Taj Mahal Contracting/Gen Construction Co.

Plain-English summary

OSHA issued construction citations with $9,300 in proposed penalties to Taj Mahal Contracting, which filed its notice of contest three days late. The owner claimed that OSHA had cited the wrong company and that his sole proprietorship had no employees. The Commission agreed with the judge that the late filing was not excusable because the owner had been advised of the deadline and offered only a lack of diligence. But the Secretary's evidence identifying the company at the site was largely hearsay, and the judge had not made an explicit credibility finding about the owner's testimony. The Commission remanded for direct evidence from the inspecting officer and findings on employer identity and jurisdiction.

Decision snapshot

• Cited standard(s): None specified in this jurisdictional and late-filing order.
• Outcome: The denial of excusable-neglect relief was affirmed, but the case was remanded to decide employer identity and jurisdiction.
• Key point: Even when a notice of contest is inexcusably late, the Secretary must establish jurisdiction if credible evidence raises doubt that the cited business was the employer at the inspected site.

Full text (OSHRC public release)

Taj Mahal Contracting/Gen Construction CO, Docket No. 03-1088

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X-NONE
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SECRETARY OF LABOR,

Complainant,

v. 

OSHRC DOCKET NO. 03-1088

TAJ MAHAL CONTRACTING/

GEN CONSTRUCTION CO.,

Respondent.

REMAND ORDER

Before the Commission is a decision of Chief
Administrative Law Judge Irving Sommer granting the Secretary’s motion to
dismiss respondent’s late filed Notice of Contest (“NOC”) and denying
respondent’s motion to reopen the matter pursuant to Federal Rule of Civil
Procedure (“FRCP”) 60(b)(1) on the basis of “excusable neglect.” Based on a review of the hearing
transcript, together with documents in the record, we remand for further
proceedings consistent with this Order.

The Occupational Safety and Health Administration
(“OSHA”) inspected a worksite located in New York City on April 1, 2003. During
his inspection, the compliance officer (“CO”) spoke with Supiquel Islam, who
identified himself as the employer at the site and the president of Taj Mahal
Construction Company. As a result of that inspection, OSHA issued, on April 14,
2003, to Taj Mahal Construction Company a citation alleging various violations
of the OSHA construction standards with a proposed penalty of $9,300. It was
sent by certified mail to the attention of Mr. Islam at the business address
the CO was given at the worksite. On April 21, 2003, the citation was delivered
and was signed for by Mohammed Akkas, the owner of Taj Mahal Contracting / Gen
Construction Co. (“Respondent”).

On May 1, 2003, Mr. Akkas called the OSHA area office
and spoke to the assistant area director (“AAD”), Antonio Pietroluongo. Mr.
Akkas told the AAD that he had never worked at the inspected worksite, that the
name and company shown on the citation were not his, and that he was unaware
who had worked at the site. The AAD claims that he advised Mr. Akkas
to come to his office and bring documentation substantiating his claim, and
that he was still within the 15 working day contest period. (Tr. 13-15, 26, 28,
46-48) However, Mr. Akkas claims that he was told only to provide his social
security number, that nothing else was required, and that he did not need to go
to their office. (Tr. 39-43) After the AAD discussed with Mr. Akkas his claim
that he was not at the cited worksite, the AAD sent a CO (it is unclear if it
was the same CO that conducted the original inspection) back to the worksite to
speak with the manager of the building where the work took place. The AAD
stated that the manager of the building told that CO that there was “no
contract” with the company that performed the work and that they were paid in
cash. (Tr. 28) Mr. Akkas subsequently filed a NOC on May 15, 2003, three days
late, where he repeated his claim. OSHA notified Mr. Akkas that he was late,
and Mr. Akkas followed OSHA’s instruction to file his NOC with the Commission.

Thereafter, the judge held two hearings in this
matter on the issue of the Secretary’s motion to dismiss the NOC as being
untimely. The first hearing, on January 21, 2004, was held in abeyance when Mr.
Akkas agreed that he would provide documents to the AAD that would prove his
claim. According to Respondent’s February 2, 2004 letter to the AAD, it
provided copies of bank statements and other documents. The letter also states
that “Mr. Akkas has no employees, and any work not performed by Mr. Akkas is
subcontracted.” Mr. Akkas also testified at the reconvened hearing held on
February 26, 2004, that he does not have any employees. (Tr. 37) The AAD
claimed at that hearing that the documents they received were not useful. (Tr.
48-50) On May 25, 2004, the judge issued his decision and order granting the
Secretary’s motion to dismiss the NOC as untimely and denying Respondent’s
request for FRCP 60(b) relief. The judge found that Mr. Akkas failed to
demonstrate either that he was mistakenly cited as the employer at the site, or
that his failure to file a timely NOC was the result of excusable neglect.

Turning first to the issue of excusable neglect, we
affirm the judge’s conclusion that Respondent failed to demonstrate that he was
entitled to relief under Rule 60(b)(1). After receiving the citation,
Respondent’s owner telephoned the OSHA area office within the 15-day working
day period, claiming that his company was being mistakenly cited. During the
telephone conference, an OSHA official invited him to come to the office and to
bring any documentation that could establish that his company was not present
at the cited worksite. The official also reminded Akkas of the necessity of
filing a timely NOC, which was not the first instance in which Akkas was
advised about filing a timely NOC. Accompanying the citation itself was an
informational booklet (OSHA 3000-09R (2003)) explaining an employer’s rights
and responsibilities following an OSHA inspection, including the contest
procedure. Yet, Akkas failed to file before the deadline, and instead offered
vague (he was ill) and sundry excuses (he was new in business, had never been
cited by OSHA before, and did not know anything about OSHA) that pointed to no
more than a lack of diligence in handling his business affairs. Under our
precedents, Respondent’s neglect was not excusable . See, e.g., Villa
Marina Yacht Harbor, Inc. , 19 BNA OSHC 2185, 2002 CCH OSHD ¶ 32,620 (No.
01-0830, 2003).

While we think the judge properly ruled against the
Respondent on the Rule 60(b)(1) issue, his resolution of the preliminary issue
– whether this is a case of mistaken identity – gives us pause not so much for
what he did resolve but for what the judge did not address. As reflected in the
procedural posture of the case below, the judge considered the
misidentification issue in connection with whether the record supported the jurisdictional
basis of the citation and its status as a final order of the Commission. Under
section 10(a) of the Act, a citation is as a matter of law deemed a final order
of the Commission in the absence of a timely filed NOC. However, this does not
place the citation completely beyond review. Thus, where an untimely NOC is
docketed, under Commission practice it is incumbent upon the Secretary to file
a motion to dismiss the NOC as untimely, and at the hearing, as was the case
here, the judge places the initial burden on the Secretary to establish the
grounds for dismissal of the NOC: namely, the citation was issued and served
upon the respondent, and that the Secretary did not receive any NOC from the
respondent within 15 working days after receipt of the citation. This is
normally sufficient to uphold the citation as a final order in the absence of
allegations or evidence putting jurisdiction into question.

The record shows that (1) during an inspection on
April 1, 2003, an OSHA CO obtained the name and address of a purported employer
who was allegedly committing certain violations of OSHA construction standards
at the jobsite; (2) the employer named in the citation closely, if not exactly,
matched the Respondent’s business name (Taj Mahal Construction Co. versus
Taj Mahal Contracting / Gen Construction Co.); (3) the street address on the
citation closely, if not exactly, matched the Respondent’s business address
(1311 Newkirk Ave., Brooklyn, NY 11226 versus 1311-15 Newkirk Ave.,
Brooklyn, NY 11230); (4) OSHA issued a citation on April 14, 2003, and
effectuated personal service of the citation on the Respondent by certified
mail addressed to 1311 Newkirk Ave., Brooklyn, NY 11226, on April 21, 2003; (5)
the CO also obtained at the jobsite (and recorded on an OSHA 1 form) the fax
number of the Respondent, which the AAD successfully utilized to send the
Respondent an abatement letter; and (6) the NOC was not filed by the May 12,
2003, deadline. This evidence is sufficient to demonstrate that the citation
was issued and properly served on the Respondent and that a timely NOC was not
filed. It also could permit, in the absence of contrary evidence, an inference
that the Respondent was the putative employer witnessed at the jobsite.

However, the difficulty with the Secretary’s evidence
is that it was in critical part based on the hearsay testimony of the AAD, Mr.
Pietroluongo. Rather than produce the investigating CO as a witness, the
Secretary’s counsel called the AAD as her principal witness, who was permitted
to state what the CO supposedly saw and did at the jobsite during the initial
inspection, including how he identified the Respondent. (Tr. 13) The AAD also
was permitted to give double hearsay testimony as to what the CO supposedly
learned from an unidentified building manager upon a return visit to the
jobsite to investigate the claim of mistaken identity. (Tr. 28-30)

Further complicating the hearsay problem is the
testimony of Akkas, who claimed that he owned and operated the Respondent as a
sole proprietorship and that he did not have any employees. (Tr. 37) He in
effect asserted that his company could not have been present at the jobsite
because he had no employees nor was he there himself. This assertion was raised
not only at the trial, but was suggested prior to the second day of hearings by
the Respondent’s hearing representative in a letter dated February 2, 2004, to
the OSHA area office. It was reiterated in the representative’s post-hearing
letter, dated March 31, 2004, to the judge. The judge neither explicitly
credited nor explicitly discredited Mr. Akkas’ testimony on this point;
interestingly though, in the context of discussing whether excusable neglect
was shown, the judge stated that, as one of Mr. Akkas’ reasons for filing late,
“he also testified that his company was very small, having no employees
but himself.” (ALJD at 4)(emphasis added)

If Mr. Akkas’ testimony were true, it would, of
course, rebut the Secretary’s contention that the Respondent was correctly
cited as the employer at the jobsite. And, just as significantly, it would
raise doubts about jurisdiction over the Respondent. For section 3(5) of the
Act, 29 USC § 652(5), defines an employer as “a person engaged in a business
affecting commerce who has employees,” and our caselaw recognizes that if a
business does not have employees, jurisdiction is absent. Hudson Wood
Recycling, Inc. , 17 BNA OSHC 1638, 1996 CCH OSHD ¶ 31,069 (No. 95-1767,
1996). See also Don Davis , 19 BNA OSHC 1477, 2001 CCH OSHD ¶
32,402 (No. 96-1378, 2001)(a sole proprietor not covered under Act because he
did not exercise sufficient control over at least one worker at jobsite to be
an “employer”). Furthermore, other relevant authorities teach that a party
seeking to invoke the jurisdiction of a federal tribunal has the burden of
proving that jurisdiction exists by a preponderance of evidence. See 5B
C. Wright & A. Miller, Federal Practice and Procedure, §1350, p.
160, n.47; 211, n.63 (3d ed. 2004), citing, e.g., Moser v. Pollin ,
294 F.3d 335 (2d Cir. 2002). See also EEOC v. St. Francis Xavier
Parochial Sch. , 928 F. Supp. 29 (D.D.C. 1996)(EEOC as plaintiff in ADA
action had burden of proving subject matter jurisdiction), rev’d on other
grounds , 117 F.3d 621 (D.C. Cir 1997). And a court may sua sponte
raise the issue of lack of jurisdiction (and indeed is under an independent
obligation to do so) when the matter comes to the attention of the court during
the course of proceedings. See 5B C. Wright & A. Miller, Federal
Practice and Procedure, §1350, p.120 n.25 (3d ed. 2004), citing, e.g.,
Columbia Gas of Pennsylvania, Inc. v. Marshall , 636 F.2d 913, 918 (3d
Cir. 1980)(issue of OSHA subject matter jurisdiction can be raised by court sua
sponte ). Accord , Members for a Better Union v. Bevona , 152
F.3d 58, 61 (2d Cir. 1998)(“Even if the parties do not directly address the
jurisdictional issue, we do so sua sponte whenever it appears that jurisdiction
may be lacking.”); Mennen Co. v. Atlantic Mut. Ins. Co. , 147 F.3d 287,
293-94 (3d Cir. 1998), citing FRCP 12(h)(3)(“Whenever it appears by
suggestion of the parties or otherwise that the court lacks jurisdiction of the
subject matter, the court shall dismiss the action.”).

Measured against these authorities, we conclude that
under the unique circumstances of this case, where the record raises doubts
over jurisdiction and over the identity of the employer witnessed at the
jobsite, the judge sua sponte should have required that the Secretary,
who bore the ultimate burden of proof as to jurisdiction, provide direct
relevant evidence through the testimony of the CO who conducted the inspection
at the jobsite. See Fed.R.Evid. 602 (“A witness may not testify to a
matter unless evidence is introduced sufficient to support a finding that the
witness had personal knowledge of the matter.”). The CO’s testimony is
especially critical here, since it is relevant to whether the Respondent had a
presence at the jobsite and whether it was a covered employer; the CO allegedly
met and interviewed Supiuel Islam, who supposedly identified himself as the president
of the Respondent. In addition, because Mr. Akkas’ testimony directly touched
on factual matters relevant to jurisdiction, including whether he had employees
in his business, we think it was incumbent upon the judge to make an explicit
finding as to the credibility of his testimony.

Therefore, we conclude that the appropriate relief ( see
section 10(c) of the Act) here is to remand the case for the limited purposes
of directing the judge to make a further determination as to credibility of the
Respondent’s owner and of affording the Secretary the opportunity to offer
evidence through the testimony of the investigating compliance officer who had
personal knowledge as to circumstances witnessed at the jobsite that relate to
jurisdiction over the Respondent. Consistent with the Commission’s approach in Hudson
Wood Recycling , supra , if the judge finds upon further consideration
of the evidence that jurisdiction exists, then the citation items will be
affirmed in view of the Respondent’s failure to establish that its untimely NOC
was the result of excusable neglect.

SO ORDERED

/s/

W.
Scott Railton

Chairman

/s/

Thomasina
V. Rogers

Commissioner

/s/

James
M. Stephens

Dated : October 25,
2004                                                                       Commissioner

SECRETARY OF LABOR,

Complainant,

v. 

OSHRC DOCKET NO. 03-1088

TAJ MAHAL CONTRACTING/

GEN CONSTRUCTION CO.,

Respondent.

Appearances:

Jennifer
Marciano,
Esquire                            Keith
Dague

U.S.
Department of
Labor                              U.S.
Compliance Systems

New
York, New
York                                    Tallmadge,
Ohio

For
the
Complainant.                                      For
the Respondent.

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(c) of the Occupational Safety and Health Act of 1970, 29
U.S.C. § 651 et seq . (“the Act”), in order to determine whether the
Secretary’s motion to dismiss Respondent’s notice of contest (“NOC”) as
untimely should be granted. A hearing in this regard was held on January 21,
2004 and February 26, 2004, in New York, New York. Both parties have filed
post-hearing submissions.

Background

The Occupational Safety
and Health Administration (“OSHA”) inspected a work site located on Haven
Avenue in New York, New York on April 1, 2003. During his inspection, the OSHA
compliance officer (“CO”) saw employees working at the site, and he also saw a
number of conditions that he determined were in violation of OSHA’s
construction standards. The CO spoke with Supiquel Islam, who identified
himself as the employer at the site and the president of Taj Mahal Construction
Company (“Taj Mahal”). As a result of the inspection, OSHA on April 14, 2003
issued a Citation and Notification of Penalty (“Citation”) alleging various
violations of the OSHA construction standards; the Citation was sent by
certified mail to Mr. Islam’s attention at the business address the CO had been
given. On April 21, 2003, the Citation was delivered and “M. Akkas” signed
for it. On May 1, 2003, Mohammed Akkas called the OSHA area office and spoke to
Antonio Pietroluongo, the assistant area director (“AAD”). Mr. Akkas told the
AAD that he had never worked at the Haven Avenue site, that the name and
company shown on the Citation were not his, and that he was unaware of who had
worked at the site. The AAD advised Mr. Akkas to come to his office and bring
any documentation that would substantiate his claim and that he would look into
the matter. The AAD also advised Mr. Akkas of the 15-day filing requirement for
submitting an NOC and told him he was still within the 15-day contest period.
Despite the advice of the AAD, Mr. Akkas neither went to the OSHA office to
present documentation nor filed an NOC by the required date of May 12, 2003;
however, he did file an NOC letter with the OSHA area office on May 15, 2003,
in which he repeated his claim that he did not work at the subject site and had
no connection with Mr. Islam or Taj Mahal. The OSHA area office wrote to Mr.
Akkas on June 3, 2003, and informed him that because his NOC had not been filed
within the required 15 days, he should send an NOC to the Commission. On June
16, 2003, Mr. Akkas sent another NOC letter to the Commission; in that letter,
he reiterated that he had no connection with the work site or Mr. Islam, and he
also stated that the NOC he had sent to OSHA had been tardy due to illness. The Secretary filed her motion to dismiss the NOC on August 29, 2003.
(Tr. 4-15; 26-28, 33; C-1, C-3-5).

Whether
Respondent was Wrongfully Cited

Respondent contends that
it was wrongfully cited in this matter. As set out above, Mr. Akkas did not go
to the OSHA area office to present documentation, as the AAD had advised. At
the hearing on January 21, 2004, Mr. Akkas stated that he had not gone as he
had been sick; he also indicated that he had had the documents to prove his
claim. (Tr. 15-16). I therefore held the hearing in abeyance and instructed Mr.
Akkas to provide the AAD with everything he requested in order to resolve this
matter. (Tr. 16-19). On February 2, 2004, Mr. Akkas provided documentation to
the AAD through his representative. However, the AAD testified at the
reconvened hearing on February 26, 2004, that he had not been given what he had
requested. (Tr. 48-50).

In addition to the
foregoing, there is other evidence in the record that is not supportive of
Respondent’s claim. For example, I have noted the similar names of the two
businesses involved in this matter and the fact that, although their zip codes
are different, their street addresses are the same. I have also noted the AAD’s
testimony that OSHA faxed an abatement letter to the fax number the CO had
obtained during the inspection and that the receipt of that fax prompted Mr.
Akkas to call on May 1, 2003. (Tr. 25-26, 32). Finally, I have noted that Mr.
Akkas indicated at the hearing on January 21, 2004, that the AAD on May 1, 2003
had asked him for his social security number and that he believed, but was not sure,
that he had given the AAD that number; at the hearing on February 26, 2004,
however, Mr. Akkas was positive he had given his social security number to the
AAD on May 1, 2003 and that that was the only thing the AAD had requested. (Tr.
15-16, 39-44). The AAD, on the other hand, was adamant that he never requested
social security numbers in his position with OSHA and that he would never
accept a social security number as a means of deleting a citation; he was also
adamant that he had asked Mr. Akkas to bring in documentation that would prove
that the cited business was not Mr. Akkas’ company. (Tr. 46-48, 51). Based on
the evidence, Respondent has not shown that it was wrongfully cited.

Whether
Respondent is Entitled to Rule 60(b) Relief

Section 10(a) of the Act
requires an employer to notify the Secretary of the intent to contest a
citation within 15 working days of receipt, and the failure to file a timely
NOC results in the citation becoming a final order of the Commission by
operation of law. As noted above, and based on the date that it received the
Citation, Respondent was required to file its NOC in this case by May 12, 2003.
The record plainly shows that Respondent did not file its NOC by that date.
However, an otherwise untimely NOC may be accepted if the delay in filing was
caused by deception on the part of the Secretary or her failure to follow
proper procedures. A late filing may also be excused, pursuant to Federal Rule
of Civil Procedure 60(b) (“Rule 60(b)”), if the final order was entered as a
result of “mistake, inadvertence, surprise or excusable neglect” or “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). It is the employer’s burden to establish that it is entitled to
Rule 60(b) relief.

There is no evidence
that the late filing in this case was due to deception on the Secretary’s part
or her failure to follow proper procedures. To the contrary, the record shows
that when Mr. Akkas called OSHA on May 1, 2003, the AAD specifically advised
him of the 15-day filing requirement for submitting an NOC and that he was
still within the 15-day period. (Tr. 26-28). However, in view of the record,
Respondent is asserting various other reasons for the late filing. Mr. Akkas
testified that his business was new, that he had never been cited before, and
that he didn’t know anything about OSHA; he also testified that his company was
very small, having no employees but himself, and he indicated that the reason
for the late filing was because he had been ill. (Tr. 16, 37). The testimony of
Mr. Akkas is interpreted to be a request that his late filing be deemed excusable
neglect under the circumstances. However, there is no basis for concluding that
the late filing was due to excusable neglect, for the following reasons.

Commission precedent is
well settled that the OSHA citation clearly states the requirement to file an
NOC within the prescribed period and that an employer “must bear the burden of
its own lack of diligence in failing to carefully read and act upon the
information contained in the citations.” Roy Kay, Inc. , 13 BNA OSHC
2021, 2022 (No. 88-1748, 1989); Acrom Constr. Serv., Inc. , 15 BNA OSHC
1123, 1126 (No. 88-2291, 1991). The Commission has further held that ignorance
of procedural rules does not constitute “excusable neglect” and that mere
carelessness or negligence does not justify relief. Acrom Constr. Serv.,
Inc. , 15 BNA OSHC 1123, 1126 (No. 88-2291, 1991); Keefe Earth Boring Co. ,
14 BNA OSHC 2187, 2192 (No. 88-2521, 1991). Finally, the Commission has held
that a business must maintain orderly procedures for the handling of important
documents and that when the lack of such procedures results in an untimely NOC,
the late filing will be deemed to be simple negligence and not excusable
neglect. Louisiana-Pacific Corp. , 13 BNA OSHC 2020, 2021 (No. 86-1266,
1989). The Commission has thus denied Rule 60(b) relief in cases where the late
filing was due to an employer’s misunderstanding or confusion about the 15-day
filing period. Acrom Constr. Serv., Inc. , 15 BNA OSHC 1123, 1126 (No.
88-2291, 1991); Keefe Earth Boring Co. , 14 BNA OSHC 2187, 2192 (No.
88-2521, 1991). The Commission has also denied relief where the delay in filing
was caused by absence, even if due to illness, of the person responsible for
handling OSHA matters. E.K. Constr. Co. , 15 BNA OSHC 1165, 1166 (No.
90-2460, 1991).

As noted above, it is
the employer’s burden to demonstrate that it is entitled to relief, and
Respondent has not established a reason that shows, under Commission precedent,
that the untimely filing in this case was due to excusable neglect.
Respondent’s request for Rule 60(b) relief is DENIED, the Secretary’s motion to
dismiss Respondent’s NOC as untimely is GRANTED, and the Citation is AFFIRMED
in all respects.

So ORDERED.

/s/

Irving
Sommer

Chief
Judge

Date: May 17, 2004

Washington, D.C.