Earth Developers, Inc. (ALJ decision, January 26, 2018)

Plain-English summary

OSHA inspected an Earth Developers worksite and proposed three serious violations with $5,976 in penalties. OSHA generated a citation within six months, but postal tracking showed no evidence that it was ever deposited in the mail. After discovering the problem more than two months later, OSHA generated another citation, which the employer received more than eight months after the inspection. The judge found that OSHA had not shown timely issuance within the six-month limit or notice within a reasonable time. He granted dismissal, vacated the citations, and canceled the scheduled trial.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 658(c); 29 U.S.C. § 659(a)
• Outcome: Three serious citation items vacated; proposed $5,976 penalty eliminated.
• Key point: OSHA must use reliable procedures to issue and serve a citation within the statutory time limits, just as employers must reliably handle notices of contest.

Full text (OSHRC public release)

ksydney
RAY Order
OChair
3
3
2017-12-11T16:16:00Z
2018-02-01T21:55:00Z
2018-02-01T21:55:00Z
1
2018
11507
US OSHRC
95
26
13499
16.00

1
1
0
Clean
Clean
false

6 pt
8.15 pt
2
2

false
false
false

EN-US
X-NONE
X-NONE

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

U.S.
Custom House

721
19 th Street, Room 407

Denver,
Colorado 80202-2517

Phone: � (303) 844-2282

Fax: � (303)
844-3759

SECRETARY OF LABOR, ��

����������� Complainant, ��

����������������������� v. ��������

EARTH DEVELOPERS, INC., ��������

����������� Respondent. ���

�

��� OSHRC Docket
No.: 17-1120

Appearances:

Summer Silversmith,
Esq., Office of the Solicitor, U.S. Department of Labor, Denver, Colorado

������������������������������� For Complainant

��������������� Shaun Schipper, Fargo, North Dakota ��

������������������������������� For Respondent

Before: � Administrative Law Judge Brian A. Duncan

DECISION
AND ORDER GRANTING MOTION TO DISMISS CITATION

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 (�Complainant�) conducted an inspection of an Earth Developers, Inc. (�Respondent�) worksite in Valley City, North Dakota on October 6, 2016. � As a result of the inspection, OSHA issued a Citation and Notification of Penalty (�Citation�) to Respondent alleging three serious violations of the Act with a total proposed penalty of $5,976.00. � The timeliness of OSHA�s issuance and service of the Citation upon the Respondent is at issue and discussed below.

Procedural History

����������� On September 25, 2017, Respondent
filed a Motion to Dismiss Citation (�Motion�) in which it argues that the Citation should be dismissed because (1) the Citation was not issued with
�reasonable promptness� within the six month statute of limitations under 29 U.S.C. � 658(a) and (c); and (2) Respondent was not notified within a reasonable time after the inspection under 29 U.S.C. � 659(a). In response, Complainant filed the Secretary�s Opposition to EDI�s Motion to Dismiss (�Response�). It its Response, Complainant contends that the Citations were timely issued and requests that Respondent�s Motion be denied.

Timeline of Events

1. On
   October 6, 2016, Compliance Safety and Health Officer (CSHO), Joshua

Lynn,
conducted an inspection at Respondent�s worksite in Valley City, North Dakota. See Declaration of Joshua Lynn (Lynn Decl.), � 2; Motion � 2.

2. On
   March 15, 2017, OSHA generated a Citation, which was signed by the local

OSHA
Area Director, and prepared for mailing by Kari Thorsteinson, an assistant in the Bismarck, North Dakota Area OSHA Office. � See Declaration of Kari Thorsteinson (Thorsteinson Decl.), �2.

3. Respondent
   did not receive the Citation until June 8, 2017, eight months after the

inspection
date. See Thorsteinson Decl., � 6;
Motion � 3. ����

4. Complainant
   contends that the original Citation was placed in the U.S. mail, via

certified
mail, directed to Respondent at the correct address, on March 15, 2017. � See Thorsteinson Decl.� 2�3.

5. More
   than two months later, on or about May 22, 2017, CSHO Lynn was

reviewing
his list of assigned cases and noticed that there was no reply from Respondent regarding the Citation. See Lynn Decl.� 10.

6. CSHO
   Lynn then followed up with Ms. Thorsteinson, after which it was

discovered
that OSHA never received confirmation that the Citation was actually delivered to the Respondent. See Lynn Decl.� 10, 12.

7. In
   fact, OSHA�s review of the USPS tracking information for the alleged March

15,
2017 mailing, revealed no transaction history at all, not even a record that OSHA deposited the Citation in the mail to begin with. � See Complainant�s Response, at Exhibit 6.

8. Therefore,
   on May 24, 2017, approximately 7 � months after the OSHA

inspection
was conducted, a new Citation was generated, signed, and sent to Respondent via certified mail. See Thorsteinson Decl.� 6.

9. This
   second generated Citation was delivered to Respondent without issue on

June
8, 2017, more than eight months after the OSHA inspection. � See Complainant�s Response, at Exhibit H.

10. CSHO Lynn conducted
    a telephonic closing conference with Respondent back on

March
15, 2017, and implies that he discussed the issuance of the Citation, but the Court notes that CSHO Lynn�s declaration does not specifically state he notified Respondent of the Citation it would be receiving. � Instead, CSHO Lynn�s declaration simply states that his �standard practice in closing conferences is as follows: � I always inform the employer of the citations they are being issued, discuss actions they need to take as far as abatement verification and penalty payment, and explain their three options: informal settlement conference, contest, or acceptance.� � See Lynn Decl. �8.

11. In contradiction
    to CSHO Lynn�s stated closing conference routine practices,

Respondent�s
June 14, 2017 Notice of Contest (after receiving the second generated Citation) reads: �I did not expect to be fined for anything as it has been well over 7 months since we were inspected and I have never received anything.�

12. There is no
    evidence in the record that Respondent was notified of the first

purported
mailing on March 15, 2017, or that somehow refused delivery or otherwise avoided service.

13. OSHA
    characterized the mishap concerning the missing March 15, 2017 Citation

as
�Original Citations Lost in the Mail� even though USPS tracking records do not show the first Citation ever being deposited in the mail. See Complainant�s Response, at Exhibits A, E & G.

14. Although the
    March 15, 2017 Citation was never delivered to Respondent, and

possibly
never even placed in the US mail system, Complainant communicated to Respondent that �OSHA accepted your notice of contest of the citation even though it was arguably late.� [as it was not received within 15 working days of the original failed mailing]. � See Respondent�s Motion, Exhibit 1 (June 27, 2017 e-mail from Tim Williams), p. 3.

Discussion

����������� Section 9(c) of the Act states, �No
citation may be issued under this section after the expiration of six months following the occurrence of any violation.� 29 U.S.C. � 658(c). Section 10(a) states, �If, after an inspection or investigation, the Secretary issues a citation under section 9(a), he shall, within a reasonable time after the termination of such inspection or investigation, notify the employer by certified mail of the penalty, if any, proposed to be assessed under section 17 and that the employer has fifteen working days within which to notify the Secretary that he wishes to contest the citation or proposed assessment of penalty.� 29 U.S.C. � 659(a). � Most of the issues arising on the Court�s docket under these two statutory provisions concern the timeliness of the employer�s notice of contest, not the timeliness of the Complainant�s service of the Citation. �����������

Citing numerous
ALJ decisions, Complainant contends that its only requirement is that it �issue� the Citation. � Complainant argues that its duties are complete once it prints, signs, and mails the Citation. See Complainant�s Response, p. 5 citing, e.g,. Brower Dental Health, PC , 26 BNA OSHC 1480 (O.S.H.R.C.A.L.J. Dec. 22, 2016); Valcourt Bldg. Servs. of Georgia, LLC , 24 BNA OSHC 1872 (O.S.H.R.C.A.L.J. Aug. 5, 2013); � Excel Contractors, Inc., Docket No. 16-0633 (July 13, 2016), Slip Op. at 2; Francis J. Palo, Inc., Docket No. 13-2150 (April 24, 2014). � Here, there is no evidence that the Citation was actually placed in the mail on March 15, 2017. � A follow-up of USPS records revealed to Complainant that there was no record of the USPS initially receiving the certified mail package. � Therefore, the Court is not persuaded that, even accepting Complainant�s argument concerning its limited responsibility, that it met its obligation to
�issue� the Citation within the six month statute of limitations.

It
seems clear to the Court that Section 10 imposes duties on both the Secretary of Labor and cited employers. First, there is a duty by the Secretary to notify the employer by certified mail of the Citation within a �reasonable time.� 29 U.S.C. � 659(a). � Then, upon receipt of the notification, the employer has a duty to submit a Notice of Contest within 15 working days if it wishes to contest the Citation. 29 U.S.C. � 659(a). After the expiration of this 15 day period, if an employer has not contested a Citation, the violations automatically become final orders of the Commission and are not subject to review by any court or agency. 29 U.S.C. � 659(a). These respective time restrictions are two sides of the same coin aiming to further the purpose of the Act of protecting workers� safety and health. As such, both the Secretary and the employer should be held to the same standard under Section 10.

When
an employer files a late notice of
contest, relief is only granted in cases where (1) the delay in filing was caused by the Secretary�s deception or failure to follow proper procedures or (2) party�s late filing was due to �mistake, inadvertence, surprise, or excusable neglect�. See Atlantic Marine, Inc. v. OSHRC , 524 F.2d 476 (5 th Cir. 1975) (holding an untimely notice of contest may be excused if it was the result of deception on the part of the Secretary); B.J. Hughes, Inc ., 7 BNA OSHC 1471 (O.S.H.R.C. 1979) (holding company holiday was still a �working day� and not an excuse for filing a late notice of contest, but that notice of contest was timely because assistant area director misinformed respondent to correct final day to file notice of contest).

Employers
have attempted to argue that delay in filing a notice of contest due to internal mishandling of a citation, or lack of proper mail handling procedures, should qualify as excusable neglect. However, the Commission has expressly rejected this argument and instead, ruled many times that the employer needs to have proper paperwork and mail handling procedures in place, and that failure to have these procedures in place does not amount to excusable neglect. See, e.g ., J.F. Shea Co. , 15 BNA OSHC 1092 (O.S.H.R.C. 1991) (holding error by office assistant did not establish excusable neglect); Nynex , 18 BNA OSHC 1944 (O.S.H.R.C. 1999) (holding misdirecting citation within large company was not excusable neglect); B.J. Hughes, Inc . supra (holding service on district superintendent at local job site adequate because �the Secretary�s representatives should not have to spend time fettering out the complexities of a corporate hierarchy��); Creative Gold, Inc., 20 BNA OSHC 1217 (O.S.H.R.C.A.L.J. 2003) (citing to Henry Beck Co ., 8 BNA OSHC at 1399 that Commission has held that a business must maintain orderly procedures for handling important documents). Further, it is important to note, that once a Citation is served on an employer, the employer is in the best position to make sure they are in compliance with the time period in which to contest the citations.

Similarly,
the Secretary should be held to the same standard of employing proper paperwork and mail handing procedures when issuing and serving a Citation to ensure that the employer is notified within a reasonable time and within the statute of limitations period. Notification must be expeditiously served upon a proper company official so that abatement can be rapidly accomplished. See, generally , B.J. Hughes, Inc . at *3-4. � The Commission has rejected the argument that because the respondent eventually received the notice of citations that service was proper. See Donald K. Nelson Construction , 3 BNA OSHC 1914 (O.S.H.R.C. 1976) (holding that this interpretation of notification would mean that service rules need not be followed so long as service is actually received at any time by the party to whom it was directed).
�

Here,
it is clear the system employed by Complainant to handle the mailing of this Citation was not adequate to ensure that Complainant was properly and timely notified of the alleged violations. � It is undisputed that the inspection occurred on October 6, 2016 and that Respondent was not served a copy of the Citation until June 8, 2017. � The Secretary is in the best position to ensure proper and timely notification. � Complainant�s belief that the Citation was put in the mail five months after the inspection, then the discovery two months later that it might not have been, and then ultimate service on the employer eight months after the inspection is deficient. � Conversely, in a scenario in which an employer properly received a Citation, then mistakenly believed it mailed a notice of contest to the local OSHA office a few days before the deadline, only to discover two months later that its notice of contest was never received, the Court has not doubt that Complainant would vehemently argue that the Citation was final and uncontestable. �

Although the actions of the USPS are out of
both parties� control, the Court is not convinced that Complainant actually placed the March 15, 2017 Citation in the mail. � Proper case management and mail handing procedures are completely within an OSHA Area Office�s control. Just as inadequate mail handing procedures are typically no excuse for an employer filing a notice of contest late, inadequate mail handling procedures are no excuse for Complainant in notifying the employer of a Citation within in a reasonable time and within statutory limitations. �

ORDER

Accordingly,
Complainant�s Motion to Dismiss is
GRANTED. � The Citations issued as a
result of OSHA Inspection Number 1182684 are hereby VACATED. � The trial previously scheduled for February 27, 2018 is canceled.

SO ORDERED.

/s/ Brian � A. Duncan ��������������

Date: � December 22, 2017 ����������������� Judge Brian A. Duncan

Denver, Colorado ������������������������������ U.S. Occupational Safety and Health Review Commission