E & R Erectors, Inc. (Commission decision, November 24, 1986)

Plain-English summary

An OSHRC judge dismissed E & R Erectors' citation contest because the company had not shown that affected employees received the required notice. E & R later explained that it was a leasing company with one office employee, that its controller misunderstood the process, and that it believed another company controlled the cited worksite and equipment. The Commission found sufficient mistake, inadvertence, and excusable neglect to set aside the final dismissal and reinstate the notice of contest. It remanded the case for further proceedings. The judge was directed to consider the Secretary's response and decide whether E & R had any affected employees who had to receive notice.

Decision snapshot

• Cited standard(s): None identified in the official release.
• Outcome: Final dismissal set aside; notice of contest reinstated and case remanded.
• Key point: Excusable procedural neglect justified reopening the contest, but the employee-notice question still had to be resolved.

Full text (OSHRC public release)

Docket No. 86-0545

SECRETARY OF LABOR,

Complainant,

v.

E & R ERECTORS, INC.,

Respondent.

OSHRC Docket No. 86-0545

ORDER

By order dated September 18, 1986, the administrative law judge dismissed Respondent's notice of contest of certain citations because the Respondent had not provided proof of notice to affected employees. The judge's order became final on October 20, 1986.

Thereafter, however, Respondent filed a motion to allow an answer and a statement of position. In this statement, Respondent avows that it failed to provide the required proof of notice to affected employees because Respondent is "strictly a leasing company with one paid employee, its controller, who was not exposed to anything, since he was not on the [work]site." Respondent further states:

The controller . . . , not really knowing much about anything but accounting, thought he was asking for a conference when he sent in the notice of contest. Not having experience in administrative proceedings, he failed to cause an answer to be filed to the pleadings or do anything else until he received a hearing notice, when he called his attorney.

In defense to the citations, Respondent asserts that it should not have been cited because it did not control the worksite or the use of the equipment that is the subject of the citations. According to Respondent, an uncited subcontractor which rented the particular equipment from Respondent controlled operations and created any hazardous conditions. Respondent emphasizes, also, that its one employee was never exposed to any hazard and questions whether other employees were exposed.

Essentially, Respondent requests us to reinstate its contest. The attorney appearing now for Respondent alleges that he "has investigated this matter diligently after being brought into the case and believes that no prejudice will be suffered by allowing the pleading. . . . "

In view of the circumstances of mistake, inadvertence, and excusable neglect stated by Respondent, we set aside the final order and reinstate the notice of contest pursuant to Rule 60(b)(1) and (6) of the Federal Rules of Civil Procedure. We remand the case to the administrative law judge for further proceedings. With respect to the matter of notice to the affected employees, we direct the judge to permit the Secretary to present any argument he may wish in response to Respondent's assertion that there are no affected employees within the meaning of our rules, and determine whether Respondent need comply with this notice requirement. See commission Rules 1(e) and 7(g) and (h), 29 C.F.R. 2200.1(e) and 7(g) and (h). SO ORDERED.

Ray H. Darling, Jr.

Executive Secretary

DATED: November 24, 1986

SECRETARY OF LABOR

Complainant

v.

E & R ERECTORS, INC.

Respondent

DOCKET NO. 86-0545

ORDER

1. No response has been filed to my order dated June 18, 1986, noting that the contesting
   employer has not complied with Commission Rule 7, 29 C.F.R. 2200.7, requiring that notice of a contested case be given to affected employees or their authorized representative, if any. See paragraph number 3 of the June 18, 1986, order.

2. Accordingly, the notice of contest is hereby dismissed to the extent that citations
   numbered W2587-495 issued April 15, 1986, are contested. The failure to provide proof of service is found to prejudice the rights of affected employees to participate in this proceeding. Commission Rule 20, 29 C.F.R. 2200.20. Nevertheless, the proposed penalties contested will remain in issue.

3. Pursuant to Commission Rule 10, 29 C.F.R. 2200.10, the citations and penalty
   allegations are hereby severed and designated respectively as docket numbers 86-545 and 86- 1090. As explained in a separate document issued this date, the employer may seek Commission review on the disposition of the citations under the prescribed procedures.

PAUL A. TENNEY

Judge, OSHRC

Dated: September 18, 1986

Washington, D. C.