George Harms Construction Co., Inc.

Plain-English summary

George Harms Construction filed its notice contesting OSHA citations after the statutory deadline. The Third Circuit found excusable neglect, vacated the Commission order dismissing the contest, and reaffirmed that the Commission may grant relief from a late filing under Federal Rule of Civil Procedure 60(b)(1). The Commission remanded the case to the chief administrative law judge for a hearing on the merits of the citations.

Decision snapshot

• Cited standard(s): None specified in this late-filing remand.
• Outcome: The case was remanded for a hearing on the merits of the OSHA citations.
• Key point: The Commission may hear a late notice of contest when the employer establishes excusable neglect under Rule 60(b)(1).

Full text (OSHRC public release)

George Harms Construction Co., Inc., Docket No. 02-0371

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SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No. 02-0371

GEORGE HARMS CONSTRUCTION CO., INC.,

Respondent.

REMAND ORDER

This
case is before the Commission on remand from the United States Court of Appeals
for the Third Circuit. George Harms Construction Co., Inc. v. Chao, 371
F.3d 156 (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
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 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.

OSHRC Docket No. 02-0371

GEORGE HARMS CONSTRUCTION CO, INC.,

Respondent.

APPEARANCES:

Terence Duncan,
Esq.                                                 John
F. Neary, Esq.

Office of the
Solicitor                                                 Connell
Foley, LLP

U.S. Department of
Labor                                          Roseland,
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 proposed penalty (“citation”) arose from an inspection
OSHA conducted from November 29, 2001 through December 11, 2001, at a work site
of Respondent George Harms Construction Co., Inc., (“Harms”) in Clifton, New
Jersey. OSHA sent the citation to Harms’ post office address, by certified
mail, return receipt requested, on December 13, 2001 and Harms received it on
or before December 31, 2001. (Exh. C-1). Harms did not file an NOC, and the citation became a final order of
the Commission by operation of law on January 22, 2002. See section
10(a) of the Act.

On
February 28, 2002, OSHA mailed to Harms a debt collection notice. On March 8,
2002, Edward Nyland, Harms’ President, called OSHA, spoke with Assistant Area
Director (“AAD”) Steve Kaplan, and informed him that he had no record of the
citation. Also on March 8 th , Mr. Nyland mailed a letter to the
Commission that essentially requested that Harms be permitted to file an NOC
out of time; the reason given for the failure to file a timely NOC was
“clerical error.” (Tr. 11, 66-68, 84-85, Exhs. C-2, C-5, R-2).

The
case was docketed at the Commission, and, on April 1, 2002, the Secretary filed
a motion for an extension of time to file her complaint. Three weeks later, on April 23, 2002, the Secretary filed a motion to
dismiss the proffered NOC as untimely. Harms cross-moved for permission to file
an NOC nunc pro tunc and to compel the Secretary to file a complaint. A
hearing on the timeliness of Harms’ NOC was conducted, and both parties have
filed post-hearing briefs.

In
its brief, Harms requests that the untimely filing of the NOC be excused under
Federal Rule of Civil Procedure 60(b)(1)&(6). Harms also asserts that the
Secretary’s motion to dismiss was untimely, that the Secretary waived her right
to object to the NOC when she filed her motion for an extension of time to file
her complaint, and that the late filing of the NOC should be excused because
the citation was not addressed to Mr. Nyland.

DISCUSSION

It
is clear that Respondent did not file a timely notice of contest. 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).

Here,
Harms presented evidence that it had specific procedures for the handling of
mail and the delivery of important documents. Mr. Nyland also testified that
when he works at a site and is therefore out of the office, as he was in
December, 2001, his mail is forwarded to him on a daily basis, and that he has
never had a problem receiving his mail. The evidence also showed that Mr.
Nyland acted quickly and in good faith promptly upon discovering the fact of
the citation. (Tr. 73-77, 97-98, 103-104, Exhs. C-2, C-5, C-3). Also, because
the Secretary proceeded to litigate the matter by serving a motion to extend
her time to file her complaint, I find that the late NOC caused her no
prejudice.

When
determining whether a party’s neglect may be excused under Rule 60(b)(1),
however, the Commission considers a key factor to be whether the delay was
within the reasonable control of the employer. CalHar Constr. Inc., 18
BNA OSHC 2151, 2153 (No. 98-0367, 2000). It is on this issue that Harms’ proof
falls short because C. Pelsing, the Harms employee who signed for the citation,
did not testify. In addition to being the only Harms employee known to have had
possession of the citation at any time before its disappearance, Ms. Pelsing
was also the employee at the company responsible for retrieving the mail at the
post office, accepting certified documents, and date-stamping and distributing
the mail. She, therefore, would have personal knowledge relating to whether
office procedures were followed and what may have happened to the certified
document she signed for in December. Moreover, Mr. Nyland was able to testify
only that he had had no prior problems receiving his mail, and that he was
unaware of any other mail delivery issues within the company. (Tr. 73-81, 84,
94-98). By virtue of her position, Ms. Pelsing would know better whether other
Harms employees had had previous problems receiving mail under the office’s
procedures then in effect. There was no indication that Ms. Pelsing is no
longer employed by the company and no reason for her absence from the hearing
was given. Without her testimony, I cannot make a determination that the
failure to file a timely NOC was not within the company’s control and I am
accordingly constrained to conclude that Harms failed to show that its neglect
should be excused.

With
respect to Harms’ request for relief under Rule 60(b)(6), the record is devoid
of evidence that an illness, absence, disability or similar occurrence,
traditionally relied on by courts as a basis for relief under that section,
caused the company to miss the filing deadline. See Branciforte Builders,
Inc. , 9 BNA OSHC 2113, 2117 (No. 80-1920, 1981). Nor am I persuaded by
Respondent that the Secretary’s motion to extend her time to serve a complaint
satisfied this section’s requirements, as that motion was made after the
contest period had expired.

As
is indicated above, Harms also argues that: (1) the late filing should be
excused because the Secretary did not address the citation to Mr. Nyland; (2)
the Secretary waived her right to seek dismissal when she filed her motion to
extend her time to serve a complaint; and (3) the Secretary’s motion to dismiss
was untimely. Harms’ argument relating to the Secretary’s failure to address
the citation to Mr. Nyland is denied because neither the Act nor principles of
due process require OSHA to direct a citation to a specific individual within
the company, even when there is proof that an express request to do so was made
at the closing conference. Nynex , 18 BNA OSHC, 1944 (No. 95-1671, 1999).
Nor, in this case, could such a failure be deemed a basis for Rule 60(b)
relief. Harms did not expressly request that the citation be forward to Mr.
Nyland; at best there was some proof that other OSHA matters had been handled
by him and that the debt collection notice contained the salutation, “Dear Mr.
Nyland,” and I find this proof insufficient to establish that the Secretary
failed to follow proper procedures. Further, there was no causal connection
between OSHA’s failure to so address the citation and Harms’ delay in filing
the NOC because Ms. Pelsing was under instructions to give all mail concerning
OSHA matters to Mr. Nyland regardless of whether it had his name on it. (Tr.
34-35, 75-77, 94, 101-102, Exhs. C-1&2, R-3, 5 & 6).

Harms
arguments with respect to (2) and (3) are not completely without merit; the
Secretary’s motion for dismissal was served more than five weeks after the late
NOC and the matter was clearly in the appropriate hands at the Department of
Labor, as the Secretary’s first action was to seek an extension of time to
serve a complaint. However, as is discussed above, once Harms failed to file a
timely NOC, the citation became a final order of the Commission by operation
of law . See Section 10(a) of the Act. Moreover, because the
Secretary’s application raises questions relating to the Commission’s
jurisdiction to hear the merits of the case, the Secretary could not waive her
right to seek dismissal, and her motion therefore could have been filed at any
time. See Fed. R. Civ. P. 12 (h)(3). Accordingly, Respondent’s arguments on these issues are also rejected.

In
light of the above, I conclude that the citation was properly served, that
Harms did not file a timely NOC, and that Harms is not entitled to relief
pursuant to Rule 60(b). The Secretary’s motion to dismiss is accordingly
GRANTED, Respondent’s cross-motion is DENIED, and the citation is AFFIRMED in
all respects.

So
ORDERED.

/s/ 

IRVING
SOMMER

Chief
Judge

Date: February 3, 2003

Washington,
D.C.