R & J Construction Corporation

Plain-English summary

OSHA's Manhattan area office issued a citation to R & J Construction Corporation by certified mail on January 14, 1994, and the company received it on January 19. The law gave R & J 15 working days, to February 9, 1994, to file a written notice of contest. R & J did nothing until it received a collection notice on March 14, 1994. Its vice-president said he had never seen the citation and blamed internal office mishandling: a receptionist signed for the certified mail and passed it to an office manager (who was not an R & J employee) responsible for distributing mail, and the citation was never delivered to anyone with authority to act on it. The Secretary moved to dismiss the late notice of contest. Chief Judge Irving Sommer found no evidence that the citation was improperly served or that the Secretary acted improperly. Because Rule 60(b)(1) requires excusable neglect rather than ordinary carelessness, and a business must keep orderly procedures for handling important documents, the judge granted the motion to dismiss and affirmed the citation and proposed penalty.

Decision snapshot

• Cited standard(s): None enumerated; the decision turns on the timeliness of the notice of contest under section 10(a) of the Act (29 U.S.C. § 659(a)) and relief under Fed. R. Civ. P. 60(b).
• Outcome: Procedural. The untimely notice of contest was dismissed and the citation and proposed penalty were affirmed.
• Key point: A company's own inadequate mail-handling procedures, which kept a properly served citation from reaching someone who could act on it, are ordinary negligence, not excusable neglect, and do not excuse a late notice of contest.

Full text (OSHRC public release)

United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, DC 20036-3419

Phone: (202) 606-5400
Fax: (202) 606-5050

SECRETARY OF LABOR,
    Complainant,

    v.

R & J CONSTRUCTION CORPORATION,
    Respondent.

OSHRC DOCKET NO. 94-3043

NOTICE OF DOCKETING OF ADMINISTRATIVE LAW JUDGE'S DECISION

The Administrative Law Judge's Report in the above referenced case was docketed with the Commission on September 14, 1995. The decision of the Judge will become a final order of the Commission on October 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 petition should be received by the Executive Secretary on or before October 4, 1995 in order to permit sufficient time for its review. See Commission Rule 91, 29 C.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 Regional Trial Litigation
    Office of the Solicitor, U.S. DOL
    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.

Date: September 14, 1995

DOCKET NO. 94-3043
NOTICE IS GIVEN TO THE FOLLOWING:

Patricia Rodenhausen, Esq., Regional Solicitor, Office of the Solicitor U.S. DOL, 201 Varick, Room 707, New York, NY 10014

Preston A. Leschins, Esquire, Anzalone & Leschins, Suite 2808, 888 Seventh Avenue, New York, NY 10106

Irving Sommer, Chief Administrative Law Judge, Occupational Safety and Health Review Commission, One Lafayette Centre, 1120 20th St. N.W., Suite 990, Washington, DC 20036-3419

United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, DC 20036-3419

SECRETARY OF LABOR,
    Complainant,

    v.

R & J CONSTRUCTION CORPORATION,
    Respondent.

OSHRC Docket No. 94-3043

APPEARANCES:

Patricia M. Rodenhausen, Esq., Regional Solicitor; Luis A. Micheli, Esq., Office of the Solicitor, U.S. Department of Labor, 201 Varick Street, New York, New York 10014, For Complainant

Preston A. Leschins, Esq., Anzalone & Leschins, 888 Seventh Avenue Suite 2808, New York, New York 10106, For Respondent

Before: Chief Judge Irving Sommer

DECISION AND ORDER

This is a proceeding under section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 ("the Act"), to determine whether Respondent, R & J Construction Corporation ("R & J"), filed a timely notice of contest of a citation issued by the Secretary for alleged violations of the Act. A hearing was held on the Secretary's motion to dismiss R & J's notice of contest. Neither party filed a brief following the hearing.

BACKGROUND

The citation was issued by the OSHA area office in Manhattan by certified mail on January 14, 1994 and received by R & J on January 19. (Tr. 7-9; exhs. C-1 and C-3). Pursuant to section 10(a) of the Act, 29 U.S.C. § 659(a), R & J was required to notify the Secretary of any intent to contest within 15 working days of receipt of the citation, that is, by February 9, 1994. Although the cover letter accompanying the citation specifically states that "for violations you do not contest, you must (1) notify this office promptly . . . that you have taken appropriate corrective action . . . and (2) pay any penalties assessed" and further states that a "letter of intent to contest must be submitted to the Area Director within 15 working days of your receipt of the citation," R & J made no response to the citation and accompanying notification of proposed penalty until it received a collection notice from the Secretary on March 14, 1994. (Tr. 10-11; exhs. C-4 & C-5). At that point, its vice-president, Joseph M. Ferrara, advised the area director that he was "unaware" of the inspection and that R & J "apparently . . . experienced some internal office mishandling of this paper work." (Exhs. R-1 & R-3). Ferrara testified that R & J shares office space with several other companies, that a receptionist employed by R & J received and signed for the certified mailing of the citation, and that in accordance with the office procedures the receptionist gave the mailing to the office manager-not an employee of R & J-whose job was to disseminate mail to the appropriate person. There is no indication of what did happen to the citation, although it is undisputed that Ferrara never received the original certified mailing. After the penalty collection letter was issued, the area office furnished a copy of the citation at Ferrara's request. (Tr. 27-33, 35; exh. R-1). After several unsuccessful requests for an informal conference with the area office, Ferrara filed a notice of contest with the Commission's Executive Secretary. (Tr. 23; exh. R-6).

DISCUSSION

There is no dispute that R & J filed its notice of contest well after the expiration of the statutory 15-working-day period. The issue before this court is whether that untimely filing may be excused in the circumstances. An otherwise untimely notice of contest may be accepted where the delay in filing was caused by deception on the part of the Secretary or by failure of the Secretary to follow proper procedures. An employer is also entitled to relief under Fed. R. Civ. P. 60(b)(1) if it demonstrates that the Commission's final order was entered as a result of "mistake, inadvertence, surprise, or excusable neglect" or under Rule 60(b)(6) for such mitigating circumstances as absence, illness, or a disability which prevents the party from protecting its interests. Branciforte Builders, Inc., 9 BNA OSHC 2113, 1981 CCH OSHD ¶ 25,591 (No. 80-1920, 1981).

Here, there is no contention and no showing that the citation was not properly served at R & J's place of business. Stroudsburg Dyeing & Finishing Co., 13 BNA OSHC 2058, 1987-90 CCH OSHD ¶ 28,443 (No. 88-1830, 1989). Similarly, there is nothing to demonstrate that the Secretary otherwise acted improperly or that the factors mentioned in Rule 60(b)(6) are present. As the Commission has previously observed, "a business must maintain orderly procedures for handling important documents." Louisiana-Pacific Corp., 13 BNA OSHC 2020, 2021, 1987-90 CCH OSHD ¶ 28,409, p. 37,537 (No. 86-1266, 1989). Rule 60(b)(1) requires a showing of "excusable" neglect rather than mere negligence or carelessness. Accordingly, the fact that R & J's own administrative or clerical procedures may not have been adequate to ensure that the citation was delivered to a company official authorized to take action on the citation does not excuse its untimely filing of a notice of contest. See Stroudsburg. While I am not unsympathetic to R & J's situation, the circumstances here are insufficient to establish that it is entitled to relief under Rule 60(b)(1).

ORDER

The Secretary's motion to dismiss is granted, and the citation and notification of proposed penalty are affirmed.

IRVING SOMMER
Chief Judge

DATED: [illegible]
Washington, D.C.