Secretary of Labor v. The Quikrete Companies (Commission decision, December 6, 2021)

Plain-English summary

A proposed penalty assessment became final after Quikrete did not file a contest within 30 days. Quikrete explained that a COVID-19 outbreak left its office and plant understaffed and the assessment was inadvertently misplaced. After realizing it lacked the document, the company contacted MSHA and obtained a copy. The Secretary did not oppose reopening. The Commission reopened the assessment in the interest of justice, remanded it for further proceedings, and directed the Secretary to file a penalty petition within 45 days.

Decision snapshot

• Cited authority: 30 C.F.R. §§ 100.7, 2700.1(b), and 2700.28; 30 U.S.C. § 815(a)
• Outcome: The final assessment was reopened and remanded, with a penalty petition due within 45 days.
• Key point: An assessment misplaced while an office was understaffed during a COVID-19 outbreak qualified for reopening.

Full text (FMSHRC public release)

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)                       
:

:

v.                                              
:         Docket No.  YORK 2021-0034

:         A.C. No. 30-03558-529080            

THE QUIKRETE COMPANIES                    :

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. (2012) (“Mine Act”). On April 2, 2021, the Commission received from The Quikrete Companies’ (“Quikrete”) a motion seeking to reopen a penalty assessment that had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).

Under
section 105(a), an operator who wishes to contest a proposed penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment is deemed a final order of the Commission. 30 U.S.C. § 815(a).

We
have held, however, that in appropriate circumstances, we possess jurisdiction to reopen uncontested assessments that have become final Commission orders under section 105(a). Jim Walter Res., Inc ., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). 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”); JWR, 15 FMSHRC at 787. 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 permitted. See Coal Prep. Servs., Inc ., 17 FMSHRC 1529, 1530 (Sept. 1995).

The Department of Labor’s Mine Safety and Health Administration (“MSHA”) indicates that the proposed assessment was delivered to the operator on February 17, 2021. The assessment became a final order of the Commission on March 19, 2021.

Quikrete asserts that as a result of an ongoing COVID-19 outbreak at its office and plant, the office was understaffed, and the proposed assessment was misplaced. Realizing that it did not have the proposed assessment, Quikrete states that it contacted MSHA to request a copy, which it received on March 26, 2021. Quikrete has not filed any other motions to reopen with the Commission in the last two years. The Secretary does not oppose the request to reopen but urges the operator to take steps to ensure that future penalty contests are timely filed in accordance with MSHA’s regulations at 30 C.F.R. § 100.7 and the Commission’s procedural rules.

Having
reviewed Quikrete’s request and the Secretary’s response, we find that the operator inadvertently misplaced the proposed penalty assessment. In the interest of justice, we hereby reopen this matter and remand it 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. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

/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:

Kevin Fick

Regional Operations Manager

Quikrete Stone, Ltd.

4993 Limeledge Road

Marcellus, NY 13108

[email protected]

John M. McCracken, Esq.

Office of the Solicitor

U.S. Department of Labor

Mine Safety and Health
Division

201 12th Street South, Suite
401

Arlington, VA 22202-5452

[email protected]

Archith Ramkumar, Esq.

Office of the Solicitor

U.S. Department of Labor

201 12th Street South, Suite
401

Arlington, VA 22202

[email protected]

April Nelson, Esq.

Office of the Solicitor

U.S. Department of Labor

Mine Safety and Health
Division

201 12th Street South, Suite
401

Arlington, VA 22202-5452

[email protected]

Melanie Garris

U.S. Department of Labor

Office of Civil Penalty
Compliance

Mine Safety and Health
Administration

201 12th Street South, Suite
401

Arlington, VA 22202-5452

[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]