FM Construction Company

Plain-English summary

OSHA mailed a citation to the address FM Construction's owner had provided, and the owner's sister signed for it. The owner visited that address to collect business mail but did not retrieve the citation until after the 15-working-day contest period had expired. The judge found that service was reasonably calculated to notify the company and that its lack of orderly procedures for important mail was simple negligence, not excusable neglect. The late notice of contest was dismissed, and the citation and proposed penalty were affirmed in full.

Decision snapshot

• Cited standard(s): The decision does not identify the substantive standards in the underlying citation.
• Outcome: Late notice of contest dismissed; citation and proposed penalty affirmed in full.
• Key point: A business cannot obtain late-contest relief when its owner supplied the mailing address but failed to maintain procedures for promptly collecting important mail there.

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

Phone: (202) 606-5405 Fax: (202) 606-5409

                                      :

SECRETARY OF LABOR, :
Complainant, :
:
v. : OSHRC DOCKET NO. 01-1063
:
FM CONSTRUCTION COMPANY, :
Respondent. :
______:

Appearances: Donyell M. Thompson, Esquire Robert Seiffert, Esquire
New York, New York Oceanside, New York
For the Complainant. For the Respondent.

Before: Chief Judge Irving Sommer

                                 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”), to determine whether Respondent, FM Construction Company, filed a
timely notice of contest (“NOC”) of a citation and notification of penalty issued by the Occupational
Safety and Health Administration (“OSHA”).
BACKGROUND
The underlying citation and proposed penalty arose from an inspection OSHA conducted on
April 4, 2001, at Respondent’s work site in Merrick, New York. (C-1.) OSHA sent the citation and
notification of penalty by certified mail, return receipt requested, on April 12, 2001, to the address
provided by Respondent. (Tr. 5-14.) Santa Micalizzi, the company owner’s sister, signed the green
certified mail return receipt acknowledging receipt of the citation and notification of penalty on April
17, 2001. (C-3.) Respondent did not file a NOC, and the citation and proposed penalty became a
final order of the Commission by operation of law on May 8, 2001. See section 10(a) of the Act.
On May 16, 2001, Respondent’s attorney telephoned OSHA and then mailed the agency a
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letter requesting an informal conference, because, according to Respondent’s counsel, the company
had received the citation and notification of penalty “last week.” (Tr. 14-17; C-4.) The Commission
received this letter on June 20, 2001. The Secretary filed a motion to dismiss Respondent’s late NOC
on August 1, 2001. A hearing on this matter was held on January 30, 2002.
DISCUSSION
The record clearly demonstrates that Respondent did not file a timely NOC. 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 do so results in the citation and penalty becoming a final
judgment of the Commission by operation of law. Under Commission precedent, an otherwise
untimely NOC may be accepted if the employer can show that the late filing was caused by the
Secretary’s deception or her failure to follow proper procedures. B.J. Hughes, Inc., 7 BNA OSHC
1471 (No. 76-2165, 1979). A late filing may also be excused if the final order was entered as a result
of “mistake, inadvertence, surprise or excusable neglect” or for “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 Branciforte Builders, Inc., 9 BNA OSHC 2113 (No. 80-1920,
1981); see also Fed. R. Civ. P. 60(b) (“Rule 60(b)”). There is no allegation and no evidence that FM
Construction’s failure to file a timely NOC was caused by deception on the part of the Secretary or
her failure to follow proper procedures. Rather, Respondent appears to argue that the failure to file
was a result of excusable neglect and that mitigating circumstances justify relief.
Respondent’s request for relief must be denied. It is undisputed that OSHA sent the citation
by certified mail to the address provided by Frank Micalizzi, FM Construction’s owner. (Tr. 5-14.)
It is further undisputed that Mr. Micalizzi’s sister, Santa Micalizzi, lived at the designated address
and signed for the citation on April 17, 2001. (C-3.) Respondent apparently argues that Santa
Micalizzi was not authorized to sign for documents on behalf of the company and that only Frank
Micalizzi, the owner, had that authority. According to Commission precedent, service is proper if
it “is reasonably calculated to provide an employer with knowledge of the citation and notification
of proposed penalty and an opportunity to determine whether to contest or abate.” B.J. Hughes, 7
BNA OSHC at 1474. Given that Mr. Micalizzi himself gave OSHA his mother’s residence as his
business mailing address, even though he has not lived at that address for two and a half or three and
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a half years, I find that service was reasonably calculated to provide Respondent with knowledge of
the citation and notification of penalty.1 (Tr. 22-23, 28-29.) Mr. Micalizzi testified that he visited his
mother’s home “at least once a week” to pick up his mail. (Tr. 23, 29.) Yet, he apparently failed to
pick up his mail for almost four weeks after his sister signed for the citation. Mr. Micalizzi’s
explanation that he “went away for a few days,” but came back on May 10, 2001, does not explain
his failure to pick up his mail until May 11 or 12, 2001. (Tr. 23.) Commission precedent is well
settled that businesses must have orderly procedures for handling important documents, and it is
clear that Respondent did not have such procedures in place and that this was the reason for its
failure to file a timely NOC. See J.F. Shea Co., 15 BNA OSHC 1092, 1094 (No. 89-976, 1991). I
conclude, therefore, that Respondent’s failure to file a NOC within the prescribed period was not
excusable neglect, but, rather, simple negligence, which is not a basis for relief under Rule 60(b).2
See Roy Kay, Inc., 13 BNA OSHC 2021 (No. 88-1748, 1989).
In light of the above, I conclude that the citation and notification of proposed penalty was
properly served, that Respondent did not file a timely NOC, and that the company is not entitled to
relief pursuant to Rule 60(b). The Secretary’s motion to dismiss is accordingly GRANTED, and the
citation and notification of penalty is AFFIRMED in all respects.
So ORDERED.

                                                       /s/
                                                     IRVING SOMMER
                                                     Chief Judge

Date: 15 APR 2002
Washington, D.C.

    1
     Based on his testimony at the hearing, Mr. Micalizzi evidently used his mother’s address for

all of his business correspondence. (Tr. 28-29.)
2
At the hearing, Mr. Micalizzi testified that he did not attend school in the United States and
that he does not understand English very well. He did not, however, specifically testify that he did
not understand the citation. Even if he had, that would provide no basis for relief, particularly in view
of his testimony that he has been in the construction business since the late 1970’s and that he
regularly enters into agreements on behalf of FM Construction. (Tr. 25-28.)