F & G Sons Contractors, Inc.

Plain-English summary

OSHA's certified-mail return receipt showed that the citation was accepted at F & G Sons Contractors' home-based office by the company president's wife. The president claimed that she had signed only a request for later delivery and that the citation never arrived, but she did not testify and the physical receipt contradicted that account. The judge found that the citation was delivered, that the contest was more than two months late, and that the company's admitted lack of mail-handling procedures did not establish excusable neglect. The citation and $9,000 penalty were affirmed in all respects.

Decision snapshot

• Cited standard(s): No specific OSHA standard number is identified in this procedural decision.
• Outcome: Rule 60(b) relief was denied, the late notice of contest was dismissed, and the serious citation with a $9,000 penalty was affirmed.
• Key point: A signed certified-mail return receipt is evidence of delivery, and inadequate procedures for handling mail at a home office do not excuse a missed contest deadline.

Full text (OSHRC public release)

SECRETARY OF LABOR,
Complainant,
v. DOCKET NO. 02-1894
F& G SONS CONTRACTORS, INC.,
Respondent.

APPEARANCES:

Evanthia Voreadis, Esq. Frank Guidice
Office of the Solicitor F & G Sons Contractors, Inc.
U.S. Department of Labor Montville, New Jersey
New York, New York For the Respondent, pro se
For the Complainant

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 the Secretary’s motion to dismiss Respondent’s request to file
a late notice of contest (“NOC”).
Background
Following an inspection of a work site of Respondent, F & G Sons Contractors, Inc.
(“F&G”), in Montville, New Jersey, the Occupational Safety and Health Administration (“OSHA”)
issued a Citation and notification of penalty alleging serious violations of the Act and proposing a
penalty of $9,000.00. Section 10(a) of the Act requires the employer to notify OSHA of the intent
to contest a Citation within 15 working days of receiving it. A failure to do so results in the Citation
becoming a final judgment of the Commission by operation of law.
OSHA issued the Citation to F&G on July 3, 2002, by certified mail. The return receipt card
indicates that it was received on August 2, 2002. Based on this date, OSHA determined that the 15-
day period for filing a notice of contest ended on August 23, 2002. (Exhs. C-1 & 3).
On October 27, 2002, OSHA hand-delivered a demand letter to F&G. On November 1, 2002,
F&G’s president, Frank Guidice, wrote the Commission, stating that the post office had not delivered
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the letter, and requesting that he be permitted to file an NOC out of time. (Exhs. C-4, 5 & 6). The
Secretary moved to dismiss the proffered NOC, and a hearing on this issue was conducted on
January 22, 2003. The Secretary has filed a post-hearing brief but Respondent has not.
Discussion
The Secretary’s evidence establishes that the Citation was properly served in accordance with
the Act. I also find that the return receipt card from the post office proves that the Citation was
received and accepted at F&G’s place of business on August 2, 2002, and that the Citation
accordingly became a final order on August 23, 2002. (Exh. C-3).1
As is indicated above, F&G contends that it did not receive the Citation. Mr. Guidice
admitted that the signature on the return receipt card belonged to his wife, but explained that Mrs.
Guidice had told him that she signed the card to request that the post office leave the mail at the door
and that no further delivery ever followed. (Tr. 23-24). The statement Mrs. Guidice purportedly made
to her husband, however, is contrary to the physical evidence presented at the hearing. Exhibit C-3,
the item Mr. Guidice identified as the card his wife left at the door for the post office, is not an
alternative delivery request slip, but, as indicated above, a document used by the post office to prove
that mail is delivered. Furthermore, Exhibit C-3 contains no direction that the mailing be left at the
door, which directly contradicts Mrs. Guidice’s purported statement. Because Mrs. Guidice did not
testify at the hearing, the discrepancies between her statement and the physical evidence are
unexplained. Moreover, without her live testimony, Mrs. Guidice’s statement cannot be verified. I
accordingly find that F&G failed to rebut the Secretary’s proof and that F&G’s November 1, 2002
NOC was untimely. (Exhs. C-1, 3 & 6).
Under Commission precedent, however, 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, 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

       1
         The Secretary has requested that I take judicial notice of the fact that Exhibit C-3 is a

return receipt card routinely used by the post office to prove delivery of an item, and I do so.
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Branciforte Builders, Inc., 9 BNA OSHC 2113 (No. 80-1920, 1981). See also Fed. R. Civ. P. 60(b)
(“Rule 60(b)”). The record, however, is devoid of proof of any circumstance that would enable
Respondent to obtain relief under any of the above grounds. F&G’s argument that the post office did
not deliver the Citation cannot form the basis for such relief, as I have already found that the Citation
was indeed delivered to Respondent’s place of business. It is more likely that Respondent’s failure
to timely file the NOC was due to Respondent’s admitted lack of procedures with respect to the
acceptance and distribution of mail. (Tr. 26-30). While I am not unsympathetic to procedural
problems faced by Mr. Guidice in running an office out of his home, I am constrained to apply
Commission precedent, which states that employers are expected to maintain orderly procedures for
the handling of important documents. Louisiana-Pacific Corp., 13 BNA OSHC 2020 (No. 86-1266,
1989). I accordingly cannot grant relief on that basis.
In light of the above, I conclude that the Citation was properly served, that F&G 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

Dated: March 21, 2003
Washington, D.C.