High End Systems, Inc.

Plain-English summary

High End Systems hired a safety consultant to represent it during an OSHA inspection. The consultant received the citation, advised High End to contest it, knew the June 3 deadline, and prepared a notice of contest, but neither party sent the notice. Judge James H. Barkley found that the consultant had been entrusted with the OSHA matter and was responsible for ensuring timely filing. The oversight was simple neglect rather than excusable neglect, and High End was accountable for its chosen representative's omission. The citation and penalty therefore remained a final order.

Decision snapshot

• Cited standard(s): The decision does not identify the standards underlying the citation.
• Outcome: Rule 60(b) relief denied; citation and penalty affirmed as a final order.
• Key point: An employer generally bears the consequences when its chosen representative fails to file an authorized notice of contest on time.

Full text (OSHRC public release)

SECRETARY OF LABOR,
Complainant,

                      v.                            OSHRC DOCKET NO. 98-0988

HIGH END SYSTEMS, INC.,
Respondent.

                                    DECISION AND ORDER
    This matter comes up on Complainant’s July 30, 1998 motion to dismiss Respondent’s, High End

Systems, Inc. (High End) notice of contest. On August 4, 1998, this judge issued an order, directing High
End to show good cause why Complainant’s motion should not be granted. On August 6, 1998, High End
filed a response, admitting that its notice of contest was untimely filed, and asking that the untimely filing
be excused.
Section 10(a) of the Occupational Safety and Health Act, 29 U.S.C. §659(a) provides:
If, within 15 working days from the receipt of the notice issued by the Secretary the employer fails
to notify the Secretary that he intends to contest the citation. . . the citation and the [penalty]
assessment, as proposed, shall be deemed a final order of the Commission and not subject to review
by any court or agency.

    The citation issued in this matter, therefore, has become a final order of the Commission. The

Commission may set aside such final order, however, under Fed. R. Civ. P. 60(b) in cases where the
employer demonstrates that the failure to file the notice of contest in a timely manner was due to excusable
neglect. Craig Mechanical, Inc., 16 BNA OSHC 1763, 1994 CCH OSHD ¶30,442 (No. 92-0372-S, 1994).
Viewing the facts in the light most favorable to High End, Respondent fails to make the requisite
showing.
Facts
On April 16, 1998, High End Systems, Inc., engaged a safety consultant, Double D Safety
Enterprises, LLC (Double D), to represent its interests in an OSHA inspection which took place on that
date. On May 12, 1998, Double D received a copy of the OSHA Citation and Notification of Penalty.
Double D advised High End to contest the citations. Double D made High End aware of the deadline to
file a notice of contest, June 3, 1998. High End approved the contest, calling Double D and asking what
had been done in their behalf. Double D prepared the notice of contest, which it submitted to High End for
review and approval on June 1. On that same date, High End notified OSHA that Double D would be
representing it in this matter. On June 10, Double D and High End discovered that the notice of contest
had never been sent.
Discussion
Double D implies that it did not realize it was authorized to proceed in High End’s behalf, and/or
that it believed High End itself would file the notice of contest prepared by Double D. Double D suggests
that its failure to file the notice of contest, or otherwise pursue the matter was, therefore, excusable. This
judge does not agree. Double D was engaged to represent High End from the time the OSHA investigation
was instigated. High End asked Double D to pursue the matter; Double D actually prepared the notice.
Having been entrusted with the OSHA matter, Double D was obliged to ensure the June 3 deadline was
met. Double D’s lack of diligence in ensuring that the notice of contest was timely filed amounts to simple
neglect, and so is not excusable under Rule 60(b).
The Commission has adopted the position that employers must be held accountable for the acts and
omissions of their chosen counsel. Byrd Produce Co., 16 BNA OSHC 1268, 1993 CCH OSHD ¶30,139
(No. 91-0823, 1993). No relief, therefore, is available to High End.
ORDER
The Citation and Notification of Penalty are AFFIRMED as a final order of the Commission. No
relief under Rule F. Civ. P. 60(b) is available.

                                                      James H. Barkley
                                                      Judge, OSHRC

Dated:

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