UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

__________________________________
SECRETARY OF LABOR,               :
                                  :
       Complainant,               :
                                  :
            v.                    :           Docket No. 01-1355
                                  :
RELIABLE PLASTERING and succ.,    :
                                  :
       Respondent.                :
__________________________________:

*DECISION AND ORDER*

This matter 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
the Respondent's untimely notice of contest should be granted.
Respondent has filed no response to the motion.

*BACKGROUND*

The Occupational Safety and Health Administration (``OSHA'') inspected a
work site of the Respondent, resulting in the issuance of a serious
citation and notification of penalties on June 6, 2001. Pursuant to
Section 10(a) of the Act, Respondent was required to notify OSHA of its
intent to contest the citation within 15 working days of its receipt,
and failure to file a timely notice of contest would result in the
citation and penalties becoming a final judgment of the Commission by
operation of law. It is undisputed that the citation setting forth the
alleged violations and proposed penalties were sent by certified mail
and received by the Respondent on June 11, 2001. The statutory notice of
contest period ended on July 2, 2001 and a notice of contest was not
filed by Respondent on or before said date. By letter received on June
16, 2001 the Respondent did not contest the citation and proposed
penalties, but stated he was unable to pay the penalties.

*DISCUSSION*

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(b)(1) if it establishes that the
Commission's final order was entered as a result of ``mistake,
inadvertence, surprise or excusable neglect'', or under 60(b)(6) for
``any other reason justifying relief'', including mitigating
circumstances such as illness, or a disability which would prevent a
party from protecting its interests. There is no contention that the
Secretary acted improperly in this matter.

The cover letter accompanying the citations states on page 2 under the
heading 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''.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 (No. 88-2291,1991).

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 on its government mail. The circumstances herein are
insufficient to establish entitlement to relief under Rule 60(b).

*ORDER*

For the reasons set forth above, the Secretary's motion to dismiss the
notice of contest of the Respondent is GRANTED. The Citation and
notification of penalties is AFFIRMED in all respects.

/S/

IRVING SOMMER

Chief Judge

DATED: 30 AUG 2001

Washington, D.C.