SECRETARY OF LABOR,

	

 

                             Complainant,

	

 

                  v.

	

DOCKET NO. 04-0911

E.G. FASHION, INC.,

	

 

                              Respondent.

	

 



Appearances:

 

                                    Jennifer Marciano,
Esquire                            Fang Bao Xiao, President

                                    U.S. Department of
Labor                              E.G. Fashion, Inc.

                                    New York, New
York                                    New York, New York

                                    For the
Complainant.                                      For the Respondent,
/pro se/.

 

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(c) 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 “(NOC”) as untimely
should be granted.

            The Occupational Safety and Health Administration (“OSHA”)
inspected the work site of Respondent, E.G. Fashion, Inc., on February
20, 2004. As a result of the inspection, on February 26, 2004, OSHA
issued to Respondent a Citation and Notification of Penalty
(“Citation”). The Manhattan OSHA office (“the OSHA office”) mailed the
Citation to Respondent by certified mail, return receipt requested, but,
when the return receipt was not received, the OSHA office learned from
the Post Office that the packet containing the Citation was never
claimed. A compliance officer from the OSHA office telephoned Jeffrey
Eng at Respondent’s place of business on March 26, 2004, and asked how
the Citation could be delivered; the Citation was faxed to Mr. Eng that
same day, and the compliance officer confirmed it was received. Mr. Eng
phoned the OSHA office on April 26, 2004, and stated that the penalties
were too high. The OSHA office advised Mr. Eng that the 15-day period
for contesting the Citation had expired on April 16, 2004. On April 28,
2004, the OSHA office wrote to Respondent to advise that its payment of
the penalties was delinquent, in that the payment had been due on April
16, 2004; Respondent was also told that OSHA no longer had jurisdiction
of the matter and that Respondent could communicate directly with the
Commission.

            On June 2, 2004, the Commission received an undated letter
from Respondent. In the letter, Respondent stated it had corrected the
violations “immediately after the inspection.” Respondent also requested
that, because its factory was small and its profits were low, the
“excessive” penalties be “abated under the circumstances.” The Secretary
filed her motion to dismiss Respondent’s NOC as untimely on August 11,
2004. Respondent has filed no response to the motion.

/Discussion/

            Section 10(a) of the Act requires an employer to notify the
Secretary of its intent to contest a citation within 15 working days of
receipt, and the failure to file a timely NOC results in the citation
becoming a final order of the Commission by operation of law. In light
of the March 26, 2004 receipt date in this case, Respondent was required
to file an NOC by April 16, 2004. It is clear from the foregoing that
Respondent did not file its NOC by that date and that, in fact,
Respondent submitted its NOC letter about six weeks after the filing
date had expired. However, an otherwise untimely NOC may be accepted if
the delay in filing was caused by deception on the part of the Secretary
or her failure to follow proper procedures. A late filing may also be
excused, pursuant to Federal Rule of Civil Procedure 60(b), if the 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.” /Branciforte
Builders, Inc./, 9 BNA OSHC 2113 (No. 80-1920, 1981). The employer has
the burden of demonstrating that it is entitled to relief.

 

            As noted above, Respondent did not file a response to the
Secretary’s motion to dismiss. Moreover, in its NOC letter, Respondent
was essentially requesting relief from paying the penalty and gave no
explanation whatsoever as to why its NOC was untimely. Respondent has
therefore not established that it is entitled to relief.

            Based on the foregoing, the Secretary’s motion to dismiss
Riverside’s NOC as untimely is GRANTED, and the Citation is AFFIRMED in
all respects.

            So ORDERED.

 

 

 

 

                                                                                    /s/

------------------------------------------------------------------------

                                                                                    Irving
Sommer

                                                                                    Chief
Judge


Dated: September 24, 2004

            Washington, D.C.