JRA Construction Corporation

Plain-English summary

OSHA issued JRA Construction one repeat-serious citation after inspecting a worksite in Aurora, Colorado. The company received the citation on June 19, 2021, making its written notice of contest due July 9, but it did not submit a contest until December 12. The late filing gave no reason for the delay and disputed only the repeat classification. JRA did not respond to the Secretary's motion or the judge's order requesting information about the delay and the company's mail-handling process. The judge found no basis for relief, dismissed the contest with prejudice, and affirmed the $22,527 citation.

Decision snapshot

• Cited standard(s): The public order does not identify the standard underlying the repeat-serious citation.
• Outcome: The late notice of contest was dismissed with prejudice, and the repeat-serious citation and $22,527 penalty were affirmed.
• Key point: A late contest will not be reopened when the employer offers no explanation for missing the 15-working-day deadline and does not respond to opportunities to establish excusable neglect.

Full text (OSHRC public release)


Document

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

U.S. CUSTOM HOUSE

721 19TH STREET, ROOM 407

DENVER, COLORADO 80202-2517

SECRETARY OF LABOR,   

Complainant,   

v.

JRA CONSTRUCTION CORPORATION ,

Respondent.   

OSHRC Docket No.:
22-0048

For Complainant: Timothy S. Williams ,
Esq.
and
Karen
Bobela , Esq. , U.S. Department of Labor, Office of the

Solicitor,
1244 Speer Blvd.

515, Denver, CO 80204

For Respondent:
Jose Rodriquez, JRA Construction Corporation,
338 Spruce St., Bennett, CO 80102

JUDGE :

First
Judge Patrick B. Augustine , U.S. Administrative Law Judge

DECISION AND
ORDER GRANTING COMPLAINANT’S MOTION TO DISMISS

UNTIMELY
NOTICE OF CONTEST

Jurisdiction

This proceeding is before the Occupational Safety and Health Review Commission (Commission) pursuant to
§
10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651
et seq.
(Act)
due to
the
untimely
filing of a
Notice of Contest
(NOC) by Respondent with the Commission .
Jurisdiction over this action is conferred upon the Commission by Respondent filing a
NOC .
See
Slingluff
v. OSHRC,
425 F.3d 861 (10th Cir. 2005).

Right to Request a
Hearing

On March 7, 2022, the Court issued an
Order to Respondent
which advised
the Parties, that either party could request a hearing on this matter within
fourteen( 14) days of the
date of the Order .
The
Order to Respondent
also stated that failure to request a hearing would be deemed a waiver of a hearing
and the Court would proceed to issue its Findings of Fact and Conclusions of Law
(Decision and Order) based on the
filings contained in the record. Neither party requested a hearing on the late NOC issue .

Procedural Background

The Occupational Safety and Health Administration ( OSHA )
conducted an inspection of Respondent’s worksite located at
22721 Narrowleaf, Auro r a, CO
on
May
8, 2021.
As a result of the inspection ,
OSHA issued
one
“ Repeat-S erious”
c itation
to Respondent
(Citation. ) The Citation proposed Respondent pay a penalty in the amount of $ 22,527 .00 for the
Repeat-S erious citation (Citation 1, Item 1) .

OSHA mailed the Citation to Respondent via United States Postal Service (USPS) ,
certified mail , to Res pondent’s office at 338 Spruce, Bennett, CO 80102 . Based on the certified mail return receipt provided by USPS, the
C itation w as
received by
and signed for by
Respondent
at 11:19 am on June
19,

2021
by Maria Velasquez. 1

The Citation informed Respondent of its right to contest the citation 2
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.

See
Citation and Notification of Penalty ,
p.
2.

Respondent
was entitled to
fifteen
( 15 )
working days to contest the Citation.
Respondent’s
NOC
was due by
July
9, 2021 .
Respondent failed to file its NOC by that date.
Respondent filed its
NOC
contesting the Citations and associated penalties on
December 12, 2021 ,
by sending
a written NOC , certified
United States
Mail,

to
the Commission 3 .
Thus , u sing
December 12, 2021 ,
as the operating date on which the timeframe runs ,
the NOC was
over five months
late.
T h e
late NOC filed with the Commission
provided no reason for its delay .
It also appears to acknowledge its responsibility for the Citation .
Respondent
takes issue only with the issue the Citation was issued as Repeat citation.
T he record indicates no informal conference was held due to the NOC being untimely filed.

B y operation of law, the Citation ha s
become a final order of the Commission .
By filing a late NOC
Respondent has, in effect, requested relief from the operation of
§
10(c) of the Act .
Rule 60(b) states that “[o]n motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding
. . . . ” Fed.
R.
Civ.
P. 60(b ) ( Rule 60(b)).
Rule 60(b)
lists the reasons that would provide a sufficient basis for granting the relief requested.
Id .

On
February 23, 202 2 ,
Complainant
filed his
Opposition
to Relief Under Federal Rule of Civil Procedure Rule 60(b)
(Motion) .
Complainant
seeks affirmance of
the
C itation and the proposed penalties because Respondent failed : ( i )
to file a timely NOC ; (ii)
to
demonstrate “excusable neglect” pursuant to
Rule
60(b) (1) ; and
(iii)
R espondent received actual notice of the Citation and failed to comply with the instructions—typed in bold-face and underlined print—indicating the deadline for filing a NOC .

Controlling Case Law

Upon receiving a
C itation, an employer has
fifteen ( 15 )
working days within which it must file a NOC .
See
§
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).

T he Commission has recognized two situations where the finality of
§
10(a) of the Act, 29 U.S.C. § 659(a), does not preclude the Commission from hearing an employer’s challenge to
c itations even when a timely notice of contest has not been filed .
The first is where the Secretary has employed deceptive practices or fails to comply with required procedures.
See Secretary of Labor v. Louisiana-Pacific Corp.,
13
BNA
OSHC 2020
(No. 86-1266, 1989).
There is nothing in the administrative record to suggest this
situation is present in this case.   

The second situation is where the employer requests relief under
Rule
60(b) .
The Commission has held an employer may move under
Rule
60(b) for permission to file a late
NOC .
Branciforte
Builders , 9 BNA OSHC 2113 (No. 80-1920, 1981) .
The burden is on the employer to show sufficient basis for relief under the rule.
Id . See also Craig Mech. Inc.,
16 BNA OSHC 1763, 1764 (No. 92-0372s,
1994)( Respondent bears burden to establish basis for relief,
aff’d per
curiam
553 F.3d 633 (5th Cir. 1995)(unpublished) .

A late filing may be excused under Rule 60(b)(1) if the final order was entered because 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 neglect standard of
Rule 60(b)(1)); 4
Branciforte
Builders, Inc. , 9 BNA OSHC 2113, 2117 (No. 80-1920, 1981) .

A late filing also may be excused under Rule 60(b)(3) 5
if the late filing was caused by the Secretary’s “ fr aud (whether previously called intrinsic or extri nsic), misrepresentation, or misconduct by an opposing party.”
See
Branciforte
Builders, Inc. , 9 BNA OSHC 2113, 2117 (No. 80-1920, 1981);
B.J. Hughes, Inc ., 7 BNA OSHC 1471, 1476-77 (No. 76-2165, 1979) .
See also Atlantic Marine, Inc. v. OSHRC , 524 F.2d 476, 478 (5 th
Cir. 1975) (per
curiam ) .
Respondent offers no argument
Complainant engaged in
fraud or misrepresentation .
Respondent does argue that
for four months it waited for OSHA to get back to it
because of a question as to the corporate entity status of Respondent .
Therefore, it alleges misconduct by Complainant .
However, Respondent does not offer
a reason
it did not file a timely NOC while it was waiting
for OSHA to get back to it .
Respondent is not relieved from filing a timely NOC because it had questions as to the Citation
it wanted answered from OSHA .
To protect its
rights
it should have filed a timely NOC
and then pursued its request for clarification
from OSHA
before the Court .

Further, a late filing may be excused under Rule 60(b)(6) 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 2116-17 .
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 Invest. Servs. Co. v. Brunswick Assocs. Ltd.
P’ship , 507 U.S. 380, 393 (1993) ( Pioneer ) .
In this case, Respondent d id not contend
or present any evidence
in its NOC which would justify
relief under Rule 60(b)(6) .

In determining whether
Respondent’s
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) .
Under
Pioneer , the Court must consider “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.” Pioneer , 507 U.S. at 395.
See Evergreen
Envtl
Serv , 26 BNA OSHC 1982, 1984 (No. 16-1295, 2017).
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. 7

The Supreme Court stated that “inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute ‘excusable’ neglect.”
Pioneer , 507 U.S. at 392. 8 The Court found “excusable neglect” to be, in part, an “elastic concept” not restricted to “omissions caused by circumstances beyond the control of the movant.”
Id. Regarding relief sought pursuant to Rule 60(b) ( 1 ) , the Court stated that “’excusable neglect’ is understood to encompass situations in which the failure to comply with a filing deadline is attributable to negligence.”
Id.
at 394

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 .
NW Conduit Corp. , 18 BNA OSHC
at
1950 .
See also
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”) .

Therefore, l ong-settled Commission precedent 9
focuses on the third factor in the
Pioneer
equitable analysis .
CalHar
Constr., Inc.,
18 BNA OSHC 2151, 2153-54 (No. 98-0367, 2000) .
In appropriate circumstances, the Commission finds this to be the dispositive factor. Commission decisions state that “[e] mployers
must maintain orderly procedures for handling important
documents,” and when the lack of such procedures results in the untimely filing of a notice of contest, Rule 60(b) (6)
relief is not warranted.
A.W. Ross, Inc. , 19 BNA OSHC 1147, 1148-49 (No. 99-0945, 2000) (relief under Rule 60(b) (6)
denied where the employer’s president failed to carefully read and act upon information contained in the citation);
CalHar
Constr., 18 BNA OSHC at 2153-54 (relief denied where administrative employees assigned to process the citation did not exercise diligence in timely filing a written contest).

It well settled 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. The Commission has consistently held “[e] mployers
must maintain orderly procedures for handling important documents,” and that when the lack of such procedures results in the untimely filing of a notice of contest, relief under Rule 60(b) (6)
is not warranted.
Villa Marina Yacht Harbor, Inc. , 19 BNS OSHC 2185, 2187 (No. 01-0830, 2003) (company messenger mishandled mail);
A.W. Ross, Inc ., 19 BNA OSHC 1147, 1149 (No. 99-0945, 2000) (employer's president failed to carefully read and act upon information contained in citation);
Montgomery Security Doors & Ornamental Iron, Inc.,
18 BNA OSHC 2145, 2148 (No. 97-1906, 2000) (record showed a breakdown of business procedures such that relief was not warranted even assuming employee sabotage);
Louisiana-Pacific Corp ., 13 BNA OSHC 2020, 2021 (No. 86-1266, 1989) (notice of contest was overlooked due to personnel change in operations manager position).

Analysis

Respondent seeks relief from the operation of
§
10(a) of the Act, which 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 . . . 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 .

29 U.S.C. § 659(a).

While there is no evidence Respondent’s late contest filing was prejudicial to the Secretary or negatively impacted the Commission proceedings, the reason for the delayed filing was within Respondent’s reasonable control .
See
CalHar
Constr., 18 BNA OSHC at 2153 n.5. Respondent’s delay in filing the notice of contest was a result of Respondent’s lack of diligence in failing to carefully read and act upon the information contained in the citation regarding filing a timely contest. This factor is dispositive .
There is no justification for granting Rule 60(b)
relief under any subsection .

Because the Respondent failed to respond to the Motion,
and in the hope Respondent would provide additional information as to the reasons why its NOC was late and
provide information of its
business process it had in place to process incoming mail,
the Court issued
on July 30, 2021,
an
Order
to Respondent , directing Respondent to
show cause within fourteen (14) days ,
why the Court should not issue judgment against Respondent, affirming the proposed violations in this case for: (1) failure to timely file a
Notice of Contest
pursuant to Commission Rule 33(b) , 29 C.F.R.
§ 2200.33(b) ;
and
(2) for failure to respond to
Complainant’s
Motion.
To - date, Respondent has failed to file a response to the Court’s
Order to
Respondent .
In addition, the
Order to
Respondent
has not been returned to the Court by the U. S. Postal Service as undeliverable.
The
Order to Respondent
was
sent to the address provided Respondent in its
late NOC
and also
emailed to Respondent at the email provided
in the late NOC.
Under Commission Rule 6, it is Respondent’s
duty to advise the Court of any change of address .
See 29 C.F.R .§ 2200.6. 10
Respondent has not filed a change of address with the Court .

Respondent was provided an opportunity to provide the Court needed information by responding to the
Order to
Respondent . Respondent failed
to take advantage of this opportunity
to provide the Court with any information which could assist the Court in determining
whether
Respondent’s late NOC could be accepted under Rule 60 (b) ( 1) .

T he Court finds
OSHA, as well as this Court,
ha ve
conveyed due notice to Respondent of its procedural rights and provided ample warning that its failure to comply with Court orders may result in the dismissal of its
NOC .
Respondent has failed to take advantage of the opportunity to advise the Court that it has not abandoned its case before the Commission. Every indication before the Court is that Respondent has walked away from its contest .
Under these circumstances, the Court sees no worthwhile purpose in allowing this case to proceed
by finding a basis for relief
for
its late NOC under
any provision of
Rule 60 (b) . There is
no basis to believe Respondent will fulfill its pre-trial obligations or
actually appear
at the trial
should the Court find Respondent is entitled to relief under Rule 60 (b) .
11 See Twin Pines Constr. Inc./ Teles
Constr. , 24 BNA OSHC 1500, 1504 (No. 12-1328, 2012) (No worthwhile purpose in proceeding to a hearing where a party has abandoned the case) .
The Court finds that Respondent relinquished its case with the intent to abandon. 1 C.J.S. Abandonment § 13 (2013).

O rder

Respondent bears the burden of demonstrating that it is entitled to relief.
See Burrows Paper Corp.,
23 BNA OSHC 1131 (No. 09-1559, 2010);
Louisiana-Pacific Corp.,
13 BNA OSHC 2020, 2021 (No., 86-1266, 1989). Here, Respondent has provided no excusable basis for its failure to file a timely NOC before its due date.
T he Court finds
Respondent
failed to file a timely NOC
and no relief under
any provision of
Rule 60 (b)
is justified.

Complainant’s
M otion is GRANTED .
Respondent’s NOC is dismissed ,
with prejudice ,
as untimely filed .
T he citation s
and penalt ies
are
AFFIRMED .
Accordingly, the Court ORDERS:

1.
Citation 1, Item 1 is AFFIRMED as a
Repeat-S erious citation and a $ 22, 527 .00 penalty is ASSESSED.

SO
ORDERED.

Patrick B. Augustine

Patrick B. Augustine

First
Judge
–
Denver
OSHRC   

Date: May 9, 2022

Denver, CO

"

1
See
Ex h ibit
A attached to Complainant’s Opposition to Relief Under Federal
Rule of Civil Procedure Rule 60(b).

2
The Secretary of Labor has prescribed requirements for an employer to timely make a notice of contest .
The employer contest must be made in writing .
29 C.F.R. § 1903.17(a) .
See Sec’y of Labor v.
Barretto
Granite Corp ., 830 F.2d 396, 398 (1 st
Cir. 1987) (per
curiam ).

3
The
late NOC sent to the Commission came from the same address to which the Citation was sent by OSHA and to which all Orders and Notices of the Court were sent.

4
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)).

5
Rule 60(b)(3) provides that relief from a final order may be granted where there is fraud, misrepresentation, or misconduct by an opposing party

6
Rule 60 also has provisions for relief
under Rule 60(b)(2) which allows for relief
when newly discovered evidence that ,
with reasonable diligence , could not have been discovered in time to move for a new trial under Rule 59(b) .
Rule 60(b)(4)
also provides relief when a judgment is void .
Finally, Rule 60(b) (5) also provides relief when the judgment has been satisfied,
released,
or discharged .
Nothing in the factual record of the case indicates any of these provisions are implicated since a trial has not been held
to invoke the “newly discovered” provisions .
Likewise, there is nothing to indicate the judgment is void .
Finally, Respondent’s late NOC clearly states the judgment has not been satisfied ,
released,
or discharged .

7
This definition has been applied to other federal procedural rules, including proceedings by the Commission .
See
NW Conduit Corp. , 18 BNA OSHC
at
1950.

8
Commission precedent states that ignorance of procedural rules does not constitute “excusable neglect” and that mere carelessness or negligence, even by a lay person, in failing to timely file a notice of contest does not justify relief under Rule 60(b) (6) .
Acrom
Constr. Serv. Inc. , 15 BNA OSHC 1123, 1126 (No. 88-2291, 1991);
Keefe Earth Boring Co ., 14 BNA OSHC 2187, 2192 (No. 88-2521, 1991).

9

The Tenth Circuit, which is where this case arose, has not decided a contrary application of
Pioneer
and how the Commission has applied it .
Thus, the Court will follow Commission case law on the issue presented.
See Kerns Bros. Tree Serv. , 18 BNA OSHC 2064, 2067 (No. 96- 1719, 2000) (“Where 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.”).

10
Rule 6 of the Commission’s Rules of Procedure, 29 C.F.R. § 2200.6, provides that:

Record Address: Every pleading or document filed by any party or intervenor shall contain the name, current address,
and telephone number of his representative or, if he has no representative, his own name, current
address,
and telephone number. Any change in such information shall be communicated promptly in writing to the Judge, or the Executive Secretary if no Judge has been assigned, and to all other parties and intervenors.
A party or intervenor who fails to furnish such information shall be deemed to have waived his right to notice and service under these rules.

29 C.F.R. § 2200.6 (emphasis added).