                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-9-2004

George Harms Constr v. Secretary Labor
Precedential or Non-Precedential: Precedential

Docket No. 03-2215




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                       PRECEDENTIAL              Attorney for Petitioner

        UNITED STATES                     Ronald J. Gottlieb, Esquire (Argued)
       COURT OF APPEALS                   United States Department of Labor
     FOR THE THIRD CIRCUIT                Office of the Solicitor
                                          Suite S-4004
                                          200 Constitution Avenue, N.W.
             No. 03-2215                  Washington, D.C. 20210
                                                 Attorney for Respondent,
                                                 Secretary of Labor
        GEORGE HARMS
    CONSTRUCTION CO., INC.,
     a New Jersey Corporation,                  OPINION OF THE COURT
                        Petitioner

                  v.                      SCIRICA, Chief Judge.
                                                  At issue is whether Petitioner
       ELAINE L. CHAO,
                                          George Harms Construction Company is
    SECRETARY OF LABOR,
                                          entitled to relief under the excusable
       UNITED STATES
                                          neglect standard of Fed. R. Civ. P.
  DEPARTMENT OF LABOR and
                                          60(b)(1), after it failed to timely file a
   OCCUPATIONAL SAFETY &
                                          notice of contest to Occupational Safety
 HEALTH REVIEW COMMISSION,
                                          and Health Administration citations and a
                    Respondents
                                          notice of penalty delivered by certified
                                          mail. We will vacate the Occupational
                                          Safety and Health Review Commission’s
On Petition for Review of a Final Order
                                          final order and remand for a hearing on the
of the Occupational Safety and Health
                                          merits of the OSHA citations.
         Review Commission
        (OSHRC No. 02-0371)                                   I.
                                                 Congress enacted the Occupational
                                          Safety and Health Act to “assure so far as
      Argued February 12, 2004
                                          possible” safe working conditions for
                                          “every working man and woman in the
   Before: SCIRICA, Chief Judge,
                                          Nation.” 29 U.S.C. § 651(b). The
  ROTH and McKEE, Circuit Judges
                                          Secretary of Labor is charged with
                                          enforcement of the Act. But the Secretary
         (Filed: June 9, 2004)
                                          has delegated her enforcement duties to
                                          the Assistant Secretary for Occupational
John F. Neary, Esquire (Argued)
                                          Safety and Health, who heads OSHA.
101 Eisenhower Parkway, Suite 300
                                          Secretary’s Order 5-2002, 67 Fed. Reg.
Roseland, New Jersey 07068
65008 (Oct. 22, 2002). OSHA inspects                    infractions.1 On December 13, 2001,
workplaces for violations. It may issue a               O S H A sent citations to Ha rm s
citation for a violation, establish a date for          Construction’s post office address by
abatement, and propose a civil penalty. 29              certified mail, return receipt requested.2
U.S.C. §§ 658, 659. An employer can                     Carol Pelsang, the Harms Construction
contest the citation and proposed penalty               employee responsible for handling mail,
before the Occupational Safety and Health               signed for receipt of the citations at least
Review Commission. 29 U.S.C. § 661.                     by December 31, 2001.3
Under section 10(a) of the Act, an
                                                               Harms Construction did not file a
employer must file a notice of contest
                                                        notice of contest within 15 working days
within 15 working days of receipt of the
                                                        of receipt. On January 22, 2002, the
citation or the “the citation and the
                                                        citations became final orders of the
assessment, as proposed, shall be deemed
                                                        Commission by operation of section 10(a)
a final order of the Commission and not
subject to review by any court or agency.”
29 U.S.C. § 659(a).
                                                           1
                                                            In the citations, OSHA alleges Harms
          The Commission, an independent                Construction violated 29 C.F.R. §
adjudicatory body separate from the                     1926.350(h), by having a broken gauge on
Department of Labor, acts as a neutral                  an acetylene cylinder. It also alleges
arbiter in proceedings contesting OSHA                  Harms Construction violated 29 C.F.R. §
citations. Cuyahoga Valley Ry. Co. v.                   1926.501(b)(1), by not providing a
United Transp. Union, 474 U.S. 3, 7                     guardrail system, safety net system, or
( 1 9 9 5 ) ( p e r c u r i a m ) . A s s u min g       personal fall arrest system on a 10 foot
jurisdiction, an Administrative Law Judge               high railroad retaining wall.       Both
of the Commission conducts a hearing and                “infractions” were corrected during the
issues a report with his determination of               course of the OSHA inspections.
the proceeding. 29 U.S.C. § 661(j).
Within thirty days, the Commission may                     2
                                                            According to OSHA, when abatement
opt to review the ALJ’s report. Id. If no               is not an issue, as is the case here, it would
Commissioner directs review, the ALJ’s                  not include a letter addressed to any
report becomes the Commission’s final                   particular employee with a citation.
decision. Id. Judicial review may then be
                                                               3
sought. 29 U.S.C. § 660.                                      The received date stamped on the
                                                        return receipt card was partially obscured
                       II.                              by Pelsang’s signature, so the actual day in
      OSHA conducted an inspection of                   December on which the citations were
Harms Construction’s work site in Clifton,              received is unknown. They were at least
New Jersey from November 29, 2001 to                    received by the end of December 2001
December 11, 2001. OSHA found two                       because “December” and “2001” are
                                                        legible.

                                                    2
of the Act. 29 U.S.C. § 659(a). On                  required to sign for all certified mail not
February 28, 2002, more than a month                marked “restricted delivery,” place the
after Harms Construction’s notice of                mail in a mail handling box, and transport
contest was due, OSHA issued Harms                  the mail back to Harms Construction’s
Construction a delinquency notice. On               headquarters. Then, she would open,
March 8, 2002, Edward Nyland, Harms                 stamp, sort, and earmark the mail for
Construction’s President, telephoned                delivery. If a letter did not identify the
OSHA Assistant Area Director Steve                  intended recipient, she would determine
Kaplan, informing him he had no record of           from prior management instructions who
the citations but that he wanted an                 should get the mail. Pelsang had been
opportunity to contest and possibly settle          instructed to deliver OSHA-related mail to
the matter. Kaplan responded that the               Harms Construction’s president.          If
return receipt had been signed by an                uncertain it was OSHA-related, she was
employee at Harms Construction. Kaplan              instructed to ask any corporate officer for
recommended that Harms Construction                 assistance.
petition OSHA for settlement. That same
                                                            The matter was docketed before the
day, Nyland mailed a letter to the
                                                    Commission on March 14, 2002. On April
Commission requesting that Harms
                                                    1, 2002, the Secretary filed a motion for a
Construction be permitted to file a late
                                                    time extension to file her complaint in
notice of contest due to “clerical error” and
                                                    order to allow OSHA personnel to pursue
that they try to settle the matter.
                                                    settlement with Harms Construction.
        Nyland undertook an investigation           Three weeks later, on April 23, 2002,
to determine what transpired with the               instead of filing a complaint, the Secretary
citations. He interviewed Pelsang, but she          filed a motion to dismiss the proffered
told him she had no recollection of the             notice of contest as untimely. Harms
citations because of the passage of time            Construction cross-moved for excusal of
and the volume of mail that she routinely           its tardy notice of contest. It alleged,
handles. Nyland thoroughly searched his             among other things, that service was
office and inquired whether any of Harms            improper, that it was entitled to relief
Construction’s corporate officers or other          under Fed. R. Civ. P. 60(b)(1) or equitable
employees had seen or were aware of the             tolling, and that the Secretary had waived
citations. But Nyland was unable to                 the right to challenge the timeliness of
uncover any information that a Harms                Harms Construction’s notice of contest.
Construction employee knew anything                 On October 9, 2002, an Administrative
about the citations.                                Law Judge conducted hearings in
                                                    connection with the Secretary’s dismissal
      Harms Construction’s mailing
                                                    motion. At the hearing, OSHA Assistant
procedure, according to Nyland, was for
                                                    Area Director Kaplan and Harms
Pelsang to pick up the mail at the
                                                    Construction President Nyland testified.
company’s post office box. She was

                                                3
Harms Construction did not call Pelsang to         standard when a notice of contest is
testify.                                           untimely filed.4
        On February 3, 2003, the ALJ filed                             III.
his decision and order granting the
                                                   A. The Commission’s Authority to
Secretary’s dismissal motion. See Sec’y of
                                                   Consider Relief under Fed. R. Civ. P.
Labor v. George Harms Constr. Co., No.
                                                   60(b)(1).
02-0371, 2003 OSAHRC LEXIS 19
(OSAHRC Feb. 3, 2003).              Without                Under section 10(a), if an employer
Pelsang’s testimony, the ALJ held that             fails to timely contest a citation within 15
Harms Construction could not demonstrate           working days, “the citation and the
excusable neglect. Id. at *5-6. He also            assessment, as proposed, shall be deemed
determined that service was proper, that           a final order of the Commission and not
the Secretary’s seeking of an extension to         subject to review by any court or agency.”
file her complaint to explore settlement did       29 U.S.C. § 659(a). But section 12(g) of
not constitute a waiver of her right to seek       the Act provides that the “Commission is
dismissal, and that Fed. R. Civ. P. 60(b)(6)       authorized to make such rules as are
should not apply. Id. at *7-10. Harms              necessary for the orderly transaction of its
Construction’s petition for discretionary          proceedings. Unless the Commission has
review to the Commission, dated February           adopted a different rule, its proceedings
18, 2003, was not granted, and the ALJ’s           shall be in accordance with the Federal
decision became the final order of the             Rules of Civil Procedure.” 29 U.S.C. §
Commission.                                        661(g). Fed. R. Civ. P. 60(b)(1) provides
                                                   that “[o]n motion and upon such terms as
        Harms Construction appeals to
                                                   are just, the court may relieve a party or a
vacate the Commission’s order and
                                                   party’s legal representative from a final
remand for a hearing on the merits of the
                                                   judgment, order, or proceeding for the
underlying citations. Harms Construction
argues that it is entitled to the relief of
“excusable neglect” under Fed. R. Civ. P.                4
                                                           The Commission had jurisdiction
60(b)(1), that service was improper, that
                                                   under 29 U.S.C. § 659. We have appellate
the Secretary waived its challenge to the
                                                   jurisdiction under 29 U.S.C. § 660.
untimely notice of contest, that equitable
                                                           The Commission’s factual findings
tolling is warranted, and that relief should
                                                   must be affirmed if supported by
be granted under Fed. R. Civ. P. 60(b)(6).
                                                   substantial evidence on the record as a
Not only does the Secretary dispute those
                                                   whole. Reich v. D.M. Sabia Co., 90 F.3d
claims, she also contends that section 10(a)
                                                   854, 856 (3d Cir. 1996). Its adjudications
of the Act, 29 U.S.C. § 659(a), precludes
                                                   are to be affirmed unless they are arbitrary,
the Commission from considering the Fed.
                                                   capricious, an abuse of discretion, or
R. Civ. P. 60(b)(1) “excusable neglect”
                                                   contrary to law. Id. (citing 5 U.S.C. §
                                                   706(2)(A)).

                                               4
f o ll o w i n g r e a s o n s : ( 1 )    m i s ta k e ,       desired, no circumstances would ever
inadvertence, surprise, or               excusable             permit a late notice of contest. Id. at 194.
neglect . . . .” Id.                                           We did “not believe Congress intended
                                                               such a harsh result.” Id. For those
        Harms Construction contends the
                                                               reasons, we held the Commission had
Commission should have found it was
                                                               jurisdiction to entertain a late notice of
entitled to relief under the “excusable
                                                               contest under Fed. R. Civ. P. 60(b). Id. at
neglect” standard.         The Secretary
                                                               195.
maintains that under section 10(a),
citations that are not timely contested are                            The Secretary urges us to reevaluate
“not subject to review by any court or                         and overrule Hass, claiming that
agency,” which precludes the Commission                        intervening legal developments have
from applying Fed. R. Civ. P. 60(b)(1).                        weakened             its “‘conceptual
                                                               underpinnings.’” United States v. Adams,
        The Secretary acknowledges that
                                                               252 F.3d 276, 286 (3d Cir. 2001) (quoting
her contention conflicts with J.I. Hass Co.
                                                               Patterson v. McLean Credit Union, 491
v. OSHRC, 648 F.2d 190 (3d Cir. 1981), in
                                                               U.S. 164, 173 (1989)). The Secretary
which we set aside a Commission order
                                                               urges judicial deference to the reasonable
dismissing a late notice of contest and
                                                               interpretations of the federal agency
directed the Commission to consider
                                                               charged with implementing an ambiguous
whether the employer was entitled to relief
                                                               provision of a statute, in this case the
under Fed. R. Civ. P. 60(b). Id. at 195.
                                                               Secretary of Labor. See Chevron U.S.A.,
After examining Fed. R. Civ. P. 60(b)’s
                                                               Inc. v. Natural Res. Def. Council, Inc., 467
general applicability to Commission
                                                               U.S. 837, 842-43 (1984). Since Hass was
proceedings, we held Rule 60(b)
                                                               decided, the Secretary notes, the Supreme
authorizes the Commission to reconsider
                                                               Court has held that the Secretary, as
its final orders. Id. at 192-94. Although
                                                               opposed to the Commission, is charged
the Secretary contended that “since the
                                                               w i t h o v e r a l l r e s p o n s ib i l it y f o r
notice of contest was not timely filed, the
                                                               administering the Act, and when their
Commission never had jurisdiction in the
                                                               interpretations diverge, deference is due to
first place,” we held the Commission must
                                                               the Secretary’s reasonable interpretation.
have had jurisdiction at some point or “the
                                                               Martin v. OSHRC (CF&I Steel Corp.), 499
citations would be final orders of a
                                                               U.S. 144, 156-58 (1991). The ambiguity
Commission which never had jurisdiction,
                                                               cited by the Secretary is the conflict
and thus would have no effect.” Id. at 193.
                                                               between section 10(a) and section 12(g) of
       Reconciling the apparent conflict                       the Act.
between section 10(a) and section 12(g) to
                                                                      We recognize that we may
reach the result Congress most likely
                                                               reevaluate a precedent in light of
intended, we reasoned that if section 10(a)
                                                               intervening authority even without en banc
were interpreted the way the Secretary
                                                               consideration. See United States v. Adams,

                                                           5
252 F.3d at 286 (“[A]lthough a panel of                This is not a situation in which we owe
this court is bound by, and lacks authority            deference to “the fruits of notice-and-
to overrule, a published decision of a prior           c o m m e n t r u l e m a k i n g o r f o rm a l
panel, a panel may reevaluate a precedent              adjudication.” Chao v. Russell P. Le Frois
in light of intervening authority.”) (internal         Builder, Inc., 291 F.3d 219, 227 (2d Cir.
quotations omitted). At issue is whether               2002). An informal interpretation that
intervening authority warrants reevaluation            “lack[s] the force of law” does not warrant
of the matters resolved in Hass or even                full Chevron deference. See Christensen
reconsideration by en banc review.                     v. Harris County, 529 U.S. 576, 587
                                                       (2000). Because Chevron deference need
          Despite the Secretary’s assertion, its
                                                       not be accorded to the Secretary’s
interpretation of the Act is not entitled to
                                                       interpretation that section 10(a) precludes
Chevron def eren ce.            An agency
                                                       review by the Commission of an untimely
interpretation “qualifies for Chevron
                                                       notice of contest, the conceptual
deference when it appears that Congress
                                                       underpinnings of Hass have not been
delegated authority to the agency generally
                                                       undermined.
to make rules carrying the force of law,
and that the agency interpretation claiming                   Moreover, Chevron deference only
deference was promulgated in the exercise              applies to reasonable interpretations by the
of that authority.” United States v. Mead              Secretary. See M artin, 499 U.S. at 158
Corp., 533 U.S. 218, 226-27 (2001).                    (“[R]eviewing court should defer to the
Otherwise, an agency’s interpretation may              Secretary only if the Secretary’s
merit the more limited deference                       interpretation is reasonable.”) (emphasis
recognized in Skidmore v. Swift & Co., 323             added). Although we made no explicit
U.S. 134 (1944). See Mead, 533 U.S. at                 comment in Hass, it is at least arguable
234-35 (recognizing that “reasonable                   that we implicitly found the Secretary’s
agency interpretations carry at least some             Fed. R. Civ. P. 60(b)(1) position
added persuasive force where Chevron is                unreasonable.      See 648 F.2d at 194
inapplicable”) (internal quotations                    (disagreeing with the Secre tar y’s
omitted); see also Madison v. Res. for                 interpretation of section 10(a) because we
Human Dev., Inc., 233 F.3d 175, 186 (3d                did not believe Congress intended the
C i r . 2 0 00) (“[ I]n f o r m a l a g e n cy         “harsh result” that once an employee
interpretations are not binding” but are               signed for a citation, “no circumstances
entitled to respect under Skidmore                     would permit a late notice of contest”).
deference to the extent they are                       And an interpretation that is arguably
p e r s u a sive.).     The Se cr eta ry’ s            unreasonable is not sufficiently persuasive
interpretation of section 10(a) was not                to warrant Skidmore deference.
developed in the course of a regulatory
                                                              On appeal, the Secretary advances
action. Rather, its interpretation represents
                                                       an alternative interpretation from that
a position taken in the course of litigation.
                                                       which it put forward in Hass—that section

                                                   6
10(a) acts as a statute of limitations that       neglect or neither, but not one or the other.
may be subject to equitable tolling “where        Accordingly, the Secretary’s alternate
the claimant has actively pursued his             interpretation does not compel overruling
judicial remedies by filing a defective           Hass. Moreover, equitable tolling requires
pleading during the statutory period, . . .       deceit or some other extraordinary grounds
has been induced or tricked by his                for relief and is not equivalent to the Fed.
adversary’s misconduct into allowing the          R. Civ. P. 60(b)(1) excusable neglect
filing deadline to pass,” Irwin v. Dep’t of       standard.
Veterans Affairs, 498 U.S. 89, 96 (1990)
                                                          We recognize that Hass is in
(footnote om itted), or “in some
                                                  conflict with a recent decision of the Court
extraordinary way has been prevented
                                                  of Appeals for the Second Circuit, Chao v.
from asserting his or her rights.” Lake v.
                                                  Russell P. Le Frois Builder, Inc., 291 F.3d
Arnold, 232 F.3d 360, 370 (3d Cir. 2000)
                                                  219 (2d Cir. 2002) (2-1 decision), in which
(internal quotations omitted).        This
                                                  the court concluded the Commission may
interpretation, the Secretary contends,
                                                  not exercise jurisdiction based on Fed. R.
ameliorates the undue “harsh” results that
                                                  Civ. P. 60(b)(1). Id. at 229. Like us, the
concerned the Hass court.
                                                  court held the Secretary’s interpretation
       The Secretary’s alternative                was not entitled to Chevron deference. Id.
interpretation does not warrant Chevron           at 228. But applying Skidmore deference,
deference because it is an informal               the court found persuasive the Secretary’s
opinion. But neither is it persuasive under       position that the Commission lacks
the more limited Skidmore deference. We           jurisdiction when an employer fails to file
discern no basis for the Secretary’s              a timely notice of contest. Id. at 228-29.
contradictory position that the Commission        The court disagreed with our reasoning in
lacks jurisdiction to consider relief under       Hass that “‘uncontested citations become
Fed. R. Civ. P. 60(b)(1) but has                  final orders of the Commission’” and that
jurisdiction to consider equitable tolling.       the C ommission must have had
A tribunal cannot exercise an equitable           jurisdiction at some point because “‘if it
remedy unless it first has jurisdiction. If       never had jurisdiction, the citations would
the Commission is not barred by section           be final orders of a Commission which
10(a) from applying equitable tolling, as         never had jurisdiction, and thus would
the Secretary now asserts, then it also           have no effect.’” Id. at 229 (quoting Hass,
should not be barred from granting Fed. R.        648 F.2d at 193). The court reasoned that
Civ. P. 60(b)(1) relief. As noted, section        when an employer misses a deadline, the
10(a) provides that the citation “shall be        citation does not “become” a final order of
deemed a final order of the Commission            the Commission on the basis of which it
and not subject to review by any court or         can grant Fed. R. Civ. P. 60(b) relief;
agency.” It would seem to therefore bar           instead, under section 10(a), it is “deemed”
both equitable tolling and excusable              to be a final order. Id. Accordingly, the


                                              7
court rejected the proposition that the            Harms Construction argues the “excusable
Commission has some residual authority             neglect” standard must be broadly
over uncontested citations that may permit         construed. See Robb v. Norfolk & W. Ry.
it to grant relief under Fed. R. Civ. P.           Co., 122 F.3d 354, 361-62 (7th Cir. 1997)
60(b)(1). Id. The dissent agreed with our          (acknowledging that “‘excusable neglect’
holding in Hass, reasoning that “whether           has a new and broader meaning in the
deemed or actual—an order of the                   aftermath of the [Pioneer] decision”).
Commission must be one that is within its          Although Pioneer involved a Bankruptcy
jurisdiction and thus subject to reopening         Rule, subsequent courts have held that
or reconsideration.” Id. at 231 (Pooler, J.,       Pioneer’s interpretation of excusable
dissenting). The dissent concluded that            neglect extends to other federal procedural
though neither section 12(g) of the Act nor        rules including Fed. R. Civ. P. 60(b)(1).
Fed. R. Civ. P. 60(b) gives the                    See Robb, 122 F.3d at 362 n.6 (noting that
Commission jurisdiction, the Commission,           some courts have held it to be an abuse of
nonetheless, “has inherent authority to            discretion to not grant relief under Fed. R.
reconsider or reopen its own deemed                Civ. P. 60(b)(1) in certain missed deadline
orders and Rule 60(b) provides the                 situations “in light of Pioneer”). Pioneer’s
appropriate standard for acting on an              broad construction of the excusable
application to r e o p e n . ” Id.                 neglect standard applies here as well.
Notwithstanding Le Frois, we believe that
                                                           Under Pioneer, the determination
Hass was correctly decided and has not
                                                   whether a party’s neglect is “‘excusable’ is
been undermined by more recent
                                                   essentially an equitable one, in which
decisions.
                                                   courts are to take into account all relevant
       For these reasons, Hass is still            circumstances surrounding a party’s failure
binding and revision is unwarranted.               to file.” Chemetron Corp. v. Jones, 72
Under Hass, section 10(a) is not a bar to          F.3d 341, 349 (3d Cir. 1995) (citing
Commission review, and it “has                     Pioneer, 507 U.S. at 395). The Supreme
jurisdiction to entertain a late notice of         Court identified, without limitation, these
contest under” the excusable neglect               factors to consider: “the danger of
standard of Fed. R. Civ. P. 60(b)(1). 648          prejudice . . . , the length of the delay and
F.2d at 194-95.                                    its potentia l impa ct on ju dicia l
                                                   proceedings, the reason for the delay,
B. The Merits of the Fed. R. Civ. P.
                                                   including whether it was within the
60(b)(1) Excusable Neglect Claim.
                                                   reasonable control of the movant, and
        Harms Construction contends it is          whether the movant acted in good faith.”
entitled to relief under Fed. R. Civ. P            Pioneer, 507 U.S. at 395.
60(b)(1)’s “excusable neglect” standard.
                                                          Harms Construction alleges the
Citing Pioneer Investment Services v.
                                                   ALJ erred by weighing too heavily the
Brunswisk Assoc., 507 U.S. 380 (1993),
                                                   “control” factor at the expense of other

                                               8
relevant Pioneer factors. We agree. The            differently, the “control” factor does not
ALJ properly recognized that the factors of        necessarily trump all the other relevant
prejudice and good faith weighed in favor          factors. As the Supreme Court concluded
of Harms Construction, see George Harms            in Pioneer: “[T]he lack of any prejudice to
Constr. Co., 2003 OSAHRC LEXIS 19, at              the [opposing party] or to the interests of
*4 (holding that “Nyland acted quickly and         efficient judicial administration, combined
in good faith promptly upon discovering            with the good faith of respondents and
the fact of the citation” and that “because        their counsel, weigh strongly in favor of
the Secretary proceeded to litigate the            permitting the tardy claim.” 507 U.S. at
matter by serving a motion to extend her           398. As the Commission has recognized,
time to file her complaint, . . . the late         in Fed. R. Civ. P. 60(b)(1) late filing cases,
[notice of contest] caused her no                  it is usually a given that there is “a lack of
prejudice”), and there is no evidence that         prejudice to the Secretary or to the
the delay caused an adverse effect on              interests o f e f f i c ie n t judicia l
efficient judicial administration. But the         administration, combined with a lack of
ALJ, relying on CalHar Constr. Inc., No.           bad faith by the employer.” CalHar
98-0367, 2000 OSAHRC LEXIS 28                      Constr. Inc., No. 98-0367, 2000 OSAHRC
(OSAHRC April 27, 2000), noted that “the           LEXIS 28, *6 n.5. But just because those
Commission considers a key factor to be            factors may nearly always favor the
whether the delay was within the                   petitioner does not mean that the
reasonable control of the employer,” and           Commission should ignore them.
concluded that “[i]t is on this issue that
                                                            Moreover, even when assessing the
[Harms Construction’s] proof falls short”
                                                   “control” factor, we do not believe that it
because Pelsang, the Harms Construction
                                                   weighs against Harms Construction here.
employee who signed for the citations and
                                                   The ALJ concluded that without Pelsang’s
w a s mo st fam iliar with Ha r m s
                                                   testimony, he could not determine whether
Construction’s mailing procedures, failed
                                                   Harms Construction’s failure to file a
to testify. Id. *5-6. Without Pelsang’s
                                                   timely notice of contest was within the
testimony, the ALJ held he could not make
                                                   company’s control.          George Harms
a determination that the failure to file a
                                                   Constr. Co., 2003 OSAHRC LEXIS 19, at
timely notice of contest was not within the
                                                   *6. At the hearing, Nyland testified that
company’s control. Id. at *6.
                                                   Pelsang told him she had no memory of
         The ALJ’s “excusable neglect”             the citations and would have nothing to
calculus was improper. Under Pioneer, a            add. The ALJ found Nyland to be a
court must take into account all relevant          credible witness, but held his testimony
circumstances surrounding a party’s failure        only established that Pelsang made the
to file, and failing to disprove “reasonable       statement to Nyland; “it does not prove . .
control” is not necessarily fatal to a             . that she in fact, could not recall accepting
petitioner’s request for relief. To state it       the citation.” Id. at n.4.


                                               9
        At the hearing, the Secretary did not        and is entitled to relief under Fed. R. Civ.
object to Nylan d’s te stimon y as                   P. 60(b)(1). 5
inadmissible hearsay. In an administrative
                                                                         IV.
hearing, “‘[w]hen [hearsay evidence] is
admitted without objection it is to be                      For the foregoing reasons, we will
considered and given its natural probative           vacate the Commission’s final order and
effect as if it were in law admissible.’” E          remand for a hearing on the merits of the
& R Erectors v. Sec’y of Labor, 107 F.3d             subject OSHA citations.
157, 161 (3d Cir. 1997) (quoting Diaz v.
United States, 223 U.S. 442, 450 (1912)).
Had the Secretary objected, Harms
Construction apparently would have
produced Pelsang to testify directly. There
is no reason to infer that Pelsang’s
testimony would have been adverse to
Harms Construction.            Because of
Pelsang’s lack of memory attributable to
the passage of time and volume of mail
she administers, Harms Construction
reasonably believed she could add nothing
of value to the hearing.
        Nyland’s testimony of Harms
Construction’s otherwise reliable mail-
handling procedures demonstrates the loss
of the citations was an unforeseeable
human error beyond its reasonable control.
According to Nyland, Pelsang had been
responsible for delivering the mail for six
                                                           5
years. In that period, Nyland had never                      In addition to its Fed. R. Civ. P.
failed to receive any mail. Accordingly,             60(b)(1) excusable neglect claim, Harms
the control factor does not weigh against            Construction also contends that service of
Harms Construction. Because the Pioneer              the citations was improper; it is entitled to
factors of good faith, prejudice, efficient          equitable tolling; the Secretary waived the
judicial administration, and control all             right to challenge the timeliness of the
weigh in favor of Harms Construction, it             notice of contest; and that it is entitled to
has sufficiently shown “excusable neglect”           relief under Fed. R. Civ. P. 60(b)(6).
                                                     Because Harms Construction is entitled to
                                                     relief under Fed. R. Civ. P. 60(b)(1), we do
                                                     not reach the merits of these alternative
                                                     claims.

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