SECRETARY OF LABOR,
E. K. CONSTRUCTION COMPANY, INC.,
OSHRC Docket No. 90-2460
Before: FOULKE, Chairman; WISEMAN, Commissioner.[[1/]]
BY THE COMMISSION:
On July 11, 1990, the Occupational Safety and
Health Administration (OSHA) issued to E. K. Construction Co. ("E. K.") by
certified mail three citations, each containing a notification of proposed penalty. The
certified return receipt shows that E. K. received the citations on July 13, 1990. The
citations on their face warned that unless a written notice of contest was mailed to the
OSHA Area Director in Bayside, New York, within 15 working days of their receipt by E. K.,
the citations and their proposed penalties would become final, non-reviewable orders. The
15 working-day period for contesting the citations expired on August 30, 1990. On August
14, E. K. mailed a letter to the Bayside, New York OSHA area office requesting an informal
conference to "discuss an informal settlement agreement which amicably resolves this
matter without litigation and contest." In the letter, E. K. apologized for the
"tardiness" of its request, and claimed that "the person assigned in our
office to schedule this meeting was unable to follow-up due to a prolonged illness."
It also claimed that the "violations have been corrected," and attached a sheet
"listing the methods of corrections for each item on the citations."
On September 5, E. K. mailed a letter to the Commission in which it expressed its displeasure at receiving the "notice of fines." It again noted that the individual assigned to respond to the matter was ill and that "no one was aware that a written response had been delayed." E. K. again requested a "meeting to be set up to resolve this matter . . . and to arrive at a mutually acceptable solution to the problem."
On October 23, 1990, the Secretary filed a motion for an order dismissing E. K.'s "notice of contest." The Secretary argued that E. K.'s failure to file a timely notice of contest did not warrant relief under Rule 60(b) of the Federal Rules of Civil Procedure.[[2/]] E. K. did not respond to the motion. Judge Terrill granted the motion, finding:
There is no evidence that the Secretary employed deceptive practices nor failed to comply with required procedures. Also, there is no request by Respondent here for relief under F.R.Civ.P. 60(b) substantiating that Respondent's actions in failing to contest timely were the result of "excusable" neglect rather that "simple negligence".
The judge dismissed E. K.'s notice of contest and affirmed the citations and the proposed penalty.
Review was directed on whether the August 14 and September 5 letters submitted by this pro se employer should be treated as a request for relief under Fed. R. Civ. P. 60(b) and if so, whether the employer should be given an additional opportunity to substantiate its claim that its failure to file a timely notice of contest should be excused. E. K.'s only argument on review is a claim that it did not answer the Secretary's motion to dismiss because it received only a copy of the Secretary's motion, and did not understand that it was required to act upon the motion.
Even if we found that E. K.'s August 14 and September 5 letters requesting a conference should be treated as a request for relief under Rule 60(b), E. K. has failed to establish a basis for relief under the rule.[[3/]] E. K's only proffered reason for not responding to the citations in time was the "prolonged illness" of the person E. K. assigned to schedule the informal conference. However, under the terms of Rule 60(b), this is not an adequate excuse for E. K.'s failure to timely file a notice of contest. Rule 60(b) requires a showing of excusable neglect, not just simple negligence. An employer's failure to have a procedure in place to address such occurrences does not provide a basis for relieving an employer from the effects of the final order.
The Commission has consistently denied relief to employers whose procedures for handling documents were to blame for untimely filings. See Louisiana-Pacific Corp., 13 BNA OSHC 2020, 1987-90 CCH OSHD ¶ 28,409 (No. 86-1266, 1989) (a business must maintain orderly procedures for handling important documents); Stroudsburg Dyeing & Finishing Co., 13 BNA OSHC 2058, 1987-90 CCH OSHD ¶ 28,443 (No. 88-1830, 1989) (failure of employee who received the 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"). See also J. F. Shea Company, Inc., OSHRC Docket No. 89-976 (June 5, 1991) (simple negligence is not an adequate excuse for relief under Rule 60(b)). E. K. should have had an office procedure that would ensure a timely response to such important documents.
E. K.'s claim, that it was misled because the Secretary's motion was not addressed to E. K., also provides no basis for relief. E. K. was sent a copy of the Commission's rules when the case was docketed, more than a month before the Secretary's motion was filed. We have held that ignorance of procedural rules does not constitute "excusable neglect" within Federal Rule of Civil Procedure 60(b). Roy Kay, Inc., 13 BNA OSHC 2021, 1989 CCH OSHD ¶ 28,406 (No. 88-1748, 1989) (employer's argument that it did not appreciate the importance of the fifteen day requirement because of its lack of prior experience with OSHA does not constitute "excusable neglect" under 60(b)).
Accordingly, the judge's order dismissing E. K.'s notice of contest, affirming the Secretary's citations and assessing penalties totaling $5,350 is affirmed.
Edwin G. Foulke, Jr.
Donald G. Wiseman
Dated: July 17, 1991
SECRETARY OF LABOR,
E. K. CONSTRUCTION CO., INC.,
Docket No. 90-2460
DISMISSING NOTICE OF CONTEST
On July 11, 1990, citations and notification of
proposed penalty were issued by the Department of Labor to the Respondent by certified
On August 14, 1990, Respondent contested the citations noting that the violations had been corrected and requested an informal conference.
On September 18, 1990, OSHRC docketed the case.
On October 23, 1990, the Secretary filed a Motion for Order Dismissing Respondent's Notice of Contest. Respondent failed to file a timely response to the motion.
There is no evidence that the Secretary employed deceptive practices nor failed to comply with required procedures. Also, there is no request by Respondent here for relief under F.R.Civ.P. 60(b) substantiating that Respondent's actions in failing to contest timely were the result of "excusable" neglect rather than "simple negligence". See Louisiana-Pacific Corp., 13 OSHC 2020 (R.C. 1989).
Accordingly, Respondent's notice of contest is dismissed and Citation Nos. 1, 2, and 3 are hereby affirmed and the proposed penalties totaling $5,350 are hereby affirmed by operation of law.
DELBERT R. TERRILL, JR.
DATED: November 29, 1990
DRT24 Boston, MA
[[1/]] Commissioner Montoya did not participate in the deliberation or issuance of this decision.
[[2/]] The rule provides, in pertinent part:
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.
[[3/]] Since we find that E. K. failed to
establish any basis for relief under Rule 60(b), we need not consider whether the letters
should be treated as a request for relief under Rule 60(b).