Extreme Buildings Services Corp.

Plain-English summary

Extreme Buildings Services did not claim OSHA's certified-mail package despite three postal notices. OSHA then delivered the citation by Federal Express, but the company mailed its notice of contest after the resulting 15-working-day deadline. The company did not respond to the Secretary's dismissal motion or provide facts supporting relief from the deadline. The judge found no deception, procedural failure, or excusable neglect, 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: Ignoring certified-mail notices and then missing the deadline after actual delivery does not establish grounds for late-filing relief.

Full text (OSHRC public release)

SECRETARY OF LABOR,
Complainant,
v. OSHRC Docket No. 02-1802
EXTREME BUILDING SERVICES CORP.,
Respondent.

                                 DECISION AND ORDER

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

(“NOC”) as untimely. Respondent has not filed a response to the Motion.1
Background
The Occupational Safety and Health Administration (“OSHA”) inspected a work site of
Respondent, Extreme Building Services Corp., located in the Bronx, New York, on May 15, 2002.
As a result of the inspection, OSHA issued Respondent a Citation and Notification of Penalty
(“Citation”) on August 5, 2002. OSHA mailed the Citation by certified mail, return receipt requested,
to Respondent’s business address in Great Neck, New York, on August 7, 2002. The U.S. Postal
Service provided notice to Respondent on August 8, 24 and 30, 2002, that it had a certified mail
package; however, Respondent never picked up the package, and the package was returned to OSHA
as unclaimed. See Exhibit B to the Secretary’s Brief. On September 11, 2002, OSHA again sent the
Citation to Respondent, this time by Federal Express; the Citation was delivered to Respondent’s

   1
     This case was designated for E-Z Trial under Commission Rule 203(a) on November 21,

2002. However, in light of the Secretary’s subsequent filing of her Motion, and upon review of the
      record in this case, it is concluded that this matter is inappropriate for E-Z Trial. E-Z Trial is
      accordingly discontinued, and this case is returned to conventional proceedings. It is further
      concluded that no hearing in this matter is required and that a decision based on the documentation
      in the record is appropriate, for the following reasons. My office called both the Secretary and
      Respondent on December 11, 2002, to offer the opportunity for a phone conference in this case. The
      Secretary’s counsel was available but Respondent’s representative was not, and, although a message
      was left for Respondent’s representative to contact my office, no such contact occurred. That
      Respondent responded to neither the Secretary’s Motion nor the message my office left persuades
      me that Respondent is not interested in pursuing this matter. Moreover, it is clear from the record
      that the NOC was untimely and that, as explained infra, there is no basis for accepting the late filing.
       2

place of business on September 12, 2002, and an individual named “L. Gelb” signed for it. See
Exhibits C and D to the Secretary’s Brief. On October 7, 2002, Respondent mailed an NOC letter
to OSHA.2 See Exhibit E to the Secretary’s Brief. In addition to contesting the Citation, Respondent
asserted in its letter that the issuance of the Citation “4 months after the inspection, and 24 hours
after we obtained subpoenas for your inspectors, their records, and yourself leads one to suspect a
fraud being perpetrated in the interest of defending regulatory abuse and conspiracy with organized
labor.” The Secretary filed her Motion to Dismiss the NOC on November 22, 2002, and, as noted
above, Respondent has filed no response to the Motion.
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 Secretary contends the NOC filing period
ended on August 29, 2002, which was 15 working days after the August 8, 2002 notice, and that
Respondent did not file an NOC on or before August 29, 2002. The Secretary further contends that,
even discounting the August 8 notice, Respondent failed to file a timely NOC after actual receipt of
the Citation on September 12, 2002. The Secretary points out that it is Respondent’s burden to show
that it qualifies for relief from the late filing; she also points out that there is no basis for excusing
the untimely NOC that was mailed on October 7, 2002.3 I agree.
The record here plainly shows that the company did not file its NOC within 15 working days
of September 12, 2002, the date that it actually received the Citation.4 However, according to long-

    2
     Although Respondent’s NOC letter is dated October 3, 2002, the postmark on the envelope

is dated October 7, 2002. See Exhibit E to the Secretary’s Brief.
3
As the Secretary notes, the Commission has held that where the postmark date of an NOC
conflicts with the date on the letter itself, the postmark date is presumed to be the date of mailing
unless there is persuasive evidence to the contrary. Kerr-McGee Chem. Corp., 4 BNA OSHC 1739
(No. 9890, 1976).
4
I have noted that Respondent failed to retrieve the certified mail package containing the
Citation, despite three notices from the U.S. Postal Service. I have also noted that Respondent did
(continued...)
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standing Commission precedent, 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
interests.” See Branciforte Builders, Inc., 9 BNA OSHC 2113 (No. 80-1920, 1981); see also Fed.
R. Civ. P. 60(b) (“Rule 60(b)”). The date the NOC was filed was not in issue when Respondent
submitted its NOC letter, and there is nothing in Respondent’s letter, including the statement set out
supra, that addresses this matter. Regardless, Respondent was clearly put on notice that the NOC
filing date was in issue once the Secretary filed her Motion, but, despite this notice, Respondent has
not responded to the Secretary’s Motion or submitted anything at all to support a conclusion that its
NOC should be accepted notwithstanding the late filing. I find, therefore, that there is no basis for
concluding that the late filing was caused by deception on the Secretary’s part or her failure to follow
proper procedures. There is likewise no basis for finding that Respondent’s untimely filing should
be excused pursuant to Rule 60(b), 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

   4
     (...continued)

not retrieve a prior certified mail package that contained a notice of complaint as to an alleged
violation; the package was sent by an OSHA CO in May of 2002 and was returned as unclaimed.
Finally, I have noted that Respondent did not retrieve the certified mail package containing the
Secretary’s motion for an extension of time, dated October 25, 2002, and that that package was
returned as unclaimed. See Exhibits F through I to the Secretary’s Motion. Regardless, giving the
benefit of the doubt to Respondent, I find the NOC filing period in this case ended October 3, 2002.
 4

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 thus 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).
Upon considering the circumstances of this case, and in light of the Commission precedent
set out supra, which I am constrained to follow, Respondent is not entitled to Rule 60(b) relief.5 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: December 30, 2002
Washington, D.C.

    5
      In deciding this case in this manner, I am aware of the Secretary’s argument that the

Commission does not have authority to accept a late-filed NOC under Rule 60(b), based on Chao
v. Russell P. Le Frois Builder, Inc., No. 00-4057 (2d Cir. May 10, 2002). 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).
Regardless, the end result for Respondent is the same whether this matter is decided under
Commission precedent or the Second Circuit’s decision.