Big Poll Construction, Inc.

Plain-English summary

Big Poll Construction filed its notice of contest after the 15-working-day deadline and did not respond to the Secretary's dismissal motion. The company had attributed the delay to confusion about a letter from its engineer, but that letter predated the citation and did not concern contesting it. The judge held that misunderstanding the citation or failing to maintain orderly procedures for important documents did not establish 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: Confusion over an unrelated consultant letter does not excuse missing the clearly stated deadline for contesting an OSHA citation.

Full text (OSHRC public release)

SECRETARY OF LABOR,
Complainant,
v. OSHRC Docket No. 02-1639
BIG POLL CONSTRUCTION, INC.,
Respondent.

                                 DECISION AND ORDER

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

untimely. Respondent has filed no response to the motion.
Background
The Occupational Safety and Health Administration (“OSHA”) inspected a work site of
Respondent, Big Poll Construction, Inc., located in Brooklyn, New York, on May 16, 2002. As a
result, OSHA issued Respondent a Citation and Notification of Penalty (“Citation”) on June 25,
2002. OSHA mailed the Citation by certified mail, return receipt requested, and Respondent received
the Citation on June 27, 2002. 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 Occupational Safety and Health Review Commission (“the
Commission”) by operation of law. Based on the date that it received the Citation, Respondent was
required to file its NOC by July 19, 2002. However, Respondent did not file an NOC by that date,
and, in fact, did not file its NOC until August 7, 2002. In its NOC letter, Respondent stated that the
reason the NOC was not filed within the required 15-day period was due to “a misunderstanding
between us and our engineer ... regarding a letter sent to your department by G and R Consultants,
confusing his letter and response with our responsibility in answering any complaint or/and
violations.” The Secretary filed her motion to dismiss Respondent’s NOC as untimely on December
4, 2002, and, as noted above, Respondent has not filed a response to the motion.
Discussion
The record clearly shows that Respondent did not file an NOC within the requisite 15
working day period. An otherwise untimely NOC may be accepted where the delay in filing was
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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
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 the Secretary’s deception or failure to follow proper procedures. In light of the statement
in its NOC letter, set out above, Respondent would appear to be requesting that the late filing in this
case be excused under the circumstances. Respondent’s statement will therefore be construed as a
request for Rule 60(b) relief. However, no such relief is warranted in this case.
First, the letter to which Respondent refers in its NOC letter, that is, the letter written by its
engineer, is dated June 18, 2002, which was a full seven days before OSHA even issued the Citation;
moreover, the engineer’s letter addresses the responsibility of the engineering company at the work
site and has nothing to do with the contesting of a citation. See Exhibit D to the Secretary’s motion.
On the basis of Exhibit D, Respondent’s suggestion that it was confused about its responsibility to
contest the Citation and that it believed that its engineer would do so is not persuasive.
Second, 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 accordingly 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,
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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).
Although I am sympathetic to Respondent’s plight in this matter, I am constrained to decide
cases based on Commission precedent and the circumstances that are presented in each particular
case. In view of that precedent, set out supra, and Respondent’s asserted reason for the untimely
filing, there is no justification for the granting of Rule 60(b) relief in this case.1 The Secretary’s
motion to dismiss Respondent’s NOC as untimely is accordingly GRANTED, and the Citation is
AFFIRMED in all respects.
So ORDERED.

                                                      /s/
                                                   Irving Sommer
                                                   Chief Judge

Date: January 13, 2003
Washington, D.C.

   1
      In deciding this case in this manner, I am aware of the Second Circuit’s decision, Chao v.

Russell P. Le Frois Builder, Inc., No. 00-4057 (2d Cir. May 10, 2002), holding that the Commission
does not have authority to accept a late-filed NOC pursuant to Rule 60(b). I am also aware that this
case could be appealed to the Second Circuit. However, it is unlikely that Respondent would do so,
in light of the Second Circuit’s decision, and, for this reason, I have decided this matter pursuant to
Rule 60(b). See HRH Constr. Corp., 19 BNA OSHC 2042, 2044-45 (No. 99-1614, 2002). In any
case, the end result for Respondent is the same whether this matter is decided under Commission
precedent or the Second Circuit’s decision.