Secretary of Labor v. Table Rock Asphalt Construction, Inc.

Plain-English summary

Table Rock failed to answer the Secretary's penalty petition, causing a show-cause order to become a final default order. The operator said its records and filing responsibilities were disrupted when its safety manager was replaced. Its files contained a copy of an answer, but it could not confirm that the answer had been mailed to the correct addresses. The Secretary did not oppose reopening, and the Commission found excusable neglect and good faith, vacated the default, and remanded for further proceedings.

Decision snapshot

• Cited authority: 30 U.S.C. §§ 823(d)(1) and 823(d)(2)(A)(i)
• Outcome: The final default order was vacated and the case was remanded.
• Key point: Staff turnover and a retained copy of the missing answer supported reopening when the record showed a good-faith intent to file.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON,
DC 20004-1710

SECRETARY
OF LABOR,

MINE SAFETY AND HEALTH       

ADMINISTRATION (MSHA)             

v.

TABLE
ROCK ASPHALT

CONSTRUCTION, INC.

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Docket
No. CENT 2018-361

A.C.
No. 23-01836-466310

BEFORE:    Traynor,
Chair; Althen and Rajkovich, Commissioners

ORDER

BY THE
COMMISSION: 

This
matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2018) (“Mine Act”).  On March 11, 2019, the Commission received
from Table Rock Asphalt Construction, Inc. (“Table Rock”) a motion seeking to
reopen a penalty assessment proceeding and relieve it from the Default Order
entered against it. 

On
October 15, 2018, the Chief Administrative Law Judge issued an Order to Show
Cause in response to Table Rock’s failure to answer the Secretary of Labor’s
Petition for Assessment of Civil Penalty, which was issued on August 9, 2018. 
By its terms, the Order to Show Cause was deemed a Default Order on October 31,
2018, when the operator had not filed an answer within 30 days.  

Table Rock asserts that it did not realize
that it had failed to file an answer until it was notified while conducting
settlement negotiations in this case with a Conference Litigation
Representative with the Department of Labor’s Mine Safety and Health Administration. 
The operator states that its safety manager, who was responsible for
maintaining records and filing answers, had recently been replaced.  Table Rock
also notes that there is a copy of its Answer in its files but admits that it has
no way to confirm that the answer was mailed to the proper addresses.  The
Secretary does not oppose the request to reopen, but urges the operator to take
future penalty petitions seriously and answer them in a timely manner.

The
Judge’s jurisdiction in this matter terminated when the default occurred.  29
C.F.R.   § 2700.69(b).  Under the Mine Act and the Commission’s procedural
rules, relief from a judge’s decision may be sought by filing a petition for
discretionary review within 30 days of its issuance.  30 U.S.C. §
823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a).  If the Commission does not direct
review within 40 days of a decision’s issuance, it becomes a final decision of
the Commission.  30 U.S.C. § 823(d)(1).  Consequently, the Judge’s order here has
become a final decision of the Commission. 

In
evaluating requests to reopen final orders, the Commission has found guidance
in Rule 60(b) of the Federal Rules of Civil Procedure under which the
Commission may relieve a party from a final order of the Commission on the
basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief.  See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall
be guided so far as practicable by the Federal Rules of Civil Procedure”); Jim
Walter Res., Inc. , 15 FMSHRC 782, 786-89 (May 1993).  We have also observed
that default is a harsh remedy and that, if the defaulting party can make a
showing of good cause for a failure to timely respond, the case may be reopened
and appropriate proceedings on the merits will be permitted.  See Coal Prep.
Servs., Inc. , 17 FMSHRC 1529, 1530 (Sept. 1995).

Having
reviewed Table Rock’s request and the
Secretary’s response, we find that the operator acted with excusable
neglect due to its safety manager being replaced during the time in question,
and that it acted in good faith in intending to timely file its answer based on
the copy of the answer retained in the operator’s files.  In the interest of justice, we hereby reopen the
proceeding and vacate the Default Order.  Accordingly, this case is remanded to
the Chief Administrative Law Judge for further proceedings pursuant to the Mine
Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.

/s/ Arthur R. Traynor, III

Arthur
R. Traynor, III, Chair

/s/ William I. Althen

William I. Althen, Commissioner

/s/ Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Commissioner

Distribution:

Jeff Irwin, Safety
Officer

Table Rock Asphalt
Construction Co.

310 N. Commercial

Branson, MO
65616-2407

[email protected]

[email protected]  

Jim David, General
Manager

Trac Materials,
Inc.

P.O. Box 1165

Branson, MO
65615-1165

[email protected]

Emily Toler Scott,
Esq.

Office of the
Solicitor

U.S. Department of
Labor

Division of Mine
Safety and Health

201 12th Street
South, Suite 401

Arlington, VA
22202

[email protected]

April Nelson, Esq.

Associate
Solicitor

Office of the
Solicitor

U.S. Department of
Labor

Division of Mine
Safety and Health

201 12th Street
South, Suite 401

Arlington, VA
22202

[email protected]

Melanie Garris

Chief Office of
Civil Penalty Compliance

U.S. Department of
Labor

Office of
Assessments

Mine Safety and
Health Administration

201 12th Street
South, Suite 401

Arlington, VA
22202

[email protected]

Chief
Administrative Law Judge Glynn Voisin

Federal Mine
Safety & Health Review Commission

1331 Pennsylvania
Avenue, NW, Suite 520 N

Washington, DC
20004-1710

[email protected]