US Pagoda, Inc.

Plain-English summary

OSHA inspected US Pagoda, Inc.'s construction work site and issued a citation and proposed penalty. The employer filed its notice of contest more than ten weeks after the statutory deadline, and former Chief Administrative Law Judge Irving Sommer denied relief and affirmed the citation. The Commission did not decide whether that late-filing ruling was correct. It noted that the decision notice was issued and the case was docketed after Judge Sommer retired on December 31, 2010. The Commission directed review and remanded the case to the Acting Chief Administrative Law Judge to address that discrepancy and take any further warranted action.

Decision snapshot

• Cited standard(s): None identified in the decision
• Outcome: The case was remanded to address the issuance and docketing of the judge's decision after his retirement.
• Key point: A procedural discrepancy concerning a retired judge's decision required further action by the Acting Chief Administrative Law Judge.

Full text (OSHRC public release)

US Pagoda, Inc., Docket No. 10-2035

DECISION

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No. 10-2035

US PAGODA, INC.,

Respondent.

APPEARANCES:

Charles F. James and Heather R. Phillips, Counsel for Appellate Litigation; Patricia
Rodenhausen, Regional Solicitor; U.S. Department of Labor, Washington, DC and New York
City, NY

                      For the Complainant

Adrian Elias Lee; Fort Lee, NJ

          For the Respondent

DIRECTION FOR REVIEW AND REMAND ORDER

Former Chief Administrative Law Judge Irving Sommer denied the Respondent’s request
for relief under Federal Rule of Civil Procedure 60(b), and granted the Secretary’s motion to
dismiss Respondent’s late-filed notice of contest. The notice of decision was issued to the
parties on January 3, 2011, and the case was docketed on January 13, 2011. These events
occurred after December 31, 2010, the date on which the judge retired.

We therefore direct this case for review and remand it to the Acting Chief Administrative
Law Judge to address this discrepancy and to take any further action warranted under the
circumstances.

SO ORDERED.

___ /s/ ____

Thomasina V. Rogers

Chairman

/s/ _______

Horace A. Thompson III

Commissioner

/s/_______

Cynthia L. Attwood

Dated: February 8, 2011 Commissioner

SECRETARY OF LABOR,

                      Complainant,



              v.

OSHRC Docket NO. 10-2035

US PAGODA, INC.,

                      Respondent .

Before: Irving Sommer

              Chief Judge

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”), to determine whether the Secretary’s motion to dismiss Respondent’s late-filed notice of contest (“NOC”) should be granted.

Background

         On April 26, 2010, the Occupational Safety and Health Administration (“OSHA”)

inspected a construction work site of Respondent, US Pagoda, Inc., located in Fort Lee, New
Jersey. As a result of the inspection, OSHA issued a Citation and Notification of Penalty (“Citation”) to Respondent on June 14, 2010. OSHA mailed the Citation to Respondent’s address in
Fort Lee, New Jersey, by certified mail, and Respondent received and signed for the Citation on
June 17, 2010.

         The Act requires the employer to notify the Secretary of its intent to contest a citation

within 15 working days of receipt, and the failure to file a timely notice of contest (“NOC”) results in the citation becoming a final order of the Commission by operation of law. Based upon
the date it received the Citation, Respondent was required to file its NOC by July 9, 2010.

Respondent did not file an NOC by that date. Instead, Respondent sent a letter dated September 21,
2010, to the Commission.

The letter was captioned “REOPEN CASE REQUEST LETTER.” In
the letter, Respondent stated that the “violations imposed by OSHA are not correct.” It also
stated that the electrician who was involved in the accident was not an employee of Respondent.
The letter indicated that important information regarding this matter could be provided and
requested that the case be reopened. The Secretary filed her motion to dismiss on December 3,
2010.

Discussion

         The record plainly shows that Respondent’s NOC letter was not filed within the 15-day

contest period set out in the Act. An otherwise untimely NOC may be accepted, however, where
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, under 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.” 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 Rule 60(b)
relief.

         There is no allegation and no basis for concluding that the late filing here was due to

deception on the part of the Secretary or her failure to follow proper procedures. Respondent’s
NOC letter is thus deemed to be a request for relief on the basis that its late filing was due to
“excusable neglect” under Rule 60(b). In this regard, the Commission follows the Supreme
Court’s test in Pioneer Inv. Serv. v. Brunswick Assoc. , 507 U.S. 380 (1993). See Northwest
Conduit Corp. , 18 BNA OSHC 1948, 1950 (No. 97-851, 1999). Under that test, the Commission
takes into account all relevant circumstances, including the danger of prejudice to the opposing
party, the length of the delay and its potential impact on judicial proceedings, the reason for the
delay, including whether it was within the reasonable control of the movant, and whether the
movant acted in good faith. Id . at 1950, quoting 507 U.S. at 395. The Commission has held that
the “reason for the delay, including whether it was within the reasonable control of the movant,”
is a “key factor” and, in appropriate circumstances, the dispositive factor. A.W. Ross, Inc. , 19
BNA OSHC 1147, 1148 (No. 99-0945, 2000); CalHar Constr., Inc. , 18 BNA OSHC 2151, 2153
(No. 98-0367, 2000).

         The delay in filing the NOC in this case was more than ten weeks. I find this delay

significant. I further find that the delay could prejudice the Secretary and impact the judicial
proceedings in this matter. As to good faith, I note, again, that Respondent waited for over ten
weeks to file its NOC letter. As to the reason for the delay, and whether it was within the
reasonable control of the movant, the Citation issued to Respondent states on page 2 as follows:

Right to Contest – You have the right to contest this Citation....You may contest
all citation items or only individual items. You may also contest proposed
penalties and/or abatement dates without contesting the underlying violations.
Unless you inform the Area Director in writing that you intend to contest the
citation(s) and/or proposed penalty(ies) within 15 working days after receipt,
the citation(s) and the proposed penalty(ies) will become a final order of the
[Commission] and may not be reviewed by any court or agency.

         The Commission has held 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 , 13 BNA OSHC 2021, 2022 (No. 88-1748, 1989); Acrom Constr. Serv. , 15 BNA
OSHC 1123, 1126 (No. 88-2291, 1991). The Commission has also held that ignorance of
procedural rules does not constitute “excusable neglect” and that mere carelessness or negligence
does not justify relief. Acrom Constr. Serv. , 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 have orderly procedures in place for handling
important documents and that if the lack of such procedures caused the late filing, Rule 60(b)
relief will not be granted. NYNEX , 18 BNA OSHC 1967, 1970 (No. 95-1671, 1999); E.K.
Constr. , 15 BNA OSHC 1165, 1166 (No. 90-2460, 1991); Stroudsburg Dyeing & Finishing , 13
BNA OSHC 2058 (No. 88-1830, 1989); Louisiana-Pacific Corp. , 13 BNA OSHC 2020, 2021
(No. 86-1266, 1989).

         Respondent has provided no reason whatsoever for its delay in filing, and, based on the

foregoing, I find that the delay was within the reasonable control of Respondent. As noted
above, the reason for the delay, including whether it was within the reasonable control of the
movant, is a “key factor” and, where appropriate, the dispositive factor. A.W. Ross, Inc. , 19
BNA OSHC 1147, 1148 (No. 99-0945, 2000); CalHar Constr., Inc. , 18 BNA OSHC 2151, 2153
(No. 98-0367, 2000). This factor, together with the other factors set out supra , is sufficient to
establish that Respondent has not shown that its untimely filing of the NOC was due to
“excusable neglect.”

There is, therefore, no justification for the granting of Rule 60(b) relief in
this matter.

Respondent’s request for relief is DENIED, the Secretary’s motion is GRANTED,
and the Citation and Notification of Penalty is AFFIRMED in all respects.

         SO ORDERED.





                                                             /s/

                                                              Irving Sommer

                                                              Chief Judge

Dated: January 13, 2011