GEORGE HARMS CONSTRUCTION CO., INC., a New Jersey Corporation v. Elaine L. Chao, Secretary of Labor, United States Department of Labor

PRECEDENTIAL
UNITED STATES
COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-2215
GEORGE HARMS
CONSTRUCTION CO., INC.,
a New Jersey Corporation,
Petitioner
v.
ELAINE L. CHAO,
SECRETARY OF LABOR,
UNITED STATES
DEPARTMENT OF LABOR and
OCCUPATIONAL SAFETY &
HEALTH REVIEW COMMISSION,
Respondents
On Petition for Review of a Final Order
of the Occupational Safety and Health
Review Commission
(OSHRC No. 02-0371)
Argued February 12, 2004
Before: SCIRICA, Chief Judge,
ROTH and McKEE, Circuit Judges
(Filed: June 9, 2004)
John F. Neary, Esquire (Argued)
101 Eisenhower Parkway, Suite 300
Roseland, New Jersey 07068
Attorney for Petitioner
Ronald J. Gottlieb, Esquire (Argued)
United States Department of Labor
Office of the Solicitor
Suite S-4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
Attorney for Respondent,
Secretary of Labor
OPINION OF THE COURT
SCIRICA, Chief Judge.
At issue is whether Petitioner
George Harms Construction Company is
entitled to relief under the excusable
neglect standard of Fed. R. Civ. P.
60(b)(1), after it failed to timely file a
notice of contest to Occupational Safety
and Health Administration citations and a
notice of penalty delivered by certified
mail. We will vacate the Occupational
Safety and Health Review Commission’s
final order and remand for a hearing on the
merits of the OSHA citations.
I.
Congress enacted the Occupational
Safety and Health Act to “assure so far as
possible” safe working conditions for
“every working man and woman in the
Nation.” 29 U.S.C. § 651(b). The
Secretary of Labor is charged with
enforcement of the Act. But the Secretary
has delegated her enforcement duties to
the Assistant Secretary for Occupational
Safety and Health, who heads OSHA.
Secretary’s Order 5-2002, 67 Fed. Reg.

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65008 (Oct. 22, 2002). OSHA inspects
workplaces for violations. It may issue a
citation for a violation, establish a date for
abatement, and propose a civil penalty. 29
U.S.C. §§ 658, 659. An employer can
contest the citation and proposed penalty
before the Occupational Safety and Health
Review Commission. 29 U.S.C. § 661.
Under section 10(a) of the Act, an
employer must file a notice of contest
within 15 working days of receipt of the
citation or the “the citation and the
assessment, as proposed, shall be deemed
a final order of the Commission and not
subject to review by any court or agency.”
29 U.S.C. § 659(a).
The Commission, an independent
adjudicatory body separate from the
Department of Labor, acts as a neutral
arbiter in proceedings contesting OSHA
citations. Cuyahoga Valley Ry. Co. v.
United Transp. Union, 474 U.S. 3, 7
( 1 9 9 5 ) ( p e r c u r i a m ) . A s s u min g
jurisdiction, an Administrative Law Judge
of the Commission conducts a hearing and
issues a report with his determination of
the proceeding. 29 U.S.C. § 661(j).
Within thirty days, the Commission may
opt to review the ALJ’s report. Id. If no
Commissioner directs review, the ALJ’s
report becomes the Commission’s final
decision. Id. Judicial review may then be
sought. 29 U.S.C. § 660.
II.
OSHA conducted an inspection of
Harms Construction’s work site in Clifton,
New Jersey from November 29, 2001 to
December 11, 2001. OSHA found two
infractions.1 On December 13, 2001,
O SH A sent citations to Ha rm s
Construction’s post office address by
certified mail, return receipt requested.2
Carol Pelsang, the Harms Construction
employee responsible for handling mail,
signed for receipt of the citations at least
by December 31, 2001.3
Harms Construction did not file a
notice of contest within 15 working days
of receipt. On January 22, 2002, the
citations became final orders of the
Commission by operation of section 10(a)
1In the citations, OSHA alleges Harms
Construction violated 29 C.F.R. §
1926.350(h), by having a broken gauge on
an acetylene cylinder. It also alleges
Harms Construction violated 29 C.F.R. §
1926.501(b)(1), by not providing a
guardrail system, safety net system, or
personal fall arrest system on a 10 foot
high railroad retaining wall. Both
“infractions” were corrected during the
course of the OSHA inspections.
2According to OSHA, when abatement
is not an issue, as is the case here, it would
not include a letter addressed to any
particular employee with a citation.
3The received date stamped on the
return receipt card was partially obscured
by Pelsang’s signature, so the actual day in
December on which the citations were
received is unknown. They were at least
received by the end of December 2001
because “December” and “2001” are
legible.

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3
of the Act. 29 U.S.C. § 659(a). On
February 28, 2002, more than a month
after Harms Construction’s notice of
contest was due, OSHA issued Harms
Construction a delinquency notice. On
March 8, 2002, Edward Nyland, Harms
Construction’s President, telephoned
OSHA Assistant Area Director Steve
Kaplan, informing him he had no record of
the citations but that he wanted an
opportunity to contest and possibly settle
the matter. Kaplan responded that the
return receipt had been signed by an
employee at Harms Construction. Kaplan
recommended that Harms Construction
petition OSHA for settlement. That same
day, Nyland mailed a letter to the
Commission requesting that Harms
Construction be permitted to file a late
notice of contest due to “clerical error” and
that they try to settle the matter.
Nyland undertook an investigation
to determine what transpired with the
citations. He interviewed Pelsang, but she
told him she had no recollection of the
citations because of the passage of time
and the volume of mail that she routinely
handles. Nyland thoroughly searched his
office and inquired whether any of Harms
Construction’s corporate officers or other
employees had seen or were aware of the
citations. But Nyland was unable to
uncover any information that a Harms
Construction employee knew anything
about the citations.
Harms Construction’s mailing
procedure, according to Nyland, was for
Pelsang to pick up the mail at the
company’s post office box. She was
required to sign for all certified mail not
marked “restricted delivery,” place the
mail in a mail handling box, and transport
the mail back to Harms Construction’s
headquarters. Then, she would open,
stamp, sort, and earmark the mail for
delivery. If a letter did not identify the
intended recipient, she would determine
from prior management instructions who
should get the mail. Pelsang had been
instructed to deliver OSHA-related mail to
Harms Construction’s president. If
uncertain it was OSHA-related, she was
instructed to ask any corporate officer for
assistance.
The matter was docketed before the
Commission on March 14, 2002. On April
1, 2002, the Secretary filed a motion for a
time extension to file her complaint in
order to allow OSHA personnel to pursue
settlement with Harms Construction.
Three weeks later, on April 23, 2002,
instead of filing a complaint, the Secretary
filed a motion to dismiss the proffered
notice of contest as untimely. Harms
Construction cross-moved for excusal of
its tardy notice of contest. It alleged,
among other things, that service was
improper, that it was entitled to relief
under Fed. R. Civ. P. 60(b)(1) or equitable
tolling, and that the Secretary had waived
the right to challenge the timeliness of
Harms Construction’s notice of contest.
On October 9, 2002, an Administrative
Law Judge conducted hearings in
connection with the Secretary’s dismissal
motion. At the hearing, OSHA Assistant
Area Director Kaplan and Harms
Construction President Nyland testified.

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

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

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

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

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

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9
relevant Pioneer factors. We agree. The
ALJ properly recognized that the factors of
prejudice and good faith weighed in favor
of Harms Construction, see George Harms
Constr. Co., 2003 OSAHRC LEXIS 19, at
*4 (holding that “Nyland acted quickly and
in good faith promptly upon discovering
the fact of the citation” and that “because
the Secretary proceeded to litigate the
matter by serving a motion to extend her
time to file her complaint, . . . the late
[notice of contest] caused her no
prejudice”), and there is no evidence that
the delay caused an adverse effect on
efficient judicial administration. But the
ALJ, relying on CalHar Constr. Inc., No.
98-0367, 2000 OSAHRC LEXIS 28
(OSAHRC April 27, 2000), noted that “the
Commission considers a key factor to be
whether the delay was within the
reasonable control of the employer,” and
concluded that “[i]t is on this issue that
[Harms Construction’s] proof falls short”
because Pelsang, the Harms Construction
employee who signed for the citations and
w a s mo st fam iliar with Harm s
Construction’s mailing procedures, failed
to testify. Id. *5-6. Without Pelsang’s
testimony, the ALJ held he could not make
a determination that the failure to file a
timely notice of contest was not within the
company’s control. Id. at *6.
The ALJ’s “excusable neglect”
calculus was improper. Under Pioneer, a
court must take into account all relevant
circumstances surrounding a party’s failure
to file, and failing to disprove “reasonable
control” is not necessarily fatal to a
petitioner’s request for relief. To state it
differently, the “control” factor does not
necessarily trump all the other relevant
factors. As the Supreme Court concluded
in Pioneer: “[T]he lack of any prejudice to
the [opposing party] or to the interests of
efficient judicial administration, combined
with the good faith of respondents and
their counsel, weigh strongly in favor of
permitting the tardy claim.” 507 U.S. at
398. As the Commission has recognized,
in Fed. R. Civ. P. 60(b)(1) late filing cases,
it is usually a given that there is “a lack of
prejudice to the Secretary or to the
i n t e r e s t s o f e f f i c i e n t j u d i c i a l
administration, combined with a lack of
bad faith by the employer.” CalHar
Constr. Inc., No. 98-0367, 2000 OSAHRC
LEXIS 28, *6 n.5. But just because those
factors may nearly always favor the
petitioner does not mean that the
Commission should ignore them.
Moreover, even when assessing the
“control” factor, we do not believe that it
weighs against Harms Construction here.
The ALJ concluded that without Pelsang’s
testimony, he could not determine whether
Harms Construction’s failure to file a
timely notice of contest was within the
company’s control. George Harms
Constr. Co., 2003 OSAHRC LEXIS 19, at
*6. At the hearing, Nyland testified that
Pelsang told him she had no memory of
the citations and would have nothing to
add. The ALJ found Nyland to be a
credible witness, but held his testimony
only established that Pelsang made the
statement to Nyland; “it does not prove . .
. that she in fact, could not recall accepting
the citation.” Id. at n.4.

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At the hearing, the Secretary did not
object to Nylan d’s te stimon y as
inadmissible hearsay. In an administrative
hearing, “‘[w]hen [hearsay evidence] is
admitted without objection it is to be
considered and given its natural probative
effect as if it were in law admissible.’” E
& R Erectors v. Sec’y of Labor, 107 F.3d
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
years. In that period, Nyland had never
failed to receive any mail. Accordingly,
the control factor does not weigh against
Harms Construction. Because the Pioneer
factors of good faith, prejudice, efficient
judicial administration, and control all
weigh in favor of Harms Construction, it
has sufficiently shown “excusable neglect”
and is entitled to relief under Fed. R. Civ.
P. 60(b)(1).5
IV.
For the foregoing reasons, we will
vacate the Commission’s final order and
remand for a hearing on the merits of the
subject OSHA citations.
5In addition to its Fed. R. Civ. P.
60(b)(1) excusable neglect claim, Harms
Construction also contends that service of
the citations was improper; it is entitled to
equitable tolling; the Secretary waived the
right to challenge the timeliness of the
notice of contest; and that it is entitled to
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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