SECRETARY OF LABOR,
STROUDSBURG DYEING &
OSHRC Docket No. 88-1830
Before: BUCKLEY, Chairman, and AREY, Commissioner.
BY THE COMMISSION:
Stroudsburg Dyeing & Finishing Company is seeking relief
from a final order that resulted from its failure to file a timely notice of contest after
receipt of a "failure to abate" notification. Administrative Law Judge Paul A.
Tenney denied Stroudsburg's request for relief and granted the Secretary's motion to
dismiss Stroudsburg's late-filed notice of contest.[[1/]]
Stroudsburg explains that its late filing of the notice of contest "was a result of the local area OSHA personnel dealing with an employee who was not authorized to represent the company in OSHA matters." Stroudsburg states that, as a "result of an error of procedure," the failure to abate notice was directed to this unauthorized employee, who delayed in bringing it to the attention of those who were authorized to deal with OSHA matters.
The record reveals that the Secretary addressed Stroudsburg's citation to the company, not to any particular official, and sent the citation to Stroudsburg's post office address. Such service is sufficient and Stroudsburg has not shown any way in which it constituted misconduct by the Secretary. There is therefore no basis for an equitable tolling of the 15-working-day time limitation under the principles first stated in Atlantic Marine, Inc. v. OSHRC, 524 F.2d 476 (5th Cir. 1975), and later followed by the Commission. E.g., Louisiana-Pacific Corp., OSHRC Docket No. 86-1266 (January 27, 1989). Similarly, Stroudsburg has not shown any basis for relief from the final order under Federal Rule of Civil Procedure 60(b).[[2/]] The failure of the Stroudsburg employee who received the mailed citation to bring it to the attention of the proper officer of the company does not constitute "excusable neglect" or "any other reason justifying relief." Fed. R. Civ. P. 60(b)(1) and (6). See Louisiana-Pacific Corp., supra; Rebco Steel Corp., 80 OSAHRC 28/G2, 8 BNA OSHC 1235, 1980 CCH OSHD ¶ 24,334 (No. 77- 2040, 1980) (relief under Rule 60(b) not justified where employer failed to properly supervise the employee who mishandled the OSHA citation). Accordingly, we 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.
DATED: 27 FEB 1989
SECRETARY OF LABOR
STROUDSBURG DYEING & FINISHING
Docket No. 88-1830
1. By a letter dated November 4, 1988, Mr. Alvin J. Stern Engineering Consultant for the contesting employer writes regarding my order dated October 17 concerning the dismissal of the Notice of Contest for untimely filing. In effect, the letter asks for reconsideration of the order.
2. While the letter explains in some degree what is apparently the employer's position with respect to the merits of the case, it does not explain why its contest to the "failure to abate" notification was not timely filed; that is, why it was not filed within fifteen (15) working days following receipt of the notification. Accordingly, the request is denied.
PAUL A. TENNEY
DATED: November 7, 1988
[[1/]] Under 29 U.S.C. § 659(b), an employer who has received a failure to abate notice and proposed penalty has fifteen working days in which to notify the Secretary of Labor that it intends to contest the notification and penalty. If the employer fails to notify the Secretary within the time limit, the notification and penalty assessment "shall be deemed a final order of the Commission and not subject to review by any court or agency." Stroudsburg received the failure to abate notification on May 31, 1988. The final date upon which a notice of contest could have been filed was June 21, 1988. Stroudsburg did not mail its notice of contest until July 28, 1988.
[[2/]] Rule 60. Relief From Judgment or Order
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered
Evidence, Fraud, etc.
On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect ... or (6) any other reason justifying relief from the operation of the judgment.