SECRETARY OF LABOR,

 

                      Complainant,

 

                                 v.

OSHRC Docket No. 02-0772

AVON CONTRACTORS, INC.,

 

                      Respondent.  

 



 REMAND ORDER

           This case is before the Commission on remand from the United States Court of Appeals for the Third Circuit. Avon Contractors, Inc. v. Secretary of Labor, 372 F.3d 171 (3d Cir. 2004). In its decision, the Third Circuit vacated the Commission’s final order dismissing Respondent’s late-filed notice of contest and remanded the case for a hearing on the merits of the subject citations issued by the Occupational Safety and Health Administration. The court found that Respondent’s failure to timely file its notice of contest was the result of excusable neglect and that it was entitled to relief from the Commission’s order under Federal Rule of Civil Procedure 60(b)(1). The Third Circuit noted that it had recently reaffirmed its position that the Commission has jurisdiction to entertain a late notice of contest under the excusable neglect standard of Fed. R. Civ. P. 60(b)(1). See George Harms Constr. Co. v. Chao, 371 F.3d 156, 160-63 (3d Cir. 2004), citing J.I. Hass Co. v. OSHRC, 648 F.2d 190, 193-95 (3d Cir. 1981).

Accordingly, we remand this case to the Chief Administrative Law Judge for further proceedings consistent with the court’s opinion.

 

It is so ordered.


/s/ 

                                                                             W. Scott Railton

                                                                             Chairman



                                                                             /s/

                                                                             James M. Stephens 

                                                                             Commissioner



           /s/ 

                                                                             Thomasina V. Rogers

                                                                             Commissioner



Dated: August 11, 2004



 




  

 

SECRETARY OF LABOR,

 

                      Complainant,

 

v.

DOCKET NO. 02-0772

AVON CONTRACTORS, INC.,

 

                      Respondent.

 

 

 


APPEARANCES:


Vivian V. Ranada, Esq.                                  Mark D. Kentos, Esq.

Office of the Solicitor                                     Schibell & Mennie, LLC

U.S. Department of Labor                              Ocean, New Jersey

New York, New York                                                For the Respondent

            For the Complainant 


Before: Chief Judge Irving Sommer


DECISION AND ORDER

            This proceeding is before the Occupational Safety and Health Review Commission (“the Commission”), pursuant to section 10 of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. (“the Act”), for determination of the Secretary’s motion to dismiss Respondent’s request to file a late notice of contest.(“NOC”).

Background

            The underlying Citation and Notification of Penalty (“Citation”) arose from an inspection OSHA conducted from January 8, 2002 through January 10, 2002, at a work site of Respondent, Avon Contractors, Inc. (“Avon”) in Northvale, New Jersey. OSHA sent the citation and notice of proposed penalty to Avon by certified mail, return receipt requested, on February 22, 2002, and Avon received it on February 26, 2002. (Exhs. C-1 & C-3). Avon did not file an NOC, and the citation became a final order of the Commission by operation of law on March 19, 2002. See § 10(a) of the Act.

            On May 15, 2002, Avon mailed a letter to the Commission that essentially requested that it be permitted to file an NOC out of time; the reason given for the failure was that the employee responsible for handling OSHA matters did not receive it, and that the receptionist who had signed for the citation had been terminated. (Exh. C-5). The Secretary moved to dismiss the proffered NOC, and a hearing on this issue was accordingly conducted on September 24, 2002. The Respondent has filed a post-hearing brief, but the Secretary has not. Footnote

Discussion

            The record clearly demonstrates that Respondent did not file a timely NOC. Section 10(a) of the Act requires an employer to notify OSHA of the intent to contest a citation within 15 working days of receiving it, and, as indicated above, the failure to do so results in the citation and penalty becoming a final order of the Commission by operation of law.

            Under Commission precedent, however, an otherwise untimely NOC may be accepted if the employer can show that the late filing was caused by the Secretary’s deception or her failure to follow proper procedures. A late filing may also be excused if the final order was entered as a result of “mistake, inadvertence, surprise or excusable neglect” or for “any other reason justifying relief, including mitigating circumstances such as absence, illness or a disability that would prevent a party from protecting its interests.” See Branciforte Builders, Inc., 9 BNA OSHC 2113 (No. 80-1920, 1981). See also Fed. R. Civ. P 60(b). Footnote There is no allegation and no proof that Avon’s failure to file a timely NOC was caused by deception on the part of the Secretary or her failure to follow proper procedures.

            Instead, Avon asserts that it was precluded from filing a timely NOC because the receptionist who had accepted the citation was disgruntled and may have destroyed it, and that, accordingly, the company’s failure to file a timely NOC was the result of mistake and/or excusable neglect. Avon’s evidence in this regard is it had discovered that other “official” mail was missing, that its receptionist had been told that she was not permitted to accept certified mail, and that the receptionist was terminated or quit in March. The evidence also showed that Avon’s office manager called OSHA on April 29, 2002 to find out why the company had not received the citation. (Exh. C-5, Tr. 29-33, 36-37).

            Avon’s argument is compelling, particularly as Avon initiated contact with OSHA with respect to the whereabouts of the citation. However, a key factor in determining this issue is whether the failure was within the control of the employer. See CalHar Constr. Inc., 18 BNA OSHC 2151, 2153 n.5 (No. 98-0367, 2000). Here, the record does not show how long the receptionist had been destroying or misplacing the mail or when the company first became aware of the problem. I do no know, therefore, if the alleged destruction of the citation was an unprecedented and unexpected act, or whether this type of activity was an ongoing problem which should have been corrected. Indeed, the only apparent effort Avon undertook to rectify the problem was to tell the receptionist not to accept certified mail, and, according to the office manager, this occurred “right before” the receptionist left the company. (Tr. 31). Without more, I cannot find that it was not within Avon’s reasonable control to prevent the series of events which led up to its failure to timely file the NOC, and, accordingly, I conclude that Respondent has failed to show that it is entitled to relief under Fed. R. Civ. P. 60(b).

            In light of the above, I conclude that the citation was properly served, that Avon did not file a timely NOC, and that the company is not entitled to relief pursuant to Rule 60(b). The Secretary’s motion to dismiss is accordingly GRANTED, and the citation and notification of penalty is AFFIRMED in all respects. So ORDERED.

 

 

 

                                                                                    /s/



                                                                                    IRVING SOMMER

                                                                                    Chief Judge

Date: January 21, 2003

            Washington, D.C.