UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 78-2230

BROWAR WOOD PRODUCTS CO., INC.,

 

                                              Respondent.

 

 

February 9, 1979

ORDER

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

BY THE COMMISSION:

            Pursuant to 29 U.S.C. 661(f) and Rule 60(b) of the Federal Rules of Civil Procedure, we reinstate the above-captioned case and remand it to the administrative law judge for further proceedings.

            On April 21, 1978, the Secretary issued to Respondent Browar Wood Products Co., Inc., two citations alleging several items of violation and proposing penalties totaling $480. Browar, which has appeared pro se throughout, contested the penalties only. A complaint and answer were duly filed, but Browar failed to file proof of its compliance with the Commission’s requirement that its notice of contest be posted for the information of affected employees.[1] Consequently, on August 30, 1978, Judge Abraham M. Gold ordered Browar’s notice of contest be dismissed.

            On October 2, 1978, three days after the Judge’s order became final pursuant to 29 U.S.C. 661(i), the Commission received from Browar an undated motion asking the Commission to review the dismissal because it was ‘based on a technicality which, in view of the overall picture, is minor and has hurt no one.’ In explanation, Browar averred it had posted its notice of contest but through ‘inadvertence and/or human error’ no proof of the posting was ever sent. Also noting it properly answered the complaint, Browar pointed out that in the answer it not only alleged it is one-man business that generally employs only one employee but also that all of the violations have been abated. Accordingly, Browar asks for further proceedings on the contest.

            On October 4, 1978, the Executive Secretary of the Commission sent to the Secretary of Labor a copy of the motion, and the Secretary has not indicated any opposition to Browar’s motion.

            The pertinent portions of Rule 60(b) provide that ‘[o]n motion and upon such terms as are just, the court may relieve a party . . . from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; . . . or (6) any other reason justifying relief from the operation of the judgment.’ Because Browar has averred that, although it properly filed its answer and posted its notice of contest, it failed to file the required proof of posting through ‘inadvertence and/or human error,’ Browar’s request for relief from the order of dismissal clearly comes within the terms of Rule 60(b)(1), with respect to relief for mistake, inadvertence, or excusable neglect.

            In determining whether relief should be accorded under Rule 60(b), we first consider the particular circumstances involved in this case. Essentially Browar seeks relief from a form of default. That is, here a penalty of $480 has been assessed against Browar because of its failure to comply with a technical procedural requirement, i.e., the requirement that proof of the proper posting of a notice of contest be filed with the Commission pursuant to Commission Rule 7(d) and (g), rather than because the Secretary established the appropriateness of the proposed penalties after an evidentiary hearing to develop the facts relevant to the amount of penalty pursuant to 29 U.S.C. § 666(j).[2] Moreover, Browar has now submitted a sufficient proof of proper posting of its notice of contest pursuant to Rule 7(d) inasmuch as Morris Browarsky, Browar’s president, who has represented Browar in appearing pro se throughout these proceedings,[3] has represented to the Commission that the notice of contest was posted at or around the time that the citation was received.[4] No further proof of proper posting is required. Accordingly, it clearly appears that the interests of any affected employees in these proceedings have been sufficiently protected from the outset as our rules require. We also note that Browar has properly answered the complaint of the Secretary, setting forth therein several factual bases for challenging the amounts of the proposed penalties.[5] Since Browar has thereby properly maintained its contest by apprising the Secretary of its defenses in the action after having notified employees of the action so that they could participate in the proceedings as a party along with the Secretary, the Secretary, also, has not been prejudiced by Browar’s failure to file its proof of posting. Accordingly it clearly appears, as Browar points out in its motion, that here a relatively substantial penalty has been assessed without a hearing on the basis of a default that has not prejudiced either the Secretary or the affected employees. Since this is the case, we liberally construe the terms of Rule 60(b)(1) to determine the sufficiency of Browar’s motion, resolving doubt in favor of the motion, to permit, where a weighing of all relevant considerations shows it is reasonable and just, a hearing on the merits raised by the pleadings.[6]

            Turning, then, to the substance of the motion itself, we first find that Browar has established it has a genuine and material basis for challenging the penalties in this proceeding.[7] Browar refers to the fact that it properly answered the complaint, alleging, among other things, that its operation generally has been safe, that generally only one employee is involved in the operation, and that all of the alleged violations have been abated; and as we stated earlier herein, Browar’s answer sufficiently apprised the Secretary of the factual basis for Browar’s contest.[8] We secondly accept Browar’s representations of inadvertence and error in failing to comply with our rules. We view the statements made in the motion by Browar’s president as representations of fact supporting the request for Rule 60(b)(1) relief. Although not made under oath in an affidavit, we will admit the statements as evidence.[9] We note in this regard that Browar is pro se and apparently a small businessman, having according to it one employee most of the time. In such circumstances, Browar may not have been aware of the legal technicalities of the judicial process and the need to submit affidavits in support of its motion. Moreover, we consider Browar’s representations as unchallenged. The Secretary actually received notice of this claim for relief, since the Executive Secretary of the Commission forwarded a copy of the motion to him and the motion clearly is within the terms of Rule 60(b). Even though it is clear the Commission will consider whether to grant Rule 60(b) relief in view of Monroe & Sons, Inc., 77 OSAHRC 14/B7, 4 BNA OSHC 2016, 1976–77 CCH OSHD para. 21,470 (No. 6031, 1977),[10] the Secretary has not filed an opposition to the motion.

            Accordingly, because we accept the representations of inadvertence and error set forth in the motion of Browar for relief pursuant to Rule 60(b), we vacate the order of the judge, reinstate the case, and remand to the judge for further proceedings consistent with this order. SO ORDERED.

 

FOR THE COMMISSION:

 

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED: FEB 09, 1979

COTTINE, Commissioner, dissenting:

            This case presents several important issues involving the interrelation of Commission review of the administrative law judges’ decisions under section 12(j) of the Act, 29 U.S.C. § 661(i), and relief under Rule 60(b) of the Federal Rules of Civil Procedure. I agree that the Commission may invoke Rule 60(b) to afford relief from final orders even though the thirty-day review period has elapsed. Monroe & Sons, supra. However, I must dissent from my colleagues’ premature decision to grant the motion for relief from judgment filed by the Respondent in this case.

            The system of adjudicating cases under the Act requires that Rule 60(b) be applied judiciously. Under section 12(j) of the Act, an administrative law judge’s decision becomes final unless it is directed for review within 30 days. 29 U.S.C. § 661(i). Within that 30 day period, an aggrieved party may file a petition for review taking exception to any portion of the judge’s decision. Commission Rule 91, 29 C.F.R. § 2200.91. These procedures prescribe a detailed appellate process. 29 U.S.C. §§ 659–661; 29 C.F.R. §§ 2200.90 et seq. Rule 60(b) cannot be invoked to circumvent that process.

            It is well settled that Rule 60(b) is not a substitute for appeal. 7 Moore’s Federal Practice ¶60.18[8]; see also Ackermann v. United States, 340 U.S. 193, 197–198 (1950); Martinez-McBean v. Government of Virgin Islands, 562 F.2d 908 (3d Cir. 1977); Wagner v. United States, 316 F.2d 871 (2d Cir. 1963). Thus, before the Commission can determine whether a party is entitled to relief from a judgment, it must initially conclude that the party has raised one of the specific grounds for relief set forth in Rule 60(b). A motion is not properly entertained when a party raises substantive issues that should have been timely pursued in a petition for review. See Commission Rule 91a(b)(1)–(4), 29 C.F.R. § 2200.91a(b)(1)–(4).

            The letter from Browar Wood Products, Inc. (‘Browar’) was received by the Commission one working day (three calendar days) after the judge’s decision became a final order under section 12(j) of the Act. In the letter, Browar asserts that its failure to submit the required proof of posting was the result of ‘. . . inadvertence and/or human error. . . .’ Browar makes no specific reference to Rule 60(b). However, Browar claims that it committed the principal error, rather than exclusively challenging the rulings and decision of the administrative law judge. This distinguishes Browar’s request for relief from those properly assigned to a petition for review. Therefore, I would conclude that the assertion of inadvertence is sufficient to raise a claim for relief under Rule 60(b)(1).[11]

            Nevertheless, my colleagues err in providing the requested relief at this time. By granting Browar relief under Rule 60(b), the majority has deprived the Secretary as the adverse party of its most basic rights to notice and an opportunity to be heard. These basic procedural rights are embodied in the Commission’s rules. All papers in a case, including motions, must be served on every other party. Commission Rule 7(a), 29 C.F.R. § 2200.7(a). In addition, each party is to be afforded 10 days to file a response to a motion. Commission Rule 37, 29 C.F.R. § 2200.37. My colleagues state that a copy of the motion was transmitted to the Secretary. I disagree. A copy of the Browar letter was sent to the Secretary. However, as the majority correctly observes, the letter is rather ambiguous and does not specifically refer to Rule 60(b). Therefore, the letter fails to provide effective notice of the relief requested by Browar. Moreover, the Commission has not independently informed the Secretary of its decision to treat this ambiguous and unspecific letter as a motion under Rule 60(b). Furthermore, the Secretary has not been afforded the opportunity to argue the appropriateness of that determination. These errors are compounded by my colleagues’ reliance upon the Secretary’s failure to oppose the motion or to challenge Browar’s factual representations. In view of the lack of notice, I can ascribe no weight to the Secretary’s inaction.

            If Browan’s claim is demonstrably meritorious, then this case should be reinstated. However, that determination cannot be made on the basis of what currently stands as an ex parte motion. Accordingly, I would have notified the parties of the decision to consider Browar’s claim for relief under Rule 60(b) and afforded them the opportunity to present all evidence and legal argument relevant to the appropriate disposition of that claim.

 

 

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 78-2230

BROWAR WOOD PRODUCTS CO., INC.,

 

                                              Respondent.

 

 

August 30, 1978

ORDER

            There being no proof of posting of the Notice of Contest as notice to affected employees, as required by Commission Rule 7, and there being no response to the Commission order dated July 12, 1978, the Notice of Contest is dismissed without prejudice.

 

ABRAHAM M. GOLD

Judge, OSHRC

Dated: August 30, 1978

 

Washington, D.C.


[1] Commission Rule 7(d) and (g), 29 C.F.R. 2200.7(d) and (g), provide the following:

(d) Proof of service shall be accomplished by a written statement of the same which sets forth the date and manner of service. Such statement shall be filed with the pleading or document.

(g) In the event that there are any affected employees who are not represented by an authorized employee representative, the employer shall, immediately upon receipt of the notice of the docketing of the notice of contest . . ., post, where the citation is required to be posted, a copy of the notice of contest and a notice informing such affected employees of their right to party status and of the availability of all pleadings for inspection and copying at reasonable times. A notice in the following form shall be deemed to comply with this paragraph[.] (Succeeding form deleted).

[2] 29 U.S.C. § 666(j) provides that

[t]he Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.

[3] See Commission Rule 30(c) and 22(d), 29 C.F.R. 2200.30(c) and 29 C.F.R. 2200.22(d). Rule 30(d), pertaining to the form of pleadings and motions, states that ‘[p]leadings shall be signed by the party filing or by his representative [which] . . . signing constitutes a representation by the signer that he has read the document or pleading, that to the best of his knowledge, information and belief the statements made therein are true, and that it is not interposed for delay.’

Rule 22(d) provides that ‘[n]othing contained herein shall be construed to require any representative to be an attorney at law.’

[4] In full, Browar has averred the following:

We posted the Notice of Contest when we received it, which was when the citation was served upon us. However, through inadvertence and/or human error, no proof of posting was sent.

Because Browar refers to receiving the notice of contest, but a notice of contest actually originates with the employer and here originated with Browar’s president, and because Browar refers also to having posted the notice of contest when the citation was received even though a notice of contest is filed in response to a citation, the averment is not without literal ambiguity. However, because Browar unequivocally states the notice of contest was posted and because its averment is made in direct reference to the judge’s order vacating the notice of contest for failure to post the notice, we think it is reasonable to find that Browar timely posted the notice of contest. See Commission Rule 7(g), set forth in note 1 hereof.

[5] In its answer, Brower asserted no penalties should be assessed for the following reasons:

Respondent has been in business for upwards of forty years and there has never been an accident as a result of the failure of respondent to use the safeguard methods promulgated in the Act.

Respondent has used safeguard methods which it believes are greatly superior to those required by the Act.

Respondent had never received prior notice of the safety requirements from the Complainant and never knew what the requirements were.

Respondent, after notification by the Complainant, never received a reasonable time, or reasonable opportunity, to do what Complainant required, but was immediately notified of a penalty in the sum of $480.00.

After a consultation with the Complainant, respondent was offered a settlement, to wit: one-half of the amount sued for, but respondent, believing it should pay no assessment, refused said offer. Paragraph IX of the Complaint states that ‘several’ of respondent’s employees are affected by the violations, but does not state the exact number, inferring that this is a large place of business and that a great may employees are involved. The truth of the matter is that this is a one man business and that, at times, two employees are used, but that, the majority of the time, Respondent has only one employee.

[6] See Tolson v. Hodge, 411 F.2d 123 (4th Cir. 1969); Tozer v. Charles A. Krause Milling Co., 189 F.2d 242 (3d Cir. 1951); Trueblood v. Grayson Shops of Tennessee, 32 F.R.D. 190 (E.D. Va., 1963).

[7] See, e.g., Tozer v. Charles A. Krause Milling Co.; Trueblood v. Grayson Shops of Tennessee, supra note 6.

[8] See notes 2 and 5 supra.

[9] See 29 C.F.R. 2200.69.

[10] Pet. for review filed, No. 77–3157 (6th Cir., March 16, 1977). See also C & C Plumbing Co. and M & M Contractors, Inc., 77 OSAHRC 204/D14, 6 BNA OSHC 1131, 1977–78 CCH OSHD ¶22,361 (Nos. 5422 & 5423, 1977).

[11] 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.