Lucky Plastering Corporation

Plain-English summary

OSHA cited Lucky Plastering for four scaffold violations at a Florida construction site and proposed $12,000 in penalties. The company filed its notice of contest more than seven weeks after the 15-working-day deadline. Its president cited a family emergency, difficulty reading English, reduced office staffing, and losing track of time. The judge found no excusable neglect because the citation clearly stated the deadline, a family member had read it to the president, and the company was already familiar with OSHA's citation process. The late contest was dismissed, all four items were affirmed, and the $12,000 penalty was assessed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.451; the order does not identify the four cited subsections.
• Outcome: Late notice of contest dismissed; four citation items affirmed and $12,000 in penalties assessed.
• Key point: Personal emergencies, language difficulty, and workload do not excuse a late contest when the employer received and understood the written deadline.

Full text (OSHRC public release)

                                                     UNITED STATES OF AMERICA
                         OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                            1924 Building – Room 2R90, 100 Alabama Street, S.W.
                                                        Atlanta, Georgia 30303-3104

Secretary of Labor,
Complainant
v. OSHRC Docket No. 12-0995
Lucky Plastering Corporation,
Respondent.

Appearances:
Brooke Werner McEckron, Esquire, Office of the Solicitor, U. S. Department of Labor, Atlanta, Georgia
For Complainant

      Carlos Riera, pro se, Lucky Plastering Corporation, Miami, Florida
              For Respondent

Before: Administrative Law Judge Sharon D. Calhoun

                                      DECISION AND ORDER
      On February 8, 2012, the Secretary cited Lucky Plastering Corporation (Lucky) for

violations of four subsections of OSHA’s scaffolding standard, found at 29 C.F.R. § 1926.451.
The citation resulted from an inspection conducted by Angel Diaz, a compliance safety and health
officer (CSHO) for the Occupational Safety and Health Administration (OSHA), on January 19,
2012, at a construction site in Hallandale, Florida. The Secretary proposed penalties in the total
amount of $12,000.00 for the alleged violations. On April 19, 2012, more than seven weeks past
the expiration of the 15-working days contest period (February 28, 2012), Lucky filed its notice of
contest to the citation.
The Secretary moves to dismiss as untimely Lucky’s late notice of contest, under § 10(a) of
the Occupational Safety and Health Act of 1970 (Act), 29 U.S.C. § 659(a). Lucky opposes the
motion and seeks relief under Fed. R. Civ. P. 60(b). Lucky argues its late notice of contest should
be excused because president Carlos Riera, who represented the company pro se at the hearing,
had a family emergency that required him to travel out-of-state during the 15-day contest period.
Lucky also contends Mr. Riera had difficulty understanding English, which is his second

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language.
The undersigned held a hearing in this matter on September 13, 2012, in Miami, Florida.
Lucky does not dispute that it is a covered business under the Act and that the Commission has
jurisdiction over these proceedings. The parties have filed post-hearing briefs.
For the reasons discussed below, the undersigned determines Lucky is not entitled to Rule
60(b) relief and grants the Secretary’s motion to dismiss Lucky’s late notice of contest. Items 1
through 4 of the Citation are affirmed, and a total penalty of $12,000.00 is assessed.
Background
On January 19, 2012, CSHO Angel Diaz was passing a construction site on West
Hallandale Beach Boulevard in Hallandale, Florida, when he observed employees working on
what he believed to be an unsafe scaffold. Diaz stopped and conducted an inspection of the
worksite. The employees he observed worked for Lucky. Carlos Riera, president of Lucky, was
not present at the site, but CSHO Diaz spoke with him by phone and held an opening and closing
conference with him. Diaz spoke with Mr. Riera in Spanish. He informed Mr. Riera that the
company would be receiving a citation from OSHA and that Lucky would have 15 working days to
contest the citation (Tr. 28-38).
OSHA program assistant Judith Morales testified she issued a citation to Lucky on
February 8, 2012, and mailed the citation on February 9, 2012, return receipt requested (Tr. 62).
Mr. Riera received the citation and signed the receipt on February 13, 2012 (Exh. C-3). Reginald
Benson, who was OSHA’s acting assistant area director for its Miami office from November 2011
to March 2012, testified that OSHA calculates the 15-working-day contest period from the date a
company representative signs the receipt (Tr. 19-20).1 Mr. Riera did not file a notice of contest on
behalf of Lucky until April 19, 2012.
On July 10, 2012, the Secretary filed a motion to dismiss this case and affirm the citation as
a final order. The undersigned held the instant hearing on September 13, 2012. Mr. Riera
represented Lucky pro se.

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At the hearing, the Secretary’s counsel in her opening argument stated, “And the last day, therefore, for Mr. Riera to
have filed his notice of contest was February 28, 2012” (Tr. 8). By the court’s calculation, the last day for Lucky to
file its notice of contest in a timely manner was March 6, 2012 (the 15-working day period begins the day after the
employer receives the citation (February 14) and includes the 15th day from that date, excluding weekends and federal
holidays. Presidents’ Day was on February 20 in 2012, and so is not included in the count). Regardless, it is
undisputed that Lucky filed its notice of contest on April 19, 2012, past the contest period.

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Discussion
Section 10(a) of the Act provides that if an employer fails to file a notice of contest within
15 working days of receipt of the citation and assessment of penalty, “the citation and the
assessment, as proposed, shall be deemed a final order of the Commission and not subject to
review by any court or agency.” 29 C.F.R. § 659(a). Mr. Riera does not dispute that he received
the citation on February 13, 2012, and that he was late filing his notice of contest.
Under Fed. R. Civ. P. 60(b)(1), the Commission may accept an otherwise untimely notice
of contest if the employer can establish “mistake, inadvertence, surprise, or excusable neglect.”
Mr. Riera testified CSHO Diaz did not tell him during their phone conversation that he had 15 days
to contest the citation (Tr. 84). Mr. Riera stated he had trouble reading English, but that his
daughter and grandchildren helped him when he needed to read a document. He stated one of his
grandchildren helped him read the citation “[a] few days after having received it” (Tr. 85). The
citation Mr. Riera concedes his grandchild read to him states:
Unless you inform the Area Director in writing that you intend to contest the
citation(s) and/or proposed penalty(ies) within 15 working days after receipt,
the citation(s) and the proposed penalty(ies) will become a final order of the
Occupational Safety and Health Review Commission and may not be
reviewed by any court or agency.
(Exh. C-2; emphasis in original).
Mr. Riera stated that Lucky had received a previous citation from OSHA (which he did not
contest), so he was familiar with OSHA’s citation process (Tr. 86). Mr. Riera testified that during
the 15-working-day period regarding the instant citation, he traveled to California for a family
emergency. He did not call OSHA or write a letter to OSHA explaining his circumstances (Tr.
87-88). When he got back, he called CSHO Diaz, who informed him the contest period had
elapsed and advised him to hire an attorney (Tr. 87). Mr. Riera admitted he had made a mistake in
not contesting the citation within the specified period but that he did not have a justification for it
(Tr. 89).
A key factor in determining whether a late filing was due to excusable neglect is the reason
for the delay. The Commission has held that inexperience with OSHA and difficulties
understanding written English do not constitute excusable neglect. Mohegan Glass & Window
Co., 18 BNA OSHC 2045 (No. 99-0483, 1999).

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In his post-hearing brief, Mr. Riera takes responsibility for his failure to timely file the
notice of contest. He writes:
I Carlos Riera accept and confirm that I failed to respond to my first citation within
the necessary fifteen day period due to several factors. Those factors being the
following, first and foremost due to a dramatic financial decrease I was required to
reduce the amount of employees in my office down to one, that one person being
me. The reason I am mentioning this is that time seems to have lost all track and
blurred into one continuous stream due to I holding all accountability,
management, supervision & labor required from the corporation. Within all of my
new found and unexpected duties I lost track of time and committed a mistake
which I know that should have not been committed but unfortunately it did.
(Lucky’s brief, p.1).
The undersigned has great sympathy for Mr. Riera and great respect for his truthfulness
and the manner in which he conducted himself at the hearing. I am, however, required to follow
the rules and precedent of the Commission. Unfortunately, losing track of time is not recognized
as the basis of excusable neglect under Rule 60(b). Lucky has not established that it is entitled to
relief under Rule 60(b).
Accordingly, the Secretary’s motion to dismiss Lucky’s notice of contest as untimely is
GRANTED. Items 1 through 4 of the Citation issued to Lucky on February 8, 2012, are affirmed
and the total proposed penalties of $12,000.00 are assessed.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The foregoing decision constitutes the findings of fact and conclusions of law in
accordance with Rule 52(a) of the Federal Rules of Civil Procedure.
ORDER
Based upon the foregoing decision, it is HEREBY ORDERED that Lucky=s request for
relief is DENIED. It is further ORDERED that
1. The notice of contest filed in OSHRC Docket No. 12-0995 is DISMISSED, and the
Citation and Notification of Penalty is affirmed in all respects.

    SO ORDERED.                                            /s/

                                                           Sharon D. Calhoun

Date: November 5, 2012 Administrative Law Judge

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