United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

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

Washington, DC 20036-3457 

SECRETARY OF LABOR,

Complainant, 

v. OSHRC Docket No. 15-1248 

RHEEM MANUFACTURING CO., INC.,

Respondent. 

APPEARANCES:

Angela F. Donaldson, Counsel; Stanley E. Keen, Regional Solicitor; M. Patricia Smith, Solicitor; 

U.S. Department of Labor, Washington, DC and Atlanta, GA 

 For the Complainant

 Carla Gunnin, Esq., and Nickole Winnett, Esq.; Jackson Lewis P.C., Atlanta, GA

 For the Respondent 

REMAND ORDER

Before: ATTWOOD, Acting Chairman and MACDOUGALL, Commissioner. 

BY THE COMMISSION: 

At issue before the Commission is a November 20, 2015 decision of Administrative Law 

Judge John B. Gatto denying Respondent’s motion for relief from a final order under Federal 

Rule of Civil Procedure 60(b) after Respondent filed a notice of contest with the Occupational 

Safety and Health Administration after the statutory deadline. See 29 U.S.C. § 659(a) (failure to 

contest citation within fifteen working days results in citation becoming final order of 

Commission). For the reasons that follow, we set aside the judge’s decision and remand this 

case to the judge for further proceedings.

On May 6, 2015, OSHA issued Respondent a citation, which was sent via certified mail 

to Respondent’s facility in Montgomery, Alabama, and signed for by the facility’s security guard 

on May 8, 2015. Respondent filed its notice of contest on June 24, 2015, three weeks after the 

expiration of the fifteen-day contest period and, according to Respondent, two days after it 
2

contacted OSHA and learned that the citation had issued. Since the notice of contest was 

untimely filed, the Secretary contends it was “properly dismissed.” Id.

In its motion for Rule 60(b) relief from a final order, Respondent details the company’s 

mail procedures in an affidavit from its human resource manager and claims that its failure to 

timely file the notice of contest was due to excusable neglect. See FED. R. CIV. P. 60(b) (“On 

motion and just terms, the court may relieve a party . . . from a final judgment, order, or 

proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable 

neglect . . . .”). As set forth in its motion, Respondent claims that excusable neglect is 

established because, despite its orderly procedures for handling mail, the citation never reached 

the appropriate personnel after the security guard signed for it, and the citation has yet to be 

found at Respondent’s facility. The Secretary’s response includes a motion to dismiss 

Respondent’s late notice of contest, along with two supporting affidavits from OSHA personnel. 

In ruling on Respondent’s motion, the judge had before him the motion for relief, the 

motion to dismiss, and the parties’ supporting affidavits, and concluded based on the human 

resource manager’s affidavit that Respondent’s mail-handling procedures were “convoluted.” 

He also found that because Respondent had “sole control” over these procedures, its neglect was 

not excusable under Rule 60(b) and denied Respondent’s motion. While the Commission, as 

acknowledged by the judge, “ ‘has consistently denied relief to employers whose procedures for

handling documents were to blame for untimely filings’ ” of notices of contest, we find that his 

order denying the requested relief is premature based on the limited record. See NYNEX, 18 

BNA OSHC 1967, 1970 (No. 95-1671, 1999) (citing E.K. Constr. Co., 15 BNA OSHC 1165, 

1166 (No. 90-2460, 1991)). Therefore, we remand this case to the judge for an evidentiary 

hearing. See, e.g., Dore & Assocs. Contracting, Inc., 19 BNA OSHC 1438, 1439 (No. 01-0067, 

2001) (remanding for evidentiary hearing, because “[o]n the limited record before us here we 

cannot determine whether [Respondent] has established a basis to excuse the untimely filing of 

its notice of contest”).
3

Accordingly, we set aside the judge’s decision and remand this case to the judge for 

further proceedings. 

SO ORDERED.

 

/s/ 

 Cynthia L. Attwood 

 Acting Chairman

/s/ 

Heather L. MacDougall

Dated: January 8, 2016 Commissioner
UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

THOMAS E. PEREZ, Secretary of Labor, 

United States Department of Labor, 

Complainant,

v. OSHRC DOCKET No. 15-1248

RHEEM MANUFACTURING COMPANY,

Respondent.

ORDER DENYING RESPONDENT’S MOTION FOR RELIEF OF THE FINAL ORDER 

UNDER RULE 60(B) OF THE FEDERAL RULES OF CIVIL PROCEDURE

Attorneys and Law firms 

M. Patricia Smith, Solicitor of Labor, Stanley E. Keen, Regional Solicitor, Rolesia Butler Dancy, 

Counsel, Office of the Solicitor, U.S. Department of Labor, Atlanta, GA, for Complainant. 

Carla Gunnin, Nickole Winnett, Jackson Lewis P.C., Atlanta, GA, for Respondent. 

John B. Gatto, United States Administrative Law Judge.

I. INTRODUCTION

 A citation and notice of the associated proposed penalty was issued by the Mobile, Alabama, 

Area Director of the Department of Labor’s Occupational Safety and Health Administration (“OSHA”)1 to 

Rheem Manufacturing Company (“Rheem”), which Rheem contested after the statutory deadline. The 

citation and notice was issued under the Occupational Safety and Health Act of 1970 (“Act”), 29 U.S.C. 

§§ 651–678, and according to the Secretary of Labor, was “deemed” a final order of the Commission. 

Thus, OSHA notified Rheem it would not treat the case as contested and refused to forward Rheem’s 

untimely notice of contest to the Commission. If the Secretary’s assertion is true, “any relief from that 

 1 The Secretary of Labor has assigned responsibility to OSHA for enforcement of the Act and has delegated his 

authority under the Act to the Assistant Secretary for Occupational Safety and Health, who heads OSHA. See 65 FR 

50017, 50018 (2000). The Assistant Secretary has promulgated regulations authorizing OSHA’s Area Directors to 

issue citations and proposed penalties under the Act. See 29 C.F.R. §§ 1903.14(a) and 1903.15(a).
2 

order can only be granted under Federal Rule of Civil Procedure 60(b).” Northwest Airlines, Inc., 19 BNA 

OSHC 1383 (No. 00-0954, 2001). 

 On July 7, 2015, Rheem filed a motion with the Commission seeking relief under Rule 60(b) and 

the Secretary filed a response to Rheem’s motion on September 11, 2015, which included within it a 

motion to dismiss Rheem’s late notice of contest. Rheem filed a reply on September 25, 2015. The 

court notes the Secretary’s response was not timely. See 29 C.F.R. §§ 2200.4(a), (b) and § 2200.40(c) for 

permissible response period and time computation. Both parties also failed to comply with Commission 

Rule 40(a), which requires that prior to filing a motion, the moving party “confer or make reasonable 

efforts to confer with the other parties” and “state in the motion if any other party opposes or does not 

oppose the motion.” § 2200.40(a). Rheem has also failed to comply with the corporate disclosure 

requirements of Commission Rule 35(a). See § 2200.35(a) (“initial pleadings filed under these rules by a 

corporation shall be accompanied by a separate declaration listing all parents, subsidiaries, and affiliates 

of that corporation or stating that the corporation has no parents, subsidiaries, or affiliates, whichever is 

applicable”). 

The court also notes Rheem’s untimely notice of contest is not properly before the court since it 

did not file it with the Commission but merely attached it as an exhibit to its motion. Therefore, the 

Secretary’s motion to dismiss Rheem’s late notice of contest is moot. Further, the Secretary’s motion to 

dismiss Rheem’s late notice of contest is also not properly before the court since he included it within 

his response to Rheem’s motion in violation of Commission Rule 40(a), which mandates “[a] motion shall 

not be included in another document,” but “shall be made in a separate document.” 29 C.F.R. 

§2200.40(a); see also Elan Lawn & Landscape Serv., Inc., 22 BNA OSHC 1337, 1340 (No. 08-0700, 2008). 

Long-standing Commission precedent indicates relief may be granted under Rule 60(b) from a 

final order of the Commission resulting from an untimely filed notice of contest. Elan Lawn & Landscape 

Serv., Inc., 22 BNA OSHC 1337, 1338 (No. 08-0700, 2008) (citing Northwest Conduit Corp., 18 BNA OSHC 

1948, 1949 (No. 97-851, 1999). Thus, the court concludes it has jurisdiction to rule on Rheem’s motion 

seeking Rule 60(b) relief. However, for the reasons indicated infra, Rheem has not established 

excusable neglect or any other reason justifying relief and its motion is therefore DENIED. 
3 

II. FACTS

On March 24-25, 2015, OSHA conducted a two-day inspection of Rheem’s Gunter Park 

Drive facility in Montgomery, Alabama, where Rheem manufacturers heating and cooling 

products. (Mot. p. 1; see also Ex. A.) The inspection was conducted following a report that an 

employee's thumb had been crushed by machinery or equipment. (Resp. p. 1; see also Sanders 

Decl., Ex. A.) On May 6, 2015, OSHA issued the citation and notice to Rheem via certified 

mail, return receipt requested, and as evidenced by the certified mail return receipt, it was signed 

for by Charles Berg, Rheem’s security guard, on May, 8, 2015. (Mot. p. 3, see also Ex. A, Ex.; 

Day Decl., Ex. B, Ex. C.) Rheem did not file its notice of contest until June 24, 2015. (Resp. p. 

2.) OSHA determined the citation and notice was deemed a final order of the Commission on 

June 2, 2015, and notified Rheem on June 25, 2015, it would not treat the case as contested and 

refused to forward Rheem’s notice of contest to the Commission. (Mot. p. 5; see also Ex. E.) 

Therefore, on July 7, 2015, Rheem filed its Rule 60(b) motion in the Commission. 

Prior to January 17, 2015, Rheem’s process for mail delivery was handled “by an 

assigned Rheem mailroom attendant.” (Mot. p. 4; see also Burnette Decl., ¶ 6.) However, on or 

around that date, Rheem eliminated the assigned mailroom attendant position and from that day 

forward, Rheem’s mail delivery process consisted of the following: 

(1) First, FedEx, U.P.S. and U.S. Postal Service deliveries arrive at Gate 1 and 

any letters or packages requiring signatures are signed for by the security guard 

on duty. (2) The security guard then returns the letters or packages requiring 

signatures to the FedEx, U.P.S. or U.S. Postal Service delivery person. 

(3) The FedEx, U.P.S. or U.S. Postal Service delivery person then deposits all 

mail (certified, packages, and other) in a designated area inside the door of 

Rheem’s mailroom located adjacent to the shipping receiving dock doors on the 

East side of the facility.

(4) Next, one of three Rheem employees sort the mail at some point during the 

day and add it to dedicated bins in the mail room for each department/area. 

(5) Finally, the dedicated bins are delivered to the departments for distribution. 

(Id.) (Emphasis added). 

According to Rheem, “[t]he person usually tasked with sorting mail states that, when she 

is doing the task, she personally delivers any FedEx or U.P.S. envelopes or certified mail to the 

actual department to whom it is addressed.” (Id.; see also id. at ¶ 4.) Rheem also asserts, “[o]n 

the day in question, the person who performed this task most frequently stated that she had taken 
4 

a half-day of vacation.” (Id.; see also id. at ¶ 5.) Therefore, Rheem asserts a “back-up person 

most likely sorted and delivered the mail on May 8, 2015.” (Id.; see also id.) 

III. ANALYSIS

Rule 60(b)(1) of the Federal Rule of Civil Procedure provides 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 “mistake, inadvertence, surprise, or excusable neglect[.]” Fed. R. Civ. P. 

60(b)(1). The D.C. Circuit has noted the trial judge, “who is in the best position to discern and 

assess all the facts, is vested with a large measure of discretion in deciding whether to grant a 

Rule 60(b) motion, and the [judge’s] grant or denial of relief under Rule 60(b), unless rooted in 

an error of law, may be reversed only for abuse of discretion.” Computer Professionals for Soc. 

Responsibility v. U.S. Secret Serv., 72 F.3d 897, 903 (D.C. Cir. 1996), amended (Feb. 20, 1996). 

A. Citation and Notice

Deemed Final Order of the Commission 

Under the Act when the Secretary issues a citation, he is also required to “notify the 

employer by certified mail of the penalty, if any, proposed to be assessed.” 29 U.S.C. § 659(a)

(emphasis added). If the employer fails to “notify the Secretary that [it] intends to contest” the 

citation or notice within “fifteen working days from the receipt of the notice,” the citation and 

notice is “deemed a final order of the Commission.” Id. Rheem does not dispute that the citation 

and notice was signed for by its security guard on May, 8, 2015, and that it was not contested by 

June 1, 2015. Thus, the Secretary argues, and the court agrees, his citation and notice was 

deemed a final order of the Commission by operation of law on June 2, 2015. See 29 U.S.C. § 

659(a). (Resp. p. 2.) 

Rheem argues it has been unsuccessful in its attempts to locate the citation and notice and 

“no management officials or mailroom personnel recall seeing or delivering an envelope from 

OSHA in May or June.” (Mot. p. 5; see also Ex. C-9.) “The question in this case is not whether 

[Rheem] had actual notice of the [citation and notice], but whether such reasonable steps had 

been taken to give [it] notice[.]” Atherton v. Atherton, 181 U.S. 155, 172 (1901). The court 

concludes such reasonable steps were taken by the Secretary. While it would have been better if 

Rheem’s management had actually received the citation and notice, as indicated infra, the failure 
5 

of its management “to receive it was due partly to its own dereliction.” S & G Inv. Inc. v. Home 

Fed. Sav. & Loan Ass'n, 505 F.2d 370, 375 (D.C. Cir. 1974).2

Rheem also argues “despite acknowledging delivery,” the mail is not “received” by the 

security guard “but remains in the possession of the U.S. Postal Service delivery person at this 

point.” (Mot. p. 3; see also Burnette Decl., ¶ 3.) To state it in terms of the Act, Rheem 

essentially argues that even though it signed for the certified mail, it was not in “receipt of the 

notice issued by the Secretary.” 29 U.S.C. § 659(a). However, under the Act, since the date of 

the employer’s “receipt of the notice” triggers the “fifteen working days” time limit to initiate a 

contest, the Act’s additional requirement that the Secretary “notify the employer by certified 

mail” effectuates one of Congress’ declared purposes of the Act, of “providing an effective 

enforcement program.” 29 U.S.C. § 651(b)(10). Rheem’s position is contrary to this legislative 

purpose and not only leads to an absurd result, it is itself absurd, particularly since it chose to 

implement such a convoluted mail-handling process. 

The “absurd results doctrine” embodies “the long-standing rule that a statute should not 

be construed to produce an absurd result.” Ctr. for Biological Diversity v. E.P.A., 722 F.3d 401, 

411 (D.C. Cir. 2013) (citing Mova Pharmaceutical Corp. v. Shalala, 140 F.3d 1060, 1068 (D.C. 

Cir. 1998)); cf. Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575 (1982) (“interpretations 

of a statute which would produce absurd results are to be avoided if alternative interpretations 

consistent with the legislative purpose are available.”). Under Rheem’s interpretation, there 

would never be a date certain of the employer’s “receipt of the notice” and the Secretary would 

therefore never know with certainty when the “citation and the assessment, as proposed, shall be 

deemed a final order of the Commission.” 

 2 Since the alleged violation occurred in Montgomery, Alabama, and Rheem’s principal office is in Atlanta, 

Georgia, both in the United States Court of Appeals for the Eleventh Circuit, either party may appeal the final order 

in this case to the Eleventh Circuit, and in addition, Rheem may also appeal to the United States Court of Appeals 

for the District of Columbia Circuit. See 28 U.S.C. § 41, 29 U.S.C. § 660(a) & (b). The Commission has held “[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). As recently as 2011, the Eleventh Circuit cited 

Brennan v. Occupational Safety & Health Review Comm'n (“Otinger”), 502 F.2d 30, 33 (5th Cir. 1974), which held 

the Commission does not have jurisdiction to reconsider its final orders under Rule 60(b). Since the Eleventh 

Circuit has adopted the case law of the former Fifth Circuit handed down as of September 30, 1981, as its 

governing body of precedent, Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), and Otinger is still 

binding precedent in the Eleventh Circuit, it is not likely Rheem would take an appeal to that circuit court. 
6 

Further, upon “receipt” of any citation under the Act, the Secretary’s regulations require 

the employer to “immediately post” the citation “at or near each place an alleged violation 

referred to in the citation occurred.” 29 C.F.R. §1903.16(a). The Secretary’s regulations also 

require each citation to “remain posted until the violation has been abated, or for 3 working days, 

whichever is later.” §1903.16(b). Further, any employer that fails “to comply with the provisions 

of paragraphs (a) and (b) of this section” is subject to a “citation and penalty in accordance with 

the provisions of section 17 of the Act.” §1903.16(d). Again, without a date certain of the 

employer’s “receipt of the notice,” the Secretary would not know with certainty whether the 

employer has complied with his posting requirements. Clearly, the Secretary could not operate 

“an effective enforcement program” under such an absurd interpretation. 

However, the court concludes there is an alternative interpretation consistent with the 

legislative purpose of “providing an effective enforcement program” that avoids Rheem’s 

argument and absurd result. Since the Act requires the Secretary to “notify the employer by 

certified mail” of his notice and also limits initiating contests to within “fifteen working days 

from the receipt of the notice,” the court interprets the phrase within “fifteen working days from 

the receipt of the notice” to mean within “fifteen working days from the” day the company signs 

for the certified mail, as evidenced by the certified mail return receipt. See e.g., NYNEX, 1996 

WL 109585 (No. 95-1671, 1996) (ALJ) (“A signed receipt for certified mail is prima facie 

evidence of delivery of the citation”), aff'd, 18 BNA OSHC 1967 (No. 95-1671, 1999). There is 

no dispute here that the citation and notice was signed for by Rheem’s security guard on May, 8, 

2015. Since Rheem did not notify the Secretary within fifteen working days from the day it 

signed for the certified mail, the court concludes the Secretary’s citation and notice was “deemed 

a final order of the Commission” by operation of law on June 2, 2015. 29 U.S.C. § 659(a). 

B. Meritorious Claim or Defense 

The Commission and the D.C. Circuit have recognized that motions for relief under Rule 60(b) 

are not to be granted unless the movant can demonstrate a meritorious claim or defense. Northwest 

Conduit Corp., 18 BNA OSHC 1948, 1953 (No. 97-851, 1999); Lepkowski v. U.S. Dep't of Treasury, 804 

F.2d 1310, 1314 (D.C. Cir. 1986). See also FG Hemisphere Associates, LLC v. Democratic Republic of 

Congo, 447 F.3d 835, 842 (D.C. Cir. 2006). That element has been “satisfied with minimal allegations 

that the employer could prove a defense if given the opportunity.” Jackson Assoc. of Nassau, 16 BNA 

OSHC 1261, 12675 (No. 91-438, 1993). “The key consideration is ‘to determine whether there is some 
7 

possibility that the outcome of the suit after a full trial will be contrary to the result achieved by the 

default.”’ Northwest Conduit, 18 BNA OSHC at 1953 (citation omitted). Stated another way, to clear the 

“meritorious defense” hurdle, Rheem need only provide “reason to believe that vacating the judgment 

will not be an empty exercise or a futile gesture.” Marino v. Drug Enforcement Admin., 685 F.3d 1076, 

1080 (D.C. Cir. 2012) (citation omitted). This is not a high bar. Id.

A meritorious defense is not measured by “[l]ikelihood of success,” but by whether it “contain[s] 

‘even a hint of a suggestion’ which, proven at trial, would constitute a complete defense.” Keegel v. Key 

West & Caribbean Trading Co., 627 F.2d 372, 374 (D.C. Cir. 1980) (citation omitted). Rheem asserts in its 

motion it will allege employee misconduct, as well as other defenses to OSHA's citation and notice, 

“including a prior and longstanding interpretation by OSHA that indicates that guarding was not 

necessary.” (Mot. p. 8.) Rheem’s motion has the requisite “minimal allegations” that it “could prove a 

defense if given the opportunity” and provides at least “a hint of a suggestion” which, if proven at trial, 

“would constitute a complete defense.” Therefore, Rheem has cleared the “meritorious defense” 

hurdle. 

C. Merits of Rheem’s Rule 60(b) Request for Relief

On the merits, Rheem asserts it is entitled to Rule 60(b)(1) relief because the citation and notice

“was either mistakenly not dropped off in the designated mailroom” by the U.S. mail carrier after its 

security guard signed for its delivery “or it was inadvertently and unforeseeable lost or misplaced in the 

mailroom.” (Mot. pp. 1-2; Burnette Decl., ¶ 8.) Thus, Rheem argues “an inadvertently lost or misplaced 

envelope by Rheem mail personnel” or “a failure” of the carrier “to properly delivery the certified mail 

to the mailroom after the signature” warrants a finding of “excusable neglect” or “mistake.” (Id. p. 8.) 

On the other hand, the Secretary argues Rheem “has not established excusable neglect because the 

reason for the late filing was entirely within its control, and [ ] has only speculated regarding a possible 

mail delivery failure, after the Citation package was successfully delivered to its address of record.” 

(Resp. p. 5.) The court agrees with the Secretary. 
8 

Rheem does not support its motion with evidence the court credits and its assertions are 

therefore not accepted as fact. Rheem relies on bald assertions in hearsay statements,3 coupled with 

mere speculation and hypothesis, concerning what may have happened to the citation and notice after

Rheem’s security guard signed for it, which the court does not find sufficiently reliable to credit. Rheem 

offers the declaration of Greg Burnette, the company’s Human Resource Manager, which clearly is not 

based on Burnette’s first-hand knowledge of the relevant events. (Mot. Ex. C.) Burnette speculates that 

the citation and notice did not remain in the possession of its security guard after the guard signed for it

but rather, remained in the possession of the U.S. mail carrier. 

Thus, the company hypothesizes that the citation and notice may have been “mistakenly not 

dropped off in the designated mailroom” by the mail carrier. (Mot. pp. 3, 5; Burnette Decl., ¶ 3, 8.) 

Rather than speculating and hypothesizing, Rheem should have supported its assertions with affidavits 

or declarations from its security guard and the U.S. mail carrier based upon their first-hand knowledge. 

See e.g., Grant v. U.S. Air Force, 197 F.3d 539, 541 (D.C. Cir. 1999) (where the mail carrier who 

attempted delivery testified regarding those attempts). Rheem’s motion also relies on a hearsay 

statement in Burnette’s Declaration purportedly made by the person “usually tasked” with sorting mail 

“that she had taken a half-day of vacation.” (Mot. p. 4; Burnette Decl., ¶ 4.) Again, rather than 

supporting this assertion with this hearsay statement, Rheem should have supported its motion with an 

affidavit or declaration from the actual person “usually tasked” with sorting mail that purportedly made 

that statement. Likewise, rather than speculating that the “back-up person most likely sorted and 

 3 Deciding whether hearsay testimony constitutes substantial evidence in an agency decision requires 

consideration of several factors outlined in Richardson v. Perales, 402 U.S. 389 (1971). These factors are as follows: 

(1) the independence or possible bias of the declarant, (2) the type of hearsay material submitted, (3) whether the 

statements are signed and sworn to as opposed to anonymous, oral, or unsworn, (4) whether the statements are 

contradicted by direct testimony, (5) whether the declarant is available to testify and, if so, (6) whether the party 

objecting to the hearsay statements subpoenas the declarant, or whether the declarant is unavailable and no 

other evidence is available, (7) the credibility of the declarant if a witness, or of the witness testifying to the 

hearsay, and finally, (8) whether the hearsay is corroborated. Id. at 402-07. See also Myers v. Secretary of HHS, 893 

F.2d 840, 845 (6th Cir.1990) (holding that the multi-factor test applies to agency decisions). Here, (1) the 

declarants were Rheem’s mailroom employees responsible for the lost or misplaced citation, clearly not 

independent or unbiased, (2) the hearsay statements were not relevant since they describe a general process for 

handling certified mail by the person “usually tasked” with sorting mail and were not statements made by the 

“back-up person” Rheem asserts “most likely sorted and delivered the mail on May 8, 2015,” (3) the purported 

declarants were not named and the statements were apparently orally made and unsworn, (7) the hearsay was 

corroborated. Although the court is unable to weight the remaining factors based upon the record evidence, 

considering factors (1)-(3), and (7), the court does not find the hearsay sufficiently reliable to credit.
9 

delivered the mail on May 8, 2015,” (id.), Rheem should have supported its motion with an affidavit or 

declaration from that “back-up” employee. Moreover, even if Rheem’s assertions are accepted as true, 

they do not establish any ground for relief under Rule 60(b)(1).

In evaluating motions for Rule 60(b)(1) relief, both the Commission and the D.C. Circuit 

have adopted the Supreme Court's “excusable neglect” analysis as set forth in Pioneer Ins. Servs. 

Co. v. Brunswick Assocs. Ltd. Pship., 507 U.S. 380 (1993). See, e.g., Northwest Conduit, 18 

BNA OSHC at 1952 and In re Vitamins Antitrust Class Actions, 327 F.3d 1207, 1209 (D.C. Cir. 

2003) (both applying the Pioneer analysis to a Rule 60(b) motions). Relevant circumstances for 

the court to consider under Pioneer’s equitable analysis include: “(1) the danger of prejudice to 

the opposing party, (2) the length of delay and its potential impact on the proceeding, (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.” Northwest Conduit, 18 BNA 

OSHC at 1950, quoting Pioneer, 507 U.S. at 395. In determining whether a party’s neglect of a 

deadline is “excusable,” the Supreme Court noted in Pioneer that Congress provided no 

guideposts for determining what sorts of neglect will be considered “excusable.” Pioneer, 507 

U.S. at 395. 

Thus the Pioneer Court concluded that “the determination is at bottom an equitable one, 

taking account of all relevant circumstances surrounding the party's omission.” Id. However, for 

purposes of Rule 60(b), “‘excusable neglect’ is understood to encompass situations in which the 

failure to comply with a filing deadline is attributable to negligence.” Pioneer, 507 U.S. at 394. 

Thus, “[b]ecause of the language and structure of Rule 60(b), a party's failure to file on time for 

reasons beyond his or her control is not considered to constitute ‘neglect.’” Id. (emphasis added). 

Here, however, the court finds this case does involve “neglect” since the delayed filing of the 

notice of contest was within the control of Rheem and could have been avoided if Rheem had 

exercised reasonable diligence by not implementing such a convoluted mail-handling process. 

Under the first factor, the D.C. Circuit has held prejudice “appears typically and properly to 

contemplate costs that reconsideration of the final judgment would inflict on the non-moving party 

independent of the chance of reversal.” FG Hemisphere, 447 F.3d at 840. The Commission has also 

recognized it is usually a given that there is “a lack of prejudice to the Secretary[.]” CalHar Constr., Inc., 

18 BNA OSHC 2151, 2157 n. 5 (No. 98-367, 2000). The Secretary has also not asserted Rule 60(b)(1) 
10

relief should be denied due to costs “independent of the chance of reversal.” Therefore, the court

concludes the first factor does not weigh against granting Rule 60(b)(1) relief. 

Under the second factor, the Secretary has not asserted Rule 60(b)(1) relief should be denied 

due to the length of delay and its potential impact on these proceedings. The Commission has also held 

there is usually a lack of prejudice “to the interests of efficient judicial administration.” CalHar Constr., 

18 BNA OSHC at 2157 n. 5. The D.C. Circuit has held where “a neutral rule of general application 

require[s] a response” to be filed within a certain period of time, “in such situations, violation of the rule 

itself indicates prejudice to an already overburdened system of litigation.” Lepkowski, 804 F.2d at 1313. 

However, since that case did not address a statutory provision, but rather, Rule 1–9(d) of the Local Rules 

of the District Court, which require that an opposition to a motion to dismiss be filed within ten days, 

that case is factually distinguishable and is not controlling. Therefore, the court finds there is no 

prejudice “to the interests of efficient judicial administration” and therefore concludes the second factor 

also does not weigh against granting Rule 60(b)(1) relief. 

As to the fourth factor, there is no suggestion that Rheem acted in other than good faith and the 

record shows that Rheem and its attorney showed some diligence in pursuing their remedies. Rheem 

contacted its counsel “when several weeks went by after the closing conference and they had yet to 

receive the [citation and notice]” and Rheem’s counsel “immediately reached out to OSHA's Mobile Area 

Office on June 22, 2015, to determine if and when [it] had been delivered.” (Mot. p. 9.) Upon learning 

that it had been delivered, “Rheem immediately filed a late” notice of contest “in the attempt to 

preserve its rights.” (Id.) The Secretary did not dispute these assertions. The court concludes the fourth 

factor also does not weigh against granting Rule 60(b)(1) relief. 

As to the third factor, the reason for the delay, the Commission has held it is “a key factor” in 

determining whether a late filing was due to excusable neglect, “including whether it was within the 

reasonable control of the movant.” CalHar Constr., 18 BNA OSHC at 2153, citing to Pioneer, 507 U.S. at 

395. In appropriate circumstances, the Commission has held this to be the dispositive factor. A.W. Ross, 

Inc., 19 BNA OSHC 1147, 1149 (No. 99-945, 2000). Here, the court concludes the reason for the delay 

was within Rheem’s reasonable control. The Commission has held that “[e]mployers must maintain 

orderly procedures for handling important documents.” Louisiana–Pacific Corp., 13 BNA OSHC 2020, 

2020 (No. 86–1266, 1989). Thus, 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); Craig Mechanical, 16 BNA OSHC at 1763. Clearly, given Rheem’s convoluted mail-
11

handling process, it did not “maintain orderly procedures for handling important documents” and did 

not exercise “due diligence.” 

Rheem relies on LeFrois Builder, Inc., 18 BNA OSHC 1978, 1981 (No. 98-1099, 1999), 

arguing the Commission has found excusable neglect and mistake when there was “a highly 

unusual, inadvertent error.” (Mot. p. 8.) Rheem’s reliance on LeFrois is misplaced since LeFrois

is factually distinguishable. In that case, as Rheem points out, the reason for the delay was “a 

highly unusual, inadvertent error” by the company employee who picked up the mail on the day 

in question. A secretary for Le Frois received and signed for the citation on May 15, 1998, and 

placed it in her car before returning to the office and subsequently discovered the certified mail 

under the front seat of her car on the July 4th weekend. The secretary gave the certified mail to 

the company president on Monday, July 6, and he promptly contacted OSHA and filed a late 

notice of contest on July 8. Further, the company previously had not experienced a problem with 

its mail pickup system during the eighteen years it had been in effect. 

Here however, unlike in LeFrois, Rheem’s untimely filing did not result from an 

employee picking up mail and later finding it in her car since Rheem admits the citation “has yet 

to be found within the facility.” Although Rheem asserts the “person usually tasked with sorting 

mail indicates that, when she is doing the task, she personally delivers any FedEx or U.P.S. 

envelopes or certified mail to the actual department to whom it is addressed,” on the day in 

question, Rheem also admits “the person who performed this task most frequently stated that she 

had taken a half-day of vacation” and therefore a “back-up person most likely sorted and 

delivered the mail on May 8, 2015.” However, Rheem offered no evidence that the “back-up 

person” also “personally delivers any FedEx or U.P.S. envelopes or certified mail to the actual 

department to whom it is addressed.” Therefore, the court has no basis for determining whether 

the delay in filing was “excusable,” and Rule 60(b) requires a showing of excusable neglect, not 

just simple negligence. Further, unlike in LeFrois, where the company had not experienced a 

problem with its mail pickup system during the eighteen years it had been in effect, Rheem’s 

new convoluted mail-handling process was in place less than four months before the citation and 

notice was delivered.4

 Therefore, LeFrois is not controlling.

 4 Further, the Second Circuit reversed the LeFrois Commission, concluding “the Commission may not exercise 

jurisdiction based on Rule 60(b)(1).” Chao v. Russell P. LeFrois Builder, Inc., 291 F.3d 219, 229 (2d Cir. 2002). Thus, 
12

Further, even though Rheem asserts a “back-up person most likely sorted and delivered the mail 

on May 8, 2015,” “[a]n employer's failure to have a procedure in place to address such occurrences does 

not provide a basis for relieving an employer from the effects of the final order,” E. K. Construction, 15 

BNA OSHC at 1167, and “[h]andling important business matters in this manner cannot be considered 

excusable neglect such that relief under Rule 60(b) would be appropriate.” A.W. Ross, 19 BNA OSHC at 

1149. In J.F. Shea Co., 15 BNA OSHC 1092, 1093 (No. 89-0976, 1991), relief was also denied by the 

Commission since the company’s failure to demonstrate “orderly procedure for handling important 

documents” indicates that “this is a case of simple negligence, which is not an adequate excuse for relief 

under Rule 60(b).” 

Here, prior to January 17, 2015, Rheem had orderly procedures for handling important 

documents since its process for mail delivery was handled “by an assigned Rheem mailroom attendant. 

The court finds Rheem no longer had “orderly procedures for handling important documents” when it 

eliminated the assigned Rheem mailroom attendant position and began using its convoluted mailhandling process. However, such “staff changes” “do not support a conclusion of justifiable mistake or 

inadvertence, or excusable neglect.” Rebco Steel Corp., 8 BNA OSHC 1235, 1238 (Nos. 77-2040 & 77-

2947, 1980). 

Rheem argues this is not a case where it “did not properly route the mail to the 

appropriate person upon delivery,” (Mot. p. 10), but as indicated supra, this is exactly such a 

case. Clearly, Rheem did not properly route the citation or it would know where it is. Relief was 

denied by the Commission in Stroudsburg Dyeing & Finishing Co., 13 BNA OSHC 2058 (No. 

88-1830, 1989), where the failure of the employee “who received the mailed citation to bring it 

to the attention of the proper officer of the company does not constitute ‘excusable neglect’ or 

‘any other reason justifying relief.’” Likewise, in Louisiana–Pacific Corp., supra, and in Rebco 

Steel, 8 BNA OSHC at 1238, the Commission held relief under Rule 60(b) was not justified 

where the employer failed to properly supervise the employee who mishandled the OSHA 

 

the Commission has not relied on its LeFrois analysis for more than fifteen years and the only case where it 

referenced LeFrois after it was reversed by the Second Circuit was in HRH Constr. Corp., 19 BNA OSHC 2042 (No. 

99-1614, 2002). However, in that case, the Commission was composed of only two Commissioners and although 

they affirmed “the judge insofar as the Secretary's motion to dismiss HRH's notice of contest [was] granted,” they 

reached this result for different reasons. Commissioner Rogers agreed with the result but in her concurring 

opinion indicated she would have affirmed without considering the merits of the arguments raised “based on 

applying the law of the [Second] Circuit” in LeFrois. Id. at 19 BNA OSHC 2044.
13

citation.5 In Villa Marina Yacht Harbor, Inc., 19 BNA OSHC 2185, 2187 (No. 01-0830, 2003), 

consistent with the Louisiana–Pacific precedent, the Commission also affirmed the judge’s 

conclusion that the company “did not have orderly procedures in place for the handling of 

important documents” based upon the judge’s finding that the company's messenger 

“mishandled” the mail. 

In, NYNEX, a company clerical employee signed for the citation, which was recorded in 

the company’s log the same day. The next known action on the certified mail was when 

OSHA’s compliance officer telephoned NYNEX's OSHA representative concerning the citation, 

who was unaware of the citation. As the Commission found in affirming the judge’s denial of 

Rule 60(b)(1) relief, NYNEX failed to explain “what happened to the citation after it was 

received and logged in at the New York City office, or what procedures the employer had at that 

office to ensure a timely response to important documents.” NYNEX, 18 BNA OSHC 1970. 

Again the Commission reiterated it expects employers to “maintain orderly procedures for 

handling important documents.” Id. (citing Louisiana-Pacific, 13 BNA OSHC at 2020). Here, as 

in NYNEX, Rheem has not explained what happened to the citation and notice after it was 

received by its security guard. However, like in NYNEX, the company is “responsible for 

redirecting the citation.” NYNEX, 18 BNA OSHC at 1947. 

Rheem also argues the failure to grant it relief under Rule 60(b) would be prejudicial since the 

final order “could be used by OSHA in future investigations as a means of establishing that Rheem 

committed a ‘Repeat’ or ‘Willful’ violation” under the Act. (Mot. p. 10.) However, the equitable analysis 

announced in Pioneer does not take into account the danger of prejudice to the party seeking Rule 60(b) 

relief, but rather, takes into account “the danger of prejudice to the opposing party.” Pioneer, 507 U.S. 

at 395. Although this analysis takes into account “all relevant circumstances,” id., and the factors listed 

by Pioneer are of course not exclusive, id. at 395–96, the court does not find prejudice to Rheem a 

“relevant circumstance” in this case since any such prejudice could have been avoided if Rheem had 

simply exercised reasonable diligence. Further, Rheem’s position overlooks or ignores a critical element 

in this case, and that is the undisputed fact that Rheem had sole control over its convoluted mailhandling procedures at its facility both before and after its security guard signed for the citation and 

 5 Although both parties cited to CSX Transportation, 19 BNA OSHC 1916 (No. 01-0608, 2002) (ALJ), in support of 

their positions, (Resp. pp. 4, 5, 6; Reply, p. 1), unreviewed decisions of an administrative law judge are not binding 

precedent. Leone Constr. Co., 3 BNA OSHC 1979 (No. 4090, 1976).
14

notice. Such control carries with it a duty to exercise reasonable diligence in handling important 

documents.

Based upon the record in this matter, the court finds, as the Commission did in 

Stroudsburg, the failure of Rheem’s employee to bring the citation and notice to the attention of 

the proper officer of the company does not constitute “excusable neglect” or “any other reason 

justifying relief.” As in Louisiana–Pacific and in Rebco Steel, relief is not justified under Rule 

60(b)(1) since Rheem failed to properly supervise the employee who mishandled the citation and 

notice. The Commission “has consistently denied relief to employers whose procedures for 

handling documents were to blame for untimely filings” of notice of contests. NYNEX, 18 BNA 

OSHC 1967 (No. 95-1671, 1999) (citing E. K. Constr. Co., 15 BNA OSHC 1165, 1166 (No. 90-

2460, 1991). The court concludes this is also such a case. Thus, the court finds the delayed 

filing of the notice of contest was within the reasonable control of Rheem and could have been 

avoided if Rheem had exercised reasonable diligence. Therefore, as in E. K. Construction and in 

J.F. Shea, the company has failed to demonstrate an “orderly procedure for handling important 

documents” and at best, has shown only carelessness or simple neglect, which is not an adequate 

excuse for relief under Rule 60(b)(1). Accordingly,
15

IV. ORDER

IT IS HEREBY ORDERED THAT Rheem’s motion for relief under Rule 60(b) is DENIED.

6

SO ORDERED THIS 20th day of November, 2015. 

/s/ 

 John B.Gatto, Judge

 6

 The court’s jurisdiction is limited to entertaining the Rule 60(b) motion and “when [a notice of contest] is 

untimely and there are no grounds for relief under Rule 60(b),” an untimely notice of contest “deprives the 

Commission of jurisdiction.” GT Tile Loading, 25 BNA OSHC 1470, 1472 n. 1 (No. 15-0190, 2015). With the denial of 

Rheem’s Rule 60(b) motion, the court is deprived of jurisdiction and the citation and notice, deemed a final order 

of the Commission by operation of law, is left undisturbed. Therefore, the court concludes it has no authority to 

“affirm” the citation and notice after denying Rule 60(b) relief, as is the practice of some Commission judges. See 

e.g., Polylite Roof Decks Inc., 2014 WL 7237789, at *6 (No. 13-1473, 2014); Alcides Avelar, 25 BNA OSHC 1013, 

1019 (No. 13-1757, 2014); G. Santos Masonry, Inc. d/b/a Roberto Santos, 24 BNA OSHC 2246, 2252 (No. 13-1886, 

2014); Robinson Masonry, 24 BNA OSHC 2206, 2210 (Docket Nos. 13-1956 & 13-1957, 2014).