Construction 2000, Inc.

Plain-English summary

Construction 2000 filed its notice contesting an OSHA citation after the 15-working-day deadline. Its president explained that he was out of state caring for a sick relative when the citation arrived and that his small business had no clerical staff or procedure for handling important mail during his absence. The judge held that Commission precedent treats the lack of such procedures as simple negligence rather than excusable neglect. He dismissed the late contest 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 became final.
• Key point: A small employer must still maintain a reliable process for handling important mail when the person responsible is absent.

Full text (OSHRC public release)

                                     United States of America
              OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                1120 20th Street, N.W., Ninth Floor
                                   Washington, DC 20036-3457

SECRETARY OF LABOR, :
:
Complainant, :
:
v. : OSHRC DOCKET NO. 03-1994
:
CONSTRUCTION 2000, INC., :
:
Respondent. :

Appearances:

             Stacy M. Wolf, Esquire                         Anthony E. Patire, President
             U.S. Department of Labor                       Construction 2000, Inc.
             New York, New York                             Clifton, New Jersey
             For the Complainant.                           For the Respondent, pro se.

Before: Irving Sommer
Chief Judge

                                 DECISION AND ORDER

      This proceeding is before the Occupational Safety and Health Review Commission (“the

Commission”) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29
U.S.C. § 651 et seq. (“the Act”) in order to determine whether the Secretary’s motion to dismiss
Respondent’s notice of contest (“NOC”) as untimely should be granted. A hearing in this regard was
held on May 5, 2004, in New York, New York. Both parties have filed post-hearing submissions.
Background
The Occupational Safety and Health Administration (“OSHA”) inspected a construction site
in Norwood, New Jersey on September 9, 2003. As a result of the inspection, OSHA issued to
Respondent a Citation and Notification of Penalty (“Citation”) on September 26, 2003. OSHA

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mailed the Citation to Respondent by certified mail, return receipt requested, and Respondent
received the Citation on October 2, 2003. Section 10(a) of the Act requires an employer to notify the
Secretary of its intent to contest a 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.
Based on the date it received the Citation, Respondent was required to file its NOC in this case by
October 24, 2003. Respondent did not file an NOC by that date, but Respondent’s president called
OSHA on October 29, 2003, and spoke to the compliance officer (“CO”) who had conducted the
inspection. The CO advised Respondent’s president that the time for filing the NOC had expired,
and he also advised that Respondent could file a late NOC with the Commission. Respondent filed
an NOC letter with the Commission on October 29, 2003; in that letter, Respondent’s president
explained that he had been unable to file a timely NOC because he had been out of state.
Discussion
The record plainly shows that Respondent did not file its NOC by the required date.
However, an otherwise untimely NOC may be accepted if 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, pursuant to Federal Rule of Procedure 60(b) (“Rule 60(b)”), 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). It is the burden of the employer to establish that it is entitled to relief.
There is no evidence and no contention that the late filing in this case was due to deception
or the failure to follow proper procedures on the part of the Secretary. Rather, Respondent is
requesting, in essence, that its late filing be excused under the circumstances. At the hearing,
Anthony Patire, Respondent’s president, testified that he had been in business for five years, that his
business was very small, with only four employees besides himself, and that he conducted his
business out of his home. He further testified that he was out of state when the Citation arrived,
because of an elderly uncle being sick, and that his fiancé had signed for it and had then passed it
on along with other mail to one of his sons, who kept it until his return home. Mr. Patire noted that
he had no clerical help, that he himself did all the billing and contracting, and that there was no one

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to take care of things when he was out of town; he also noted that his employees were masons and
laborers, that two of his employees were his sons, and that the son who had kept the Citation and
other mail for him was one of his employees. (Tr. 20-24).
Commission precedent is well settled that the OSHA citation clearly 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 further 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 held that a business must maintain orderly procedures for the handling of 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 an employer’s misunderstanding or confusion about the 15-day filing period. 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). The Commission has also denied relief where the
delay in filing was caused by absence, even if due to illness, of the person responsible for handling
OSHA matters. E.K. Constr. Co., 15 BNA OSHC 1165, 1166 (No. 90-2460, 1991).
The testimony of Mr. Patire makes it clear that the reason for the late filing in this matter was
the fact that he was out of town and that he had no procedures in place for another employee, such
as one of his sons, to handle matters of importance in his absence. While I sympathize with Mr.
Patire’s situation and am convinced of his sincerity, I am constrained to follow Commission
precedent. Based on that precedent and the circumstances of this case, Respondent’s failure to file
the NOC in a timely manner was due to simple negligence, and there is no justification for the
granting of Rule 60(b) relief. The Secretary’s motion to dismiss Respondent’s NOC as untimely is
accordingly GRANTED, and the Citation is affirmed in all respects.

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So ORDERED.

                          /s/
                          Irving Sommer
                          Chief Judge

Dated: June 14, 2004
Washington, D.C.

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