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‘Very harsh’ general duty clause citations against auto dealer upheld

Posted On: Apr. 1, 2019 1:34 PM CST

OSHA inspector

An administrative law judge of the Occupational Safety and Health Review Commission affirmed general duty clause citations in a case in which an auto dealer and repair shop challenged the U.S. Occupational Safety and Health Administration’s actions as “very harsh.”

OSHA inspected the Houston worksite of Apollo Auto Sales & Service Inc. in January and February of 2018 and issued three serious citations under the Occupational Safety and Health Act’s general duty clause and one other-than-serious violation and proposed penalties totaling $6,652, according to review commission documents in Secretary of Labor v. Apollo Auto Sales & Service Inc. released Monday. The citation was initially mailed to Apollo Auto by first-class mail but returned “undeliverable,” so OSHA then sent the citation by United Parcel Service and it was delivered on March 6, 2018. Apollo Auto did not file a notice of contest within the 15-day contest period that expired on March 27, 2018.

OSHA conducted a follow-up inspection of Apollo Auto’s cited worksite on May 9, 2018, and issued a failure to abate alleged violations notice and proposed a $25,868 fine. OSHA hand delivered the failure to abate notification to Apollo Auto Sales’ manager on May 18, 2018, but the company did not file a notice of contest within the 15-day contest period and it became a final order of the review commission at the end of the period.

Apollo Auto sent a July 25, 2018 request for relief that disputed the citations, charges and penalties, stating that it considers OSHA’s actions as “very harsh.” The company provided the name and telephone number of an attorney it said would contact OSHA to resolve the matter, but the attorney later informed the review commission that she would not be representing Apollo Auto in the case.

While it is the Secretary of Labor’s burden to establish that the citation was served, Apollo Auto did not dispute that the citation was served, the law judge noted. It also was not disputed that Apollo Auto did not contest the citation and failure to abate notice within the requisite time periods, meaning the orders and proposed penalties must be deemed final orders of the review commission, unless Apollo Auto can demonstrate it is entitled to relief, according to the ruling.

“The Court finds Apollo Auto has not demonstrated it is entitled to relief,” the judge stated. “Neither the record evidence nor Apollo Auto’s explanations for its late filing show deception or a failure to follow proper procedures on behalf of the Secretary.

“The only reason Apollo Auto has provided to the Court for the delay is that it considers OSHA’s actions to be ‘very harsh,’” the judge continued. “This provides insufficient basis for the Court to conclude that the reason for the delay was not under Apollo Auto’s control. Therefore, the Court finds the delay was within Apollo Auto’s control. The Court finds that Apollo Auto failed to exercise due diligence and was simply negligent in failing to file contests before the expiration of the contest periods.”

Under review commission precedent, “an employer’s mere carelessness or negligence, even by a layperson, in failing to timely file a Notice of Contest does not amount to ‘excusable neglect’,” the judge noted.

The law judge’s decision became a final order of the review commission on Monday.

A phone number for the company was disconnected, and no attorney of record was listed in court documents.