E. Clifford Durrell & Son

Plain-English summary

The Commission approved a settlement between the Secretary of Labor and E. Clifford Durrell & Son. The settlement deleted one item and its penalty from Citation 1, reduced another Citation 1 penalty from $480 to $300, deleted one instance and four items from Citation 2, and required a $300 payment. The employer agreed to withdraw its notice of contest and represented that abatement had been or would be completed. The agreement stated that the settlement was not an admission of the citation allegations. The Commission incorporated the settlement terms and made the amended citations its final order. The settlement text does not identify the OSHA standards underlying the citation items.

Decision snapshot

• Cited standard(s): None identified in the settlement
• Outcome: Settlement approved; multiple items deleted and total penalty reduced from $960 to $300.
• Key point: The Commission may incorporate a compliant settlement into its final order while preserving the employer's non-admission clause.

Full text (OSHRC public release)

Docket No. 90-0808

SECRETARY OF LABOR,

Complaint,

v.

E. CLIFFORD DURRELL & SON,

Respondent.

OSHRC Docket No. 90-0808

ORDER

This matter is before the Commission on a Direction for Review entered by Commissioner
Velma Montoya on June 26, 1990. The parties have now filed a Stipulation of Settlement.

Having reviewed the record, and based upon the representations appearing in the
Stipulation of Settlement, we conclude that this case raises no matters warranting further
review by the Commission. The terms of the Stipulation of Settlement do not appear to be
contrary to the Occupational Safety and Health Act and are in compliance with the
Commission's Rules of Procedure.

Accordingly, we incorporate the terms of the Stipulation of Settlement into this order.
This is the final order of the Commission in this case. See 29 U.S.C. {secs} 659(c),
660(a) and (b).

Edwin G.Foulke, Jr.

Chairman

Velma Montoya

Commissioner

Donald G. Wiseman

Commissioner

Dated: April 18, 1991

LYNN MARTIN, SECRETARY OF LABOR,

UNITED STATES DEPARTMENT OF LABOR

Complainant,

v.

E. CLIFFORD DURRELL & SON, INC.,

and its successors,

Respondent.

OSHRC DOCKET NO. 90-0808

INSPECTION No. 102843505 REGION III

STIPULATION OF SETTLEMENT

Complainant, Lynn Martin, Secretary of Labor, United States Department of Labor, by her
attorneys, and Respondent, E. Clifford Durrell & Son, Inc, by its representative,
James F. Sassaman, in order to conclude this matter without the necessity of further
litigation, herein agree and stipulate as follows:

1. Complainant hereby moves to amend its Citation and Notification of Proposed Penalty
   issued on January 17, 1990, in the following particulars:

Citation No. 1

a. Item No. 1, item and penalty deleted

b. Item No. 2, amended as to penalty from 480.00 to 300.00

Citation No. 2

a. Item No. 1, instance (c) only deleted.

b. Item Nos. 2, 3, 4, and 5 deleted.

As grounds therefore, Complainant states that after additional investigation and
consideration, the above amendments more accurately reflect the gravity of the alleged
violations as well as Respondent's good faith, size, and history.

2. Respondent hereby moves the Commission for an order to allow it to withdraw its Notice
   of Contest to the Citations and Notification of Proposed Penalty as amended by this
   Stipulation. In support of its motion, Respondent represents:

a. That complete abatement of the violative conditions has been accomplished or will be
accomplished in accordance with the terms of this Stipulation;

b. That Respondent has posted its Notice of Contest on the jobsite at time of docketing;

c. That a copy of this Stipulation of Settlement has been posted in accordance with the
requirements of 29 CFR {sec} 2200.7 serve all affected employees on April 5, 1991 at the
jobsite;

d. Respondent agrees to continue to comply with the applicable provisions of the
Occupational Safety and Health Act of 1970 (29 U.S.C. {sec}, et seq.), and the applicable
safety standards pursuant to the Act;

e. That a check in the amount of $300.00, made payable to "OSHA-LABOR", will be
forwarded to the Occupational Safety and Health Administration, Philadelphia Area Office,
within twenty (20) days of the date of this Stipulation.

3. None of the foregoing agreements, stipulations or actions taken by Respondent shall be
   deemed an admission by Respondent of any of the allegations contained in the Citations.
   Respondent specifically denies each such allegation. The agreements, statements,
   stipulations and actions herein are made solely for the purpose of settling this matter
   economically and amicably without further litigation and shall not be used by anyone for
   any other purpose except for subsequent enforcement proceedings filed by the Secretary
   against Respondent under the Act.

4. The Citations and Notification of Proposed Penalty as amended by this Stipulation shall
   become a final order of the Commission.

5. Each party to this proceeding is to bear its own costs, fees and expenses incurred at
   each and every stage of this proceeding.

BY:

E. CLIFFORD DURRELL & SONS, INC.

Robert P. Davis

Solicitor of Labor

James F. Sassaman

Representative for Respondent

Marshall H. Harris

Regional Solicitor

Joseph T. Crawford

Attorney

U.S. DEPARTMENT OF LABOR

Attorneys for Complainant

Secretary of Labor,

Complainant,

v.

E. Clifford Durrell & Son, Inc.,

Respondent

DOCKET NO: 90-0808

ORDER

GRANTING SECRETARY'S CROSS MOTION FOR SUMMARY JUDGMENT

DENYING RESPONDENT'S MOTION FOR RELIEF FROM JUDGMENT

DISMISSING UNTIMELY FILED NOTICE OF CONTEST

The relevant facts are uncontroverted and set forth in detail in the Secretary's brief in
support of its motion to dismiss the notice of contest. That detailed statement of facts
is hereby incorporated by reference. Similarly, the facts asserted in Respondent's motion
for relief are accepted as fact for the purposes of this disposition and are incorporated
herein by reference.

Briefly stated, Respondent, after receiving a citation and notification of proposed
penalty on January 17, 1990, transmitted it to its representative who was instructed to
file a notice of contest. Through the unintentional error of an employee of Respondent's
representative, who it appears placed the notice of contest in the mail to Respondent
rather than to the OSHA office, no timely oral or written notice of contest was filed.

Respondent does not allege any deceptive or improper behavior on OSHA's part. It argues
that the error in mailing, apparently made by an employee of its representative, was of
such an innocent nature as to warrant relief from the dismissal of a late notice of
contest. Respondent also argues that due to the color blindness of Respondent's principal
he could not know that the "copy" of the notice of contest provided to him by
his representative was, in fact, the improperly addressed original intended to be mailed
to OSHA.

Within 15 working days of receipt of the citation and notification of proposed penalty an
employer must file a notice of contest or they are "deemed a final order of the
[Review] Commission and not subject to review by any court or agency." Section 10(a),
29 U.S.C. {sec} 659(a), of the Occupational Safety and Health Act of 1970, 29 U.S.C.
{secs} 651-678 ("the Act").

It has been consistently held since the Commission decision in Keppel's Inc., 7 BNA OSHC
1442 (No. 77-3020, 1979), that a notice of contest which has not been filed within 15
working days of the receipt of the citation by Respondent is invalid "unless the
employer can show that the delay in filing was caused by the Secretary's deception or
failure to follow procedures." Keppel's, supra. at 1443, citing, Atlantic Matine,
Inc. v. OSHRC, 524 F.2d 476 (5th Cir. 1977). Ten years later, the First circuit reiterated
the principle in similar language in Secretary of Labor v. Barrretto Granit Corp., 830
F.2d 396, 399 (1st cir. 1987). Since Respondent concedes the absence of deceptive
practices or failure to follow procedures on the part of OSHA, its late notice of contest
must be dismissed unless it is otherwise eligible for relief.

Relief from the harsh result of dismissing a late notice of contest has been made
available to Respondents before the Commission through the vehicle of Rule 60(b) of the
Federal Rules of Civil Procedure which are applicable to Commission proceedings by virtue
of Commission Rule 2(b).[[1]] In Branicforte Builders, Inc., 9 OSHC 2113, 2117 (No.
80-1920, 1981), ("Branciforte"), the Commission adopted the holding of the Third
Circuit in J.I. Hass Co. v. OSHRC, 648 F.2d 190 (3d Cir. 1981), that where an employer
files a late notice of contest, the employer may be granted relief from the final order
under the terms of Rule 60(b). The Commission there noted that relief might fall under
either subsection (1) or (6) of Rule 60(b).[[2]] Branciforte, supra.

Under the terms and application of Rule 60(b), however, relief from the dismissal of the
notice of contest is not warranted in this case. The only mistake, inadvertence or neglect
pointed to by Respondent was that of its representative or, at least an employee of its
representative. The color blindness of Respondent's principal is irrelevant in that the
"mistake" relied upon by Respondent is that of its representative in
misdirecting the notice of contest. More than the simple negligence shown here is
necessary to demonstrate excusable neglect. Having established an internal process for the
filing of notices of contest and hiring and relying on employees to perform this function
is nothing more than choosing a course of action the unfortunate results of which do not
support relief. Respondent, having selected and chosen to rely on a representative, cannot
now disavow the representative's actions, or be automatically excused by the lack thereof.
The example used by the Commission in Branciforte, that of a party who had no actual
knowledge of the service of process, makes it clear that simple error is not within the
contemplation of the relief from judgment rule.[[3]] Relief from the judgment of dismissal
of this late notice of contest is not appropriate under the facts of this case.

Respondent's motion for relief from judgment is DENIED.

Complainant's cross motion to dismiss the notice of contest as untimely is GRANTED.

Accordingly, it is ORDERED THAT

1. Respondent's notice of contest is dismissed.

2. Citations No. 1 and 2 are affirmed in their entirety.

3. A total civil penalty of $960 is assessed/

Michael H. Schoenfeld

Judge, OSHRC

Dated: JUN 4 1990

Washington, D.C.

FOOTNOTES:

[[1]]Rules of Procedure of the Occupational Safety and Health Review Commission, 29 C.F.R.
{secs} 2200.1-.212 (1988).

[[2]]Rule 60(b), in pertinent part, reads;

Rule 60. Relief From Judgment or Order

(b)MISTAKES; INADVERTENCE; EXCUSABLE NEGLECT; NEWLY DISCOVERED EVIDENCE; FRAUD; ETC. On
motion and upon such terms as are just, the court may relieve a party or his legal
representative from a final judgment, order, or proceeding for the following reasons; (1)
mistake, inadvertence, surprise, or excusable neglect;

(6) any other reason justifying relief from the operation of the judgment.

[[3 ]] See, Roy Kay,Inc.,13 BNA OSHC 2021 (No. 88-1748, 1989); Louisiana-Pacific Corp.,13
BNA OSHC 2058 (No. 86-1266, 1989); Stroudsburg Dyeing & Finishing Co.,13 BNA OSHC 2058
(No. 88-

1830, 1989); Rebco Steel Corp., 8 BNA OSHC 1235 (No. 77-2040, 1980).