__________________________________________________
SECRETARY OF LABOR,
	Complainant,
	v.						OSHRC DOCKET NO. 00-0941
G.S. GARCIA CONSTRUCTION, INC.,
		Respondent.
__________________________________________________

Appearances:


		Sheryl L. Vieyra, Esquire			Thomas H. Scott

		Dallas, Texas					Humble, Texas

		For the Secretary.				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"),
for the purpose of determining whether the Secretary's motion to dismiss
Respondent's notice of contest as untimely should be granted.

On January 19, 1999, the Occupational Safety and Health Administration
("OSHA") inspected a construction project in Houston, Texas, where
Respondent was a subcontractor. As a result, OSHA issued Respondent a
citation and notification of penalty alleging a "repeat" violation of
the Act. Section 10(a) of the Act requires an employer to notify OSHA of
the intent to contest a citation within 15 working days of receiving it,
and the failure to file a timely notice of contest results in the
citation and penalty becoming a final judgment of the Commission by
operation of law. OSHA sent the citation to Respondent by Federal
Express on March 15, 2000, and, according to the records of Federal
Express, the citation was delivered to Respondent on March 16, 2000.
Based on this delivery date, OSHA determined that the notice of contest
period ended on April 6, 2000, and on April 7, 2000, OSHA sent
Respondent a letter advising that the citation had become a final order
and that the proposed penalty had become due. On April 24, 2000,
Respondent's representative sent a letter to OSHA advising that the
company had not received the citation and that it was attaching a copy
of the notice of contest it was filing with the Commission.^(1) <#N_1_>
The Secretary filed her motion to dismiss on June 2, 2000, Respondent
objected to the motion, and a hearing was held in Houston, Texas on
September 14, 2000. Both parties have filed post-hearing submissions.

/_*The Relevant Testimony*_/

The OSHA compliance officer ("CO") who inspected the site testified that
during the closing conference on January 19, 2000, he indicated to
Respondent's foreman that a citation would issue and that the company
had the right to an informal conference and the right to contest the
citation; the CO held a telephonic closing conference with Respondent's
president and owner on January 24, 2000, and he mentioned again the
right to an informal conference and to contest the citation. The CO
stated that his office delivered citations by one of two methods, either
Federal Express or registered mail, but that he had no actual knowledge
of how the citation in this case was delivered. (Tr. 9-16).

The OSHA assistant area director who signed the citation testified his
office sent the citation by Federal Express. He identified C-4 as the
air bill used to send the citation on March 15, 2000, and C-5 as the
Federal Express tracking results that verified the delivery of the
package on March 16, 2000; he noted the tracking numbers on C-4 and C-5
matched and that, according to C-5, "L. Sabza" signed for the citation
on March 16, 2000.^(2) <#N_2_> The assistant area director identified
C-6 as the letter his office sent to Respondent on April 7, 2000. He
said that he received a call from Respondent on April 11, 2000, that he
told the caller the citation was sent by Federal Express, and that to
his recollection the caller did not request a copy of the citation. (Tr.
19-26; 30).

Respondent's president testified that he, an office manager and a
project manager were the only employees of his company and the only
three individuals who worked in his office. He further testified that
while he had had subcontractors at the site he had had no employees on
the job, that the person the CO had talked to at the site was a
subcontractor, and that when the CO had called he had asked about one of
the subcontractors but had never indicated that his company would be
cited.^(3) <#N_3_> The president said he knew no one named "L. Sabza"
and that the office manager was the person who handled the mail; he also
said he did not know before the April 7 letter that his company had been
cited and that although the address was correct on C-4 and C-6 the zip
code was wrong. (Tr. 35-45).

Respondent's office manager testified she had worked for Respondent for
three years and that she was responsible for all paperwork, including
the mail. She said she had never received the OSHA citation and that if
she had she would have told the company president as soon as he was in
the office; she also said she knew no one named "L. Sabza" and that only
she herself, the president and the project manager worked in the office.
The office manager noted that the zip code on C-4 was incorrect and that
mail was occasionally delayed due to improper addresses. (Tr. 53-61).

_*/Discussion/*_

The record establishes that Respondent did not file its notice of
contest in this case until after the 15-day contest period had ended. An
otherwise untimely notice of contest may be accepted where the
Secretary's deception or failure to follow proper procedures caused the
delay in filing. An employer is also entitled to relief if it shows the
Commission's 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/ Fed. R. Civ. P. 60(b); /Branciforte Builders, Inc./, 9
BNA OSHC 2113 (No. 80-1920, 1981). Respondent contends that OSHA did not
properly address or deliver the citation and that it never received the
citation. However, the evidence above persuades me otherwise.

The OSHA assistant area director described how his office sent out the
citation by Federal Express and how it verified that the citation was
delivered to Respondent's office, and he noted that the tracking numbers
on C-4 and C-5, the air bill and the tracking results, matched. He also
noted the phone call he had received from Respondent on April 11, 2000,
four days after his office had sent out C-6, the letter advising the
company that the citation had become final and that the penalty was due.
The assistant area director did not recall who he spoke to; however, he
testified that he had explained that the citation had been sent by
Federal Express and that the caller did not request a copy of the
citation. (Tr. 25-26; 30). I observed the demeanor of the assistant area
director on the witness stand and found his testimony credible and
convincing. Further, Respondent did not question the witness in this
regard or make any attempt to rebut his testimony. In my view, that the
caller did not ask for a copy of the citation, together with C-4 and
C-5, is persuasive evidence that Respondent did in fact receive the
citation. Respondent's contention is accordingly rejected.^(4) <#N_4_>

Based on the testimony of its president, Respondent also suggests it was
misled because the CO never indicated it would be cited. However, the CO
testified that he told Respondent's foreman and its president that the
company would be cited; he also testified that he advised both
individuals of the right to an informal conference and the right to
contest the citation. (Tr. 9-13). The company president denied this was
the case. (Tr. 40-42). Regardless, I observed the CO's demeanor as he
testified and found him a sincere and believable witness. The CO's
testimony is therefore credited over that of the company president, and
I find as fact that the CO informed Respondent that it would be cited
and that he also advised it of its right to an informal conference and
to contest the citation.^(5) <#N_5_>

In light of the foregoing, there was no deception or failure to follow
proper procedures on the part of the Secretary. The final issue
requiring resolution is whether the untimely notice of contest in this
case was due to "mistake, inadvertence, surprise, or excusable neglect"
or "any other reason justifying [Rule 60(b)] relief." The citation
issued to Respondent explains the 15-day contest period, in the first
paragraph on the first page, as follows:

You must abate the violations referred to in this Citation by the dates
listed and pay the penalties proposed, unless within 15 working days ...
from your receipt of this Citation and Notification of Penalty you mail
a notice of contest to the U.S. Department of Labor Area Office at the
address shown above. Please refer to the enclosed booklet (OSHA 3000)
which outlines your rights and responsibilities and which should be read
in conjunction with this form.

The citation further explains the contest period, on page 2, as follows:

*Right to Contest* - You have the right to contest this Citation and
Notification of Penalty. You may contest all citation items or only
individual items. You may also contest proposed penalties and/or
abatement dates without contesting the underlying violations. *_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._*

The Commission has held that the OSHA citation plainly states the
requirement to file a notice of contest 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, 1126-27 (No. 88-2291,
1991). The Commission has also held that a business must have orderly
procedures for handling important documents and has denied Rule 60(b)
relief when the untimely notice of contest was due to the absence or
illness of the person who handled the mail, the failure of that person
to bring the citation to the attention of the proper officer of the
company, or the citation being misplaced. /See, e.g., E.K. Constr. Co./,
15 BNA OSHC 1165, 1166 (No. 90-2460, 1991), and cases cited therein.
Finally, the Commission has held that mere carelessness or negligence,
even by a layman, does not justify relief and that Rule 60(b) cannot be
invoked "to give relief to a party who has chosen a course of action
which in retrospect appears unfortunate or where error or miscalculation
is traceable really to a lack of care." /Acrom Constr. Serv., Inc./, 15
BNA OSHC 1123, 1126-27 (No. 88-2291, 1991); /Keefe Earth Boring Co./, 14
BNA OSHC 2187, 2192 (No. 88-2521, 1991); /Roy Kay, Inc./, 13 BNA OSHC
2021, 2022 (No. 88-1748, 1989).

I conclude there is no basis for granting Rule 60(b) relief in this
case. C-5 shows the citation was delivered to the reception or front
desk area of Respondent's office on March 16, 2000, and that an
individual named "L. Sabza" signed for it. In these circumstances,
Respondent's failure to file a timely notice of contest indicates either
the lack of an orderly procedure for handling mail, such that the proper
company official was not aware of the citation, or that that official
did not exercise due diligence after becoming aware of the citation.
Given the Commission precedent set out above, neither of these reasons
constitutes "mistake, inadvertence, surprise, or excusable neglect" or
"any other reason justifying relief." My conclusion that Respondent is
not entitled to Rule 60(b) relief is also supported by the fact that,
although someone from the company called OSHA on April 11, 2000, after
receiving C-6, OSHA's letter of April 7, 2000, the company did not
submit its late notice of contest until almost two weeks later, on April
24, 2000. Finally, my conclusion is supported by the fact that
Respondent has had previous dealings with OSHA. The CO identified C-3 as
a computer printout of the company's OSHA history showing that on
December 17, 1999, it had settled three citations involving another work
site through an informal conference. (Tr. 13-14). In addition, I note
that Respondent itself states, on the first page of its response to the
Secretary's motion to dismiss, that "[a] lost citation has only happened
once or twice in the past 29 years."

On the basis of the evidence of record, the Secretary's motion to
dismiss is GRANTED, Respondent's request for relief is DENIED, and the
citation and notification of penalty is AFFIRMED in all respects.

So ORDERED.

/s/
Irving Sommer
Chief Judge

Date: 30 OCT 2000

1. The notice of contest, also dated April 24, 2000, was actually sent
to OSHA. /See/ C-7.

2. The assistant area director said his office obtained C-5 by accessing
the computerized tracking system utilized by Federal Express. (Tr. 21-22).

3. Respondent's president stated that the subcontractor the CO spoke to
at the site had the same last name he did but was neither an employee
nor a relative. (Tr. 36).

4. In so doing, I have noted the testimony of the company's witnesses
that they did not know who "L. Sabza" was. (Tr. 37-39; 57; 61).
Regardless, based on the record as a whole, I conclude that the citation
was delivered to Respondent's office and that someone in that office
signed for it.

5. I have noted the CO's testimony that the individual he spoke to at
the site represented himself to be Respondent's foreman and the
testimony of the company president that that individual was not his
foreman or employee but a subcontractor. (Tr. 9; 36). Even assuming
/arguendo/ that that individual misstated his relationship to Respondent
or that the CO misunderstood what he said, I nonetheless credit the CO's
testimony about what he told the company president.