SECRETARY OF LABOR,
Complainant,

v.

ROY KAY, INC.,
Respondent.

OSHRC Docket No. 88-1748

DECISION

Before: BUCKLEY, Chairman, and AREY, Commissioner.

BY THE COMMISSION:

The Respondent has filed a Motion for Leave to File Notice of Contest Nunc Pro Tunc and a Motion to Dismiss Complainant's Motion to Dismiss Respondent's Notice of Contest. By these motions the Respondent is seeking relief from a final order that resulted from the Respondent's failure to file a timely notice of contest.[[1/]] We therefore treat the motions as a request for relief pursuant to Federal Rule of Civil Procedure 60(b).[[2/]] See Branciforte Builders, 81 OSAHRC 80/A5, 9 BNA OSHC 2113, 1981 CCH OSHD 25,591 (No. 80-1920, 1981) (An employer may move under Federal Rule of Civil Procedure 60(b) for permission to file a late notice of contest). The burden is on the Respondent to show sufficient basis for the relief. Id.; U.S. v. Harrison County, Mississippi, 463 F.2d 1328, 1330 (5th Cir. 1972); Smith v. Kincaid, 249 F.2d 243, 245 (6th Cir. 1957).

In support of the request for relief, the Respondent's President, LeRoy Kay, states in an affidavit that "Respondent, never having been cited by O.S.H.A. before, and not having a legal department within its employ, did not appreciate the essence of the fifteen day period it had to reply. . . ." The Respondent also states that "[a] diligent and good faith effort to file a timely Notice of Contest was initiated . . . immediately upon receipt of . . . [the citation]." At that time, the Respondent "immediately attempted to contact . . . employees and [the] supervisor of the job site in question . . . to ascertain the validity of the [alleged] violations." However, because of the "hot summer" and the "vacation season," the Respondent was unable to contact "all persons involved" until after the fifteen working day period prescribed by 29 U.S.C. 659(a), and did not file a notice of contest within that period.

The Respondent thus argues that it intended to file a timely notice of contest but did not do so because it could not gather all the information it needed within the fifteen day period. The Respondent also argues that it did not appreciate the importance of the fifteen day requirement because of its lack of prior experience with OSHA. However, ignorance of procedural rules does not constitute "excusable neglect" within Federal Rule of Civil Procedure 60(b). Ohliger v. U.S., 308 F.2d 667 (2d Cir. 1962); U.S. v. Belanger, 598 F.Supp. 598, 601 (D.Me. 1984). Moreover, 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." Sadowski v. Bombardier Ltd., 539 F.2d 615, 618 (7th Cir. 1976).

In this case, the citation plainly stated the requirement to file a notice of contest within the prescribed time period:

You must abate the violations ... and pay the penalties proposed, unless within 15 working days (excluding weekends and Federal holidays) from your receipt of this Citation and penalty you mail a notice of contest to the U.S. Department of Labor Area Office . . . . You are further notified that unless you inform the Area Director in writing that you intend to contest the Citation or proposed penalties within 15 working days after receipt, this Citation and the proposed penalties will become a final order of the Occupational Safety and Health Review Commission and may not be reviewed by any court or agency.

Also, a letter from the OSHA area director sent to the Respondent with the citation reiterated the notification:


If you are considering a request for an informal conference to discuss any issues related to this Citation and Notification of Penalty, please keep in mind that a written letter of intent to contest must be submitted to the Area Director within 15 working days of your receipt of the citation. The running of this contest period is not interrupted by an informal conference. Therefore you must take care to schedule the informal conference early enough in the 15-day period to allow time to contest subsequent to the informal conference, should you decide to do so.

Thus the Respondent was explicitly told that it had to file a notice of contest within the fifteen working day period. Even if it was having difficulty contacting employees, the Respondent could have preserved its right to be heard by filing a protective notice of contest within that period. Accordingly we conclude that the Respondent has shown neither "mistake, inadvertence, surprise, or excusable neglect" within the meaning of Federal Rule of Civil Procedure 60(b)(1), nor "any other reason justifying relief from the operation of the judgment," Federal Rule of Civil Procedure 60(b)(6).

Accordingly we deny the Respondent's motions and affirm the decision of the Administrative Law Judge granting the Secretary's motion to dismiss the notice of contest.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED: 27 JAN 1989


SECRETARY OF LABOR
Complainant,

v.

ROY KAY CORPORATION
Respondent.

Docket No. 88-1748

ORDER

1. With a transmittal letter dated August 17, 1988, the Secretary of Labor filed a motion to dismiss employer's Notice of Contest on the ground that it was untimely filed.

2. No response to the motion has been filed. The motion is granted for the reasons assigned by the Secretary of Labor in support of the motion.

PAUL A. TENNEY
Judge, OSHRC

DATED: NOV 1 1988
Washington, D.C.


FOOTNOTES:

[[1/]] Under 29 U.S.C. 659(a), an employer who has received an OSHA citation has fifteen working days in which to notify the Secretary of Labor that it intends to contest the citation. The Respondent filed its notice of contest more than three weeks after the fifteen-day period had passed.

[[2/]] We have also considered whether the statutory time limitation on the filing of notices of contest should be tolled under the equitable principles first stated in Atlantic Marine, Inc. v. OSHRC, 524 F.2d 476 (5th Cir. 1977), and later followed by the Commission. Keppel's, Inc., 79 OSAHRC 43/A2, 7 BNA OSHC 1442, 1979 CCH OSHD 23,622 (No. 77-3020, 1979); B.J. Hughes, Inc., 79 OSAHRC 49/E6, 7 BNA OSHC 1471, 1979 CCH OSHD 23,675 (No. 76-2165, 1979). Here, there is no allegation by the Respondent and no indication in the record of any misconduct or improper procedures on the part of the Secretary. Nor does there appear to be any deficiency in the notice given by the Secretary of the Respondent's rights and responsibilities, as we discuss more fully later in our decision. Accordingly, we find no basis for an equitable tolling of the 15-working-day time limitation.