Action Concrete Construction, Inc.

Plain-English summary

Action Concrete filed its notice of contest 13 days late and attributed the delay to its president's serious illness and difficulty locating counsel after the attorney moved. An administrative law judge dismissed the notice when the company did not respond to the Secretary's motion and affirmed three serious violations with a $3,800 penalty. The Commission found that the Secretary had not conferred with Action as required, the motion and the judge's notice used an incorrect address, and the motion omitted the president's detailed explanation. Those circumstances raised doubt that Action received notice or had a fair opportunity to present its position. The Commission set aside the default decision and remanded for reconsideration of default. If default relief was granted, the judge was also directed to let Action support its request to excuse the late filing.

Decision snapshot

• Cited standard(s): None identified in the decision.
• Outcome: Default decision set aside and case remanded for reconsideration of default and possible late-filing relief.
• Key point: A default should be reconsidered when service errors and procedural omissions may have deprived a party of notice and a fair opportunity to respond.

Full text (OSHRC public release)

Action Concrete Construction, Inc., Docket No. 09-0923

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20 th Street, N.W., Ninth Floor

Washington, DC 20036-3457

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No. 09-0923

ACTION CONCRETE CONSTRUCTION, INC.,

Respondent.

APPEARANCES:

Dane L. Steffenson, Attorney; Dana L. Ferguson, Acting Counsel; Stanley E. Keen,
Regional Solicitor; Carol A. De Deo, Deputy Solicitor of Labor; U.S. Department of
Labor, Washington, DC

For the Complainant

G. Stephen Wiggins; Hubbard, Wiggins, McIlwain & Brakefield, P.C., Tuscaloosa, AL

For the Respondent

DIRECTION FOR REVIEW AND REMAND ORDER

Before: ROGERS, Chairman; THOMPSON, Commissioner.

BY THE COMMISSION:

In a Decision and Order dated September 11, 2009, Chief Administrative Law
Judge Irving Sommer granted the Secretary’s motion to dismiss Action Concrete
Construction’s (“Action’s”) late-filed notice of contest (“NOC”). Stating that “[n]o
response was entered by the Respondent,” the judge affirmed the citation and assessed
the proposed penalty of $3,800. For the reasons that follow, we direct this case for
review, set aside the judge’s decision, and remand the case to the judge for
reconsideration.

Background

On April 8, 2009,

the Occupational Safety and Health Administration (“OSHA”)
issued Action a citation alleging three serious violations under the Occupational Safety
and Health Act of 1970 (“OSH Act”), 29 U.S.C. §§ 651-78. It is undisputed that Action
received the citation on April 11 and, through its counsel, filed a NOC on May 20,
thirteen days after expiration of the contest period. Section 10(a) of the OSH Act, 29
U.S.C. § 659(a) (employer has fifteen working days within which to notify the Secretary
that he wishes to contest the citation or proposed assessment of penalty). Shortly
thereafter, OSHA informed Action that the NOC was untimely. By letter to OSHA dated
June 4, Action’s president explained that the late filing was due to her serious illness at
the time she received the citation and the difficulty she had contacting her counsel, who
had apparently relocated to a new address. Action’s counsel subsequently submitted
several other letters, first to OSHA and finally, on June 19, to the Commission,
requesting that the late NOC be accepted.

On August 14, the Secretary filed a motion to dismiss Action’s late-filed NOC.
The Secretary’s motion failed to comply with Commission Rule 40(a) in that it does not
indicate whether the Secretary made any effort to confer with Action prior to filing the
motion and thus, does not state whether Action opposed the motion. See Commission
Rule 40(a), 29 C.F.R. § 2200.40(a) (“Prior to filing a motion, the moving party shall
confer or make reasonable efforts to confer with the other parties and shall state in the
motion if any other party opposes or does not oppose the motion.”). Additionally, the
certificate of service attached to the motion reveals an error with respect to Action’s
mailing address, and there is nothing in the case file from which to ascertain whether
Action received the motion from the Secretary.

Pursuant to the Commission’s procedural rules, Action had until August 31 to
respond to the Secretary’s dismissal motion. Commission Rule 40(c), 29 C.F.R.
§ 2200.40(c). See also Commission Rule 4, 29 C.F.R. § 2200.4 (computation of time).
On that day, the judge sent his Notice of Decision to the parties, which contained the
same address error as the Secretary’s motion. Action did not seek relief from the default
during the period between the judge’s transmittal of his decision to the parties, and his
September 11 submission of the decision for docketing to the Executive Secretary. See
Commission Rule 90(b)(3), 29 C.F.R. § 2200.90(b)(3) (“Until the Judge’s report has
been docketed by the Executive Secretary, the Judge may relieve a party of default or
grant reinstatement . . . .”).

On September 21, Action filed a timely Petition for
Discretionary Review (“PDR”), in which it reiterates its explanation for its late-filed
NOC and requests relief under Federal Rule of Civil Procedure 60(b).

Discussion

Under Commission Rule 101(a), a party may be declared in default when it “has
failed to plead or otherwise proceed as provided by [the Commission’s] rules . . . .” 29
C.F.R. § 2200.101(a). While Action “failed to . . . proceed” by failing to respond to the
Secretary’s dismissal motion, a number of circumstances suggest that relief from the
default order may be warranted. See Commission Rule 101(b), 29 C.F.R. § 2200.101(b)
(Commission or judge may set aside sanction imposed for failure to proceed under
Commission rules).

First, the Secretary’s failure to confer with Action prior to filing her dismissal
motion deprived Action of the opportunity to have its position included therein. E.g., AA
Plumbing, Inc. , 20 BNA OSHC 2203, 2204, 2005 CCH OSHD ¶ 32,795, p. 52,447 (No.
04-1299, 2005) (remanding for reconsideration of default where Secretary failed to
comply with Rule 40(a)); Dore & Assocs. Contracting Inc. , 19 BNA OSHC 1438,
1438 n.1, 2001 CCH OSHD ¶ 32,369, p. 49,698 n.1 (No. 01-0067, 2001) (same). The
Secretary’s failure to comply with this requirement is particularly troubling here, as the
address error on the motion’s certificate of service creates some uncertainty about
whether Action ever received the motion. Samuel Filisko , 20 BNA OSHC 2204, 2206,
2005 CCH OSHD ¶ 32,855, p. 59,962 (No. 04-1465, 2005) (setting aside default order
where it could not be determined whether employer received proper service due to
misspelling of street name).

Second, the Secretary’s motion makes no mention of the letter from Action’s
president or her detailed explanation for the delay in filing the company’s NOC. Rather,
the motion contains the following statement concerning Action’s conduct:

The only statement as to why the [NOC] was late is Respondent’s
counsel’s assertion that ‘[he] believes that [his] client’s submission
supports a favorable consideration.’ . . . Accordingly, Respondent has
provided no bases for a finding of excusable neglect and none is believed
to exist.

On its face, therefore, the motion does not accurately reflect Action’s position concerning the NOC and,

as a result, we cannot be certain whether the judge took into account all of the
information Action had provided before he ruled on the dismissal motion.

Finally, the judge’s transmittal of the decision to the parties contained the same
address error for Action’s counsel as the Secretary’s motion. Thus, we cannot be certain
Action received notice of the judge’s decision at that time. Absent proper notification,
Action would have been deprived of the opportunity to seek relief from the default during
the period prior to docketing with the Commission. See Commission Rule 90(b)(3), 29
C.F.R. § 2200.90(b)(3) (“Until the Judge’s report has been docketed by the Executive
Secretary, the Judge may relieve a party of default or grant reinstatement . . . .”).

Based on this record, it appears Action may have lacked notice of the two key
events—the Secretary’s dismissal motion and the judge’s notice of decision—that
resulted in the default after Action failed to respond. Under these circumstances, as well
as the Secretary’s omission in her dismissal motion of Action’s detailed explanation for
its delay in filing the NOC, Action may have been denied the opportunity to be fully
heard. See Oscar Renda Contracting, Inc ., 17 BNA OSHC 1883, 1888, 1995-97 CCH
OSHD ¶ 31,225, p. 43,780 (No. 93-1886, 1997) (noting that “quest for due process”
includes “‘an evaluation of all the circumstances’” and “‘[t]he individual’s right to
fairness must be respected’”) (citation omitted). Accordingly, we set aside the judge’s
decision and remand this case for reconsideration of whether default is warranted. See
Commission Rule 101(b), 29 C.F.R. § 2200.101(b) (sanction may be set aside by
Commission or judge for “reasons deemed sufficient”).

With respect to Action’s request for Rule 60(b) relief for its late-filed NOC, it
asserts that it is a “small, family-owned business,” and that its president was seriously ill
at the time she received the OSHA citation. Action also states that it lost time attempting
to locate its attorney by sending its initial request for assistance with the citation to a
former address. See Nw. Conduit Corp. , 18 BNA OSHC 1948, 1951, 1999 CCH OSHD
¶ 31,949, p. 47,456 (No. 97-851, 1999) (excusing small employer’s late-filed NOC where
owner was solely responsible for handling OSHA matters and his temporary absence led
to miscommunication with counsel). Thus, if the judge determines on remand that
Action should be accorded relief from the default judgment, he should also provide
Action an opportunity to substantiate its claim for Rule 60(b) relief.

SO ORDERED.

/s/

Thomasina V. Rogers

Chairman

Dated: October 9, 2009                                                /s/

Horace A. Thompson III

Commissioner  

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant,

v.

Docket No. 09-0923

ACTION CONCRETE
CONSTRUCTION, INC.,

Respondent.

DECISION AND ORDER

Motion by the Secretary to Dismiss Respondent's late Notice of Contest. No
response was entered by the Respondent. Motion to Dismiss is GRANTED.

The Citation is AFFIRMED as issued.

/s/

IRVING SOMMER

Chief Judge

DATED: September 11, 2009

Washington, D.C.