Windward Roofing & Construction, Inc.

Plain-English summary

Windward received copies of a serious OSHA citation in July 1998, making August 5 the final day to file a notice of contest. Both copies were placed on the desk of the accounting manager responsible for OSHA matters, who went on vacation and then resigned without returning. The company did not review her mail and filed its contest on September 4. Chief Judge Irving Sommer held that the company's document-handling failure was not excusable neglect or another basis for Rule 60(b) relief. The late notice was dismissed, and the citation and notification of penalty were affirmed in all respects. The release does not identify the cited standard or penalty amount.

Decision snapshot

• Cited standard(s): Not identified in the official release.
• Outcome: Late notice of contest dismissed; serious citation and notification of penalty affirmed in all respects.
• Key point: A personnel absence or resignation does not excuse a business from maintaining procedures to review and act on important OSHA documents.

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. 98-1574
:
WINDWARD ROOFING & :
CONSTRUCTION, INC., :
:
Respondent. :

APPEARANCES:

            Helen J. Schuitmaker, Esquire                    John Cherachi
            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”), for the sole purpose of determining whether the Secretary’s motion to
dismiss Respondent’s notice of contest as untimely should be granted. The hearing in this matter was
held in Chicago, Illinois on February 19, 1999.
Background
The Occupational Safety and Health Administration (“OSHA”) inspected a work site of
Respondent in Park Ridge, Illinois, on June 1 and 2, 1998. As a result of the inspection, OSHA
issued Respondent a one-item serious citation and notification of penalty. 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 of the Commission by operation of law.
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   The record shows that on June 22, 1998, OSHA sent two copies of the citation by certified

mail, one to Respondent’s place of business and one to the company’s safety consultant. 1 On July
10, 1998, the safety consultant contacted OSHA by phone to advise that the company had not
received the citation, and OSHA, on that same day, mailed another copy of the citation by certified
mail to Respondent. The company received the first copy of the citation on July 13, 1998, and the
second copy on July 15, 1998. On the basis of the July 15 date, the 15-day notice of contest period
expired on August 5, 1998.
The record further shows that on August 26, 1998, OSHA held an informal conference with
representatives of Respondent in regard to an inspection of a different work site of the company that
had resulted in the issuance of a second citation. At the conference, Respondent’s representatives
asked about the first citation, and OSHA, after checking into the matter, advised the company that
the notice of contest period had expired, that the citation had already become a final order of the
Commission, and that OSHA no longer had the authority to make any changes with respect to the
citation or the penalty. Respondent filed a late notice of contest on September 4, 1998. The Secretary
filed her initial motion to dismiss on November 5, 1998, and an amended motion to dismiss on
December 7, 1998.
Discussion
The record shows that Respondent did not file its notice of contest until well after the 15-day
contest period had 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 this matter; rather, Respondent’s letter states that
circumstances beyond its control caused the untimely filing and asks that the late filing be accepted.

   1
    During the closing conference following the inspection, Respondent’s safety consultant had

requested that a copy of the citation be mailed to him.
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   At the hearing, John Cherachi, Respondent’s controller, testified that the company had been

in business for ten years, that the number of employees ranged from 50 to 100, and that there were
approximately eight employees in the company office. He further testified that upon receiving the
citation, office personnel had put both copies on the desk of the accounting manager, the person who
was responsible for OSHA matters and for dealing with the company’s safety consultant. Cherachi
said that the accounting manager went on vacation the week after the citation was received and that
instead of returning at the end of the month, as expected, she called the office to advise she was
resigning; he also said that no one had reviewed the mail on the accounting manager’s desk in her
absence because she was expected back at the office at the end of the month. (Tr. 16-19).
The citation issued to Respondent, and the cover letter accompanying it, explain the 15-day
contest period. The cover letter states, in the first paragraph on page 1, that:
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, the following:
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 above, 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 relief where the employer asserted that the late filing was caused by events such as a change
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in management, the improper handling of the citation by company personnel, and the absence, even
if 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.
Based on the testimony of Respondent’s controller, the untimely filing in this case was due
to the accounting manager’s vacation and subsequent resignation and the company’s failure to
review the mail on her desk in her absence. However, in light of the foregoing, this reason does not
constitute excusable neglect or “any other reason justifying relief.” I have considered the unfortunate
timing of the accounting manager’s vacation and resignation, and I am sympathetic to Respondent’s
plight. Regardless, I am constrained by the Commission precedent set out above to conclude that the
circumstances in this case do not warrant Rule 60(b) relief. The Secretary’s motion to dismiss is
accordingly 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: