Davis Brothers Construction Company, Inc.

Plain-English summary

Davis Brothers claimed that its safety consultant timely left a notice of contest with an OSHA receptionist after an informal conference. OSHA had no record of receiving the letter and sent two abatement notices before receiving a later copy. The judge credited OSHA's established document-handling procedures over the consultant's uncorroborated memory and dismissed the late contest. The Commission found no substantial error and affirmed the judge's decision.

Decision snapshot

• Cited standard(s): None specified in this late-filing decision.
• Outcome: The dismissal of the untimely notice of contest was affirmed.
• Key point: An uncorroborated recollection that a contest letter was delivered did not overcome evidence of OSHA's orderly receipt procedures and lack of any contemporaneous record.

Full text (OSHRC public release)

Davis Brothers Construction Company,Inc., Docket No. 02-1740

Walter, J. David
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Walter, J. David
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2018-08-03T14:43:00Z
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EN-US
X-NONE
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SECRETARY OF
LABOR,

Complainant,

v.

OSHRC
Docket No. 02-1740

DAVIS BROTHERS
CONSTRUCTION COMPANY, INC.,

Respondent.

DECISION

Before the Commission is a decision and order of
Administrative Law Judge Sidney Goldstein finding that Respondent Davis
Brothers Construction Company, Inc. failed to file a timely notice of contest
pursuant to section 10(a) of the Occupational Safety and Health Act, 29 U.S.C.
§ 659(a). Having reviewed the entire record in this case, we find no
substantial error in the judge’s decision. Accordingly, we affirm his decision.

/s/____

W.
Scott Railton

Chairman

/s/_____

Thomasina
V. Rogers

Commissioner

/s/______

James
M. Stephens

Dated:
11/04/2004                                                                                         Commissioner

SECRETARY OF LABOR,

Complainant,

v.

OSHRC DOCKET NO. 02-1740

DAVIS BROTHERS CONSTRUCTION COMPANY, INC.,

Respondent.

APPEARANCES:

For
the Complainant:

Lindsay
McCleskey, Esq., Tom Paige, Esq., Office of the Solicitor, U.S. Department of Labor,
Dallas, Texas

For
the Respondent: 

Thomas Scott, W.C. Blayney & Associates, Humble, Texas

Before:
           Administrative
Law Judge: Sydney J. Goldstein

DECISION AND ORDER

This
matter comes up on Complainant’s motion to dismiss Respondent’s late notice of
contest. On February 10, 2003, an evidentiary hearing was held in Houston,
Texas, in response to Respondent’s request for relief from judgment.

Facts

On
August 8, 2002, OSHA issued a citation and notification of penalty to
Respondent, Davis Brothers Construction Company (Davis )( Tr.
9; Exh . C-2). On August 14, 2002, Davis notified OSHA
that it was in receipt of the citation, and requested
an informal conference (Tr. 11; Exh . C-4). On August
29, 2002, the informal conference was held at OSHA’s Denver area office (Tr.
28, 32). Brad Baptiste, OSHA’s assistant area director, Thomas Scott, a safety
consultant with W.C. Blayney & Associates, and Randy Blankenship, a Davis
employee, were present at the informal conference (Tr. 35-36). Baptiste
testified that he made a “couple of different” settlement offers to the Davis
representatives, who told him that they did not have the authority to settle
the case (Tr. 30). Scott and Blankenship told Baptiste that they would get back
to him with an answer, or would send in a contest
letter prior to the September 9 th deadline (Tr. 31). Thomas Scott
testified that following the conference, he discussed OSHA’s settlement offers
with Mr. Blankenship, and told him that he was going to recommend that Davis’
owner, Tom Davis, contest the case (Tr. 36). Scott then testified that after
Blankenship left, he signed a copy of a prepared notice of contest letter and
left it with a receptionist, whom he later identified as Ms. Joan Gamble (Tr.
36-37).

Herbert
Gibson, OSHA’s Denver Area Director, testified that when OSHA’s receptionists
receive documents they date stamp them, pull the file and give both to him (Tr.
27, 44). Gibson further stated that after a notice of contest is received, it
is entered into OSHA’s computer database. A certificate is then generated and
sent to the Occupational Safety and Health Review Commission along with the
original notice of contest, and a copy of the citation (Tr. 24). If a notice of
contest is not received, an abatement letter and penalty collection letter is
sent to the employer (Tr. 16).

On
September 9, 2002, an abatement letter was sent to Davis Brothers (Tr. 17; Exh . 5). Davis did not reply to that letter. On September
23, a second abatement letter was mailed (Tr. 18; Exh .
6). In response to the second notice, W.C. Blayney sent a letter dated October
4, 2002, stating that a notice of contest had been left at the Denver OSHA
Office on August 29, 2002. A notice of contest letter signed by Thomas Scott,
and dated August 14, 2002 was enclosed with the October 4 correspondence (Tr.
19-20; Exh . 7).

Herbert
Gibson testified that he did not see the notice of contest until October 7,
2002, and could find no copy of it, or reference to it in Davis’ case file (Tr.
21-22). Gibson further testified that in his 25 years at the Denver area
office, his staff has never lost a notice of contest letter (Tr. 46).

Discussion

A
citation that is not contested within 15 days automatically becomes an final order of the Commission pursuant to §10(a) of the
Occupational Safety and Health Act of 1970 (29 U.S.C. Sections 651 - 678;
hereafter called the “Act”). The Commission is without jurisdiction to review
that final order except in limited circumstances. For instance, where the late
filing has resulted from a deception or a failure to follow proper procedures
the party is entitled to a hearing on any allegations of misconduct. B.J.
Hughes Inc. 7 BNA OSHC 1471 (No. 76-2165, 1979); Atlantic Marine Inc.
and Atlantic Dry Dock Corp. , 524 F.2d 476 (5th Cir. 1975).

In
this case, Davis alleges that a notice of contest was filed in a timely
manner, but that OSHA failed to follow its own procedures and lost the contest
letter. There is, however, insufficient evidence in the record to support
Davis’ position. Complainant convincingly established that its OSHA office
maintains orderly procedures for the handling of important documents. According
to the uncontradicted testimony of Herbert Gibson, OSHA has never lost a notice
of contest letter. Respondent’s case, on the other hand, depends solely on the
uncorroborated memory of Mr. Scott.

Davis
failed to show that the Secretary’s well established procedures were abandoned
in this instance, resulting in the loss of its notice of contest , see, Keefe
Earth Boring Company, Inc ., 14 BNA OSHC 2187, 1991-93 CCH OSHD ¶29,277 (No.
88-2521, 1991)[ Respondent bears the burden of showing
a sufficient basis for relief from judgment]. Complainant’s motion is,
therefore, GRANTED. 

So Ordered.

/s/

Sidney J. Goldstein

Judge,
OSHRC

Dated: April 23, 2003