Apollo Auto Sales & Service, Inc.

Plain-English summary

OSHA issued Apollo Auto citations with $6,652 in proposed penalties and later issued a $25,868 failure-to-abate notification. Apollo Auto missed both 15-working-day contest deadlines and filed its contest months after receiving the original citation. The judge found no deception by OSHA, excusable neglect, good-faith effort to file on time, extraordinary circumstance, or meritorious defense. Apollo Auto's statement that OSHA's actions were very harsh did not justify the delay. Relief was denied, leaving both final orders and $32,520 in combined penalties undisturbed.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1)
• Outcome: Rule 60(b) relief denied; the citation and failure-to-abate final orders remain in effect.
• Key point: Missing the statutory contest deadline requires more than disagreement with OSHA; the employer must establish a recognized basis for relief and a meritorious defense.

Full text (OSHRC public release)


Apollo Auto Sales & Service, Inc. Docket No. 18-1194 & 18-1195

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., 9 th
Floor

Washington, DC 20036-3457

Secretary of Labor,

Complainant

v.

OSHRC Docket No.:
18-1194 & 18-1195

Apollo Auto Sales & Service, Inc. ,

Respondent.

On
Pleadings :

Jennifer J. Johnson, Esq .

Office of the Solicitor, U.S. Department of Labor,
Dallas, Texas

For Complainant

Apollo Auto Sa le s & Service, Inc., Houston, Texas

For Respondent

Before: Administrative Law Judge
Sharon D. Calhoun

DECISION AND ORDER

T his matter is before the Occupational Safety and Health Review Commission on a
late notice of contest filed
with the Commission on July 25, 2018,
by
Apollo Auto Sales & Service, Inc.
( Apollo Auto ) . The
Court construe s
Apollo Auto’s late notice of contest
as a
request for relief pursuant to Rule 60(b) of the Federal Rules of Civil Procedure (Rule 60(b)) .

On October 15, 2018, t he Secretary
of Labor, United States Department of Labor (Secretary)
filed an Opposition to the request for Rule 60(b) relief.

For the reasons that
follow,
Apollo Auto ’s request for r elief pursuant to Rule 60(b)(1)
is
DENIED .

Background

This matter arises out of an inspection of
Apollo Auto ’s jobsite located at
2218 North Loop W., Houston , Texas by the Occupational Safety and Health Administration (OSHA) during the period
January
9, 201 8
through
January 18,
201 8 . As a result of the inspection, on
February 16,
201 8 , the Secretary issued
a
Citation and Notification of Penalty (Citation) alleging
a
serious violation of
section 5(a)(1) of the Act, and two serious violations of the
standards promulgated
under section 5(a)( 2 ) of the Act . The Citation also alleges
an
other -than-serious violat i on. P enalties in the total amount of $ 6,652 .00
were proposed for the alleged violations .

The Citation also provide s
Apollo Auto
had 15 working days from the date of receipt to contest the Citation . The Citation
initially
was mailed to
Apollo Auto
by
first class
mail , however it was returned “undeliverable.”
OSHA
then
sent the Citation to Apollo Auto by United Parcel Service (UPS), a nd
it
was delivered on March
6 , 201 8
( Opposition ,
Exh . A,
¶
2;
Exh . A, attachment 2) . As a result of the March
6 , 201 8 , delivery date, excluding weekends and Federal holidays, the 15-day contest period expired on
March 27 , 201 8 .

Apollo Auto
did not file
a
Notice of Contest
within the 15-day contest period.

Therefore, the Citation became a Final Order of the Commission under § 10(a) of the Act, as
of the end of the contest period . On May 1, 2018, OSHA requested abatement documentation and notified Apollo that the Citation had become final on March 27, 2018.

OSHA conducted a follow up inspection of
Apollo Auto’s
cited worksite
on May 9, 2018 . As a result of the follow up inspection ,
on May 17, 2018, OSHA issued a Notification of Failure to Abate Alleged Violations (Failure to Abate)
regarding
the violation previously
issued on February 16, 2018,
as a serious violation of section 5(a)(1) of the Act ;
and proposed a penalty in the amount of
$25,868.00 for the Failure to Abate violation.
OSHA hand delivered the Failure to Abate notification to Apollo Auto Sales’ manager, Stacy Williams
on May 18, 2018
( Opposition ,
Exh . A ,
¶
6 ).

The Failure to Abate provides Apollo had 15 working days from receipt to contest. The fifteen-day period for contesting the Failure to Abate expired on June 11, 2018 .

Apollo Auto
did not file
a
Notice of Contest
within the 15-day contest period. Therefore, the
Failure to Abate
became a Final Order of the Commission under § 10(a) of the Act, as
of the end of the contest period. 1

As set forth in its J uly 25, 2018
Request for Relief,
Apollo Auto
disputes the citations, charges and penalties, stating that it considers OSHA’s actions as “very harsh.”

Apollo Auto also
provided
in the filing
the name and telephone number
for
attorney Afton
Iz e n , advising that Ms.
Iz e n
would contact OSHA to resolve the matter. 2

DISCUSSION

Pursuant to the requirements of the Act, an employer is required to notify the Secretary of its intent to contest (Notice of Contest) a Citation within 15 working days of receipt. Failure to timely file a Notice of Contest results in the Citation becoming a final order of the Commission by operation of law. Apollo Auto ’s contest was filed
with
the Commission on
July 25, 2018 ,
( nearly four
month s
after
receiving
the Citation, and approximately six weeks after
receiving
the Failure to Abate ) , outside of
the requisite 15-day period set out in the Act.

An employer who has filed an untimely Notice of Contest may be granted relief under Rule 60(b) in certain circumstances.
George Harms Constr. Co. v. Chao , 371 F.3d 156 (3d Cir. 2004).
A late filing may be excused under Rule 60(b)(1) if the final order was entered as a result of “mistake, inadvertence, surprise or excusable neglect.” A late filing also may be excused under Rule 60(b)(3), if the late filing was caused by the Secretary’s “deception or failure to follow proper procedures.”
See
Branciforte
Builders ,
Inc. , 9 BNA OSHC 2113, 2116-17 (No. 80-1920, 1981);
B.J. Hughes ,
Inc ., 7 BNA OSHC 1471, 1476 (No. 76-2165, 1979);
Keppel’s Inc. ,
7 BNA OSHC 1442, 1443-44 (No. 77-3020, 1979). In addition, a late filing may be excused under Rule 60(b)(6), for any other reason that justifies relief, such as when “absence, illness, or a
similar disability prevent[s] a party from acting to protect its interests.”
Branciforte
Builders , 9 BNA OSHC at 2117. The moving party has the burden of proving it is entitled to relief under Rule 60(b). Apollo Auto has failed to provide
sufficient
proof that it is entitled to relief.

In determining whether the late filing of a Notice of Contest may be found to be due to “excusable neglect” under
Rule 60(b)(1) , the equitable analysis enunciated by the Supreme Court in
Pioneer
Inv. Services Co. v. Brunswick Associates Ltd. Partnership
507 U.S. 380 (1993)
is applicable.
George Harms Constr. Co. , supra. In
Pioneer
the Court held that “excusable neglect” is determined based upon equitable considerations that take into account all relevant circumstances, and includes consideration of 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.
Id.
at 395;
see also
Northwest Conduit Corp.
,
18 BNA OSHC 1948, 1951 (No. 97-851, 1999).

“[N]either a lack of prejudice to the Secretary nor good faith on the part of Respondent in attempting to comply with the statutory filing requirement alone will excuse a late filing.”
Prime Roofing Corp.
, 23 BNA OSHC 1329 (No. 07-1409, 2010) .

The Commission has held that whether the reason for the delay was within the control of the respondent is a “key factor” in determining the presence of “excusable neglect.” A. S. Ross, Inc.,
19 BNA OSHC 1147 (No. 99-0945, 2000);
See also
Calhar
Constr. ,
Inc ., 18 BNA
OSHC 2151 (No. 98-0367, 2000). A party seeking relief under Rule 60(b)(6) “must show ‘extraordinary circumstances’ suggesting that the party is faultless in the delay.”

Where a party is partly to blame for the delayed filing, relief from the final order must be sought under Rule 60(b)(1) and the party’s neglect must be excusable. See Pioneer Investment Serv. ,
507 U.S. at 393 . The Commission requires an employer to exercise due diligence before it will find excusable neglect. Keefe Earth Boring Company, Inc . ,
14 BNA OSHC 2187, 2192 (No. 88-2521, 1991) ;
Craig Mechanical ,
16 BNA OSHC at 1763.

It is the Secretary’s burden to establish service of the Citation. Apollo Auto
does not dispute the Citation was served. It also is not disputed t hat
Apollo Auto
did not contest the Citation
and Failure to Abate
within the requisite time period s . Apollo Auto’s
contest letter was received by Commission
on July 25, 2018 ,
well after the f inal contest due date s . Therefore, by operation of law, the Citation , Failure to Abate
and proposed penal ties
must be deemed Final Order s
of the Commission, unless
Apollo Auto
can demonstrate it is entitled to relief.

The Court finds Apollo Auto has not demonstrated it is entitled to relief.
Neither
the record evidence nor Apollo Auto’s explanations for its late filing show deception or a failure to follow proper procedures on behalf of the Secretary. Apollo Auto received the Citation and the Failure to Abate. Both unambiguously provide in conspicuous typeface that Apollo Auto had 15 working days after receipt within which to file a notice of contest. Therefore, the Court finds the Secretary did not engage in deception and followed proper procedures in this matter.

The only
reason
Apollo Auto has provided
to the Court
for the delay is that it considers OSHA’s actions to be “very harsh.”
This provides
insufficient
basis for the Court to conclude that the reason for the delay was not under Apollo Auto’s control. Therefor e , the Court finds the delay
was within Apollo Auto’s control . T he Court finds that Apollo Auto failed to exercise due diligence and was simply negligent in failing to file
c ontest s
before the expiration of the contest period s . The Commission has long held an employer’s mere carelessness or negligence, even 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) . Acrom
Constr. Serv. , 15 BNA OSHC 1123, 1126 (No. 88-2291, 1991).

Apollo Auto has not provided the Court evidence regarding
any
good faith efforts to timely contest. However, the Secretary asserts in his motion Apollo represented it was unable to respond because of preoccupation with personal family medical issues (Opposition, p. 7). The
record does not demonstrate that Apollo Auto made any efforts prior to the statutory filing deadline or immediately after, regarding the Citation or Failure to Abate. Therefore, the Court finds that Apollo Auto did not make a good faith effort to comply.

The Court also finds that Apollo Auto has not alleged a meritorious defense, which is also required for relief.
An employer
must also establish the presence of a meritorious defense for Rule 60(b)(1) relief.
Northwest Conduit Corp. A meritorious defense is one that is valid at law with respect to the underlying action. Park Nursing Center, Inc., v. Samuels,
766 F.2d 261, 264 (6 th
Cir. 1985). The presence of a meritorious defense is “satisfied with minimal allegations that the employer could prove a defense if given the opportunity.” Jackson Assoc. of Nassau , 16 BNA OSHC 1261, 1267 (No. 91-0438, 1993).

The Secretary has not argued that he is prejudiced by the late filing. Therefore, the Court finds the Secretary is not prejudiced by the late filing. However, a
lack of prejudice to the Secretary ,
alone ,
will
not
excuse a late filing.

Prime Roofing Corp ., 23 BNA OSHC 1329 (No. 07-1409, 2010).

The final consideration is the impact of the delayed filing on the judicial proceedings. The
delayed filing in this matter would not adversely impact the proceedings.

Having considered
all
factors enunciated in
Pioneer,
relief from the Final Order in this matter is
not
warranted.

Apollo Auto’s control over the delay and its lack of good faith are determinative. Apollo Auto has not
show n
“ extraordinary circumstances ”
suggesting that
it
is faultless in the delay”
as required for
relief under Rule 60(b)(6) .

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The foregoing decision constitutes the Findings of Fact and Conclusion of Law in accordance with Rule 52(a) of the Federal Rules of Civil Procedure.

ORDER

Therefore, f or the reasons set forth herein,
Apollo Auto ’s
request for relief
pursuant to Rule 60(b)(1)
is
HEREBY
DENIED .

The Final Orders for the Citation and the Failure to Abate are undisturbed and are
AFFIRMED.

SO
ORDERED.

/s/            

Dated: February 1 4 , 2019
      Administrative Law Judge

Atlanta, Georgia

"

1
On June 29, 2018, OSHA issued
an other-than-serious Citation to Apollo Auto proposing a penalty in the amount of $311.00. Apollo Auto timely contested the June 29, 2018 Citation. The Commission’s Executive Secretary docketed the matter as OSHRC Docket No. 18-1193. On December 11, 2018, Judge Brian Duncan issued a Decision affirming the Citation and assessing the proposed penalty due to Apollo Auto failing to appear on a scheduled Simplified Proceedings Conference Call and failing to respond to his Order to Show cause for not appearing. The Decision became a Final Order of the Commission on January 28, 2019.

2
Ms.
Iz e n
has not filed a Notice of Appearance in this matter. O n
November 6,
2018,
Ms.
Izen
advised the Court

that
she would not be representing Apollo Auto in this matter.