Jim Smith Body Shop Wrecker Serv.

Plain-English summary

Jim Smith Body Shop received OSHA's citations and proposed penalties on January 25, 1996, making its notice of contest due February 15. The owner began a protest letter dated February 7, but the postage meter was dated February 16 and the letter did not reach the Little Rock post office until February 20. The judge found no deception, procedural error, illness, or other circumstance that could excuse the late filing. Neglect and inadequate business procedures did not qualify for relief. The contest was dismissed, leaving the original citations, a repeat citation, a failure-to-abate notification, and the proposed penalties affirmed.

Decision snapshot

• Cited standard(s): The decision does not identify the specific OSHA standards underlying the citations.
• Outcome: The late notice of contest was dismissed, and all citations and proposed penalties were affirmed.
• Key point: Starting a protest letter before the deadline does not preserve contest rights when the employer fails to mail it within the statutory period.

Full text (OSHRC public release)

                               United States of America
          OCCUPATIONAL SAFETY AND HElALTH REVIEW COMMISSION
                          1120 20th Street, N.W., Ninth Floor
                             Washington, DC 20036-34 19
                                                                                 .-

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

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 964443
JIM SMITH BODY SHOP & WRECKER SER.
Respondent.

                    NOTICE OF DOCKETING
             OF ADMINISTRATIVE LAW JUDGE’S DECISION
 The Administrative Law Judge’s Re ort in the above referenced case was

docketed with the Commission on July f 4, 1996. The decision of the Judge
will become a final order of the Commission on August 23, 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 PETTI’ION FOR DISCRETIONARY REVIEW.
Any such petition should be received b the Executive Secretary on or before
August 13, 1996 in order to ermit su firlcient time for its review. See
Commission Rule 91, 29 C.Ep.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
havmg questions about review rights may contact the Commission’s Executive
Secretary or call (202) 606-5400.

Date: July 24, 1996 Ray H: Darling, Jr.
Executive Secretary
DOCKET NO. 96-0443
NOTICE IS GIVEN TO THE FOLLOWING:

James E. White, Esq.
Re ‘onal Solicitor
O&e of the Solicitor U S DOL
525 Griffin Square Blhg.,‘&.ite 501
Griffin & Youn Streets
Dabs, TX 752 %2

Jim Smith, Owner
Jim Smith Body Shop & Wrecker
Service
Highway 64, East, Box 1812
Conway, AR 72032

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

00123440042:06
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

   Complainant,

                                           .
           V.                              .      Docket No. 96-0443

JIM SMITH BODY SHOP & WRECKER
SERVICE,

   Respondent.

APPEARANCES:
Alex Mabry, Esq. Jim Smith, Owner
U.S. Department of Labor Jim Smith Body Shop, Respondent
Dallas, Texas Conway, Arkansas
Complainant 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. section 651-678 (the Act), to determine whether Respondent, Jim Smith Body Shop &

Wrecker Service filed a timely notice of contest of the citations and penalties proposed by the

Secretary for alleged violations of the Act. A hearing was held on the Secretary’s motion to dismiss

the Respondent’s notice of contest. Neither party filed a brief following the hearing.

                                     BACKGROUND

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

proposed penalties were issued by certified mail on January 24, 1996 and received by the Respondent

on January 25, 1996. Pursuant to section 10(a) ofthe Act, 29 U.S.C. section 659(a), the Respondent
 2

was required to notify the Secretary of any intent to contest within 15 working days of receipt of the

citations and notification of proposed penalty, or February 15, 1996. In the absence of a timely

contest, the citations and proposed penalties would be deemed a final judgment of the Commission

by operation of law. Section 10(a).

    In a letter dated February 7, 1996 to the Department of Labor Smith stated that ” I am going

to contest the following citations,---’ ’, but in his testimony indicated that he had started the letter on

said date, that his postage meter stamp on the letter was dated February 16, 1996, but even at said

date the letter was not mailed, and that another date on said letter of February 20, 1996 was when

the letter got down to the Little Rock post office.

See Tr. 334-36.

                                         DISCUSSION

    The record here plainly shows that Smith notified the Secretary of its intent to contest the

citations and penalties after the expiration of the statutory 15working day period. The issue before

this court is whether tht 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. Rules of Civil Procedure 6O(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. BranicforfitieBuilders, Inc., 9 BNA OSHC 2113, 198 1 CCH OSHD, par.

2559 1 (No. SO-1920,198 1). Here, there is no contention and no showing that the Secretary acted

improperly or that the factors mentioned in Rule 60(b)(6) are present.
 3

        Both in the citation issued on March 30,1995 and the follow up inspection which culminated

in the issuance a repeat citation and in the notification of failure to abate alleged violations issued

January 24, 1996 the Respondent was notified that if he wished to contest any of the citations or

proposed penalty he must do so within the 15 working day period. These documents placed Smith

explicity on notice he was obligated to file a notice of contest within 15 working days of receipt. Roy

Kay, Inc., 13 BNA OSHC 2021, 1987-90 CCH OSHD, par 28,406 (No. 8%1748,1989). Accord,

Acrom Construction Services, 15 BNA OSHC 1123,1126, 1991 CCH OSHD, par. 29393(88-

2291,199l). The evidence does not establish excusable neglect or mistake under Rule BO(b)(1). What

is indicated here is neglect and poor business practices on the part of the Respondent. This is a going

business of fifteen years standing, but the proprietor Mr. Smith did not take the time and put in

practice methods to treat this important government investigation and results which he was personally

involved in. The Commission has held that employers whose improper business procedures has led

to failure to file in a timely manner are not entitled to relief   See Louisiana-Paczjk Cop,   13 BNA

OSHC 2020; Stroudsburg Dyeing & Finishing Co. 13 BNA OSHC 2058. The Respondent has a

going business of long standing and should have provided for sound and proper procedures for

dealing with governmental affairs. Simple negligence and neglect will not provide entitlement to relief

. While I am not unsympathetic to the Respondent’s plight, I have no alternative but to hold it

responsible for failure to carefully read and act upon the unambiguous instructions set forth in the

documentation and other papers accompanying the citations.

.

                                                 4


                                         ORDER

  The Secretary’smotion to dismiss is granted, and the citation and notice of proposed penalties,

and the citation and notification of ftilure to abate alleged violations and the proposed penalties

therein are AFFIRMED in all respects.

                                                          IRVING SOMh4ER
                                                          Chief Judge

DATED: j& 2 24996
Washington, D.C.