P & A CONSTRUCTION COMPANY, INC.
OSHRC Docket No. 80-3848
Occupational Safety and Health Review Commission
November 17, 1981
[*1]
Before ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.
COUNSEL:
Office of the Solicitor, USDOL
Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor
Richard M. Salsburg, for the employer
OPINION:
DECISION
BY THE COMMISSION:
A decision of Administrative Law Judge Jerome C. Ditore is before the Commission pursuant to section 12(j), 29 U.S.C. § 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. § § 651-678 ("the Act"). Judge Ditore dismissed P & A Construction Company's ("the Respondent") notice of contest, holding that it was untimely filed and that the resulting final order n1 could not be set aside because the Respondent did not show that deception or improper action by the Secretary of Labor ("the Secretary") caused the late filing.
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n1 Section 10(a) of the Act, 29 U.S.C. § 659(a), states that "[i]f, within fifteen working days from the receipt of [the notification of proposed penalty] . . . issued by the Secretary [of Labor] 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."
[*2]
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The Respondent argued to the judge that the final order should be set aside under Federal Rule of Civil Procedure ("Federal Rule") 60(b)(1) or (6) n2 which state that a court may grant relief from a final order for "(1) mistake, inadvertence, surprise, or excusable neglect; . . . or (6) any other reason justifying relief from the operation of the judgment." The judge held that Federal Rule 60(b) applies to Commission proceedings but that its application is limited to the Secretary's deception or improper action where a final order resulting from an untimely filed notice of contest is concerned.
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n2 Commission proceedings are governed by the Federal Rules of Civil Procedure unless the Commission has adopted a different rule. Section 12(g) of the Act, 29 U.S.C. § 661(f); Commission Rule 2(b), 29 C.F.R. § 2200.2(b).
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Subsequent to the judge's decision, the Commission held, in Branciforte Builders, Inc., 81 OSAHRC 80/A5, 9 BNA OSHC 2113, [*3] 1981 CCH OSHD P25,591 (No. 80-1920, 1981), that a final order resulting from an untimely filed notice of contest may be set aside "under the terms" of Federal Rule 60(b). Accordingly, in this case, we have considered the evidence and Respondent's arguments under Federal Rule 60(b) n3 and we conclude that the Respondent has shown circumstances justifying relief under this rule.
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n3 In Branciforte Builders, Inc., supra, the Commission remanded for further evidence because, at the time of the hearing in that case, the Commission had held Federal Rule 60(b) inapplicable to untimely notices of contest, see Plessey, Inc., 74 OSAHRC 77/C1, 2 BNA OSHC 1302, 1974-75 CCH OSHD P18,907 (No. 946, 1974), and therefore the evidence bearing on relief under Federal Rule 60(b) was scant. However, in this case, the record with respect to the rule's application is complete, the Respondent having relied on Federal Rule 60(b) before the judge. Accordingly, a remand for further evidence is unnecessary and we have ruled on the Respondent's motion on the basis of the existing record.
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The Respondent received the citations and notifications of proposed penalty n4 on May 22, 1980 and was required to file a notice of contest by June 13, 1980. According to affidavits filed by the Respondent, Mr. Salsburg, the Respondent's attorney, dictated a notice of contest to a secretary, Ms. Brosniak, on June 2, 1980. According to Ms. Brosniak's affidavit, she was employed by Mr. Salsburg's firm but had not worked with Mr. Salsburg before the week of June 2, 1980, when she was assigned to perform secretarial work for him while his regular secretary was on vacation. On June 3, 1980, Mr. Salsburg went out of town for the rest of the week and, during that time, he contacted the office on a daily basis to review all matters. When he contacted Ms. Brosniak on June 3, 1980, she told him that the notice of contest had been mailed. In fact, however, it had not been. According to Ms. Brosniak's affidavit, she "merged the dictation into another matter and inadvertently omitted" the dictated notice of contest. This was not discovered until around June 24, 1980 when the Respondent had received a request for payment of [*5] the penalties.
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n4 Two citations were issued but only one was contested by the Respondent. This citation alleged that the Respondent willfully violated 29 C.F.R. § 1926.602(a)(9)(ii), which requires that earthmoving equipment or compacting equipment with an obstructed view to the rear either be equipped with a reverse signal alarm or be backed-up only when an employee signals it is safe to do so. The Secretary proposed a penalty of $960. The Respondent alleges, in seeking to have the final order set aside, that it can prove a defense to the citation.
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The Respondent's attorney intended to file a notice of contest and made a good faith effort to do so. Counsel promptly filed a notice of contest upon learning that the original contest had not been filed. The affidavits indicate that the original notice was not timely filed as a result of "mistake, inadvertence, . . . or excusable neglect" within the meaning of Federal Rule 60(b)(1). See Caruso v. Drake Motor Lines, Inc., 78 F.R.D. 586 (E.D. Pa. 1978); Standard [*6] Grate Bar Co. v. Defense Plant Corp., 3 F.R.D. 371 (M.D. Pa. 1944); Weller v. Socony Vacuum Oil Co. of New York, 2 F.R.D. 158 (S.D.N.Y. 1941). Moreover, the Respondent alleges that a defense can be proven. Accordingly, the Respondent qualifies for relief from the final order. See Marshall v. Monroe & Sons, Inc., 615 F.2d 1156 (6th Cir. 1980).
Accordingly, we reverse the judge's decision denying relief from the final order and we remand for further proceedings consistent with this decision. SO ORDERED.