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Commission reverses judge’s decision in late filing case

Says nothing supports finding of ‘gross carelessness’

Posted October 17, 2017

Picture this: On June 30, 2016, your company receives a two-item citation following an OSHA inspection of your worksite in Texas. Your receptionist gives the citation to your safety analyst before the start of the July 4th holiday weekend and she puts the citation on her desk. But when everyone returns to work on the following Tuesday, they find severe water damage – including “water dripping onto the equipment and paperwork” on the safety analyst’s desk.

In all of the hubbub surrounding cleaning up the damage, which included removing mold and repairing sheet rock, the citation was forgotten. But once the safety analyst was able to move back into her office, she discovered it among other papers that had been set aside during the confusion. The day after the citation was found, your company sent in your notice of contest (NOC) to OSHA. However, OSHA would not accept your NOC, saying it was filed six days past the filing deadline.

You know that under the OSH Act, a failure to notify the Labor Secretary of your intent to contest a citation and proposed penalty within 15 working days means the citation and penalty become a final order of the Occupational Safety and Health Review Commission (OSHRC).

OSHRC is an independent federal agency created to settle disputes over OSHA citations or penalties. The Commission operates in two tiers: its Administrative Law Judges (ALJs) hear cases and make decisions; and a panel of Commissioners review ALJ decisions at their discretion.

You filed a motion for relief with OSHRC, claiming your failure to file in a timely manner was excusable because of the water damage to your headquarters. In response, the Labor Secretary acknowledged receiving the motion and was not opposed to it.

However, on June 9, 2017, the ALJ assigned to the case denied your motion, saying your company did not demonstrate that the repairs interfered with your ability to timely file your NOC. The judge concluded that your company failed to “maintain orderly office procedures for handling important document.” This, the judge continued, demonstrates “gross carelessness.”

Fast forward to October 12, 2017. OSHRC issued a Decision and Remand Order disagreeing with the judge’s decision. OSHRC says, “There is nothing in the record to suggest that the citation was initially mishandled or failed to reach the appropriate employee.” In addition, OSHRC believes your company had procedures in place for handling and directing the citation for processing. The Commission agrees with you that these procedures were hampered by the unanticipated water damage to your workplace. “In short, nothing in the record supports the judge’s findings of ‘gross carelessness’” on your part.

OSHRC also said it was significant that the Labor Secretary did not oppose your motion for relief. Therefore, the Commission concluded that your untimely filing was excusable and reversed the judge’s decision. Your NOC has been reinstated and the case has been returned to the judge for further proceedings.

You still need to argue your case against the citations themselves, but at least now you’ll be heard.

Article based on: Secretary of Labor v. Evergreen Environmental Services; OSHRC No. 16-1295; October 12, 2017

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