Sloan Steel Erectors and Equipment Rental, Inc.

Plain-English summary

Sloan Steel Erectors and Equipment Rental received an OSHA citation and
proposed penalty by certified mail on September 26, 1995. Under the OSH Act an
employer has 15 working days to file a written notice of contest, which set
Sloan's deadline at October 18, 1995. The parties held an informal conference
and OSHA sent a settlement agreement for Sloan to sign by that same date, but
Sloan neither signed the settlement nor filed a notice of contest on time.
Instead it filed a late notice of contest dated November 9, 1995, and did not
oppose the Secretary's motion to dismiss.

Chief Judge Irving Sommer dismissed the late notice. An untimely contest can be
excused only if the Secretary caused the delay through deception or improper
procedures, or if the employer shows "excusable neglect" or similar grounds
under Federal Rule of Civil Procedure 60(b); Sloan asserted none of these. The
citation had plainly stated the 15-day deadline, and the judge found the late
filing was due solely to the company's own neglect. The citations and proposed
penalties were affirmed in all respects.

Decision snapshot

• Cited standard(s): None adjudicated; the case turned on the timeliness of the notice of contest
• Outcome: Late notice of contest dismissed; citations and proposed penalties affirmed by operation of law
• Key point: Missing the 15-working-day contest deadline makes the citation a final order; ordinary business carelessness is not the "excusable neglect" that reopens it.

Full text (OSHRC public release)

```text
United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N. W., Ninth Floor
Washington, DC 2003 6-34 19

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

SECRETARY OF LABOR
Complainant, OSHRC DOCKET
v. NO. 954760

SLOAN STEEL ERECTORS AND EQUIPMENT
RENTAL, INC.,
Respondent.

                         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 April 4, 1996. The decision of the Judge
will become a final order of the Commission on May 6, 1996 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 etition should be received by the Executive Secretary on or before
April 23, P996 in order to ermit sufficient time for its review. See
Commission Rule 91, 29 cp.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 Liti ation
Office of the Solicitor, U.S. DO%
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: April 4, 1996
DOCKET NO. 95-1760
NOTICE IS GIVEN TO THE FOLLOWING:

Patricia Rodenhausen, Esq.
Re ional Solicitor
Of&e of the Solicitor U.S. DOL
201 Varick, Room 707
New York, NY 10014

Susan Hanle , President
Sloan Steel B rectors and Equipment
Rental, Inc.
8080 Cole Road
Colden, NY 14033

Irvin Sommer
Chie f Administrative Law Judge
Occupational Safety and Health
Review Conxnissron
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419

00114088867 : 02
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR, ..

   Complainant,                               ..

                                              .
           V.                                      Docket No.       95-1760

SLOAN STEEL ERECTORS AND ;
EQUIPMENT RENTAL, INC., . :

   Respondent.                                ..




                              DECISION        AND ORDER



           This is a proceeding under section 10(c) of the Occupational Safety and Health Act

of 1970,29 U.S.C. sec. 651=678(the Act), to determine whether Respondent, Sloan Steel Erectors
and Equipment Rental, Inc. filed a timely notice of contest of the citation and penalty proposed by
the Secretary for alleged violation of the Act.

                                         BACKGROUND


           The citation setting forth the alleged violations and the accompanying notification of

proposed penalty was issued by certified mail on September 25, 1995, and received by the
Respondent on September 26, 1995. Pursuant to section 10(a) of the Act, 29 U. S.C. sec.
659(a), Respondent was required to notify the Secretary of any intent to contest the citation within

15 working days of receipt of the citation and notification of propod penalty , or October

18, 1995. In the absence of a timely contest, the citation and proposed penalty would be deemed
a final judgment of the Commission by operation of law. On October 3, 1995,
the Secretary asserts that the parties had an informal conference and agreed to settle the matter.
The Secretary notes that on October 3, 1995, a letter enclosing the informal settlement
agreement was sent to the Respondent and received on October 12, 1995 advising
Respondent to sign the enclosed settlement on or before October 18, 1995, the final day of the notice
of contest period. However, Respondent did not sign the settlement agreement and return it to
OSHA nor file a timely notice of contest on or before October 18, 1995, but rather filed a late
notice of contest dated November 9, 1995, with the Buff&lo OSHA Area Office. On
December 14, 1995, the Secretary filed a motion to dismiss Respondent’s late
notice of contest. The Respondent filed no opposition to the Secretary’s motion
to dismiss.

                                        DISCUSSION


            The record in this case clearly reflects that the Respondent did not file

a notice of contest within the time period required under Section 10(a) of the Act.
The issue before the undersigned is whether the untimely notice of contest may be accepted in this
matter. 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 the failure of the Secretary to follow proper
procedures. Atlantic Marine v. OSAHRC and Dunlop, 524 F2d 476 (5th Cir., 1975). In this
matter there is no evidence or even assertion of deception or improper procedures by the
Secretary.

            An employer may be entitled to relief under Federal Rule of Civil

Procedure 6O(b)(1) ifit 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. Secretarv of Labor v. Branciforte Builders, Inc,,
9 BNA OSHC 2113 (No. 80-1920, 1981). Respondent has made no assertions that any
of these defenses apply in this matter.
 Further, the citation sent to Respondent clearly notified Respondent that:
Unless you inform the Area Director in writing that you intend to contest the citation(s)
and/or txooosed
- _ oenaltv(ies)
- within 15 workimz- davs
- after receit>t. the citation(s)\ 8 and the
pronosed r>enaltv(ies) will become a final order ofihe Occur>ational Metv and Health
Review Commission and mav not be reviewed bv anv court or amm.

            The record fully demonstrates that the Respondent did not file a notice of contest

within the time period required under section 10(a) of the Act. Respondent’s failure to file a
timely notice of contest was due solely to its own neglect and negligence in carrying out its business
affkirs. The citations Respondent received plainly advised it of the requirement to file a notice of
contest within the prescribed time. In addition, Respondent has not provided any evidence that it
is entitled to relief under Rule 60(b) of the Federal Rules of Civil Procedure.

                                     FINDINGS OF FACT


    1.      Citations were issued to the Respondent on September 25, 1995.

    2.      The citations were received by the Respondent on September 26, 1995.
    3.      The fifteen working day period during which the notice of contest was required to be
            filed ended no later than October 18, 1995.
    4.      The Respondent did not file a notice of contest until November 9, 1995.
    5.      The Respondent did not f!ilea notice of contest within the fifteen working day period
            after receipt of the citations.
    6.      The late filing was solely due to the negligence of the Respondent
            in the disposition of the citations.

ONCLUSION OF LAW

The Respondent’s notice of contest was untimely filed and is DISMISSED.


c                     3              ORDER


 The citations and proposed penalties are AFFIRMED in all respects.




                                                           ,
                                                    IRVING SOMMER
                                                    Chief Judge

DATED:
mgtl ng6
Wasb&gton, D.C.
```