___________________________________________
Secretary of Labor,
	Complainant,


		v.				OSHRC Docket No. 00-1022(E-Z)

Coastal Horizontal, Inc., d/b/a
Coastal Power, Inc.,
	Respondent.
___________________________________________

Appearances:

Carla J. Gunnin, Esq.			G. R. Erick Mead, Esq.
U. S. Department of Labor		Clark, Partington, Hart, Larry, Bond
Office of the Solicitor			& Stackhouse
Birmingham, Alabama			Pensacola, Florida
	For Complainant				For Respondent

Before:		Administrative Law Judge Nancy J. Spies

_*ORDER AND DECISION DISMISSING LATE NOTICE OF CONTEST*_

**Coastal Horizontal, Inc., d/b/a Coastal Power, Inc. (Coastal), filed a
notice of contest of the citation and penalty issued by the Secretary on
April 28, 2000. The Secretary contends that the notice of contest was
untimely and that the citation and penalty constitute a final order
pursuant to § 10(a) of the Occupational Safety and Health Act of 1970
(Act). She filed a motion to dismiss. Coastal responded with a motion to
set aside the default, and both parties filed further support for their
motions. A hearing on the issue was held on August 28, 2000, in
Pensacola, Florida. The parties argued their positions at the close of
the hearing, and Coastal filed a post-hearing brief. The case is ready
for decision. For the reasons below, Coastal is not entitled to relief
from its untimely notice of contest.

*Background*

Following a March 9, 2000, Occupational Safety and Health Administration
(OSHA) inspection of a Coastal excavation operation in Navarre, Florida,
the Secretary issued Coastal a five-item serious citation with a
recommended penalty of $8,900. The Jacksonville, Florida, OSHA Area
Office sent the citation by certified mail on April 28, 2000; and
Coastal received it on May 1, 2000, as shown by a return receipt signed
by G.O. Scruggs, a Coastal employee with responsibility for handling
Coastal's incoming mail (Exh. C-2; Tr. 20). Coastal was required to
notify the Secretary of an intent to contest within 15 working days of
its receipt of the citation, or by May 22, 2000.

By letter, dated and telefaxed on May 30, 2000, Coastal contested the
amount of the proposed penalties only (Exh. C-3).

*Discussion*

It is undisputed that Coastal filed its notice of contest to the
proposed penalties 8 days after the expiration of the 15 working-day
period. The issue here is whether Coastal should be granted relief from
the effects of the untimely contest. An untimely filing may be excused
where the delay was caused by deception on the part of the Secretary or
by the Secretary's failure to follow proper procedures. /Atlantic
Marine, Inc. v. OSHRC, /524 F. 2d 476 (5^th Cit. 1975). Relief can be
obtained under Rule 60(b)(1) of the Federal Rules of Civil Procedure, if
an employer demonstrates that its late filing resulted from mistake,
inadvertence, surprise, or excusable neglect. Rule 60(b)(6) allows
relief based on mitigating circumstances, such as illness, absence, or a
disability that prevents a party from protecting its own interests.
Under either theory, the employer has the burden of showing a sufficient
basis for relief. /Roy Kay, Inc., /13 BNA OSHC 2021, 2022 (No. 88-1748,
1989); /Branciforte Builders, /9 BNA OSHC 2113 (No. 80-1920, 1981).

_Misconduct_

Coastal does not allege any misconduct on the part of the Secretary (Tr.
7).^(1) <#N_1_> There is no evidence that OSHA officials made
misrepresentations, engaged in misconduct, or failed to comply with
required procedures that would justify relief from the notice of contest
becoming a final order.

_Excusable Neglect_

Coastal contends that its failure to timely file a notice of contest was
excusable neglect because an employee misdirected the certified OSHA
citation. Coastal's vice-president, Jennifer Hamilton, testified that
she had over-all responsibility for the mail and that the office
normally received certified mail (Tr. 14). Scruggs signed and dated the
return receipt for the OSHA Citation and Notice of Penalty on May 1,
2000. Scruggs was an employee who distributed the mail in the office
(Tr. 20- 21). Vice-president Hamilton testified that another employee,
Terrie Clingle, admitted to her that she took that day's mail off
Scrugg's desk and distributed it. According to Hamilton, Clingle's
responsibilities also included work with the mail but only after it had
been through proper channels (Tr. 14). Hamilton considered that all
certified mail should first come to her before being distributed within
the office. When Clingle took the mail from Scrugg's desk, she placed
the certified OSHA citation on the field superintendent's desk, face
downward (Tr. 14). The field superintendent came into the office about
every other week (Tr. 14). Hamilton did not discover the citation until
May 30, 2000, and on that date she called the OSHA office and telefaxed
the letter of contest (Tr. 15, 26).

The Supreme Court discussed "excusable neglect" in /Pioneer Investment
Services Co. v. Brunswick Associates Ltd. Partnership, /507 U. S. 380
(1993). The Court concluded that whether a party's neglect of a deadline
may be excused presents equitable questions from all the surrounding
circumstances, such as /(Id. /at 395):

the danger of prejudice to the [opposing party], the length of the delay
and its potential impact on judicial proceedings, the reasons for the
delay, including whether it was within the reasonable control of the
movant.

Although /Pioneer /involved a Bankruptcy Act Rule, the United States
Circuit Courts generally have held that /Pioneer's /analysis of
"excusable neglect" applies to Rule 60(b). /Robb v. Norfolk & Western
Railway Co., /122 F. 3d 354, 361-62 (7^th Cir. 1997). The first two
/Pioneer/ factors would not prohibit granting relief. However, Coastal's
reason for the delay (mishandling the incoming mail) appears to have
been firmly within its reasonable control. The Review Commission
consistently denies relief to employers whose procedures for handling
important documents are to blame for untimely contests of OSHA
citations. /Montgomery Security Doors & Ornamental Iron, Inc., /18 BNA
OSHC 2145, 2148 (No. 97-1906, 2000) (record showed a breakdown of
business procedures and delay unjustified even assuming it was due to
employee sabotage); /NYNEX, /18 BNA OSHC 1944, 1947 (No. 95-1671, 1999)
(no relief where employee redirected certified mail since company was
without adequate procedures); /Louisiana-Pacific Corp., /13 BNA OSHC
2020 (No. 86-1266, 1989) (change in management insufficient excuse for
late filing); /Stroudsburg Dyeing & Finishing Co., /13 BNA OSHC 2058
(No. 88-1830, 1989) (employer failed to maintain orderly procedures for
handling internal documents to keep citation from getting into wrong
hands); but see /Russell B. Le Frois Builder, Inc.,/ 18 BNA OSHC 1978
(No. 98-1099, 1999).^(2) <#N_2_>

Coastal did not have an orderly office procedure for handling important
mail. Vice-president Hamilton testified that it was not unusual for her
to go through the mail on Scruggs's desk to take out appropriate mail
when Scruggs was not at her desk (Tr. 22). Hamilton speculates that
Scruggs perhaps assumed that she (Hamilton) took the certified letter
off of her (Scruggs's) desk (Tr. 22). Scruggs could have followed up to
make sure that Hamilton, the proper person, actually received the
certified mail. Coastal's procedures could predictably result in
misdirecting important mail within the company. The fact that another
employee, who also had mail handling responsibilities, delivered the
citation to the wrong person does not rise to the level of excusable
neglect. Coastal failed to show "mistake, inadvertence, surprise or
excusable neglect"or any other mitigating circumstance to justify relief
under Rule 60(b).

_Constitutionality_

Coastal argues that regardless of whether its notice of contest was
timely, the citation must fail because the Act is unconstitutional on
its face and as applied. Coastal contends that "[t]he infliction of
[workplace] 'personal injuries and illnesses' . . . is not economic
activity in any sense," leaving Congress without authority to enact it
under the Commerce Clause. In support of its argument, Coastal cites /U.
S. v Lopez, /514 U. S. 549(1995)//(Gun-Free School Zones Act of 1990
unconstitutional under commerce clause because Congress could not
regulate gun possession in a local school zone which was unrelated to
commerce or economic activity)^(3) <#N_3_> and /U. S. v. Morrison, /__
U. S. __, 120 S. Ct. 1740 (2000) (civil remedy provisions for victims of
gender-motivated violence were unconstitutional because gender-motivated
crimes of violence were not in any sense economic activity to be
regulated under the Commerce Clause).

First, it is questionable whether Coastal can raise the issue of the
Act's constitutionally. Its untimely contest must be dismissed and the
citation is a final order. That notwithstanding, the Commission has long
held that it lacks the authority to rule on questions of the
constitutionality of provisions of the Act on which no court has yet
ruled. It can merely apply judicial precedent regarding the
constitutionality of the Act. /Adams Steel Erection, Inc., /13 BNA OSHC
1073, 1075 (No. 77-3804, 1987). The courts apparently have not addressed
the specific question of whether the Act is a valid exercise of
Congressional power under the commerce clause.^(4) <#N_4_> Even could
Coastal properly raise it, the issue cannot be decided here.

**

*FINDINGS OF FACT AND CONCLUSIONS OF LAW*

The foregoing decision constitutes the findings of fact and conclusions
of law in accordance with Rule 52(a), Fed. R. Civ.P.

*ORDER*

The Secretary's motion to dismiss is GRANTED, and the April 28, 2000,
citation and the penalty of $8,900 are affirmed.

/S/

__

NANCY J. SPIES

Judge

Date: October 11, 2000

1. Although Coastal's pre-hearing motion asserted that the OSHA
compliance officer may have caused it some confusion about whether a
citation would be forthcoming, Coastal abandoned that position at the
hearing. It is noted that neither party called the compliance officer
who was present at the hearing.

2.

^2 The instant case is distinguishable from /Russell B. Le Frois
Builder/ where the Commission found excusable neglect for an employer
who picked up the mail at the post office box and the certified mail
fell beneath the car seat. In the instant case, the certified mail
arrived at the employer's own office and entered its mail handling process.

3. The Court in /Lopez/ noted that it upholds a wide variety of
Congressional Acts regulating intrastate economic activity affecting
interstate commerce under the commerce clause. "Where economic activity
substantially affects interstate commerce, legislation regulating that
activity will be sustained." /Lopez/ at 4346.

4. Multiple courts have held that by enacting the O.S.H. Act Congress
intended to exercise the full extent of the authority granted to it by
the commerce clause of the Constitution. /Austin Road v. Occupational
Safety and Health Review Commission, /683 F. 2d 905, 907 (5^th Cir.
1982); /Godwin v. Occupational Safety and Health Review Commission, /540
F. 2d 1013, 1015 (9^th Cir. 1976); /U. S. v. Dye Construction Co., /510
F. 2d 78, 83 (10^th Cir. 1975); /Brennan v. Occupational Safety and
Health Review Commission/, 492 F.2d 1027 (2^nd Cir. 1974).//