Joseph Bueme

Plain-English summary

OSHA cited Joseph Bueme for failing to maintain a written hazard communication program and failing to provide employees with required chemical-hazard information and training. Bueme received the citation on February 11, 1994, but filed the notice of contest after the 15-working-day deadline. He argued that an OSHA inspector had described the violations as no big deal and that this caused excusable neglect. The judge found that the inspector did not tell Bueme to disregard the citation, whose accompanying materials clearly explained the filing deadline. The late notice was dismissed, and both serious citation items and their proposed penalties became a final order.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.59(e)(1); 29 C.F.R. § 1926.59(h).
• Outcome: Procedural. The late notice of contest was dismissed, leaving both serious citation items and their proposed penalties in effect.
• Key point: An employer must read and follow the written contest instructions even if an OSHA inspector informally characterizes the cited violations as minor.

Full text (OSHRC public release)

                            UNITED STATES OF AMERICA
OCCUPATIONAL         SAFETY AND HEALTH REVIEW             COMMISSION
                           One Lafayette Centre
                     1120 20th Street, N.W. - 9th Floor
                        Washington, DC 200364419

SECRETARY OF LABOR
complaiIlaIl~
v. OSHRC DOCKET
NO. 944868
JOSEPH BUEME
Respondent.

                 NOTICE OF DOCKETING
           OF ADMINISlR4TtVE LAW JUDGES DECISION
The Administrative Law Judge’s Report in the above referenced case was

docketed with the Commission on February 14, 1995. The decision of the Judge
will become a final order of the Commission on March 16, 1995 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such rtition should be received by the Executive Secretary on or before
March 6, 995 in order to ermit suffiaent time for its review. See
Commission Rule 91,29 cp: .R. 2200.91.
l

All further pleadings or communicationsregarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington,D.C. 200363419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial L&i ation
office of the Solicitor, U.S. DOgL
Room S4004
200 ConstitutionAvenue, N.W.
Washington,D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will representthe Department of Labor. Any party
having questions about review nghts may contact the Commission’s Executive
Secretary or call (202) 606-5400.

Date: February 14, 1995
DOCKET NO. 94-0868
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mic& Esq.
Counsel for Regional Trial Liti ation
Of&e of the Solicitor, U.S. DOc
Room S4004
200 Constitution Ave., N.W.
Washiwon. D.C. 20210

PatriciaRodenhauxm, wl .
Re ‘onal Solicitor
O&e of the Solicitor U.S. DOL
201 brick, Room 70?
New York, NY 10014

                    .

Paul M. Michalek, Esqure
561 Ridge Road
Lachanna, NY 14218

BarbaraHassenfeld-Rutberg
AdministrativeLaw Jud e
Occupational Safety and Health
Review Commission
McCormack Post office and
Courthouse, Room 420
Boston, MA 02109 4501

0010735178592
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
JOHN W. McCORMACK POST OFFtCE AND COURTHOUSE
ROOM 420
BOSTON, MASSACHUSETTS 02109-4501

                                                                                            FAX:

PHONE:
COM (617) 223-9746 COM (617) 223-4004
FTS (617) 223-9746 FE (617) 223-4004

SECRETARY OF LABOR ..

                          Complainant           :
                                               .
                  V.                           .               OSHRC
                                                               DOCKET NO. 94-0868
                                               ..

JOSEPH BUEME

                          Respondent            ..

Appearances:
Alan L. Kammennan, Esq. Paul M. Michalek, Esq. .
Office of the Solicitor 561 Ridge Road
U.S. Department of Labor Lackawanna, NY 142 18
For Complainant For Respondent

Before: Administrative Law Judge Barbara L. Hassenfeld-Rutberg

                                  DECISION AND ORDER

This proceeding arises under section 1O(c) of the Occupational Safety and Health Act of 1970,

29 U.S.C 65 1, et seq, (“the Act”), on a motion to dismiss the Respondent’s late filed notice of contest:
The Respondent seeks relief under Rule 60(b) of the Federal Rules of Procedure, which are applicable
to proceedings before the Occupational Safety and Health Review Commission (“OSHRC”,
ttCommission”) under section 12(g) of the Act.
Respondent is a corporation with its chief corporate officer being Mr. Joseph Bueme (“Mr.
Bueme”). The Respondent was issued a citation on February 9, 1994, stemming from an inspection by
the Occupational Safety and Health Administration (“OSHA”) of its premises located at 770 Wehrle
Drive, Williamsville, New York, . The citation contained (2) two items, both serious in nature, arising
under 29 CFR 1926.59(e)(l) and 29 CFR 1926.59(h).
The citation was delivered by certified mail and signed for by Mr. Bueme on February 11,1994
(Exhibits C-2 & C-5). Enclosed with the citation was a letter from David Boyce, OSHA Area Director
(Exhibit C-3). Mi. Boyce’s letter summarized portions of the informal hearing and notice of contest
procedures that were available to Mr. Bueme on behalf of the Respondent. These appellate
procedures also were explained in greater detail by a booklet entitled “Employer Rights and
Responsibilities Following an OSHA Inspection” (OSHA 3000), revised 1992 (“Booklet”)
( Exhibit C-l), which also accompanied the citation. Both the letter from Mr. Boyce and the Booklet
stated that an employer intending to file a notice of contest must do so within 15 working days of
receiving the citation, regardless of whether the employer also intended to exercise its option to
request an informal conference. In the instant case, then the notice of contest would have had to been
filed by March 4, 1994. However Mr. Bueme did not file a notice of contest on behalf of the
Respondent until March 14, 1994, wherein he apologized for the delay and also requested an informal
conference (Exhibit C-4).
The Secretary of Labor (“Secretary”, “Complainant”) filed a motion to dismiss the Respondent’s
late filed notice of contest. Respondent opposed the motion to dismiss and seeks relief under Rule 60
(b) of the Federal Rules of Procedure because of his excusable neglect and the government’s
misrepresentation. A hearing was held before the undersigned judge on November 3, 1994, in Buffalo,
New York, solely on the issue of the late filing of the notice of contest and the motion to dismiss.

                                                 DISCUSSION

The Secretary alleges that the Respondent violated 29 CFR 1926.59(e){ l), by failure to develop,

implement and maintain at the workplace a written hazard communication program, and 29 CFR
1926.59(h), by failure to provide information and training for employees using hazardous chemicals in
their work area. The Secretary tirther alleges that the Respondent failed to file a timely notice of
contest after receiving the citation, and that the Respondent knew, or should have known from the
material received with the citation, that a notice of contest must befiled withinfiffeen working &vs of
receipt ofthe citation. The Secretary argues that the Respondent’s failure to timely file the notice of
contest bars the Respondent Tom contesting the citation and the proposed assessed penalties.
At issue in this case is whether the Respondent’s failure to file a written notice of contest within
the Wday statutory period* was the result of misrepresentations or misconduct by OSHA, which led
to the Respondent’s defense of excusable neglect. The Respondent has burden of proof in order to
obtain relief from a final order. Roy Kay, Tnc, 13 BNA OSHC 2021,2022,1989 CCH OSHD
7 28,406, p. 37,534 (No. 88-1748, 1989).
The Respondent asserts that he~fded to file a timely notice of contest because the OSHA
inspector, Mr. Robert C. Upton (‘Mr. Upton”), made misrepresentations by telling Mr. Bueme at the
time of the inspection that the identified violations were “no big deal” and that “there was nothing to
worry about”. Therefore, the Respondent claims that he relied upon Mr. Upton’s characterization of
the violations and did not know that he had to respond to the citation by filing anything, as he belie&
that OSHA would contact him to set an informal conference date. The Respondent argues that he has
met his defense of excusable neglect because he was misled by Mr. Upton’s statements, which m.
Bueme alleges are suficient to constitute misrepresentations or misconduct within the meaning of Rule

l Section 10(a) of the Act, provides in relevant part:
Ifwithin fifteen working days fkom the receipt of the notice issued by the Secretary the employer fails to nom &e
Secretq that he intends to contest the citation . . . the citation and the penalty assessment,as proposed, shd be
deemed a final order of the Commission and not subject to review by any court or agency.

                                                       2

60@)2. On occasions, information or an impression contradicts or overshadows the directions on the
citation, or distracts the employer fi-om ever reading it. If this other source is an OSHA representative,
as alleged here, the case is analyzed under 60(b)(3) and the issue is whether the employer’s failure to
file was engendered by misconduct or misrepresentation on OSHA’s part. - See Jackson Assocs., 16
BNA OSHC 126 1 (No. 91-0438, 1993). However, relief is appropriate only when prejudicial
Government misconduct is coupled with a reasonable degree of diligence by the employer. Craig
Me&n&l Inc., 16 BNAOSHC 1763, 1766 (NO. 92-0372-S, 1994).
At the hearing, Mr. Upton who has conducted almost 700 inspections, admitted that he told the
Respondent that the violations were “no big deal” because he felt that Mr. Bueme was upset by the
inspection and the possible penalties, but Mr. Upton denied stating that the Respondent had “nothing
to worry about”. The issue before the undersigned concerns a motion to dismiss filed by the
Complainant, and therefore, all ambiguous facts must be construed in favor of the party opposing the
motion. Jackson v. Beech 636 F.2d 831, 836 -38 (D.C. Cir. 1980). Assuming the statements made by
m. Upton are as the Respondent alleges, do they rise to the level of misrepresentation or misconduct
as contemplated by Rule 60(b)? If SO, did the Respondent meet its burden of proof for excusable
neglect? See Keefe Earth Borint~CO 14 BNA OSHC 2187 (No. 88-2521, 1991).
Although Mr. Upton’s statements may have led the Respondent to believe that the citation was
“no big deal” and “nothing to worry about”, the Respondent’s behavior by failing to read the citation
and accompanying material does not meet his burden of exercising due diligence, which is necessary
for the defense of excusable neglect. In Craig, supra, the Commission indicated that the language on
the citation does not provide for any exception to the requirement that an employer notify OSHA in
accordance with its regulations, i.e., in writing, if it wants to contest a citation. In the instant case, the
material Respondent received from OSHA clearly spelled out the Respondent’s obligations tofiIe a
notice of contest within I5 dkzyseven if there was an informal conference requested. Mr. Upton never
suggested that the Respondent disregard the citation or the notice of contest instructions; therefore, he
did nothing to misrepresent the law or act improperly in any way. I find that Mr. Upton’s statements
and behavior did not rise to the level contemplated by Rule 60(b).
The Commission stated in Keefe, supra, that the Respondent has the burden of carefUlly reading
the portions of the written instructions stated and reiterated on the face of the citations and indicated
in that case if the Respondent had exercised due diligence there, he could have avoided his errors. The
Commission went on to tirther state in Keefe that due diligence requires that even a layman unfamiliar
with OSHA procedures read the face of the citation caretilly and that receipt of additional explanatory
materials is not a prerequisite for adequate notification under the Act. In the Keefe and Craig cases,
the Commission found that the citation itself bears the essential information alerting an employer how
to preserve its rights. The facts in the instant case are within the guidelines set out in decisions by the
Commission wherein the Respondent has the burden ofproof regarding its defense of excusable
neglect, and the Respondent’s failure to read the clear instructions he received from OSHA does not

• Fed. Rules Civ. P. 60(b) provides in relevant part:
  that on motion and upon such terms as are just, the court may relieve a party from a f’i& judgment,order, or
  proceeding for the foflowhg reasons: (1) mistake, inadvertence, surprise, or excusable neglect; , . . (3) fraud...
  misrepresentation, or other misconduct of an a&me party.

                                                        3
  

  meet that burden.
  In conclusion, I find that Mr. Upton did not make misrepresentations as contemplated by Rule
  60(b) and even if he did, I find that the Respondent did not meet its burden to establish excusable
  neglect. Thus, the Respondent’s notice of contest is found to have been filed late and under section
  lo(a) of the Act, the citation and its proposed penalties became a final order of the Commission.
  No relief is granted to the Respondent from that final order.

          FINDINGS OF FACT AND CONCLUSIONS OF LAW
  

  All findings of fact relevant and necessary to a determination of the contested issue have been
  found specifically and appear herein. See Rule 52(a) of the Federal Rules of Civil Procedure.
  Proposed tidings of fact or conclusions of law inconsistent with this decision are denied.

                                           ORDER
  

  The citation and its proposed penalties became a final order of the Commission when the
  Respondent failed to timely file its notice of contest. Thus, Serious citation 1, item 1, alleging a
  violation of 29 CFR 1926.59(e)( 1) is affirmed along with its proposed penalties. Serious citation 1,
  item 2, alleging a violation of 29 CFR 1926.59(h) is affirmed along with its proposed penalties.

                                                BARBARA L. HASSENFELD-RUTBERm
                                                Judge, OSHRC
  

Date: January 30, 1995
Boston, Massachusetts