CSX Transportation

Plain-English summary

OSHA sent a three-item serious citation to CSX's corporate post office box by certified mail, where a company mailroom employee signed for it. The citation did not reach the engineering department, and CSX filed its contest about a month late after OSHA called and faxed a copy. CSX argued that OSHA should have mailed the citation to its inspection representative and that unreturned calls and its mail problem justified relief. The judge found service proper, no misconduct by OSHA, and no excusable neglect because handling and routing corporate mail were within CSX's control and similar problems had occurred before. The late contest was dismissed, and the citation and $10,800 penalty were affirmed.

Decision snapshot

• Cited standard(s): The decision does not identify the standards underlying the three serious items.
• Outcome: Late notice of contest dismissed; three-item serious citation and $10,800 penalty affirmed.
• Key point: A recurring failure in a company's internal mail system is not excusable neglect when OSHA properly sends a citation by certified mail to the company's correct address.

Full text (OSHRC public release)

Secretary of Labor,
Complainant,
v. OSHRC Docket No. 01-0608
CSX Transportation
Respondent.

Appearances:

      Thomas C. Shanahan, Esq.                       Richard F. Kane, Esq.
             Office of the Solicitor                         McGuire Woods, LLP
             U. S. Department of Labor                                Charlotte, North Carolina
             Atlanta, Georgia                                         For Respondent
                      For Complainant

Before: Administrative Law Judge Nancy J. Spies

                              ORDER AND DECISION
                       DISMISSING LATE NOTICE OF CONTEST

      On March 8, 2001, CSX Transportation (CSX) filed a notice of contest of the citation and

penalty issued by the Secretary on January 9, 2001. The Secretary contends that the notice of contest
was untimely and that the citation and penalty constitute a final order pursuant to § 10(a) of the
Occupational Safety and Health Act of 1970 (Act). On April 9, 2001, CSX filed a petition seeking
relief from the effects of the untimely contest pursuant to Federal Rule of Civil Procedure 60(b). The
Secretary filed her motion to dismiss and responded to CSX’s petition on May 9, 2001.
A hearing on the petition and motion was held on July 18, 2001, in Atlanta, Georgia. Both
parties submitted post-hearing briefs, and the case is ready for decision. For the reasons that follow,
CSX is not entitled to relief from its untimely notice of contest.
Background
On December 19, 2000, Occupational Safety and Health Administration (OSHA) Compliance
Officer A. J. Steel, Jr., inspected CSX’s Hilton Drawbridge facility in Wilmington, North Carolina.
L. D. Biddy represented CSX during the inspection. Biddy is the Assistant Regional Engineer of
Structures, with an office in Florence, South Carolina. As a result of Steel’s inspection, on

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January 9, 2001, the Raleigh, North Carolina, OSHA office issued CSX a three-item serious citation
with a recommended penalty of $10,800. The OSHA office mailed the citation certified, return-
receipt requested, and addressed it to “CSX Transportation and its successors, P. O. Box 45052,
Jacksonville, FL 32232-5052.” CSX’s corporate headquarters received the citation on January 12,
2001, as shown by the return receipt signed by James Gray, a CSX mailroom clerk with
responsibility for handling CSX’s incoming mail (Exh. C-1, C-2; Tr. 15-16, 74). The Raleigh OSHA
office received the return-receipt card on January 18, 2001 (Exh. C-2). CSX was required to contest
the citation and penalty within 15-working days after its receipt of the citation, that is, by February 5,
2001.
Steel stated that when his office realized that the 15-working day period had expired, he
attempted to contact Biddy in early March but was not successful (Tr. 22). On March 7, 2001, he
called the corporate office and spoke with Theresa Galloway, Director of Structures Maintenance
in the Engineering Department, in Jacksonville, to ask why CSX had not responded to the citation
(Tr. 24). Galloway told Steel that she did not have the citation and requested that he telefax a copy
to her (Tr. 24, 28, 67). The citation was faxed on March 8, 2001, and CSX filed a notice of contest
contesting the citation and penalties on that same day.
Discussion
It is undisputed that CSX filed its notice of contest approximately one month after the
expiration of the 15-working day period. The issue is whether CSX should be granted relief from
the effects of the untimely contest. Relief from a final order based on a late-filed notice of contest
may be granted under Rule 60(b) of the Federal Rules of Civil Procedure for the following reasons:
(b) . . . (1) mistake, inadvertence, surprise, or excusable neglect; . . . (3) fraud . . .
misrepresentation, or other misconduct of an adverse party; . . . or (6) any other
reason justifying relief from the operation of the judgment.

    CSX contends that it is entitled to relief because its untimely filing was due to the Secretary’s

misconduct, CSX’s excusable neglect, and other reasons justifying relief. The burden is on the
employer to prove a sufficient basis for relief under Rule 60(b). Roy Kay, Inc., 13 BNA OSHC

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2021, 2022 (No. 88-1748, 1989); Branciforte Builders, 9 BNA OSHC 2113 (No. 80-1920, 1981).
Misconduct
Rule 60(b)(3) incorporates the equitable tolling principles expressed by the United States
Court of Appeals for the Fifth Circuit in Atlantic Marine, Inc. v. OSHRC, 524 F. 2d 476 (5th Cir.
1975). An untimely filing of a notice of contest may be excused where the delay was caused by “the
Secretary’s deception or failure to follow proper procedures.” Id. at 478. CSX contends that the
Secretary engaged in misconduct by failing to return two telephone calls and by sending the citation
to a post office box rather than to Biddy in South Carolina.
Telephone Calls. On January 8, 2001, Steel held a closing conference with Biddy by
telephone and told him that a citation would be issued (Tr. 21, 89). Steel testified that Biddy did not
ask him during the closing conference to send the citation to any particular person or address
(Tr. 21). After the telephone call, Biddy informed his supervisor and Galloway that the citation was
coming (Tr. 21, 90). Biddy’s supervisors instructed him to find out where the citation would be sent.
Biddy states that he called the Raleigh OSHA office on January 9 and 10, 2001, and left a message
with a person who answered the telephone to have Steel call him (Tr. 91, 95, 96). Steel testified that
he never received any telephone messages from Biddy in January (Tr. 52). Steel further testified that
it is his practice at work to return all telephone requests for call backs (Tr. 56).
Even assuming that Steel did receive the two messages and neglected to return the calls, such
inaction is not misconduct that justifies CSX’s late filing. “OSHA’s failure to return a phone call
does not rise to a level of conduct sufficient to warrant relief under Rule 60(b)(3)” from an untimely
filed notice of contest. CalHar Construction, Inc., 18 BNA OSHC 2151, 2154 (No. 98-0367, 2000).
See Craig Mechanical, Inc., 16 BNA OSHC 1763, 1766 (No. 92-0372-S, 1994) (OSHA’s failure to
return an employer’s two phone calls is not a basis for relief from late filing of notice of contest).
Missed telephone contacts assume less importance because CSX actually received the citation.1

1
The citation and notification of penalty state in bold type that they must be contested in writing within 15-working
days and that if not, the citation and proposed penalties become a final order (Exh. C-1). See Keefe Earth Boring
Co., 14 BNA OSHC 2178 (No. 88-2521, 1991) (since OSHA provided extensive instructions of a plain and simple
nature as to how to contest citations in the citation itself, employer lacking experience with OSHA is not entitled to
relief from the late notice of contest). CSX has dealt with OSHA and has received citations before and is
experienced in OSHA procedures.

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CSX failed to prove that the alleged unreturned phone calls constituted misconduct by OSHA.
Accordingly, CSX is not entitled to relief on this basis.
Post Office Box. CSX further argues that OSHA engaged in misconduct by serving the
citation on it at a post office box without including an individual’s name in the address. It contends
these errors effectively deprived it of notice of the citation and of due process. CSX contends that
OSHA should have served the citation on Biddy, who participated in the inspection and who Steel
knew was in Florence, South Carolina.
Steel accessed CSX’s Jacksonville corporate mailing address from OSHA’s records. CSX
argues that OSHA should have known that it had problems receiving mail at that address. In fact,
this scenario was previously played out in 1996. OSHA investigated work at the North Carolina
bridges and issued CSX citations. The citations were sent to the same CSX post office box, were
signed for, and then were “lost” by CSX. Also in that instance when the OSHA compliance officer
called CSX to ask about the citations, Galloway advised that she had never seen them (Exhs. C-5,
C-6, C-7; Tr. 29-33, 69). A copy of the 1996 citations were then telefaxed to Theresa Galloway
(Tr. 28-30, 32-34, 69). CSX is incorrect that OSHA should have inferred from CSX’s 1996 problem
that it should never send citations to its corporate address. OSHA could well have concluded that
the mailroom’s problem was CSX’s and that CSX would fix it.
It is undisputed that the post office box is a correct address for CSX. Steel was following
OSHA’s procedures to send citations to the main corporate office (Tr. 19, 21). As CSX admits, the
post office box number on the citation is CSX’s designation for Ms. Galloway’s engineering
department, and mail to this post office box number should have been routed there (Tr. 71, 83). The
engineering department is responsible for handling all OSHA citations related to bridges (Tr. 85).
In fact, Theresa Galloway specifically advised Steel that he had sent the citation to the correct
address (Tr. 61-62).
The notice requirements for service of OSHA citations are governed by § 10(a) of the Act,
which requires notification by certified mail. In the instant case, OSHA sent the citation to CSX by
certified mail; and as evidenced by the return receipt, it was signed for by a CSX mailroom
employee. The service was valid. The Commission has long held that service on an employee, who
will know how to forward the citation in the corporate hierarchy is proper, since “the service is

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reasonably calculated to provide an employer with knowledge of the citation and notification of
proposed penalty and an opportunity to determine whether to abate or contest. B. J. Hughes, Inc.,
7 BNA OSHC 1471, 1474 (No. 76-2165, 1979). “(T)he Commission has upheld certified mail
service of a citation where it was addressed to the company and was sent to the employer’s post
office address, where it was received by a low-level employee.” NYNEX, 18 BNA OSHC 1967,
1970 (No. 95-1671, 1999). See Sroudsburg Dyeing & Finishing Co., 13 BNA OSHC 2058
(No. 88-1830, 1989) (service is sufficient where citation addressed to company, not to any particular
official, and sent to company’s post office address).
There is nothing in the record to indicate that Steel sought to deceive CSX about the citation
or to prevent it from receiving the citation. To the contrary, Steel told Biddy that the citation was
coming. Galloway testified that she did not believe Steel was in any way attempting to prevent
delivery of the citation (Tr. 80). CSX has failed to prove any misconduct by OSHA, and it is not
entitled to relief from the final order on the theory of misconduct.
Excusable Neglect
CSX contends that its failure to timely file a notice of contest was excusable neglect since
it infrequently misdirected or lost mail destined for the engineering department. This was only the
second time that Galloway had not received an OSHA citation, the first being in 1996. CSX also
maintains that since no manager received the citation, CSX should be excused from the late filing.
The Supreme Court clarified “excusable neglect” in Pioneer Investment Services Co. v.
Brunswick Associates Ltd. Partnership, 507 U. S. 380 (1993). The Court concluded that whether
a party’s neglect of a deadline may be excused presents equitable questions taking account of all
relevant surrounding circumstances, such as “the reasons for the delay, including whether it was
within the reasonable control of the movant, and whether the movant acted in good faith.” Id. at 395.
Although Pioneer involved a Bankruptcy Act Rule, the United States Circuit Courts generally have
held that Pioneer’s analysis of “excusable neglect” applies to Rule 60(b) motions. Robb v. Norfolk
& Western Railway Co., 122 F. 3d 354, 361-62 (7th Cir. 1997).
CSX does not know what happened to the citation after Gray signed for it. However,
receiving, handling, and routing its mail are within CSX’s “reasonable control.” According to
Galloway, CSX’s mailroom employees pick up mail at the post office, return with it to the mailroom

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in its main office building on Waters Street in Jacksonville, and route it to the various departments
(Tr. 76). The mailroom handles 3½ to 4 million pieces of mail in a year for approximately 5000
employees in the Jacksonville area (Tr. 100-101). According to Cheri Parks, CSX director of
document services (i.e., mail), CSX receives about 1500 to 2000 pieces of “mystery” mail (mail
without a personal identifier) each week (Tr. 101). This mail goes into a “dead letter tub” and is
opened, identified, then routed after all the “identified” mail has been dispersed. Parks admitted that
even certified mail could end up in the dead letter tub (Tr. 103). Undoubtedly, distribution of such
a large volume of mail could present a daunting task. Nevertheless, the responsibility to maintain
orderly procedures for handling important business documents rests with CSX. Louisiana-Pacific
Corp., 13 BNA OSHC 2020 (No. 86-1266, 1989).
The citation was sent to the post office box number for the engineering department, and with
that address it should have been routed to the engineering department. The engineering department
has its own mailroom (Tr. 71). Parks stated that she did not know how that department’s mailroom
handled “mystery” mail (Tr. 102). CSX admits that its mail-handling system can be inadequate.
When first contacted by Steel, Galloway forthrightly “bad-mouthed” the CSX mail system (Tr. 78).
In a later three-way conversation including Galloway, the individual in charge of the mailroom told
Steel that the “mail system is just terrible here” (Tr. 28). Galloway testified that she “was receiving
mail for people who had been retired and dead for the last six to ten years,” that express mail arrived
late, and that mail could be misdirected (Tr. 78-79).
Rule 60(b)(1) “requires a showing of ‘excusable neglect’ and not just a showing of simple
negligence.” Louisiana-Pacific Corp., supra, 13 BNA OSHC 2021 . See, J. F. Shea Co.,
Inc.,15 BNA OSHC 1092 (simple negligence is not an adequate excuse for relief under Rule 60(b)).
CSX did not appear to have timely procedures for handling important and date sensitive mail.
Failure of its mailroom to bring certified mail to the attention of the proper officer or manager of the
company does not constitute excusable neglect. See Stroudsburg Dyeing (failure of employee, who
received mailed citation, to bring it to the attention of proper officer of the company does not
constitute “excusable neglect” or “any other reason justifying relief”).
The Commission has consistently denied Rule 60(b) relief where the employer’s procedures
for handling documents were to blame for the untimely filing of its notice of contest of OSHA

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citations. See Montgomery Security Doors & Ornamental Iron, Inc., 18 BNA OSHC 2145, 2148
(No. 97-1906, 2000) (record showed a breakdown of business procedures and delay unjustified even
assuming it was due to employee sabotage); NYNEX, 18 BNA OSHC 1944, 1947 (No. 95-1671,
1999) (no relief where employee redirected certified mail since company was without adequate
procedures); J. F. Shea, supra (late notice of contest based on incorrect date stamp on citation by
office assistant is not excusable neglect); and Louisiana-Pacific Corp., supra (change in
management resulting in a failure to properly handle important documents is insufficient excuse for
late filing).
CSX relies on Russell B. LeFrois Builder, Inc., 18 BNA OSHC 1978 (No. 98-1099, 1999).
In that case the Commission found excusable neglect for an employer who had not experienced a
problem with its mail system during the previous 18 years and whose employee picked up the
certified mail at its post office box but it fell beneath the car seat. Distinguishing CSX’s situation
from that case is the fact that misdirected or lost mail sent to its corporate office does not appear to
be not an isolated event. CSX has had problems with its mail system for certified mail as evidenced
by loss of the 1996 OSHA citations and by ongoing problems identified by Galloway and Parks.
CSX has failed to prove excusable neglect.
Other Reasons for Relief
CSX contends that it is entitled to relief under Rule 60(b)(6) because of a combination of
mitigating factors occurring without deliberate fault or carelessness. The mitigating factors it cites
are OSHA’s questionable conduct in sending the citation to the post office box and the asserted lack
of responsiveness.
Generally, in applying Rule 60(b)(6) the “courts have set aside a final judgment or order
when circumstances such as absence, illness, or a similar disability prevent a party from acting to
protect its interests.” Branciforte Builders supra at 2117. In the instant case, CSX has not
established any basis justifying relief. CSX failed to prove misconduct on OSHA’s part, and it
failed to prove an excusable mistake on its own part.
CSX did not carry its burden of proving misconduct, mistake, inadvertence, surprise,
excusable neglect, or another reason justifying relief under Rule 60(b). The citation issued on
January 9, 2001, is a final order of the Commission pursuant to § 10(a) of the Act.

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FINDINGS OF FACT AND CONCLUSIONS OF LAW
The foregoing decision constitutes the findings of fact and conclusions of law in accordance
with Rule 52(a) of the Federal Rules of Civil Procedure.
ORDER
The Secretary’s motion to dismiss the untimely notice of contest is GRANTED, and the
January 9, 2001, citation and penalty of $10,800 are affirmed.

                                                 /s/
                                                 NANCY J. SPIES
                                                 Judge

Date: March 18, 2002

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