:

SECRETARY OF LABOR,                           :

                                                                        :

            Complainant,                                      :

                                                                        :

                        v.                                             :                      OSHRC
DOCKET N0. 02-0042

                                                                        :

AMANA CONSTRUCTION CO., INC.,      :

                                                                        :

            Respondent.                                        :

:

                                                                        :


 

Appearances:              Terrence Duncan,
Esquire                  Mohammed Khair Hussein

                                    U.S. Department of
Labor                  Amana Construction Company

                                    Office of the
Solicitor                         Paterson, New Jersey

                                    New York, New
York                        For the Respondent.

For the Complainant.

 

Before:                        Chief Judge Irving Sommer



/DECISION AND ORDER/


            This proceeding is before the Occupational Safety and Health
Review Commission (“the Commission”) pursuant to Section 10 of the
Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 /et seq/.
(“the Act”) for the purpose of determining whether the Secretary’s
motion to dismiss Respondent’s notice of contest as untimely should be
granted.

/Background/

            Following an inspection of the Respondent’s work site in
Wayne, New Jersey, the Occupational Safety and Health Administration
(“OSHA”') issued a citation alleging serious violations of the Act and
proposing a penalty of $7,800.00. Section 10(a) of the Act requires the
employer to notify OSHA of the intent to contest a citation within 15
working days of receiving it, and failure to file a timely notice of
contest results in the citation and proposed penalty becoming a final
judgment of the Commission by operation of law. OSHA issued the citation
to the Respondent on September 17, 2001, by certified mail, and it was
received on September 21, 2001. Based on this date, OSHA determined that
the 15-day period for filing a notice of contest ended on October 15,
2001. The Respondent’s representative wrote to the Commission for help
in this matter, stating he had lost the letter from OSHA without opening
it and did not know its contents.

/Discussion/

            The record plainly shows that the Respondent did not file
its notice of contest within the required period. Commission procedure
is well settled that an otherwise untimely notice of contest may be
accepted where the delay in filing was caused by deception on the
Secretary’s part or by her failure to follow proper procedures. A late
filing may also be excused if the final order was entered as a result of
“mistake, inadvertence, surprise or excusable neglect” or for “any other
reason justifying relief” under Federal Rule of Civil Procedure 60(b).
There is no allegation and no evidence that the failure to file here was
caused by deception on the part of the Secretary or her failure to
follow proper procedures. Rather, what is alleged herein is that the
Respondent lost the envelope sent by OSHA containing the citation and
the accompanying booklet which described the company’s rights and
responsibilities. The citation which was received by the Respondent
clearly stated: “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 Occupational Safety and
Health Review Commission and may not be reviewed by any court or
agency.” This same admonition was stated in the OSHA 3000 booklet which
accompanied the citation. The Respondent’s representative testified that
he had received the OSHA material in the mail but had lost it and thus
had no knowledge of the filing requirement. He knew it was from OSHA,
but he made no effort to call and ascertain its contents or ask for a
copy to be sent. The Respondent’s failure to file a timely notice of
contest was thus due to simple negligence and not excusable neglect, in
that he did not maintain proper mail handling procedures and, further,
in that he did not rectify the situation by contacting OSHA and
requesting duplicates of what was lost. Had he done so, and had he read
all the documents, he would have been on notice of the notice of contest
filing requirement.

            While I am sympathetic to the plight of the Respondent, the
failure to file a timely notice of contest was clearly due to simple
negligence and not to excusable neglect or any other reason justifying
relief. The Secretary’s motion to dismiss the Respondent’s notice of
contest is granted, and the citation and notification of penalty is
affirmed in all respects.

 

 

 

 

/s/

                                                                        IRVING
SOMMER

                                                                        Chief
Judge

 


Dated: September 3, 2002

            Washington, D.C.