Cashiola Construction

Plain-English summary

Cashiola Construction received an OSHA citation and proposed penalty on November 9, 2000, making December 1 the deadline to contest. OSHA did not receive the company's contest until January 22, 2001, when the company asserted that it was not the proper party. The company did not respond to the Secretary's dismissal motion or establish mistake, excusable neglect, or another basis for relief. The judge dismissed the late notice and affirmed the citation and penalty in full.

Decision snapshot

• Cited standard(s): Not identified in the decision
• Outcome: Late notice of contest dismissed and the citation and proposed penalty affirmed
• Key point: A challenge to being named as the employer did not excuse failure to contest within the statutory 15-working-day period.

Full text (OSHRC public release)

                    UNITED STATES OF AMERICA
        OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR, :
:
Complainant, :
:
v. : Docket No. 01-0172
:
CASHIOLA CONSTRUCTION, :
:
Respondent. :
:

                               DECISION AND ORDER
   This case 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.
sec. 651 et seq (the Act) to determine whether the Secretary's motion to dismiss Respondent's
untimely notice of contest should be granted. The 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 a citation and notification of proposed penalty on November
8, 2000. Respondent was required to notify OSHA of its intent to contest the citation within 15
working days of its receipt, and failure to do so would result in the citation and penalty becoming
a final judgment of the Commission by operation of law. The citation setting forth the alleged
violations and the proposed penalty was sent by certified mail and received by the Respondent on
November 9, 2000. The statutory notice of contest period ended on December 1, 2000 and a notice
of contest was not filed by the Respondent on or before said date. By letter received by OSHA on
January 22, 2001, the Respondent indicated he desired to contest the case alleging he was not the
proper party herein.
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 if
it establishes that the Commission's final order was entered as a result of mistake, inadvertence, surprise or excusable neglect'', or 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, 9 BNA OSHC 2113. There is no contention that the Secretary acted
improperly in this matter.
The cover letter accompanying the citation states on page 2 under the hearing 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 citation plainly state(s) the requirement to file a notice of contest within the prescribed period. Additionally, 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.
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 in response to its governmental mail. The
circumstances here are insufficient to establish entitlement to relief under Rule 60(b).
ORDER
For the reasons stated above, The Secretary's notion to dismiss the notice of contest of the
Respondent is GRANTED, and the citation and notification of penalties is AFFIRMED in all
respects.
/s/
IRVING SOMMER
Chief Judge
DATED: 26 MAR 2001
Washington, D.C.