________________________________
                                :
SECRETARY OF LABOR,             :
                                :
         Complainant,           :
                                :
            v.                  :    Docket No. 98-822
                                :
O'CONNOR & TAYLOR, INC.,        :
                                :
         Respondent.            :
________________________________:

*DECISION AND ORDER*

The Secretary filed a motion to dismiss the Respondent's notice of
contest on June 12, 1998. There was no response to the motion.

*BACKGROUND*

The citation setting forth the alleged violations and the accompanying
notification of proposed penalty was issued by certified mail on April
16, 1998 and received by the Respondent on April 20, 1998. Pursuant to
Section 10(a) of the Act, 29 U.S.C. sec. 659(a), the Respondent was
required to notify the Secretary of any intent to contest within 15
working days of receipt of the citation and notification of proposed
penalty, or May 11, 1998. In the absence of a timely contest, the
citation and proposed penalty would be deemed a final judgment of the
Commission by operation of law. Section 10(a) of the Act. In a letter
dated May 18, 1998, received on May 28, 1998 by the Occupational Safety
and Health Administration the Respondent explained that the citation was
received on April 20, 1998, "however, due to a clerical error, it was my
understanding that we received this notice on April 22, 1998." Because
of this error, the notice of contest was filed after the 15 working day
period.

*DISCUSSION*

The record plainly shows that the Respondent did not file a notice of
contest within the 15 working day period. His explanation is that a
clerical error on their part was the cause of the delay in filing the
notice of contest.

An otherwise untimely notice of contest may be accepted where the delay
in filing was caused by deception on the part of the Secretary to follow
proper procedures. An employer is entitled to relief under Fed. R. Civ.
Proc. 60(b)(1) if it demonstrates that the Commission's final order was
entered as a result of "mistake, inadvertence, surprise, or excusable
neglect" or under Rule 60(b)(6) for such mitigating circumstances as
absence, illness or a disability which prevents a party from protecting
his interests. /See Branciforte Builders, Inc./, 9 BNA OSHC 2113. Here,
there is no showing that the Secretary acted improperly or that the
factors mentioned in Rule 60 are present. The Respondent as stated that
the delay was due to a clerical error in ascribing the date of receipt
of the citations. It was incumbent upon the Respondent in the carrying
out of its business activity to maintain orderly procedures for handling
important mail. The Commission has held that employers whose improper
business procedures has led to failure to file in a timely manner are
not entitled to relief. /See Louisiana-Pacific Corp./, 13 BNA OSHC 2020;
/Stroudsburg Dyeing & Finishing Co./, 13 BNA OSHC 2058.

Simple negligence will not provide entitlement to relief. /E.K.
Construction Co./, 15 BNA OSHC 1165.

While I am sympathetic to the Respondent's plight, I have no alternative
but to hold it responsible for failing to file in a timely manner as
required.

The motion of the Secretary to dismiss is GRANTED.

*ORDER*

The citation issued to the Respondent on April 16, 1998 and proposed
penalty is AFFIRMED in all respects.

 

IRVING SOMMER
Chief Judge

DATED:

Washington, D.C.

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