SECRETARY OF LABOR, Complainant, v. OSHRC DOCKET NOS. 02-1560 & 02-1561 CREATIVE GOLD, INC., Respondent. APPEARANCES: Donyell M. Thompson, Esquire David Gronbach, Esquire U.S. Department of Labor Smith, Buss & Jacobs, LLP New York, New York Yonkers, New York For the Complainant. For the Respondent. 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”). The Secretary of Labor (“the Secretary”) filed a motion to dismiss as untimely the notice of contest (“NOC”) of Respondent, Creative Gold, Inc. Respondent filed an opposition to the motion and a cross-motion to dismiss the citations issued by the Secretary. A hearing in this matter was held on January 23, 2003. Both parties have filed post-hearing briefs. /Background/ The Occupational Safety and Health Administration (“OSHA”) conducted two inspections of Respondent, a jewelry manufacturing business, in the fall of 2001; the first was from September 12 through October 22, 2001, and the second was on September 20, 2001. Both inspections took place at Respondent’s work site in Newark, New Jersey, and each inspection resulted in the issuance of a Citation and Notification of Penalty (“Citation”). OSHA issued the Citation from the second inspection on December 19, 2001, and mailed it to the company’s Newark address by certified mail, return receipt requested, on December 31, 2001, but the Citation came back unclaimed. Footnote OSHA issued the Citation from the first inspection on January 23, 2002, and, because the other Citation had been returned, mailed both Citations in one envelope by certified mail, return receipt requested, on January 24, 2002, to the company’s new address in Brooklyn, New York. Footnote The Citations were returned to OSHA, and, on February 25, 2002, OSHA sent the Citations in one envelope by FedEx to Respondent’s Brooklyn address. Based on the FedEx delivery report, the Citations were delivered to Respondent’s Brooklyn address on February 27, 2002, and a “G. Ramey” signed for the envelope containing the Citations. Footnote (Tr. 5-13, 21-34, 39-44; Exhs. C-1, C-3, C-7-8, C-10). Section 10(a) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 /et seq/. (“the Act”), requires an employer to notify the Secretary of the intent to contest a citation within 15 working days of receipt, and the failure to file a timely NOC results in the citation becoming a final order of the Commission by operation of law. In view of the delivery date of February 27, 2002, the NOC filing period here ended on March 20, 2002. No NOC was filed by that date, but Respondent’s counsel sent a letter to OSHA on March 26, 2002. The letter stated that various conversations had taken place between Respondent’s counsel and OSHA from March 15 to 22, 2002, that Respondent had vacated the Newark premises at the end of 2001, and that the company had abated the alleged violations and had no prior record with OSHA. The letter also stated that the company had contested the proposed penalties during the earlier communications, that counsel had advised its client that OSHA might consider a reduced penalty to settle the Citations, and that counsel anticipated a response from its client after the Passover holiday. Because Respondent had not submitted an NOC letter before the end of the filing period, OSHA sent letters to the company on April 24, 2002, advising that the penalties were due. Footnote On September 10, 2002, Respondent’s counsel mailed to the Commission a letter requesting that the company be given the opportunity to file a “late contest of the penalties assessed.” The letter repeated many of the statements made in the March 26 letter and indicated that although negotiations had taken place a settlement had not been reached and OSHA had subsequently advised that the NOC filing period had lapsed. The Secretary filed her motion to dismiss on October 1, 2002, and Respondent filed its opposition and cross-motion on October 11, 2002. Footnote As noted above, a hearing was held in this matter on January 23, 2003, and the parties have filed post-hearing briefs. (Tr. 13-20, 30-31, 36-37; Exhs. C-4-6, C-9). /Discussion/ The record plainly shows that Respondent did not file an NOC by the end of the 15-day period following the delivery of the Citations. Respondent contends, however, that the service of the Citations was improper. Respondent also contends the Secretary has not met her burden of proving the date it received the Citations, in that the person who signed for them did not have the authority to do so. Finally, Respondent contends its letter of March 26, 2002, was an NOC and was filed within 15 working days of its actual receipt of the Citations. The Secretary contends that the service of the Citations was proper. She also contends that she did not consider the March 26 letter an NOC and that, even if it was, it was not filed within 15 working days of the delivery date of the Citations. As to Respondent’s first contention, section 10(a) of the Act states that the Secretary “shall ... notify the employer by certified mail of the [citation and] penalty....” However, the Commission has held that the test for proper service of a citation is “whether the service is reasonably calculated to provide an employer with knowledge of the citation and notification of proposed penalty and an opportunity to determine whether to abate or contest.” /B.J. Hughes, Inc./, 7 BNA OSHC 1471, 1474 (No. 76-2165, 1979). /See also Henry C. Beck Co./, 8 BNA OSHC 1395, 1398-99 (No. 11864, 1980); /NYNEX/, 18 BNA OSHC 1944, 1947 (No. 95-1671, 1999). The Commission has also held the date of receipt should generally be the date an employee signs for the mailing at the work site address to which the Secretary directed the citation; this is so because the Secretary cannot control who signs for the mailing, even by naming a specific individual at the site, or when the mailing actually reaches the proper company employee. /Henry C. Beck Co./, 8 BNA OSHC at 1399. Finally, the Commission has held that an employer should not be allowed to claim a later receipt date by showing that the person in charge of the site did not sign for the citation and that when the mailing is accepted at the site where a company employee is in charge, the employer has effectively received the required notice; in so holding, the Commission noted that any other rule would allow an employer whose internal mail-handling procedures were inadequate to delay receipt of a citation. /Id/. The record shows that OSHA mailed the first-issued Citation by certified mail on December 31, 2001, to the address the company had given the OSHA compliance officer (“CO”); however, the Citation was returned to OSHA unclaimed. OSHA next mailed out both Citations by certified mail in one envelope on January 24, 2002, to Respondent’s Brooklyn address, the CO having learned from an interview with an employee that the company had relocated, but the Citations were again returned to OSHA. Footnote OSHA then sent both of the Citations by FedEx in one envelope to the Brooklyn address, on February 25, 2002. Footnote FedEx attempted delivery on February 26, 2002, but the business was closed due to a holiday, and FedEx thus delivered the Citations the next day. (Tr. 5-13, 21-34, 39-44; Exhs. C-3, C-8-10). /See also/ Exh. B to Secretary’s motion. In support of its position that service of the Citations was improper, Respondent presented Mordy Jalas, the owner and manager of the business. Mr. Jalas testified that his company downsized and moved from Newark to Brooklyn at the end of 2001. He further testified that his business received packages every day and that there was a receptionist at the entrance of the Brooklyn address; however, there were two other businesses at the same address that used the same entrance and he had had problems with packages being lost or stolen, and he therefore had an agreement with UPS, the carrier he used, that only he had the authority to sign for packages delivered to his company. Footnote Mr. Jalas said that he was an Orthodox Jew, that his business had been closed on February 26 and 27, 2002, because of the Jewish holiday of Purim, and that while someone could have been in the building on February 27, 2002, he had not been there and had not signed for the FedEx package containing the Citations. Footnote He also said that he did not have an employee named “G. Ramey,” that someone from one of the other companies must have signed for the Citations, and that although he was not sure when he actually received them he thought that it had been sometime in March shortly before the NOC deadline. Footnote Mr. Jalas indicated that he sent the Citations promptly to his attorney, who said that he would take care of them. (Tr. 45-59). Based on the foregoing, I conclude that the Secretary’s service of the Citations was proper. The Secretary attempted to serve the Citations by certified mail and, when that was unsuccessful, sent the Citations by FedEx. Although Respondent objects to the service, the Secretary cannot be faulted for Respondent’s apparent failures to pick up the certified mailings and to notify the U.S. Postal Service of its move to Brooklyn. Footnote The Secretary likewise cannot be faulted for using FedEx, under the circumstances, and Respondent’s assertion that she should have resorted to the service set out in Federal Rule of Civil Procedure 4 is rejected. Footnote /See NYNEX/, 18 BNA OSHC 1967, 1970 at n.8 (No. 95-1671, 1999). I further conclude that the date of receipt of the Citations was February 27, 2002. Mr. Jalas testified that the individual who signed for the Citations was not his employee and that he did not receive the Citations until sometime in March. However, these reasons, in view of the above Commission precedent, are insufficient to allow Respondent to claim a later receipt date, particularly since the record indicates that the company’s mail-handling procedures were inadequate. I note first Mr. Jalas’ testimony that the Citations were found in the receptionist’s office a week or two after they were delivered. (Tr. 53-56). I note also Mr. Jalas’ testimony indicating that this was not an unusual situation when he returned to his business after an absence. (Tr. 53-56). Finally, I note that, even if the person who signed for the Citations was not Respondent’s employee, the company should have had adequate procedures in place to ensure the receipt and proper routing of important documents. Footnote Based on the record, Respondent’s contentions with respect to the service and date of receipt of the Citations are rejected, and the rejection of these contentions makes it unnecessary to address the company’s further contention that the March 26, 2002 letter was an NOC. Respondent’s final contention is that, even if its NOC was untimely, the late filing should be accepted under Federal Rule of Civil Procedure 60(b) (“Rule 60(b)”). Commission precedent is well settled that an untimely NOC may be accepted where the delay in filing was due to deception on the Secretary’s part or 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 “any other reason justifying relief, including mitigating circumstances such as absence, illness or a disability that would prevent a party from protecting its interests.” /See Branciforte Builders, Inc./, 9 BNA OSHC 2113 (No. 80-1920, 1981); /see also/ Rule 60(b). However, the Commission has held that “a business must maintain orderly procedures for handling important documents” and that when the lack of such procedures results in an untimely NOC the late filing will be deemed to be simple negligence and not excusable neglect. /Louisiana-Pacific Corp./, 13 BNA OSHC 2020 (No. 86-1266, 1989). The Commission has also held that the OSHA citation plainly states the requirement to file an NOC within the prescribed period and that an employer “must bear the burden of its own lack of diligence in failing to carefully read and act upon the information contained in the citations.” /Roy Kay, Inc./, 13 BNA OSHC 2021, 2022 (No. 88-1748, 1989); /Acrom Constr. Serv., Inc./, 15 BNA OSHC 1123, 1126 (No. 88-2291, 1991). Finally, the Commission has held that ignorance of procedural rules does not constitute “excusable neglect” and that mere carelessness or negligence does not justify relief. /Acrom Constr. Serv., Inc./, 15 BNA OSHC 1123, 1126 (No. 88-2291, 1991); /Keefe Earth Boring Co./, 14 BNA OSHC 2187, 2192 (No. 88-2521, 1991). In view of my findings set out /supra/, it appears that the late filing in this case was due in part to Respondent’s inadequate mail-handling procedures. It further appears that the untimely NOC was also due to the failure of Respondent’s counsel to ascertain the NOC filing deadline and to file a written NOC by that date. Mr. Jalas testified that he received the Citations shortly before the end of the NOC filing period and that he sent them promptly to his attorney, who said he would take care of them. (Tr. 53-56). In addition, C-5 and C-6 indicate that Respondent’s counsel had received the Citations by at least March 15, 2002, since, according to the letters, he had various conversations with OSHA from that date to March 22, 2002, and had advised OSHA orally that Respondent was contesting the penalties. Footnote Despite these conversations, however, Respondent’s counsel was evidently not aware of the NOC filing deadline until after writing his letter of March 26, 2002. /See/ C-5, page 2. Moreover, notwithstanding its various assertions in this regard, Respondent introduced no evidence to establish that its counsel was somehow misled during the conversations with OSHA about the need to file a written NOC within 15 days of the date of receipt of the Citations. Footnote It is Respondent’s burden to show that it is entitled to Rule 60(b) relief, and, in light of the evidence of record, Respondent has failed to demonstrate that the untimely filing in this case was caused by the Secretary’s deception or failure to follow proper procedures or to “any other reason justifying relief.” I am sympathetic to Respondent’s plight in this matter, and I have considered the statements in the letters from Respondent’s counsel that the company had never been cited before, that the cited conditions were all abated, and that the company cannot remain in business if it must pay the proposed penalties. However, I am constrained to follow Commission precedent, and, on the basis of that precedent, set out /supra/, and in view of the circumstances of this case, Respondent is not entitled to Rule 60(b) relief. Footnote The Secretary’s motion to dismiss is accordingly GRANTED, and the Citations are AFFIRMED in all respects. So ORDERED. /s/ Irving Sommer Chief Judge Date: April 3, 2003 Washington, D.C.