DECISION AND ORDER
Before: ROGERS, Chairman; ATTWOOD, Commissioner.
BY THE COMMISSION:
At issue before the Commission is an August 2, 2011 decision of Administrative Law Judge
Dennis L. Phillips granting the Secretary’s motion to dismiss an untimely notice of contest (“NOC”)
filed by Bill Jones Repairs and Reroofs, Inc. (“Jones” or “Respondent”). On March 15, 2011, following
an inspection of a worksite in Naples, Florida, the Occupational Safety and Health Administration
(“OSHA”) issued Jones a citation alleging serious violations of various construction industry standards
under the Occupational Safety and Health Act of 1970 (“OSH Act”), 29 U.S.C. §§ 651-678. OSHA
proposed a total penalty of $10,000. Jones received the citation on March 17, 2011, and had until
April 7, 2011, to file a timely NOC. See § 10(a) of the OSH Act, 29 U.S.C. § 659(a) (“employer has
fifteen working days within which to notify the Secretary that it wishes to contest the citation or
proposed assessment of penalty”).
On April 5, 2011, Miguel Leorza, the Acting Assistant Area Director at OSHA’s Area
Office in Fort Lauderdale, Florida, held an informal conference with Bill Jones, Respondent’s
president. At the informal conference, the possibility of settling the case was discussed, but Bill
Jones indicated that he wanted more time to consider the matter. On April 8, 2011, one day after
the NOC period ended, Bill Jones called Leorza to further discuss the citation. Leorza told him
that settlement was no longer possible, and he could file a late NOC with the Commission.
On April 26, 2011, Bill Jones filed a handwritten letter with the Commission explaining
that accepting the Secretary’s settlement offer “would put me out of business and leave my
employees jobless.” He also asked for a reduction in the penalty proposed in the citation and
questioned the merits of some of the citation items. On May 26, 2011, the Secretary filed a
motion with the judge in which she characterized Respondent’s letter as a late-filed NOC and
asked the judge to dismiss it. According to the Secretary, Jones failed to provide any basis for
relief from the Commission’s final order under Federal Rule of Civil Procedure 60(b).
decision, the judge determined that relief under Rule 60(b) was not warranted, granted the
Secretary’s motion to dismiss the untimely NOC, and affirmed the citation together with the
On September 7, 2011, Respondent’s counsel filed a petition with the Commission
seeking review of the judge’s decision. Attached to the petition was a letter from Bill Jones to
the Fort Lauderdale OSHA Area Office dated March 23, 2011, which states: “I wish to request
an Informal Conference as soon as possible as I disagree with the Citation and Notification of
Penalty.” In its petition, Respondent claims that (1) this letter was faxed to the OSHA Area
Office on March 23, 2011; (2) the letter constitutes a timely NOC; and (3) the Secretary acted
improperly by not placing it in the case file or forwarding it to the judge. See § 10(c) of the OSH
Act, 29 U.S.C. § 659(c) (upon receipt of employer’s timely NOC, Secretary shall advise the
Commission of the filing); Commission Rule 33, 29 C.F.R. § 2200.33 (same).
We agree with Jones that the language of its March 23, 2011 letter demonstrates an intent
to contest the citation and, therefore, find that the letter was a valid NOC. See Prime Roofing
Corp., 22 BNA OSHC 1892, 1897, 2004-09 CCH OSHD ¶ 33,028, p. 54,345 (No. 07-1409,
2009) (construing language of employer’s letter liberally to determine whether it exhibits a clear
intent to dispute the citation); Herasco Contr. Inc., 16 BNA OSHC 1401, 1402, 1993-95 CCH
OSHD ¶ 30,229, p.41,613 (No. 93-1412, 1993) (same). And on the record before us, it appears
that Jones faxed the letter to the OSHA Area Office on March 23, 2011, which was within the
Under these circumstances, we set aside the judge’s decision and remand the case for him
to provide the parties with an opportunity to fully address Respondent’s filing.
If the judge
concludes that the NOC was timely, he should reinstate the case and conduct further proceedings
as necessary. If he concludes that the NOC was untimely, he should reconsider whether relief
under Rule 60(b) is appropriate given the record before him.
Accordingly, we remand this case to the judge for further proceedings consistent with
Thomasina V. Rogers
Cynthia L. Attwood
Dated: September 22, 2011 Commissioner
SECRETARY OF LABOR, :
v. : OSHRC DOCKET NO. 11-1284
BILL JONES REPAIRS & REROOFS, INC., :
ORDER GRANTING COMPLAINANT’S MOTION TO DISMISS
RESPONDENT’S UNTIMELY NOTICE OF CONTEST
This proceeding is before the Occupational Safety and Health Review Commission (“the
Commission”) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29
U.S.C. § 651 et seq. (“the Act”). The Secretary has filed a motion to dismiss the untimely notice
of contest (“NOC”) filed by Respondent. Respondent has not filed a response to the Secretary’s
motion. For the reasons that follow, the Secretary’s motion is granted.
The Fort Lauderdale Area Office of the Occupational Safety and Health Administration
(“OSHA”) inspected Respondent’s job site located in Naples, Florida on March 4, 2011.
result, on March 11, OSHA issued to Respondent a four-item serious citation alleging violations
of the Act. The citation also proposed a total penalty of $10,000.00. OSHA mailed the citation to
the mailing address Respondent had provided. The citation was sent by certified mail via the
United States Postal Service (“USPS”). Based on the certified mail return receipt, signed by “D.
Salvi,” Respondent received the citation on March 17. The following sentence, underlined and in
bold, appears on page 2 of the citation, in the paragraph entitled Right to Contest:
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
[Commission] and may not be reviewed by any court or agency.
Because Respondent received the citation on March 17, the NOC was due on or before
April 7. Respondent failed to file its NOC by that date.
Bill Jones, Respondent’s owner, met with the AAAD on April 5 for an informal
conference. At that time, OSHA offered a settlement agreement to Respondent. Mr. Jones did
not accept the offer, but he stated that he would think it over and would get back to OSHA the
next day. The AAAD advised Mr. Jones that Thursday, April 7 would be the final day to accept
the settlement offer or to submit an NOC. Mr. Jones telephoned the AAAD on April 8, and
requested further changes to the offered settlement. The AAAD told Mr. Jones that the offer was
no longer available, that the citation and proposed penalty had become final, and that if he
wanted to contest the citation he would have to contact the Commission and ask it to accept a
late NOC. The AAAD provided the Commission’s contact information to Mr. Jones.
The Commission received Mr. Jones’ letter on April 29. In that letter, Mr. Jones
discussed the settlement offer OSHA had made and asked that the penalty be reduced further
because his company could not afford to pay it. He also discussed how his company had always
stressed safety and why he questioned the violations set out in the citation. The Commission
docketed this matter on May 23. On June 17, the Solicitor’s Office received a facsimile from the
Office of the Chief Administrative Law Judge that included the Commission’s Notice of
Docketing and Mr. Jones’ letter. The Secretary filed her motion on June 30.
Upon receiving a citation and notification of penalty, an employer has 15 working days
within which it must file an NOC. See section 10(a) of the Act, 29 U.S.C. § 659(a). If it does not
file an NOC within this time period, “the citation and the assessment, as proposed, shall be
deemed a final order of the Commission and not subject to review by any court or agency.” Id. It
is clear from the foregoing that Respondent did not file a timely NOC in this matter. A late filing
may be excused under Federal Rule of Civil Procedure 60(b) (“Rule 60(b)”), if the final order
was entered as a result of “mistake, inadvertence, surprise or excusable neglect.” See Branciforte
Builders, Inc., 9 BNA OSHC 2113, 2117 (No. 80-1920, 1981) (citations omitted). In determining
whether a late-filed NOC was due to “excusable neglect,” the Commission follows the Supreme
Court’s test in Pioneer Inv. Serv. v. Brunswick Assoc., 507 U.S. 380 (1993). See Northwest
Conduit Corp., 18 BNA OSHC 1948, 1950 (No. 97-851, 1999). The Commission has held that
the “reason for the delay, and whether it was within the reasonable control of the movant,” is a
“key factor” and, in appropriate circumstances, the dispositive factor. A.W. Ross, Inc., 19 BNA
OSHC 1147, 1148 (No. 9-0945, 2000); CalHar Constr., Inc., 18 BNA OSHC 2151, 2153 (No.
Here, Respondent has provided no reason whatsoever for its failure to file a timely NOC.
Respondent received written notice of the filing requirement in the citation itself. It received oral
notice of the filing requirement from the AAAD during the informal settlement conference.
Specifically, on April 5, the AAAD told Mr. Jones that Thursday, April 7 would be the last day
Respondent could either accept the settlement offer or submit an NOC. And, despite being
provided with the Commission’s contact information on April 8, Respondent did not file its letter
with the Commission until late April. See Affidavit of AAAD.
Under these circumstances, I find that Respondent’s untimely filing is not due to
excusable neglect. This is particularly true in light of the fact that Respondent has provided no
reason at all for the late filing, which, in my view, is dispositive. The Secretary’s motion to
dismiss Respondent’s untimely NOC is GRANTED, and the citation and notification of penalty
is AFFIRMED in all respects.
The Honorable Dennis L. Phillips
U.S. OSHRC JUDGE
Date: 12 Aug. 2011