Riccon Construction Corp.

Plain-English summary

Riccon Construction Corp., a New York construction company, was cited by OSHA in a February 1996 citation that its president's 16-year-old daughter received and signed for. An employer has 15 working days to file a notice of contest, but Riccon never filed one with the Secretary and instead sent a letter to the Commission months later saying it had never received the citation. The Secretary moved to dismiss, and the only issue was whether Riccon's late filing could be excused. Chief Judge Irving Sommer found no deception by the Secretary and no excusable neglect under Rule 60(b); the company simply had no proper system for handling important government mail. The judge also rejected Riccon's belief that the general contractor's payment of fines relieved it of its own citation. The motion to dismiss was granted and the citation and proposed penalties were affirmed in all respects.

Decision snapshot

• Cited standard(s): None reached; decided on the timeliness of the notice of contest under section 10(a) of the Act (29 U.S.C. § 659(a))
• Outcome: Secretary's motion to dismiss granted; citation and proposed penalties affirmed by operation of law
• Key point: An employer's own poor mail-handling procedures are simple negligence, not excusable neglect, so a late notice of contest will not be accepted and the citation becomes final.

Full text (OSHRC public release)

UNITED STATES OF AMERICA
             OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

                                                :
SECRETARY OF LABOR,                             :
                                                :
        Complainant,                            :
                                                :
                v.                              :       Docket No. 97-0126
                                                :
RICCON CONSTRUCTION CORP.,                      :
                                                :
        Respondent.                             :
                                                :
                                                :

Appearances:            Susan B. Jacobs, Esq.           George Richards, President
                            For the Secretary                 For the Resp.

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, Riccon Construction Corp.
(Riccon) filed a timely notice of contest of the citation and penalties proposed by the Secretary for
alleged violations of the Act. A hearing was held in New York, N.Y. on the Secretary's motion to
dismiss Riccon's notice of contest.
                                          BACKGROUND
        The citation setting forth the alleged violations and the accompanying notification of proposed
penalties was issued on February 28,1996 and received by the Respondent no later than March
5,1996. Pursuant to section 10(a) of the Act, 29 U.S.C. section 659(a), Riccon was required to notify
the Secretary of any intent to contest within 15 working days of receipt of the citation and notification
of proposed penalty, or March 26, 1996. 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.

                                            DISCUSSION
        Section 10(a) of the Act, in pertinent part, provides:
        If, after an inspection or investigation, the Secretary issues a citation under section 9(a), he
shall, within a reasonable time after the termination of such inspection or investigation, notify the
employer by certified mail of the penalty, if any, proposed to be assessed under section 17 and that
the employer has fifteen working days within which to notify the Secretary that he wishes to contest
the citation or proposed assessment of penalty. This is more starkly brought out in the cover letter
which the Secretary sent to Riccon in finding certain violations present after the inspection and stating
the amount of the alleged penalties due. Such cover letter states in emphasized type: RIGHT TO
CONTEST - You have the right to contest this Citation and Notification of Penalty. You may contest
all citation items or only individual items. You may also contest proposed penalties and/or abatement
dates without contesting the underlying violations. Unless you inform the Area Director in writing
that you intend to contest the citation(s) and or proposed penalty(ies) within 15 working days after
receipt, the citation(s) and proposed penalty(ies) will become a final order of the Occupational Safety
and Health Review Commission and may not be reviewed by any court or agency. (Emphasis in
original).
        Riccon was further notified on the specific method of contesting the citations and or penalty
in a booklet entitled ``Employer Rights and Responsibilities Following and OSHA inspection'' which
accompanied the mailing of the notification of the citation and proposed penalty. Thusly the citation
and the OSHA 3000 booklet put Riccon on notice of its obligations to file a notice of contest within
15 working days of receipt. See Roy Kay Inc., 13 BNA OSHC 2021, 1987 CCH OSHD par 28,406
(No 88-1748,1989); Keefe Earth Boring Co., 14 BNA 2187.
        The record here plainly shows that Riccon did not file a notice of contest as required at any
time within the 15 day working period. Actually, it never filed any notice with the Secretary, but sent
a letter to the Commission dated August 30, 1996 stating it had never received the citation, and also
stating that the general contractor on the job had paid the fines totaling $1356-. of which Riccon had
reimbursed them in amount of $910.
        Mr Ufert, the compliance officer who conducted the inspection of Riccon's premises stated
a citation was issued on February 28, 1996 and that prior thereto he had discussed this with Mr.

Richards the company president and had informed him that a notice of contest must be filed within
15 working dates after receipt of the citation if is being contested. The record further demonstrates
that the daughter of the Riccon president, Ms. Georgia Richards, age 16 received and signed for the
citation and accompanying data. Mr. Richards admitted that anyone who is present will accept the
mail.
        Mr. Richards further testified that he was under the impression that Welch Construction had
paid the citation, since they had asked him for a contribution to the fees owed OSHA which had
thereafter been deducted from the moneys owed to him by Welch. In fact, Mr. Ufert testified that
Welch Construction had also been separately cited in this case for violations. It would appear that
Welch had paid its own obligations by obtaining funds from Riccon, but this did not negate the
citation that Riccon was assessed for. The issue before this court is whether Riccon's failure to file
a timely notice of contest may be excused under 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. Here, there is no contention and no showing that the Secretary acted improperly or that
the factors mentioned in Rule 60 are present. The evidence does not establish excusable neglect or
mistake under Rule 60(b)(1). What is indicated here is neglect and poor business practices on part
of the respondent. This is a business of 10 years standing, but Mr. Richards the president had not put
in practice methods to see that important government mail was brought to his attention for disposal.
His daughter received the government documents but from his testimony was not given over to him.
Apparently the system in effect is that whoever is around can take the mail. 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-Pacific Corp.,13 BNA OSHC 2020; Stroudsburg Dyeing &
Finishing Co., 13 BNA OSHC 2058. The respondent should have provided for sound and proper
procedures for the processing of mail. Simple negligence and neglect will not provide entitlement to

relief. His further belief that the payment by the general contractor to OSHA would relieve him of
any responsibilities on his citation is misplaced and of no moment herein.
       The totality of the evidence fails to demonstrate that Riccon is entitled to any relief from its
actions herein.
                                              ORDER
       The Secretary's motion to dismiss is granted, and the citation and notice of proposed penalties
is AFFIRMED in all respects.

                                                      IRVING SOMMER
                                                      Chief Judge
DATED:
                  Washington, D.C.