United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor

Washington, DC 20036-3457

REMAND ORDER

Before: SULLIVAN, Chairman; ATTWOOD and LAIHOW, Commissioners.

BY THE COMMISSION:

On review is an August 13, 2020 decision issued by Administrative Law Judge Sharon D. Calhoun denying Respondent’s request for relief pursuant to Federal Rule of Civil Procedure 60(b)(1) and granting the Secretary’s motion to dismiss. For the following reasons, we reverse the judge’s decision and remand the case for further proceedings.

On October 21, 2019, the Occupational Safety and Health Administration issued Burlington Capital PM Group, Inc. d/b/a Post Woods Apartment Homes a one-item serious citation alleging a violation of 29 C.F.R. § 1910.23(b)(9) following an inspection of the company’s Post Woods apartments in Reynoldsburg, Ohio. On October 25, 2019, Burlington’s corporate office in Omaha, Nebraska received the citation. A few days later, a paralegal for Burlington’s in-house counsel prepared a notice of contest (NOC) and gave it to an administrative assistant whose duties included preparing mail and packages for the company. The paralegal instructed the administrative assistant to send the NOC, which was addressed to OSHA’s Area Office in Columbus, Ohio, via UPS and bill the charges to the Post Woods account. However, according to a report detailing Burlington’s shipments during that time period, on October 29, 2019, the administrative assistant mistakenly sent the NOC to Post Woods.1

On November 25, 2019, OSHA received Burlington’s proof of abatement of the alleged violation and training of the employee whose injury prompted the inspection. On January 9, 2020, having not received an NOC or payment of the penalty, OSHA sent a letter notifying Burlington that it was delinquent in its payment. On March 4, 2020, counsel for Burlington contacted OSHA to provide a copy of the NOC and the company’s internal email correspondence regarding the NOC’s preparation and mailing. After being advised that OSHA had never received the NOC, on March 13, 2020, Burlington filed a motion to submit a late NOC that included the original NOC, which was dated October 28, 2019, and an affidavit from the paralegal explaining the circumstances surrounding the NOC’s drafting and submission. At the request of the judge, the company’s motion was followed by the filing of a supplemental request for Rule 60(b)(1) relief that included an affidavit from the administrative assistant explaining that she “inadvertently shipped the [NOC] to Post Woods . . . instead of [OSHA’s Area Office] as addressed on the envelope.”

Under Rule 60(b)(1), the Commission may grant relief from a final order due to a party’s “mistake, inadvertence, surprise, or excusable neglect.”2 Fed. R. Civ. P. 60(b)(1). See also 29 U.S.C. § 661(g) (Commission proceedings shall be in accordance with the Federal Rules of Civil Procedure unless the Commission has adopted a different rule). In evaluating a claim of excusable neglect under Rule 60(b)(1), the Commission applies the framework set out in Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993):

[T]he determination is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission. These include . . . the danger of prejudice to the [opposing party], the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith.

Northwest Conduit Corp., 18 BNA OSHC 1948 (No. 97-0851, 1999). In addition, to prevail on a motion for relief pursuant to Rule 60(b)(1), the moving party must allege a meritorious defense. Id. at 1951.

In response to Burlington’s initial motion, the Secretary filed a motion to dismiss, arguing, among other things, that Burlington failed to prove it exercised sufficient diligence to warrant relief and did not articulate a defense to the citation. In response, Burlington admitted that its mailing error, seemingly within its control, was the reason for the delay in filing, but argued that this factor should not alone outweigh other relevant factors, such as the fact that Burlington acted in good faith, there was no prejudice to the Secretary or interests of efficient judicial administration, and the delay was attributable to a single instance of unforeseen human error. The judge rejected Burlington’s argument and concluded that because the delay was within its control and the company lacked procedures to prevent such an error or confirm that items were sent to the correct address, Burlington was not entitled to relief.3

  As the judge noted, the Secretary does not assert that he is prejudiced by the late filing, the delay does not adversely impact the Commission’s proceedings, the record does not demonstrate that Burlington acted in bad faith, and Burlington has alleged a meritorious defense. Although its late filing was due to an error attributable to a Burlington employee, the Commission has distinguished between cases in which an employer’s deficient procedures lead to a delay in filing and those in which there is an unforeseeable misunderstanding or miscommunication that results in a delay despite the company’s otherwise sufficient procedures. Compare Villa Marina Yacht Harbor, Inc., 19 BNA OSHC 2185, 2187 (No. 01-0830, 2003) (denying relief when company messenger mishandled mail leading company to calculate incorrect due date for NOC), and Louisiana-Pacific Corp., 13 BNA OSHC 2020, 2021 (No. 86-1266, 1989) (denying relief based on employer’s explanation that citation got “lost in the shuffle during a change in management” as employers are expected to “maintain orderly procedures for handling important documents”), with P & A Constr. Co., 10 BNA OSHC 1185, 1186 (No. 80-3848, 1981) (granting relief where employer’s attorney dictated the NOC to his secretary before traveling out of town and was assured when he called that it had been timely mailed, but due to an inadvertent technical mistake by his secretary, the NOC was not sent), and Northwest Conduit Corp., 18 BNA OSHC at 1951-52 (granting relief because delay was due to miscommunication between employer’s president and its attorney, “not due fundamentally . . . to deficient procedures . . . for handling important documents”).

Here, the late filing falls into this latter category. Burlington’s failure to timely file its NOC was due to an understandable mistake by the administrative assistant in mailing the document to the inspected worksite instead of the OSHA Area Office. This was an unforeseen error by the administrative assistant, not the result of a deficient procedure. In fact, Burlington’s receipt of the citation and prompt preparation of the NOC in response demonstrates that its procedures for handling OSHA citations were orderly. See P & A Constr., 10 BNA OSHC at 1186; Northwest Conduit, 18 BNA OSHC at 1951-52.

Accordingly, we reverse the judge’s decision denying Burlington’s request for relief under Rule 60(b)(1) and remand the case to the judge for further proceedings.

SO ORDERED.

              /s/          

                    James J. Sullivan, Jr.

                    Chairman

                    /s/          

                    Cynthia L. Attwood

                    Commissioner  

                    /s/          

                    Amanda Wood Laihow

Dated: December 31, 2020           Commissioner

______________________________________________________________________________

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor

Washington, DC 20036-3457

DECISION AND ORDER

This matter is before the Occupational Safety and Health Review Commission on a Request for Relief Under Rule 60(b) filed by Respondent Burlington Capital PM Group, Inc. d/b/a Post Woods Apartment Homes (Burlington) and docketed by the Commission on April 7, 2020, regarding a Citation and Notification of Penalty issued on October 21, 2019, to which the Secretary of Labor, United States Department of Labor (Secretary) filed a Motion to Dismiss and Opposition. By Order issued July 29, 2020, the Court denied Burlington’s Motion for Rule 60(b) Relief and Granted the Secretary’s Motion to Dismiss. The Court’s July 29, 2020, Order is incorporated herein and sets forth the basis for this Decision and Order. (Attached)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The decision herein, incorporating the Court’s July 29, 2020 Order, constitutes the Findings of Fact and Conclusion of Law in accordance with Rule 52(a) of the Federal Rules of Civil Procedure.

ORDER

Therefore, for the reasons incorporated herein, Burlington’s request for relief pursuant to Rule 60(b)(1) is HEREBY DENIED. The Secretary’s Motion to Dismiss is HEREBY GRANTED.                 

SO ORDERED.        

               /s/___________________________

               Sharon D. Calhoun

Dated: August 13, 2020      Administrative Law Judge, OSHRC

Washington, DC

______________________________________________________________________________

  United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor

Washington, DC 20036-3457

ORDER GRANTING THE SECRETARY’S MOTION TO DISMISS AND

DENYING BURLINGTON’S MOTION FOR RULE 60(b) RELIEF

This matter is before the Occupational Safety and Health Review Commission on a Request for Relief Under Rule 60(b)4 filed by Respondent Burlington Capital PM Group, Inc. d/b/a Post Woods Apartment Homes (Burlington) and docketed by the Commission on April 7, 2020, regarding a Citation and Notification of Penalty issued on October 21, 2019. Burlington asserts, as excusable neglect, its good faith as the basis it should be relieved from the final order. The Secretary of Labor, United States Department of Labor (Secretary) filed a Motion to Dismiss and an Opposition to Respondent’s Motion to Submit Late Notice of Contest on the basis that both the Notice of Contest (NOC) and the Motion are untimely. Pursuant to the Court’s Order, on June 26, Burlington filed a Supplemental Request for Rule 60(b) Relief and Response to Motion to Dismiss, further explaining its delay in filing and asserting a meritorious defense.

For the reasons set forth below, Burlington’s request for relief pursuant to Rule 60(b) is DENIED.

Background

This matter arose out of an inspection of Burlington’s jobsite located at 540 Post Woods Drive, Reynoldsburg, Ohio by the Occupational Safety and Health Administration (OSHA) on August 16, 2019. The inspection was initiated due to notification that an employee had fallen 12 feet 3 inches to the ground from a ladder. As a result of the safety inspection, on October 21, 2019, OSHA issued to Burlington a Citation and Notification of Penalty alleging a serious violation of the standard found at § 1910.23(b)(9) for failing to ensure the ladder was inspected prior to use. OSHA proposed a penalty of $11,934.00 for the alleged violation.

The Citation was mailed to Burlington by Certified Mail Return Receipt. The Return Receipt shows the Citation was delivered to Burlington and signed for as received on October 25, 2019. (Opposition, Exh. 1 (Wilson Declaration, Exh. B)).

The Citation provides Burlington had 15 working days from the date of receipt to contest. Based on the October 25, 2019, delivery date excluding weekends and Federal holidays, the 15-day contest period expired on November 18, 2019. OSHA did not receive a NOC within the contest period. Therefore, the Citation became a final order of the Commission under § 10(a) of the Act on November 19, 2019.

Burlington contends it is entitled to relief from the final order based on good faith as excusable neglect, asserting its NOC was erroneously addressed to one of its properties rather than to OSHA. Burlington admits its error but argues “the missed deadline was attributable to a single instance of unforeseen human error.” Further, Burlington contends the Commission has not cited another instance where it missed a filing deadline (Supplemental Response, p. 5). In support of its position, Burlington relies on the analysis set forth by the Third Circuit in George Harms Constr. Co. v. Chao, 371 F.3d 156 (3d Cir. 2004) where the Third Circuit rejected the Commission’s placing more weight on the control factor at the expense of the other equitable factors.

DISCUSSION

Legal Standards

Pursuant to the requirements of the Act, an employer is required to notify the Secretary of its intent to contest a citation within 15 working days of receipt. Failure to timely file a NOC results in the citation becoming a final order of the Commission by operation of law. Burlington’s contest was filed with the Commission on April 6, 2020 and docketed by the Executive Secretary of the Commission on April 7, 2020, approximately 4 ½ months after the final contest date.

An employer who has filed an untimely notice of contest may be granted relief under Rule 60(b) in certain circumstances. George Harms Constr. Co. v. Chao, 371 F.3d 156 (3d Cir. 2004). A late filing may be excused under Rule 60(b)(1) if the final order was entered as a result of “mistake, inadvertence, surprise or excusable neglect.” A late filing also may be excused under Rule 60(b)(3) if the late filing was caused by the Secretary’s “deception or failure to follow proper procedures.” See Branciforte Builders, Inc., 9 BNA OSHC 2113, 2116-17 (No. 80-1920, 1981); B.J. Hughes, Inc., 7 BNA OSHC 1471, 1476 (No. 76-2165, 1979); Keppel’s Inc., 7 BNA OSHC 1442, 1443-44 (No. 77-3020, 1979). In addition, a late filing may be excused under Rule 60(b)(6), for any other reason that justifies relief, such as when “absence, illness, or a similar disability prevent[s] a party from acting to protect its interests.” Branciforte Builders, 9 BNA OSHC at 2117. The moving party has the burden of proving it is entitled to relief under Rule 60(b).

In determining whether the late filing of a NOC may be found to be due to “excusable neglect” under Rule 60(b)(1), the equitable analysis enunciated by the Supreme Court in Pioneer Inv. Services Co. v. Brunswick Associates Ltd. Partnership 507 U.S. 380 (1993) is applicable. George Harms Constr. Co., supra. In Pioneer the Court held that “excusable neglect” is determined based upon equitable considerations that take into account all relevant circumstances, and includes consideration of the following factors: (1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason for the delay, including whether it was within the reasonable control of the party seeking relief, and (4) whether the party seeking relief acted in good faith. Id. at 395; see also Northwest Conduit Corp. , 18 BNA OSHC 1948, 1951 (No. 97-851, 1999). “[N]either a lack of prejudice to the Secretary nor good faith on the part of Respondent in attempting to comply with the statutory filing requirement alone will excuse a late filing.” Prime Roofing Corp. , 23 BNA OSHC 1329 (No. 07-1409, 2010).

The Commission has held that whether the reason for the delay was within the control of the respondent is a “key factor” in determining the presence of “excusable neglect.” A. S. Ross, Inc., 19 BNA OSHC 1147 (No. 99-0945, 2000); See also Calhar Constr., Inc., 18 BNA OSHC 2151 (No. 98-0367, 2000). The Commission requires an employer to exercise due diligence before it will find excusable neglect. Keefe Earth Boring Company, Inc., 14 BNA OSHC 2187, 2192 (No. 88-2521, 1991); See Craig Mechanical, 16 BNA OSHC 1763, 1765-66 (No. 92-0372-S, 1994).

This matter can be appealed to either the Sixth Circuit, the Eighth Circuit or the D. C. Circuit. The Commission has held that “[w]here it is highly probable that a case will be appealed to a particular circuit, the Commission generally has applied the precedent of that circuit in deciding the case— even though it may differ from the Commission's precedent.” Kerns Bros. Tree Serv., 18 BNA OSHC 2064, 2067 (No. 96-1719, 2000); see also Interstate Brands Corp., 20 BNA OSHC 1102 at *5 n. 7 (No.00-1077, 2003) (since case could be appealed to the Third Circuit, judge properly applied that precedent even though it differed from Commission precedent).

Neither the Eighth Circuit nor the D.C. Circuit have addressed the Commission’s analysis of Rule 60(b). The Sixth Circuit does not deviate from Commission precedent regarding Rule 60(b) and whether control of respondent is a key factor in determining the presence of excusable neglect.

In order to be eligible for relief under 60(b)(1) the movant must demonstrate the following: (1) The existence of mistake, inadvertence, surprise, or excusable neglect. (2) That he has a meritorious defense. . .

In applying 60(b), OSHRC is required to make a careful determination as to the presence of the two requirements reviewed in this decision.

Marshall v. Monroe & Sons, Inc. 615 F.2d 1156, 1160, 1162 (Sixth Cir. 1980) (citations omitted). Therefore, the Commission precedent controls regarding the three circuits to which Burlington could appeal. In this case, the Commission is not bound by the Third Circuit’s decision in George Harms Constr. Co., supra.

Analysis

It is the Secretary’s burden to establish service of the citation. Burlington does not dispute the Citation was served. And although it attempted to send a contest to OSHA, Burlington does not dispute it did not contest the Citation within the requisite time-period. Upon notification the contest had not been received, Burlington on April 6, 2020, filed its NOC, which was docketed by Commission on April 7, 2020, well after the final contest due date. Therefore, by operation of law, the Citation must be deemed a final order of the Commission, unless Burlington can demonstrate it is entitled to relief.

To show it is entitled to relief, Burlington submitted the Affidavit of Mary Copeland, Administrative Assistant in Burlington’s Supportive Services Department stating that she inadvertently shipped the [NOC contained in an envelope addressed to OSHA] to Post Woods Apartment Homes instead of to [OSHA]; and the Shipment Detail Report reflecting the NOC had been shipped by UPS to Post Woods Apartment Homes on October 29, 2019 (Supplement, Exhs. 1, A). Burlington requests that the inadvertent shipping error be excused based on its good faith.

Although there is no indication in the record that Burlington did not act in good faith, the Court is bound by Commission precedent regarding this matter. The Commission has held that whether the reason for the delay was within the control of the respondent is a “key factor” in determining the presence of excusable neglect and requires an employer to exercise due diligence before it will find excusable neglect. A. S. Ross, Inc., 19 BNA OSHC 1147 (No. 99-0945, 2000); See also Calhar Constr., Inc., 18 BNA OSHC 2151 (No. 98-0367, 2000); Keefe Earth Boring Company, Inc., 14 BNA OSHC 2187, 2192 (No. 88-2521, 1991); See Craig Mechanical, 16 BNA OSHC 1763, 1765-66 (No. 92-0372-S, 1994).

The Court is persuaded that due to human error Burlington’s contest was shipped to the wrong address on October 29, 2019. However, Mary Copeland’s affidavit and the Shipment Detail show the contest was shipped to Burlington’s Post Woods Apartment Homes property at 1700 Farnam Street, Omaha, NE 68102, by UPS ground. UPS confirmed a receiver address that was not OSHA’s but would not reveal the receiver’s address (Secretary’s Motion pp. 3-4, Exh, 2). The pleadings before the Court are silent on what happened to the contest after it was shipped. Andria Bell’s affidavit filed with the Motion to file Late Notice of Contest provides “We are unsure where the letter ended up and it has not been returned to us.” (Bell Affidavit, March 9, 2020). However, Mary Copelands’s affidavit and the Shipment detail filed afterwards confirm the contest letter was shipped UPS to a Burlington property. There is no indication that it was returned to Burlington’s Supportive Services Department. The Court finds the delay was caused by the contest being shipped to the wrong address. The record does not demonstrate any procedures in place to prevent such an error, or to confirm that items were shipped to the correct address. The delay was within Burlington’s control.

Where timely response was within the employer’s reasonable control, the Commission has denied relief even to petitions filed only one or two days late, see Sec’y of Labor v. Villa Marina Yacht Harbor, Inc., 19 BNA OSHC 2185, 2186-87 (2003) (one day late); see also Sec’y of Labor v. A.W. Ross, Inc., 19 BNA OSHC 1147, 1148-49 (2000) (11 days late). The Commission “has consistently denied relief” under Rule 60(b)(1) “to employers whose procedures for handling documents were to blame for untimely filings.” Sec’y of Labor v. NYNEX, 18 BNA OSHC 1944, 1946-47 (1999) (citation omitted).

David E. Harvey Builders, Inc. v. Sec'y of Labor, 724 F. App'x 7, 9 (D.C. Cir. 2018) (unpublished). Here, the NOC was 4 ½ months late, and the delay was entirely to blame on Burlington’s mail-handling procedure. However, as shown above, control is not the only factor the Court must consider. The Court must also consider the danger of prejudice to the opposing party; the length of the delay and its potential impact on the proceedings; and whether the party seeking relief acted in good faith.

Danger of Prejudice

The Secretary does not assert it would be prejudiced because of the nearly 4 ½ month delay. Therefore, the Court finds the Secretary is not prejudiced by the late filing.

Length of Delay and Impact on Proceedings

The Secretary does not address the impact of the 4 ½ month delay on his case. The Court determines the delay does not have a detrimental impact on the Commission’s proceedings in this matter and therefore would not adversely impact the proceedings.

Good Faith

The record does not demonstrate any bad faith on the part of Burlington. Therefore, the Court finds Burlington acted in good faith.

The Court has considered the factors required by Pioneer. Despite the lack of prejudice to the Secretary, a delay which would not adversely affect the Commission proceedings, and Burlington’s good faith, those factors are outweighed Burlington’s control regarding timely filing of the NOC. Burlington was in control of its mail handling procedures which resulted in the NOC not being timely filed.

Meritorious Defense

In addition to the factors set forth in Pioneer, an employer also must establish the presence of a meritorious defense for Rule 60(b)(1) relief. Northwest Conduit Corp. A meritorious defense is one that is valid at law with respect to the underlying action. Park Nursing Center, Inc., v. Samuels, 766 F.2d 261, 264 (6th Cir. 1985). The presence of a meritorious defense is “satisfied with minimal allegations that the employer could prove a defense if given the opportunity.” Jackson Assoc. of Nassau, 16 BNA OSHC 1261, 1267 (No. 91-0438, 1993). Burlington alleges a lack of knowledge and unpreventable employee misconduct as defenses to the Citation. Therefore, the Court finds Burlington has alleged a meritorious defense.

Having considered all factors enunciated in Pioneer, relief from the Final Order in this matter is not warranted. Therefore, for the reasons set forth herein, Burlington’s request for relief pursuant to Rule 60(b)(1) is HEREBY DENIED. Accordingly, the Secretary’s Motion to Dismiss is HEREBY GRANTED.

The final order regarding the Citation remains undisturbed.

SO ORDERED.

             /s/___________________________

Date: July 29, 2020         Judge Sharon D. Calhoun

Washington, DC

1 The record shows that the administrative assistant provided the paralegal with a UPS tracking number for the NOC, but there is no record of receipt at Post Woods (or anywhere else), and the tracking number is no longer active to determine the receiver’s address.

2 Rule 60(b)(1) provides in full that “[o]n motion and just terms, the court may relieve a party or

its legal representative from a final judgment, order, or proceeding for the following reasons: (1)

mistake, inadvertence, surprise, or excusable neglect[.]” Fed. R. Civ. P. 60(b)(1).

3 In its petition for discretionary review, Burlington claims that there is a split in the U.S. Circuit Courts of Appeals on this issue and the judge should have relied on a Third Circuit decision finding that an employer’s “reasonable control” of the delay of a filing is not necessarily fatal to a request for Rule 60(b) relief. See George Harms Constr. Co. v. Chao, 371 F.3d 156 (3d Cir. 2004). The Third Circuit, however, is not a relevant circuit here for the purposes of an appeal as the worksite is in Ohio (located in the Sixth Circuit) and Burlington’s corporate office is in Nebraska (located in the Eighth Circuit). See 29 U.S.C. § 660(a) (parties may appeal to circuit where worksite is located or employer is headquartered; employer may also appeal to D.C. Circuit); Kerns Bros. Tree Serv., 18 BNA OSHC 2064, 2067 (No. 96-1719, 2000) (“Where it is highly probable that a Commission decision would be appealed to a particular circuit, the Commission has . . . applied the precedent of that circuit in deciding the case—even though it may differ from the Commission’s precedent.”) (citation omitted).

The Eighth Circuit has not ruled on whether the Commission has authority to grant relief under Rule 60(b) following an untimely NOC, while the Sixth Circuit has affirmed the Commission’s authority to do so and does not deviate from Commission precedent. Marshall v. Monroe & Sons, 615 F.2d 1156 (6th Cir. 1980). The D.C. Circuit has not specifically affirmed the Commission’s authority to grant Rule 60(b) relief, but has relied on Commission precedent in “assum[ing] Rule 60(b)(1)’s applicability to . . . proceedings [when] neither party contest[ed] it” and affirming the Commission’s denial of Rule 60(b) relief. David E. Harvey Builders, Inc. v. Sec’y of Labor, 724 F. App’x 7, 8 (D.C. Cir. 2018) (unpublished) (affirming Commission’s decision to deny relief to employer for failing to timely file an NOC because it provided incorrect address to OSHA for mailing of citation as it comported with Commission precedent and law of the circuit). Thus, Commission precedent applies in this case. See Am. Eng’g & Dev. Corp., 23 BNA OSHC 2093, 2097 n.4 (No. 10-0359, 2012) (Commission “follow[s] [its] own precedent” where the circuit court “has neither decided nor directly addressed [an] issue”) (quoting McDevitt Street Bovis, Inc., 19 BNA OSHC 1108, 1110-12 (No. 97-1918, 2000)).

4 By Order issued June 26, 2020, the Court construed Burlington’s Late Notice of Contest as a Request for Relief Under Rule 60(b).