Byrd Produce Company
Attorney neglect leaves late citations final
Apply this precedent to your situation
This is citable Commission precedent from 1993, and it may have been appealed since. Ezel checks how it stands today and answers your situation, with citations.
Plain-English summary
OSHA issued Byrd Produce Company two serious citations after inspecting two California ranches, alleging failures to provide drinking cups and hand-washing water and proposing $640 in penalties. Byrd promptly delivered the citations to its attorney, but the attorney filed the notice of contest four working days after the statutory deadline and offered no justification for the delay. An ALJ granted relief under Federal Rule of Civil Procedure 60(b) because Byrd itself had acted diligently, then vacated the citations when the Secretary declined to file a complaint. The Commission held that a client is accountable for the acts and omissions of its chosen attorney and that the attorney's unexplained negligence was not excusable. It therefore denied Rule 60(b) relief and held that the citations and proposed penalties had become a final Commission order.
Decision snapshot
- Cited standard(s): The release does not identify the standards underlying the citations.
- Outcome: The late notice of contest was denied, leaving the two serious citations and $640 in proposed penalties as a final order.
- Key point: Promptly sending an OSHA citation to counsel does not excuse a missed contest deadline when the attorney's neglect is unexplained and therefore not excusable.
Full text (OSHRC public release)
OCCUPATIONAL SAF~~~~~E~~~~~c~E”,EW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419
..
SECRETARY OF LABOR, ..
..
Complainant, .0
..
v. l
. OSHRC Docket Nos. 91-0823 & 91-0824
..
BYRD PRODUCE COMPANY, ..
..
Respondent. 0.
..
BEFORE: FOULKE, Chairman, and MONTOYA, Commissioner.
BY THE COMMISSION:
A November 30,199O inspection of two of Byrd Produce Company’s (“Byrd”) ranches
in Guadalupe, California led to the issuance of two serious citations on February 14, 1991.
The proposed penalties associated with the citations, for failure to provide water cups and
wash water, amounted to $640.
Testimony at the December 5, 1991 hearing indicated that upon receiving the
citations on February 20, 1991, Byrd had contacted its attorney and brought the citations to
the attorney’s office within a day or two of receiving them. The attorney neglected to file
a notice of contest until March 18, 1991, nineteen business days after the clients had
received the citations, by which time they had been deemed a final order under section 10(a)
of the Act?
’ Section 10(a) of the Act provides:
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
(continued...)
2
At the hearing, Byrd sought relief from this final order and in a December 13, 1991
order, the judge granted Byrd summary relief under Fed. R. Civ. P. 60(b)2 and directed the
Secretary to file his complaint. The Secretary, however, declined to file a complaint,
requesting instead that the judge reconsider his ruling. Upon reconsideration, the judge
issued a “Final Order” on January 28, 1992 confirming that Byrd was entitled to relief under
Rule 60(b). In accordance with the Secretary’s deliberate refusal to file a complaint, the
judge declared the Secretary in default for failure to plead under Commission Rule 41. The
citations and proposed penalties were vacated. The Secretary petitioned for review.
SecMzuy’s Section 10(a) Arguments
The Secretary argues that section 10(a) of the Act precludes the Commission from
exercising jurisdiction over cases in which the employers have attempted to file their notice
of contest after the statutory Z-day deadline has passed. He maintains that since the
Commission has no jurisdiction to review such matters in the first place, Federal Rule 60(b)
does not offer an “escape hatch” in late notice of contest cases.3 For the reasons explained
in our decision in Jackson Associates of Nassau (No. 91-0438), also issued today, we reaffirm
our holding that section 10(a) of the Act does not prevent the Commission from asserting
jurisdiction over such cases and applying Rule 60(b).
Relief under Rule 60(b)
The Ninth Circuit, to which this case may be appealed, has set forth three factors to
consider in Rule 60(b) motions: (1) whether the Secretary will be prejudiced, (2) whether
the respondent has a meritorious defense, and (3) whether culpable conduct of the
l (...continued)
assessment of penalty, and no notice is filed by any employees or representative of employees
under subwtion (c) within such time, the citation and the assessment, as proposed, shall be
deemed a final order of the Commission and not subject to review by any c&-or agency.
(Emphasis added.)
2 Fed. R. Civ. P. 60(b) provides in relevant part that “[o]n motion and upon such terms as are just, the court
may relieve a party or his legal representative from a final judgement, order, or proceeding for the following
reasons: (1) mistake, inadvertence, surprise, or excusable neglect.
3 Section 12(g) of the Act provides that “[ulnless the commission has adopted a different rule, its proceedings
shall be in accordance with the Federal Rules of Civil Procedure.”
3
respondent led to the default. Richmark COP* V. ?Fmber Falling Consultants,Inc., 937 F.2d
1444, 1449 (9th Cir. 1991), citing Falk v. Allen, 739 F.2d 461, 463 (9th Cir. 1984). This
tripartite test is disjunctive, Cassidy v. Tenorio, 856 F.2d 1412, 1415 (9th Cir. 1988), so a
finding of culpable conduct on the part of the respondent is a sufficient basis on which to
deny a motion for Rule 60(b) relief.
The judge set forth the three-pronged test in his decision, but failed to recognize that
the attorney’s conduct, which the judge found to be culpable, was fatal to Byrd’s case for
Rule 60(b) relief. Instead, he found that “Byrd acted diligently entrusting the citations to
its attorney,” and “[ilts notice of contest was untimely due to the lack of the attorney’s dili-
gence, conduct it did not control, acquiesce in or have knowledge of.” The result in this
case, he believed, was “dictated by Commission precedent, as established in P & A Constr.
Co., 10 BNA OSHC 1185, 1981 CCH OSHD II 25,783 (No. 80-3848, 1981).” In that case,
the Commission granted Rule 60(b) relief to an employer whose late filing of its notice of
contest was due solely to a mistake made by personnel in the employer’s lawyer’s office.
The lawyer had dictated a notice of contest before traveling out of town, and had called his
office daily, diligently inquiring about the notice of contest. A secretary who had
inadvertently deleted the notice instead of printing it out assured him that it had been
mailed. The Commission found that these actions constituted mistake, inadvertence or
excusable neglect.
In Link v. Wabash RR, 370 U.S. 626 (1962), the Supreme Court rejected a client’s
claim that he should not be held accountable for his attorney’s behavior:
There is certainly no merit to the contention that dismissal of petitioner’s
claim because of his counsel’s unexcused conduct imposes an unjust penalty
on the client. Petitioner voluntarily chose this attorney as his representative
in the action, and he cannot now avoid the consequences of the acts or
omissions of this freely selected agent. Any other notion would be wholly
inconsistent with our system of representative litigation, in which each party
is deemed bound by the acts of his lawyer-agent . . . .
370 U.S. at 633-34. The Court noted in Link that the party never sought to avail himself of
the “escape hatch” provided by Rule 60(b) and that the sua sponfe dismissal was based on
all the circumstances in the case, including earlier dilatory tactics, but the case continues to
4
be cited for the proposition that client and lawyer are treated as a single entity for many
purposes. E.g., hwh U. Veterans Admin., 111 S.Ct. 453, 456 (1990) (no relief for client of
attorney whose conduct constituted “garden variety neglect.“); Toth v* Trans WorldAirlineq
862 F.2d 1381 (9th Cir. 1988) (sanctioning both lawyer and client), Pelican Prod. Cop V.
Marino, 893 F.2d 1143 (10th Cir. 1990) (parties desiring relief must particularize, and
generally do not acquit themselves of responsibility by showing merely that they placed the
case in the hands of an attorney, citing Mbore’s Federal Pctice 1 60.22[2] at 60484 (2d Ed.
1987)). The Link Court expressed no sympathy for a client whose counsel’s “unexcused
conduct” causes the client to suffer. Link at 633 (emphasis added).
The Secretary has also drawn to our attention a recent United States Supreme Court
case, Pioneer Inv. Sews. v. Brunswick Assoc,, 61 U.S.LW. 4263 (U.S., Mar. 24, 1993)
(‘Pioneer”), for the proposition that the Commission must examine the conduct of the
attorney as well as that of the client. In pioneer, a case interpreting the term “excusable
neglect” in a bankruptcy rule, the Court chastised the court below for focusing solely on the
diligence of the client, to the exclusion of the activities of the attorney himself. That the
party itself was blameless is not enough. The attorney’s conduct must be excusable, ie., the
party must show that the attorney did all he reasonably could to comply with the deadline.
Citing the Link case, the Pioneer Court held first that parties must be held
accountable for the acts and omissions of their chosen counsel. Id. at 4268. The Court then
examined the nature of the attorney’s neglect. Of interest is that the Court gave little weight
to the attorney’s personal problems (“experiencing upheaval in his law practice”) and found
that more significant was the bankruptcy court’s ambiguous notice describing the deadline.
Id. at 4268. The case thus contains an element of government misconduct missing from IQ&
and other attorney negligence cases. Concluding that “the determination is at bottom an
equitable one,” id, at 4267, the Court ultimately allowed the party to file its claim late
because its counsel’s neglect was “excusable.”
The Secretary correctly points out that the judge in this case made a finding that the
neglect was the attorney’s and not Byrd’s. Based on the attorney’s representations at the
hearing, we find that his negligence was not excusable:
5
To the best that 1 can recall, what happened on this particular matter is that
I received a call from my -- from the client indicating that -- acknowledging
that they had received these citations. I instructed them to send them over
to my office. They came over to my office and they were placed in the in-
basket. And the first I can recall seeing them was on Monday morning, which
was the 18th, which was the date that the letter was submitted. They could
have come in the week before sometime, and I saw it on Monday mom-
ing. . . . I don’t want to try to fabricate anything that’s not true. . . . That’s
all I can really remember. . . [AIll I can say is there was a neglect in not
l
meeting the 15-day requirement. And I would ask the Commission to find
that it was excusable and allow us to proceed under the merits of our conten-
tions.
The judge addressed the attorney during the hearing: “Mr. Quandt, I have to say your
activities would bear d&missal. But for the respondent . . . I’m going to grant relief under
Rule 60. I’m going to reinstate that notice of contest solely because, in this case, the
respondent acted diligently in getting the notice of contest to the attorney. I’m not going to
hold the respondent responsible for the activities of the attorney.” (Emphasis added).
Neither Byrd nor its attorney provided any reason for Byrd’s failure to file a timely notice
of contest that would rise to the level of excusable neglect required by Rule 60(b).’
Accordingly, no relief is warranted under Rule 60(b) in this case.’
OItder
We find that Byrd’s notice of contest was untimely and that the citations have become
a final order of the Commission under section 10(a) of the Act. The Secretary may proceed
accordingly.
Edwin G. Foulke, Jr.
Chairman
Commissioner
Dated: June 18, 1993
4 This caSe is distinguishable from P & A Conszz In both cases, the attorney’s conduct was solely responsible
for the late notice of conduct, but here, that conduct was not excusable.
’ Respondent’s remedy in this case, if any, would lie with its attorney.
/ -. UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th StW8t, N.W. - 9th Floor
Washington, DC 200364419
SECRETARY OF LABOR, ..
.
Complainant,
..
v. Docket Nos. 91-0823 & 91-0824
.
BYRD PRODUCE CO., ..
.
Respondent. .
.
NOTICE OF COMMISSION DECISION
The attached decision by the Occupational Safety and Health Review Commission was issued on
June 18, 1993. ANY PERSON ADVERSELY AFFECTED OR AGGRIEVED WHO WISHES TO
OBTAIN REVIEW OF THIS DECISION MUST FILE A NOTICE OF APPEAL WITH THE
APPROPRIATE FEDERAL COURT OF APPEALS WITHIN 60 DAYS OF THE DATE OF THIS
DECISION. See Section 11 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 9 660.
FOR THE COMMISSION
June 18, 1993
Date
6qY.13
Ray H. Darling, Jr.
Executive Secretary
Docket Nos. 91-0823 & 910L.,24
NOTICE IS GIVEN TO THE FCXLOWING:
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
Daniel Teehan, Esq.
Regional Solicitor
Office of the Solicitor, U. S. DOL
71 Stevenson St., 10th Floor
San Francisco, CA 94119-3495
Richard S. Quandt, Esq.
245 Obispo Street
PO Box 10
Guadalupe, CA 93434
James Barkley
Administrative Law Judge
Occupational Safety and Health
Review Commission
Room 250
1244 North Speer Boulevard
Denver, CO 80204-3582
.
UNITED STATES 3F AMERICA
OCCUPATIONAL SAFETY AND HEALTH XVIEW COMMISSION
1825K STREET bi.VV
4Tt-i FLCOH
WASHINGTON 0.:. 2OCO6-1246
FAX:
COM (202) 634-4008
FTS 634-4008
SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 91-0823
BYRD PRODUCE COMPANY
Respondent.
NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was
docketed with the Commission on February 4, 1992. The decision dt the Judge
will become a final order of the Commission on March 5, 1992 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such etition should be received by the Executive Secretary on or before
February ! 4, 1992 in order to ermit sufficient time for its review. See
Commission Rule 91, 29 C.F.IQ. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Revrew Commission
1825 K St. N.W., Room 401
Washington, D.C. 20006-1246
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO8,
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
having questions about review nghts may contact the Commission’s Executive
Secretary or call (202) 634-7950.
FOR THE COMMISSION
Date: February 4, 1992
DOCKET NO. 91-0823
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mid, Esq.
Counsel for Re ‘onal Trial Liti ation
Office of the SoT l
citor, U.S. DOf
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
Daniel Teehan, Esq.
Re ‘onal Solicitor
O&e of the Solicitor, U.S. DOL
P.O. Box 3495
71 Stevenson St., 10th Floor
San Francisco, CA 94119
Richard S. Quandt, Esq.
245 Obispo Street
P.O. Box 10
Guadalupe, CA 93434
James H. Barkley
Administrative Law Jud e
Occupational Safety an (KHealth
Review Commission
Room 250
1244 North S eer Boulevard
Denver, CO l 0204 3582
00102886991:09
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1244 N. SPEER BOULEVARD
ROOM 250
DENVER, CCLORADO 80204~3582
PHONE. FAX:
COM (303) 844-2281
FE 564-2281
SECRETARY OF LABOR,
Complainant,
v. OSHRC DOCKET
NO. 91-0823 .
BYRD PRODUCE COMPANY,
Respondent.
On February 14, 1991, Respondent Byrd Produce Company (Byrd), was issued two
citations containing three items alleging “serious” violations of the Occupational Safety and
Health Act of 1970 (29 U.S.C., Section 651, et. seq, hereafter referred to as the Act) _
together with proposed penalties. Respondent, through its attorney, filed a notice of contest,
contesting the violations, the characterization of the violations as “serious” and the amounts
of the penalties.
In lieu of filing a complaint the Secretary filed a motion to dismiss the notice of
contest as untimely. Byrd responded, requesting that the undersigned consider the
substantive &,IUB raised by its “contest of the proposed penalties.” Byrd’s request was
treated as a rcqyest for relief under F.R.C.P. 60(b) and an evidentiary hearing in support
thereof was held in Santa Maria, California on December 5, 1991.
The facts, as adduced at the hearing, are not seriously disputed.
The return receipt demonstrates that Respondent received the citations on February
19, 1991. Respondent provided the citations to its attorney on February 22, 1991 (Tr. 12).
The notice of contest should have been filed by March 12,199l. The notice of contest filed
by Byrd’s attorney is dated March 18, 1991 and bears a postmark of March 19, 1991.
Respondent’s attorney offers no justification for the delay. Complainant does not claim
prejudice. The Commission’s docket was not affected.
At the hearing it was found that the notice of contest was untimely filed and that the
citations and proposed penalties had become final orders of the Commission. It was further
found, however, that Byrd had acted diligently in providing the citations to its attorney in
ample time for a timely notice of contest to be filed, and that the late filing was due solely
to the attorney’s lack of diligence. Relief under F.R.C.P 60(b) was granted and the
Secretary was given thirty (30) days to file her complaint.
The Secretary has filed a statement of position which requests reconsideration of’the
order granting respondent relief, and sets forth the Secretary’s election not to file a
complaint and accept a default judgment in the event of an adverse decision.
In reconsidering, this judge notes that the Ninth Circuit has set forth a three prw
standard for evaluating Rule 60(b) motions: “( 1) whether the plaintiff will be prejudi@‘i2)
whether the defendant has a meritorious defense, and (3) whether culpable conduct &he
defendant led to the default.” Richmark Cop. v. 7fmber Falling Consultants,Inc., 937 FM
1444, 1449 (9th Cir. 1991).
1. By the Secretary’s own reckoning only four (4) working days elapsed between the
due date for Byrd’s notice of contest and the date it was filed. The Secretary did not and
does not cite any prejudice to its case resulting from the brief delay.
2. In its June 28, 1991 motion, Byrd set forth a number of objections, or defenses,
to the Secretary’s penalty calculations. Byrd stated that the Secretary failed to adequately
consider the statutory penalty criteria by not taking into account the respondent’s small size,
its good faith in correcting the violations, and its lack of prior citations in its entire 25 years
of operation. Byrd further argues that the violations, which allege a failure to provide single
use drinking q and hand washing water to field hands, are relatively minor and not
“serious” as contemplated by the Act.
Byrd’s allegations, which this judge must accept as true (See, Cassidy v. Tenorio, 856
F.2d 1412 (9th Cir. 1988)), are sufficient to justify a reduction in the assessed penalty, and
so constitute a “meritorious defense” in the context of an OSHA action.
2
(3) The Commission, in a recent case discussing a party’s “culpability” for the
purposes of F.R.C.P 60(b), stated that “[rlelief may be justified ‘if the party offers a credible
explanation for the delay that does not exhibit disregard for the judicial proceedings,’
revealing no ‘intent to thwart’ or ‘reckless disregard for the effect of its conduct.“’ Secretary
of Labor v. Keefe Earth Boring Co., 14 BNA OSHC 2187, 2192, 1991 CCH OSHD 729,277,
p. 39,270 (No. 88-2521, 1991).
In the case at bar, Respondent Byrd acted diligently entrusting the citations to its
attorney, intending that the attorney would comply with the statutory filing requirement. Its
notice of contest was untimely due to the lack of the attorney’s diligence, conduct it did not
control, acquiesce in or have knowledge of. Moreover, the late filing, four working days after
the notice of contest was due, had no effect on either the Commission’s docket or the
Secretary’s ability to present its case. Later filings suggest a meritorious defense. If relief
under F.R.C.R. 60(b) is not available under these facts, it is diflicult to postulate when such
relief would be available.
This judge finds that the result in this matter is dictated by Commission precedent,
as established in P &A Constnxtion Company,Inc., 10 BNA OSHC 1185,198l CCH OSHD
lI25,783 (No. 80-3848, 1981). In that case the Commission granted F.R.C.P. 60(b) relief to
an employer who intended to contest an OSHA citation and diligently conveyed such
instruction to its attorney, where the late filing of its notice of contest was due solely to the
mistake of its retained counsel and his staff.
The cases cited by the Secretary reaching contrary results all involved dilatory conduct
by the affected party itself, or a continued or repeated pattern of disregard for procedures
or orders of the court by counsel, which were imputable to the party, and so are easily
distinguishable. See, e.g.; Secretaryof Labor v. Penrod’s Palace, 14 BNA OSHC 1974, 1991
CCH OSHD 129,210 (No. 88-1078, 1991)(Employer’s failure to convey show cause order to
its counsel insufficient ground for relief); Toth v. TransworldAirlines, Inc., 862 F.2d 1381 (9th
Cir. 1988)(dismissal justified based on the appellant’s “continued refusal” to comply with the
rules of procedure and court orders, resulting in “long and unjustified delays.“)
Having reconsidered the matter, it is found that relief under F.R.C.P 60(b) is
appropriate. Mindful of the Secretary’s decision not to file a complaint, the Secretary is
declared in default pursuant to Commission Rule 41(a) for failure to plead.
Accordingly, it is
ORDERED:
The citations and proposed penalties issued to respondent dated February 14, 1991
are herebv vacated.
Dated: January 28, 1992
,
UNITED STATE2 Of AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET N.W.
4TI-1 FLOOR
WASHINGTON D.C. 203006~‘246
FAX.
COM (202) 634-4006
FTs 634-4008
SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 91-0824
BYRD PRODUCE COMPANY
Respondent.
NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was
docketed with the Commission on February 4, 1992. The decision of the Judge
will become a final order of the Commission on March 5, 1992 unless a
Commission member directs review of the decision on or before that date. ANY -
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW. G’*
An such etition should be received by the Executive Secretary on or before
Fe ruary
. . 4 1992 in order to ermit sufficient time for its review. See
C!-ss:nRule 919 29 CFF!?
. . . 220091
. .
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1825 K St. N.W., Room 401
Washington, D.C. 20006-1246
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Of&e of the Solicitor, U.S. DOf
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
having questions about review rights may contact the Commission’s Executive
Secretary or call (202) 634-7950.
FOR THE COMMISSION
Date: February 4, 1992
DOCKET NO. 91-0824
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Re ‘onal Trial Liti ation
Office of the So%‘citor, U.S. DO8.
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
Daniel Teehan, Esq.
Re ional Solicitor
O&e of the Solicitor, U.S. DOL
P.O. Box 3495
71 Stevenson St., 10th Floor
San Francisco, CA 94119
Richard S. Quandt, Esq.
245 Obispo Street
P.O. Box 10
Gaudalupe, CA 93434
James H. Barkley
Administrative Law Jud e
Occupational Safety an d Health
Review Commission
Room 250
1244 North S eer Boulevard
Denver, CO ir0204 3582
00102887072:09
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW cOiU!MlSSlON
1244
N. SPEER BOULEVARD
ROOM 250
DENVER, COLORADO 802043582
PHONE:
FAX:
COM (303) 844-2281
COW303)844-37s
l=E 564-2281
m s64-37s
SECRETARY OF LABOR,
Complainant,
v. OSHFK DOCKET
NO. 91-0824
BYRD PRODUCE COMPANY,
Respondent.
On February 14, 1991, Respondent Byrd Produce Company (Byrd), was issued two
citations containing three items alleging “serious” violations of the Occupational Safety and
Health Act of 1970 (29 U.S.C., Section 651, et. seq, hereafter referred to as the Act)
together with proposed penalties. Respondent, through its attorney, filed a notice of contest,
contesting the violations, the characterization of the violations as “serious” and the amounts
of the penalties.
In lieu of filing a complaint the Secretary filed a motion to dismiss the notice of
contest as untimely. Byrd responded, requesting that the undersigned consider the
substantive i-rus raised by its “contest of the proposed penalties.” Byrd’s request was
treated as a mqmst for relief under F.R.C.P. 60(b) and an evidentiary hearing in support
thereof was heId in Santa Maria, California on December 5, 1991.
The facts, as adduced at the hearing, are not seriously disputed.
The return receipt demonstrates that Respondent received the citations on February
19, 1991. Respondent provided the citations to its attorney on February 22, 1991 (Tr. 12).
The notice of contest should have been filed by March 12,199l. The notice of contest filed
by Byrd’s attorney is dated March 18, 1991 and bears a postmark of March 19, 1991.
Respondent’s attorney offers no justification for the delay. Complainant does not claim
prejudice. The Commission’s docket was not affected.
At the hearing it was found that the notice of contest was untimely filed and that the
citations and proposed penalties had become final orders of the Commission. It was further
found, however, that Byrd had acted diligently in providing the citations to its attorney m
ample time for a timely notice of contest to be filed, and that the late filing was duesolely
to the attorney’s lack of diligence. Relief under F.R.C.P 60(b) was granted and the
Secretary was given thirty (30) days to file her complaint.
The Secretary has filed a statement of position which requests reconsideration &he ,. atI
order granting respondent relief, and sets forth the Secretary’s election not to file a
complaint and accept a default judgment in the event of an adverse decision.
In reconsidering, this judge notes that the Ninth Circuit has set forth a three pronged
standard for evaluating Rule 60(b) motions: “( 1) whether the plaintiff will be prejudiced, (2)
whether the defendant has a meritorious defense, and (3) whether culpable conduct of the
defendant led to the default.” Richmark Cop v. ‘I”imberFalling Consultants,Inc., 937 FM
1444, 1449 (9th Cir. 1991).
1. By the Secretary’s own reckoning only four (4) working days elapsed between the
due date for Byrd’s notice of contest and the date it was filed. The Secretary did not and
does not cite any prejudice to its case resulting from the brief delay.
2. In its June 28, 1991 motion, Byrd set forth a number of objections, or defenses,
to the Secretary’s penalty calculations. Byrd stated that the Secretary failed to adequately
consider the statutory penalty criteria by not taking into account the respondent’s small size,
its good faith in correcting the violations, and its lack of prior citations in its entire 25 years
of operation. Byrd further argues that the violations, which allege a failure to provide single
use drinking cupa and hand washing water to field hands, are relatively minor and not
“serious” as contemplated by the Act.
Byrd’s allegations, which this judge must accept as true (See, G.&y v. Tenorio, 856
F.2d 1412 (9th Cir. 1988)), are sufficient to justify a reduction in the assessed penalty, and
so constitute a “meritorious defense” in the context of an OSHA action.
2
(3) The Commission, in a recent case discussing a party’s “culpability” for the
purposes of F.R.C.P 60(b), stated that “[rlelief may be justified ‘if the party offers a credible
explanation for the delay that does not exhibit disregard for the judicial proceedings,’
revealing no ‘intent to thwart’ or ‘reckless disregard for the effect of its conduct.“’ Secretary
of Labor v. Keefe Earth Boring Co., 14 BNA OSHC 2187,2192,1991 CCH OSHD ll29,277,
p. 39,270 (No. 88-2521, 1991).
In the case at bar, Respondent Byrd acted diligently entrusting the citations to its
attorney, intending that the attorney would comply with the statutory filing requirement. Its
notice of contest was untimely due to the lack of the attorney’s diligence, conduct it did not
control, acquiesce in or have knowledge of. Moreover, the late filing, four working days after
the notice of contest was due, had no effect on either the Commission’s docket or the
Secretary’s ability to present its case. Later filings suggest a meritorious defense. If relief
under F.R.C.R. 60(b) is not available under these facts, it is difficult to postulate when SW&
relief would be available. 5th
:
This judge finds that the result in this matter is dictated by Commission prccedmt,
as established in P&A Construction Company, Inc., 10 BNA OSHC 1185,198l CCH OSHD
lf25,783 (No. 80-3848, 1981). In that case the Commission granted F.R.C.P. 60(b) relief to
an employer who intended to contest an OSHA citation and diligently conveyed such
instruction to its attorney, where the late filing of its notice of contest was due solely to the
mistake of its retained counsel and his staff.
The cases cited by the Secretary reaching contrary results all involved dilatory conduct
by the affected party itself, or a continued or repeated pattern of disregard for procedures
or orders of the court by counsel, which were imputable to the party, and so are easily
distinguishable. See, e.g.; Secretay of Labor v. Penrod’s Palace, 14 BNA OSHC 1974, 1991
CCH OSHD 1129,210(No. 88-1078, 1991)(Employer’s failure to convey show cause order to
its counsel insu&ient ground for relief); Toth v. TransworldAir2ine.q Inc., 862 F.&i 1381(9th
Cir. 1988)(dismissal justified based on the appellant’s “continued refusal” to comply with the
rules of procedure and court orders, resulting in “long and unjustified delays.“)
Haag reconsidered the matter, it is found that relief under F.R.C.P m(b) is
appropriate. A&c&l of the Secretary’s decision not to file a complaint, the Secretary is
declared in d&tit pursuant to Commission Rule 41(a) for failure to plead.
Accordingly, it is
ORDERED:
The citations and proposed penalties issued to respondent dated February 14, 1991
are hereby vacated.
Dated: January 28, 1992
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