SECRETARY OF LABOR,

	

 

Complainant,

	

 

v.

	

OSHRC DOCKET NO. 03-1538

WESTERN NATIONAL CONSTRUCTION,

	

 

Respondent.

	

 


APPEARANCES:


              For the Complainant:

                            Kim Prichard Flores, Esq., Office of the
Solicitor, U.S. Department of Labor, Kansas City, Missouri

 

Before:            Administrative Law Judge: Sidney J. Goldstein


DECISION AND ORDER


            This proceeding arises under the Occupational Safety and
Health Act of 1970 (29 U.S.C. Section 651-678; hereafter called the “Act”).

            On March 3, 2003, OSHA issued a citation to Respondent,
Western National Construction (Western). The citation was sent by
certified mail to an Irvine, California address provided by Western’s
project supervisor during OSHA’s January 2003 inspection of Western’s
work site at 4675 Alta Point, Colorado Springs, Colorado (Tr. 7-8; Exh.
C-2, C-6). The citation was received on March 10, 2003 (Tr. 11; Exh.
C-2). On March 31, 2003, the citation became a Final Order of the
Commission pursuant to §10(c) of the Act. On May 1, 2003 and again on
July 23, 2003, collection letters were sent to Western at the Irvine
address (Exh. C-1, C-3, C-4).

            On August 25, 2003, an undated letter from Mike Sibley,
president of Courage Safety Systems, L.L.C., was received by the
Commission’s Office of the Executive Secretary (Exh. C-5). The letter
states that Courage Safety Systems represents Western National
Construction, and asks that Western be permitted to file a late notice
of contest. In the letter Sibley represents that “through some
misfortune this citation was never put into the hands of the appropriate
person and has since fallen through the cracks.” On September 9, 2003,
the Commission assigned the above captioned case to this judge for a
determination on the merits of Respondent’s request for relief.  

            On October 6, 2003, The Secretary filed a motion to vacate
Western’s late notice of contest. A hearing, originally scheduled for
November 10, 2003, was rescheduled. Both parties were notified of the
new date, and the hearing was held on December 15, 2003. Neither
Respondent nor its representative appeared at the hearing.

            The Commission has held that a party filing a late notice of
contest may obtain Commission review by filing a motion for relief from
judgment or order under F.R.C.P. 60(b), which allows for such relief in
cases of "mistake, inadvertence, surprise, or excusable neglect". The
burden is on the respondent to show sufficient basis for relief under
rule 60(b). /Branciforte Builders Inc/., 9 BNA OSHC 2113 (No. 80-1920,
1981); /Keefe Earth Boring Company, Inc/., 14 BNA OSHC 2187, 1991-93 CCH
OSHD ¶29,277 (No. 88-2521, 1991). The letter from Courage Safety Systems
does not set forth a sufficient basis for relief from judgment;
moreover, as of this writing Western National Construction appears to
have abandoned its request for relief from judgement. The Secretary’s
motion to vacate the late notice of contest is GRANTED, and the citation
is AFFIRMED in its entirety.

 

 


                                                                                     /s/


                                                                                    Sidney
J. Goldstein

                                                                                    Judge,
OSHRC


Dated: January 21, 2004