J & B Masonry and Construction, Inc.

Plain-English summary

OSHA issued J & B Masonry and Construction a citation and proposed penalty in September 1997. The company's president said he spoke with the compliance officer after receiving the citation and believed that conversation was enough to make an appeal. He also said he did not carefully read the citation, later lost it, and was busy running a very small business. The judge found no excusable neglect because the citation clearly required a written notice within 15 working days and the company was responsible for handling important documents carefully. The late notice of contest was dismissed, and the citation and penalty remained affirmed.

Decision snapshot

• Cited standard(s): The decision does not identify the standard in the underlying citation.
• Outcome: Late notice of contest dismissed; citation and proposed penalty affirmed.
• Key point: An oral discussion with an OSHA officer does not replace the written notice of contest required by the citation.

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

SECRETARY OF LABOR, :
:
Complainant, :
:
v. : OSHRC DOCKET NO. 98-0150
:
J & B MASONRY AND :
CONSTRUCTION, INC., :
:
Respondent. :

APPEARANCES:

            Helen J. Schuitmaker, Esquire                      Jan Borkowski
            Chicago, Illinois                                  Chicago, Illinois
            For the Complainant.                               For the Respondent, pro se.

Before: Chief Judge Irving Sommer

                                   DECISION AND ORDER

    This proceeding is before the Occupational Safety and Health Review Commission (“the

Commission”) pursuant to section 10 of the Occupational Safety and Health Act of 1970, 29 U.S.C.
§ 651 et seq. (“the Act”), to determine whether Respondent J & B Masonry and Construction, Inc.
(“J&B”) filed a timely notice of contest of a citation and notification of penalty issued by the
Occupational Safety and Health Administration (“OSHA”). The Secretary filed a motion to dismiss
the notice of contest on March 17, 1998, and the hearing in this regard took place on May 13, 1998.
Neither party has filed a post-hearing brief in this matter.
Background
The citation setting forth the alleged violation and the proposed penalty was issued to J&B
on September 8, 1997. Pursuant to section 10(a) of the Act, J&B was required to notify OSHA of
its intent to contest the citation within 15 working days of its receipt of the citation, and failure to file
a timely notice of contest would result in the citation and proposed penalty becoming a final judgment
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of the Commission by operation of law. The record shows that OSHA mailed the citation by certified
mail, that J&B received the citation on September 15, 1997, and that the 15-day notice of contest
period ended on October 6, 1997. The record also shows that J&B did not file its notice of contest
until well after the 15-day period, after which the Secretary filed her motion to dismiss due to the
untimeliness of the notice of contest.1 (Tr. 4-8; C-1; R-1).
Discussion
The record establishes that J&B did not provide notice of its intent to contest the citation and
proposed penalty until after the expiration of the 15-working-day period. The issue to be resolved
in this case is whether the untimely filing 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 the Secretary’s failure to follow proper procedures. An employer is also
entitled to relief under Federal Rule of Civil Procedure (60)(b)(1) if it shows that the Commission’s
final order was entered as a result of “mistake, inadvertence, surprise, or excusable neglect,” or under
Federal Rule of Civil Procedure (60)(b)(6) for “any other reason justifying relief,” including mitigating
circumstances such as absence, illness, or a disability which would prevent a party from protecting
its interests. Branciforte Builders, Inc., 9 BNA OSHC 2113 (No. 80-1920, 1981). There is no
contention and no evidence that the Secretary has acted improperly in this matter. Rather, J&B’s
contention would appear to be that the untimely filing was due to excusable neglect.
Jan Borkowski, J&B’s president, testified that he spoke to the OSHA compliance officer
(“CO”) who had conducted the inspection the day after he received the citation, that the CO told him
that he should make an “appeal,” and that he thought that his conversation with the CO was
sufficient.2 Borkowski conceded his fault in this matter, but said that this was his first experience with
an OSHA citation, that he had not really read the citation, and that he had in any case lost the citation
after receiving it; he also said that his company was very small, consisting at times of himself and one

    1
    The record establishes that J&B filed two notice of contest letters, both of which were

untimely. The first is an undated letter that was received by the Commission on December 8, 1997,
while the second, R-1, is a virtually identical letter dated January 12, 1998; according to the record,
the Commission received this second letter on January 29, 1998.
2
The CO did not recall any conversations with Borkowski after the inspection. (Tr. 7).
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other worker, that his office was in his home, and that he had been very busy with work during the
period of time in which he had received the citation.3 (Tr. 10-19).
The cover letter to the citation issued to J&B states, in the first paragraph, as follows:
You must abate the violations referred to in this Citation by the dates listed and pay
the penalties proposed, unless within 15 working days ... from your receipt of this
Citation and Notification of Penalty you mail a notice of contest to the U.S.
Department of Labor Area Office at the address shown above. Please refer to the
enclosed booklet (OSHA 3000) which outlines your rights and responsibilities and
which should be read in conjunction with this form.
In addition, page 2 of the cover letter has a paragraph which provides as follows:
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 the 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.
The Commission has held that the OSHA citation “plainly state(s) the requirement to file a
notice of contest within the prescribed time period.” Roy Kay, Inc., 13 BNA OSHC 2021, 2022 (No.
88-1748, 1989). The Commission has also held that inexperience in OSHA matters and ignorance of
procedural rules, even by a layman, do not constitute excusable neglect for purposes of Rule 60(b)
relief. Id. See also Acrom Constr. Serv., 15 BNA 1123, 1126-27 (No. 88-2291, 1991). Finally, the
Commission has held that a business must have orderly procedures for the handling of important
documents and that Rule 60(b) cannot be invoked “to give relief to a party who has chosen a course
of action which in retrospect appears unfortunate or where error or miscalculation is traceable really
to a lack of care.” Louisiana-Pacific Corp., 13 BNA OSHC 2020, 2021 (No. 86-1266, 1989).
Applying the foregoing to the facts of this case, J&B is not entitled to Rule 60(b) relief. First,
J&B has been a going concern since 1990, and, as such, it should have had procedures in place for
the proper handling of important matters such as the OSHA citation. (Tr. 11). Second, Borkowski
is the individual who reads and signs the contracts relating to his business, and, in the exercise of due

    3
     Borkowski indicated that the citation was stolen from his car. (Tr.17).

4

diligence, he should have been aware of the 15-day notice of contest filing requirement. (Tr. 12-13).
Third, Borkowski himself acknowledged his fault in this matter, and none of the reasons he asserted
for not filing a timely notice of contest constitute “excusable neglect.” (Tr. 19). Although I am
sympathetic to J&B’s plight, I am constrained by the Commission precedent set out above and by the
record to conclude that the failure to file a timely notice of contest in this case was not due to
excusable neglect or any other reason justifying relief under Rule 60(b).
Order
For the reasons set out supra, the Secretary’s motion to dismiss the notice of contest is
GRANTED, and the citation and notification of penalty is AFFIRMED in all respects.

                                                   Irving Sommer
                                                   Chief Judge

Date: