Sun Roofing, and its successors

Plain-English summary

Sun Roofing operated a roofing business in Appleton, Wisconsin, and OSHA cited it for a serious residential fall-protection violation. The company received the citation on August 31, 1999, which made September 22 the deadline to contest it. Sun Roofing did not submit a notice of contest until May 31, 2000, even though it had also received a penalty-demand letter the previous November. Its president said he thought a project manager or subcontractor would handle the matter. The judge held that this lack of follow-through and orderly document procedures was not excusable neglect, and the absence of a closing conference with the company's chosen representative did not change the statutory deadline. The notice of contest was dismissed, and the violation and $800 penalty were affirmed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.501(b)(13)
• Outcome: The late notice of contest was dismissed, and the serious citation item and $800 penalty were affirmed.
• Key point: Assigning a citation to another person without confirming action, then ignoring a later payment demand for months, does not justify relief from the contest deadline.

Full text (OSHRC public release)

                            :

SECRETARY OF LABOR, :
:
Complainant, :
:
v. : OSHRC Docket No. 00-1098
:
SUN ROOFING, :
and its successors, :
:
Respondent. :
_______ :

                            DECISION AND ORDER


   This proceeding is before the Occupational Safety and Health Review

Commission ("the Commission") pursuant to Secretary’s motion to dismiss Respondent’s
notice of contest as untimely under section 10 of the Occupational Safety and Health Act
of 1970, 29 U.S.C. § 651 et seq. ("the Act”).

                                      FACTS

   Respondent Sun Roofing at all times relevant to this action maintained a roofing

business in Appleton, Wisconsin. On August 6, 1999, Safety Compliance Officer Susan
Guinn (CO) conducted an inspection of an Appleton, Wisconsin work site of Respondent.
That day, the CO held a closing conference with Dan Heller, who was at the site.
Respondent disputes that Mr. Heller was its representative at the site. The CO informed
Heller of apparent violations observed during the inspection and gave Heller an OSHA
3000 booklet that outlined employers’ contest rights. Mr. Heller was told that in order to
contest an issued citation, a notice of contest must be sent in writing within 15 days.
During the closing conference, the CO also explained the various options available to
cited employers. Respondent asserts that Mr. Heller did not inform Respondent of the
substance of the closing conference.
 Pursuant to that inspection, the Secretary of Labor issued a citation alleging a
serious violation of 29 C.F.R. § 1926.501(b)(13). The citation was issued on August 27,
1999 via certified mail, and the receipt shows that Sun Roofing received it on August 31,
1999. The contest period ended on September 22, 1999.

   On October 28, 1999, Respondent was sent a certified letter demanding payment

of overdue penalties as a result of Respondent’s failure to challenge the citation within 15
working days of its issuance. Receipts show that Respondent received the letter on
November 8, 1999. Respondent sent a notice of contest dated May 31, 2000 to Mr.
Melvin R. Lischefski, Area Director for OSHA in Appleton, Wisconsin. On July 6, 2000,
the Chicago Regional Office of the Solicitor received and forwarded the notice of contest
to the Review Commission. This case has been designated for E-Z Trial pursuant to
Commission Rule 203. Pursuant to Commission Rule 207, a pretrial conference was held
in this case via telephone on August 4, 2000.

                                  DISCUSSION

   The evidence establishes without dispute that Respondent did not file a notice of

contest within the 15-day contest period as required by Section 10(a) of the Act.
However, an otherwise untimely notice of contest may be accepted where (a) the
Secretary's deception or failure to follow proper procedures caused the delay in filing or
(b) if 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).

   As stated previously, the Compliance Officer who conducted the inspection stated

that he explained the apparent violations to Dan Heller and provided the OSHA-3000
pamphlet, outlining the employer’s contest rights. (Secretary’s motion to dismiss, exhibit
A). Although it is alleged that Heller was not the Respondent’s representative, there is no
evidence and no contention that the Secretary was deceptive, nor is there any evidence
that Respondent relied upon assurances or statements from OSHA which resulted in its

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failure to timely reply to the citation. Respondent contends, rather, that the late filing
should be deemed excusable neglect under the circumstances.

   As stated above, the certified mail receipt establishes that Sun Roofing received

the citation at its office on August 31, 1999. In his Response to the Secretary’s motion to
dismiss late notice of contest (“Response”), Sun-Roofing President, John Sramkoski,
admits that he received the citation and delegated it to Brad Durbin, who was Sun
Roofing’s product manager at that time. He further states that he did not directly tell
Durbin to dispute the citation, but believed that was the action Durbin was going to take.
(Response, p. 1, #2) Mr. Sramkoski also states he believed that Michael Van Hoof at Old
Time Roofing (a subcontractor) was “working with OSHA in respect to this matter.”
(Response, p.1, #2) For reasons which are not clear, Mr. Sramkoski believes that the
citation is wholly the responsibility of Old Time Roofing.

   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., 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). The Commission has also held that a business must have orderly procedures for
handling important documents and has denied Rule 60(b) relief where the employer has
asserted that the late filing was due to events such as changes in management, misplacing
the citation, or the absence of the person responsible for OSHA matters. See Louisiana-
Pacific Corp., 13 BNA OSHC 2020,2021 (No. 86-1266, 1989). 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).

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On the basis of the record and the foregoing Commission precedent, the untimely
filing of the notice of contest in this case was not a result of excusable neglect.
Respondent failed to institute orderly procedures for handling important documents and
demonstrated a lack of care in complying with filing requirements. Respondent admits to
receiving the citation, but states that he believed either his project manager or the
subcontractor were responsible for taking care of it. However, Rule 60(b) does not entitle
Respondent to relief under these circumstances see; Stroudsburg Dyeing and Finishing
Co. 1987-1990 CCH OSHD P28, 443. See also: RCS Rizzoli Corp. 1993-95 CCH OSHD
P30, 240; Robert F. Wilson, Inc. 1983-84 CCCH OSHD P26,572; Safeway Stores 1978
CCH OSHD P23,096. Further, there is no indication as to why Respondent waited for six
months to respond to the penalty payment demand letter which he received on November
8, 1999. Respondent’s decision to ignore the citation, as well as the penalty letter, does
not constitute excusable neglect. Moreover, the fact that a closing conference was not
conducted with Respondent’s representative does not relieve Respondent of its
responsibility to comply with the statutory 15 day filing requirement.

                                  CONCLUSION

   Based upon the circumstances of this case and the Commission precedent set out

supra, Respondent is not entitled to relief pursuant to Rule 60(b). The Secretary's motion
to dismiss is accordingly GRANTED, Respondent's notice of contest is DISMISSED, and
the citation and notification of penalty is AFFIRMED in all respects.

So ORDERED.

                                       ORDER

1. Serious Citation 1, item 1 alleging a violation of 29 CFR 1926.501 (b)(13) is
   AFFIRMED and a penalty in the amount of $800.00 is ASSESSED.

                                                  ________________________
                                                  Robert A.Yetman
                                                  Judge, OSHRC
   
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   Dated: October 10, 2000

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