Von Bodkin, d/b/a Eclipse Coating Systems

Plain-English summary

OSHA issued Eclipse Coating Systems a serious fall-protection citation after inspecting an Idaho worksite. An agent of the company signed for the citation on July 27, 1999, and the document twice explained that any contest had to be filed within 15 working days. Eclipse did not submit a notice of contest until March 16, 2000, almost seven months after the deadline, and offered no reason for the delay. The judge rejected the company's claim that it was denied due process because the citation itself gave it the opportunity to request a hearing. He also rejected challenges to interstate-commerce jurisdiction, OSHA's standard-setting authority, and the warrantless inspection, noting that an objection to entry had to be asserted before the inspection. With no deception, procedural failure, excusable neglect, or other basis for relief, the late contest was dismissed and the citation and penalty were affirmed as final.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.501(b)(10) (fall protection for low-slope roof work)
• Outcome: Procedural. The late notice of contest was dismissed, leaving the serious citation and its penalty in effect.
• Key point: A signed-for citation that clearly states the contest deadline provides the required opportunity for a hearing; failure to read and act on it without an excusable reason does not justify reopening the case.

Full text (OSHRC public release)

                               United States of America
              OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                          1120 20th Street, N.W., Ninth Floor
                             Washington, DC 20036-3419


SECRETARY OF LABOR,                              :
                                                 :
                COMPLAINANT,                     :
                                                 :
        v.                                       :                OSHRC DOCKET NO. 2000-0624
                                                 :
VON BODKIN,                                      :
 d/b/a ECLIPSE COATING SYSTEMS,                  :
                                                 :
        RESPONDENT.                              :

                                      DECISION AND ORDER

        This proceeding is before the Occupational Safety and Health Review Commission (“the
Commission”) pursuant to section 10 of the Occupational Safety and Health Act of 1970, 29 U.S.C.
§ 651 et seq. (“the Act”). On May 18, 1999, the Occupational Safety and Health Administration
(“OSHA”) conducted an inspection of a work site of Respondent, Eclipse Coating Systems
(“Eclipse”), located in Hailey, Idaho. As a result of the inspection, on July 27, 1999, OSHA issued
Eclipse a one-item serious citation alleging a violation of 29 C.F.R. 1926.501(b)(10). Section 10(a)
of the Act requires an employer to notify OSHA of the intent to contest a citation within 15 working
days of receiving it, and the failure to file a timely notice of contest results in the citation and penalty
becoming a final judgment of the Commission by operation of law. The record shows that OSHA
mailed the citation by certified mail, that Eclipse received it on July 27, 1999, and that the notice of
contest period expired on August 19, 1999. The record also shows that Eclipse did not file a notice
of contest until March 16, 2000. OSHA answered the letter on March 22, 2000, and Eclipse
responded to OSHA’s letter on March 28, 2000. The Secretary filed a motion to dismiss the notice
of contest as untimely on April 6, 2000, and Eclipse has filed a response to the motion.
                                               Discussion
        The record plainly shows that Eclipse did not file a notice of contest until well after the 15-
day contest period had ended. An otherwise untimely notice of contest may be accepted where the
Secretary’s deception or failure to follow proper procedures caused the delay in filing. An employer
                                                   2

is also entitled to relief if it shows the Commission’s final order was entered as a result of “mistake,
inadvertence, surprise, or excusable neglect” or “any other reason justifying relief,” including
mitigating circumstances such as absence, illness or a disability that would prevent a party from
protecting its interests. See Fed. R. Civ. P. 60(b); Branciforte Builders, Inc., 9 BNA OSHC 2113
(No. 80-1920, 1981). There is no indication and no contention that the Secretary was deceptive or
failed to follow proper procedures in this matter. Eclipse contends, rather, that it was denied due
process because it was never afforded a hearing. However, the record clearly shows that the company
was, in fact, given the opportunity to contest the citation and to have a hearing. As indicated above,
an agent of the company signed for the citation on July 27, 1999.1 The citation itself explained the
15-day contest period in the first paragraph on the first page, as follows:
       You must abate the violations referred to in this Citation by the dates listed and pay
       the penalties proposed, unless within 15 working days ... from your receipt of this
       Citation and Notification of Penalty you mail a notice of contest to the U.S.
       Department of Labor Area Office at the address shown above. Please refer to the
       enclosed booklet (OSHA 3000) which outlines your rights and responsibilities and
       which should be read in conjunction with this form.
       The citation further explained the contest period on page 2, as follows:
       Right to Contest - You have the right to contest this Citation and Notification of
       Penalty. You may contest all citation items or only individual items. You may also
       contest proposed penalties and/or abatement dates without contesting the underlying
       violations. Unless you inform the Area Director in writing that you intend to
       contest the citation(s) and/or proposed penalty(ies) within 15 working days after
       receipt, the citation(s) and the proposed penalty(ies) will become a final order
       of the Occupational Safety and Health Review Commission and may not be
       reviewed by any court or agency.
       Eclipse does not assert any reasons for not filing its notice of contest within the 15-day
period. In any case, the Commission has held that the OSHA citation plainly states the requirement
to file a notice of contest within the prescribed period and that an employer “must bear the burden
of its own lack of diligence in failing to carefully read and act upon the information contained in the
citations.” Roy Kay, Inc., 13 BNA OSHC 2021, 2022 (No. 88-1748, 1989); Acrom Constr. Serv.,


       1
        Kortnie Bodkin, who signed the certified mail return receipt, is presumably a relative of Von
Bodkin, the owner of Eclipse and the author of the response to the Secretary’s motion, and Everett
Bodkin, Eclipse’s financial officer and the author of the notice of contest.
                                                   3

Inc., 15 BNA OSHC 1123, 1126 (No. 88-2291, 1991). The Commission has also held that ignorance
of procedural rules does not constitute “excusable neglect” and that mere carelessness or negligence,
even by a layman, does not justify relief. Acrom Constr. Serv., Inc., 15 BNA OSHC 1123, 1126 (No.
88-2291, 1991); Keefe Earth Boring Co., 14 BNA OSHC 2187, 2192 (No. 88-2521, 1991). Finally,
the Commission has held that Rule 60(b) cannot be invoked “to give relief to a party who has chosen
a course of action which in retrospect appears unfortunate or where error or miscalculation is
traceable really to a lack of care.” Roy Kay, Inc., 13 BNA OSHC 2021, 2022 (No. 88-1748, 1989).
       Although the foregoing is sufficient to dispose of this matter in its entirety, Eclipse raises
other arguments. Eclipse contends, for example, that the Commission has no jurisdiction because
there is no evidence that its business affects interstate commerce. Eclipse also contends that the cited
standard was not duly promulgated and that OSHA failed to obtain a warrant prior to the inspection.
However, it requires little effort to show that an employer is engaged in a business affecting
interstate commerce, and the use of the telephone and mails, or the purchase of items from out of
state, has been held sufficient to establish Commission jurisdiction. See, e.g., Marshall v. Anchorage
Plastering Co., 570 F.2d 351 (9th Cir. 1978) (unpublished decision reported at 6 BNA OSHC 1318);
Avalotis Painting Co., 9 BNA OSHC 1226 (No. 76-4774, 1981). Moreover, the Secretary’s authority
to promulgate and enforce standards is specifically set out in the Act. See 29 C.F.R. §§ 655-659.
Finally, the Secretary’s authority to enter onto a work site to conduct an inspection is also set out in
the Act, and the employer’s right to object and to insist upon a warrant must be asserted before the
inspection takes place. See 29 C.F.R. § 657; Simplex Time Recorder Co. v. Secretary of Labor, 766
F.2d 575 (D.C. Cir. 1985). Regardless, in view of the record and the foregoing Commission
precedent, there is no basis for granting Rule 60(b) relief and accepting the late-filed notice of
contest in this case. The Secretary’s motion is accordingly GRANTED, the notice of contest is
DISMISSED, and the citation and penalty are AFFIRMED in all respects. So ORDERED.


                                                       /s/
                                                       Irving Sommer
                                                       Chief Judge

Date: May 22, 2000