Secretary of Labor,

Complainant,

v.

J. F Shea Company, Inc.,

Respondent.

Docket No. 89-0976

DECISION

Before: FOULKE, Chairman; WISEMAN, Commissioner.

BY THE COMMISSION:

J. F. Shea Company, Inc. filed its notice of contest eight days late. The administrative law judge denied Shea's petition for permission to file a late notice of contest under Federal Rule of Civil Procedure 60(b). [[1/]] On review, Shea contends that the judge erred in denying its motion for relief.

I.

As a result of an inspection of a worksite in Glenwood Springs, Colorado on December 22, 1988, the Secretary of Labor issued two citations to Shea by certified mail. According to the return receipt card, the citations were received at Shea's Walnut, California headquarters on January 25, 1989. Under 29 U.S.C. 659 (a), Shea had until February 15, 1989 to file a notice of contest, which is fifteen working days after receipt of the citations. By letter dated February 23, 1989, Shea expressed its intention to contest the citations and proposed penalty. In a letter dated February 28, the Secretary notified Shea that its notice of contest was late, and informed Shea that it might wish to file a late notice of contest with the Commission.

On March 17, 1989, Shea filed with the Commission its petition for permission to file a late notice of contest, in which it requested relief under Rule 60(b). Attached to the petition were affidavits from L.W. Brown, Shea's vice president, Sharon Jessop, Brown's office assistant, and Robert Gordon, project manager at the Colorado project. According to these affidavits, the citations were not delivered to Jessop until February 3, 1989, at which time Jessop date-stamped the original and one copy of the citations and gave them to Brown. Jessop stated that "[a]t that time, [she] had no reason to believe that the citations had been received in [her] office any earlier than February 3, 1989." When Brown subsequently discussed whether to contest the citations with Gordon, they both relied on the February 3, 1989 date stamp in calculating the 15-working day time limit.

The Secretary contested Shea's petition to file a late notice of contest, contending that the reasons proffered by Shea did not satisfy any of the requirements for relief under Rule 60(b).

II.

On June 2, 1989, Commission Judge James A. Cronin, Jr. denied Shea's request to file a late notice of contest under Rule 60(b). The judge noted that under Branciforte Builders, 9 BNA OSHC 2113, 1981 CCH OSHD § 25,591 (No. 80-1920, 1981), the burden is on Shea to establish a sufficient justification for relief from the final order. The judge found that the record failed to establish the reason for the delay between the receipt of the citations by Shea on January 25, 1989, and the delivery of them to Jessop on February 3,1989. In denying relief from the final order, the judge further relied on Stroudsburg Dyeing & Finishing Company, 13 BNA OSHC 2058, 1987-90 CCH OSHD ¶ 28,443 (No. 88-1830, 1989), where the Commission held that when the employee who receives the mailed citation fails to bring it to the attention of the proper officer of the company, that failure does not constitute "excusable neglect" or "any other reason justifying relief" within the meaning of Rule 60(b). The judge found that "[t]he very situation confronting the Commission in Stroudsburg is again presented by this record."

III.

On review, Shea does not dispute that service on the company was effective on January 25, 1989, when one of their employees received and signed for the citations. Instead, Shea argues that the mistake of date-stamping the citations with the incorrect date was the only event that prevented Shea from filing a timely notice of contest. Shea claims that it is entitled to relief under P & A Construction, 10 BNA OSHC 1185, 1981 CCH OSHD ¶ 25,783 (No. 80-3848, 1981).

In P & A, the Commission granted relief from a final order under Rule 60(b) where an employer's attorney intended to file a notice of contest, but the attorney's secretary inadvertently failed to mail it. However, the Commission has not granted relief when the negligent handling of a document occurred, as it did here, in the employer's own office. Louisiana-Pacific Corp., 13 BNA OSHC 2020 2021, 1987-90 CCH OSHD ¶ 28,409, p. 37,537 (No. 86-1266, 1989) (a business must maintain orderly procedures for handling important documents) Stroudsburg Dyeing & Finishing Company, supra.

Shea argues that Stroudsburg is distinguishable from the present case. However, the principle behind Stroudsburg is that an employee's error in the handling of a citation constitutes neither "excusable neglect" nor "any other reason justifying relief" under Rule 60(b). Shea's office assistant erred in date-stamping the citations as having been received by the company when she personally received them. Shea focuses on this "honest clerical error" but, as the judge noted, the record failed to establish the reason for the delay between the receipt of the citations by Shea on January 25, 1989, and the delivery of them to Jessop on February 3, 1989. Shea's failure to demonstrate any "orderly procedure for handling important documents" indicates that this is a case of simple negligence, which is not an adequate excuse for relief under Rule 60(b).

IV.

Accordingly, we affirm the decision of the administrative law judge denying Shea's request for relief under Pule 60(b).

Edwin G. Foulke, Jr.
Chairman

Donald G. Wiseman
Commissioner

Dated: June 5 1991

SECRETARY OF LABOR,

Complainant,

v.

J. F. SHEA CO., INC.,

Respondent.

DECISION AND ORDER

Respondent has filed a Petition for Permission to File a Late Notice of Contest. By this petition, respondent seeks relief from a final order of this Commission that resulted from respondent's failure to file a timely notice of contest. Therefore, this petition will be treated as a request for relief under Rule 60(b) of the Federal Rules of Civil Procedure. [[1]] The Secretary opposes respondent's request for relief.

Under 29 U.S.C § 659(a), an employer who has received a citation has fifteen working days in which to notify the Secretary of Labor that it intends to contest the citation. The respondent in this case received two citations on January 25, 1989, and filed its notice of contest on February 23, 1989, eight days after the fifteen-day period had expired. By failing to file its notice of contest within the fifteen-day period, the citations and proposed penalties became final orders of this Commission.

The burden is on the respondent to establish a sufficient justification for relief from a final order. Branciforte Builders, 9 BNA OSHC 2113 (No. 80-1920, 1981). In support of its petition for relief respondent has attached the affidavits of three respondent employees. All three employees mistakenly believed that the citations had been received at respondent's corporate headquarters on February 3, 1989. On that date, Ms. Jessop, assistant to L. W. Brown, respondent's Vice-President, received from respondent's mailroom the mail containing the citations. She opened this mail and date-stamped the citations as "Received Feb. 3, 1989." The record, however, fails to establish the reason for the delay existing between the receipt of the citations by respondent on January 25, 1989, and the delivery of them to Ms. Jessop on February 3, 1989.

As recently as February of this year, the Commission held that the mere failure of the 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" Stroudsburg Dyeing & Finishing Company, OSHRC Docket No. 88-1830 (February 27, 1989).

The very situation confronting the commission in Stroudsburg is again presented by this record. Respondent's request for relief, therefore, must be denied.

SO ORDERED.

James A. Cronin Jr.
Judge,OSHRC

Dated:    June 2, 1989

FOOTNOTES:
[[1/]] The rule provides, in pertinent part:
Rule 60. Relief From Judgment or Order
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence, Fraud, etc.
On notion 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.

[[1]] 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.