________________________________
                                :
SECRETARY OF LABOR,             :
                                :
          Complainant,          :
                                :
          v.                    :   OSHRC DOCKET NO.  00-2091
                                :
GUERRERO MASONRY, INC.          :
and its successors,	        :
          Respondent.           :
________________________________:
					
APPEARANCES:				
	Aaron R. Ramirez, Esq. and Madeleine T. Le, Esq., Office of the Solicitor, 
	   U.S. Department of  Labor, Dallas, Texas

	Tola Oresusi, Esq., Tola and Associates, Houston, Texas


Before: Administrative Law Judge Sidney J. Goldstein



DECISION AND ORDER



This proceeding is before the Occupational Safety and Health Review
Commission pursuant to the Secretary of Labor's motion to dismiss
Respondent's notice of contest as untimely under Section 10 of the
Occupational Safety and Health Act of 1970. A hearing on the Secretary's
motion was held on February 15, 2001, in Houston, Texas.

The record discloses that a compliance officer for the Occupational
Safety and Health Administration inspected a Respondent's worksite. As a
result of this inspection, the Administration issued two citations to
this employer. Citation 1 was listed as serious and carried a suggested
penalty of $16,800.00; Citation 2 was designated non-serious with a
recommended penalty of $300.00. The citations were dated November 19,
1998, were received on November 23, 1998 and contained information to
the effect that the employer had 15 days from the receipt of the
citations to file a notice of contest if he disagreed with them. There
was also an insert (OSHA Form 3000) reminding employers of their rights
and responsibilities following an OSHA inspection.

The Respondent did not file a notice of contest until July 24, 2000,
relying upon the general contractor's superintendent who told Mr.
Guerrero that he would take care of the paperwork. Mr. Guerrero was
aware that there was a fifteen-day time limitation for the company to
file a notice of contest.

Section 10(a) of the Act provides in part that, if the Secretary issues
a citation, the employer has fifteen working days within which to notify
the Secretary that he wishes to contest the citation. If, within fifteen
working days, the employer fails to notify the Secretary that he intends
to contest the citation, the citation and the assessment, as proposed,
shall be deemed the final order of the Commission and not subject to
review by any court or agency.

The record discloses that Respondent did not file its notice of contest
until well after the 15-day contest period 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 demonstrates that 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). There is no evidence and no contention
that the Secretary failed to follow proper procedures in this matter.
Rather, Respondent is requesting, in essence, that the late filing be
excused under the circumstances.

The Commission has held that the OSHA citation plainly states the
requirement to file a notice of contest within the prescribed period and
that ignorance of procedural rules, even on the part of a layman, does
not constitute "excusable neglect" for purposes of Rule 60(b), /Roy Kay,
Inc., /13 BNA OSHC 2021, 2022 (No. 88-1748, 1989). The Commission has
also held that a business must have orderly procedures for handling
important documents and has denied Rule 60(b) relief where the employer
has asserted that the late filing was due to events such as changes in
management, misplacing the citation, or the absence of the person
responsible for OSHA matters. /See Louisiana-Pacific Corp., /13 BNA OSHC
2020, 2021 (No. 86-1266, 1989). 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." /Roy Kay, Inc./ 13 BNA OSHC 2021, 2022 (NO. 88-1748,
1989).

Based upon the record and Commission precedent, I conclude that the
untimely filing of the notice of contest in this case was due to simple
negligence and not to excusable neglect or "any other reason justifying
relief" pursuant to Rule 60(b). Accordingly, the Secretary's motion to
dismiss the notice of contest is GRANTED. The citations and notification
of penalty are therefore AFFIRMED.







/s/

Sidney J. Goldstein

Judge, OSHRC



Dated: April 26, 2001