Constructora Marvic, Inc.

Plain-English summary

Constructora Marvic mailed its notice of contest after the 15-working-day deadline and did not respond to the Secretary's dismissal motion. The company said this was its first OSHA citation, it expected an informal meeting, it had corrected the hazards, and the penalty strained its finances. The judge held that lack of OSHA experience and failure to understand the filing period do not constitute excusable neglect. He dismissed the late notice and affirmed the citation in all respects.

Decision snapshot

• Cited standard(s): None specified in this late-filing decision.
• Outcome: The late notice of contest was dismissed and the citation was affirmed in all respects.
• Key point: A first-time employer must still follow the contest instructions and deadline stated in an OSHA citation.

Full text (OSHRC public release)

SECRETARY OF LABOR,
Complainant,
v. OSHRC Docket No. 02-1411
CONSTRUCTORA MARVIC, INC.,
Respondent.

                                 DECISION AND ORDER


   The Secretary has filed a motion to dismiss Respondent’s notice of contest (“NOC”)

as untimely. Respondent has not filed a response to the motion.
Background
The Occupational Safety and Health Administration (“OSHA”) inspected a work site
of Respondent, Constructora Marvic, Inc., located in Guaynabo, Puerto Rico, on February 27,
2002. Pursuant to the inspection, OSHA issued Respondent a Citation and Notification of
Penalty (“Citation”) on June 10, 2002. OSHA mailed the Citation by certified mail, return
receipt requested, and, on June 20, 2002, OSHA received the green return receipt card. The
receipt had the name and address of the company on it, and there was a signature in the
signature space, but the receipt showed neither the printed name of the person who signed for
the Citation nor the date of delivery.1 Based on the date that OSHA received the return receipt
card, the last day on which Respondent could file an NOC was determined to be July 12,
2002.2 However, Respondent did not file an NOC by that date, but, instead, filed its NOC

    1
        The signature on the receipt is not legible. See Exhibit B to the Secretary’s motion.
    2
     Apparently, OSHA initially determined the NOC deadline to be July 11, 2002. See OSHA’s

July 17, 2002 letter to Respondent. See also Exhibit B to the motion. However, in her motion, the
Secretary states that “for the purposes of this motion and in Respondent’s favor,” she has assumed
the date of receipt of the Citation to be June 20, 2002.
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letter on July 15, 2002.3 On July 17, 2002, OSHA sent a letter to Respondent, advising that
the NOC had not been filed within the requisite 15 working day period and that the Citation
had thus become a “final order.” OSHA also advised that its decision could be appealed
through the Occupational Safety and Health Review Commission (“the Commission”). On
August 19, 2002, Respondent sent a letter to the Commission, asking that the decision be
reconsidered and that it be given the opportunity to “meet and further discuss our situation.”
The company indicated that this was its first experience with an OSHA citation and that it
had been under the impression that its letter would be answered with an appointment for an
informal meeting. The company also indicated that the penalty seemed high, considering that
all of the problems found at the site had been corrected while the inspector was still there,
that it had gone to considerable expense in renting substitute scaffolding for the site, and that
the amount of the penalty was an issue in light of the company’s financial situation.
Discussion
Section 10(a) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et
seq. (“the Act”), requires an employer to notify the Secretary of the intent to contest the
citation within 15 working days of receipt, and the failure to file a timely NOC results in the
citation becoming a final order of the Commission by operation of law. The record here
plainly shows that Respondent did not file its NOC within the required 15-day period. An
otherwise untimely NOC may be accepted where the delay in filing was caused by deception
on the part of the Secretary or her failure to follow proper procedures. A late filing may also
be excused if the 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

   3
     Although the NOC letter is dated July 10, 2002, the U.S. Postal Service date stamp on the

copy of the certified mail form (PS Form 3800) shows that the letter was mailed on July 15, 2002;
further, the return receipt card (PS Form 3811) for the NOC letter shows that OSHA received the
letter on July 16, 2002. See Exhibit C to the Secretary’s motion.
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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 indication and no contention that the late
filing here was caused by deception on the Secretary’s part or her failure to follow proper
procedures. Rather, based on the foregoing, Respondent’s letter would seem to be a request
that the untimely filing be excused. However, Rule 60(b) relief is not justified under the
circumstances of this case, for the following reasons.
Commission precedent is well settled that the OSHA citation plainly states the
requirement to file an NOC 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 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). Finally, the Commission has held that “a business
must maintain orderly procedures for handling important documents” and that when the lack
of such procedures results in an untimely NOC the late filing will be deemed to be simple
negligence and not excusable neglect. Louisiana-Pacific Corp., 13 BNA OSHC 2020, 2021
(No. 86-1266, 1989). The Commission has therefore denied Rule 60(b) relief in cases where
the late filing was due to mishandling the citation, changes in management, or absence of the
individual responsible for OSHA matters. See, e.g., Louisiana-Pacific Corp., 13 BNA OSHC
2020, 2021 (No. 86-1266, 1989); J.F. Shea Co., 15 BNA OSHC 1092, 1094 (No. 89-976,
1991); E.K. Constr. Co., 15 BNA OSHC 1165, 1166 (No. 90-2460, 1991). The Commission
has also denied relief in cases where the responsible individual did not appreciate the
importance of the filing period due to lack of experience with OSHA. Roy Kay, Inc., 13 BNA
OSHC 2021, 2022 (No. 88-1748, 1989).
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   I am sympathetic to the plight of Respondent in this matter, and I have considered the

company’s statements that this was its first experience with an OSHA citation, that it
corrected all of the hazards found while the inspector was still at the site, and that it rented
substitute scaffolding, at considerable expense, for use at the site after the inspection.
However, I am constrained to follow Commission precedent, and, on the basis of that
precedent, set out supra, and in view of the circumstances of this case, Respondent is not
entitled to Rule 60(b) relief.4 The Secretary’s motion to dismiss is accordingly GRANTED,
and the Citation is AFFIRMED in all respects.
So ORDERED.

                                                  /s/         .
                                                  Irving Sommer
                                                  Chief Judge

Date: December 30, 2002
Washington, D.C.

   4
     In deciding this case, I have noted the Secretary’s argument that the Commission does not

have authority to accept a late-filed NOC pursuant to Rule 60(b), based on Chao v. Russell P. Le
Frois Builder, Inc., No. 00-4057 (2d Cir. May 10, 2002). However, this case is not within the Second
Circuit’s jurisdiction. Moreover, even if the Commission acquiesces in the Second Circuit’s decision
with respect to cases in that jurisdiction, it is unknown at this point in time whether the Commission
will overturn its long-standing precedent in regard to cases falling within other jurisdictions. See
HRH Constr. Corp., 19 BNA OSHC 2042, 2044-45 (No. 99-1614, 2002).