SECRETARY OF LABOR,

	

 

           Complainant,

	

 

                        v.

	

Docket No. 03-1363

WELL RISE FASHION,

	

 

            Respondent.

	

 


APPEARANCES:

            Jennifer Marciano,
Esq.                                              Daphne Fu

            For the
Secretary                                                                    For
the Respondent


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 of the
Occupational Safety and Health Act of 1970, 29 U.S.C. sec. 651 et seq.
(the Act) for the sole purpose of determining whether the Secretary's
motion to dismiss the Respondent's notice of contest as untimely should
be granted.

BACKGROUND 

            The Occupational Safety and Health Administration (OSHA)
conducted an inspection of a work site of Respondent located in New
York, N.Y. on March 20, 2003. As a result of the inspection OSHA issued
Respondent two citations alleging serious and non-serious violations of
the Act. Section 10(a) of the Act requires an employer to notify OSHA of
the intent to contest a citation within 15 working days of receiving it
and the failure to file a timely notice of contest results in the
citation and penalty becoming a final judgment of the Commission by
operation of law. The record shows that OSHA sent the citations to the
Respondent which were received on April 9, 2003 and that the 15 day
notice of contest period expired on April 30, 2003. The Respondent did
not reply to the citations until July 7, 2003 at which time it merely
asked for reconsideration of the case.

 

 DISCUSSION

            The record plainly shows that the Respondent did not file
its notice of contest until well after the 15 day contest period had
already ended. An otherwise untimely notice of contest may be accepted
where the Secretary̓s deception or failure to follow proper procedures
caused the delay in filing. An employer is also entitled to relief if it
shows that the Commission̓s final order was entered as a result of̓
‘mistake, inadvertence, surprise, or excusable neglect” or “any other
reason justifying relief̓, including mitigating circumstances such as
illness or a disability which would prevent a person from protecting its
interests. There is no evidence and no contention that the Secretary was
deceptive or failed to follow proper procedures. There is no evidence
that the failure to file in a timely manner was to “excusable neglect”
or any other reason justifying relief. The record shows that the
Respondent has been in business as a garment contractor for close to
three years and 20 to 25 people are employed. While he alleges that he
cannot understand English, he does have an employee under him who is
conversant in English and assists him. He hires the help, keeps payroll
records and as a garment subcontractor deals with his customers. His
message at the hearing was he was interested in settling this matter if
the penalties were reduced. This was not satisfactory to the Secretary
who proceeded with its motion.

            The Commission has held the OSHA citation plainly states the
requirement to file a notice of contest within the prescribed time
period. The Commission has further held that a business must have
orderly procedures for handling of important documents. Here the
Respondent did not follow threw after receipt of the citations, and is
here not contesting its lateness in filing, but asking for a lesser
penalty. Although I am sympathetic to Respondent's plight, I am
constrained by the circumstances and Commission precedent to conclude
that the failure to file a timely notice of contest was not due to
excusable neglect or any other reason justifying relief pursuant to Rule
60(b).                                                             ORDER

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


                                                                                                /s/

                                                                                                IRVING
SOMMER

                                                                                                Chief
Judge

DATED: March 4, 2004

            Washington, D.C.