O'Connor & Taylor, Inc.

Plain-English summary

O'Connor & Taylor received an OSHA citation on April 20, 1998, making May 11 the deadline for a notice of contest. A clerical error caused the company to record April 22 as the receipt date and file after the 15-working-day period. Chief Judge Irving Sommer found no improper conduct by the Secretary or other basis for Rule 60 relief. The company was responsible for maintaining orderly procedures for important mail, and simple negligence was not excusable neglect. The late contest was dismissed, leaving the citation and proposed 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 proposed penalty affirmed.
• Key point: An internal clerical error in recording a citation's receipt date does not excuse a missed contest deadline.

Full text (OSHRC public release)

                     UNITED STATES OF AMERICA
         OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION


                                           :

SECRETARY OF LABOR, :
:
Complainant, :
:
v. : Docket No. 98-822
O'CONNOR & TAYLOR, INC., :
:
Respondent. :
:
:

                                DECISION AND ORDER
    The Secretary filed a motion to dismiss the Respondent's notice of contest on June 12, 1998.

There was no response to the motion.
BACKGROUND
The citation setting forth the alleged violations and the accompanying notification of proposed
penalty was issued by certified mail on April 16, 1998 and received by the Respondent on April 20,
1998. Pursuant to Section 10(a) of the Act, 29 U.S.C. sec. 659(a), the Respondent 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 May 11, 1998. 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.
Section 10(a) of the Act. In a letter dated May 18, 1998, received on May 28, 1998 by the
Occupational Safety and Health Administration the Respondent explained that the citation was
received on April 20, 1998, however, due to a clerical error, it was my understanding that we received this notice on April 22, 1998.'' Because of this error, the notice of contest was filed after the 15 working day period. DISCUSSION The record plainly shows that the Respondent did not file a notice of contest within the 15 working day period. His explanation is that a clerical error on their part was the cause of the delay in filing the notice of contest.  An otherwise untimely notice of contest may be accepted where the delay in filing was caused by deception on the part of the Secretary to follow proper procedures. An employer is entitled to relief under Fed. R. Civ. Proc. 60(b)(1) if it demonstrates that the Commission's final order was entered as a result ofmistake, inadvertence, surprise, or excusable neglect'' or under Rule 60(b)(6)
for such mitigating circumstances as absence, illness or a disability which prevents a party from
protecting his interests. See Branciforte Builders, Inc., 9 BNA OSHC 2113. Here, there is no
showing that the Secretary acted improperly or that the factors mentioned in Rule 60 are present. The
Respondent as stated that the delay was due to a clerical error in ascribing the date of receipt of the
citations. It was incumbent upon the Respondent in the carrying out of its business activity to
maintain orderly procedures for handling important 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.
Simple negligence will not provide entitlement to relief. E.K. Construction Co., 15 BNA
OSHC 1165.
While I am sympathetic to the Respondent's plight, I have no alternative but to hold it
responsible for failing to file in a timely manner as required.
The motion of the Secretary to dismiss is GRANTED.
ORDER
The citation issued to the Respondent on April 16, 1998 and proposed penalty is AFFIRMED
in all respects.

                                                    IRVING SOMMER
                                                    Chief Judge

DATED:
Washington, D.C.