Avon Contractors Inc v. Secretary Labor

• Court: Court of Appeals for the Third Circuit
• Decided: June 9, 2004
• Docket: 03-1615
• Status: Published

Opinion

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Avon Contractors Inc v. Secretary Labor Precedential or Non-Precedential: Precedential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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Recommended Citation "Avon Contractors Inc v. Secretary Labor" (2004). 2004 Decisions. Paper 563. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/563

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. 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.