Well Rise Fashion

Plain-English summary

OSHA issued Well Rise Fashion serious and non-serious citations after inspecting its New York worksite. The company responded more than two months after the 15-working-day contest period had expired and asked for reconsideration and lower penalties. The judge found no deception by the Secretary, procedural error, excusable neglect, illness, or other basis for relief. He granted the motion to dismiss the late notice of contest and affirmed the citations and penalties 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 citations and penalties were affirmed in full.
• Key point: An employer must act within the contest deadline and maintain procedures for handling important documents; a later request for reduced penalties does not establish excusable neglect.

Full text (OSHRC public release)

SECRETARY OF LABOR,
Complainant,
v. Docket No. 03-1363
WELL RISE FASHION,
Respondent.

APPEARANCES:
Jennifer Marciano, Esq. Daphne Fu
For the Secretary For the Respondent

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. sec. 651 et seq. (the Act) for the sole purpose of determining whether the Secretary�s
motion to dismiss the Respondent�s notice of contest as untimely should be granted.
BACKGROUND
The Occupational Safety and Health Administration (OSHA) conducted an inspection of a
work site of Respondent located in New York, N.Y. on March 20, 2003. As a result of the
inspection OSHA issued Respondent two citations alleging serious and non-serious violations of
the Act. Section 10(a) of the Act requires an employer to notify OSHA of the intent to contest a
citation within 15 working days of receiving it and the failure to file a timely notice of contest
results in the citation and penalty becoming a final judgment of the Commission by operation of
law. The record shows that OSHA sent the citations to the Respondent which were received on
April 9, 2003 and that the 15 day notice of contest period expired on April 30, 2003. The
Respondent did not reply to the citations until July 7, 2003 at which time it merely asked for
reconsideration of the case.
 DISCUSSION
The record plainly shows that the Respondent did not file its notice of contest until well
after the 15 day contest period had already ended. An otherwise untimely notice of contest may be
accepted where the Secretary�s deception or failure to follow proper procedures caused the delay
in filing. An employer is also entitled to relief if it shows that the Commission�s 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 illness or a disability which would
prevent a person from protecting its interests. There is no evidence and no contention that the
Secretary was deceptive or failed to follow proper procedures. There is no evidence that the
failure to file in a timely manner was to “excusable neglect” or any other reason justifying relief.
The record shows that the Respondent has been in business as a garment contractor for close to
three years and 20 to 25 people are employed. While he alleges that he cannot understand English,
he does have an employee under him who is conversant in English and assists him. He hires the
help, keeps payroll records and as a garment subcontractor deals with his customers. His message
at the hearing was he was interested in settling this matter if the penalties were reduced. This was
not satisfactory to the Secretary who proceeded with its motion.
The Commission has held the OSHA citation plainly states the requirement to file a notice
of contest within the prescribed time period. The Commission has further held that a business
must have orderly procedures for handling of important documents. Here the Respondent did not
follow threw after receipt of the citations, and is here not contesting its lateness in filing, but
asking for a lesser penalty. Although I am sympathetic to Respondent�s plight, I am constrained
by the circumstances and Commission precedent to conclude that the failure to file a timely notice
of contest was not due to excusable neglect or any other reason justifying relief pursuant to Rule
60(b). ORDER
For the reasons set forth above, the Secretary�s motion to dismiss the notice of contest is
GRANTED, and the citations and notification of penalties are AFFIRMED in all respects.

                                                         /s/
                                                         IRVING SOMMER
                                                         Chief Judge

DATED: March 4, 2004
Washington, D.C.