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United States of
America
OCCUPATIONAL
SAFETY AND HEALTH REVIEW COMMISSION
1924 Building - Room 2R90, 100 Alabama Street, S.W.
Atlanta, Georgia 30303-3104
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Secretary
of Labor, |
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Complainant |
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v. |
OSHRC Docket No.: 17-2230 |
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Prime
Pak Foods, Inc., |
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Respondent. |
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DECISION AND ORDER
This matter is before the Commission on
Respondent’s Notice of Contest, dated December 19, 2017, received by the
Commission December 21, 2017. On April
4, 2018, the Secretary filed a motion to dismiss Respondent’s Notice of Contest
on the grounds it was not filed within the time period prescribed by § 10(a) of
the Occupational Safety and Health Act, 29 U.S.C. § 651- 678
(the Act). Respondent
filed a response in opposition to the Secretary’s motion, or in the alternative
a motion for relief under Fed. R. Civ. P. 60(b).[1] For the reasons that follow, Respondent’s
request for relief pursuant to Fed. R. Civ. P. 60(b) is DENIED; the Secretary’s motion to dismiss is GRANTED; and the citation issued to Respondent on
November 1, 2017, pursuant to Inspection No. 1245972 is AFFIRMED in its entirety and the penalty ASSESSED.
BACKGROUND
Beginning on July 11, 2017,
Compliance Safety and Health Officer (CSHO) Caliestro
Spencer of the Atlanta East Area Office of the Occupational Safety and Health
Administration (OSHA) conducted an inspection (No. 1245972) of Respondent’s
facility at 2076 Memorial Park Drive in Gainsville,
Georgia. Participating in the inspection
(among others) were Respondent’s Safety Coordinator, Kathy Harris, and
Respondent’s counsel, Mark Waschak. According to CSHO Spencer, he held an opening
and closing conference during his inspection.
During the closing conference, he confirmed Respondent’s mailing
address. Safety Coordinator Harris has
no recollection of a closing conference.
She also contends during the inspection she asked the Secretary to contact
Respondent through counsel.
Following the inspection, on
November 1, 2017, the Secretary issued Respondent a single-item serious
citation and notification of penalty.
The citation and notification of penalty were mailed to Respondent’s
Memorial Park Drive mailing address via certified mail. It was received and signed for by Respondent
on November 6, 2017. Respondent does not
deny receipt of the citation and notification of penalty on that date.
Under § 10(a) of the Act, Respondent had until
November 29, 2017, to file a timely notice of contest of the citation. Respondent did not do so.
On December 15, 2017, Assistant Area
Director (AAD) Kia McCullough contacted Larry Stine, an attorney with the law firm
retained by Respondent, and requested abatement information. Mr. Stine was unaware Respondent had been
issued a citation. On December 21, 2017,
ADD McCullough received an email from Mr. Stine with a letter of contest
attached.
On December 19, 2017, Respondent
filed a notice of contest with the Commission.
In
it, Respondent indicates its intent to contest the citation issued to it
November 1, 2017. The Commission
received the notice of contest December 21, 2017. The notice of contest provided no explanation
for Respondent’s failure to file by November 29, 2107. The Commission docketed the matter December
28, 2017. On April 4, 2018, the
Secretary sought dismissal of Respondent’s late notice of contest. Respondent filed a response in opposition and
motion for relief from the final order under Fed. R. Civ. P. 60(b).
ANALYSIS
The
Secretary’s Motion to Dismiss
Under
§ 10(a) of the Act, after the Secretary has issued a citation to an employer
and notified it by certified mail of the penalty, if any proposed to be
assessed, an employer has “fifteen working days within which to notify the
Secretary that he wishes to contest the citation or proposed assessment of
penalty.” 29 U.S.C. § 659(a). If the Secretary is not notified within this
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.” 29 U.S.C. § 659(a).
The
Secretary contends Respondent’s notice of contest should be dismissed as
untimely. It is undisputed Respondent did
not timely file its notice of contest. The
Secretary served Respondent with the citation by certified mail as required
under § 10(a) of the Act. The Secretary
provided sufficient proof the citation was delivered and signed for at
Respondent’s worksite on November 6, 2017 (Exhs. C
and D to the Secretary’s Motion to Dismiss).
Respondent’s notice of contest was due November 29, 2017. It did not file its notice of contest until
December 19, 2017. As a result of
Respondent’s failure to file a timely notice of contest, the citation issued
pursuant to Inspection 1245972 became a final order of the Commission by
operation of law. 29 U.S.C. §
659(a).
Absent
a showing Respondent is entitled to relief from this final order, the
Commission has no jurisdiction to review the merits of the citation and
proposed penalty assessment. The
Secretary has met his burden to establish the notice of contest should be
dismissed.
Respondent’s Motion for Relief
The
Commission has held an employer may obtain relief from a final order of the
Commission under Fed. R. Civ. P. 60(b). Northwest Conduit Corp., 18 BNA OSHC
1948, 1949 (No. 97-851, 1999). The party
seeking relief under Rule 60(b) has the burden of showing it is entitled to
such relief. NYNEX, 18 BNA OSHC 1967, 1970 (No. 95-1671, 1999). Relief may be granted if the judgment was
entered as a result of “mistake, inadvertence, surprise or excusable
neglect.” Fed. R. Civ. P. 60(b)(1). In addition, the Commission requires a party
seeking relief under Rule 60(b) show it had a meritorious defense that might
have affected the outcome. Northwest Conduit, 18 BNA OSHC at 1949.[2]
Respondent contends its failure to timely file was the
result of excusable neglect. Respondent maintains
the Secretary failed to hold a closing conference and mailed the citation
directly to Respondent, rather than its counsel as requested during the
inspection. This conduct on the part of
the Secretary, Respondent argues, resulted in inadequate notice to it of the
issuance of the citation, excusing its failure to timely file its notice of
contest.[3] Nowhere in its motion does Respondent address
whether it had a meritorious defense. This
deficiency alone merits denial of Respondent’s request for relief from the
Commission’s final order. Assuming arguendo Respondent had established it
had a meritorious defense, Respondent’s other grounds for relief lack merit.
Failure
to Provide Notice
Neither
the failure to hold a closing conference nor the mailing of the citation to
Respondent provide a basis for finding lack of notice. The Secretary’s actions were in conformance
with the Act’s requirements. To the
extent the Secretary failed to follow his own procedures, Respondent has shown
no prejudice as a result of that conduct.
Failure to Hold a Closing Conference
Nothing
in the Act requires the Secretary or his representative to hold a closing
conference. Rather, the requirement is
found in the regulation at 29 C.F.R. § 1903.7(e) which reads:
At the conclusion of an inspection, the
Compliance Safety and Health Officer shall confer with the employer or his
representative and informally advise him of any apparent safety or health
violations disclosed by the inspection.
During such conference, the employer shall be afforded an opportunity to
bring to the attention of the Compliance Safety and Health Officer any
pertinent information regarding conditions in the workplace.
In addressing the failure to hold a closing conference, the
Commission noted the purpose of the procedural regulation is to “promote the
orderly conduct of safety inspections.” Kast Metals Corporation, 5 BNA OSHC
1861, 1862 (No. 76-657, 1977). The
Commission went on to hold
Unless
prejudicial, the relaxation or modification of such a procedural regulation
does not warrant an invalidation of an agency’s action. Moreover, technical and harmless violations
of inspection procedures should not be allowed to deter the Act’s primary
purpose to assure safe and healthful working conditions.
Id. at 1862-63 (citations omitted).
To establish entitlement to relief, the employer must show prejudice as
a result of the failure to hold a closing conference. Id.
at 1863.
Respondent argues failure to hold a
closing conference is inherently prejudicial.
In so arguing, Respondent erroneously relies on
the decision of the ALJ in Kast
Metals. Although finding it harmless
error, the Commission overturned the ALJ on the ground “the record fails to
establish how [the failure to hold a closing conference] specifically
prejudiced the respondent’s case.” Respondent
must show more than the Secretary failed to hold a closing conference, it must
show it suffered prejudice as a result.
There is a
factual dispute regarding whether CSHO Spencer held a closing conference. CSHO Spencer asserts in his affidavit that he
held a closing conference during which he confirmed Respondent’s mailing
address. His affidavit is silent on when
he held the closing conference and what else, if anything, was discussed. Safety Coordinator Harris has no recollection
of a closing conference, but asserts CSHO Spencer told her that he doubted
Respondent was in violation of any OSHA standard. It is not necessary to resolve this factual
dispute, as I find even if no closing conference were held, Respondent has
failed to show prejudice as a result.
Respondent’s
argument is circular. Respondent
contends the evidence of
prejudice to its right to contest within the 15-day period is its
failure to contest within the 15-day period.
Respondent appears to suggest the purpose of the closing conference is
to provide the employer with advance notice of the impending citations.[4] Respondent has provided no authority supporting
this view and Commission precedent would suggest the contrary. See
Kast Metal, 5 BNA OSHC at 1862 (the
purpose of the regulation is to “promote the orderly conduct of safety
inspections.”); and General Dynamics
Corp., Quincy Shipbuilding Div., 6 BNA OSHC 1753, 1758-59 (No. 12212, 1978)
(recognizing the Secretary’s right to continue his inspection after holding a
closing conference during which evidence of additional violations may be
discovered). The regulation should be
read such that it serves the purposes of the Act. So read, the regulation’s direction to the
Secretary to “informally advise” the employer of “apparent safety and health
violations” provides the employer with the opportunity to expeditiously
address, and, if appropriate, correct such violations to ensure a safe work
environment.
Respondent received the notice
of the issuance of a citation required by the Act. Even if the Secretary or his representative’s
failed to hold a closing conference, that failure does not provide ground for
relief.
Failure to Serve Respondent’s Counsel
Although it refers only to the
penalty, the Commission has consistently held § 10(a) of the Act governs
service of citations. B.J. Hughes, Inc., 7 BNA OSHC 1471, 1474
n. 6 (No. 76-2165, 1979). It requires
the Secretary to “notify the employer
by certified mail of the penalty…” (emphasis added). There
is no dispute the Secretary served the employer with the citation by certified
mail. The Secretary has established, and
Respondent does not dispute, the address to which the citation was mailed was
the address of the inspection, the mailing address provided by Respondent’s
representatives during the inspection, and Respondent’s “Principal Office
Address” registered with the Georgia Secretary of State, Corporations
Division. The Secretary has met his
statutory obligation to notify the employer of the citation and proposed
penalty.
Respondent’s
argument the Secretary was obligated under the Rules of Professional
Responsibility of the State of Georgia to contact its counsel is unsupportable.
Respondent cites specifically to Rule
4.2(a) of the Code of Professional Responsibility which prohibits a “lawyer who
is representing a client in a matter” from communicating with a person known to
be represented by “another lawyer in the matter.” Under the
Act, the Secretary is responsible for enforcement of the Act, including issuing
citations. The
Secretary has delegated his authority under the Act to the Assistant Secretary
for Occupational Safety and Health, who heads OSHA. See Order No. 4–2010 (75 FR 55355), as superseded in relevant part by 1–2012 (77 FR 3912). The
Assistant Secretary has delegated his authority to OSHA’s Area Directors to
issue citations and proposed penalties. See
29 C.F.R. §§ 1903.14(a) and 1903.15(a). Neither the Secretary nor his delegates are
lawyers “representing a client.” None
are bound by Georgia’s Code of Professional Responsibility or any other rule or
regulation applicable to lawyers. [5] The Secretary and his delegates are under no
obligation to notify an employer’s counsel in lieu of the employer. Serving counsel in lieu of the employer would
be contrary to a strict reading of the Secretary’s statutory obligations under
the Act.
Having found no
deficiency in the service of the citation, I find no merit to Respondent’s
contention it was not properly notified of the issuance of the citation.
Excusable
Neglect
The determination of excusable
neglect pursuant to Rule 60(b)(1) is an equitable one, taking
into account of all relevant circumstances surrounding Respondent’s
failure to file a timely notice of contest, including the danger of prejudice
to the Secretary, the length of delay and its potential impact on the judicial proceedings,
the reason for the delay and whether Respondent acted in good faith. Pioneer Investment Servs. v. Brunswick
Assoc., 507 U.S. 380, 395 (1993); Secretary of Labor v. Craig
Mechanical, Inc., 16 BNA OSHC 1763 (No. 92-0372, 1994); Merritt Electric
Company, 9 BNA OSHC 2088 (No. 77-3772, 1981); Henry C. Beck Co., 8
BNA OSHC 1395 (No. 11864, 1980).
However, neither a lack of prejudice to the Secretary nor good faith on
the part of Respondent in attempting to comply with the statutory filing
requirement alone will excuse a late filing.
Fitchburg Foundry Inc., 7 BNA OSHC 1516 (Nos.77-520 &
76-1073, 1979). The Commission has held
that whether the reason for the delay was within the control of the Respondent
is a “key factor” in determining the presence of “excusable neglect.” A. W. Ross, Inc., 19 BNA OSHC 1147 (No.
99-0945, 2000).
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 that when the lack of such procedures
results in the untimely filing of a notice of contest, relief under Rule 60(b)
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). Conspicuously absent
from Respondent’s motion is any explanation why the citation was not timely
processed by its personnel.
Rather, Respondent
engages in finger pointing. It argues
its neglect is excusable because it was denied advance notice of the citation and
the right to have counsel served with the citation. For the reasons discussed herein, it is
entitled to neither. Respondent
characterizes both the failure to hold a closing conference and failure to
serve counsel with the citation as “errors” by the Secretary. Even if errors, neither excuses Respondent’s
failure to process its mail. Once the
citation was received by Respondent, it was Respondent’s obligation to ensure
it was handled in a timely manner.
Respondent has the burden to establish it exercised due diligence. In providing no explanation as to how the
citation was processed once in its possession, Respondent has failed to meet
its burden.
Respondent’s
request for relief pursuant to Fed. R. Civ. P. 60(b) is denied.
ORDER
Based
upon the foregoing decision, it is HEREBY
ORDERED that the Secretary’s Motion to Dismiss Respondent’s Late Notice
of Contest is GRANTED. Respondent’s Motion for Relief Under FRCP
60(b) is DENIED.
It is further ORDERED that the notice of contest filed in this case is DISMISSED and the Citation and
Notification of Penalty is AFFIRMED
in all respects.
SO
ORDERED. /s/
Date:
June 6, 2018 Judge Heather A. Joys
1924 Building,
Suite 2R90
100
Alabama Street, S.W.
Atlanta,
Georgia 30303-3104
Phone: (404)
562-1640 Fax: (404) 562-1650