon Rieber, Pro Se, Ri e ber Contracting, Inc., 14370 260 th
Street, Council Bluffs, Iowa

JUDGE :

Judge Patrick B. Augustine , U.S. Administrative Law Judge

DECISION AND
ORDER GRANTING COMPLAINANT’S MOTION TO
VACATE
RESPONDENTS
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
late
Notice of Contest
(“NOC”) by Respondent with the Commission.

See Slingluff v. OSHRC,
425 F.3d 861 (10th Cir. 2005).

The parties also stipulated to the Court’s jurisdiction. Ex. J-1, ¶ 11.

Procedural Background

The Occupational Safety and Health Administration ( “ OSHA ” )
conducted an inspection of Respondent’s worksite located at
4827 Dodge Street. Omaha, NE on March 11, 2019.
Tr. 31-34, 105. On
August 2, 2019,
OSHA issued
one
c itation with
one
s erious
item
( “ Citation”)
to Respondent.
Tr. 60, 104; Exh. C-9.
The Citation proposed Respondent pay a penalty in the amount of $ 9,282.00 .
Exh. C-9.
OSHA mailed the Citation to Respondent via United States Postal Service
( “ USPS ” ) certified mail
on August
2, 2019.
Tr. 60.
Angela Ri e ber signed for the certified mail b ased on the certified mail return receipt provided by USPS,
but the date she signed for
it
did not appear on the receipt.
Tr. 108-09; Exh. C-10.
Complainant
used the date it received the receipt from the USP S
as the date to begin the
15-day
calculation.

Tr. 109-110; Exh. C-8.

Therefore, the C itation w as
received by
and signed for by
Respondent .

The Citation informed Respondent of its right to contest the citations 1
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.

Tr. 106-07; Exh. C-9 .

Because Respondent
was deemed to have
received the
Ci tation on
August 9, 2019 , Respondent’s
Notice of Contest (“ NOC ”)
was due by
August 30, 2019 .
Tr. 111.

Respondent failed to file its NOC
by

that

date.

Respondent had no contact with the Area Office between August 9, 2019 and August 30, 2019 when the NOC period ended.
Tr. 112.

On September 13, 2019, Jeff Funke, the former Area Director of the Omaha office, mailed a letter to Respondent stating it had failed to provide a certification of abatement of the Citation and the proposed penalty was due Tr. 113-14; Exh. C-11. This letter requested Respondent to respond within five business days with verification of abatement.
Tr. 115; C-11 . Respondent did not
respond to the September 13, 2019 letter.
Tr. 116.

On September 20, 2019, Complainant issued a one item other-than-serious citation and notice of penalty to Respondent (“Abatement Citation”)
for failing to certify abatement of the Citation had been accomplished.
Tr. 116-17; Exh. C-12.
The Abatement Citation was mailed certified mail to Respondent’s business office address and was received by Respondent on September 26, 2019 as evidenced by the receipt returned by the USPS. Tr. 117-18, 120; Exh. C-9, C-12.
Respondent had no communication with the Area Office from September 26, 2019, when
Respondent received the Abatement Citation, until October 9, 2019.

Tr. 124.

On October 9, 2019 Respondent’s owner, Jalon Ri e ber, spoke with the Area
Director ,

Matthew
Thurlby . Mr. Ri e ber stated someone had signed for the Citation and the Abatement
Citation
but he did not know about them because they were in his inbox.
Tr. 124; Exh. C-8.

Mr. Thurlby informed
Mr. Ri e ber the Citation has become a final order and to contest he would have to file a late NOC. Respondent did not submit a late NOC
at that time. Tr. 126. On October 18, 2019, Scott Jacobson, then Acting Area Director, called Respondent and Respondent stated it would submit a late NOC on October 21, 2019.
Id.

Not having received the late NOC on that date, the Area Office again contacted Mr. Ri e ber to determine if he was going to submit a late NOC. Respondent did reply with a letter giving a factual background of the workplace accident but did not state it was contesting the Citation.
Tr. 129; Exh. C-14.
On October 25, 2019 Respondent emailed two letters
to the Area Office
indicating
it
was contesting the Citation. Therefore, the late NOC was filed 56 days after the contest period for the Citation had expired.
Thu s, by operation of law, the Citation ha s
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. Fed. R. Civ. P.
60(b) states “[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
60 (b)(1) states that “mistake, inadvertence, surprise, or excusable neglect” constitute sufficient bases upon which Rule 60(b) (1)
relief can be granted. Id .

On
December 16, 2019 ,
Complainant
filed his
Motion to Vacate Respondent’s Late Notice of Contest
(“Motion”)
Complainant
seeks affirmance of
the
C itation and the proposed penal t y
because Respondent failed to file a timely NOC and has demonstrated neither “excusable neglect” pursuant to
Rule
60(b) (1)
nor a meritorious defense.
Complainant contends Respondent has failed to establish mistake, inadvertence, surprise, or excusable neglect.

Hearing Held

The Court held a hearing on July 23, 2020 to
obtain
testimony from witnesses. Complainant called Matthew Lombardi and Matthew Thurlby. Respondent called Angela Ri e ber and Jalon Ri e ber.

Joint Stipulations

The parties
entered into
the following thirty-three (33) Joint Stipulations:

1. Ri eb er Contracting, Inc. is incorporated under the state laws of Iowa as a corporation.

2. Ri e ber Contracting, Inc. engages in commercial construction.

3. Ri e ber Contracting is headquartered at 14370 260th Street, Council Bluffs, IA 51503.

4. Ri e ber Contracting receives mail, including invoices and contracts at 14370 260th Street, Council Bluffs, Iowa.

5. Ri e ber Contracting, Inc. uses goods, equipment, machinery, tools, supplies, and

materials which have
originated in whole or part from locations outside the State of Iowa.

6. Ri e ber Contracting, Inc. performs work in the states of Nebraska, Illinois, Indiana,
   Arizona
   and Colorado.

7. Ri e ber Contracting, Inc. is engaged in a business effecting interstate commerce within the meaning of Section 3(3) of the OSH Act, 29 U.S.C. 652(3).

8. Ri e ber Contracting, Inc. was engaged in construction work at address on August 22, 2019.

9. Ri e ber Contracting, Inc. employs approximately
   forty employees.

10. Ri e ber Contracting, Inc. is an employer within the meaning of Section 3(5) of the OSH Act, 29 U.S.C. 652(5).

11. The Review Commission has jurisdiction in this proceeding pursuant to section 10 (c )

of
the OSH Act, 29 U.S.C. 651 et. seq.

12. On March 11, 2019, an authorized representative of the Secretary of Labor, OSHA Compliance Safety and Health Officer, Matthew Lombardi, inspected a worksite located at 4827 Dodge Street in Omaha, Nebraska.

13. Don Burgess was the project manager at the worksite subject to the inspection.

14. Don Burgess stopped by the worksite the morning of March 11, 2019
    to deliver tapcons to Angel Francisco.

15. NOT STIPULATED TO.

16.
On
March
11, 2019 , Don Burgess
was employed by Ri e ber Contracting, Inc . as a project manager.

17. On March 11, 2019 Shelby
    B aumeister was
    employed by Ri e ber Contracting, Inc.
    as the Director of Operations.

18. On March
    11, 2019 Angela Rieber
    was employed by Ri e ber Contracting , Inc. as the
    Office Manager.

19. Jalon Ri e ber is the owner/operator of Ri e ber Contracting , Inc.
    and is the Chief Executive Officer.

20. Don Burgess, Shelly Baumeister, and Angela Ri e ber are paid
    by Ri e ber Contracting, Inc.
    at a rate set by Jalon Ri e ber.

21. Jalon
    Rieber
    sets the work
    schedules and directs the work of Don Burgess, Shelby Baumeister and Angela Rieber.

22. S helb y Baum eister and Angela Rieber
    regularly
    work at the office located at 143 70 2 60th Street, Council Bluffs, Iowa.

23. Rieber Contracting, Inc.
    contracted with Angel Francisco to install siding at the worksite.

24. Rieber Contracting, Inc.
    directed the work of Angel Francisco.

25. Rieber Contracting, Inc. had the
    authority to fire
    Angel Francisco.

26. On August
    2, 2019 , the Secretary issued a Citation and Notification of Penalty to Respondent
    as a result of
    Inspection Number 1 384 717. Citation 1, Item 1 alleges a Serious violation of 29 C.F.R.
    1926 .416(a)(1)
    and a proposed penalty
    of $9, 282.00.

27. Citation 1 was mailed to Ri e ber Contracting at 14 370 260 th Street, Council Bluffs, IA 51503.

28. The address listed on the Iowa Secretary of State website for Rieber
    Contracting, Inc.
    is 1437 0 2 6 0th Street, Council Bluffs, IA 51 503.

29. The green card for Citation 1 was signed for by Angela Rieber no later than August 30, 2019.

30. On September
    20, 2019, the Secretary issued a Citation and Notification of Penalty to Respondent
    as a result of
    Inspection Number 142 5538 for failure to submit
    an abatement
    certification. Cit ation 2, Ite m 1
    alleges
    an
    o ther - t han- s erious violation of 29 C.F.R.
    1903 .19(c)( 1) and
    proposed a penalty of $744.00.

31. Citation
    2 was mailed to Rieber Contracting at 14370 260th Street, Council Bluffs, IA 51503.

32. The green card for Citation 2 was signed for by Gab riel Rodriquez
    on September 29, 2019 .

33. A notice of contest was submitted to the Omaha
    area office on October
    23, 2019 , by Shelby Baumeister.

34. Jalon Rieber attended a pre-hearing conference
    on January 2, 2020 as representative of Rieber Construction, Inc.

See
Exh. J-1.

Controlling Case Law

Upon receiving a
c itation, 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).

T he Commission has recognized 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
c itations even when a timely
NOC
has not been filed. One instance
is where the employer requests relief under
Rule
60(b) (1) . The Commission has held an employer may move under
Rule
60(b) (1)
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 . See also Craig Mech. Inc.,
16 BNA OSHC 1763, 1764 (No. 92-0372,
1994)( Respondent bears burden to establish
basis for relief ) ,
aff’d per curiam
553 F.3d 633 (5th Cir. 1995)(unpublished). Relief under Rule 60(b)(1) is the most appropriate basis for the relief requested by Respondent.

An employer who has filed an untimely
NOC
may be granted relief
under Rule
60(b) (1)
in certain circumstances. George Harms Constr. Co. v. Chao , 371 F.3d 156 (3d Cir. 2004). A late filing may be excused under Rule 60(b)(1) if the final order was entered because of “mistake, inadvertence, surprise or excusable neglect.”
Id
at 163
(Commission “has jurisdiction to entertain a late notice of contest under” the excusable neglect standard of
Rule 60(b)(1)); 2
Branciforte Builders, Inc. , 9 BNA OSHC
at
2117.

In addition, the Commission requires a party seeking relief under Rule 60(b) (1) to
show
it had a meritorious defense that might have affected the outcome.
Northwest Conduit , 18 BNA
OSHC 1948, 1949 , 1951
(No. 97-851, 1999).
See
Evergreen Envt l
Serv , 26 BNA OSHC
1982,
198 5
(No. 16-1295, 2017). The Commission has found this requirement
“satisfied with minimal allegations that the employer could prove a defense if given the opportunity.” Jackson Assocs. of Nassau , 16 BNA OSHC 1261, 1267 (No. 91-0438, 1993 ). Before reaching the issue of whether Respondent has a meritorious defense to
a
citation, the record first must
establish Respondent
has a basis for relief from the Commission ’s
final order under Rule 60(b) (1) .
Id.
If
the record does not establish a basis for relief from the Commission ’s
final order for Respondent’s untimely filing
under Rule 60(b)(1) , the issue of a meritorious defense need not be addressed .

In determining whether
Respondent’s
late
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.
See Evergreen Envtl Serv , 26 BNA OSHC
at
1984.

The Supreme Court stated “inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute ‘excusable’ neglect.”
Pioneer , 507 U.S. at 392. 3 The Court found “excusable neglect” to be, in part, an “elastic concept” not restricted to “omissions caused by circumstances beyond the control of the movant.”
Id. Regarding relief sought pursuant to Rule 60(b) (1) , the Court stated that “’excusable neglect’ is understood to encompass situations in which the failure to comply with a filing deadline is attributable to negligence.”
Id.
at 394

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 N W
Conduit Corp. , 18 BNA OSHC
at
1950 .

When evaluating claims of excusable neglect, many circuit courts focus on the third factor in the
Pioneer
equitable analysis, “the reason for the delay, including whether it was within the reasonable control of the movant.”
Id.
at 395.

The four
Pioneer
factors do not carry equal weight; the excuse given for the late filing must have the greatest import. While prejudice, length of delay, and good
faith might have more relevance in a closer case, the reason-for-delay factor will always be critical to the inquiry . . .. [A]t the end of the day, the focus must be upon the nature of the neglect.

Hospital del Maestro v. NLRB , 263 F.3d 173, 175 (1 st
Cir. 2001) (per curiam) (quoting
Lowry v. McDonnell Douglas Corp ., 211 F.3d 457, 463 (8 th
Cir. 2000 ) ). See Cohen v. Bd. of Trs. of Univ. of D. C.,
819 F.3d 476, 479-80 (D.C. Cir. 2016)
(same);
Dimmitt v. Ockenfels , 407 F.3d 21, 24-25 (1 st
Cir, 2005) (same);
Silivanch v. Celebrity Cruises, Inc.,
333 F.3d 355, 366, 366 n.7 (2d Cir. 2003) (same);
Graphic Communications Int’l Union v. Quebecor Printing Providence, Inc. , 270 F.3d 1, 5-6 (1 st
Cir. 2001) (same);
David E. Harvey Builders, Inc. v. Sec’y of Labor , 724 Fed. Appx. 7, 9 (D.C. Cir. 2018)
(same).
4

Other circuit courts emphasize that the
Pioneer
equitable analysis requires consideration of “all relevant circumstances” surrounding a party’s request for relief due to excusable neglect. Therefore, the “control” factor must not be weighted too heavily at the expense of the other relevant
Pioneer
factors.
Avon Contractors, Inc. v. Sec’y of Labor , 372 F.3d 171, 174 (3d Cir. 2004). See
Coleman Hammons Constr. Co. v. OSHRC , 2019 WL 5782425, at *3 (5 th
Cir. 2019) (same);
George Harms Constr.,
371 F.3d at 164 (same).

The
D.C. Circuit 5 , the
Eighth Circuit 6
and the Commission
are in agreement
as to the factors to be considered and the weight being given those factors. 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). S ee
Lowry v. McDonnell Douglas Corp ., 211 F.3d 457, 463 (8 th
Cir. 2000 )
(“excuse given for the late filing must have the greatest import”).
See also
David E. Harvey Builders, Inc. v. Sec’y of Labor , 724 Fed. Appx. 7, 9 (D.C. Cir. 2018) (same).

Therefore, l ong-settled
Circuit and
Commission precedent focuses on the third factor in the
Pioneer
equitable analysis. CalHar Constr., Inc.,
18 BNA OSHC 2151, 2153-54 (No. 98-0367, 2000). In appropriate circumstances, the Commission finds this to be the dispositive factor.

It well settled the Commission requires an employer to exercise due diligence before it will find excusable neglect.
Keefe Earth Boring Company, Inc ., 14 BNA OSHC 2187, 2192 (No. 88-2521, 1991);
Craig Mechanical , 16 BNA OSHC
at
1763. The Commission has consistently held “[e]mployers must maintain orderly procedures for handling important documents,” and when the lack of such procedures results in the untimely filing of a
NOC , relief under Rule 60(b) (1)
is not warranted.
Villa Marina Yacht Harbor, Inc. , 19 BNS OSHC 2185, 2187 (No. 01-0830, 2003) (company messenger mishandled mail);
A.W. Ross, Inc ., 19 BNA OSHC 1147, 1149 (No. 99-0945, 2000) (employer's president failed to carefully read and act upon information contained in citation);
Montgomery Security Doors & Ornamental Iron, Inc.,
18 BNA OSHC 2145, 2148 (No. 97-1906, 2000) (record showed a breakdown of business procedures such that relief was not warranted even assuming employee sabotage);
Louisiana-Pacific Corp ., 13 BNA OSHC 2020, 2021 (No. 86-1266, 1989) (notice of contest was overlooked due to personnel change in operations manager position).

Analysis
and Findings of Fact

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).

Respondent has provided no
excusable
basis for its failure to file a timely NOC before
August 30, 2019.

Based on a discussion of the evidence below t he
Court
f inds
t he late NOC was the result of Respondent’s simple
negligence and oversight which arose from the
lack of a business process to
promptly and accurately handle important incoming mail . The Citation was received at Respondent’s place of business. Respondent’s testimony he did not see the communication containing the Citation is
insufficient to constitute “excusable neglect” under Rule 60(b) (1) .
See JLD Custom Carpentry , OSHRC Docket 12-0972 (Aug. 13, 2012, ALJ Coleman) .
As in
JLD
Custom
Carpentry , this Court finds simple
negl igence and oversight are not grounds for relief under
Rule
60(b) (1) 7
and the filing of the NOC was within Respondent’s control to accomplish.

Angela Rieber, who during the
period
at issue
was Respondent’s office manager , described the business process that was in place to process Respondent’s mail.
J-1 ¶ 18.
On direct examination from Mr. Rieber, Angela Rieber testified as follows:

Q. When
we’re
out of town on vacation or when we are gone together, what is the
process
for our mail?

A. We had it forwarded to Shelly Baumeister and Matt started in November of last --- 2019. And before that, it was just collected by anyone that was at the house.

Q. When you receive Certified Mail at the house, what do you do with it?

A Any mail I get I just sign it and then just put it on the table.

On cross examination conducted by Solicitor Racheal Parsons, Angela Rieber further clarified the process in place for the processing of Respondent’s mail.

Q. Okay. And your home was also your office at 14370
260th Street
in Council Bluffs, Iowa?

A. Yes. We have a separate office on the property, but all the mail came to the same mail box, so our office – or post office lady would pull in to the – you know, onto the property, and she honked and then I’d come out and I’d just – she signed. She’d
let anyone sign for it. So, I mean, I watched her let our – one of our guys sign it as I was walking out of the house to come get it from her. She just handed it to
him,
and he signed it, and then she handled it to me.

Q. So,
your personal mail came there and the mail for the company?

A. Correct.

Q. Okay. And once that – once that mail came in,
either to the mailbox or someone signed for it, what happened to the mail next?

A. I just bring it in to the – into the house and just usually set it on our kitchen table and deal with it later. It was usually just too busy dealing with the kids, so I just – We would always get a stack of mail, you know, between the company and personal, so I just sat it down and go about the rest of my day. And I did not open everything right away.

Q. So,
when did open it, what did you do with it?

A. When I did open it, if I thought it was something important, I would either try to get it to him. But, you know, I
can’t
always verify when it was given to him because things just – I mean, our desk – our kitchen table became a catchall for everything, you know. It was just – kids’ stuff, office stuff, personal items. So, you know, just – and so if it got shuffled around, I forget things.

Q. When there is mail for Rieber Contracting, was there a place you put that or at a home office or you mentioned there was another building that Rieber Contracting worked out of. Did you take the mail there?

A. I
didn’t
always take it out there. I usually just leave it on the kitchen table because I felt like if I left it there, it would bring more of my attention to it or his attention to it than taking it out to the office.

Q. (Re-direct by
Mr. ,
Rieber) Would
it be true to say that you only opened mail that was relevant towards stuff that you did?

A. Y es.

A. So,
what would you do with stuff that you did not recognize or
wasn’t
pertaining to you?

A.
   Usually just set it on the table and wait for you to come around to having a, I guess, moment to discuss, like
here’s
the mail. This is important for you, you know. I
can’t
get it to you, but, I mean, you’re we don’t have a normal routine, no more schedule, because you travel a lot.

Q. If I
was
out of town for an extended period of time, what would you do with the mail? I just stack it up and wait for you to come home and deal with it. Like I said, I was not really part of the company, and
it’s
all beyond my knowledge. And
so,
a lot if it, I just left alone because I thought that was better than me getting into it
and not knowing what to do with any of it.

Q. (Re-cross by Ms. Parsons) So what is the process when Mr. Rieber is out of town for getting important mail or important documents to him?

A. I
can’t
get it to him. If anything, emails, we have Shelly Baumeister is connected to his email, and she watches his email closely now. But as far as paper documents, I just – we
have to
wait until he gets back into town. I
don’t
– I don’t, you know, forward anything to him. I just
– we
just wait. We hold on to it. And whenever he comes back into town, he gets his stack of mail and now they go through it.

Tr. 143, 148-158.

I t is clear Respondent failed to have in place proper business processes and practices to ensure timely action as may be required
during
business operations
for the proper and timely processing of mail .
Mr.
Rieber ,
on cross examination ,
testified Respondent did not have a business procedure in
place to make sure he was copied from mail received from OS H A. Tr. 191.
T o the extent Respondent’s request for relief is premised on its failure to properly handle mail or documents, the Court would note 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))).
While Respondent’s actions were clearly the product of neglect, the Court does not find that such neglect was excusable
on the above basis .

The Court
further
finds Respondent did not act in good faith.
Not having a business process in place coupled with the fact it took Respondent nine days after talking to the Area Director on October 9, 2019 to file its
late NOC demonstrates Respondent’s lack of good faith in wanting to timely act to protect its interests.

While there is no evidence Respondent’s late
NOC
filing was prejudicial to
Complainant
or negatively impacted the Commission proceedings, the undisputed facts disclose that the reason for the delayed filing was within Respondent’s reasonable control. See
CalHar Constr., 18 BNA OSHC at 2153 n.5. Respondent’s delay in filing the
NOC
was a result of Respondent’s lack of diligence in failing to carefully read and act upon the information contained in the
C itation regarding filing a timely contest. This factor is dispositive. There is no justification for granting Rule 60(b)(1) relief in this case.

O RDER

T he Court finds
Respondent
failed to file a timely NOC
and no relief under
Rule 60(b) (1)
is justified.

The
Complainant’s
M otion is GRANTED .
Respondent’s
late
NOC is dismissed ,
with prejudice .
as untimely filed,
and the
C itation , classification
and penalt y
are
AFFIRMED in all respects.

SO
ORDERED.

/s/ ______

Patrick B. Augustine

Judge - OSHRC   

Date:
August 24, 2020

Denver, CO

"

1
The Secretary of Labor has prescribed requirements for an employer to timely make a notice of contest. The employer contest must be made in writing. 29 C.F.R. § 1903.17(a). See Sec’y of Labor v. Barretto Granite Corp ., 830 F.2d 396, 398 (1 st
Cir. 1987) (per curiam).

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
Commission decisions
are in comport with the Supreme Court and
state that ignorance of procedural rules does not constitute “excusable neglect” and that mere carelessness or negligence, even by a lay person, in failing to timely file a notice of contest does not justify relief under Rule 60(b) (1) . 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). Mr. Rieber, Respondent’s owner, testified he had received OSHA citations in the past and knows what to do when the company gets an OSHA citation. Tr. 186.

4
This matter could be appealed to either the D.C. Circuit
or the
Eig h th
Circuit. The Commission generally applies the law of the circuit where a case will likely be appealed. Kerns Bros. Tree Serv ., 18 BNA OSHC 2064, 2067 (No. 96-1719, 2000).

5
See Cohen v. Bd. of Trs. of Univ. of D. C.,
819 F.3d 476, 479-80 (D.C. Cir. 2016 ) ;

David E. Harvey Builders, Inc. v. Sec’y of Labor , 724 Fed. Appx. 7, 9 (D.C. Cir. 2018) .

6
Lowry v. McDonnell Douglas Corp ., 211 F.3d 457, 463 (8 th
Cir. 2000 ) .

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) (1) .
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).