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Ezel / Agency Decisions / 94-0833-alj
OSHRC ALJ decision Docket 94-0833 Decided July 25, 1994 Procedural Judge Irving Sommer

United Sheet Metal, Inc.

Late notice of contest dismissed, citation affirmed as issued

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This order from 1994 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.

Currency note: this decision dates from 1994
The OSHA standards may have been amended, penalty amounts have been adjusted, and later Commission or court decisions may have changed the analysis since then. Treat this page as historical context, not current compliance advice. Verify the current standard before relying on any specific rule, threshold, or penalty mentioned here.
Final order, not Commission precedent
This decision by an OSHRC Administrative Law Judge became a final order of the Commission because no Commissioner directed review (29 U.S.C. § 661(j)). It binds the parties but is not binding precedent in other cases. The full text below is from the official OSHRC release.
About this page: The plain-English summary and decision snapshot below were written by Ezel based on the official OSHRC release. The full text is the Commission's own document.
Read the official release (oshrc.gov)

Plain-English summary

United Sheet Metal received an OSHA citation in January 1994. Under the OSH Act, an employer has 15 working days after receiving a citation to file a notice of contest, which gave the company until mid-February. It filed late, and the Secretary moved to dismiss the contest as untimely. The company argued its late filing should be excused, believing that the Commission's docketing of the case had granted it a waiver to file late. Administrative Law Judge Irving Sommer rejected that, explaining that docketing only lets the parties present their positions and does not extend the deadline. Because the delay resulted from the company's own negligence and not from any deception or procedural failure by the Secretary, it did not qualify as excusable neglect under Rule 60(b). The judge granted the motion to dismiss and affirmed the citation, penalties, and abatement dates as issued.

Decision snapshot

  • Cited standard(s): None; this order decides a timeliness question, not the merits of any safety standard.
  • Outcome: Procedural. The notice of contest was dismissed as untimely and the citation, penalties, and abatement dates were affirmed as issued.
  • Key point: The 15-working-day deadline to contest a citation is strict; a late filing caused by the employer's own mistake is not excusable neglect, and docketing of the case does not waive the deadline.

Full text (OSHRC public release)

  OCCUPATIONAL        SAF~~~~E~~~i~ciE”lEW                   COMMISSION
                             One Lafayette Centre
                       1120 20th Street, N.‘W. - 9th Floor
                          Washington, DC 200304419




SECRETARY OF LABOR
            Complainant,
      v.                                                     OSHRC DOCKET
                                                             NO. W-0833
UNITED SHEET METAL
             Respondent.


                     NOTICE OF DOCKETING
               OF ADMINISTRATKVE LAW JUDGE’S DECISION
     The Administrative Law Judge’s Re rt in the above referenced case w~llrs
docketed with the Commission on June % 1994. The decision of the Judge
will become a final order of the Commission on July 25,1994 unless a
Commission member directs review of the decision on or before that b     ANY -
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE                          -

. COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REXIEW.
Any such etition should be received by the Executive Secre on or b&ore
July 13 l&4 in order to ermit sufficient time for its review.%
Commission Rule 91, 29 E .F.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Re ‘onal Trial Liti ation
Office of the So%l
citor, U.S. DO5&
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
having questions about review rights may contact the Commission’s Executive
Secretary or call (202) 606-5400.
FOR THE COMMISSION

Date: June 23, 1994                    Ray H. Darling, Jr.
                                       Executive Secretary

DOCKETNO. 94-0833
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, E+
Cow& for Re bml Trial Iiti ation
Office of the So%‘CitOr, U.S. Dck
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Catherine Oliver Murphy
De uty Regional Solicitor
Of&e of the Solicitor U.S. DOL
14480 Gatewa Build&g
3535 Market Htreet
Philadelphia, PA 19104

Jimmie Roberts, Jr., Safety/EEO
Officer
United Sheet Metal
9220 Ed eworth Drive
Capitol is eights, MD 20743

hin Sommer
Chie %Administrative Law Jud e
Occupational Safety and Heal 5l
Review Commission
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419

00102899093:03
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR, .
.
.
.
Complainant, .
.
.
.
v. .
l
Docket No. 94-0833
.
UNITED SHEET METAL, INC., I
.
.
.
.
Respondent. .
.
..

               The Secretary                 has      moved to             dismiss the           Respondent'&

notice of contest as not being timely filed under Section 10 of
the Act. The Respondent has filed a response in O#pOsitfOn to
the Secretary's motion.

               The record demonstrates that one citation was issued to

the Respondent on January 14, 1884, and received on
January 24, 1884.
Under Section 10(a) of the Act, 29 U.S.C.
659(a), an employer must notify the Secretary that it intends to
contest the citations or proposed penalties within f ifteen(l5)
working days of its receipt. The Respondent had until Febru&y
14 s 1994, to file its notice of contest, but did not do so,
filing a letter dated February 24, 1984, and received by OSHA on
.
February 28, 1994.

               It is          clear that           the      Respondent did              not file a timely

notice of contest in this case. The reasons given for said
failure to file a timely contest do not constitute *'excusable
neglect’ ’ under Rule 60(b) of the Federal Rules of Civil
Procedure. The Respondent admittedly did not file timely and
has mistakenly interpreted the docketing of the case by the
Commission’s Executive Secretary as granting it a "waiver" to
file a late notice of contest in this matter. This
interpretation is simply incorrect as the docketing of the case
merely allows the parties in the case to file their positions
prior to the Judge's ruling on the matter. The late filing was
due to Respondent's own negligence.

      There    is no   evidence
                              that the delay in filing was

caused by " the Secretary's deception or failure to follow groper
. .
procedures." Attanc Marine, IDC- K Om and ) 524 P2d
476 (5th Cir., 1975), nor is there any evidence that the Resgon-
dent is entitled to any relief under Rule 60 (b) of the Federal
Rules of Civil Procedure.

      Accordingly,     the             motion to dismisa
                             Secretary’s                   the

Respondent's notice of contest is GRANTED. IT IS FURTHER ORDERED
that the citation, penalties, and the abatement dates are
AFFIRMED as issued.

                                                 * /
                                           IRVING SOMMER
                                           Judge, OSHRC

DATED: JUN 2 0 f9!M
Washington, D.C.

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