OSHRC ALJ decision Docket 22-0074, 22-0291 Decided October 20, 2022 Procedural Judge Dennis L. Phillips

Amazing Vitamins, LLC

Reconsideration denied and late contests dismissed

Apply this to your situation

This order from 2022 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.

Final order, not Commission precedent

This decision by an OSHRC Administrative Law Judge became a final order of the Commission because no Commissioner directed review (29 U.S.C. § 661(j)). It binds the parties in this case but is not binding precedent in other cases.

About this page: The plain-English summary and decision snapshot below were written by Ezel based on the official OSHRC release. The full text is the Commission's own document.

Read the official release (oshrc.gov)

Plain-English summary

OSHA issued Amazing Vitamins numerous citations arising from inspections of its nutritional-supplement manufacturing facility, including later failure-to-abate and repeat items. The company filed notices of contest long after the 15-working-day deadlines and argued that settlement discussions, mail issues, and excusable neglect justified reopening the final orders. The judge found that the citation documents clearly explained the deadlines, OSHA did not tell the company to disregard them, and the lengthy delays were within the company's control and prejudiced case preparation. The judge also found that broad references to abatement, employee misconduct, ability to pay, and excessive penalties did not identify specific meritorious defenses. Reconsideration was denied with prejudice, the late contests remained dismissed, and the citations and penalties remained final orders by operation of law.

Decision snapshot

Cited standard(s): 29 C.F.R. §§ 1910.95(c)(1), 1910.95(g)(1), 1910.95(i)(3), 1910.95(k)(1), 1910.132(d)(1)(iii), 1910.132(d)(2), 1910.132(f)(1), 1910.134(c), 1910.134(d)(1)(ii), 1910.134(e)(1), 1910.134(f)(1), 1910.147(c)(4)(i), 1910.178(l)(1)(i), 1910.303(b)(2), 1910.1000(a)(2), 1910.1000(e), 1910.1200(e)(1), 1910.1200(f)(6)(ii), 1910.1200(h)(1); 29 U.S.C. § 654(a)(1)
Outcome: Reconsideration was denied with prejudice and both late notices of contest were dismissed, leaving the original, failure-to-abate, and later citations as final orders.
Key point: Settlement discussions do not suspend the statutory contest deadline, and reopening a final order requires a persuasive reason for the delay plus a specific, potentially valid defense.

Full text (OSHRC public release)

Document

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

Secretary of Labor,

Complainant,

Amazing Vitamins, LLC,

Respondent.

IN MANDATORY SETTLEMENT PROCEEDING

OSHRC Docket Nos. 22-0074, 22-0291

CONSOLIDATED FOR MANDATORY SETTLEMENT PROCEEDING PURPOSES

ORDER DENYING RESPONDENT’S
MOTION FOR RECONSIDERATION PURSUANT TO 29 C.F.R. 2200.40( i ) OF THE ORDER DISMISSING LATE
NOTICES
OF CONTEST
FOR MATTERS OSHRC 22-0074 AND 22-0291

I. BACKGROUND

On July 7, 2022, the Court issued its undated Notice of Decision
G ranting the Secretary’s Motion to Dismiss Late Notices of Contest in Docket Nos. 22-0074 and 22-00291
( Decision and
Order Granting Mot.
to
Dismiss issued July 7, 2022).

On July 12, 2022, Respondent filed its Motion for Reconsideration Pursuant to 29 C.F.R. 2200.40( i ) of the Order Dismissing Late Notices of Contest for Matters OSHRC 22-0074 and 22-0291
(Mot.
f or Recon.) . Respondent “requests reconsideration of that decision due to the reference to Second Circuit law as opposed to Third Circuit law . Respondent asserts that the
precedent
from the
Third
Circuit warrants
granting
Respondent’s
request for relief pursuant to
Fed.R.Civ.P . 60(b)(1).” 1 (Mot.
f o r Recon., at 1).

As of July 18, 2022, the
undated
Decision and Order Granting Mot. to Dismiss issued July 7,
2022
had not yet been filed with the Commission's Executive Secretary and the Court had the authority to correct errors in the undated Decision and Order Granting Mot. to Dismiss issued July 7, 2022.

On
July 18, 2022, the Court issued
its “ Decision and Order Granting the Secretary’s Motion to Dismiss Late Notices of
Contest
[in Docket Nos. 22-0074 and 22- 0291] [ Corrected Copy]”
(Decision and Order Granting Mot.
t o Di s miss issued on July 18, 2022)
that corrected the error at page 32 of the Decision and Order Granting Mot. to Dismiss issued on July 7, 2022 . The Court
ordered
page 32 of
the Decision and Order Granting Mot. to Dismiss
issued July 7,
2022
to be
amended
as follows :

1) At
the
beginning
of
the
first
complete
paragraph,
deleting
"In
the
Second
Circuit, where this case arose," and changing "the" to
"The ";

2) after "jurisdiction" in first complete paragraph, adding "But, since this case arose in the Third Circuit,
see also J.I. Hass Co., Inc. v. OSHRC and Marshall,
648 F.2d 190, 195 (3 rd
Cir. 1981), where the Court held "that the Commission has jurisdiction to entertain a late notice of contest under rule 60(b)";
and

3) After "applies" in second complete paragraph,
adding
'"Third Circuit
and".

( Decision and
Order Granting Mot.
t o Dismiss issued July 18, 2022) .

On July 19, 2022, the Court issued its “Briefing Schedule and Order Relating
to
Respondent’s Motion for Reconsideration Pursuant to 29 C.F.R. 2200.40( i )
of the
O rder
D ismissing
L ate
N otices of
C ontest for
M atters
OSHRC
22-0074 and
22- 0291 ” ( Briefing Scheduling Order). The Briefing Scheduling Order stated:

The Secretary shall file his response to the Motion for Reconsideration by July 26, 2022.

Respondent
may file a reply to the Secretary's response by August 5, 2022, or within ten

calendar days after being served with the Secretary's response, whichever comes first.

The Secretary may file a sur-reply by August 15,
2022
in the event Respondent files a reply, or within ten calendar days after being served with any reply, whichever comes first.

(Briefing Scheduling Order, at 1).

On July 26, 2022, the Secretary filed his
Opposition
to Respondent’s Mot i on for

Reconsideration
(Opp. To Mot. To Recon.) . The Secretary argues Respondent’s Motion for

Reconsideration
is improper and
should be denied
because there is no: 1) newly discovered
evidence , 2) intervening development or change in controlling law, or 3) need to correct a clear error of law or fact. The Secretary noted that the
undated
D ecision
and Order Granting Mot.
t o Dismiss
issued on July 7, 2022 ’s
mistaken reference that the case arose in the Second Circuit, instead of the
Third
Circuit ,
was corrected
by the Court’s
Decision and Order Granting Mot. to Dismiss issued on
July 18, 2022 ,
thereby rendering
Respondent’s
argument moot. (Id ., at 1-2).

On August 2, 2022, Respondent filed its Reply to Compl a i n ant’s
Opposition
to the Motion
for
Reconsideration
Pursuant to 29 C.F.R. 2200.40( i ) of the Order Dismissing Late Notices of Contest for Matters OSHRC 22-0074 and 22-0291 (Reply). In its reply, Respondent
acknowledges that the Court corrected the error in its
undated
D ecision
and Order Granting Mot. to Dismiss
issued on July 7,
2022
that mistakenly indicated that the case arose in the Second Circuit, instead of the Third Circuit ,
by its
Decision and Order Granting Mot. to Dismiss issued on
July 18, 2022. (Reply, at 1). But,
Respondent
argued its Motion for
Reconsideration
was not moot because the Court , in its decision,
did not properly
address
three factors set forth in
Pioneer Inv. Serv. Co. v. Brunswick Assoc. Ltd. Partnership , 507 U.S.
at
395, including :

1) length of delay and its potential impact on judicial proceedings, 2) danger of prejudice to the Secretary, and 3) whether the company acted in good faith. (Mot.
f or Recon., at 4-5 ; Reply at 2-4 ).

Respondent also asserted that it had satisfied the requirement to raise a meritorious defense “with minimal allegations that the employer could prove a defense if given the opportunity.” (Reply, at
5).

The Secretary did not
file
any sur-reply.

II. DISCUSSION

A. The Court has properly considered the three factors
at issue
set forth in
Pioneer Inv. Serv. Co. v. Brunswick Assoc. Ltd. Partnership , 507 U.S. at 395, in its Decision
and Order
G ranting
Mot .
to Dismiss
issued on July 18, 2022 .

As stated in its undated Decision
and Order Granting Mot.
t o Dismiss
issued on July 18, 2022, the Court “applies Third Circuit and Commission prece de nt when deciding whether Respondent’s Late Notices of Contest may be excused pursuant to Federal Rule of Civil Procedure 60(b)( 1 ), and the result
here
is the same.” 2 ( Decision and
Order Granting Mot.
t o Dismiss
issued July 18, 2022 , at 32).

In its
Decision and Order
G ranting Mot .
to Dismiss issued on July 18, 2022, the Court stated:

When evaluating such claims,
the
Commission
applies
the
criteria
set
forth
by
the
Supreme
Court
in
Pioneer
Inv.
Serv.
Co.
v.
Brunswick
Assoc. Ltd. Partnership,
507 U.S. 380 (1993);
E.g., Nw .
Conduit Corp.,
No. 97-851, 1999 WL 820636, at *3 (O.S.H.R.C., Sept.
3, I
999). Under the
Pioneer test, the Commission takes into account "all relevant circumstances," including: (1) "the reason for the delay, 3
including whether it was within the reasonable
control of the [company ]"; 4
(2) "the length of the delay and its potential impact on judicial proceedings"; 5
(3) "the danger of prejudice to
the
[Secretary];" 6
and (4) "whether the [company] acted in good faith."

Id.
(quoting
Pioneer,
507 U .S. at 395). 7
( Decision and Order Granting Mot. to Dismiss issued on July 18, 2022 , at 33-34).

As to
the “good faith” factor, in its Motion for Reconsideration
Respondent asserts that “[t]here
is no allegation that Respondent ignored the citations or the Area Office” and “it was always cooperative with the OSHA Area office.” (Mot. for Recon., at 7).

The Court disagrees. As stated in its Decision and Order
G ranting the Secretary’s Mot. to Dismiss
issued on July 18, 2022 :

The
Court
finds
that
there
is
insufficient
evidence
in
the
record
to
support
Respondent's assertion
that

it
"was
lulled
into
thinking
it
was
working
toward
a
resolution
of
the
outstanding citations and that no further filings were required." (Sur-reply to Sec'y's Reply, at 1).
The Citations and Notification of Failure to Abate Alleged Violations provided clear notice to Respondent that a written letter of intent to contest the citations and Failure to Abate Alleged Violations must be submitted to OSHA within 15 working days of receipt of the Citations and Failure to Abate Alleged Violations. Respondent ignored these instructions and unilaterally delayed its filings of notices of contests for lengthy periods of time . This is not a case where Respondent was misled by OSHA as to the date a NOC must be filed. [footnote omitted] . There is no evidence that OSHA committed any fraud, misrepresentation, or misconduct within the meaning of Rule 60(b). There is no evidence that anyone at OSHA suggested that Respondent disregard the written
notice
of
contest

instructions.
[footnote omitted]. ( emphasis
added)

( Decision and
Order Granting Mot.
t o Dismiss issued July 18, 2022 , at 34-35 ) .

The Court’s finding in its Decision and Order Granting Secretary’s Mot .
to Dismiss
issued on July 18,
2022
that Respondent ignored the Secretary’s instructions regarding when to file a notice of contest and delay ed
its filing of notices of contest for lengthy periods of time
were
action s
by Respondent
that were
not made in good faith. Respondent’s lack of good faith was
considered
by the Court
in its
Decision and Order Granting Mot .
to Dismiss
issued on July 18, 2022 . ( Id .) .

B.
Respondent has failed to show the existence of any meritorious defenses.

Respondent asserts that it has satisfied the requirement to raise a meritorious defense
by simply
alleg ing
that
it
could prove a defense if given the opportunity. (Reply, at 5). The Court disagrees.

The Court incorporates by reference its discussion and finding in its Decision and Order Granting Mot .
to Dismiss
issued on July 18,
2022
at Section IVB, at pages 36-37 , that Respondent has not
sufficiently
shown the existence of
any
m eritorious
d efenses in Docket Nos. 22-0074 and 22-0291.

III.
CONCLUSION

The Court has carefully considered Respondent’s Motion for Reconsideration
Pursuant to 29 C.F.R. 2200.40( i ) of the Order Dismissing Late Notices of Contest for Matters OSHRC 22-0074 and 22-0291
and finds it to be without merit.

IV. ORDER

WHEREFORE, Respondent’s
Motion
for
Reconsideration
Pursuant to 29 C.F.R. 2200.40( i ) of the Order Dismissing Late Notices of Contest for Matters OSHRC 22-0074 and 22-0291
is DENIED
WITH
PREJUDICE, and

IT IS FURTHER ORDERED that the Court’s
Decision and Order Granting the Secretary’s
Motion to Dismiss Late Notices of Contest [in Docket Nos. 22-0074 and 22- 0291] [ Corrected Copy]
issued on July 18, 2022 is the Court’s final
D ecision and
O rder in these matters. 8

SO
ORDERED.

__ /s/ Dennis L. Phillips

The Honorable Dennis L. Phillips

U.S. OSHRC JUDGE

Dated: September 19, 2022

Washington, D.C.

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

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

Washington, DC 20036-3457

Secretary of Labor,

Complainant

Amazing Vitamins, LLC,

Respondent.

IN MANDATORY SETTLEMENT PROCEEDING

OSHRC Docket Nos.
21-1295, 22-0074, 22-0291

CONSOLIDATED FOR MANDATORY SETTLEMENT PROCEEDING PURPOSES

DECISION AND
ORDER GRANTING
THE SECRETARY’S
MOTION TO DISMISS
LATE NOTICES OF
CONTEST
[ IN DOCKET NOS. 22-0 074
AND 22-02 91]

[CORRECTED COPY]

This proceeding is before the Occupational Safety and Health Review Commission (Commission or OSHRC) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651
et seq . (the Act). Respondent is a
corporation which, up until May 2022, manufactured and packaged nutritional supplements. ( Resp ’t’s
Opp ’n
to Mot. to Dismiss and Mot. For Relief pursuant to
Fed.R.Civ.P . 60(b)(1), at Certification
(Cert.)
of
Chief Executive Officer (CEO)
Samir Bhatia, at
1) ( Samir Bhatia Cert., at ¶2)) .

I. Docket No. 22-0074

A.
Citations – Inspection No. 1418803

The Occupational Safety and Health Administration (OSHA) inspected Respondent’s worksite at
190-A
Jony
Drive, Carlstadt, New Jersey 07072
from
July 29,
2019
through December 5, 2019 under OSHA
Insp ection
No. 1418803 .

On January 24, 2020, OSHA
issued
Respondent two citations alleging eleven serious
citation items and one other-than-serious citation item relating to Inspection Number
No. 1418803 .

(Mot. to Dismiss, at 3, Ex. A). The citations were mailed via certified mail, return receipt requested (Article No. 70191120000126298425) to Respondent at address 190-A
Jony
Drive, Carlstadt, New Jersey 07072 by correspondence dated January 24, 2020. 9 (Secretary Motion to Dismiss Respondent’s Late Notices of Contest (Mot. To Dismiss), at 3; Ex. B). OSHA sought a penalty in the amount of
$46,268
for these citation items. The citations were as follows:

Citation
1
Item 1 a
Type of Violation:
Serious

29 CFR 1910.95(c )(1 ): The employer did not administer a continuing, effective hearing conservation program as described in 29 CFR l910.95(c) through
(o)
whenever employee noise exposures equal or exceed an 8-hour time-weighted average sound level of 85 decibels measured on the A scale, or equivalently a dose of fifty percent:

a)
Tablet
Machi ne
Operator:
An
employee
was
monitored
over
7
hours
16
minutes
and
was
exposed
to continuous noise at 87.9 decibels
averaged
over 8-hours with zero exposure averaged for any
unsampled
time. The equivalent dose was 74.8% of OSHAs Permissible Exposure Limit for Noise, which
is
90
decibels.
The
employer
did
not
administer a
hearing
conservation
program,
thus
exposing the employee to irreversible hearing loss, on or about September 5, 2019.

Date By Which Violation Must be Abated:

02/27/2020

Proposed Penalty:

$3084.00

Citation 1 Item 1 b
Type of Violation:
Serious

29 CFR 1910.95(g)(l): The employer did not establish and maintain an audiometric testing program as provided in this paragraph by making audiometric testing available to all employees whose exposures equal or exceed an 8-hour time-weighted average of 85 decibels.

a)
Tablet
Machine
Operator:
An
employee
was
monitored over
7
hours
16
minutes
and
was
exposed
to continuo u s noise at 87.9 decibels
averaged
over 8-hours with zero exposure averaged for any unsampled
time.
The
equivalent dose
is
74.8%
of
OSHAs
Pe rm issible
Exposure
Limit
for
noise,
which is
90
decibels.
The
employer
did
not
establish
baseline
and
maintain
an
audiometric
testing
program
for the employee, on or about September 5,
2019.

Date By Which Violation Must be Abated:

03/26/2020

Citation 1 Item 1 c
Type of Violation:
Serious

29
CFR
l910.95( i )(3):
Employees
were
not
given
the
opportunity
to
select
their
hearing
protectors from
a
variety
of
suitable hearing
protectors
provided
by
the
employer.

a) Tablet
Machine
Operator:
An
employee
was
monitored
over
7
hours
16
minutes
and
was
exposed
to continuous noise at 87.9 decibels averaged over 8-hours with zero exposure averaged for any unsampled
time.
The
equivalent
dose
was
74.8%
of
OSHAs
Permissible
Exposure
Limit
for
Noise, which is 90 decibels. The employer did not give employees the opportunity to select their hearing protectors from a variety of suitable hearing protectors provided by the employer, on or about September 5,
2019.

Date By Which Violation Must be Abated:

02/27/2020

Citation 1 Item 1 d
Type of Violation:
Serious

29
CFR
1910.95(k)(l): The employer did not train each employee who is exposed to noise at or above an 8-hour time-weighted average of 85 decibels in accordance with the requirements of 29
CFR
1910.95(k). The employer did not institute a training program and ensure employee participation in the program:

a) Tablet Machine Operator:
An
employee was monitored over
7
hours
16
minutes and was exposed to continuous noise at 87.9 decibels
averaged
over 8-hours with zero exposure averaged for any unsampled time. The equivalent dose was 74.8% of OSHAs Permissible Exposure Limit for Noise, which is 90 decibels. The employer did not institute a training program and ensure employee participation in the program, on or about September 5, 2019.

Date By Which Violation Must be Abated:

02/27/2020

Citation
l
Item 2 a
Type of Violation:
Serious

29 CFR 1910.132(d)(l)(iii): The employer did not select PPE that properly fit each affected employee:

a)
Packaging
and
Manufacturing areas:
The
host
employer
provided
Personal
Protective
Equipment
for workers
who
work
with
or
around
chemicals
or
mixtures
that
are
flammable,
corrosive,
and
pose
health hazards
or
are
irritants.
Workers
dispensed
cleaners
that
contained
chemicals,
such
as,
but
not
limited
to acetone,
butanol,
isopropyl
alcohol
and
sodium hypochlorite,
however
the
employer
did
not
provide
gloves
in
the
correct
sizes.
The
employer
did
not
provide
gloves
that
fit
the
workers.
Only
size
large
gloved
were
provided
which
reduced
the
dexterity
of
the
workers
with
small
hands,
on
or
about
July 29,
2019.

Ensure
that
appropriately
sized
Personal
Protective
Equipment
is
provided
for
the
workers
who
must wear
it.

Date By Which Violation Must be Abated:

02/27/2020

Proposed Penalty:

$5398.00

Citation 1 Item 2 b
Type of Violation:
Serious

29 CFR l 910.132(d)(2): The employer did not verify that the required workplace hazard assessment has been performed through a written certification that identifies the workplace evaluated, the person certifying that the evaluation has been performed, the date(s) of the hazard assessment, and, which identifies the document as a certification of hazard assessment:

a) Packaging and Manufacturing areas: The employer provided Personal Protective Equipment for workers who work with or around chemicals or mixtures that are flammable, combustible, corrosive, and pose health hazards or are irritants. Workers dispensed and processed chemicals or mixtures to manufacture products, however the employer did not verify that the required workplace hazard assessment had been performed through
a
written certification that identifies the workplace evaluated, the person certifying that the evaluation had been performed, the date of the hazard assessment, and, which identified the document as
a
certification of hazard assessment on or about July 29
2019 .

ABATEMENT DOCUMENTATION REQUIRED FOR THIS ITEM

Date By Which Violation Must be Abated:

02/27/2020

Citation l
Item
3 Type of Violation:
Serious

29
CFR 1910.132(f)(l):
The
employer
did not
provide
training
to
each
employee
who
is
required
by this section to use personal
protective
equipment: .

a) Packaging and Manufacturing Areas: Employees clean using chemicals such as but not limited to Sodium
Hypochlorite,
Isopropyl
Alcohol
and
Butanone.
Employees
may
also
be
exposed
to
dust
from the manufacturing area. Although rules had been instituted requiring the use of gloves and safety glasses or goggles, the employer did not provide training to each employee who is required by this section to use personal protective equipment or about July 29
2019 .

Provide training to each worker who is required to use perso nal protective equipment (PPE).

The
training
must
teach,
at
minimum,
when
PPE
is
necessary;
what
PPE
is
necessary;
how
to
properly use the PPE; the limitations of the PPE; and the proper care, maintenance, useful life, and disposal of the
PPE.

Date By Which Violation Must be Abated:

03/12/2020

Proposed Penalty:

$3084.00

Citation 1
Item 4 a
Type of Violation:
Serious

29
CFR
1910.134(c):
The
employer
did
not
develop
and
implement
a
written
respiratory
protection program with required worksite-specific procedures and elements for required respirator
use:

(a)
Manufacturing
Areas:
A
written
respiratory
protection
program
was
not
developed
and
implemented for employees that were required to wear either dust masks or 3M 53P71 dual cartridge respirators, on or about July 29,
2019.

Develop and implement a written Respiratory Protection Program

" Designate a qualified program administrator to oversee the
program.
¥"
Provide respirators,
training, and medical evaluations at no cost to the
employee.

Ensure the program addresses each of the following elements:

(i) Procedures for selecting respirators for use in the
workplace;

(ii) Medical evaluations of employees required to use
respirators;

(iii) Fit testing procedures for tight-fitting
respirators;

(iv) Procedures
for
proper
use
of
respirators
in
routine
and
reasonably
foreseeable
emergency
situations;

(v) Procedures
and
schedules
for
cleaning,
disinfecting,
storing,
inspecting,
repairing,
discarding,
and otherwise maintaining
respirators;

(vi) Procedures
to
ensure
adequate
air
quality,
quantity,
and
flow
of
breathing
air
for
atmosphere supplying
respirators;

(vii) Training
of
employees
in
the
respiratory
hazards
to
which
they
are
potentially
exposed
during routine and emergency
situations;

(viii) Training
of
employees
in
the
proper
use
of
respirators, including
putting
on
and
removing them, any limitations on their use, and their maintenance;
and

(ix) Procedures for regularly evaluating the effectiveness of the
program.

Date By Which Violation Must be Abated:

02/12/2020

Proposed Penalty:

$3856.00

ABATEMENT DOCUMENTATION REQUIRED FOR THIS ITEM

Citation 1 Item 4 b
Type of Violation:
Serious

29
CFR
1910.134(e)(l):
General.
The
employer
did
not
provide
a
medical
evaluation
to
determine
the
employe e 1 s
abilit y
t o
use
a
respirator,
before
th e
employe e
i s
fit
teste d
or
required
t o
use
th e
respirator
i n
th e
workplace .
Th e
employe r
ma y
discontinue
a n
employe e 1 s
medica l
evaluation s
whe n
the
employee is no longer required to use a
respirator.

(a) Manufacturing Areas: Medical evaluations were not completed and documented for each employee that
were
required to wear either dust masks or 3M 53P71 dual cartridge respirators, on or about July 29, 2019.

Identify a physician or other licensed health care professional ( PLHCP) to perform all medical evaluations.

Using
the
medical
questionnaire
in
Appendix
C
of
the
Respiratory
Protection standard
or
a
provide employees who are required to wear respirators a medical examination that obtains the same information. (See Paragraph
(e)(2)( i ).)

Administer medical questionnaire and examinations confidentially during the employees normal working hours or at a time and place convenient to the employee and in a manner that ensures that he or she understands its content.

Provide the employee with an opportunity to discuss the questionnaire and
examination results with the PLHCP. (See Paragraph (e)(3)( i ).)

Do
not
review
the
employees
responses,
the
questionnaire
must
be
provided
directly
to
the
PLHCP. (See Paragraph
(e)(4)( i ).)

ABATEMENT DOCUMENTATION REQUIRED FOR THIS ITEM

Date By Which Violation Must be Abated:

02/12/2020

Citation 1 Item 4 c
Type of Violation:
Serious

29 CFR 1910.134(f)(l): The employer did not ensure that employee(s) required to use a tight-fitting facepiece respirator passed the appropriate qualitative fit test (QLFT) or quantitative fit test (QNFT):

a) Manufacturing Areas: Fit tests were not completed and documented for each employee that was required to wear either dust masks or 3M 53P71 dual cartridge respirators, on or about July 29, 2019 .

ABATEMENT DOCUMENTATION REQUIRED FOR THIS ITEM

Date By Which Violation Must be Abated:

03/26/2020

Citation 1
Item
5 Type of Violation:
Serious

29
CFR
1910.147(c)(4)( i ):
Procedures
were
not
developed,
documented
and
utilized
for
the
control
of potentially
hazardous
energy
when
employees
were
engaged
in
activities
covered
by
this
section:

a) Establishment: The employer did not develop detailed
site specific
procedural steps for shutting down
equipment,
including
but
not
limited
to,
tablet
machines,
capsule
machines
(NJP
3500,
NJP
2500 NJP
2000,
NJP
1200),
and
the
Sunmatch
tumble
blender,
prior
to
maintenance/servicing,
to
prevent unexpected
release
of
stored
energy,
thus
exposing
employees
to
an
amputation
hazard,
on
or
about September 5,
2019.

Date By Which Violation Must be Abated:

03/12/2020

Proposed Penalty:

$3856.00

Citation 1 Item 6
Type of Violation:
Serious

29
CFR
1910.178( 1)( 1
)( i ):
The
employer
did
not
ensure
that
each
powered
in dustrial
truck
operator
is competent
to
operate
a
powered
industrial
truck
safely,
as
demonstrated
by
the
successful
completion of the training and evaluation specified in this paragraph
(1):

a. Alongside storage racks: The employer did not ensure that employees operating a Crown RR 5200 Series powered industrial truck were trained, exposing employees to falls and struck-by hazards, on or about July 29, 2019.

ABATEMENT DOCUMENTATION REQUIRED FOR THIS ITEM

Date By Which Violation Must be Abated:

02/27/2020

Proposed Penalty:

$5398.00

Citation I
Item
7 Type of Violation:
Serious

29
CFR
1910.303(b)(2):
Listed
or
labeled
electrical
equipment
was
not
used
or
installed
in
accordance with instructions included in the listing or
labeling:

(a) Manufacturing areas: Vacuums that were intended for household use were used to collect dust created during the manufacture of nutritional supplements. The dust created consisted of powders (particulate) including but not limited to microcrystalline cellulose, croscarmellose sodium and white rice flour. Dust taken from the dust collector bag was determined explosive by OSHA. The workers used the vacuums to clean in and around the dust collector bag when it was emptied, on or about
September
5,
2019.

Date By Which Violation Must be Abated:

02/27/2020

Proposed Penalty:

$3856.00

Citation
1

Item
8 Type of Violation:
Serious

29 CFR 1910.I000(a)(2): Engineering controls were not sufficient to maintain an employee's exposure to an airborne concentration of particulates not otherwise
regulated, total dust, below the Permissible Exposure Limit listed in Table Z1 :
an 8 hour Time Weighted Average concentration of 15 mg/m 3
:

a) Manufacturing areas: An employee was exposed to components
of nutritional supplements, which were evaluated as particulates not otherwise regulated, at 17.7 mg/m3 total dust, averaged over 8-hours with zero exposure averaged for any unsampled time. The worker
operate
machines to process ingredients to manufacture nutritional supplements, but the employer did
not institute sufficient
engineering controls on or about September 5, 2019.

ABATEMENT DOCUMENTATION REQUIRED FOR THIS ITEM

Date By Which Violation Must be Abated:

02/27/2020

Proposed Penalty:

$5398.00

Citation 1 Item 9 a
Type of Violation:
Serious

29 CFR 1910.1200(e)(l): The employer did not develop, implement, and/or maintain at the workplace a written hazard communication program which describes how the criteria specified in 29 CFR 1910.1200(f), (g), and (h) will be met: (Construction Reference: 1926.59)

(a) Establishment: Workers operated and cleaned machines that are used to manufacture and package nutritional supplements. The powdered raw materials, inks and cleaning agents used contained hazardous chemicals including, but not limited to sodium hypochlorite, isopropyl alcohol, butanone, and
acetone.
Various
nutritional
supplement
raw
materials
including
but
not
limited
to
microcrystalline cellulose and white rice flour, are combustible particulate solids. A written hazard communication program was not developed nor implemented on or about July 29,
2019 .

ABATEMENT DOCUMENTATION REQUIRED FOR THIS ITEM

Date By Which Violation Must be Abated:

02/27/2020

Proposed Penalty:

$5398.00

Citation 1
Item 9 b
Type of Violation:
Serious

29 CFR 1910.1200(f)(6)(ii): Except as provided in 29 CFR 1910.1200(f)(7) and 29 CFR 1910.1200(f)(8), the employer did not ensure that each container of hazardous chemicals in the workplace was labeled, tagged or marked with the product identifier and words, pictures, symbols, or combination thereof, which provide at least general information
regarding the hazards of the chemicals and which, in conjunction with the other information immediately available to employees under the hazard communication program, would provide employees with the specific information regarding the physical and health hazards of the hazardous chemical:

a) Packaging Area: The employer did not ensure labels were placed on containers of isopropyl alcohol that provided the necessary information including the product identifier and general information concerning the hazards of the chemical, on or about July 29, 2019.

Date By Which Violation Must be Abated:

02/27/2020

Citation 1 Item 9 c
Type of Violation:
Serious

29 CFR 1910.1200(h)(l): Employers did not provide employees with effective information and training on hazardous chemicals in their work area at the time of their initial assignment, and whenever a new physical or health hazard the employees have not previously been trained about is introduced into their work area. Information and training may be designed to cover categories of hazards (e.g., flammability, carcinogenicity) or specific chemicals. Chemical-specific information must always be available through labels and material safety data sheets.

(a)Establishment: Workers operated and cleaned machines that are used to manufacture and package nutritional supplements. The powdered raw materials, inks and cleaning agents used contained hazardous chemicals including, but not limited to sodium hypochlorite, isopropyl alcohol, butanone, and acetone. Various nutritional supplement raw materials including but not limited to microcrystalline cellulose and white rice flour, are combustible particulate solids. Effective Hazard Communication training was not provided to all employees who work with or around
the hazardous
chemicals, on or about July 29, 2019.

ABATEMENT DOCUMENTATION REQUIRED FOR THIS ITEM

Date By Which Violation Must be Abated:

02/27/2020

Citation l Item 10
Type of Violation:
Serious

OSH ACT of 1970 Section (5)(a)(l) of the Occupational Safety and Health Act of 1970: The employer did not furnish employment and a place of employment which were free from recognized hazards that were causing or likely to cause death or serious physical harm to employees in that employees were exposed to dust deflagration, explosion or other
fire hazard:

a) Manufacturin g
Are a · :
Employee s
scoope d
powdered
ingredient s
including ,
but
not
limite d
t o
Flocel
xx (microcrystalline cellulose),
Vivasol
(croscarmellose sodium), and white rice powder into the encapsulation and tablet machines to make nutritional supplement capsules and
tablets .
The dust collector
for
these
rooms was
a
Donaldson Torit
1200.
The
dust
was
sampled
and
determined
to
have
a
Kst
of
56.17
bar*meters
per
second.
The
dust
collection
system
including
ductwork
was
not
adequately grounded
to
prevent
a
dust
deflagration,
explosion
or
other
fire
hazard,
on
or
about
July 29,
2019. ·

b) Manufacturing
Area:
Employees
scooped
powdered
ingredients including,
but
not
limited
to
Flocel
xx ( icrocrystalline
cellulose),
Vivasol
(croscarmellose sodium), and white rice powder into the encapsulation and tablet machines to make nutritional supplement capsules and tablets. The dust collector
for
these
rooms
was
a
Powermatic
model
PMI
900PX.
The
dust
was
sampled
and
determined to have a
Kst
of 56.17
bar•meters
per
second .
The dust collection system including ductwork was not adequately grounded to prevent
a dust
deflagration, explosion or other fire hazard, on or about September 5,
2019.

c) Loading Dock area, adjacent to the Manufacturing Area: Employees scooped powdered ingredients including, but not limited to
Flocel
xx (microcrystalline cellulose),
Vivasol
(croscarmellose sodium), and white rice powder into the encapsulation and tablet machines to make nutritional supplement capsules and tablets. The dust collector for the room was a Donaldson Torit Model VS 550. The dust was
sampled
and
determined
to
have
a
Kst
of
56.17
bar*meters
per
second.
The
dust
collection
system including
ductwork
was
not
adequately
grounded
to
prevent
a
dust
deflagration,
explosion
or
other
fire hazard, on or about September 5,
2019.

ABATEMENT
NOTE:
Among
other
methods,
feasible
and
acceptable
abatement
method
to
correct
this hazard
include:

Complying
with
industry
standards
such
as
but
not
limited
to
the
National
Fire
Protection
Association (NFPA)
652
(2019
Edition),
"Standard
on
the
Fundamentals
of
Combustible Dust"
sections
including but not limited
to:

a) 5.1 The owner/operator of a facility with potentially combustible dusts shall be responsible for determining
whether
the
materials are
combustible
or
explosible,
and,
if
so,
for
characterizing
their properties as required to support the
DHA

b) 5.1.1
Where
dusts
are
determined
to
be
combustible
or
explosible,
the
hazards
associated
with
the dusts shall be assessed in accordance with Chapter 7 (Dust Hazard
Analysis).

c) 5.1.2
Where
dusts
are
determined
to
be
combustible
or
explosible,
controls
to
address
the
hazards associated
with
the
dusts
shall
be
identified
and
implemented
in
accordance
with
4.2.4
(Compliance Options).

d) 9.3.3.1.1 Where used to handle combustible particulate solids, systems shall be designed by and installed
under
the
supervision
of
qualified
persons
who
are
knowledgeable about
these
systems
and their associated
hazards.

e) 9.4.7.1.3 Bonding and grounding with a resistance of less than 1.0 10*6 ohms to ground shall be provided for conductive
components.

ABATEMENT DOCUMENTATION REQUIRED FOR THIS ITEM

Date By Which Violation Must be Abated:

03/26/2020

Proposed Penalty:

$3856.00

Citation 1
Item 11
Type of Violation:
Serious

OSHACT of 1970 Section (5)(a){l): Section5{a){l) of the Occupational Safety and Health Act of 1970: The employer did not furnish employment and a place of employment which were free from recognized hazards that were causing or likely to cause death or serious physical harm to employees in that employees were exposed to a fall hazard.

a.
Warehouse
Area:
An
employee
was
exposed
to
a
fall
hazard
of
approximately
8
feet
while
elevated on the forks of a Crown RR 5200 Series powered industrial truck, without using the approved work platform with fall protection, on or about July 29,
2019.

Among other methods, one feasible and acceptable abatement method to correct this hazardous condition would be to ensure the use of the approved work platform attachment that was approved for use according to the manufacturer or licensed engineer.

Comply with the manufacturer's operating instructions for the powered industrial truck and any platform used.

Date By Which Violation Must be Abated: Corrected During Inspection

Proposed Penalty:

$5398.00

Citation 2
Item
1 Type of Violation:
Other-than-Serious

29
CFR
l
910.134(d)(l)(ii):
The
employer
did
not
select
a
NIOSH-certified
re spirator.
The respirator shall be used in compliance with the conditions of its
certification.

a) Establishment: The employer provided and required workers to wear ear loop, surgical style, face masks in the production area, but the face masks were not NIOSH-certified, on or about July 29, 2019.

ABATEMENT DOCUMENTATION REQUIRED FOR THIS ITEM

Date By Which Violation Must be Abated:

02/27/2020

Proposed Penalty:

$0.00

The citations issued on January 24,
2020
were received by Respondent not later than February 27, 2020. (Mot. to Dismiss, at 3; Ex. C). 10
The Court finds that the citations issued on January 24,
2020
were received by Respondent
not later than
February 27, 2020. 11
The Court
also
finds that it is not necessary for it to conclusively determine that Respondent received the January 24, 2020 citations on either February
25 or February 27, 2020, but instead finds that the January 24,
2 0 2 0
citations
were received by
R es pondent
no later than February 27, 2020. (Mot.
t o Dismiss ,
at 3,
Exs . A-B;
VV email to Conklin
dated 2/27/20;
VV email to OSHA Area Director (AD) Lisa Levy
dated Mar 3, 2020).

The Citation s
included
a
reference to a 15 working day time period within which a
Notice of Contest ( NOC )
must be filed, stating:

Right to Con t e s t –
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 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.
[emphasis in the original]

(Mot. to Dismiss, Ex. A at 4).

On February 27, 2020,
Resp ondent’s
Purchase & Operations Manager Vijayakumar,
email ed
OSHA’s Conklin
that stated Respondent
received cit ations that were issued on January 24,
2020
during
th at
week . 12

Mr. Vijayakumar further stated in his email that the package containing the citations was found in Respondent’s
facility mail area on February 27, 2020 .

By
an
email sent on March 3, 202 0 , Mr. Vijayakumar informed AD Levy that Respondent had received the OSHA citation[s] issued on January 24, 2020 “last week. They delivered it on
feb
25 th
and it [s] ays
(sic) it was issued on Jan 24 th .” ( VV email to AD Levy
dated Mar 3, 2020).

The deadline for Respondent to file its Notice of Contest for the Citations issued on January 24,
2020
was not later than March 19, 2020. (Mot. To Dismiss, Ex. A, at 4). OSHA did not receive a timely Notice of Contest from Respondent for the Citations issued on January 24,
2020. The Court finds that the Citations issued by OSHA on January 24,
2020
became a final order of the Commission no later than March 19, 2020.

By letter dated January 28,
202 1
mailed to Respondent at 190-A
Jony
Drive, Carlstadt, New Jersey 07072,
AD
Levy
directed
Respondent
to submit
its
abatement resp onse relating to the Citations that were issued on January 24, 2020 to OSHA
by
February 11, 2021, and if not, she informed Respondent that OSHA would issue a citation to Respondent for
failure to abate
(FTA) .

By an email concerning a “Payment Issue – Inspection # 1418803” sent on February 4, 2021, Mr. Vijayakumar informed AD Levy that Respondent had received a
collection letter
for Inspec tion No. 1418803. He advised her “we have been sending payments every month on time.” ( VV email to AD Levy
dated Feb 4, 2021).

By an email concerning a “Payment Issue – Inspection # 1418803” sent on May 17, 2021, Mr. Vijayakumar informed AD Levy and OSHA’s Boris
Kukovitskiy
that Respondent had “been making payment every month on time.” ( VV email to AD Levy
dated May 17, 2021).

By an email concerning a “Payment Issue – Inspection # 1418803
sent on May 18, 2021, Mr. Vijayakumar informed AD Levy and other Department of Labor and OSHA personnel that Respondent had “been paying regularly every month.” (VV email to AD Levy
dated May18, 2021).

By an email concerning a “Payment Issue – Inspection # 1418803” sent on May 28, 2021, Mr. Vijayakumar informed AD Levy and other Department of Labor and OSHA personnel that “We have been receiving notice from the Department of Treasury regarding payment
collection.

A l l our payments were made till (sic) this month regularly.” ( VV email to AD Levy
dated May28, 2021).

By an email regarding a “Payment Issue – Inspection # 1418803”, sent on June 1, 2021, Mr. Vijayakumar indicated to AD Levy and other OSHA personnel that “per our informal agreement, the amount due was $16,344.00, which both
party
agree to pay in 36 consecutive payments.” ( VV email to OSHA’s
Yimy
Zapata with a copy to AD Levy
and others
dated June 21, 2021 ) .

B. FTA Citations – Inspection Nos. 1537913 and 1418803

From April 19,
2021
through June 22, 2021, OSHA conducted a follow-up Inspection No. 1537913 (Original Inspection No. 1418803) at Respondent’s worksite at
190-A
Jony
Drive, Carlstadt, NJ
0 7 072. (Mot. to Dismiss, Ex. E).

On October
1 9, 2021, OSHA issued the following
“ Failure to Abate
A lleged
V iolations ” under Original OSHA Inspection No. 1418803 and Follow-up OSHA Inspection No. 1537913 to Respondent:

Citation
I

Item
4
a Type of Violation:
FTA-
Serious

29
CFR
1910.134(c):
The
employer
did
not
develop
and
implement
a
written
respiratory
protection
program with required worksite-specific procedures and elements for required respirator
use:

a) Manufacturing Areas: A written respiratory protection program was not developed and implemented for employees
who
were

required
to
wear
3M
elastomeric
dual
cartridge
respirators.
Violation
occurred
on
or
about 04 /1 9 / 21 and
thereafter.

ABATEMENT DOCUMENTATION
R EQUIRED
FOR THIS ITEM

Date By Which Violation Must be Abated:
November 05, 2021

Proposed Penalty: $128,740.00

Citation
I

Item
4
b Type of Violation:
FTA
-
Serious

29 CFR l 910.134(e )( I ): General. The employer did not provide a medical evaluation to determine the employee's
ability
to
use
a
respirator,
before
the
employee
is
fit
tested
or
required
to
use
the
respirator
in
the workplace.
The
employer
may
discontinue
an
employee's
medical
evaluations
when
the
employee
is
no
longer required to use a
respirator.

a)
Manufacturing
Areas:
Medical
evaluations
were
not
completed
and
documented
for
each
employee
who
was required to wear
3M
elastomeric dual cartridge respirator. Violation occurred on or about 04 / 19 /2 1 and thereafter.

Citation 1
Item
7 Type of Violation:
FTA
-
Serious

29 CFR 19 I 0.303(b)(2): Listed or labeled electrical equipment
was
not used or installed in accordance with instructions included in the listing or labeling:

a) Manufacturing Areas: Vacuums that were intended for household usage were used to collect dust created during the manufacture of nutritional supplements. The dust sampled from the tablet and capsule machine rooms was determined to be explosive. The workers used
the
vacuums
to clean dust off the machine surfaces
and
floor in the tablet and capsule machine rooms. Violation occurred on or about 04 / 1 9 /21 and
thereafter.

ABATEMENT DOCUMENTATION REQUIRED FOR THIS ITEM

Date By Which Violation Must be Abated:

November
05,
2021

Proposed Penalty:
$ 128,740.00

The total proposed penalty for the two FTA Citation items is $257,480. 13
(Mot.
t o
Dismiss, Ex. E).

As discussed in more detail below in Section II, the Court finds that Respondent received the
Notification of Failure to Abate Alleged Violations pertaining to Inspection Nos. 1418803 and 1537913 and Docket No. 22-0074 on October 21, 2021. (Mot. to Dismiss;
Exs . F-G).
OSHA did not receive a timely Notice of Contest of the FTA Citation from Respondent. The Court finds that the FTA Citation issued by OSHA on October 19,
2021
became a final order of the Commission no later than November
1 2, 2021.

By letter dated December 3, 2021, Respondent submitted to OSHA its Late Notice of Contest, “Re: Employer’s Notice of Contest of OSHA Citation and Notice of Penalty # 1418803, dated January 24, 2020”. Mr. Vijayakumar, “Title: Operations Manager” advised the OSHA AD that “Amazing Vitamins LLC,
intendts
(sic) to contest the citations and Notice of Penalty proposed under the inspection # 1418803, Dated January 24,
2020
and referenced above.” The Late Notice of Contest further stated that the citations [issued by OSHA on January 24, 2020] “was received [by Respondent] via certified mail on February 27, 2020. 14

II. Docket No s .
22-0074 and
22-0291

From April 19,
2021
through June 22, 2021, OSHA conducted a follow-up inspection of
Respondent relating to
Insp ection
No. 1537913 at
1 90-A
Jony
Drive, Carlstadt, New Jersey 07072.

On October 19, 2021, OSHA also issued two citations to Respondent with a proposed penalty amounting to $30,037 under Inspection No. 1537913. The two Citations’ items were as follows:

Citation 1 Item
1 Type
of Violation:
Serious

29 CFR 1910.1000(e): Feasible engineering controls were not determined and implemented to achieve compliance with the limits prescribed in 29 CFR 1910.1000(a) through (d):

a) Manufacturing Areas: Employees were exposed to components of nutritional supplements, which were evaluated as particulates not otherwise regulated, at 19.0 mg/m3 and 41.0 mg/m3 total dust, averaged over 8- hours with zero exposure averaged for any unsampled time. The employees operated machines to process ingredients to manufacture nutritional supplements, but the employer did not institute sufficient engineering controls. Violation occurred on or about 06/22/21.

The proposed penalty was $6,007.

Citation 2 Item 1 a
Type of Violation:
Repeat - Serious

29 CFR 1910.134(e)(1): General. The employer did not provide a medical evaluation to determine the employee's ability to use a respirator, before the employee is fit tested or required to use the respirator in the workplace. The employer may discontinue an employee's medical evaluations when the employee is no longer required to use a respirator.

a) Manufacturing Areas: Medical evaluations were not completed and documented for each employee who was required to wear a 3M elastomeric dual cartridge respirator. Violation occurred on or about 6/22/21 and thereafter.

Amazing Vitamins LLC was previously cited for a violation of this occupational safety and health standard 1910.134(e)(1)), which was contained in OSHA inspection number 1418803, citation number 1, item number 4b and was affirmed as a final order on 08/31/20, 15
with
respect to a workplace located at 190-A
Jony
Drive, Carlstadt, NJ
07072 .

The proposed penalty was $12,015.

Citation 2 Item 1 b
Type of Violation:
Repeat - Serious

29 CFR 1910.134(f)(1): The employer did not ensure that employee(s) required to use a tight-fitting facepiece respirator passed the appropriate qualitative fit test (QLFT) or quantitative fit test (QNFT):

a) Manufacturing Areas: Fit tests were not completed and documented for each employee who was required to wear 3M 53P71 dual cartridge respirators. Violation occurred on or about 06/22/21 and thereafter.

Amazing Vitamins LLC was previously cited for a violation of this occupational safety and health standard or its equivalent standard (1910.134(f)(1)), which was contained in OSHA inspection number 1418803, citation number 1, item number 4c and was affirmed as a final order on 08/31/20, 16
with respect to a workplace located at 190-A
Jony
Drive, Carlstadt, NJ, 07072.

Citation 2 Item
2 Type
of Violation:
Repeat -
Serious

29 CFR 1910.1000(a)(2): Employee(s) were exposed to an airborne concentration of particulates not otherwise regulated, total dust, listed in Table Z-1 in excess of the
8 hour
Time Weighted Average concentration of 15 mg/m3:

Amazing Vitamins LLC was previously cited for a violation of this occupational safety and health standard or its equivalent standard (1910.1000(a)(2)), which was contained in OSHA inspection number 1418803, citation number 1, item number 8 and was affirmed as a final order on 08/31/20, 17
with respect to a workplace located at 190-A
Jony
Drive, Carlstadt, NJ, 07072.

The proposed penalty was $12,015.

The total proposed penalty for these two citations was $30,037.00.

Sometime on or after October 19, 2021,
OSHA mailed by certified mail, return receipt requested,
to Respondent at Amazing Vitamins, LLC, 190-A Joy (sic) Drive, Carlstadt, NJ 07072 the two Citations pertaining to Inspection No. 1537913 [Docket No. 22-0291] and the Notification of Failure to Abate pursuant to Inspection No. 1537913 proposing additional penalties associated with Inspection No. 1418803 [Docket No. 22-0074]. 18 (Mot. to Dismiss, at 4;
Exs . D-G).

The Citation s pertaining to Inspection No. 1537913 and Docket No. 22-0291
included
a r eference to a 15 working day time period within which a NOC must be filed, stating:

(Mot. to Dismiss, at 3-4; Ex. D).

The Notification of Failure to Abate Alleged Violations pertaining to Inspection Nos. 1418803 and 1537913 and Docket No. 22-0074 also included a reference to a 15 working day time period within which a NOC must be filed, stating:

You
are further notified that you must pay the ADDITIONAL PENALTY unless you inform the Area Director in writing that you intend to contest the Notification
or the Additional Penalty within 15 working days (excluding weekends and Federal holidays) from your receipt of this notification. If you do not contest within 15 working days after receipt, the Notification and the additional penalties will become the
final order of the Occupational Safety and Health Review Commission and may not be reviewed by any court or agency.

(Mot. to Dismiss, at 4, Ex. E, at 2).

On October 21, 2021, Respondent received the two citations pertaining to Inspection No. 1537913 [Docket No. 22-0291] and the
Notification of Failure to Abate Alleged Violations pertaining to Inspection Nos. 1418803 and 1537913 and Docket No. 22-0074,
as evident by the Domestic Return Receipt [Green Card] of the US Postal Service that shows someone initialed receipt of materials relating to Inspection No. 1537913 on October 21, 2021. 19
(Mot. to Dismiss;
Exs . F-G). The US Postal Service’s Tracking document also shows that
unidentified material was delivered at Carlstadt, NJ on October 21, 2021, at 4:07 PM. 20
(Mot. to Dismiss, Ex. G). In Respondent’s Reply to Secretary’s Opposition, Respondent admits that it received the Notification of Failure to Abate Violations
pertaining to Inspection Nos. 1418803 and 1537913 and Docket No. 22-0074 on October 21, 2021. Respondent
stated:

In its motion papers, the Secretary has only proven that it served the Respondent with a Notification of Failure to Abate Notice with additional penalties which was issued October 19, 2021. Secretary’s Exhibit E. The green card attached to the Secretary’s motion papers is proof that this
particular document
was delivered to Respondent’s premises on October 21, 2021. Secretary’s Exhibit F.

(Resp’t’s
Reply to Sec’y’s
Opp’n, at 3).

The deadline for Respondent to submit its Notice of Contest pertaining to the two Citations and the Notification of Failure to Abate Alleged Violations that OSHA issued on October 19,
2019
was November 12, 2021 based upon its receipt of the two Citations and the Notification of Failure to Abate Alleged Violations on October 21, 2021. 21
OSHA did not receive a timely Notice of Contest from Respondent contesting the two Citations issued on October 19, 2021. (Mot. to Dismiss, at 4 ). Respondent asserts that its “first Late Notice of Contest dated December 3,
2021
was in response to the Failure to Abate Notice (delivered October 21, 2021), making it beyond the required fifteen (15) day period. ” (Mot. to Dismiss, Ex. C). OSHA also did not receive timely notices of contest from Respondent contesting the two Citations and the Failure to Abate alleged violations that OSHA issued on October 19, 2021. (Mot. to Dismiss, at 4;
Resp’t’s
Reply to Sec’y’s
Opp’n , at 3 ).

The Court finds that the two Citations issued under OSHA Inspection No. 1537913 in the amount of $30,071 (Docket No. 22-0291) and the Failure to Abate Alleged Violations issued by OSHA under Inspection Nos. 1537913 and 1418803 in the amount of $257,480 on October 19,
2021
became final orders of the Commission no later than November 12, 2021. 22

By
Late
Notice of Contest dated
February 28 , 2022, Respondent ’s counsel
contested the se
two
Citation s
and
proposed
penalties
that were issued on October 21, 2021 (sic). 23 The Late Notice of Contest was sent to AD Levy “Via Electronic
Mail ( [email protected] )”. (Mot. to Dismiss, Ex. H).

By
Late
Notice of Contest dated
March 2 , 2022, Respondent ’s counsel
again
contested the se
two
Citation s
and
proposed
penalties
pertaining to OSHA Inspection No. 1537913. This Late Notice of Contest was sent to AD Levy “Via Electronic Mail ( [email protected] ) ” and to the Commission at the Commission’s address in Washington, D.C. 24

On March 10, 2022, t he Commission docketed the
OSHA Inspection No.
1537913

matter
as Docket No. 22-0291.

On March 30, 2022, Ellen Marie Walsh, Esq. filed her Notice of Appearance in Docket No. 22-0291.

The case was assigned to the undersigned on March 31, 2022.

III. Docket Nos. 21-1295, 22-0074 and 22-0291

On January 24, 2022, the Court conducted a scheduling conference to schedule a mandatory settlement conference in Docket No. 21-1295. 25 During the scheduling conference the parties indicated their intention to file a motion to consolidate for
mandatory settlement purposes Docket No. 22-0074 and a third case [later identified as Docket No. 22-0291] with Docket No. 21-1295. By Order dated January 24, 2022, the Court directed the parties to attend a mandatory settlement conference on July 14,
2022
at Newark, NJ.

By Order dated January 14, 2022, the Court suspended all discovery in Docket No. 21-1295; except for Respondent producing financial-related documents regarding Respondent’s inability to pay any penalties.

On February 10, 2022, the Court consolidated Docket Nos. 21-1295 and 22-0074 for mandatory settlement proceedings.

On March 30, 2022, Chief Judge Rooney granted the Secretary’s unopposed Motion to Consolidate Docket No. 22-0219 (sic )[ 22-0291] with Docket Nos. 21-1294 (sic)[21-1295] and 22-0074 in settlement proceedings.

On May 24, 2022, the Secretary filed his Motion to Dismiss Late Notices of Contest [in Docket Nos. 22-0074 and 22-0291] (Mot. To Dismiss). The Secretary asserts that Respondent filed untimely letters of contest “that do not provide any valid grounds for relief from the Commission’s final orders.” The Secretary also argues that Respondent has not proffered a meritorious defense to the citations sufficient to be eligible for relief under Rule 60(B)(1). ( Id ., at 8-9). The Secretary “moves to dismiss Respondent’s Late Notices of Contest [relating to Docket Nos. 22-0074 and 22-0291] and to affirm the Secretary’s citations and proposed penalties as issued.” ( Id ., at 2).

On June 3, 2022, Respondent filed its Opposition to the Motion to Dismiss Respondent’s
Late Notice of Contest and Motion for Relief Pursuant to
Fed.R.Civ.P . 60(b)(1). Respondent asserts that: 1) the Secretary “Cannot engage in settlement negotiations over proposed penalties for months and then take the position that the proposed penalties are final, 2) Respondent’s November 30, 2021 Notice of Contest in Docket No. 21-1295 attached to the cases in Docket Nos. 22-0074 and 22-0291, 26
and 3) Respondent filed its notices of contest in Docket Nos. 22-0074 and 22-0291 “outside the 15-day prescribed timeline due to excusable neglect.” Respondent also asserts that it has “meritorious defenses to the citations.” ( Id ., at 1). Respondent asks the Court to deny the Secretary’s Motion to Dismiss and grant it relief pursuant to Fed. R. Civ. P. 60(b)(1) allowing it to pursue its contest of the citations in Docket Nos. 22-0074 and 22-0291.

On June 23, 2022, the Secretary filed his Reply to Respondent’s Opposition to Secretary’s Motion to Dismiss Respondent’s Late Notices of Contest and Opposition to Respondent’s Motion for Relief Pursuant to
Fed.R.Civ.P . 60(B)(1). 27 The Secretary asserts that the citations and proposed penalties in Docket Nos. 22-0074 and 22-0291 are final orders of the Commission and are now not subject to review by any court or agency. He also argues that Respondent is not entitled to relief from the Commission’s final orders under Fed. R. Civ. P.
60(b)(1). The Secretary argues that there is no legal support for the arguments advanced by Respondent regarding the Secretary engaging in settlement negotiations and Respondent’s November 30,
2021
Notice of Contest in Docket No. 21-1295 attaching to the cases in Docket Nos. 22-0074 and 22-0291. He also argues Respondent has not established grounds for relief from Judgment under Fed. R. Civ. P. 60(b)(1). ( Id. ,
at 5-6) .

On June 27, 2022, Respondent file d
its Reply to the
S ecretary’s
O pposition to
R espondent’s
M otion for
R elief and
S ur-reply to
S ecretary’s
R eply to the
O pposition to
S ecretary’s
M otion to
D ismiss
R espondent’s
L ate
No tice of
C ontes t ( Sur-reply to Sec’y’s Reply). In its Sur-reply to Sec’y’s Reply, Respondent argues that it was unaware that a Notice of Contest was necessary, presumably because it was engaged in settlement discussions with the Secretary. 28 It argues that the Secretary waived its ability to move for dismissal of a late notice of contest by engaging in settlement discussions with Respondent. ( Id ., at 1). It also argues that the Secretary should not now be able to move to dismiss any late notice of contest because the Secretary did not raise a late notice of contest issue during the January 24,
2022
MSC scheduling conference conducted by the Court. (Id ., at 6). Respondent also reiterated its argument that it has established grounds for Relief from Judgment under Fed. R. Civ. P. 60(b)(1). And lastly, without providing adequate evidence supporting its blanket assertion, Respondent again states that it “has meritorious defenses to all citations.” ( Resp’t’s
Reply to Sec’y’s
Opp’n , at 3).

For the reasons that
follow, the Secretary’s Motion to Dismiss is GRANTED.

I V .

D ISCUSSION

A. Respondent filed Untimely Notices of Contest in Docket Nos. 22-0074 and 22-0291.

Pursuant to section 10(a) of the Act, if an employer fails to notify the Secretary within 15 working days from receipt of the
Citation and Notification of Penalty
issued
by the Secretary
that it intends to contest the citation, the citation shall be deemed a final order of the Commission. 29 29 U.S.C. § 659(a);
Sec’y of Labor v.
Barretto
Granite Corp. , 830 F.2d 396, 398 (1st Cir. 1987) (“Failure to contest a citation in a timely fashion results in the citation becoming a final order of the Commission.”). 30 29 C.F.R.
§
1903.17(a) requires that the employer notify
OSHA
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 by the employer of the notice of proposed penalty.”

D ocket No. 22-0074

a. O SHA Inspection No. 1418803

The Court finds that Respondent did not
timely submit
a NOC within 15 working days of its receipt of the Citation s issued by OSHA
on January 24,
2020
under
I nspection no. 1418803 as section 10(a) of the Act and 29 C.F.R. § 1903.17(a) require. Respondent’s office received the
Citations no later than February 27, 2020. (Mot.
t o Dismiss ,
at 3,
Exs .
A- C ;
VV email to Conklin
dated 2/27/20 ; VV email to AD Levy
dated Mar 3, 2020). The
f ifteen th
workday following this date, excluding weekends and federal holidays ,
was
March 19 , 20 20 . OSHA did not receive any NOC from Respondent on or before March 19, 2021. Respondent’s Late Notice of Contest submitted on December 3,
2021
was filed by Respondent long after its notice of contest was due. As discussed above, the Court finds that the Citations issued by OSHA on January 24,
2020
became a final order of the Commission no later than March 19, 2020.

b.
OSHA Inspection No. 1537913

Similarly, t he Court finds that Respondent did not
timely submit
a NOC within 15 working days of its receipt of the Citation s issued by OSHA
on
October 19,
2021
under
I nspection no. 1 537913
as section 10(a) of the Act and 29 C.F.R. § 1903.17(a) require. Respondent’s office received the Citations no later than
October 21, 2021.

The
f ifteen th
workday following this date, excluding weekends and federal holidays ,
was
November 12, 2021 . OSHA did not receive any NOC from Respondent on or before November 12, 2021. Respondent’s late Notice of Contest filed on February 28,
2022
was filed by Respondent long after its notice of contest was due. 31 (Mot. to Dismiss, Ex. H). As discussed above, the Court finds that the Citations issued by OSHA on October 19,
2021
became a final order of the Commission no later than November 12, 2021.

c. OSHA Inspection Nos. 1418803 and 1537913

Any NOC postmarked after the 15-day contest period has no effect. Barretto
Granite Corp. , 830
F.2d at 397-98 ;
Therrel-Kizer , Inc. , No. 80-3845, 1981 WL 19289, at 2 (O.S.H.R.C.A.L.J.,
Mar.
4, 1981) (citing
Kerr-McGee Chem.
Corp. , 4 BNA OSHC 1739 (No. 9890, 1976) (“filing
(mailing)
the notice on the
sixteenth
day after receipt of the citation was
one (1) day
too late and the citation
had
become a final order
of the Commission.”). The Commission also holds that because OSHA’s notifications clearly warn of the deadline, the employer “must bear the burden of its own lack of diligence in failing to carefully read and act upon the information contained in the citations.”
Acrom
Const r . Servs . ,
Inc. ,
No. 88-2291, 1991 WL 132730, at 4 (O.S.H.R.C. Jun 28, 1991). Respondent bears the burden of its own failure to timely contest the
Citations.

d. Respondent’s argument that the Secretary “Cannot engage in settlement negotiations over proposed penalties for months and then take the position that the proposed penalties are final,” is without merit.

In his Sec’y’s Reply and
Opp’n, the Secretary asserts that Respondent advances this contention without citing to any legal support that the Secretary waives the right to move for dismissal once he begins settlement negotiations. (Resp’t’s
Opp’n
to Mot. to. Dismiss and Mot. For Relief pursuant to
Fed.R.Civ.P. 60(b)(1), at 6-7; Sec’y’s Reply and
Opp’n, at 4). As noted by the Secretary, such a rule would limit the parties’ ability to settle late notice of contest cases by compelling the Secretary to make an early choice between settlement efforts and motion
practice. The Secretary states that “[t]here is no basis for such a claim”; and the Court agrees.

e. Respondent’s argument that the November 30,
2021
Notice of Contest in Docket No. 21-1295 attached to the cases in Docket Nos. 22-0074 and 22-0291 is also without merit.

Respondent also asserts without any legal support that its notice of contest specifically related to separate Docket Number 21-1295 should “attach to” Docket Numbers 22-0074 and 22-0291 because the cases have now been consolidated by the Court for mandatory settlement
proceedings. (Resp’t’s
Opp’n
to Mot. to. Dismiss and Mot. For Relief pursuant to
Fed.R.Civ.P. 60(b)(1), at 7-8). The Secretary correctly asserts that notices of contest do not work that way. (Sec’y’s Reply and
Opp’n, at 4). Per Section 10(a) of the Act, an employer must timely file a notice of contest as to the
citation
that it seeks to dispute. Respondent apparently timely contested the citations associated with OSHA Inspection No. 1513451 and Docket Number 21-1295. It did not timely contest the citations associated with OSHA Inspection Nos. 1418803 and Docket Number 22-0074 and OSHA Inspection No. 1537913 and Docket No. 22-0291.

The subsequent court ordered consolidation of the three cases in 2022 now before the Court in mandatory settlement proceedings does not alter that fact. Moreover, notwithstanding the consolidation for settlement proceedings, the cases docketed at 21-1295, 22-0074 and 22-00291 deal with separate citations and facts which would be considered independently on their respective merits in any Court decision after any trial.

f. Respondent has failed to establish excusable neglect.

Respondent asserts that its notices of contest “pertain to
the
proposed penalties of $257,480 and $30,037
[which]
were late due to excusable neglect.”

( Resp’t’s
Reply to Sec’y’s
Opp’n , at 4). 32

Federal
Rule
of Civil Procedure
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.” 33

Respondent has not shown any occurrence of “mistake, inadvertence, surprise or excusable neglect” from which relief may be granted. ( Id. ).

The Second Circuit Court of Appeals has ruled that the Commission may not exercise jurisdiction based on Rule 60(b). See Chao v. Russell P. Le
Frois
Builder, Inc ., 291 F.3d 219 (2d Cir. 2022). Under
Chao v. Russell P. Le
Frois
Builder, Inc .,
the Court would deny Respondent’s Motion for Relief pursuant to Rule 60(b)(1) for lack of jurisdiction. But, since this case arose in the Third Circuit,
see also J.I. Hass Co., Inc. v. OSHRC and Marshall , 648 F.2d 190, 195 (3 rd
Cir. 1981), where the Court held “that the Commission has jurisdiction to entertain a late notice of contest under rule 60(b)”.

The Court applies Third Circuit and
Commission precedent when deciding
whether Respondent’s Late Notices of Contest may be
excused
pursuant to Federal Rule of Civil Procedure 60(b)(1), and the result here is the same.

Fed. R. Civ. P. Rule 60(b);
Ricop
Constr. Co. , No. 01-0955, 2002
WL 171637 (O.S.H.R.C.A.L.J., Jan 25, 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”
34 ;
or if an employer “can show that the Commission’s final order was entered due to ‘mistake, inadvertence, surprise, or excusable neglect’”)
Brancif o rte
Builders, Inc. ,
No. 80-1920,
1981 WL
18814,
at *4
(O.S.H.R.C., July 31, 1981)
(finding “a judgment may be vacated when it is shown that the party against whom a judgment was entered had no actual knowledge of the service of process due to a mistake of fact, inadvertence or excusable neglect.”);
Monroe & Sons, Inc. , 4 BNA OSHC 2016, 2020 (No. 6031, 1977) (Commission has authority to use Rule 60(b)),
aff’d
, 615 F.2d 1156, 1160 (6th Cir. 1980) (Commission has authority to apply Rule 60(b)). 35

Respondent has the burden to
show excusable neglect . Roy Kay Inc. , No. 88-1748, 1989 WL 223306, at 1 (O.S.H.R.C., Jan. 28, 1989). When evaluating such claims, the Commission applies the criteria set forth by the Supreme Court in
Pioneer Inv. Serv. Co. v. Brunswick Assoc. Ltd. Partnership,
507 U.S. 380 (1993) ;
E.g.,
Nw
Conduit Corp. , No. 97-851, 1999 WL 820636, at 3 (O.S.H.R.C., Sept. 3, 1999).

Under the
Pioneer
test, the Commission takes into account “all relevant circumstances,” including: (1) “the reason for the delay, 36
including whether it was within the reasonable control of the [company]”; 37
(2) “the length of the delay and its potential impact on judicial proceedings”; 38
(3) “the danger of prejudice to the
[Secretary];” 39
and (4) “whether the [company] acted in good faith.”
Id.
(quoting
Pioneer , 507 U.S. at 395).

The Secretary asserts that Respondent’s
December 3,
2021
and February 28, 2022 Late Notices of Contest “do not provide any valid grounds for relief from the Commission’s final orders.” (Mot. to Dismiss, at 8-9).

The Court agrees. Respondent has failed to meet its burden that relief should be granted under Rule 60(b). Notwithstanding the absence of Respondent asserting any adequately support meritorious defenses to any of the citations at issue in Docket Nos. 22-0074 and 22-0291,
Respondent’s assertion that the October 19, 2021 Citations were mis- delivered to an
unrelated
adjacent
address at 190
Joy (sic) Drive, Carlstadt, New Jersey 07072 and not to Respondent’s warehouse address at 190-A Joy (sic) Drive, Carlstadt, New Jersey 07072 is not dispositive of the issue as to when Respondent received the OSHA citations that were issued on October 19, 2021. 40 ( Resp’t’s
Opp’n
to Mot. to Dismiss and Mot. For Relief pursuant to
Fed.R.Civ.P. 60(b)(1), at 6; Samir Bhatia Cert., at ¶¶ 13-15;
Resp’t’s
Reply to Sec’y’s
Opp’n, at 3). The Court has found that the OSHA Citations issued on October 19,
2021
were received by Respondent no later than October 21, 2021.

The Court finds that there is insufficient evidence in the record to support
Respondent ’s
assert ion
that it “was lulled into thinking it was working toward a resolution of the outstanding citations and that no further filings were required.”

( Sur-reply to Sec’y’s Reply , at 1). The
Citations
and Notification
of Failure to Abate Alleged Violations provided clear notice to Respondent that a written letter of intent to contest the citations and Failure to Abate Alleged Violations must be submitted to OSHA within 15 working days of receipt of the Citations and Failure to Abate Alleged Violations. Respondent ignored these instructions and unilaterally delayed its filings of notices of contests for lengthy periods of time. This is not a case where Respondent was misled by OSHA as to the date a NOC must be filed. 41 There is no evidence that OSHA committed any fraud, misrepresentation, or misconduct within the meaning of Rule 60(b). There is no evidence that anyone at OSHA suggested that Respondent disregard the written notice of contest instructions. 42 This is not a case where an employer had no opportunity to timely file its NOC because its offices suffered water damage requiring numerous repairs that occurred during and after the fifteen-day contest period, 43
or a key employee suffered serious ill health issues that adversely effected the employer’s ability to submit a timely NOC. To allow an employer to unilaterally extend the fifteen-day contest period for an open-ended period eviscerates the statutory mandated requirement for an employer to submit a NOC within the 15 working day period. Many days, weeks, or months (as here) could pass. See
section 10(a) of the Act .

There is no persuasive evidence of mistake, inadvertence, surprise, or excusable neglect in the record that justifies grounds for relief under Rule 60(b)(1). Having reviewed the record, the Court
also
finds that no evidentiary hearing is necessary to determine whether Respondent’s delay in filing its NOC was due to excusable neglect and/or whether it is
entitled to relief from the final order under Rule
60(b)(l).

B. Respondent has not shown the existence of its Meritorious Defenses in Docket Nos. 22-0074 and 22-0291 .

Respondent must also allege a meritorious defense to the Citations before any relief can be granted under Rule 60(b)(1). As the First Circuit has stated, “it is the invariable rule . . . that a litigant, as a precondition to relief under Rule 60(b), must give the trial court reason to believe that vacating the judgment will not be an empty exercise.” Teamsters, Chauffeurs, Warehousemen & Helpers Union, Local No. 59 v.
Superline
Transp. Co. , 953 F.2d 17, 20 (1st Cir. 1992) (describing the requirement as “an additional sentry that guards the gateway to Rule 60(b) relief”);
see also United States v. Proceeds of Sale of 3,888 Pounds Atl. Sea Scallops , 857 F.2d 46, 48 (1st Cir. 1988) (explaining that the party arguing excusable neglect also “bears the heavy burden of showing . . . the existence of a meritorious defense”). The attempted contests therefore fail for yet another independent reason since Respondent has failed to show the existence of meritorious defenses here. See also
Nw. Conduit Corp. , 1999 WL 820636, at * 5.

Respondent states that it has meritorious defenses to the citations in Docket Nos. 22-0074 and 22-0291, including “actual abatement of the offenses, unpreventable employee misconduct, Respondent’s ability to pay and excessive penalties.” 44
( Resp ’t’s
Opp ’n
to Mot. to. Dismiss and Mot. For Relief pursuant to
Fed.R.Civ.P.
60(b)(1), at 11). Other than asserting that it has a blanket unpreventable employee misconduct defense to
all of
the citations at issue in Docket Nos. 22-0074 and 22-0291, Respondent provides nothing more. More is required to show that Respondent has established the existence of a meritorious
defenses
to each of the violations alleged in
all of
the citations contained within Docket Nos. 22-0074 and 22-0291.

Since the record does not show that the untimeliness of the NOC was due to “excusable neglect,”
whether or not
Respondent has raised a meritorious defense to the Citation
need not be addressed. JP Gallagher Elec. , 24 BNA OSHC 1585,
1590 (No. 12-1495, 2013)
(ALJ)
(“before reaching the issue of whether Respondent has a meritorious defense to the citation, the record first must establish that the untimely filing was the result of ‘excusable neglect,’ entitling Respondent to relief under Rule 60(b).”). See also
Nw. Conduit
Corp. , 1999 WL 820636, at *3.

Respondent had ample opportunity to timely file notices of contest and its delay is not excusable neglect. (Mot. to Dismiss, at 8).

Based on the
above
considerations, the Court finds Respondent’s failure to file a timely NOC was not due to mistake, inadvertence, surprise, or excusable neglect , or result from any erroneous representations of the Secretary.

V. CONCLUSION

The Court finds that
Respondent did not timely file notices of contest contesting any or all the citations that are included within Docket Nos. 22-0074 and 22-0291.

Respondent has not established a basis for relief under Rule 60(b). Respondent has failed to proceed as provided by
the requirements set forth in the Act and in the Citation s . Respondent has also not demonstrated that the delay in filing
its late notices of contest
was excusable under Rule 60(b). Pursuant to section 10(a) of the Act,
all
the Citation s
and
their
proposed penalties
that are
included within Docket Nos. 22-0074 and 22-0291
are deemed final order s
of the Commission.

V I .

FINDINGS OF FACT AND CONCLUSIONS OF LAW

All finding s
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).

V I I. ORDER

WHEREFORE, the Court finds Respondent failed to file timely
notices of contest
and no relief under Rule 60(b) is justified; and it is ORDERED that:

1) Complainant’s Motion to Dismiss
Respondent’s Late Notices of Contest
is
GRANTED ;

2) Docket No. 22-0074 and
Respondent’s
Late
Notice of Contest
dated December 3,
2021
pertaining to OSHA Inspection Nos. 1418803 and 1537913, including Citations issued on January 24, 2020 and FTA Citations issued on October 19, 2021, are
dismissed in
their
entirety with prejudice as untimely filed ;

3) Docket No. 22-0291 and
Respondent’s
Late
Notice s
of Contest
dated February 28,
2022
and March 2, 2022
pertaining to OSHA Inspection No. 1537913 are
dismissed in
their
entirety with prejudice as untimely filed ;

4) OSHA Citations, including the eleven serious citations and one other-than-serious citation, that were issued to Respondent on January 24, 2020, with proposed
penalties
amounting to
$46,268, 45
are deemed a final order of the
Commission ;
46

5) OSHA Citations issued to Respondent on October 19,
2021
pertaining to Failure to Abate Alleged Violations under OSHA Inspection Nos. 1418803 and 1537913
and
their
proposed
penalties amounting to $257,480, are deemed a final order of the Commission; 47
and

6) OSHA Citations issued on October 19, 2021 pertaining to OSHA Inspection No.
1537913 and
their
proposed penalties
amounting to $30,071
are deemed a final order of the Commission . 48

SO
ORDERED.

/s/ _________

The Honorable Dennis L. Phillips

U.S. OSHRC JUDGE

Date:

Washington, D.C.

1
Respondent asserted that
the Court did not consider
three
of the factors in
Pioneer Inv. Serv. Co. v. Brunswick

Assoc. Ltd. Partnership , 507 U.S. 380, 395 (1993), including:

1) length of delay and its potential impact on judicial proceedings,
2) danger of prejudice to the Secretary, and
3) whether the company acted in good faith.

(Mot.
for Recon., at 4-5). Respondent agrees the Court examined the Pioneer factor pertaining to reasons for delay
in its Decision and Order
Granting the Secretary’s Mot.
to Dismiss issued July 7, 2022. (Mot.
for Recon., at 4).

2
Although the Court mistakenly stated that the case arose in the Second Circuit, it applied the same criteria set forth in
Pioneer
Inv.
Serv.
Co.
v. Brunswick Assoc. Ltd. Partnership,
507 U.S. at 395
as required by the Third Circuit in its Decision and Order Granting Mot.
to Dismiss issued on July 7, 2022. (Decision and Order Granting Mot. to Dismiss issued on July 7, 2022, at 33). Thus, the mistaken statement that the case arose in the Second Circuit in the Decision and Order Granting Mot. to Dismiss issued on July 7,
2022
had no effect on the outcome of the case.

3
Typically, courts give the most weight to "the reason for the delay" in determining excusable

neglect under Rule 60(b).
AR Med. LLC 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)("A key factor in evaluating whether a party's delay in filing was due to excusable neglect is 'the reason for the delay, including whether it was within the reasonable control of the movant."');
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").

4
The Court finds that the reasons for the delays here were within Respondent's reasonable control.

If
the party

fails to properly articulate a sound reason for the delay in filing its NOC, excusable neglect is often not granted.
Ca l Har
Constr. Inc.,
18 BNA OSHC 2151, 2153-54 (No. 98-367, 2000) ( CalHar's
neglect was not excusable under Rule 60(b)(l) where delay in filing its NOC was within its reasonable control).

5
The passage of many months from the deadline when Respondent was due to file its Notice of Contest in Docket

No. 22-0074 and 130 calendar days in Docket No. 22-0291 has a significant impact on the Secretary's ability to fully prepare his case for
trial;
thereby prejudicing the Secretary.

During that lengthy timeframe, evidence can be lost or misplaced, witnesses may become unavailable, and memories fade.

6
See
n.
5, above.

7
The identical language was also in the Decision and Order Granting Mot. to Dismiss issued on July 7, 2022.

8
The Judge’s report, which includes the Decision and Order Granting Mot. to Dismiss issued on July 18, 2022, will be filed with the Commission’s Executive Secretary on September 19, 2022 .
See
Commission Rule 90(b), 29 C.F.R. § 2200.90(b) and accompanying Notice of Decision.

9
The US Postal Service Certified Mail Receipt attached to the Mot. to Dismiss, Ex. B, is not filled in. (Mot. to Dismiss, Ex. B).

10
Respondent’s Late Notice of Contest dated December 3,
2021
states “A copy of citations, which was received via certified mail on February 27, 2020.” (Mot. To Dismiss, at 3, Ex.
C; Vignesh Vijayakumar (VV) email to OSHA’s Rhonda Conklin (Conklin) dated 2/27/20; VV
email to AD Levy dated Mar 3, 2020).

11
In its Opposition to the Secretary’s Motion to Dismiss, Respondent acknowledges
that
its
December 3,
2021
Late
Notice of Contest states it received “some documents on February 27, 2020.” (Resp’t’s
Opp’n
to Mot. to Dismiss and Mot. for Relief pursuant to
Fed.R.Civ.P. 60(b)(1), at 5). The December 3, 2021 Late Notice of Contest actually states: “A copy of citations, which was received via certified mail on Feb 27, 2020.” (Mot. To Dismiss, Ex. C).

12
Mr. Vijayakumar stated: “We received the citations this week, but the issuance date says January 24 th
and deadline for informal was 15 days from that. But we found the package in our facility mail area today with the delivery slip on it. They dropped it unlike the other citation they took our signature for the delivery proof.” (VV email to Conklin dated 2/27/20; VV email to AD Levy dated Mar 3, 2020).

13
The Notification of Failure to Abate Alleged Violations stated that “[t]he
additional penalty is computed by multiplying a daily penalty times the number of days the violation(s) remained unabated.” (Mot. to Dismiss, Ex. E, at 1).

14
The Secretary’s position is that Respondent’s Late Notice of Contest relating to the citations that OSHA issued on

January 24,
2020
was submitted to OSHA on December 3, 2021; six hundred and twenty-four days late. (Mot.
to Dismiss, at
3;
Secretary’s Reply to Respondent’s Opposition to Secretary’s Motion to Dismiss Respondent’s Late Notices of Contest and Opposition to Respondent’s Motion for relief Pursuant to
Fed.R.Civ.P. 60(B)(1) (Sec’y’s Reply and
Opp’n), at 3). Respondent acknowledges that the Secretary’s Motion to Dismiss “pertains to proposed penalties of $46,268, 257,480, and $30,037.” (Resp’t’s
Reply to Sec’y’s
Opp’n, at 4).

15
As indicated above, the Court found that all items contained in OSHA Inspection 1418803 were deemed a final order of the Commission as of March 19, 2020. For the purposes of this decision, it makes no difference whether these items were deemed a final order of the Commission as of March 19,
2020
or August 31, 2020. The result is the same.

16
See
n. 7.

17
See
n. 7.

18
Respondent’s counsel stated in Respondent’s Late Notice of Contest dated March 2,
2022
that “management at Amazing Vitamins, LLC did not become aware of it [Citations issued October 19, 2021] until January 19, 2022.” Late Notice of Contest dated March 2, 2022, at 2; Sec’y’s Reply and
Opp’n, at 3). The Court need not determine whether Respondent received a written version of the October 19,
2021
Citation on October 19, 2021, as the Court will start the running of the 15-day deadline on October 21, 2021 when Respondent received the October 19, 2021 Citations in the mail.

19
Both of these
materials show that they were sent to the same address at 190-A
Jony
Drive, Carlstadt, NJ 07072. (Mot. To Dismiss,
Exs. D, at 1; E at 1).

20
In
its Opposition to Mot. to. Dismiss and Mot. For Relief pursuant to
Fed.R.Civ.P. 60(b)(1),

Respondent
states the FTA Citation was mis-delivered to 190
Jony
Drive, instead of 190-A
Jony
Drive. Respondent further states that the initials by the person receiving the FTA Citation indicated on the Green Card of the US Postal Serve are unreadable. Respondent states that it received the FTA citation on January 19, 2022.
(Resp’t’s
Opp’n
to Mot. to. Dismiss and Mot. For Relief pursuant to
Fed.R.Civ.P. 60(b)(1)
at 6; Late Notice of Contest, dated March 2, 2022, at 2).

21
Respondent indicates that the deadline for Respondent to file its Notice of Contest relating to the FTA Citation

was November 11, 2021 . The Secretary mistakenly identified November 4,
2021
as the “last day to contest these citations.…” in its Motion to Dismiss. (Mot. to Dismiss, at 4). Both parties are mistaken.

22
In its Late Notices
of Contests dated February 28,
2022
and March 2, 2022, Respondent admits that
it

became aware of the two citations
issued by OSHA on January 19,
2021
by January
19, 2022. Fifteen working days beyond January 19,
2022
is February 9, 2022. Respondent concedes that it submitted its first of two Late Notices of Contest 27 additional working days (or 40 calendar days) beyond the deadline calculated from January 19, 2022. The Court finds that it actually submitted its February 28,
2022
late notice of contest 130 calendar days late ; i.e . from October 21, 2021 through February 28, 2022, in Docket No. 22-0291. (Sec’y’s. Reply and
Opp’n, at 6).

23
OSHA issued the two citations on October 19, 2021. (Mot. To Dismiss, at
4;
Mot. To Dismiss, Ex D).

24
This second Late Notice of Contest pertaining to OSHA Inspection No. 1537913 was mailed to the Commission “Via First Class Mail”. The envelope containing the Late Notice of Contest addressed to the Commission is dated March 3, 2022. The envelope containing the Late Notice of Contest was received at the Commission’s Office of the Executive Secretary on March 8, 2022.

25
The Court does not adjudicate the case in Docket No. 21-1295 by this Order. Docket No. 21-1295 remains the subject of the July 14,
2022
mandatory settlement conference.

26
From February 5 through August 3, 2021, OSHA conducted an inspection of Respondent’s worksite at 190-A

Jony
Drive, Carlstadt, NJ 07072 under Inspection
No. 1513451. On August 3, 2021, OSHA issued three citations

involving willful, repeat and serious items and a proposed penalty of $202,319. On November 30, 2021,

Respondent contested the citations “for our inspection # 1513451”; a case later docketed by the Commission on

December 3,
2021
as
Docket No. 21-1295.

27
The Sec’y’s Reply and
Opp’n
is mis-dated May 23, 2022.

28
Respondent asserts that it “was lulled into thinking it was working toward a resolution of the outstanding citations and that no further filings were required.” (Sur-reply to Sec’y’s Reply, at 1).

29
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.

30
The 15-day period is activated by the employer’s receipt of the notice. Barretto
Granite Corp . , 830 F.2d at 396.

31
See
n. 14, above.

32
But as discussed
above, the
Court agrees with the Secretary that Respondent’s Notice of Contest dated December 3, 2021 also includes Respondent contesting all of the OSHA Citations issued on January 24, 2020.

33
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).

34
This is not a case where the Secretary’s deception or failure to follow proper procedures is responsible for Respondent’s late filings. See Atl .
Marine, Inc. v. OSHRC , 524 F.2d 476, 478 (5 th
Cir. 1975).

35
Marsha l l v. Monroe & Sons, Inc.
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.” 615 F.2d at 1160.

36
Typically, courts give the most weight to “the reason for the delay” in determining excusable

neglect under Rule 60(b). AR Med. LLC 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) (“A key factor in

evaluating whether a party’s delay in filing was due to excusable neglect is ‘the reason for the delay, including

whether it was within the reasonable control of the movant.’”);
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”).

37
The Court finds that the reasons for the delays here were within Respondent’s reasonable control. If the party fails to properly articulate a sound reason for the delay in filing its NOC, excusable neglect is often not granted. CalHar
Constr. Inc. , 18 BNA OSHC 2151, 2153-54 (No. 98-367, 2000) (CalHar’s
neglect was not excusable under Rule 60(b)(1) where delay in filing its NOC was within its reasonable control).

38
The passage of many months from the deadline when Respondent was due to file its Notice of Contest in Docket No. 22-0074 and 130 calendar days in Docket No. 22-0291 has a significant impact on the Secretary’s ability to fully prepare his case for
trial;
thereby prejudicing the Secretary. During that lengthy timeframe, evidence can be lost or misplaced, witnesses may become unavailable, and memories fade.

39
See
n.30, above.

40
Respondent has asserted that mail and deliveries addressed to 190-A
Jony
Drive are often misdelivered to 190

Joy (sic) Drive. ( Resp’t’s
Opp’n
to Mot. to. Dismiss and Mot. For Relief pursuant to
Fed.R.Civ.P . 60(b)(1),
at

6 ).

41
See
Bueme , No. 94-0868, 1995 WL 121508, at *3 (O.S.H.R.C.A.L.J., Mar. 16, 1995) (Employer obligated to file a contest within 15 workdays even where an informal conference requested).

42
In CEO Bhatia’s Certification, he asserts that during settlement discussions OSHA personnel never
stated
“the proposed penalties were final orders or that the time to file a Notice of Contest had passed.” (Resp’t’s
Opp’n
to Mot. To Dismiss and Mot. For Relief pursuant to
Fed.R.Civ.P. 60(b)(1), at Bhatia Cert., ¶ 9). Even if true, their silence does not constitute
any fraud, misrepresentation, or misconduct within the meaning of Rule 60(b).

43
See Evergreen
Envtl . Serv ., 26
BNA
OSHC
1982 (No. 16-1295, 2017) (Untimely filing of NOC excusable where unanticipated water damage to its offices hampered employer’s procedures for handling and directing the processing of an OSHA citation).

44
Actual abatement of the offenses and Respondent’s ability to pay are not defenses to any of the Citations at issue.

A general assertion of excessive penalties not directed toward any specific citation or item
also
does not adequately establish the existence of a meritorious defense sufficient to satisfy the requirement for eligibility for a late notice of contest to be excused pursuant to Federal Rule of Civil Procedure 60(b)(1).

45
This Order is not intended to affect any later informal agreement between the parties that adjusted the penalties due for the citations issued on January 24,
2020
as there is evidence that the parties may have adjusted the original penalties due in the amount of $46,268 to an amount at about $16,344.00. (VV email to AD Levy dated June 21, 2021).

46
The Court’s jurisdiction is limited to entertaining the Secretary’s Motion to Dismiss. “[W]hen [a NOC] is untimely and there are no grounds for relief under Rule 60(b)”,
as
untimely NOC “deprives the Commission of jurisdiction.” GT Tile Loading , 25 BNA OSHC 1470, 1471 n. 1 (No. 15-0190, 2015). With the granting of
the Secretary’s Motion to Dismiss, the Court
has no
further jurisdiction in this case.

The
Citations included with Docket Nos. 22-0074 and 22-0291 are
deemed final orders
of the Commission by operation of law
and are
left undisturbed. Accordingly, the Court concludes it has no authority to “affirm” the Citations
along with their
proposed penalties as requested by
the Secretary.

Nonetheless, to any extent allowed and/or required, the Court affirms
all of
the Citations and their proposed penalties in their entirety that are included with Docket Nos. 22-0074 and 22-0291.

47
See
n. 38.

48
See
n. 38.

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