United States of America
OCCUPATIONAL
SAFETY AND HEALTH REVIEW COMMISSION
1120
20th Street, N.W., Ninth Floor
Washington,
DC 20036-3457
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SECRETARY OF LABOR, |
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Complainant, |
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v. |
OSHRC
Docket No. 15-0190 |
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GT TILE LOADING, |
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Respondent. |
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APPEARANCES:
Timothy S. Williams, Counsel
for Safety & Health; John Rainwater, Associate Regional Solicitor; James E.
Culp, Regional Solicitor; M. Patricia Smith, Solicitor; U.S. Department of Labor,
Washington, DC and Denver, CO
For
the Complainant
Thomas
Dunrud; Denver, CO
For
the Respondent
DIRECTION FOR
REVIEW AND REMAND ORDER
Before: ATTWOOD, Acting
Chairman and MacDOUGALL,
Commissioner.
BY THE COMMISSION:
At
issue before the Commission is a May 5, 2015 decision of Administrative Law
Judge John H. Schumacher affirming a two-item serious citation with a total
penalty of $3,600 based on the judge’s determination that Respondent failed
to timely file its notice of contest (“NOC”). For the reasons that
follow, we direct this case for review, set aside the judge’s decision,
and remand this case to the judge for further proceedings.
On December
5, 2014, Respondent received the citation issued by the Occupational Safety and
Health Administration. Respondent, appearing pro se, filed its NOC by email on
December 30, 2014. In a letter dated January 12, 2015, OSHA informed Respondent
that the 15-working-day period allowed for contesting the citation had expired
on December 29, 2014, and that Respondent’s NOC was untimely because it
was not received until the next day. OSHA explained in the letter that if
Respondent disagreed with this determination, it could communicate directly
with the Commission. In a letter dated January 26, 2015, Respondent’s
representative explained to the Commission’s Executive Secretary that he
“was out of town for the Holidays at the end of the year so that was the
first chance that I had to send the letter of contention.” The case was
then docketed by the Executive Secretary and assigned to the judge.
On February
11, 2015, the Secretary filed a motion to dismiss Respondent’s NOC. In
his motion, the Secretary asserted that the NOC was untimely and argued that no
basis for relief existed under Federal Rule of Civil Procedure 60(b), which
sets forth the grounds for relief from a final order. The judge issued
Respondent a show cause order on March 9, 2015, stating: “All initial
indications are that Respondent has failed to timely comply with both the
letter and the spirit of the Commission’s Rules of Procedure, thereby
showing disrespect for the Commission and a lack of decorum in dealing with the
legal process.” The judge ordered Respondent to answer the show cause
order by April 3, 2015, but it does not appear that Respondent ever received
the order. The certified mail envelope containing the order was returned to the
judge’s office and marked “Addressee Unknown.” In his May 5,
2015 decision, the judge found that Respondent was not entitled to relief under
Rule 60(b) and affirmed the citation as issued. 
Respondent subsequently submitted a letter to the Commission,
which we construe as a petition for discretionary review. See 29 C.F.R.
§ 2200.91(b) (procedures for filing petition for discretionary
review).
The
Occupational Safety and Health Act, 29 U.S.C. § 659(a), requires an
employer to file a notice contesting a citation or proposed penalty assessment
“within [15] working days from the receipt of the notice issued by the
Secretary.” The day of receipt, as well as Saturdays, Sundays, and
Federal holidays, are not included in computing the 15-working-day contest
period. 29 C.F.R. § 1903.22(c). Here, the 15 working days following
Respondent’s receipt of the citation on December 5, 2014, were December
8-12, 15-19, 22-24, 29 and 30, 2014. This excludes all Saturdays and Sundays
(December 6, 7, 13, 14, 20, 21, 27 and 28, 2014), as well as the Federal
holidays on December 25 and 26, 2014, that were designated by executive order. Respondent’s NOC, therefore, was timely filed on the 15th
working day following receipt of the Secretary’s citation. Accordingly,
we set aside the judge’s decision and remand this case for further
proceedings.
SO ORDERED.
/s/ Cynthia
L. Attwood
Acting
Chairman
/s/
Heather L. MacDougall
Dated: June 5, 2015 Commissioner
DECISION AND
ORDER ON ORDER TO SHOW CAUSE
On March 9, 2015, the Court
issued an Order to Show Cause to Respondent to show by April 3, 2015, that it
had On February 11, 2015, that it had not demonstrated neglect by filing its
Notice of Contest outside of the regulatory time period for doing so. The
Court’s Show Cause Order included the following warning: “Failure
to timely comply will result in sanctions being imposed by the Court, up to and
including dismissal of Respondent’s Notice of Contest.”
This Show Cause Order was
mailed to Respondent’s business address of Record via certified mail,
return receipt requested. The USPS Article Number was 7008 1830 0000 5152 8103.
On April 8, 2015, the original certified mail envelope was returned to this
office by the USPS marked “Addressee Unknown.”
On February 11, 2015,
Complainant had filed its Motion to Dismiss Untimely Contest in the
instant case. Complainant related that Respondent did not file its Notice of
Contest within the required period of time and that it had not demonstrated
“excusable neglect” or any other ground for which relief is allowed
under Federal Rule of Civil Procedure 60(b). The Complainant avered the
following:
1. On
October 8, 2014 OSHA opened an inspection of Respondent’s worksite at
12017 West 75th Lane, Arvada CO
2. On
December 4, 2014, OSHA issued a Citation to Respondent containing two items,
with penalties totaling $3600.00. OSHA received confirmation of receipt by
Respondent dated December 5, 2014.
3. The
Citation contained the standard Notice of Right to Contest, which included
notice that Respondent had fifteen business days after receipt to inform the
OSHA Area Director that it wished to contest the Citation and/or the proposed
penalties.
4. Respondent’s
representative, Mr. Tom Dunrud, requested an informal conference, which was
scheduled for December 22, 2014. However, Mr. Dunrud failed to appear at that
informal conference.
5. On
December 30, 2014, Respondent submitted an untimely contest via electronic
mail. OSHA responded by informing Respondent that the date to contest the
Citation had passed. OSHA also provided the address of the Occupational Safety
& Health Review Commission if Respondent wished to petition the Commission
to reopen the matter.
6. Two
weeks later, on January 26, 2015, Respondent’s representative filed a
Notice of Contest (NOC). In that Letter of NOC, Mr. Dunrud related that he
“…was out of town for the Holidays at the end of the year, so that
was the first chance that I had to send the letter of contention.”
The record before the Court
indicates that Respondent has failed to timely comply with both the letter and
the spirit of the Commission’s Rules of Procedure, thereby showing
disrespect for the Commission and a lack of decorum in dealing with the legal
process. The Code of Federal Regulations, at § 29 C.F.R. 2200.101(1),
provides that:
“[w]hen any party has failed
to…proceed…as required by the Commission of Judge, he may be
declared to be in default either on the initiative of the Commission or Judge,
after having been afforded an opportunity to show cause why he should not be
declared to be in default, or on the motion of a party. Thereafter, the
Commission or Judge, in their discretion, may enter a decision against the
defaulting party or strike any pleading or document not filed in accordance
with these rules.”
The inherent powers doctrine allows
a court to impose… respect, and decorum, in their presence, and
submission to their lawful mandates. 
U.S. v. One Parcel of Real Estate Located at 1948 Martin
Luther King Drive, Springfield, Illinois, 193 F.Supp.2d 1067 (C.D. Ill., 2002).
The Court has carefully
considered all the evidence in the record in the light most favorable to the
Respondent. The Court notes that Respondent’s representative initially
requested, but later failed to attend, an informal conference scheduled for
December 22, 2014. By a letter and email dated December 30, 2014,
Respondent’s representative purported to submit an untimely Notice of
Contest. By another letter dated January 26, 2015, Respondent’s
representative again purported to submit an untimely Notice of Contest. In this
latest letter, Respondent’s representative advised that “I was
out of town for the Holidays at the end of the year so that was the first
chance that I had to send the letter of contention.”
It appears to the Court that
Respondent’s representative had received a copy of the Citation and
Notification of Penalty via UPS Ground Delivery, and signed for same on December
5, 2014. This document contained an advisement as to the 15 day period in which
any Notice of Contest could be timely filed. As further evidence that
Respondent’s representative received and understood the procedural rules,
Respondent’s representative requested an informal conference that was
scheduled for December 22, 2014. However, Respondent’s representative
elected to not appear at this scheduled conference. It now appears to the Court
that he was instead “…out of town for the Holidays…”
The record is devoid of any
evidence that Respondent’s representative made any good faith effort to
reschedule the December 22, 2015 informal conference, prior to going
“…out of town for the Holidays…” Consequently,
the Court has no basis upon which to conclude that Respondent’s
representative has demonstrated “mistake, inadvertence, surprise or
excusable neglect” sufficient to excuse its failure to timely file a
Notice of Contest.
ORDER
Based
upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that
Respondent is declared in DEFAULT, its Notice of Contest is DISMISSED, and the
citation items issued in this matter are AFFIRMED, and that all proposed
penalties are hereby assessed.
For administrative questions,
please contact my legal assistant, Ms. Kate Sydney, at 303-844-3409.
/s/
JOHN H. SCHUMACHER
Judge, OSHRC
Dated: May 5, 2015
Denver, CO