Consolidated Barricades, Inc.

Plain-English summary

Consolidated Barricades received two serious citation items in December 2012 but did not contest them until November 2015. The company disputed the underlying PPE and forklift allegations but gave no explanation for missing the 15-working-day deadline. The judge found no excusable neglect or other ground for Rule 60(b) relief. The late contest was dismissed with prejudice, and the citations with $3,200 in proposed penalties were affirmed.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.132(d)(1), 1910.138(a), and 1910.178(l)(1)(i).
• Outcome: The late notice of contest was dismissed with prejudice and the citations with $3,200 in penalties were affirmed.
• Key point: Disputing the merits does not excuse a multi-year delay when the employer offers no reason for failing to file a timely contest.

Full text (OSHRC public release)

                             United States of America
               OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                        1120 20th Street, N.W., Ninth Floor
                           Washington, D.C. 20036-3457

SECRETARY OF LABOR,

               Complainant,

          v.

CONSOLIDATED BARRICADES, INC., OSHRC DOCKET NO. 15-1968

               Respondent.


  DECISION AND ORDER GRANTING SECRETARY’S MOTION TO DISMISS
             RESPONDENT’S LATE NOTICE OF CONTEST

     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). On February 11, 2016, the Secretary filed his Motion to Dismiss

Respondent’s Late Notice of Contest (Motion to Dismiss). Complainant seeks the dismissal of

Consolidated Barricades, Inc.’s (Respondent) Notice of Contest (NOC) as untimely filed, and an

order affirming the citation and proposed penalties in their entirety. For the reasons that follow,

the Secretary’s Motion to Dismiss is GRANTED.

                                             I. Background

     The Occupational Health and Safety Administration (OSHA) conducted an inspection of

Respondent’s worksite located at 179 Dillenbeck Road, Fultonville, New York 12072 from July

13, 2012 through July 18, 2012. On November 16, 2012, OSHA issued a two item serious

citation to Respondent. 1 The citation proposed Respondent pay a penalty in the amount of

1
Citation 1, Item 1a alleges a violation of 29 CFR § 1910.132(d)(1) for failing on or before July 13, 2012 to perform
a personal protective equipment hazard assessment for employees exposed to hand laceration hazards when working
$3,200. OSHA mailed the citations to the Respondent’s worksite via United States Postal

Service (USPS) certified mail, return receipt requested, on about November 19, 2012. Based on

the tracking service provided by USPS, the citation was received by Respondent on December 5,

2012. 2

        The citations informed Respondent of its right to contest the citations and stated, in part:
      

Right to Contest: …

      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.

(Motion to Dismiss, Memorandum of Law, p. 3).

      Because Respondent received the citation on December 5, 2012, Respondent’s NOC was

due by December 28, 2012. 3 Respondent failed to file its NOC by that date. The penalty was

accordingly due to be paid by Respondent by January 28, 2013. (Exh. B).

      By letter dated October 30, 2014, Respondent was advised by OSHA that it was

delinquent and interest was being assessed on the penalty. 4 (Exh. D).

      By “Letter of Contest” dated November 10, 2015 addressed to the Commission,

Respondent stated that one of the citation items concerned the use of a fork lift “that has never

been used by anyone but me” and another citation item “was not truthful.” (Exh. E, p. 2). In its

NOC, Respondent did not offer any basis why it had not timely filed a NOC by December 28,

2012.

with metal products. Citation 1, Item 1b alleges a violation of 29 CFR § 1910.138(a) for employees not wearing
hand protection when handling sharp metal and wooden panels on or before July 13, 2012. Citation 1, Item 2
alleges a violation of 29 C.F.R. § 1910.178(1)(i) where the employer failed to train and evaluate employees in the
safe operation of powered industrial trucks on or before July 13, 2012.
2
See Motion to Dismiss, at Exh. C.
3
The Court notes that both December 24 and December 25, 2012 were federal holidays that year. Respondent has
not disputed its receipt of the citation on December 5, 2012.
4
Respondent was advised the total amount due was $3,604.67. (Exh. D).

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On November 18, 2015, OSHRC docketed the matter as Docket No. 15-1968.

     On December 2, 2015, Respondent timely submitted its request for simplified

proceedings to the Chief Judge. 5 A judge may grant a request for simplified proceedings at his

or her discretion. 29 C.F.R. § 2200.203(c). Here, no judge granted Respondent’s request for

simplified proceedings. 6 Cases selected for Simplified Proceedings are those that do not involve

complex issues of law or fact. 29 C.F.R. § 2200.202(a). Cases involving a late notice of contest

are not typically selected for Simplified Proceedings.

     On December 4, 2015, the Secretary filed his Motion for an Extension of Time to Plead

or Otherwise Move. The Secretary sought a 45 day extension to file his pleading or otherwise

move through January 14, 2016. 7

     On January 5, 2016, the Chief Judge granted the Secretary’s Motion for an Extension of

Time to Plead or Otherwise Move through January 14, 2016.

     On January 25, 2016, the Secretary filed his [Second] Motion for an Extension of Time to

Plead or Otherwise Move seeking an extension to file his pleading or otherwise move through

February 16, 2016.

     On February 1, 2016, Respondent filed its Motion of Opposition and For Dismissal. 8

Respondent reiterated its positon that “no one but myself, Joe Melideo, drives that fork truck and

no one else ever has with my knowledge or approval.” As to the “other citation” relating to

5
Within 20 days of the notice of docketing, a party may request the case be assigned for Simplified Proceedings;
such requests to be acted upon within 15 days of its receipt by the judge. 29 C.F.R. § 2200.203(b)(c).
6
To any extent necessary, Respondent’s Request for Simplified Proceedings is DENIED, nunc pro tunc.
7
The Secretary’s pleading was normally due 20 days after receipt of the NOC. 29 C.F.R. § 2200.34(a)(1).
However, here the Secretary’s time to file his pleading did not run from his receipt of the NOC since Respondent
timely requested Simplified Proceedings. 29 C.F.R. § 2200.203(d). The period for filing his pleading runs from the
issuance of a Court notice denying Simplified Proceedings. (Id.)
8
Respondent’s attempt to combine its Opposition to the Secretary’s Second Motion for an Extension of Time to
Plead or Otherwise Move with its own Motion to Dismiss the citation violated Commission Rule 40 that states “[a]
motion shall not be included in another document, such as a brief or a petition for discretionary review, but shall be
made in a separate document.” 29 C.F.R. § 2200.40(a).

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“PPE’s”, Respondent stated it has “always supplied gloves and made them available to the

people who work for me[.]” Respondent asked the citations [sic] be “dismissed in the interest of

fundamental fairness and proper conduct.”

     On February 11, 2016, the Secretary filed his Motion to Dismiss Respondent’s Late

Notice of Contest. The Secretary’s seeks affirmance of both the citation and its proposed

penalties because Respondent failed to file a timely NOC and has demonstrated neither

“excusable neglect” pursuant to Fed. R. Civ. P. 60(b) nor a meritorious defense.

     On March 18, 2016, the case was assigned to the undersigned with no indication that it

was to proceed as a simplified case.

     Respondent has not filed any response to the Secretary’s Motion to Dismiss Respondent’s

Late Notice of Contest.

                                      II. Discussion

     Upon receiving a citation and notification of penalty, an employer has 15 working days

within which it must file a NOC. See section 10(a) of the Act, 29 U.S.C. § 659(a). If the

employer does not file a NOC within the specified time period, “the citation and the assessment,

as proposed, shall be deemed a final order of the Commission and not subject to review by any

court or agency.” Id. An uncontested citation is generally unreviewable. See Culver v. U.S.

Dept. of Labor Occupational Safety & Health Administration, 248 Fed. Appx. 403 (3rd Cir.

2007).

     Respondent may overcome the Commission’s final order under Federal Rule of Civil

Procedure 60(b)(1) (Rule 60(b)), if it was entered as a result of “mistake, inadvertence, surprise

or excusable neglect.” See George Harms Constr. Co., Inc. v. Chao, 371 F.3d 156, 163 (3rd Cir.

2004) (Commission “has jurisdiction to entertain a late notice of contest under” the excusable

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neglect standard of Rule 60(b)(1)); 9 Branciforte Builders, Inc., 9 BNA OSHC 2113, 2117 (No.

80-1920, 1981). In determining whether a late-filed NOC was due to “excusable neglect,” the

Commission follows the Supreme Court’s test in Pioneer Inv. Serv. Co. v. Brunswick Assoc. Ltd.

Partnership, 507 U.S. 380, 381 (1993). In Pioneer, “excusable neglect” is defined as an

equitable determination of all relevant circumstances surrounding the party’s omission, and the

prejudice these circumstances presented to the opposing party. This definition has been applied

to other federal procedural rules, including proceedings by the Commission. See NW Conduit

Corp., 18 BNA OSHC 1948, 1950 (No. 97-851, 1999). In NW Conduit, the Commission quoted

Pioneer, noting 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. 9-0945, 2000); CalHar Constr., Inc., 18 BNA

OSHC 2151, 2153 (No. 98-0367, 2000); NYNEX, 18 OSHC 1944, 1947 (No. 95-1671, 1999)

(finding because employer failed to present evidence on the reason for delay, it did not establish

excusable neglect). See also Hospital Del Maestro v. NLRB, 263 F.3d 173, 174-75 (1st Cir.

2001) (“excuse given for the late filing must have the greatest import”).

     Here, Respondent has provided no excusable basis for its failure to file a timely NOC

before November 10, 2015. 10 Respondent does not dispute its receipt of the citation on

December 5, 2012; more than three years ago.

9
But see Chao v. Russell P. Le Frois Builder Inc.,291 F.3d 219 (2d Cir. 2002) (concluding Commission may not
exercise jurisdiction based on Rule 60(b)(1)).
10
The Court also finds that Respondent has not presented adequate evidence to support the proffering of any
meritorious defense(s) to the citation. Respondent provided no credible defense to its alleged violation of 29 CFR §
1910.132(d)(1) for failing on or before July 13, 2012 to perform a personal protective equipment hazard assessment
for employees exposed to hand laceration hazards when working with metal products. Similarly, Respondent
provided no credible evidence of a meritorious defense to Citation 1, Item 1b that alleged a violation of 29 CFR §
1910.138(a) for employees not wearing hand protection when handling sharp metal and wooden panels on or before
July 13, 2012. Respondent alleged only that gloves were available and that he, Mr. Melideo, wore them. Lastly,
Respondent failed to present adequate evidence to support the proffering of any meritorious defense to Citation 1,
Item 2 that alleged a violation of 29 C.F.R. § 1910.178(1)(i) where the employer failed to train and evaluate

                                                     5

Respondent has remained silent on the late NOC issues put forth by the Secretary in his

Motion to Dismiss. Respondent has not presented sufficient evidence for the Court to conclude

that Respondent timely filed a NOC, or that its failure to timely file a NOC was due to excusable

neglect. Respondent has not demonstrated any sort of mistake, inadvertence, surprise or

excusable neglect that justifies grounds for relief from the Commission’s final order under Rule

60(b). See Burrow Paper Corp, No. 09-1559, 2010 WL 1715389, at *2 (O.S.H.R.C.A.L.J. Jan.

19, 2010) (Employer has burden of its own lack of diligence in acting upon information

contained in the citation.). Nor has Respondent demonstrated any basis for relief under Rule

60(b)(2)(newly discovered evidence), 60(b)(3)(fraud, misrepresentation, or misconduct by the

Secretary), or 60(b)(6)(any other reason justifying relief). Respondent has the burden of proving

that it is entitled to Rule 60(b) relief; something it has failed to do here. NYNEX, 18 BNA OSHC

1967, 1970 (No. 95-1671, 1999).

    Respondent also has the burden of proving any motion to dismiss the citation has merit.

This burden it has failed to carry. The Court finds Respondent’s general denial of the allegations

set forth in the Secretary’s citation in its February 1, 2016 filing inadequate to support a motion

to dismiss the citation.

                                            III. Conclusion

    The Court finds that Respondent failed to file a timely NOC and no relief under Rule

60(b) is justified.

    The Court also finds Respondent’s motion to dismiss to have been filed in violation of

the Commission rules and to be without adequate basis. The Court finds Respondent’s motion to

dismiss the citation to be without merit.

employees in the safe operation of powered industrial trucks on or before July 13, 2012. Respondent alleged it only
had knowledge Mr. Melideo drove a forklift truck.

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IV. Order

   WHEREFORE, IT IS ORDERED Respondent’s Motion of Opposition and For

Dismissal, to the extent it includes a motion to dismiss, is DENIED,

   IT IS FURTHER ORDERED that the Secretary’s Motion to Dismiss is GRANTED,

Respondent’s November 10, 2015 NOC is dismissed in its entirety with prejudice as untimely

filed, and the citation and penalties are AFFIRMED in all respects.

SO ORDERED.

                                         /s/
                                           The Honorable Dennis L. Phillips
                                                U.S. OSHRC JUDGE

Date: May 5, 2016
Washington, D.C.

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