Secretary of Labor v. Industrial Process Equipment Constructors

Plain-English summary

Industrial Process Equipment Constructors answered two show-cause orders late because the responsible employee mistakenly believed she had 30 days to respond. During that period, she was caring for several ill family members, her mother died, and the company had lost the secretary who normally assisted with these matters. The Secretary did not oppose reopening. The Commission found inadvertence or excusable neglect, vacated both default orders, and remanded the consolidated cases for further proceedings.

Decision snapshot

• Cited authority: 30 U.S.C. § 823(d)(1)-(2); 29 C.F.R. §§ 2700.1(b), 2700.12, 2700.69(b), 2700.70(a)
• Outcome: Both default orders were vacated and the cases were remanded.
• Key point: Serious family illness and a resulting staffing gap supported relief from two missed show-cause deadlines.

Full text (FMSHRC public release)

2018-FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON,
D.C. 20004‑1710

SECRETARY OF LABOR,                              :

MINE SAFETY AND HEALTH                   
:

ADMINISTRATION (MSHA)                      
:         Docket No. YORK 2018-0084

:         A.C. No. 30-00006-469606 E938

v.                                              
:

:         Docket No. YORK 2019-0013

INDUSTRIAL PROCESS EQUIPMENT         :         A.C.
No. 30-00006-477928 E938

CONSTRUCTORS                                        :

BEFORE: Rajkovich, Chairman; Althen and Traynor,
Commissioners

ORDER

BY THE COMMISSION:

These
matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.

§ 801 et seq. (2012) (“Mine
Act”). [1]
On June 3 and 4, 2019, the Commission received from Industrial Process
Equipment Constructors (“IPEC”) motions seeking to reopen the penalty
assessment proceedings and relieve it from the Default Orders entered against
it.

On February
15, 2019, the Chief Administrative Law Judge issued Orders to Show Cause in response
to IPEC’s perceived failure to answer the Secretary of Labor’s September 6,
2018 and December 18, 2018 Petitions for Assessment of Civil Penalty. By their
terms, the Orders to Show Cause were deemed Default Orders on March 4, 2019,
when it appeared that the operator had not filed answers within 15 days.

IPEC
asserts that the employee responsible for handling these matters mistakenly
believed she had 30 days to respond to the Show Cause Orders when it filed its
responses on March 13, 2019. During this timeframe, the employee was tending to
several ill family members, including her mother who unfortunately passed away on
February 7, 2019. The operator had also lost its secretary who would normally
work with the employee on these matters, and who would have alerted her to the
deadline. The Secretary does not oppose the requests to reopen, but urges the
operator to take steps to ensure that future penalty contests are timely filed.

The
Judge’s jurisdiction in these matters 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 orders here
have become final

decisions 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 IPEC’s requests and the Secretary’s responses, under these circumstances,
we find that IPEC’s failure to respond to the Judge’s show cause orders due to
family illness and the corresponding death of her mother amount to inadvertence
or excusable neglect. See Guilmette Brothers Corp ., 22 FMSHRC 803, 804
(July 2000) (granting request to reopen where operator’s wife was undergoing
cancer surgery); Northern Kansas Rock, Inc ., 22 FMSHRC 486, 487-88 (Apr.
2000) (granting request to reopen where the operator failed to timely file
because husband was undergoing medical treatment and surgery); Tigue
Construction Co ., 21 FMSHRC 9, 10-11 (Jan. 1999) (granting operator’s
request where its vice president, who was the employee responsible for
answering charges, unexpectedly underwent quadruple bypass surgery); KenAmerican
Resources, Inc ., 20 FMSHRC 199, 200-01 (Mar. 1998) (reopening proceedings where
operator’s safety director, who routinely handles MSHA violations, was home
recovering from surgery).

In
the interest of justice, we hereby reopen these proceedings and vacate the
Default Orders. Accordingly, these cases are 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/
Marco M. Rajkovich, Jr.

Marco
M. Rajkovich, Jr., Chairman

/s/
William I. Althen

William
I. Althen, Commissioner

/s/
Arthur R. Traynor, III

Arthur R. Traynor, III,
Commissioner

Distribution:

Sharon Regan-Brown, Safety
Net

Industrial Process Equipment
Constructors

1471 Big Lake Road

Gaylord, MI 49735

[email protected]

Emily Toler Scott, Esq.

Office of the Solicitor

Division of Mine Safety and
Health

201 12th Street South, Suite
401

Arlington, VA 22202-5450

[email protected]

Norman C. Ridley, CLR

U.S. Department of Labor,
MSHA

Thorn Hill Industrial Park

178 Thorn Hill Road, Suite
100

Warrendale, PA 15086

[email protected]

Melanie Garris

USDOL/MSHA, OAASEI/CPCO

201 12th Street South, Suite
401

Arlington, VA 22202

[email protected]

Chief Administrative Law
Judge Glynn F. Voisin

Federal Mine Safety Health Review Commission

1331 Pennsylvania Avenue, NW Suite 520N

Washington, DC 20004-1710

[email protected]

[1] IPEC filed similar motions to reopen relying upon the
same reason as a basis for re-opening in two separate dockets. For the limited
purpose of addressing the motions to reopen, we hereby consolidate docket numbers
YORK 2018-0084 and YORK 2019-0013, which involve similar procedural issues. See
29 C.F.R. §2700.12.