THIS CASE IS NOT A FINAL ORDER OF THE REVIEW COMMISSION AS IT IS
PENDING COMMISSION REVIEW
SECRETARY OF LABOR, :
:
Complainant, :
:
v. : OSHRC DOCKET NO. 09-1559
:
BURROWS PAPER CORPORATION, :
:
Respondent. :
Before: Chief Judge Irving Sommer
DECISION AND ORDER
This matter is before the Occupational Safety and Health Review Commission (“the
Commission”) under section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C.
§ 651 et seq. (“the Act”), to determine whether the Secretary’s motion for an order to dismiss
Respondent’s late-filed notice of contest (“NOC”) should be granted.
Background
The Occupational Safety and Health Administration (“OSHA”) inspected Respondent’s
facility, located in Lyons Falls, New York, in April 2009.
As a result, OSHA issued to Respondent a Citation and Notification of Penalty (“Citation”) on June 23. OSHA mailed the Citation to
“Tony Allen, Safety Director,” at Respondent’s Franklin, Ohio office, by certified mail, return
receipt requested. The Citation was delivered and signed for on June 26. The Act requires an
employer to notify the Secretary of its intent to contest a citation within 15 working days of
receipt, and the failure to file a timely NOC results in the citation becoming a final order of the
Commission by operation of law. Based upon the date it received the Citation, Respondent was
required to file an NOC on or before July 20. On July 20, the OSHA area office that had issued
the Citation sent a letter to Mr. Allen, Respondent’s safety director. That letter stated that, due to
the verbal agreement between OSHA and Mr. Allen on that same day, a written settlement
agreement was enclosed. The letter noted that the agreement had to be signed that day, which
was the last day of the 15-day contest period. The letter also noted that if Respondent decided
not to sign the settlement agreement, the Citation would become a “final and unappealable
order” unless a written notice of intent to contest the Citation was filed. Respondent did not
return the settlement agreement to OSHA. It also did not file an NOC on July 20. It did file one
on September 1, with the OSHA area office. It filed another NOC letter with the Commission on
September 18.
On November 30, the Secretary filed a motion to dismiss Respondent’s late-filed NOC.
In that motion, the Secretary’s counsel states that she left messages with Respondent’s representative, to discuss his position in this matter, but that she had not heard from the representative.
Discussion
The record in this case plainly shows that Respondent did not file its NOC within the
requisite 15-day period set out in the Act. An otherwise untimely NOC may be accepted,
however, where the delay in filing was caused by deception on the part of the Secretary or her
failure to follow proper procedures. A late filing may also be excused, under Federal Rule of
Civil Procedure 60(b) (“Rule 60(b)”), if the final order was entered as a result of “mistake,
inadvertence, surprise or excusable neglect.” See Branciforte Builders, Inc., 9 BNA OSHC 2113,
2117 (No. 80-1920, 1981) (citations omitted). The moving party has the burden of proving it is
entitled to Rule 60(b) relief.
To determine whether a late-filed NOC was due to excusable neglect, the Commission
follows the Supreme Court’s test in Pioneer Inv. Serv. v. Brunswick Assoc., 507 U.S. 380 (1993).
See Northwest Conduit Corp., 18 BNA OSHC 1948, 1950 (No. 97-851, 1999). Under that test,
the Commission takes into account all relevant circumstances, including 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. Id. at 1950, quoting 507 U.S. at 395. The Commission
has held that the “reason for the delay, including whether it was within the reasonable control of
the movant,” is a “key factor,” and, in appropriate cases, the dispositive factor. A.W. Ross, Inc.,
19 BNA OSHC 1147, 1148 (No. 99-0945, 2000); Calhar Constr., Inc., 18 BNA OSHC 2151,
2153 (No. 98-0367, 2000).
Both of the NOC letters in this case express Respondent’s intent to contest the Citation,
but neither provides any reason for the late filing. Besides this fact, the Citation issued to
Respondent states, on page 2, as follows:
Right to Contest – You have the right to contest this Citation and Notification of
Penalty. You may contest all citation items or only individual items. You may
also contest proposed penalties and/or abatement dates without contesting the
underlying violations. 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 [Commission] and may not be reviewed by any
court or agency.
The Commission has held that the OSHA citation clearly states the requirement to file an
NOC within the prescribed 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, 13 BNA OSHC 2021, 2022 (No. 88-1748, 1989); Acrom Constr. Serv., 15 BNA OSHC
1123, 1126 (No. 88-2291, 1991). The Commission has also held that ignorance of procedural
rules does not constitute “excusable neglect” and that mere carelessness or negligence does not
justify relief. Acrom Constr. Serv., 15 BNA OSHC 1123, 1126 (No. 88-2291, 1991); Keefe Earth
Boring Co., 14 BNA OSHC 2187, 2192 (No. 88-2521, 1991). Finally, the Commission has held
that a business must have orderly procedures in place for handling important documents and that
if the lack of such procedures caused the late filing, Rule 60(b) relief will not be granted.
NYNEX, 18 BNA OSHC 1967, 1970 (No. 95-1671, 1999); E.K. Constr., 15 BNA OSHC 1165,
1166 (No. 90-2460, 1991); Stroudsburg Dyeing & Finishing, 13 BNA OSHC 2058 (No. 88-1830, 1989); Louisiana-Pacific Corp., 13 BNA OSHC 2020, 2021 (No. 86-1266, 1989).
In addition to the above, the July 20 letter that OSHA sent to Mr. Allen provided specific
notice to Respondent that, if it chose to not sign the settlement agreement, it had to file an NOC
by the end of the 15-day filing period if it wanted to contest the Citation. Respondent thus had
clear notice of the NOC filing period and yet failed to file a timely NOC. I find that for this
reason and all of those set out above, the delay in filing was within the reasonable control of
Respondent. I also find this factor dispositive. Respondent is not, therefore, entitled to Rule
60(b) relief.
There is another reason for denying relief in this matter. Besides showing that the late
filing was due to “excusable neglect,” the party seeking relief must also allege that it has a
meritorious defense to the citation. See, e.g., Northwest Conduit Corp., 18 BNA OSHC 1948,
1951 (No. 97-851, 1999). The NOC letters that Respondent filed contain nothing to indicate a
meritorious defense to the Citation.
Based on the foregoing, the Secretary’s motion to dismiss Respondent’s late-filed NOC is
GRANTED, and the Citation is AFFIRMED in all respects.
SO ORDERED.
/s/
Irving Sommer
Chief Judge
Dated: January 19, 2010
Washington, D.C.