UNITED STATES OF AMERICA


OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

__________________________________
                                  :
SECRETARY OF LABOR,               :
                                  :
          Complainant,            :
          v.                      :
                                  :
CASHIOLA CONSTRUCTION,            :   	OSHRC DOCKET NO. 01-0172
 				                  :
	  Respondent,		          :
__________________________________:

:



*DECISION AND ORDER*

This case 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. sec. 651 et seq (the Act) to determine
whether the Secretary's motion to dismiss Respondent's untimely notice
of contest should be granted. The Respondent has filed no response to
the motion.

**

*BACKGROUND*

The Occupational Safety and Health Administration (OSHA) inspected a
work site of Respondent, resulting in the issuance of a citation and
notification of proposed penalty on November 8, 2000. Respondent was
required to notify OSHA of its intent to contest the citation within 15
working days of its receipt, and failure to do so would result in the
citation and penalty becoming a final judgment of the Commission by
operation of law. The citation setting forth the alleged violations and
the proposed penalty was sent by certified mail and received by the
Respondent on November 9, 2000. The statutory notice of contest period
ended on December 1, 2000 and a notice of contest was not filed by the
Respondent on or before said date. By letter received by OSHA on January
22, 2001, the Respondent indicated he desired to contest the case
alleging he was not the proper party herein.

The record plainly shows that the Respondent did not file its notice of
contest within the 15 day period. An otherwise untimely notice of
contest may be accepted where the delay in filing was caused by
deception on the part of the Secretary or by the Secretary's failure to
follow proper procedures. An employer is also entitled to relief under
the Federal Rules of Civil Procedure 60 if it establishes that the
Commission's final order was entered as a result of ``mistake,
inadvertence, surprise or excusable neglect'', or for ``any other reason
justifying relief'', including mitigating circumstances such as illness,
or a disability which would prevent a party from protecting its
interests. Branciforte Builders, 9 BNA OSHC 2113. There is no contention
that the Secretary acted improperly in this matter.

The cover letter accompanying the citation states on page 2 under the
hearing RIGHT TO CONTEST as follows: 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 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 state(s) the
requirement to file a notice of contest within the prescribed period.
Additionally, the Commission has held 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'', 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 to a lack of care.'' Accrom Constr. Serv. 15
BNA 1123,1126.

The Respondent had clear notice of the need to contest within the 15
working day period and it is responsible for its failure to act promptly
in response to its governmental mail. The circumstances here are
insufficient to establish entitlement to relief under Rule 60(b).

*ORDER*

For the reasons stated above, The Secretary's notion to dismiss the
notice of contest of the Respondent is GRANTED, and the citation and
notification of penalties is AFFIRMED in all respects.

/s/

IRVING SOMMER

Chief Judge

DATED: 26 MAR 2001

Washington, D.C.