Western National Construction

Plain-English summary

Western National Construction received an OSHA citation but did not contest it before the deadline, so it became a final Commission order. Months later, a safety representative asked to file late, stating only that the citation had not reached the appropriate person and had fallen through the cracks. Neither the employer nor its representative appeared at the hearing on the request. The judge found no sufficient basis for relief from judgment, granted the Secretary's motion, and affirmed the citation in full.

Decision snapshot

• Cited standard(s): None specified in this late-filing order.
• Outcome: Relief from the late filing was denied, and the citation was affirmed in its entirety.
• Key point: A vague claim that a citation fell through internal channels, followed by failure to appear, does not establish excusable neglect.

Full text (OSHRC public release)

SECRETARY OF LABOR,
Compla inant,

                          v.                                OSHRC DOCKET NO. 03-1538

WESTERN NATIONAL CONSTRUCTION,
Resp ond ent.

APPEARANCES:

      For the Co mpla inant:
               Kim Prichard Flores, Esq., Office of the Solicitor, U.S. Department of Labor, Kansas City, Missouri

Before: Administrative Law Judge: Sidney J. Goldstein

                                         DECISION AND ORDER

      This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C. Section

651-678; hereafter called the “Act”).
On March 3, 2003, OSHA issued a citation to Respondent, Western National Construction
(Western). The citation was sent by certified mail to an Irvine, California address provided by Western’s
project supervisor during OSHA’s January 2003 inspection of Western’s work site at 4675 Alta Point,
Colorado Springs, Colorado (Tr. 7-8; Exh. C-2, C-6). The citation was received on March 10, 2003 (Tr.
11; Exh. C-2). On March 31, 2003, the citation became a Final Order of the Commission pursuant to
§10(c) of the Act. On May 1, 2003 and again on July 23, 2003, collection letters were sent to Western at
the Irvine address (Exh. C-1, C-3, C-4).
On August 25, 2003, an undated letter from Mike Sibley, president of Courage Safety Systems,
L.L.C., was received by the Commission’s Office of the Executive Secretary (Exh. C-5). The letter states
that Courage SafetySystems represents Western National Construction, and asks that Western be permitted
to file a late notice of contest. In the letter Sibley represents that “through some misfortune this citation
was never put into the hands of the appropriate person and has since fallen through the cracks.” On
September 9, 2003, the Commission assigned the above captioned case to this judge for a determination
on the merits of Respondent’s request for relief.
On October 6, 2003, The Secretary filed a motion to vacate Western’s late notice of contest. A
hearing, originally scheduled for November 10, 2003, was rescheduled. Both parties were notified of the
new date, and the hearing was held on December 15, 2003. Neither Respondent nor its representative
appeared at the hearing.
 The Commission has held that a party filing a late notice of contest may obtain Commission review
by filing a motion for relief from judgment or order under F.R.C.P. 60(b), which allows for such relief in
cases of "mistake, inadvertence, surprise, or excusable neglect". The burden is on the respondent to show
sufficient basis for relief under rule 60(b). Branciforte Builders Inc., 9 BNA OSHC 2113 (No. 80-1920,
1981); Keefe Earth Boring Company, Inc., 14 BNA OSHC 2187, 1991-93 CCH OSHD ¶29,277 (No.
88-2521, 1991). The letter from Courage Safety Systems does not set forth a sufficient basis for relief from
judgment; moreover, as of this writing Western National Construction appears to have abandoned its
request for relief from judgement. The Secretary’s motion to vacate the late notice of contest is
GRANTED, and the citation is AFFIRMED in its entirety.

                                                      /s/
                                                     Sidney J. Goldstein
                                                     Judge, OSHRC

Dated: January 21, 2004

                                                 2