___________________________________________
SECRETARY OF LABOR
    Complainant,
    v.                             		OSHRC Docket No.  00-1098


SUN ROOFING,
   and its successors,
   Respondent.
____________________________________________



*_DECISION AND ORDER_*

This proceeding is before the Occupational Safety and Health Review
Commission ("the Commission") pursuant to Secretary's motion to dismiss
Respondent's notice of contest as untimely under section 10 of the
Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 /et seq./
("the Act").

*_FACTS_*

Respondent Sun Roofing at all times relevant to this action maintained a
roofing business in Appleton, Wisconsin. On August 6, 1999, Safety
Compliance Officer Susan Guinn (CO) conducted an inspection of an
Appleton, Wisconsin work site of Respondent. That day, the CO held a
closing conference with Dan Heller, who was at the site. Respondent
disputes that Mr. Heller was its representative at the site. The CO
informed Heller of apparent violations observed during the inspection
and gave Heller an OSHA 3000 booklet that outlined employers' contest
rights. Mr. Heller was told that in order to contest an issued citation,
a notice of contest must be sent in writing within 15 days. During the
closing conference, the CO also explained the various options available
to cited employers. Respondent asserts that Mr. Heller did not inform
Respondent of the substance of the closing conference.

Pursuant to that inspection, the Secretary of Labor issued a citation
alleging a serious violation of 29 C.F.R. § 1926.501(b)(13). The
citation was issued on August 27, 1999 via certified mail, and the
receipt shows that Sun Roofing received it on August 31, 1999. The
contest period ended on September 22, 1999.

On October 28, 1999, Respondent was sent a certified letter demanding
payment of overdue penalties as a result of Respondent's failure to
challenge the citation within 15 working days of its issuance. Receipts
show that Respondent received the letter on November 8, 1999. Respondent
sent a notice of contest dated May 31, 2000 to Mr. Melvin R. Lischefski,
Area Director for OSHA in Appleton, Wisconsin. On July 6, 2000, the
Chicago Regional Office of the Solicitor received and forwarded the
notice of contest to the Review Commission. This case has been
designated for E-Z Trial pursuant to Commission Rule 203. Pursuant to
Commission Rule 207, a pretrial conference was held in this case via
telephone on August 4, 2000.*__*

*_DISCUSSION_*

The evidence establishes without dispute that Respondent did not file a
notice of contest within the 15-day contest period as required by
Section 10(a) of the Act. However, an otherwise untimely notice of
contest may be accepted where (a) the Secretary's deception or failure
to follow proper procedures caused the delay in filing or (b) if 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).

As stated previously, the Compliance Officer who conducted the
inspection stated that he explained the apparent violations to Dan
Heller and provided the OSHA-3000 pamphlet, outlining the employer's
contest rights. (Secretary's motion to dismiss, exhibit A). Although it
is alleged that Heller was not the Respondent's representative, there is
no evidence and no contention that the Secretary was deceptive, nor is
there any evidence that Respondent relied upon assurances or statements
from OSHA which resulted in its failure to timely reply to the citation.
Respondent contends, rather, that the late filing should be deemed
excusable neglect under the circumstances.

As stated above, the certified mail receipt establishes that Sun Roofing
received the citation at its office on August 31, 1999. In his Response
to the Secretary's motion to dismiss late notice of contest
("Response"), Sun-Roofing President, John Sramkoski, admits that he
received the citation and delegated it to Brad Durbin, who was Sun
Roofing's product manager at that time. He further states that he did
not directly tell Durbin to dispute the citation, but believed that was
the action Durbin was going to take. (Response, p. 1, #2) Mr. Sramkoski
also states he believed that Michael Van Hoof at Old Time Roofing (a
subcontractor) was "working with OSHA in respect to this matter."
(Response, p.1, #2) For reasons which are not clear, Mr. Sramkoski
believes that the citation is wholly the responsibility of Old Time Roofing.

The Commission has held that the OSHA citation plainly states the
requirement to file a notice of contest within the prescribed period and
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." /_Roy Kay, Inc., _/_13 BNA OSHC 2021, 2022_ (No. 88-1748,
1989); /_Acrom Constr. Serv., Inc_., /15 BNA OSHC 1123, 1126 (No.
88-2291, 1991). The Commission has also held that ignorance of
procedural rules does not constitute "excusable neglect" and that mere
carelessness or negligence, even by a layman, does not justify relief.
/_Acrom Constr. Serv., Inc_., /15 BNA OSHC 1123, 1126 (No. 88-2291,
1991); /_Keefe Earth Boring Co_., /14 BNA OSHC 2187, 2192 (No. 88-2521,
1991). 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).

On the basis of the record and the foregoing Commission precedent, the
untimely filing of the notice of contest in this case was not a result
of excusable neglect. Respondent failed to institute orderly procedures
for handling important documents and demonstrated a lack of care in
complying with filing requirements. Respondent admits to receiving the
citation, but states that he believed either his project manager or the
subcontractor were responsible for taking care of it. However, Rule
60(b) does not entitle Respondent to relief under these circumstances
/see; Stroudsburg Dyeing and Finishing Co./ 1987-1990 CCH OSHD P28, 443.
/See also/: /RCS Rizzoli Corp. /1993-95 CCH OSHD P30, 240; /Robert F.
Wilson, Inc./ 1983-84 CCCH OSHD P26,572; /Safeway Stores/ 1978 CCH OSHD
P23,096. Further, there is no indication as to why Respondent waited for
six months to respond to the penalty payment demand letter which he
received on November 8, 1999. Respondent's decision to ignore the
citation, as well as the penalty letter, does not constitute excusable
neglect. Moreover, the fact that a closing conference was not conducted
with Respondent's representative does not relieve Respondent of its
responsibility to comply with the statutory 15 day filing requirement.

*_CONCLUSION_*

Based upon the circumstances of this case and the Commission precedent
set out supra, Respondent is not entitled to relief pursuant to Rule
60(b). The Secretary's motion to dismiss is accordingly GRANTED,
Respondent's notice of contest is DISMISSED, and the citation and
notification of penalty is AFFIRMED in all respects.

So ORDERED.

*_ORDER_*

1. Serious Citation 1, item 1 alleging a violation of 29 CFR 1926.501
(b)(13) is AFFIRMED and a penalty in the amount of $800.00 is ASSESSED.

________________________
Robert A.Yetman
Judge, OSHRC

Dated: October 10, 2000