Preston Trucking Company, Inc.

Plain-English summary

Preston Trucking received an OSHA citation but filed its notice of contest well after the 15-working-day deadline. The terminal manager was on vacation when the citation arrived, and his secretary misplaced it. Preston argued that it took safety seriously, promptly abated the cited conditions, and had not previously mishandled an important document. Chief Judge Irving Sommer found no deception or procedural failure by the Secretary and concluded that the late filing resulted from clerical negligence rather than excusable neglect. He dismissed the notice of contest and affirmed the citation and penalty in all respects.

Decision snapshot

• Cited standard(s): The underlying citation standards are not identified in the order.
• Outcome: Untimely notice of contest dismissed; citation and penalty affirmed by operation of law.
• Key point: A business must maintain orderly procedures for important documents, and misplacing a citation generally does not establish excusable neglect.

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. 98-1527
:
PRESTON TRUCKING COMPANY, :
INC., :
:
Respondent. :

APPEARANCES:

            John Ho, Esquire                                Glenn DeMarco
            New York, New York                              Preston, Maryland
            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, Preston Trucking Company (“Preston”),
filed a timely notice of contest of a citation and notification of penalty issued by the Occupational
Safety and Health Administration (“OSHA”). The hearing in this matter was held January 15, 1999.
Background
OSHA inspected Preston’s workplace in Kearny, New Jersey, on January 27, 1998, and issued
the company a citation and notification of penalty on July 1, 1998.1 Section 10(a) of the Act requires
an employer to notify OSHA of the intent to contest a citation within 15 days of receiving it, and the
failure to file a timely notice of contest results in the citation and penalty becoming a final judgment

    1
     OSHA held its closing conference with Preston on May 11, 1998.

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of the Commission by operation of law. It is undisputed that OSHA mailed the citation by certified
mail, that Preston received it on July 10, 1998, and that the 15-day notice of contest period expired
on July 31, 1998. It is also undisputed that Preston filed its notice of contest on September 24, 1998,
and that the Commission received the notice of contest on September 28, 1998. The Secretary filed
her motion to dismiss the notice of contest as untimely on November 12, 1998.
Discussion
The record plainly shows that Preston did not file its notice of contest until well after the 15-
day contest period had already ended. An otherwise untimely notice of contest may be accepted
where the Secretary’s deception or failure to follow proper procedures caused the delay in filing. An
employer is also entitled to relief if it shows 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). There is no evidence and no contention that the Secretary was deceptive
or failed to follow proper procedures; in fact, Preston concedes its fault in filing the untimely timely
notice of contest. (Tr. 18). Rather, Preston requests, in essence, that its untimely filing be excused
under the circumstances.
At the hearing, Glenn DeMarco, Preston’s terminal manager, stated that his secretary received
the citation while he was on vacation; she then misplaced it, which resulted in his being unaware of
the citation until the OSHA compliance officer who had conducted the inspection returned to the site
to do a follow-up inspection on August 28, 1998. DeMarco noted that Preston had taken the
inspection very seriously, that it had significantly upgraded its safety efforts and had also fully abated
all of the cited conditions by the time of the follow-up inspection, and that the company was very
frustrated by not having had the opportunity to discuss the citations with OSHA. (Tr. 18-20). In
addition, Donald Hansen, Preston’s vice-president of safety and insurance, stated in the notice of
contest that the company had always responded in a timely manner to OSHA complaints and alleged
violations and that this was the first time a document of such importance had been misplaced.
The citation issued to Preston, and the cover letter accompanying it, explain the 15-day
contest period. The cover letter states, in the first paragraph on page 1, as follows:
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    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 also 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 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 Rule 60(b), noted supra, 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.” Id. Finally, the Commission has
held that a business must have orderly procedures for the handling of important documents and has
denied Rule 60(b) relief where the employer asserted that the late filing was caused by events such
as a change in management, the improper handling of the citation by company personnel, and the
absence, even when due to illness, of the person responsible for OSHA matters. See Louisiana-
Pacific Corp., 13 BNA OSHC 2020, 2021 (No. 86-1266, 1989); J.F. Shea Co., 15 BNA OSHC
1092, 1094 (No. 89-976, 1991); E.K. Constr. Co., 15 BNA OSHC 1165, 1166 (No. 90-2460); and
cases cited therein.
It is clear from the record that the untimely filing in this case was due to clerical mishandling
of the citation. I am sympathetic to Preston’s plight in this matter, and I have noted the company’s
good faith, its prompt abatement of the cited conditions, and the obvious sincerity of Glenn DeMarco,
Preston’s terminal manager. However, I am constrained to follow Commission precedent, and, in light
of the foregoing case law, I am forced to conclude that the late filing was the result of simple
negligence and not excusable neglect. I therefore have no choice but to grant the Secretary’s motion
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to dismiss Preston’s untimely notice of contest. The Secretary’s motion to dismiss is consequently
GRANTED, the notice of contest is DISMISSED, and the citation and notification of penalty is
AFFIRMED in all respects.
So ORDERED.

                                                Irving Sommer
                                                Chief Judge

Date: