Quality Builders, Inc.

Plain-English summary

OSHA inspected a Quality Builders work site and issued two citations with penalties, which the company received by certified mail on September 12, 2000. Under the OSH Act an employer has 15 working days to file a written notice of contest, and here that deadline passed on October 3, 2000 with nothing filed. The company later asked for an informal conference, but that request came too late. The judge explained that a late notice of contest can be excused only for things like agency deception or excusable neglect under Federal Rule 60(b), and that the citation paperwork clearly stated the 15-day requirement. Finding the company simply failed to act promptly on its mail, the judge granted the Secretary's motion to dismiss. The citations and penalties stand as a final order.

Decision snapshot

• Cited standard(s): None identified in this order (the underlying citations were not contested on the merits).
• Outcome: The Secretary's motion to dismiss the untimely notice of contest was granted; the citations and penalties were affirmed in all respects.
• Key point: An employer that misses the 15-working-day contest deadline bears the burden of its own lack of diligence, and Rule 60(b) does not rescue a party whose delay traces to carelessness with its mail.

Full text (OSHRC public release)

                    UNITED STATES OF AMERICA
        OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION


                                           :

SECRETARY OF LABOR, :
:
Complainant, :
:
v. : Docket No. 01-0068
:
QUALITY BUILDERS, INC., :
:
Respondent. :
:
:

                                DECISION AND ORDER


   This matter is before 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.
Sec. 651 et seq (the Act''), to determine whether the Secretary's motion to dismiss Respondent's untimely notice of contest should be granted. Respondent has filed no response to the motion. BACKGROUND The Occupational Safety and Health Administration (OSHA'') inspected a work site of
Respondent, resulting in the issuance of two citations and notification of penalties on September 5,
2000. Pursuant to Section 10(a) of the Act, Respondent was required to notify OSHA of its intent
to contest the citations within 15 working days of its receipt of the citations, and failure to file a
timely notice of contest would result in the citations and penalties becoming a final judgment of the
Commission by operation of law. It is undisputed that the citations setting forth the alleged
violations and proposed penalties were sent by certified mail and received by the Respondent on
September 12, 2000. The statutory notice of contest period ended on October 3, 2000 and a notice
of contest was not filed by the Respondent on or before said date. By letter dated October 12, 2000
which was received by OSHA on October 13, 2000, the Respondent requested an informal
conference to discuss the citations and proposed penalties.

                                       DISCUSSION
   The record plainly shows that the Respondent did not file its notice of contest within the 15

day period. An otherwise untimely notice of contest may be accepted where the delay in filing was
caused by deception on the part of the Secretary or by the Secretary's failure to follow proper
procedures. An employer is also entitled to relief under the Federal Rules of Civil Procedure
60(b)(1) if it establishes that the Commissions's final order was entered as a result of mistake, inadvertence, surprise, or `excusable neglect'', or under 60(b)(6) forany other reason justifying
relief'', including mitigating circumstances such as illness, or a disability which would prevent a
party from protecting its interests. Branciforte Builders, Inc. 9 BNA OSHC 2113(No.80-1920,1981).
There is no contention that the Secretary acted improperly in this matter.
The cover letter accompanying the citations states on page 2 under the heading RIGHT to
CONTEST as follows: 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 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. The Commission has held that the OSHA citationplainly state(s) the requirement to file
a notice of contest within the prescribed period'', and that the OSHA 3000 booklet accompanying
the citation provide(s) additional straightforward explanations.'' Roy Kay, Inc., 13 BNA OSHC 2021, 2022 (No.88-1989): Keefe Earth Boring Co.,14 BNA OSHC2187, 2192 (No 88-2521,1991). Finally, the Commission has held that an employermust bear the burden of its own lack of
diligence in failing to carefully read and act upon the information contained in the citations'', and
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 to a lack of care.''
Accrom Constr. Serv., 15 BNA 1123,1126(No. 88-2291, 1991).
The Respondent had clear notice of the need to contest within the 15 working day period,
and it is responsible for its failure to act promptly on its government mail. The circumstances here
are insufficient to establish entitlement to relief under Rule 60(b).
ORDER
For the reasons set out above, the Secretary's motion to dismiss the notice of contest of the
Respondent is GRANTED, and the citations and notification of penalties is AFFIRMED in all
respects.
/s/
IRVING SOMMER
Chief Judge
DATED: 19 MAR 2001
Washington, D.C.