THIS CASE IS NOT A FINAL ORDER OF THE REVIEW COMMISSION AS IT IS PENDING COMMISSION REVIEW

 

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1924 Building - Room 2R90, 100 Alabama Street, S.W.

Atlanta, Georgia 30303-3104

 

 

Secretary of Labor,

 

          Complainant

 

     v.

                    OSHRC Docket No.: 17-0992

Coleman Hammons Construction Co. Inc.,

 

          Respondent.

 

Appearances:  

 

Jeremy K. Fisher, Esq., U.S. Department of Labor, Office of the Solicitor, Atlanta,

            Georgia

For the Secretary

 

            David Goff, Esq., Wise Carter Child & Caraway, P.S.

                        For the Respondent

 

BEFORE:       Administrative Law Judge Heather A. Joys

DECISION AND ORDER

            This matter is before the Occupational Safety and Health Review Commission on the Secretary’s Motion to Dismiss Respondent’s Untimely Notice of Contest pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 (the Act).  Respondent, Coleman Hammons Construction, Inc. (Coleman Hammons), opposes the motion and is seeking relief under Fed. R. Civ. P. 60(b) (Rule 60(b)).  For the reasons that follow, I find Coleman Hammons is not entitled to relief pursuant to Rule 60(b) and GRANT the Secretary’s Motion to Dismiss Respondent’s Untimely Notice of Contest. 

Procedural Background

            The Commission docketed this matter on June 6, 2017, upon receipt of a notice of contest filed by Coleman Hammons that same day.  On August 10, 2017, the Secretary filed his motion to dismiss Coleman Hammons notice of contest on the grounds it was untimely.  Chief Judge Rooney assigned the matter to me.  I issued an order setting the matter for a hearing to be held October 11, 2017, to resolve the jurisdictional issue presented by the Secretary’s motion.

            In my scheduling order I required the parties to file prehearing statements by September 22, 2017.  Those prehearing statements were to include, among other things, each party’s position on:

a.    Whether Respondent was served with the Citation and Notification of Penalty and if so, the date of receipt;

 

b.    Whether the delay in filing was caused by deception on the part of the Secretary or by the failure of the Secretary to follow proper procedures;

 

c.    Whether there is excusable neglect for a late filing;

 

d.    Whether Respondent has a meritorious defense;

 

e.    Whether there is prejudice to the Secretary if relief is granted;

            The Secretary timely filed his prehearing statement.  Coleman Hammons did not.  On October 2, 2017, David Goff filed an entry of appearance notifying the court he recently had been retained by Coleman Hammons to represent it in this matter.  With leave of the court, Coleman Hammons filed its prehearing statement on October 3, 2017.  According to Coleman Hammons’s prehearing statement, it does not dispute that it received the citations.  Nor does it claim the delay in filing was the result of deception on the part of the Secretary or failure of the Secretary to follow proper procedures.

            I held a hearing on October 11, 2017, in Jackson, Mississippi.  The hearing was limited to the Secretary’s motion to dismiss and Coleman Hammons’s request for relief.  At the end of the hearing, the parties gave oral closing arguments.  The parties were given the opportunity to supplement those closing arguments in writing by November 6, 2017.  Coleman Hammons filed a supplementary post hearing brief.  The Secretary did not.

Factual Background

The Secretary Issues the Citations

            On November 15, 2016, Compliance Safety and Health Officer (CSHO) Gervase McCoy of the Jackson, Mississippi, OSHA Area Office observed what he believed to be violations of OSHA’s fall protection standards at a baseball field under construction in Madison, Mississippi (Tr. 14).  He stopped and opened an inspection under a local emphasis program on falls (Tr. 14).  The job involved building baseball fields at Liberty Park (Tr. 61-62). CSHO McCoy had been informed Coleman Hammons was the general contractor for the job and Will Van Dusen was Coleman Hammons’s superintendent on site. He began the inspection by holding an opening conference with Van Dusen (Tr. 14).  He conducted a walk around inspection of the worksite accompanied by Van Dusen.  Upon completion of the walk around inspection, CSHO McCoy attempted to hold a closing conference with Van Dusen, but Van Dusen “stopped [him] short” by saying “just send us the bill.”  (Tr. 15).  Van Dusen then walked off.

            A few days later, CSHO McCoy contacted Van Dusen to request documents.  Van Dusen directed him to Coleman Hammons’s office (Tr. 16).  CSHO McCoy was not able to speak with anyone at Coleman Hammons’s office, but left a message on Coleman Hammons’s office phone (Tr. 17).  Following his inspection, CSHO McCoy recommended citations be issued to Coleman Hammons for the violations he observed (Tr. 17).  He had no further contact with the company (Tr. 19).

            On March 13, 2017, the Secretary issued the Citation recommended by CSHO McCoy to Coleman Hammons (Tr. 24; Exh. C-1).  The Citation was mailed from the Jackson, Mississippi, Area Office via certified mail (Tr. 26).  Along with the Citation, the Secretary sent the company the OSHA 3000 – a pamphlet that contains information on an employer’s rights and responsibilities, including the right to contest citations (Tr. 27; Exh. C-2).  Like the Citation itself, the OSHA 3000 explains an employer must file a notice of contest within 15 working days of receipt of a citation and failure to do so results in the citation becoming a “final order not subject to review by any court or agency.”  (Exh. C-2)  Coleman Hammons received the Citation and the OSHA 3000 on March 15, 2017 (Exh. C-4).

Coleman Hammons Responds to the Citation

            Coleman Hammons is a construction general contractor.  It has 16 full-time employees, most of whom work in the field (Tr. 40).  It was founded 40 years ago, and is owned, by Coleman Hammons (Tr. 41).  His son, Keven Hammons, works for the company as a project manager and is the secretary/treasurer of the corporation (Tr. 41, 46).  Both work in the central office.  Also working in the office are an office manager and Larry Barnett, Coleman Hammons’s controller (Tr. 40-41).  Barnett testified he and the Office Manager handle the clerical work for the company (Tr. 41).[1]

            According to Barnett, mail handling duties typically fall on the Office Manager.  She retrieves the mail from a mail box located in the office’s parking lot, opens, and distributes it (Tr. 42).  Barnett testified the Office Manager “usually gets it to the right place.” (Tr. 49)  It is the company’s practice to distribute mail from OSHA to the superintendent of the job to which it applies (Tr. 43).  This system had worked in the past.  Coleman Hammons had been inspected seven times in the past seven years, receiving citations each time (Tr. 34; Exh. C-7).  For at least three of those inspections, Coleman Hammons had requested and attended informal conferences and entered into informal settlement agreements with the Area Office (Tr. 34).

            On this occasion, the mail carrier brought the Citation into the office to obtain the certified mail return receipt signature (Tr. 43).  Barnett testified although the Office Manager typically sits in the reception area, Kevin Hammons “happened to be there” that day (Tr. 42-43).  Kevin Hammons signed for the package and put the unopened envelope on Leslie Mallette’s desk (Tr. 44).  Mallette was the superintendent for the Liberty Park job.  Van Dusen was covering for Mallette on the day of the inspection because Mallette had been “out sick” that week (Tr. 60).         Although no one in the office opened the envelope to determine its contents, according to Barnett, Kevin Hammons put it on Mallette’s desk because they were aware the Liberty Park job had been inspected by OSHA earlier and assumed “it was something pertaining to that.” (Tr. 47)

            It was common for superintendents with Coleman Hammons to be away from the office for long periods (Tr. 56).  The Liberty Park job had been ongoing and Mallette had not been in the office for several weeks around the time Coleman Hammons received the Citation.  It was not until late April that Mallette had occasion to be in the office (Tr. 56).  It was then he found the unopened envelope containing the Citation “under some other material” on his desk (Tr. 56).  Mallette called the Jackson Area OSHA Office and spoke with Priscilla Jordan, the assistant area director (AAD) of that office the next day (Tr. 57).[2] Mallette explained he had been out of town, had just found the Citation, and was looking for a way to “get the problem resolved.” (Tr. 31, 57)  Mallette could not recall the exact date of the conversation (Tr. 61).  AAD Jordan testified it took place on April 26, 2017 (Tr. 30).  AAD Jordan informed Mallette the period in which to contest the citations had passed and explained how to file a late notice of contest with the Commission (Tr. 31, 58).

            Mallette and Barnett drafted a notice of contest and mailed it to the Jackson Area Office (Exh. C-5).  It was received by the Area Office on May 1, 2017 (Tr. 32; Exh. C-5).[3]  AAD Jordan then contacted Mallette and told him the notice of contest needed to be sent directly to the Commission (Tr. 32).  Coleman Hammons sent another letter, dated May 5, 2017, directly to the Commission (Tr. 33; Exh. C-6).  This letter was signed by Mallette.  It stated the notice of contest was “late because I was out of the office working and only found the information unopened on my desk upon returning to the office.”  (Exh. C-6)   

DISCUSSION

Pursuant to the requirements of the Act, an employer is required to notify the Secretary of its intent to contest a citation within 15 working days of receipt of the citation.  Failure to timely file a notice of contest results in the citation becoming a final order of the Commission by operation of law.  A late notice of contest may be accepted, however, where it is established the delay in filing was due to deception by the Secretary, or where the delay was caused by the Secretary’s failure to follow proper procedures.  A late notice of contest also may be excused under 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 relief under Rule 60(b).

Where, as here, a party is partly to blame for the delayed filing, relief from the final order must be sought under Rule 60(b)(1) and the party’s neglect must be excusable.[4]  Pioneer Investment Servs. v. Brunswick Assoc., 507 U.S. 380, 393 (1993).  The determination of excusable neglect pursuant to Rule 60(b)(1) is an equitable one, taking into account of all relevant circumstances surrounding Coleman Hammons’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 Coleman Hammons acted in good faith.  Pioneer Investment Serv., 507 U.S. at 395; Craig Mechanical, Inc., 16 BNA OSHC 1763 (No. 92-0372, 1994); Merritt Electric Company, 9 BNA OSHC 2088 (No. 77-3772, 1981).  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).

That Coleman Hammons did not contest the Citation within the requisite time period is not disputed.  Coleman Hammons received the Citation on March 15, 2017 (Exh. C-4). Its notice of contest was due April 5, 2017. The record reveals it did not contact OSHA until, April 25, 2017.  Therefore, by operation of law, the Citation and proposed penalty must be deemed a final order of the Commission unless Coleman Hammons can demonstrate it is entitled to relief.  I find it has not.

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).  Based upon the record as a whole, I find the delayed filing was within the control of Coleman Hammons and could have been avoided if it had exercised reasonable diligence.

Coleman Hammons practice was to place any mail from OSHA on the desk of the superintendent for the job to which it presumably applied.  Its procedures did not include notice to the job superintendent that such mail had been received.  Its procedures did not take into account the fact Coleman Hammons’s job superintendents are routinely out of the office and do not check their mail for weeks at a time.  Coleman Hammons admits it thought the mail from OSHA was related to the inspection.  Barnett testified the reason for placing it on Mallette’s desk was because it was assumed to be related to the inspection.  Given its history with OSHA, Coleman Hammons’s office personnel had reason to believe the mail may have contained a citation and knew of the time limit for contesting OSHA citations.  Mallette’s remaining in the field and not coming to the office to check mail was not out of the ordinary, but rather standard practice.  The record contains no evidence of any extraordinary circumstances or intervening event that interfered with or hindered Coleman Hammons’s timely processing of the Citation. I find Coleman Hammons lacked adequate procedures for handling important business mail and its actions constituted simple negligence.

            Coleman Hammons would have me focus, not on the reasons for its failure to meet the statutory deadline, but on the other equitable considerations enumerated in Pioneer.  I agree with Coleman Hammons the Secretary failed to show he has suffered prejudice or the length of the delay was such it would hinder efficient judicial administration of the matter.  The Secretary stipulated Coleman Hammons has a meritorious defense.  The record contains no evidence of bad faith on the part of Coleman Hammons.  As the Commission noted in CalHar Construction, Inc., 

in almost all 60(b) late filing cases before the Commission, it is a given that there is a lack of prejudice to the Secretary or to the interests of efficient judicial administration, combined with a lack of bad faith by the employer.  These 60(b) cases involve neglect, and a determination as to whether that neglect is excusable must focus principally on the reason for the delay, including whether it was within the control of the employer.

18 BNA OSHC 2151, 2153 n. 5 (No. 98-0367, 2000).  When focusing principally on the reason for the delay, taking into consideration the equities that favor it does not tip the scales in Coleman Hammons’s favor.  Coleman Hammons provided no evidence of intervening events or unusual circumstances that interfered with its timely processing of the Citation.  Coleman Hammons followed its standard practice of leaving to the superintendent the handling of citations without ensuring the superintendent received timely notice of their receipt.  As discussed, this standard practice was inadequate given the nature of the work of the company’s superintendents.  Given its history with OSHA, Coleman Hammons was well aware of the time limits for filing notices of contest.  The undisputed evidence regarding Coleman Hammons’s handling of the citation establishes the company was exclusively to blame for the failure to timely file its notice of contest.  Coleman Hammons has not met its burden to show it is entitled to relief.

            In summary, Coleman Hammons has failed to meet its burden to establish it timely filed a notice of contest; nor has it met its burden to establish it exercised reasonable diligence.  Therefore, I find Coleman Hammons has not established entitlement to relief under Rule 60(b).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

            The foregoing decision constitutes the findings of fact and conclusion of law in accordance with Rule 52(a) of the Federal Rules of Civil Procedure.

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.

            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/                                            

                                                                                                Judge Heather A. Joys

            Date: January 8, 2018                                                 1924 Building, Suite 2R90

                                                                                                                                100 Alabama Street, S.W.

                                                                                                                                Atlanta, Georgia 30303-3104

                                                                                                                                Phone:  (404) 562-1640   Fax:  (404) 562-1650


[1] The Office Manager did not testify.

[2] Jordan testified Mallette had left a message the day prior to this conversation and she returned his call (Tr. 30).  Otherwise, the two witnesses did not dispute the date upon which their conversation took place, the substance of that conversation, nor that Mallette initiated the contact.  The factual dispute regarding who called whom is not material and need not be resolved.

[3] Curiously, this letter is dated April 21, 2017, before the date on which Mallette spoke with Jordan.  Barnett, who signed the letter, testified April 21, 2017, was the day the letter was mailed (Tr. 49).  The letter makes no mention of being untimely, as the letter sent directly to the Commission.  The fact the letter was sent prior to Mallette’s phone conversation with Jordan suggests Mallette’s testimony he acted with all dispatch upon finding the unopened envelope from OSHA less credible.  Even if sent on April 21, the notice of contest would have been untimely.  Although the Secretary brought up this inconsistency on cross examination, he did not dwell on the point and made no mention of it in closing arguments.  Given the date on which the letter was received, it seems more likely the date is incorrect and the testimony about it the result of faulty memory.

[4] Coleman Hammons does not contend its failure to timely contest the citations was the result of deception on the part of the Secretary or the Secretary’s failure to follow proper procedures.