Employment 2000 Corp.

Plain-English summary

Employment 2000 filed a late notice of contest after OSHA mailed its citation to an address with an incorrect ZIP code. The same incorrect ZIP code appeared on the Secretary's dismissal motion, the judge's decision, and other case notices, leaving the record unclear whether the company received or could respond to them. The Commission set aside the dismissal and remanded for the judge to provide all filings, allow a response, reconsider relief under Federal Rule of Civil Procedure 60(b)(1), and consider the parties' settlement if relief was warranted.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.147(c)(4)(i), 1910.147(c)(7)(i)(A), 1910.147(c)(7)(iv), 1910.147(f)(2)(i), 1910.219(c)(4)(i), and 1910.219(f)(3).
• Outcome: The judge's dismissal was set aside and the case was remanded for further proceedings.
• Key point: When an address error leaves receipt of dispositive filings uncertain, the affected party must receive the filings and an opportunity to respond before Rule 60(b)(1) relief is decided.

Full text (OSHRC public release)


Document

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.
16-0858

EMPLOYMENT 2000 CORP. ,

Respondent.

APPEARANCES:

Christine T.
Eskilson, Deputy Regional Solicitor; Michael D.
Felsen, Regional Solicitor; M. Patricia Smith, Solicitor; U.S. Department of Labor, Washington, DC and Boston, MA

For the Complainant

Stephen Lang; Easton, MA

For the Respondent

REMAND ORDER

Before: ATTWOOD, Chairman ;
and
MacDOUGALL , Commissioner.

BY THE COMMISSION:

B efore the Commission is a July 26, 2016 decision of Administrative Law Judge Dennis L. Phillips granting the Secretary’s motion to dismiss Respondent’s untimely notice of contest (NOC) . In his decision, the judge determined that Respondent, appearing pro se, was not entitled to relief from a final order under Federal Rule of Civil Procedure 60(b )( 1). See
29 U.S.C. § 659(a) (citation “deemed a final order of the Commission” absent filing of timely NOC);
Fed. R. Civ. P.
60(b )( 1) (“ On motion and just terms, the court may relieve a party . . . from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect . . . .”). For the reasons that follow, we set aside the judge’s decision and remand this case to the judge for further proceedings.

Employment 2000 is a
recruiting and
staffing
agency
that
provided
production line workers to a pharmaceutical manufacturing facility. The Occupational Safety and Health Administration issued Respondent a five-item serious citation with proposed penalties totaling
$25,200. The citation was sent to Respondent by certified mail ,
and on November 30, 2015, the return receipt was signed by “Doyle . ” At the time, an individual named
David Doyle was a sales manager for Respondent and was one of the individuals who participated in
OSHA’s
opening
conference
for
the
inspection commenced on
June 4, 2015. Based on the citation’s purported receipt date, Respondent’s NOC was due by December 21, 2015. 29 U.S.C. § 659(a) (employer must notify Secretary within “fifteen working days” of receiving notice of citation that it intends to contest citation and/or proposed penalty).

However, not until after the company’s receipt of a demand letter for outstanding penalties, dated April 13, 2016, and a subsequent meeting between Respondent’s president and an OSHA Assistant Area Director on April 22, 2016, did Respondent mail its NOC to OSHA. In its April 22, 2016 NOC, Respondent’s president claims that he never received the citation and that his company was not “at fault in this matter.” In response, OSHA informed Respondent that it must contact the Commission directly to pursue this matter further. On May 10, 2016, Respondent filed a second NOC with the Commission, and the matter was assigned to the judge. On June 23, 2016,
the Sec retary filed a motion to dismiss Respondent’s NOC .
Respondent did not file a
response to the motion.

On July 26, 2016, the same
day the judge issued his decisio n
granting the Secretary’s motion to dismiss , the Secretary sent a letter
to
Respondent’s
p resident, indicating that :

the letter “confirm [s]
our agreement to resolve the
[citation] ”; the “enclosed
[s] ettlement
[a] greement
incorporates all the terms”; and he should “review it, have it signed on the last page where indicated,” and then return it for a signature from OSHA and filing with the
judge . A copy of this letter was faxed to the judge that same day. The judge’s decision was docketed with the Commission on August 9, 2016.

O n August 22,
2016, the Secretary filed an unopposed motion
requesting that the Commission vacate the judge’s decision and approve
the
attached
settlement agreement.
Based on our review of the record, however, it is not clear whether Respondent ever received this motion, as well as a number of other documents sent to it throughout the course of this case. Specifically, the following
documents
were sent to Respondent using
the
correct street address, city, and state, but not the correct zip code: 1
(1)
the citation
and return receipt form;
(2)
a debt
collection letter dated January
26 , 2016 ;
(3)
the Secretary’s motion to dismiss ;
(4)
the judge’s notice of decision ; (5)
the
Commission’s
notice of docketing
of the judge’s decision; and (6) the Secretary’s motion currently pending before us.
As to the citation, despite the signature from “Doyle” on the return receipt, Respondent’s president claims to have “never received” the citation. As to the other documents,
there is nothing in the record
to confirm whether Respondent
received them . Nor does it appear that the judge was aware of the mailing address error at the time he issued his decision granting the Secretary’s motion to dismiss.

In these circumstances, i t is not clear
whether
Respondent
received or
had an opportunity to respond to the Secretary’s motion
to dismiss
or the judge’s decision granting the motion. We therefore set aside the judge’s decision, as requested in the Secretary’s motion to the Commission, and remand this case for the judge to: (1) provide Respondent with a copy of all the documents filed in this case; (2) allow Respondent an opportunity to respond to the Secretary’s dismissal motion; and (3) reconsider whether relief from a final order is warranted under Rule 60(b )( 1). Rheem
Mfg. Co. , 25 BNA OSHC 1838, 1839 (No. 15-1248, 2016) (remanding because “order denying [Rule 60(b )( 1)] relief is premature based on the limited record”). If, upon reconsideration, the judge finds that a basis exists for granting Rule 60(b )( 1) relief, he should then consider whether to approve the settlement agreement, as requested by the Secretary in his motion. Commission Rule 100(c), 29 C.F.R. § 2200.100(c).

SO ORDERED.

/s/                      Cynthia L. Attwood

Chairman

/s/               

Heather L. MacDougall

Dated:    September 28, 2016             Commissioner

Some personal identifiers have been redacted for privacy purposes

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.      

OSHRC
DOCKET No. 16-0858

EMPLOYMENT 2000 CORP.,

Respondent.   

Appearances:

Michael D. Felsen                   Employment 2000 Corp.

Regional Solicitor                   73 Belmont Street

Office of the Solicitor, U.S. DOL – Boston          Easton, MA 02334

John F. Kennedy Federal Building,

RM E-375                      Stephen C. Lang

Government Center                   President/CEO

Boston, MA 02203            

Christine T. Eskilson , Attorney

Before:

Dennis L. Phillips

Administrative Law Judge

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

This proceeding is before the Occupational Safety and Health Review Commission (the Commission or OSHRC) pursuant to
section
10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 659(c) (the Act). The court finds the Citation and Notification of Penalty issued to Employment 2000 Corp. (Employment 2000
or Respondent ), in connection with Inspection No. 1068078,
on November 25, 2015

is upheld as a
Final Order
since
Employment
2000 cannot demonstrate “excusable neglect”
for their untimeliness
pursuant to Federal Rule of Civil Procedure 60(b)(1). 2

I. Facts

Employment 2000 is a
recruiting
and
staffing
agency that provides 100-150 production
line workers to Pharmasol Corporation
(Pharmasol), a pharmaceutical manufacturing company.
Aff idavit (Aff.) . of Assistant Area Dir ector
(AAD)
Katie Nishimura ¶ 2. On May 28, 2015, one of these workers,
[redacted] , suffered a partial amputation of his finger while being
trained at Pharmasol’s production facility. Id.
at ¶ 3.

Pharmasol President Marc Badia called the Occupational Safety and Health Administration (OSHA) Hotline and reported the accident that
day . Id. As a result, OSHA’s Boston South Area Office (BSAO) opened Inspection 1068078 (the Inspection) to investigate
any
violations of the Act. See id.
at ¶ 4. BSAO also opened an inspection of Pharmasol. Id.

On June 4, 2015, BSAO held an openin g conference .

M essrs . Bad ia and David Doyle, the Employment 2000 Sales Manager who oversaw the company’s Pharmasol account , were in attendance . Id. The opening conference covered the Inspection’s purpose and scope. Id. Through June and July,
2015,
BSAO communicated with Employment 2000 President Stephen Lang in order to obtain safety records and schedule employee interviews. Id. On November 5,
2015, BSAO held a closing conference with Mr. Lang over the phone, covering Employment 2000’s apparent violations, the company’s rights, and employee protections. Id.

Following
the Inspection, BSAO issued a five-item Serious Citation 1 (the Citation) with proposed penalties
totaling
$25,200, to Employment 2000 on November 25, 2015. Id.
at ¶ 5. The Citation included reference to
a
15
working day time period within which a Notice of Contest
(NOC)
must be filed, stating:

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 in t end to contest the citation(s) and/or proposed penalty(ies) within 15 working days after receipt, the citation(s) an d
the proposed penalty(ies) will become a final order of the Occupa t ional Safety and Health Review Commission and may not be reviewed by any court or
agency. 3

On November 25, 2015, BSAO sent the Citation
through
certified mail to Employment 2000’s business address
at
73 Belmont Street, Easton, Massachusetts. Id.
at ¶ 6. BSAO also sent Employment 2000 an OSHA 3000 booklet ,
which outlined the company’s rights and responsibilities. Id.

On November 30, 2015,
Mr.
Doyle signed the certified mailing receipt for the Citation. Id.
at ¶
7; Ex.
B to Nishimura Aff. The
15
working days
specified in the Citation brought the due date of the notice of contest to December 21, 2015 . Id.
at ¶ 8. BSAO did not receive notice of contest or any payment for Employment 2000’s penalties on or before that date. Id.

On January 2 7 , 2016, BSAO sent a debt collection letter , dated January 26, 2016,
to Employment 2000 at the 73 Belmont Street, Easton, Massachusetts address, but
BSAO
received no response. Id.
at ¶ ¶
9-10;
N ishimura Aff. , Ex. C).
On April 13, 2016,
OSHA’s Office of Financial Management (OFM) also sent a demand letter for the outstanding penalty to the 73
Belmont Street, Easton, Massachusetts
address . Id.
at
¶
11; Nishimura Aff. , Ex. D. After receiving this letter,
Mr.
Lang went to BSAO and met with A AD
Nishimura on April 22, 2016. See id.
at ¶ 12. AAD
Nishimura provided Mr. Lang with the Citation
sent to Employment 2000
and showed him the certified mailing receipt for the Citation that Mr. Doyle signed on November 30, 2015. Id. Mr. Lang confirmed that Mr. Doyle worked for Employment 2000 as a Sales Manager, but said that he, Mr. Lang, had never seen the Citation. Id.

After meeting with Ms. Nishimura, Mr. Lang sent a
NOC
to BSAO
on April 22, 2016 . BSAO
received the notice
on April 25, 2016. Mr. Lang stated he never received the Citation and he believed Respondent was not “at fault in this matter.” Respondent did not raise a meritorious defense
in its NOC .

Id.
at ¶ 13; Nishimura Aff. , Ex. E. BSAO responded
to the
letter, explaining that the Citation was deemed a final order o f the Commission because the 15- day contest period had expired and that Employment 2000 could contact the Commission directly to continue pursuing the matter. Id.
at ¶ 14; Nishimura Aff. , Ex. F.

On May 10, 2016, the Commission received a letter from Mr. Lang , dated May 6, 2016,
con cerning
the Citation . Mr. Lang stated one of Respondent’s employees was instructed by Pharmasol to go to a machine that did not have a guard on it. He asserted that “[t]his was not in his job description.” He stated Pharmasol was at fault, and not Respondent. The Commission docketed the instant matter as Docket No. 16-0858.

On June 2 3 , 2016, the Secretary filed his Motion to Dismiss Respondent’s Untimely Notice of Contest. The Secretary seeks the dismissal of Respondent’s
u ntimely Notice of Contest (NOC) because Respondent cannot demonstrate “excusable neglect” pursuant to Federal Rule of Civil Procedure 60(b)(1).

Respondent has not filed a response to the Secretary’s Motion to Dismiss Respondent’s
Untimely Notice of Contest.

II. The Cited Standard

Citation 1, Item 1 alleges a serious violation of 29 C.F.R. § 1910.147(c)(4)(i), which states:

Procedures were not developed, documented and utilized for the control of potentially hazardous energy when employees were engaged in activities covered by this section[.]

Citation 1, Item 2 a alleges a serious violation of 29 C.F.R. § 1910.147(c)(7)(i)(A), which states:

Authorized employee(s) did not receive training in the recognition of applicable hazardous energy sources, the type and magnitude of the energy available in the workplace, and the methods and means necessary for energy isolation.

Citation 1, Item 2 b alleges a serious violation of 29 C.F.R. § 1910.147(c) (7)(iv), which states:

The employer did not certify that employee training had been accomplished and kept up to date [.]

Citation 1, Item 3 alleges a serious violation of 29 C.F.R. § 1910.147(f)(2)(i), which states:

When outside servicing personnel were engaged in activities in a facility, the onsite employer and the outside employer did not inform each other of their respective lockout or tagout procedures[.]

Citation 1, Item 4 alleges a serious viola t ion of 29 C.F.R. § 1910.219(c)(4)(i), which states:

Shaft ends projecting more than one-half the diameter of the shaft were not guarded by nonrotating caps or safety sleeves.

Citation 1, Item 5 alleges a serious violation of 29 C.F.R. § 1910.219(f)(3), which states:

Sprocket wheels and chains which were seven feet or less above floors or platforms were not enclosed[.]

III.
Discussion

Pursuant to
s ection 10(a) of the Act,
if an employer fails to notify the Secretary within
15
working days from receipt of the notice issued that it intends to contest the citation, the citation will be deemed a final order of the Commission. 4
29 U.S.C. § 659(a);
Sec ’ y of Labor v. Barretto Granite Corp. , 830 F.2d 396, 397 (1st Cir. 1987) . 5 29 C.F.R. § 1903.17(a) requires that the employer notify the Area Director in writing
“that he intends to contest such citation or proposed penalty before the Review Commission. Such notice of intention to contest shall be postmarked within 15 working days of the receipt b y
the employer of the notice of proposed penalty.”

The Court finds
that Employment 2000 did not file
a
NOC
within
15
working days of
its receipt of the Citation as
s ection 10(a) of the Act and 29 C.F.R. § 1903.17(a) require. Respondent ’s office
received the Citation on November 30, 2015 , as is proven by the signed certified mailing receipt for the Citation .

Nishimura Aff. at ¶ 7. Fifteen working days following
this date , excluding weekends and federal holidays, was December 21, 2015. Id.
at ¶ 8. BSAO did no t
receive a letter to contest the Citation on or before that date. Id.
Any
NOC
postmarked after the
15 -day contest period has no effect. Barretto Granite Corp. , 830 F.2d at 397-98;
see also
Therrel-Kizer, Inc. , 1981 OSHD (CCH)
¶ 25234 , p. 2 (No. 80-3845) (citing
Kerr-McGee Che m.
Corp. ,
4 BNA OSHC 1739
(No. 9890, 1976) ( filing the notice on the sixteenth day after receipt of the citation was too late and the citation became a final order) .

The Commission may excuse a late filing p ursuant to Federal Rule of Civil Procedure
60(b)(1) .

Rule 60(b)(1) states that a late filing may be excused if the final order was entered as a result of “mistake, inadvertence, surprise, or excusable neglect.” 6
Fed. R. Civ. P. Rule 60(b);
Ricop Constr. Co. , 19
BNA
O SHC 1802, 1802 (No. 01-0955, 2002) (reaffirming “an untimely NOC may be accepted in cases in which the delay in filing was a result of the Secretary’s deception or failure to follow proper procedures” or if an employer “can show that the Commission’s final order was entered due to ‘mistake, inadvertence, surprise, or excusable neglect’” );
Branciforte Builders, Inc. ,
9
BNA OSHC 2113
(No. 80-1920, 1981)
(finding “Respondent’s failure to file a timely
NOC
could not be excused, since there was no evidence that the Respondent’s late filing resulted from the erroneous representations of the Secretary”) ;
Monroe & Sons, Inc. ,
4 BNA OSHC 2016 (No. 6031, 1977) ,
aff’d , 615 F.2d 1156, 1160 (6th Cir. 1980) . 7
It is clear
Employment 2000 is not entitled to relief under Rule 60(b)(1) . There is no evidence of
mistake, inadvertence,
surprise or excusable neglect.

The Commission and federal courts evaluate claims of excusable neglect using the criteria
set forth in
Pioneer Inv .
Servs. v. Brunswick Assocs. , 507 U.S. 380, 395 (1993). T he Commission takes into account “all relevant circumstances
surrounding the party’s omission ,” including:

(1 )
“the danger of
prejudice to the
debtor , [2]
the length of the delay and its potential i mpact on judicial proceedings, [3]
the reason for the delay, including whether it was within the reasona ble control of the movant, and [4]
whether the movant acted in good faith.”

Pioneer Inv .
Servs. , 507 U.S. at 395 .

The
Court grants the most weight to the
third factor, the reason for the delay,
in
determining excusable neglect under Rule 60(b).

AR Med . L LC d/b/a/ San Pablo Med .
Clinic ,
24
BNA
OSHC
1665, 1666 ( No. 12-2023, 2013),
see also A.W. Ross Inc. ,
19 BNA OSHC 1147, 1148
(No. 99-0945, 2000);
Hosp .
Del Maestro v. NLRB ,
263 F.3d 173, 174-75 (1st Cir. 2001) (“The four
Pioneer
factors do not carry equal weight; the excuse given for the late filing must have the greatest import”). If the party lacks clear reason for the delay, excusable neglect is often not granted . CalH ar Constr. Inc. ,
18 BNA OSHC 2151
(No. 98-367, 2000);
NYNEX , 18 BNA OS HC
1944, 1947 ( No. 9 5 - 1671 ,
1999 ) (finding because employer failed to present evidence on the reason for the delay,
employer
did not establish excusable neglect).

The Court finds that the delay was entirely the fault of Employment 2000 .

As seen by the accepting signature,
Employment 2000 knew as of November 30, 2015 that
it had received a Citation . Nishimura Aff. at ¶ 7. The Citation
gives clear reference to the contest process. Id.
at Ex. A. 8
Further, the
C itation states that the Citation would become a final order of the commission without a properly filed NOC given with in
15
working days.

Id . 9 BSAO also
followed standard protocol and sent
Employment 2000 an OSHA 3000 booklet which
outlines
its rights and responsibilities. Id.
at ¶ 6. Despite
having all of this information upon receipt of the citation, Employment 2000 failed to properly contest the Citation and file a NOC within the requisite time frame.

Id.
For
the aforementioned
reason, the Court finds
Employment 2000
is responsible for its failure to act upon the received Citation and
its
failure to file a NOC.

See
Toby Bell d/b/a S. Tex .
Pigeon Removal, Lnoc , 24 BNA OSCHC
1936, 1938
(No . 13-0487, 2013 ) 10
(“An employer that has filed a late notice of contest ‘must bear the burden of its own lack of diligence in failing to carefully read and act upon the information contained in the citations.’”)
(quoting
Acrom Constr .
Serv . ,
15
BNA
OSH C
1123, 1126
(No. 88 2291, 1991) ) .

The Commission has held that employers must
have a system in place for the handling of
important documents and the processing of mail. Max Bayroff Corp. , 1990 OSHD (CCH) ¶ 29,004, p. 38,727 (No. 90-0724, 1990). The failure of such is not “excusable neglect,” and it does not warrant relief under Rule 60(b). Id.

Furthermore, the Commission will not excuse an untimely NOC based on excusable neglect where no evidence is shown of the employer’s procedures. NYNEX ,
18 BNA OSHC
1944,
1947
(No. 95-1671, 1999)
(holding
NYNEX failed to show its untimely notice of contest was
not
the result of excusable neglect because it “did not even introduce evidence as to its procedures for handling important documents” ) . In
NYNEX , the citation received in the mail was
misdirected to another office, where it sat for six weeks.

Id.

The Court finds, h ere, Employment 2000 failed to explain its procedures for
the processing and handling of important documents received in the office . Mr.
Doyle
is on record for signing
for the
C itation on November 30, 2015,
and yet,
the company has no explanation for
how the Citation was overlooked . This is analogous to
NYNEX , and as mentioned above, the Commission held there that the procedures did not give rise to excusable neglect and Rule 60(b) relief.

See NYNEX , 18 BNA OSHC
at 1947 . Furthermore, Employment 2000
has also
not
offered an explanation as to
its failure to respond to the debt collection letter , dated January 2 6 , 2016 .
In considering both of these facts, the Court finds that
Employment 2000 has offered no basis for Rule 60(b) relief.

This is in line with earlier decisions . T he Commission has consistently denied relief to employers who have negligently handled documents. J.F. Shea Co. , 15 BNA OSHC 1092,
1094
(No .
89-976, 1991) (“[t]he Commission has not granted relief when the negligent handling of the document occurred, as it did here, in the employer’s own office”) (citing
La . -Pac .
Corp. , 13
BNA OSCHC 2020, 2021 (No. 86-1266, 1989)). 11 These findings have held true for circumstances including, but not limited to, the negligent handling of documents, 12
an increased workload, 13
and a failure to read the Citation and act upon it. 14

Further, t he Court finds with respect to the first
Pioneer
factor, the untimely filing of the NOC would prejudice the Secretary . In
US Pagoda ,
Inc .
the employer filed a notice of contest more than ten weeks late.
US Pagoda ,
Inc ., No. 10-2035,
2011 WL 651433,
at
2 (O . S . H . R . C .A.L.J. Jan. 13, 2011 ). In that case, t he Commission held that the delay
was a significant length of time,
finding that it could “prejudice the Secretary and impact the judicial proceedings in this matter.” Id.
Similarly, the length of time of the delay here would have an
effect on the Secretary because Employment 2000 filed its
NOC
four months late. See Custom Copper & Slate, Ltd. ,
No. 09-0022,
2009 WL 1504102
at 3 (O.S.H.R.C. A . L . J . Apr. 6, 2009 ) (finding a delay of three months would “prejudice the Secretary
and have an impact on judicial proceedings ”).

In contrast, the Commission has been known to recognize that in many Rule 60(b) late filing cases, “it is a given that there is a lack of prejudice to the Secretary or to the interests of efficient judicial administration, combined with a lack of bad faith by the employer.” George Harms Constr. Co. v. Chao , 371 F.3d 156, 164 (3d Cir. 2004) (citing
CalHar Constr., Inc. , 18 BNA OSHC
at
2153 n.5). This is not the case here because
the inspection took place over a year ago, and the impacts of this delay
would
significantly
prejudice the Secretary, as the time
between the Citation and the proceedings grow the evidence may seem to grow “stale.”

Coughlan Const r . Co. , 3 BNA OSHC 1636, 1638 (No. 5303 , 1975)
(consol idated ) (“if evidence becomes stale, it may become more difficult for [the Secretary] to prove a violation”).

On the basis of these factors and considerations, Employment 2000’s failure to file a timely NOC was not due to excusable neglect, and it would prejudice the Secretary.

IV.
Conclusion

The
C ourt finds that Respondent
has not established a basis for relief under Rule 60(b). Respondent
has failed to proceed as provided by the r equirements set forth in the Act and
in the Citation , has not demonstrated that the delay
in filing the NOC
was excusable under the Federal Rules of Civil Procedure, an d has prejudiced the Secretary
by its untimely action .

Pursuant to
section
10(a) of the Act, the Citation and proposed penalty are
deemed
a final order of the Commission.

V. Penalties

The Secretary has proposed a total penalty of $25,200 for the Citation at issue. This breaks down to $6,300 for Citation 1, Item 1; $5,400 for Citation
1 , Item 2a; $6 , 300 for Citation 1, Item 3; $3,600 for Citation 1, Item 4; and $3,600 for Citation 1, Item 5. Section 17(j) of the Act requires the Commission to give due consideration to four criteria in assessing penalties:

the size of the employer’s business, the gravity of the violation, the employer’s good faith, and its prior history of violations. Compass Envtl., Inc.,
23 BNA OSHC
1132,
1137
(No. 06-1036, 2010) . Based on the record of this case, the Court finds that the Secretary properly considered the
statutory factors in his penalty proposals. The court finds the total proposed penalty of $25,200, along with the classification of
all five of
the
items
as serious as alleged by the Secretary for the Citation item at issue, to be appropriate.

VI.
Findings of Fact and Conclusions of Law

All finding of fact and conclusions of law relevant and necessary to a determination of the contested issues have been found and appear in the decision above. See
Fed. R. Civ. P. 52(a).

VII. Order

WHEREFORE ,
t he Court finds
Respondent failed to file a timely N OC
and no relief under Rule 60(b) is justified ; and it is ORDERED that

1)
Complainant’s Motion
to Dismiss Respondent’s Untimely Notice of Contest
is GRANTED,

2)
Respondent’s Notice of Contest is dismissed in its entirety with prejudice as untimely filed, and

3)
all five of
the
C itation
items
and
proposed
penalties are AFFIRMED in all respects.

SO ORDERED.

/s/               

The Honorable Dennis L. Phillips

U.S. OSHRC JUDGE

Date: July 26, 2016

Washington, D.C.

"

1
The zip code used on these documents was 02334—the correct zip code is 02375, as identified in the return address included on Re spondent’s April 22, 2016 NOC.

2
Rule 60(b) provides that:

Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or
excusable neglect;

(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);

(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;

(4) the judgment is void;

(5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or

(6) any other reason that justifies relief.

Fed. R. Civ. P. Rule 60(b).

3
Nishimura Aff., Ex. A (emphasis in original).

4
29 U.S.C. § 659(a) states:

“… If, within fifteen working days from the receipt of the notice issued by the Secretary the employer fails to notify the Secretary that he intends to contest the citation or proposed assessment of penalty, and no notice is filed by any employee or representative of employees under subsection (c) of this section within such time, 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.”

5
The 15-day period is activated by the employer’s receipt of the notice. Barretto Granite Corp. , 830 F.2d at 396.

6
Supra
note 1.

7
Monroe & Sons
creates a two-part test for relief under 60(b)(1). The movant must demonstrate: “(1) The existence of mistake, inadvertence, surprise, or excusable neglect. (2) That he has a meritorious defense.” Monroe & Sons, Inc. ,
615 F.2d at 1160.

8
Supra
note 2. Right to Contest section of Citation and Notification of Penalty.

9
Id.

Stating the citation “will become a final order of the Occupational Safety and Health Review Commission and may not be reviewed by any court or agency.”

10
In
Toby Bell
the court found the employer should have contested the Citation timely, and that the late filing was not a result of excusable neglect. Toby Bell , 24 BNA OSCHC
at 1938.

11
This is routinely supported by appellate courts. See Sadowski v. Bombardier Ltd. , 539 F.2d 615, 618 (7th Cir. 1976) (finding Rule 60(b) cannot be invoked “to give relief to a party who has chosen a course of action which in retrospect appears unfortunate or where error or miscalculation is traceable really to a lack of care.”).

12
Villa Marina Yacht Harbor, Inc. , 19 BNA OSHC 2185 (No. 01-0830, 2003) (denying relief when the company mishandled their mail);
La . -Pac .
Corp. , 15 BNA OSCHC at 2021 (holding “[e]ven during a management transition, a business must maintain orderly procedures for handling important documents”).

13
United
States v.
One 1978 Piper
Navajo PA-31 Aircraft , 748 F.2d 316, 319 (5th Cir. 1984) (holding that assertions of office workload are not sufficient to overcome a default judgment under Rule 60(b)).

14
A.W.
Ross Inc. ,
19 BNA OSHC at 1149
(finding employer president’s failure to carefully read and act upon the Citation not
excusable).