Avon Contractors, Inc.

Plain-English summary

Avon Contractors filed its notice contesting OSHA citations after the statutory deadline. The Third Circuit held that the late filing resulted from excusable neglect, vacated the Commission order dismissing the contest, and directed that the citations be heard on their merits. The Commission therefore remanded the case to the chief administrative law judge for further proceedings consistent with the court's opinion.

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: A late notice of contest may proceed when a reviewing court finds excusable neglect under Federal Rule of Civil Procedure 60(b)(1).

Full text (OSHRC public release)

Avon Contractors, Inc., Docket No. 02-0772

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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.

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). 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.