Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
6-9-2004
Avon Contractors Inc v. Secretary Labor
Precedential or Non-Precedential: Precedential
Docket No. 03-1615
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PRECEDENTIAL Ronald J. Gottlieb, Esquire (Argued)
United States Department of Labor
UNITED STATES Office of the Solicitor
COURT OF APPEALS Suite S-4004
FOR THE THIRD CIRCUIT 200 Constitution Avenue, N.W.
Washington, D.C. 20210
Attorney for Respondent,
No. 03-1615 Secretary of Labor
AVON CONTRACTORS, INC., OPINION OF THE COURT
Petitioner
v. SCIRICA, Chief Judge.
At issue is whether Petitioner Avon
SECRETARY OF LABOR;
Contractors, Inc. is entitled to relief under
OCCUPATIONAL SAFETY AND
the excusable neglect standard of Fed. R.
HEALTH REVIEW COMMISSION,
Civ. P. 60(b)(1), after it failed to timely
Respondents
file a notice of contest to Occupational
Safety and Health Administration Citations
and a Notice of Penalty delivered by
On Petition for Review of a Final Order
certified mail. We addressed similar
of the Occupational Safety and Health
issues in George Harms Construction Co.
Review Commission
v. Chao, No. 03-2215 (3d Cir. June 9,
(OSHRC No. 02-0772)
2004), in which we heard oral argument on
the same day as this matter.
Argued February 12, 2004 We will vacate the Occupational
Safety and Health Review Commission’s
Before: SCIRICA, Chief Judge, final order and remand for a hearing on the
ROTH and McKEE, Circuit Judges merits of the OSHA citations.
I.
(Filed: June 9, 2004)
OSHA conducted an inspection of
Donald A. Kessler, Esquire (Argued) Avon’s work site at Northvale, New Jersey
Schwartz, Simon, Edelstein, from January 8 through January 10, 2002.1
Celso & Kessler
10 James Street
1
Florham Park, New Jersey 07932 Congress enacted the Occupational
Attorney for Petitioner Safety and Health Act to “assure so far as
possible” safe working conditions for
“every working man and woman in the
OSHA found two infractions.2 After the
inspection, Charles Tristitti of OSHA’s
Hasbrouck Heights Area Office contacted
Nation.” 29 U.S.C. § 651(b). The
Avon’s Office Manager Lori Muranelli by
Secretary of Labor is charged with
telephone and advised her of two
enforcement of the Act. But the Secretary
forthcoming citations. OSHA sent the
has delegated her enforcement duties to
citations by certified mail to Avon on
the Assistant Secretary for Occupational
February 22, 2002. Avon’s receptionist,
Safety and Health, who heads OSHA.
Tonya Grant, signed for the citations on
Secretary’s Order 5-2002, 67 Fed. Reg.
February 26, 2002. Muranelli, the
65008 (Oct. 22, 2002). OSHA inspects
employee at Avon responsible for OSHA-
workplaces for violations. It may issue a
related matters, never received the
citation for a violation, establish a date for
citations.
abatement, and propose a civil penalty.
29 U.S.C. §§ 658, 659. An employer can In or around March 2002, Avon
contest the citation and the proposed discovered it was missing mail and
penalty before the Occupational Safety and suspected its receptionist, Tonya Grant,
Health Review Commission. 29 U.S.C. § was responsible. According to M uranelli,
661. Under section 10(a) of the Act, an “around” the time of March, 2002,
employer must file a notice of contest managers started complaining about
within 15 working days of receipt of the missing mail. “Between February and
citation or the “the citation and the March, right before [the receptionist] left
assessment, as proposed, shall be deemed the Company,” Muranelli told the
a final order of the Commission and not receptionist that some mail items were
subject to review by any court or agency.” missing. Muranelli warned her to ensure
29 U.S.C. § 659(a). that the proper recipients got their mail.
The Commission, an independent Muranelli also told the receptionist that
adjudicatory body separate from the she was not to sign for any certified mail
Department of Labor, acts as a neutral
arbiter in proceedings contesting OSHA
citations. Cuyahoga Valley Ry. Co. v. decision. Id. Judicial review may then be
United Transp. Union, 474 U.S. 3, 7 sought. 29 U.S.C. § 660.
(1995) (per curiam ). Ass um ing
2
jurisdiction, an Administrative Law Judge In the citations, OSHA alleges Avon
of the Commission conducts a hearing and violated 29 C.F.R. § 1926.300(b)(1), by
issues a report with his determination of operating power tools without a required
the proceeding. 29 U.S.C. § 661(j). guard. It also alleges Avon violated 29
Within thirty days, the Commission may C.F.R. § 1926.501(b)(1), by not providing
opt to review the ALJ’s report. Id. If no a guardrail system, safety net system, or
Commissioner directs review, the ALJ’s personal fall arrest system for employees
report becomes the Commission’s final working on a roof.
2
because it was Muranelli’s responsibility On January 21, 2003, an ALJ filed
as office manager to do so. “In the middle his decision and order granting the
towards the end of March,” the Secretary’s dismissal motion. See Avon
receptionist resigned. Muranelli testified Contractors, Inc., No. 02-0772, 2003
that the receptionist was “disgruntled” and OSAHRC LEXIS 47 (OSAHRC Jan. 21,
quit because she had heard she would be 2003). Though finding that Avon made a
terminated for losing or destroying mail. “compelling” argument, the ALJ held
In April 2002, Avon discovered that some against Avon on its excusable neglect
of its certified mail was missing. Avon claim because Avon had not shown
claims it was not aware that its receptionist “whether the failure [to receive notice of
was destroying or losing mail at the time the violation] was within the control of the
the OSHA citations were mailed and employer.” Id. at *4-5. Particularly, the
received. ALJ found, the record did “not show how
long the receptionist had been destroying
On April 26, 2002, Muranelli
or misplacing mail or when the company
contacted OSHA to inquire about the
first became aware of the problem.” Id. at
status of the citations. On April 29, 2002,
*4. Accordingly, the ALJ could not tell
Avon received a demand letter from
whether the de structi on was an
OSHA and a copy of the citations and
“unprecedented and unexpected act, or
notice of penalty. On May 15, 2002, Avon
whether this type of activity was an
submitted a late notice of contest.
ongoing problem which should have been
The matter was docketed before the corrected.” Id. at *5. The ALJ noted “the
Commission. Avon claimed it was entitled only apparent effort Avon undertook to
to relief under the “excusable neglect” rectify the problem was to tell the
standard of Fed. R. Civ. P. 60(b)(1). receptionist not to accept certified mail,
Section 12(g) of the Act provides that the and . . . this occurred ‘right before’ the
“Commission is authorized to make such receptionist left the company.” Id. The
rules as are necessary for the orderly ALJ denied relief under Fed. R. Civ. P.
transaction of its proceedings. Unless the 60(b) because he was unable to “find that
Commission has adopted a different rule, it was not within Avon’s reasonable
its proceedings shall be in accordance with control to prevent the series of events
the Federal Rules of Civil Procedure.” 29 which led up to its failure to timely file the
U.S.C. § 661(g). Fed. R. Civ. P. 60(b)(1) NOC.” Id. The ALJ also rejected the
provides that “[o]n motion and upon such Secretary’s conte ntion th at the
terms as are just, the court may relieve a Commission did not have authority to
party or a party’s legal representative from accept a late-filed notice of contest. The
a final judgment, order, or proceeding for ALJ noted:
the following reasons: (1) mistake,
Relying on Le Frois Builder
inadvertence, surprise, or excusable
Inc., 291 F.3d 219 (2d Cir.
neglect . . . .” Id.
3
2002), the Secretary’s II.
motion asserts that the
In George Harms Construction Co.
Commission does not have
v. Chao, No. 03-2215 (3d Cir. June 9,
authority to accept a late-
2004), we rejected the Secretary’s
filed NOC. The Secretary’s
contention that J.I. Hass Co. v. OSHRC,
reliance on Le Frois,
648 F.2d 190 (3d Cir. 1981), had been
however, is misplaced, as
undermined by subsequent precedent.
this case arises in the Third
Harms, No. 03-2215, op. at 4-8. We held
Circuit, not the Second.
that under Hass, section 10(a) is not a bar
Accordingly, J. I. Hass Co.,
to Commission review, and the
Inc., 648 F.2d 191 (3d Cir.
Commission has jurisdiction to entertain a
1981) and Branciforte
late notice of contest under the excusable
Builders, Inc., 9 BNA
neglect standard of Fed. R. Civ. P.
OSHC 2113 (No. 80-1920,
60(b)(1). See Harms, No. 03-2215, op. at
1981), not Le Frois, are
8.
controlling.
Moreover, in Harms, we held the
Id. at *3 n.2.
Supreme Court’s holding in Pioneer
Avon appeals to vacate the Investment Services v. Brunswisk Assoc.,
Commission’s order and remand for a 507 U.S. 380 (1993), applies to
hearing on the underlying citation.3 It Commission proceedings where the
argues that it is entitled to the relief of excusable neglect standard is implicated.
“excusable neglect” under Fed. R. Civ. P. See Harms, No. 03-2215, op. at 8. We
60(b)(1). Not only does the Secretary noted that in Pioneer “the Supreme Court
dispute those claims, she also contends identified, without limitation, these factors
that section 10(a) of the Act, 29 U.S.C. § to consider: ‘the danger of prejudice . . . ,
659(a), precludes the Commission from the length of the delay and its potential
considering the Fed. R. Civ. P. 60(b)(1) impact on judicial proceedings, the reason
“excusable neglect” standard when a for the delay, including whether it was
notice of contest is untimely filed.4 within the reasonable control of the
movant, and whether the movant acted in
3
good faith.’” Id. (quoting Pioneer, 507
The Commission had jurisdiction U.S. at 395). We held the “control” factor
under 29 U.S.C. § 659. We have appellate does not necessarily trump all the other
jurisdiction under 29 U.S.C. § 660.
4
The Commission’s factual findings
must be affirmed if supported by are to be affirmed unless they are arbitrary,
substantial evidence on the record as a capricious, an abuse of discretion, or
whole. Reich v. D.M. Sabia Co., 90 F.3d contrary to law. Id. (citing 5 U.S.C. §
854, 856 (3d Cir. 1996). Its adjudications 706(2)(A)).
4
relevant factors. Id. at 9. Furthermore, an controlling on whether the loss of the
arbiter must take into account all relevant citations was within Avon’s reasonable
circumstances surrounding a party’s failure control. It would be difficult to show
to file a timely notice of contest. Id. We precisely how long the deliberate acts had
faulted the ALJ for weighing too heavily been ongoing in part because employees
the “control” aspect of the case at the who commit destructive or negligent acts
expense of other relevant Pioneer factors. generally do not broadcast their conduct.
See id. at 8-9. Until Avon discovered the missing mail
and the receptionist’s allegedly deliberate
Here, the ALJ made similar errors
acts of destruction, there was little beyond
in its “excusable neglect” calculus.
the established mailing procedures in place
Several of the factors weighed in favor of
that could be done to prevent mishandled
a finding for Avon. The Secretary did not
mail. Nor is there any reason to assume
apparently suffer prejudice; the delay did
that a company would know that its mail
not negatively impact the proceeding; and
was being destroyed or misplaced but
as the ALJ noted, “Avon’s argument is
would act against its own self-interest in
compelling, particularly as Avon initiated
choosing to ignore it. Moreover, though
contact with OSHA with respect to the
the precise date on which Avon discovered
whereabouts of the citation.” Avon, 2003
it was missing mail is unclear, the record
OSAHRC LEXIS 47, at *4. But the ALJ
demonstrates that Avon discovered that it
explained that “a key factor in determining
was missing mail just prior to the
this issue is whether the failure was within
receptionist’s departure in February or
the control of the employer” and found
March. The record shows that Avon did
against Avon because the evidence it
not discover that certified items were
presented was insufficient for showing the
destroyed or misplaced until sometime in
loss “was not within Avon’s reasonable
April. When OSHA sent the certified mail
control.” Id. at *4-5. In doing so, the ALJ
containing the citations to Avon in
did not properly weigh all the relevant
February, there is no evidence that it was
Pioneer factors.
within Avon’s control to prevent the
Moreover, we disagree that Avon unforeseeable acts of destruction by its
failed to prove that the loss was not within employee. Because the Pioneer factors of
its reasonable control. The ALJ found good faith, prejudice, efficient judicial
fatal to Avon’s petition the fact that the administration, and control all weigh in
record does not show “how long the favor of Avon, it has sufficiently shown
receptionist had been destroying or “excusable neglect” and is entitled to relief
misplacing the mail or when the company under Fed. R. Civ. P. 60(b)(1).
first became aware of the problem.” Id. at
III.
*4. But the failure to show how long the
receptionist had been destroying or For the foregoing reasons, we will
misplacing mail is not necessarily vacate the Commission’s final order and
5
remand for a hearing on the merits of the
subject OSHA citations.
6