L & D Construction

Plain-English summary

OSHA cited L & D Construction after seeing two people working without fall protection on a pitched roof at a volunteer renovation project in Yonkers, New York. The notice of contest was filed months after the 15-working-day deadline because L & D's owner relied on the building owner, who repeatedly said he would handle the citation. Chief Judge Irving Sommer found the owner credible that he worked alone, had no employees, and was volunteering with other church members at the site. The compliance officer also acknowledged conflicting statements about who employed the workers and never resolved the issue. Given those unusual circumstances and the owner's first experience with OSHA, the judge found excusable neglect, denied the Secretary's dismissal motion, and vacated the citation and penalty.

Decision snapshot

• Cited standard(s): None identified in the official release.
• Outcome: Late notice of contest accepted under Rule 60(b); citation and penalty vacated in full.
• Key point: A late contest may be excused when credible evidence shows genuine confusion about employer status, reasonable reliance on another person to respond, and unusual circumstances beyond ordinary neglect.

Full text (OSHRC public release)

SECRETARY OF LABOR, :
:
Complainant, :
:
v. : OSHRC DOCKET NO. 99-0897
:
L & D CONSTRUCTION, :
:
Respondent. :

Appearances:

             Margaret A. Temple, Esquire                  Leon Taylor
             New York, New York                           Bronx, New York
             For the Secretary.                           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”). The Occupational Safety and Health Administration (“OSHA”) inspected
a residential construction site in Yonkers, New York, on August 6, 1998, pursuant to a complaint
about the site. After the inspection, 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 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 September 11, 1998, and that the notice of contest period ended on
October 2, 1998. The record also shows that a notice of contest was not filed in this case until May
1, 1999. The Secretary filed a motion to dismiss the notice of contest as untimely on July 6, 1999,
and the hearing in this matter was held in New York, New York on November 8, 1999.
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                                       The Testimony
   Maureen Smith, the OSHA compliance officer (“CO”) who conducted the inspection,

testified that when she arrived at the site she saw two individuals working without fall protection on
the pitched roof of a building that was being converted into a residence; one identified himself as
Victor Vega, and both said they worked for L & D Construction. CO Smith further testified that
when Leon Taylor arrived at the site, she told him why she was there and about the violations she
had seen; he said he was the owner of L & D, and she did not recall him stating that the employees
were not his or that he was not getting paid for his work. However, she indicated that the individuals
she spoke to had said something about working for a friend and a church; she also indicated that their
statements had conflicted with Taylor’s and that she had not known who to believe. (Tr. 32-39; 42).
Leon Taylor testified that although he did carpentry and masonry work and had been in
business since 1996, he had always worked by himself, he had never had any employees, and he was
not getting paid for his work at the site.1 Taylor explained that Justin Lambert, a friend and a member
of his church, bought the building to convert it into his personal residence and that he (Taylor) was
working on the house one or two days a week on a voluntary basis; he further explained that Lambert
also had other individuals working on the house and that while he knew Lambert’s son and Victor
Vega, who also belonged to the church, he did not really know the others. Taylor said neither Vega
nor anyone else at the site worked for him and that he had so informed the OSHA representative,
who was there when he arrived. Taylor also said that upon receiving the citation, he went to Lambert,
who told him he would take care of it; he went back to Lambert after getting a demand letter for the
penalties that were due, and Lambert again told him he would take care of it.2 (Tr. 23-31; 40-43).
Discussion
The record plainly shows that no notice of contest was filed in this matter until after the 15-
day contest period had ended. An otherwise untimely notice of contest may be accepted where the

   1
     Although this case was initially captioned as “L & D Construction, Inc.,” Taylor testified

that his company was a “full proprietorship” and was not incorporated. (Tr. 24). As his testimony
was not rebutted, the caption set out above reflects the name Taylor indicated.
2
Lambert’s action to “take care of” this matter, apparently, was to send in the notice of
contest letter, which, while consistent with Taylor’s testimony, was unsigned.
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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 that 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. However, the testimony of Leon Taylor is construed
to be a request that the late filing be excused under the circumstances.
It is clear Leon Taylor received the citation in this case, and the Commission has held that
OSHA citations plainly state the requirement to file a notice of contest within the prescribed period
and that an employer “must bear the burden of its own lack of diligence in failing to carefully read
and act upon the information contained in the citations.” Roy Kay, Inc., 13 BNA OSHC 2021, 2022
(No. 88-1748, 1989); Acrom Constr. Serv., Inc., 15 BNA OSHC 1123, 1126 (No. 88-2291, 1991).
The Commission has also 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).
Regardless, on the facts of this case, I conclude that the late filing was due to excusable neglect.
Under other circumstances, Leon Taylor’s failure to file a timely notice of contest and his
reliance on Lambert to “take care of”the citation would not constitute excusable neglect. However,
after considering the testimony of Taylor and the CO, I find that Taylor had no employees at the site.
I observed Taylor’s demeanor as he testified and found his statements to be consistent, convincing
and credible. Although the CO’s testimony was also sincere, she herself indicated that she recalled
the individuals she spoke to saying something about working for a friend and a church; I also note
her testimony that she was not sure who to believe and that she “figured it would get sorted out at
one time or another.” (Tr. 37; 42). In light of this testimony, I conclude that the workers
misunderstood her or that she misunderstood them and that when she later spoke to Taylor she was
already operating under the assumption that he was their employer. In my opinion, these
circmumstances, together with Lambert’s assurances that he would resolve the citation and the fact
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that this was Taylor’s first experience with OSHA, excuse Taylor’s not filing a notice of contest
within the statutory period and justify Rule 60(b) relief. (Tr. 25).
For the foregoing reasons, the Secretary’s motion to dismiss Respondent’s notice of contest
is DENIED, and the citation and notification of penalty is VACATED in its entirety.
So ORDERED.

                                                   Irving Sommer
                                                   Chief Judge

Date: 16 DEC 1999