Dessau Brass, Inc.

Plain-English summary

Dessau Brass received serious citations on December 10, 1998, but did not contest them until March 29, 1999, after OSHA sought overdue penalties. The company said it had corrected the conditions, was unfamiliar with OSHA, misunderstood the fifteen-day deadline, and would suffer financial hardship from the penalties. It did not appear at the hearing. Chief Judge Irving Sommer held that the citation materials plainly explained the deadline and that ignorance of procedural rules did not constitute excusable neglect, so he dismissed the contest and affirmed the citation and penalties.

Decision snapshot

• Cited standard(s): Not identified in the decision.
• Outcome: Late notice of contest dismissed; citation and penalty affirmed in all respects.
• Key point: Inexperience with OSHA, misunderstanding a clearly stated filing deadline, and financial hardship do not justify Rule 60(b) relief from an untimely contest.

Full text (OSHRC public release)

SECRETARY OF LABOR, :
:
Complainant, :
:
v. : OSHRC DOCKET NO. 99-0533
:
DESSAU BRASS, INC., :
:
Respondent. :

Appearances:

           Margaret A. Temple, Esquire
           New York, New York
           For the Secretary.

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.
Background
The Occupational Safety and Health Administration (“OSHA”) inspected Respondent’s
facility in Moonachie, New Jersey, in November of 1998. As a result, OSHA issued Respondent a
citation and notification of penalty alleging serious violations of the Act. Section 10(a) of the Act
requires an employer to notify OSHA of the intent to contest a citation within 15 working days of
receiving it, 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 record shows that
OSHA mailed the citation by certified mail, that Respondent received it on December 10, 1998, and
that the notice of contest period ended on January 4, 1999. The record also shows that Respondent
did not file a notice of contest until March 29, 1999, after receiving a letter from OSHA advising that
the penalties assessed were past due. The Secretary filed her motion to dismiss on May 20, 1999. The
hearing in this matter was held in New York, New York on July 27, 1999.
Discussion
 2

   The record plainly shows that Respondent did not file its notice of contest until 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 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 concedes the lateness of its
notice of contest and, in essence, requests that the late filing be excused under the circumstances.
No representative of Respondent made an appearance at the hearing. However, in the
company’s notice of contest letter, Mr. Howard Dessau indicates that all of the violations found
during the inspection were abated as required. He also indicates that this was Respondent’s first
experience with OSHA and that company officials did not understand the 15-day notice of contest
filing requirement. Finally, Mr. Dessau indicates that paying the assessed penalties would present
a financial hardship for the company and requests that the penalty assessment be “reversed.”
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.
 3

    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 ignorance of procedural rules, even by a layman,
does not constitute “excusable neglect” for purposes of Rule 60(b) relief. Acrom Constr. Serv., Inc.,
15 BNA OSHC 1123, 1127 (No. 88-2291, 1991). Finally, the Commission has held that Rule 60(b)
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.” Roy Kay,
Inc., 13 BNA OSHC 2021, 2022 (No. 88-1748, 1989).
Based on Howard Dessau’s letter, the failure to file a timely notice of contest in this case was
due to the company’s inexperience with OSHA and its not understanding the 15-day filing
requirement. However, in light of the foregoing Commission precedent, these reasons do not
constitute excusable neglect or “any other reason justifying relief” pursuant to Rule 60(b). I have
noted the statements in Respondent’s notice of contest letter indicating that all of the cited conditions
were abated as required and that paying the assessed penalties would impose a financial burden on
the company. Although I sympathize with Respondent’s plight in this matter, I am constrained by
Commission precedent and the circumstances of this case to conclude that Respondent is not entitled
to 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: