Burlington Capital PM Group, Inc., d/b/a Post Woods Apartment Homes

Plain-English summary

OSHA cited Burlington Capital PM Group after an employee fell from a ladder at an Ohio apartment property, alleging a violation of the ladder-inspection rule and proposing an $11,934 penalty. Burlington promptly prepared a notice of contest, but an administrative assistant mistakenly shipped it to the inspected property instead of OSHA. The ALJ denied relief from the resulting final order because the mailing error was within Burlington's control. The Commission found no prejudice to the Secretary, harmful impact on the proceeding, or bad faith, and Burlington had alleged meritorious defenses. It held that the one-time, unforeseen shipping mistake occurred despite otherwise orderly citation-handling procedures and qualified for relief under Federal Rule of Civil Procedure 60(b)(1). The Commission reversed the denial and remanded for further proceedings without deciding the citation's merits.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.23(b)(9).
• Outcome: Late notice of contest accepted for Rule 60(b)(1) relief, and the citation case remanded for further proceedings.
• Key point: An isolated mailing mistake can be excusable neglect when the employer otherwise has orderly procedures and the remaining equitable factors support relief.

Full text (OSHRC public release)


Burlington Capital PM Group, Inc.,d/b/a Post Woods Apartment Homes, OSHRC Docket No.: 20-0528

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.
20 - 0528

BURLINGTON CAPITAL PM GROUP, INC. ,
D/B/A POST WOODS APARTMENT HOMES,

Respondent.

R EMAND
ORDER

Before: SULLIVAN , Chairman; ATTWOOD and
LAIHOW , Commissioners.

BY THE
COMMISSION:

On
review is
an
August 13, 2020
decision issued by
Administrative Law Judge Sharon D. Calhoun
denying
Respondent’s
request for relief pursuant to
Federal Rule of Civil Procedure
60(b)(1)
and granting the Secretary’s
motion to
dismiss. For the following reasons,
we reverse the judge’s decision and remand the case for further proceedings.

On October 21, 2019, the Occupational Safety and Health Administration issued Burlington Capital PM Group,
Inc. d/b/a Post Woods Apartment Homes a one-item serious citation
alleging
a
violation of 29 C.F.R.
§
1910.23(b)(9)
following an inspection of
the company’s
Post Woods
apartments
in Reynoldsburg, Ohio. On October 25, 2019, Burlington’s corporate office
in Omaha, Nebraska received the citation. A few days later,
a
paralegal for Burlington’s in-house counsel
prepared
a
notice of contest (NOC) and
gave
it
to
an
administrative assistant
whose duties included
preparing mail and packages for the company. The paralegal
instructed the administrative assistant
to send
the
NOC,
which was
addressed to OSHA’s
Area Office in
Columbus, Ohio,
via UPS and bill the charges to the Post Woods account. However, according
to
a
report
detailing
Burlington’s shipments
during that
time period,
on October 29, 2019,
the administrative assistant
mistakenly
sent
the
NOC
to Post Woods. 1

On
November 25, 2019, OSHA received
Burlington’s
proof of abatement
of the
alleged
violation
and training of the employee whose injury prompted the inspection. On January 9, 2020, having
not
received an
NOC or payment
of the penalty,
OSHA sent a letter notifying Burlington that it was delinquent in its
payment. On March 4, 2020, counsel for Burlington
contacted OSHA
to
provide a copy of the NOC and the company’s internal email correspondence regarding the
NOC’s
preparation and
mailing. After being advised that OSHA
had
never received the NOC,
on March 13, 2020,
Burlington filed a motion to submit a late
NOC
that included
the original
NOC, which was
dated
October 28, 2019,
and
an
affidavit from
the
paralegal
explaining the circumstances
surrounding
the NOC’s
drafting and
submission. At the
request
of the judge, the company’s
motion was followed by the filing of a supplemental request for Rule 60(b)(1) relief
that included
an affidavit from the administrative assistant explaining that
she “inadvertently shipped the [NOC] to Post Woods . . . instead of [OSHA’s Area Office] as addressed on the envelope.”

Under Rule 60(b)(1), the Commission may
grant
relief from a final order due to a party’s “mistake, inadvertence, surprise, or excusable neglect.” 2 Fed. R. Civ. P. 60(b)(1).
See also
29 U.S.C. § 661(g) (Commission proceedings shall be in accordance with the Federal Rules of Civil Procedure unless the Commission has adopted a different rule). In evaluating a claim of excusable neglect under Rule 60(b)(1), the Commission applies the framework set out in
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.
P’ship , 507 U.S. 380, 395 (1993):

[T]he determination is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission. These include
. . .
the danger of prejudice to the
[opposing party], the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith.

Northwest Conduit Corp ., 18 BNA OSHC 1948 (No. 97-0851, 1999). In addition, to prevail on a motion for relief pursuant to Rule 60(b)(1), the moving party
must
allege a meritorious defense. Id.
at
1951.

In
response to Burlington’s
initial
motion,
the Secretary filed a
motion to dismiss,
arguing, among other things, that Burlington
failed to prove it exercised sufficient diligence to
warrant relief and did
not articulate a defense to the citation. In
response,
Burlington
admitted
that
its
mailing
error, seemingly within its control,
was
the reason for
the
delay
in
filing,
but
argued
that
this factor
should not
alone outweigh
other relevant factors, such as the fact that Burlington acted in good faith, there
was
no prejudice to the Secretary or interests
of efficient judicial administration, and the delay was attributable to a single instance of unforeseen human error. The judge
rejected Burlington’s argument and
concluded
that because the delay was within
its
control and
the company lacked
procedures
to prevent such an error or confirm that items were
sent
to the correct address, Burlington was not entitled to relief. 3

As the judge noted,
the Secretary does not assert that
he
is prejudiced by the
late filing,
the delay does not adversely impact the Commission’s proceedings,
the record does
not demonstrate that
Burlington acted in bad faith,
and Burlington
has
alleged a meritorious defense. Although
its
late filing
was due to an error
attributable to a
Burlington employee,
the Commission has distinguished between cases
in which
an employer’s
deficient procedures lead to a delay in filing
and
those
in which
there
is
an unforeseeable
misunderstanding or
miscommunication
that results in a delay despite the company’s otherwise sufficient procedures. Compare
Villa
Marina Yacht Harbor, Inc.,
19 BNA OSHC 2185, 2187 (No. 01-0830, 2003) (denying
relief when
company messenger mishandled mail
leading company to calculate incorrect due date for NOC),
and
Louisiana-Pacific Corp ., 13 BNA OSHC 2020,
2021
(No. 86-1266, 1989) (denying
relief based on employer’s explanation that citation got “lost in the shuffle during a change in management”
as
employers
are expected
to “maintain orderly procedures for handling important documents”),
with P & A Constr. Co. , 10 BNA OSHC 1185, 1186 (No. 80-3848, 1981) (granting
relief where employer’s attorney dictated
the
NOC
to his secretary before traveling out of town and
was
assured when he called that it had been timely mailed,
but due to an inadvertent technical mistake by his secretary,
the NOC was not sent),
and
Northwest Conduit Corp ., 18 BNA OSHC at 1951-52
(granting
relief because
delay
was due to miscommunication between
employer’s
president and its attorney,
“not due fundamentally . . . to deficient procedures . . . for handling important documents”).

Here,
the late filing falls into this latter category. Burlington’s failure to timely file its
NOC
was
due to
an
understandable
mistake
by the
administrative
assistant
in mailing the document
to the
inspected
worksite
instead of the
OSHA
Area
Office. This
was
an unforeseen
error by
the administrative assistant, not the result of
a
deficient procedure.

In fact,
Burlington’s
receipt of the citation and
prompt preparation of the NOC
in response
demonstrates
that
its
procedures for handling OSHA citations
were
orderly. See
P   & A Constr. , 10 BNA OSHC
at 1186;
N orthwest
Conduit , 18 BNA OSHC
at
1951-52.

Accordingly, we
reverse the judge’s decision denying Burlington’s
request
for relief under Rule 60(b)(1)
and remand the case to the judge for further proceedings.

SO
ORDERED.

/s/               

James J. Sullivan, Jr.

Chairman

/s/               

Cynthia L. Attwood

Commissioner   

/s/               

Amanda Wood Laihow

Dated:
December 31, 2020   


   Commissioner

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.:
20-0528

Burlington Capital PM Group,
Inc.,

d / b / a Post Woods Apartment Homes,

Respondent.

DECISION AND ORDER

This matter is before the Occupational Safety and Health Review Commission on a Request for Relief Under Rule 60(b) filed by Respondent Burlington Capital PM Group, Inc. d/b/a Post Woods Apartment Homes (Burlington) and docketed by the Commission on April 7, 2020, regarding a Citation and Notification of Penalty issued on October 21, 2019, to which the
Secretary of Labor, United States Department of Labor (Secretary) filed a Motion to Dismiss and Opposition. By Order issued July 29, 2020, the Court denied Burlington’s Motion for Rule 60(b) Relief and Granted the Secretary’s Motion to Dismiss. The Court’s July 29, 2020, Order is incorporated herein and sets forth the basis for this Decision and Order. (Attached)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The
d ecision
herein, incorporating the Court’s July 29, 2020 Order,
constitutes the Findings of Fact and Conclusion of Law in accordance with Rule 52(a) of the Federal Rules of Civil Procedure.

ORDER

Therefore, for the reasons
incorporated
herein,
Burlington’s request for relief pursuant to Rule 60(b)(1) is
HEREBY
DENIED .
T he Secretary’s Motion to Dismiss is
HEREBY GRANTED.

SO
ORDERED.            

/s/ _________

Sharon D. Calhoun

Dated: August 13 , 2020          Administrative Law Judge, OSHR C

Washington, DC

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.:
20-0528

Burlington Capital PM Group,
Inc.,

d / b / a Post Woods Apartment Homes,

Respondent.

ORDER
GRANTING THE SECRETARY’S MOTION TO DISMISS AND

DENYING BURLINGTON’S M OTION FOR RULE 60 ( b )
RELIEF

This matter is before the Occupational Safety and Health Review Commission on a Request for Relief Under Rule 60(b) 4
filed by Respondent
Burlington Capital PM Group, Inc. d/b/a Post Woods Apartment Homes (Burlington) and
docketed by the Commission
on
April 7, 2020,
regarding a Citation and Notification of Penalty issued on
October 21, 2019. Burlington
asserts, as excusable neglect,
its good faith as the basis it
should be relieved from the
final
order. T he Secretary of Labor, United States Department of Labor (Secretary) filed a
Motion to Dismiss and an Opposition to Respondent’s Motion to Submit Late Notice of Contest on the basis that both the Notice of Contest (NOC) and the Motion are untimely.
Pursuant to the Court’s Order, on
June 26 ,
Burlington fi led a
Supplemental Request for Rule 60(b) Relief and Response to Motion to Dismiss,
further explaining its delay in filing and
asserting a
meritorious defense.

For the reasons set forth below,
Burlington ’s
request for r elief pursuant to Rule 60(b) is
DENIED .

Background

This matter arose out of
an
inspection of
Burlington’s j obsite located at
540 Post Woods Drive, Reynoldsburg, Ohio
by the Occupational Safety and Health Administration (OSHA) on
August 16, 2019. The inspection was initiated due to notification that an employee had fallen 12 feet 3 inches to the ground from a ladder.
As a result of
the
safety inspection, on
October 21, 2019 ,
OSHA
issued to
Burlington
a Citation and Notification of Penalty alleging
a
serious violation
of the
standard
found at
§ 19 10 . 23(b)(9) for failing to ensure the ladder was inspected prior to use. OSHA proposed a penalty
of $ 11,934 .00
for the alleged violation .

The Citation was
mailed to
Burlington
by
Certified
Mail
Return Receipt.
The Return
Receipt shows
the
Citation
was
delivered to
Burlington
and signed for
as received
on
October 25, 2019.
(Opposition,
Exh. 1 (Wilson Declaration,
Exh. B)).

The
Citation provides
Burlington had 15 working days from the date of receipt to contest.
Based on the
October 25, 2019, delivery date excluding weekends and Federal holidays, the 15-day contest period expired on
November 18, 2019. OSHA did not
receive
a
NOC
within the contest period.
Therefore, the
Citation
became a
final
order of the Commission under § 10(a) of the Act
on November 19, 2019.

Burlington
contends it is entitled to relief from the
f inal
o rder
based on good faith as excusable neglect, asserting its NOC was erroneously addressed to one of its properties rather than to OSHA. Burlington admits its error but argues “the missed deadline was attributable to a single instance of unforeseen human error.” Further, Burlington contends the Commission has not cited another instance where it missed a filing deadline
( Supplemental Response , p.
5 ) . In support of its position, Burlington relies on the analysis set forth by the Third Circuit in
George Harms Constr. Co. v. Chao , 371 F.3d 156 (3d Cir. 2004)
where the Third Circuit rejected the Commission’s placing more weight on the control factor at the expense of the other equitable factors.

DISCUSSION

Legal Standards

Pursuant to the requirements of the Act, an employer is required to notify the Secretary of its intent to contest a citation within 15 working days of receipt.
Failure to timely file a
NOC
results in the citation becoming a final order of the Commission by operation of law. Burlington’s contest was filed with the Commission on
April 6, 2020 and docketed by the Executive Secretary of the Commission on April 7, 2020, approximately 4 ½ months after the
final contest date.

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) .

In determining whether the late filing of a
NOC
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) .
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) ;
See
Craig Mechanical ,
16 BNA OSHC 1763, 1765-66 (No. 92-0372-S, 1994).

This matter can be appealed
to either the Sixth Circuit, the Eighth
Circuit
or the D. C. Circuit.
The Commission has held that “[w]here it is highly probable that a case will be appealed to a particular circuit, the Commission generally has applied the precedent of that circuit in deciding the case— even though it may differ from the Commission's precedent.”
Kerns Bros. Tree Serv. , 18 BNA OSHC 2064, 2067 (No. 96-1719, 2000);
see also Interstate Brands Corp. , 20 BNA OSHC 1102 at *5 n. 7 (No.00-1077, 2003) (since case could be appealed to the Third Circuit, judge properly applied that precedent even though it differed from Commission precedent).

Neither the Eighth Circuit nor the D.C. Circuit have addressed the Commission’s analysis of Rule 60(b). The Sixth Circuit does not deviate from Commission precedent regarding Rule 60(b) and whether control of respondent is a key factor in determining the presence of excusable neglect.

In order to
be eligible for relief under 60(b)(1) the movant must demonstrate the following: (1) The existence of mistake, inadvertence, surprise, or excusable neglect. (2) That he has a meritorious defense. . .

In applying 60(b), OSHRC is required to make a careful determination as to the presence of the two requirements reviewed in this decision.

Marshall v. Monroe & Sons, Inc . 615 F.2d 1156, 1160, 1162 (Sixth Cir. 1980) (citations omitted). Therefore, the Commission precedent controls regarding the three circuits to which Burlington could appeal. In this case, the Commission is not bound by the Third Circuit’s decision in
George Harms Constr. Co. , supra .

Analysis

It is the Secretary’s burden to establish service of the citation . Burlington
does not dispute
the
Citation was served . And although it attempted to send a contest to OSHA, Burlington
does
not
dispute it did not contest
the
Citation within the requisite time - period.
Upon notification the contest had not been received, Burlington on April 6, 2020, filed i ts
NOC,
which
was
docketed
by Commission on
April 7, 2020 , well after the final contest due date. Therefore, by operation of law,
the
Citation must be deemed a
f inal
o rder of the Commission, unless
Burlington c an demonstrate it is entitled to relief .

To show it is entitled to relief,
Burlington submitted the Affidavit of Mary Copeland, Administrative Assistant in Burlington’s Supportive Services Department stating that she inadvertently shipped the [NOC contained in an envelope addressed to OSHA] to Post Woods Apartment Homes instead of to [OSHA]; and the Shipment Detail Report reflecting the NOC had been shipped by UPS to Post Woods Apartment Homes on October 29, 2019 (Supplement,
Exhs. 1, A). Burlington requests that the inadvertent shipping error be excused based on its good faith.

Although there is no indication in the record that Burlington did not act in good faith, the Court is bound by Commission precedent regarding this matter.
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 and
requires an employer to exercise due diligence before it will find 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) ;
Keefe Earth Boring Company, Inc. ,
14 BNA OSHC 2187, 2192 (No. 88-2521, 1991) ;
See
Craig Mechanical ,
16 BNA OSHC 1763, 1765-66 (No. 92-0372-S, 1994).

The Court is persuaded that due to human error Burlington’s contest was shipped to the
wrong address on October 29, 2019. However, Mary Copeland’s affidavit and the Shipment Detail show the contest was shipped to Burlington’s Post Woods Apartment Homes property at 1700
Farnam
Street, Omaha, NE 68102, by UPS ground. UPS confirmed a receiver address that was not OSHA’s but would not reveal the receiver’s address (Secretary’s Motion pp. 3-4,
Exh, 2). The pleadings before the Court are silent on what happened to the contest after it was shipped. Andria Bell’s affidavit filed with the Motion to file Late Notice of Contest provides “We are unsure where the letter ended up and it has not been returned to us.” (Bell Affidavit, March 9, 2020). However, Mary Copelands’s affidavit and the Shipment detail filed afterwards confirm the contest letter was shipped UPS to a Burlington property. There is no indication that it was returned to Burlington’s
Supportive Services Department. The Court finds the delay was caused by the contest being shipped to the wrong address. The record does not demonstrate any procedures in place to prevent such an error, or to confirm that items were shipped to the correct address. The delay was within Burlington’s control.

Where timely response was within the employer’s reasonable control, the Commission has denied
relief even to petitions filed only one or two days late,  see  Sec’y of Labor v. Villa Marina Yacht Harbor, Inc. , 19 BNA OSHC 2185, 2186-87 (2003) (one day late);  see also Sec’y of Labor v. A.W. Ross, Inc. , 19 BNA OSHC 1147, 1148-49 (2000) (11 days late). The Commission “has consistently denied relief” under Rule 60(b)(1) “to employers whose procedures for handling documents were to blame for untimely filings.”  Sec’y of Labor v. NYNEX , 18 BNA OSHC 1944, 1946-47 (1999) (citation omitted).

David E. Harvey Builders, Inc. v. Sec'y of Labor , 724 F.
App'x
7, 9 (D.C. Cir. 2018) (unpublished). Here, the NOC was 4 ½ months late, and the delay was entirely to blame on Burlington’s mail-handling procedure . H owever, as shown above, control is not the only factor the Court must consider. The Court must also consider t he danger of prejudice to the opposing party; the length of the delay and its potential impact on the proceedings; and whether the party seeking relief acted in good faith.

Danger of Prejudice

The Secretary
does not a ssert it would be prejudiced because of the nearly
4 ½ month
delay . Therefore, the Court finds the Secretary is not prejudiced by the late filing.

L ength of Delay and Impact on Proceedings

The Secretary does not address the impact of the 4 ½ month delay on his case. The Court determines the delay does not have a detrimental impact on the Commission’s proceedings in this matter and therefore would not adversely impact the proceedings.

Good Faith

The record does not demonstrate any bad faith on the part of Burlington. Therefore, the
Court finds
Burlington acted in good faith.

The Court has considered the factors required by
Pioneer.
Despite the lack of prejudice to the Secretary, a delay which would not adversely affect the Commission proceedings, and Burlington’s good faith, those factors are outweighed Burlington’s
control regarding timely filing of the NOC. Burlington was in control of its mail handling procedures which resulted in the NOC not being timely filed.

Meritorious Defense

In addition to the factors set forth in
Pioneer,
an employer also must 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) . Burlington
alleges
a lack of knowledge and unpreventable employee misconduct as defenses to the
Citation . Therefore, the C ourt finds
Burlington
has alleged a meritorious defense.

Having considered all factors enunciated in
Pioneer,
relief from the Final Order in this matter is
not
warranted.
T herefore, for the reasons set forth herein,
Burlington’s request for relief
pursuant to Rule 60(b)(1) is
HEREBY
D ENIED.
Accordingly, the Secretary’s Motion to Dismiss is
HEREBY GRANTED.

The
f inal
o rder regarding
the
Citation
remains undisturbed.

SO
ORDERED.

/s/ _________

Date: July 29, 2020            
Judge Sharon D. Calhoun

Washington, DC

"

1
The record shows that the administrative assistant
provided
the paralegal
with
a
UPS
tracking number for
the
NOC,
but
there is no record of receipt at Post Woods
(or anywhere else) ,
and
the tracking number is no longer active to determine the receiver ’s
address.

2
Rule 60(b)(1) provides in full that “[o]n 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[.]” Fed. R. Civ. P. 60(b)(1).

3
In
its petition for discretionary review,
Burlington claims that
there is a
split in the
U.S.
Circuit
Court s of
Appeals
on this issue and
the judge should have relied on a
Third
Circuit decision finding that an employer’s “reasonable control” of the delay of a filing is not necessarily fatal to a request for Rule 60(b) relief. See
George Harms Constr. Co. v. Chao , 371 F.3d 156 (3d Cir. 2004).

The Third Circuit , however,
is not
a
relevant circuit here for the purpose s
of an appeal as the worksite
i s in
Ohio
(located in the
Sixth
Circuit) and Burlington’s
corporate office is in Nebraska
(located in the
Eighth
Circuit). See
29 U.S.C. § 660(a) (parties may appeal to circuit
where worksite is located or employer is headquartered; employer may also appeal to D.C.
Circuit);
Kerns Bros. Tree Serv ., 18 BNA OSHC 2064, 2067 (No. 96-1719, 2000) (“Where it is
highly probable that a Commission decision would be appealed to a particular circuit, the
Commission has  . . .  applied the precedent of that circuit in deciding the case—even though it may
differ from the Commission ’ s precedent.”) (citation omitted) .

The Eighth Circuit has not ruled on
whether the Commission has authority to grant relief under Rule 60(b) following an untimely
NOC , while the Sixth Circuit has affirmed the Commission’s authority to do so and does not deviate from Commission precedent. Marshall v. Monroe & Sons , 615 F.2d 1156 (6th Cir.
1980) . The D.C. Circuit has not specifically affirmed the Commission’s authority to grant Rule 60(b)
relief, but
has relied on Commission precedent in “ assum [ing]
Rule 60(b)(1) ’ s applicability to  . . .  proceedings
[when]
neither party contest [ed]
it ” and affirming the Commission’s denial of Rule 60(b) relief. David E. Harvey Builders, Inc. v. Sec ’ y of Labor,
724 F. App ’ x 7, 8 (D.C. Cir. 2018) (unpublished )
( affirming
Commission’s decision to deny relief to employer for failing to timely file
an
NOC because it provided incorrect address to OSHA for mailing of citation as it comported with Commission precedent and law of
the c ircuit). Thus, Commission precedent applies in this case. See
Am. Eng’g
& Dev. Corp.,
23 BNA
OSHC 2093, 209 7
n.4 (No. 10-0359, 2012) (Commission “follow[s] [its] own precedent” where
the circuit court “has neither decided nor directly addressed [an] issue”) (quoting
McDevitt Street
Bovis, Inc ., 19 BNA OSHC 1108, 1110-12 (No. 97-1918, 2000) ) .

4
By Order issued June 26, 2020, the Court construed Burlington’s Late Notice of Contest as a Request for Relief Under Rule 60(b).