Robinson Masonry

Plain-English summary

Two OSHA inspections resulted in seventeen serious items and one other-than-serious item against Robinson Masonry, with $22,400 in proposed penalties. The company attended an informal settlement conference but did not reach an agreement and did not submit a written contest within the 15-working-day period. It retained counsel six days after the deadline, yet counsel's initial letter only announced representation and did not challenge the citations. The first written language reasonably disputing the citations arrived months later. The judge rejected the arguments that an unwithdrawn settlement offer waived the deadline and that the statutory contest period was invalid. The late notices of contest were vacated, and all violations and penalties in both consolidated dockets were affirmed.

Decision snapshot

• Cited standard(s): Individual standards not identified in this late-contest decision.
• Outcome: Late notices of contest vacated; eighteen items and $22,400 in proposed penalties affirmed.
• Key point: An informal conference does not preserve contest rights when no settlement is reached and no timely written notice of contest is filed.

Full text (OSHRC public release)

                  UNITED STATES OF AMERICA
      OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

     Complainant,

               v.
                                                      OSHRC DOCKET

ROBINSON MASONRY, NOS. 13-1956 &
13-1957 (Consolidated)
Respondent,

   Before: Administrative Law Judge Brian A. Duncan


                                DECISION AND ORDER

                                    Procedural History

   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"). The Occupational Safety and Health Administration ("OSHA")

inspected two of Respondent’s worksites in Little Rock, Arkansas, on January 23, 2013 and

February 6, 2013. On April 2, 2013, as a result of the inspections, OSHA issued two Citations

and Notifications of Penalty (“Citations”) to Respondent alleging a total of seventeen serious,

and one other-than-serious, violations of the Act, with total proposed penalties of $22,400.00.

   Respondent was served a copy of the Citations, by confirmed UPS delivery, on April 2,

2013. (Complainant’s Opposition to Relief, Ex. C; Respondent’s Response to Show Cause). On

April 11, 2013, Respondent’s representative, Ron Robinson, met with OSHA officials in the

Little Rock, Arkansas area office to discuss potential settlement during an informal settlement

conference. (Complainant’s Opposition to Relief; Respondent’s Response to Show Cause).
Settlement options were apparently discussed and exchanged, but the parties failed to

successfully negotiate any type of settlement agreement. (Complainant’s Opposition to Relief;

Respondent’s Response to Show Cause). The fifteen-working-day limitations period, prescribed by

Congress to contest OSHA citations, subsequently expired on April 23, 2013. Section 10(a) of the

Act, 29 U.S.C. §659(a).

   On April 29, 2013, Respondent’s attorney notified OSHA that he would be representing

Respondent from that date forward in these matters. (Complainant’s Opposition to Relief, Ex. D;

Respondent’s Response to Show Cause). There was no language in counsel’s letter which could

be reasonably interpreted as an attempt to dispute, challenge, or otherwise contest the Citations.

Respondent’s counsel’s letter to OSHA was titled “Letter of Representation” and included two

sentences: “Please note my representation of the referenced company regarding the referenced

OSHA inspections. Please direct all future communications to this office.”

   On May 29, 2013 (fifty-five days after service of the Citations), OSHA sent Respondent

a letter attempting to collect the penalties due as a result of the uncontested violations.

(Complainant’s Opposition to Relief, Ex. E). More than four months later, on October 7, 2013

(two-hundred-forty-seven days after service of the Citations), Respondent’s counsel sent OSHA

a second letter, this time to an address in Washington, D.C., asking that the matters be referred to

the “office of the general counsel.” (Complainant’s Opposition to Relief, Ex. F). The October

7th letter contained, for the first time, language which could be reasonably construed as

challenging the citations and penalties. The letter stated: “[t]he fines are so out of proportion to

the offense, even if proved, as to shock the conscience.”

   On November 7, 2013 (two-hundred-seventy-eight days after service of the Citations),

Respondent’s counsel sent the Commission’s Executive Secretary a letter which stated: “[p]lease

                                             2

accept this late Notice of Contest, as that is defined by OSHA, though Mr. Robinson

misunderstood the proceedings and that the adversarial process had ever been terminated.”

(Complainant’s Opposition to Relief, Ex. F).

    The cases were subsequently docketed by the Commission and assigned to this Judge for

disposition. On January 29, 2014, Complainant filed Complainant’s Opposition to Relief Under

Rule 60(b) in each case, seeking to vacate Respondent’s Notices of Contest as impermissibly late.

On February 6, 2014, the Court issued an Order of Consolidation which combined OSHRC

Docket Nos. 13-1956 and 13-1957 into a single proceeding. Also on February 6, 2014, the

Court issued an Order to Respondent to Show Cause, which afforded Respondent an opportunity

to explain its six month delay1 in filing the Notices of Contest, considering the fifteen-working-

day limitation contained in Section 10(a) of the Act, as well as its retention of counsel the same

month the Citations were originally served. The Order to Respondent to Show Cause warned

that “[i]f Respondent does not respond to this Order to Respondent to Show Cause, and/or fails

to establish good cause, it may result in the issuance of sanctions, including the issuance of

default judgment against Respondent dismissing its Notices of Contest and affirming the citations

proposed in these cases pursuant to Commission Rules 67 and 101.”

    On February 18, 2014, Respondent’s counsel responded to the Order to Respondent to

Show Cause. Respondent did not dispute the facts and timeline set out above, but rather argued

that: (1) OSHA’s settlement offer at the area office informal conference was still pending at the

end of the fifteen-day contest period, and by not specifically withdrawing that offer, OSHA

waived its right to assert the fifteen-day statute of limitations; and (2) the fifteen-day contest

period set out in the Act is arbitrary and capricious, inadequate as a matter of law, and deprives

1. Based upon the fifteen-working-day contest period ending April 23, 2013, and interpreting Respondent’s October
   7, 2013 letter as an attempt to challenge the Citations.

                                                   3
   

   regulated parties of due process.

    The Citations served on Respondent on February 2, 2013, clearly stated on page 2 that:
   
             Right to Contest – You have the right to contest this Citation and
             Notification of Penalty. 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 Occupational Safety and Health
             Review Commission and may not be reviewed by any court or
             agency. 2
   
    A late contest may be excused pursuant to Rule 60(b)(1) if there is evidence of “mistake,
   

inadvertence, surprise, or excusable neglect,” or pursuant to Rule 60(b)(6) for “any other reason that

justifies relief.” The party seeking relief under Rule 60(b) bears the burden of demonstrating that it

is entitled to relief. Burrows Paper Corp., 23 BNA OSHC 1131 (No. 09-1559, 2010); Louisiana-

Pacific Corp., 13 BNA OSHC 2020, 2021 (No. 86-1266, 1989). To determine whether the late filing

of a notice of contest was due to “excusable neglect” under Rule 60(b)(1), courts consider the

following factors: (1) the danger of prejudice to the opposing party; (2) the length of the delay and its

potential impact on the proceedings; (3) the reason for the delay, including whether it was within the

reasonable control of the party seeking relief, and (4) whether the party seeking relief acted in good

faith. Pioneer Inv. Svcs. v. Brunswick Associates, 507 U.S. 380, 395 (1993); Northwest Conduit

Corp., 18 BNA OSHC 1948 (No. 97-851, 1999). The third enumerated factor—the reason for the

delay, including whether it was within the reasonable control of the movant—is the key factor. A.W.

Ross, Inc., 19 BNA OSHC 1147 (No. 99-0945, 2000).

     The Court notes that a lack of prejudice to the Secretary, or good faith on the part of

Respondent, alone will not excuse a late filing.” Fitchburg Foundary, Inc., 7 BNA OSHC 1516 (No.

2. Boldface and underlined typeface are as in the original Citations.

                                                      4
   

   77-520 & 1073, 1979). Furthermore, an employer’s mere carelessness or negligence, even if by a

layperson, in failing to timely file a notice of contest does not amount to “excusable neglect” that

would justify relief under Rule 60(b). Keefe Earth Boring Co., 14 BNA OSHC 2187 (No. 88-2521,

1991). The Commission has consistently ruled that “[e]mployers must maintain orderly procedures

for handling important documents,” and that when the lack of such procedures results in the untimely

filing of a notice of contest, relief under Rule 60(b) is not warranted. A.W. Ross, supra.

    In this instance, Respondent acknowledged service of the Citations on April 2, 2013, and

sufficiently understood the language on the face of the Citations to request and attend an informal

settlement conference at the local OSHA area office within the fifteen-working-day limitations

period, but then failed to contest the Citations before the limitations period expired on April 23,

2013. Even after counsel was retained on April 29, 2013, six days after the limitations period

expired, no communication from Respondent was ever submitted to OSHA or the Commission which

could be reasonably interpreted as protesting, disputing, or otherwise challenging the Citations until

October 7, 2013 (eight months after service of the Citations).

    Respondent has failed to meet its burden of establishing good cause to excuse such a late

attempt to contest these Citations. See also Garabar, Inc., 2013 CCH OSHD ¶33,256 (No. 11-3105);

J.P. Gallagher Electric, 2012 WL 7198438 (OSHRC). Similarly, Respondent’s alternative argument

challenging the enforceability of the 15-day limitations period is rejected, as such limitation has been

repeatedly upheld for more than forty years and does not need to be re-evaluated under these facts.

                                           ORDER

    Accordingly, Respondent’s Notices of Contest are hereby VACATED and the violations




                                               5

and penalties alleged in the Citations and Notifications of Penalty in OSHRC Docket Nos. 13-

1956 and 13-1957 are AFFIRMED.

   SO ORDERED.



                               /s/Brian A. Duncan
                               Judge Brian A. Duncan
                               U.S. Occupational Safety and Health Review Commission

Date: March 10, 2014
Denver, Colorado

                                         6