United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

U.S. Custom House

721 19th Street, Room 407

Denver, Colorado 80202-2517

Phone: (303) 844-2282 Fax: (303) 844-3759

SECRETARY OF LABOR,

Complainant,

v.

EARTH DEVELOPERS, INC.,

Respondent.

OSHRC Docket No.: 17-1120

Appearances:

Summer Silversmith, Esq., Office of the Solicitor, U.S. Department of Labor, Denver, Colorado

For Complainant

Shaun Schipper, Fargo, North Dakota

For Respondent

Before: Administrative Law Judge Brian A. Duncan

DECISION AND ORDER GRANTING MOTION TO DISMISS CITATION

This proceeding is before the Occupational Safety and Health Review Commission (“the

Commission”) pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970, 29

U.S.C. § 651 et seq. (“the Act”). The Occupational Safety and Health Administration

(“Complainant”) conducted an inspection of an Earth Developers, Inc. (“Respondent”) worksite

in Valley City, North Dakota on October 6, 2016. As a result of the inspection, OSHA issued a

Citation and Notification of Penalty (“Citation”) to Respondent alleging three serious violations

of the Act with a total proposed penalty of $5,976.00. The timeliness of OSHA’s issuance and

service of the Citation upon the Respondent is at issue and discussed below.
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Procedural History

On September 25, 2017, Respondent filed a Motion to Dismiss Citation (“Motion”) in

which it argues that the Citation should be dismissed because (1) the Citation was not issued with

“reasonable promptness” within the six month statute of limitations under 29 U.S.C. § 658(a)

and (c); and (2) Respondent was not notified within a reasonable time after the inspection under

29 U.S.C. § 659(a). In response, Complainant filed the Secretary’s Opposition to EDI’s Motion

to Dismiss (“Response”). It its Response, Complainant contends that the Citations were timely

issued and requests that Respondent’s Motion be denied.

Timeline of Events

1. On October 6, 2016, Compliance Safety and Health Officer (CSHO), Joshua

Lynn, conducted an inspection at Respondent’s worksite in Valley City, North Dakota. See

Declaration of Joshua Lynn (Lynn Decl.), ¶ 2; Motion ¶ 2.

2. On March 15, 2017, OSHA generated a Citation, which was signed by the local

OSHA Area Director, and prepared for mailing by Kari Thorsteinson, an assistant in the

Bismarck, North Dakota Area OSHA Office. See Declaration of Kari Thorsteinson

(Thorsteinson Decl.), ¶2.

3. Respondent did not receive the Citation until June 8, 2017, eight months after the

inspection date. See Thorsteinson Decl., ¶ 6; Motion ¶ 3.

4. Complainant contends that the original Citation was placed in the U.S. mail, via

certified mail, directed to Respondent at the correct address, on March 15, 2017. See

Thorsteinson Decl.¶ 2–3.

5. More than two months later, on or about May 22, 2017, CSHO Lynn was
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reviewing his list of assigned cases and noticed that there was no reply from Respondent

regarding the Citation. See Lynn Decl.¶ 10.

6. CSHO Lynn then followed up with Ms. Thorsteinson, after which it was

discovered that OSHA never received confirmation that the Citation was actually delivered to the

Respondent. See Lynn Decl.¶ 10, 12.

7. In fact, OSHA’sreview of the USPS tracking information for the alleged March

15, 2017 mailing, revealed no transaction history at all, not even a record that OSHA deposited

the Citation in the mail to begin with. See Complainant’s Response, at Exhibit 6.

8. Therefore, on May 24, 2017, approximately 7 1⁄2 months after the OSHA

inspection was conducted, a new Citation was generated, signed, and sent to Respondent via

certified mail. See Thorsteinson Decl.¶ 6.

9. This second generated Citation was delivered to Respondent without issue on

June 8, 2017, more than eight months after the OSHA inspection. See Complainant’s Response,

at Exhibit H.

10. CSHO Lynn conducted a telephonic closing conference with Respondent back on

March 15, 2017, and implies that he discussed the issuance of the Citation, but the Court notes

that CSHO Lynn’s declaration does not specifically state he notified Respondent of the Citation

it would be receiving. Instead, CSHO Lynn’s declaration simply states that his “standard

practice in closing conferences is as follows: I always inform the employer of the citations they

are being issued, discuss actions they need to take as far as abatement verification and penalty

payment, and explain their three options: informal settlement conference, contest, or

acceptance.” See Lynn Decl. ¶8.
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11. In contradiction to CSHO Lynn’s stated closing conference routine practices,

Respondent’s June 14, 2017 Notice of Contest (after receiving the second generated Citation)

reads: “I did not expect to be fined for anything as it has been well over 7 months since we were

inspected and I have never received anything.”

12. There is no evidence in the record that Respondent was notified of the first

purported mailing on March 15, 2017, or that somehow refused delivery or otherwise avoided

service.

13. OSHA characterized the mishap concerning the missing March 15, 2017 Citation

as “Original Citations Lost in the Mail” even though USPS tracking records do not show the first

Citation ever being deposited in the mail. See Complainant’s Response, at Exhibits A, E & G.

14. Although the March 15, 2017 Citation was never delivered to Respondent, and

possibly never even placed in the US mail system, Complainant communicated to Respondent

that “OSHA accepted your notice of contest of the citation even though it was arguably late.” [as

it was not received within 15 working days of the original failed mailing]. See Respondent’s

Motion, Exhibit 1 (June 27, 2017 e-mail from Tim Williams), p. 3.

Discussion

Section 9(c) of the Act states, “No citation may be issued under this section after the

expiration of six months following the occurrence of any violation.” 29 U.S.C. § 658(c). Section

10(a) states, “If, after an inspection or investigation, the Secretary issues a citation under section

9(a), he shall, within a reasonable time after the termination of such inspection or investigation,

notify the employer by certified mail of the penalty, if any, proposed to be assessed under section

17 and that the employer has fifteen working days within which to notify the Secretary that he
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wishes to contest the citation or proposed assessment of penalty.” 29 U.S.C. § 659(a). Most of

the issues arising on the Court’s docket under these two statutory provisions concern the

timeliness of the employer’s notice of contest, not the timeliness of the Complainant’s service of

the Citation.

Citing numerous ALJ decisions, Complainant contends that its only requirement is that it

“issue” the Citation. Complainant argues that its duties are complete once it prints, signs, and

mails the Citation. See Complainant’s Response, p. 5 citing, e.g,. Brower Dental Health, PC, 26

BNA OSHC 1480 (O.S.H.R.C.A.L.J. Dec. 22, 2016); Valcourt Bldg. Servs. of Georgia, LLC, 24

BNA OSHC 1872 (O.S.H.R.C.A.L.J. Aug. 5, 2013); Excel Contractors, Inc., Docket No. 16-

0633 (July 13, 2016), Slip Op. at 2; Francis J. Palo, Inc., Docket No. 13-2150 (April 24, 2014).

Here, there is no evidence that the Citation was actually placed in the mail on March 15, 2017.

A follow-up of USPS records revealed to Complainant that there was no record of the USPS

initially receiving the certified mail package. Therefore, the Court is not persuaded that, even

accepting Complainant’s argument concerning its limited responsibility, that it met its obligation

to “issue” the Citation within the six month statute of limitations.

It seems clear to the Court that Section 10 imposes duties on both the Secretary of Labor

and cited employers. First, there is a duty by the Secretary to notify the employer by certified

mail of the Citation within a “reasonable time.” 29 U.S.C. § 659(a). Then, upon receipt of the

notification, the employer has a duty to submit a Notice of Contest within 15 working days if it

wishes to contest the Citation. 29 U.S.C. § 659(a). After the expiration of this 15 day period, if

an employer has not contested a Citation, the violations automatically become final orders of the

Commission and are not subject to review by any court or agency. 29 U.S.C. § 659(a). These
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respective time restrictions are two sides of the same coin aiming to further the purpose of the

Act of protecting workers’ safety and health. As such, both the Secretary and the employer

should be held to the same standard under Section 10.

When an employer files a late notice of contest, relief is only granted in cases where (1)

the delay in filing was caused by the Secretary’s deception or failure to follow proper procedures

or (2) party’s late filing was due to “mistake, inadvertence, surprise, or excusable neglect”. See

Atlantic Marine, Inc. v. OSHRC, 524 F.2d 476 (5th Cir. 1975) (holding an untimely notice of

contest may be excused if it was the result of deception on the part of the Secretary); B.J.

Hughes, Inc., 7 BNA OSHC 1471 (O.S.H.R.C. 1979) (holding company holiday was still a

“working day” and not an excuse for filing a late notice of contest, but that notice of contest was

timely because assistant area director misinformed respondent to correct final day to file notice

of contest).

Employers have attempted to argue that delay in filing a notice of contest due to internal

mishandling of a citation, or lack of proper mail handling procedures, should qualify as

excusable neglect. However, the Commission has expressly rejected this argument and instead,

ruled many times that the employer needs to have proper paperwork and mail handling

procedures in place, and that failure to have these procedures in place does not amount to

excusable neglect. See, e.g., J.F. Shea Co., 15 BNA OSHC 1092 (O.S.H.R.C. 1991) (holding

error by office assistant did not establish excusable neglect); Nynex, 18 BNA OSHC 1944

(O.S.H.R.C. 1999) (holding misdirecting citation within large company was not excusable

neglect); B.J. Hughes, Inc. supra (holding service on district superintendent at local job site

adequate because “the Secretary’s representatives should not have to spend time fettering out the
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complexities of a corporate hierarchy...”); Creative Gold, Inc., 20 BNA OSHC 1217

(O.S.H.R.C.A.L.J. 2003) (citing to Henry Beck Co., 8 BNA OSHC at 1399 that Commission has

held that a business must maintain orderly procedures for handling important documents).

Further, it is important to note, that once a Citation is served on an employer, the employer is in

the best position to make sure they are in compliance with the time period in which to contest the

citations.

Similarly, the Secretary should be held to the same standard of employing proper

paperwork and mail handing procedures when issuing and serving a Citation to ensure that the

employer is notified within a reasonable time and within the statute of limitations period.

Notification must be expeditiously served upon a proper company official so that abatement can

be rapidly accomplished. See, generally, B.J. Hughes, Inc. at *3-4. The Commission has rejected

the argument that because the respondent eventually received the notice of citations that service

was proper. See Donald K. Nelson Construction, 3 BNA OSHC 1914 (O.S.H.R.C. 1976)

(holding that this interpretation of notification would mean that service rules need not be

followed so long as service is actually received at any time by the party to whom it was

directed).

Here, it is clear the system employed by Complainant to handle the mailing of this

Citation was not adequate to ensure that Complainant was properly and timely notified of the

alleged violations. It is undisputed that the inspection occurred on October 6, 2016 and that

Respondent was not served a copy of the Citation until June 8, 2017. The Secretary is in the best

position to ensure proper and timely notification. Complainant’s belief that the Citation was put

in the mail five months after the inspection, then the discovery two months later that it might not
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have been, and then ultimate service on the employer eight months after the inspection is

deficient. Conversely, in a scenario in which an employer properly received a Citation, then

mistakenly believed it mailed a notice of contest to the local OSHA office a few days before the

deadline, only to discover two months later that its notice of contest was never received, the

Court has not doubt that Complainant would vehemently argue that the Citation was final and

uncontestable.

Although the actions of the USPS are out of both parties’ control, the Court is not

convinced that Complainant actually placed the March 15, 2017 Citation in the mail. Proper

case management and mail handing procedures are completely within an OSHA Area Office’s

control. Just as inadequate mail handing procedures are typically no excuse for an employer

filing a notice of contest late, inadequate mail handling procedures are no excuse for

Complainant in notifying the employer of a Citation within in a reasonable time and within

statutory limitations.

ORDER

Accordingly, Complainant’s Motion to Dismiss is GRANTED. The Citations issued as a

result of OSHA Inspection Number 1182684 are hereby VACATED. The trial previously

scheduled for February 27, 2018 is canceled.

SO ORDERED.

/s/ Brian A. Duncan

Date: December 22, 2017 Judge Brian A. Duncan

Denver, Colorado U.S. Occupational Safety and Health Review Commission