BCB Construction, Inc.

Plain-English summary

OSHA cited BCB Construction after inspecting a multi-employer construction site where an accident caused one employee's death and another employee's serious injury. Certified-mail delivery to BCB's address of record failed after three attempts, but OSHA faxed the citation to a law firm that said it represented BCB. Chief Judge Irving Sommer found that the firm's authority to accept service was implied by its participation in the OSHA closing conference and its request for the citation. BCB did not contest within 15 working days after the fax and showed no deception, procedural failure, or excusable neglect. The late notice of contest was dismissed, leaving the citation and penalty affirmed.

Decision snapshot

• Cited standard(s): The decision does not identify the standards underlying the citation.
• Outcome: Late notice of contest dismissed; citation and penalty affirmed.
• Key point: Delivery to an attorney can start the contest period when the circumstances show that the employer authorized the attorney to act in the OSHA matter.

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. 98-0536
:
BCB CONSTRUCTION, INC., :
:
Respondent. :

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 BCB Construction (“BCB”) filed a
timely notice of contest of a citation and notification of penalty issued by the Occupational Safety and
Health Administration (“OSHA”). A hearing was held on July 23, 1998, for the sole purpose of
deciding whether the Secretary’s motion to dismiss BCB’s notice of contest should be granted.
Background
OSHA conducted an inspection of a multi-employer construction site in the District of
Columbia after an accident that caused the death of one employee and the serious injury of another.
An OSHA compliance officer (“CO”) began the inspection on August 17, 1997; there were attorneys
at the site representing various parties, and on several occasions the CO spoke with an associate
attorney from a Maryland law firm who told him she was representing BCB and its insurer. After
concluding his inspection, the CO phoned the associate and left a message that he needed to hold a
closing conference with BCB; a partner from the firm returned his call, and the CO discussed with
him the fact that a citation would be issued to BCB. On February 17, 1998, OSHA issued a two-item
serious citation and mailed it by certified mail to BCB’s address in Baltimore, Maryland; however,
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after three delivery attempts, the U.S. Postal Service returned the citation package to OSHA.1 Shortly
after February 17, 1998, the associate called the CO and told him she understood a citation had been
issued but that BCB had not received it, and the CO advised her to call his area director. The
associate spoke to the area director on February 26, 1998, explaining that she represented BCB and
its insurer and that BCB had not received the citation; she then requested a copy of the citation, and
the area director faxed it to her the same day.2 On March 11, 1998, the associate called the CO and
informed him that BCB still had not received the citation; the CO told her he would check into the
matter, and, in so doing, learned of the unsuccessful delivery attempts. On March 24, 1998, the CO
received a letter from the partner, dated March 23, 1998, advising that he was representing BCB and
that BCB was contesting the citation and penalties.3 The CO called the law firm and spoke with the
associate, telling her what he had learned and that the contest period was already over.4
Whether Service of the Citation was Valid
Section 10(a) of the Act requires an employer to notify OSHA of its intent to contest a
citation within 15 working days of its receipt of the citation, and the employer’s failure to file a timely
notice of contest results in the citation and penalty becoming a final judgment of the Commission by
operation of law. The Secretary contends that BCB received the citation on February 26, 1998, when
it was faxed to the law firm representing BCB, and that the notice of contest was not timely because

    1
    The attempted deliveries took place on February 19, February 24 and March 7, 1998, and

although the Postal Service on each occasion left a yellow “pick-up notice” on the secured front door
of BCB’s address of record, no one ever retrieved the citation package.
2
The associate recalled telling the OSHA officials that she represented BCB and its insurer
in the personal injury case and that BCB also had corporate counsel; however, both OSHA officials
recalled her saying only that she represented BCB and its insurer.
3
The law firm sent two letters to OSHA on behalf of BCB before the notice of contest. The
first, dated October 27, 1997, and addressed to the CO, stated that the partner represented BCB in
claims arising out of the accident and requested an opportunity to view certain physical evidence and
notice of any tests to be performed; the second, dated January 13, 1998, and addressed to an OSHA
supervisor, asked for an extension to provide documents in response to a subpoena. See C-3. The
record indicates that the associate prepared and signed all three letters at the partner’s request.
4
Although the associate recalled her March 11 and 24 conversations as having been with the
area director, the record as a whole indicates that they were with the CO.
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it was not filed within 15 working days of that date. BCB, on the other hand, contends that there was
no valid service of the citation because it was not served by certified mail as required by the Act and
because the law firm had no authority to accept service.
With respect to BCB’s first contention, the record shows that the Secretary mailed the citation
by certified mail to the address the CO obtained during the inspection, that the Postal Service left a
pick-up notice on the secured door at that address on each of its three attempts to deliver the citation,
and that no one ever retrieved the citation. (Tr. 7-10 ; 49-51; 55-56; C-2; R-1). There is testimony
in the record suggesting that BCB may have moved. (Tr. 50-51). However, as the Secretary points
out, BCB does not assert that the address on C-2, the envelope the citation was mailed in, is
incorrect. Moreover, even assuming arguendo that BCB did move, that the Postal Service attempted
delivery at that address indicates that BCB did not file a change of address to ensure it would receive
its mail. Regardless, given the Postal Service’s three attempts to deliver the citation by certified mail
at BCB’s address of record, the company cannot now complain that it did not receive the citation
by certified mail. BCB’s contention is accordingly rejected.
With respect to BCB’s second contention, the record shows, and BCB does not dispute, that
OSHA faxed the citation to the law firm on February 26, 1998. (Tr. 34; C-4). BCB contends, rather,
that the law firm had no authority to accept service of the citation. BCB notes that it is involved in
four proceedings arising from the accident, that the law firm was not representing it in the OSHA
investigation until March 23, 1998, the date of the notice of contest letter, and that up until that time
the only claim the law firm was handling was the personal injury case relating to BCB and its insurer;
BCB also notes that the law firm had never represented it previously, that a different law firm is
representing it in the two other proceedings, and that it also has corporate counsel.
In support of its contention, BCB points out that service cannot be made on an attorney
unless that attorney has been authorized to receive service, citing to Santos v. State Farm Fire &
Casualty Co., 902 F.2d 1092, 1094 (2d Cir. 1990). However, according to Wright & Miller, the
authority to accept process need not be explicit but may be implied from the relationship between the
defendant and the alleged agent; there must be evidence that the defendant intended to confer such
authority upon the agent, and the requisite intent may be implied from the circumstances surrounding
the service upon the agent. 4A Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure
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§ 1097, at 84-87 (2d ed. 1987). See also United States v. Bosurgi, 343 F. Supp. 815, 817-18
(S.D.N.Y. 1972); Automatic Merchandising Corp. v. Zenga, 159 F. Supp. 489, 490 (D. Mass. 1958).
Consequently, whether service was valid in this case depends upon whether the requisite intent to
confer authority may be implied from the circumstances.
Although the background sets out the basic facts in this case supra, there is one key point that
requires further elaboration. When the CO called the associate and left a message that he needed to
hold a closing conference with BCB, a partner from the law firm returned the call. The CO testified
he advised the partner that the purpose of his call was to hold a closing conference and that a citation
would be issued to BCB; the CO also testified that he discussed BCB’s rights and responsibilities in
regard to the citation, and that the partner disputed several aspects of the alleged violations. (Tr. 25-
28). BCB did not rebut this testimony, which, in my opinion, resolves the issue of the service of the
citation. As I see it, if the law firm was not representing BCB in the OSHA matter, the partner would
have so advised the CO upon learning the purpose of the call, and that he did not convinces me that
the law firm was in fact representing BCB at the time of the closing conference, if not before. I find,
therefore, that BCB’s intent to confer authority upon the law firm to accept service of the citation
is implicit from the circumstances in this case and that OSHA’s faxing of the citation to the law firm
on February 26, 1998, was valid service.5 BCB’s contention is accordingly rejected.
Whether BCB is Entitled to Rule 60(b) Relief
The record clearly shows that BCB did not file its notice of contest until after the expiration
of the required 15-day period. 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 if it establishes that the Commission’s
final order was entered as a result of “mistake, inadvertence, surprise, or excusable neglect” or “any
other reason justifying relief,” including mitigating circumstances such as absence, illness or a
disability which would prevent a party from protecting its interests. See Fed. R. Civ. P. 60(b);
Branciforte Builders, Inc., 9 BNA OSHC 2113 (No. 80-1920, 1981). The Secretary contends that
there are no reasons justifying Rule 60(b) relief in this case. I agree.

    5
    In so finding, I have considered the testimony suggesting that the decision to have the law

firm represent BCB in the OSHA matter was made on March 23, 1998. (Tr. 54-55).
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    There is no evidence that the Secretary failed to follow proper procedures or was deceptive

in this matter. OSHA mailed the citation by certified mail to BCB’s address of record, and BCB did
not retrieve it despite three notices left on its front door. OSHA then faxed the citation to the attorney
who requested it and who said she was representing BCB, and BCB did not contest the citation
within the required period of time after its receipt by facsimile. BCB notes that the area director never
advised that the facsimile transmission effectuated service and that the CO told the associate attorney
on March 24 that the contest period was over because the citation was delivered as of the Postal
Service’s first attempt. Regardless, I find that OSHA had no obligation to advise that its faxing of the
citation constituted service, under the facts of this case; further, it is clear that the CO’s March 24
statement did not influence BCB’s filing of the notice of contest because it was already filed. See,
e.g., Keefe Earth Boring Co., 14 BNA OSHC 2187 (No. 88-2521, 1991).
There is likewise no evidence of excusable neglect in this case. The CO testified that he
discussed BCB’s rights and responsibilities with respect to the citation during his telephone closing
conference with the partner. (Tr. 25-28). In addition, both the citation issued to BCB and its cover
letter explain the 15-day contest period. The cover letter 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.
The cover letter further states, on page 2, 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 a business must have orderly procedures in place for the receipt
and handling of important documents. See, e.g., E.K. Constr. Co., 15 BNA OSHC 1165, 1166 (No.
90-2460, 1991), and cases cited therein. The Commission has additionally held that the OSHA
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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). Finally, the Commission has held
that an employer “must bear the burden of its own lack of diligence in failing to carefully read and act
upon the information contained in the citations,” that lack of knowledge of procedural rules does not
constitute excusable neglect for purposes of Rule 60(b) relief, and that the rule 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.” Acrom Constr. Serv., 15 BNA
OSHC 1123, 1126 (No. 88-2291, 1991); Roy Kay, Inc., 13 BNA OSHC 2021, 2022 (No. 88-1748,
1989).
Based on the record, there are no reasons justifying Rule 60(b) relief in this case. 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: