“SECRETARY OF LABOR,Complainant,v.ACROM CONSTRUCTION SERVICES, INC.,Respondent.OSHRC Docket No. 88-2291_DECISION_Before: FOULKE Chairman; WISEMAN, Commissioner.BY THE COMMISSION:Before us for review is a decision of Administrative Law Judge David G.Oringer granting a motion by the Secretary of Labor (\”Secretary\”) todismiss a written notice of contest filed by Acrom ConstructionServices, Inc. (\”Acrom\”) about three months after two citations issuedto Acrom had become final orders. The case further involves the questionof whether a telephone call to the Occupational Safety and HealthAdministration’s (\”OSHA\”) Manhattan area office by an Acrom projectmanager within the 15-day contest period constituted a valid notice ofcontest. We hold that the telephone call did not constitute a validnotice of contest and that the written notice of contest filed by Acrcmwas not timely. We affirm the judge’s disposition of the case._Factual Background and Chronology_In March of 1988, the Secretary conducted an inspection of aconstruction site in New York City where Acrom was engaged as a drywallsubcontractor. The general contractor at the site was TurnerConstruction Co. On May 10, 1988, the Secretary issued to Acrom athree-item serious citation with penalties of $640 proposed for eachitem and a one-item nonserious citation with no penalty proposed. Thecitations alleged that Respondent failed to provide hardhats and guardrails.A certified return receipt shows that the citations were delivered toAcrom on May 12, 1988. The citations on their face warned that unless awritten notice of contest was filed with the OSHA Area Director inManhattan within 15 working days of their receipt by Acrom, thecitations and their proposed penalties would become final, nonreviewableorders.On May 19, 1988, Acrom project manager Arthur Scotto telephoned OSHA’sManhattan office and spoke to a safety supervisor of the agency, AngeloSignorile. According to the affidavit filed by Scotto in opposition tothe Secretary’s motion to dismiss in this case:I honestly believed that the citations were a mistake because I believedthat the proper party to the citations was Turner Construction Company,the general contractor. I assumed that this apparent mistake could beresolved by telephoning OSHA and advising them of the facts ….Therefore, upon service of the citations, I telephoned the OSHAManhattan office and advised them that the citations were incorrectlyserved on Acrom in that Acrom was merely a drywall subcontractor andtherefore not responsible for the alleged violations.Scotto further alleged, in his affidavit, that he was \”unaware that Acrom was required to answer in writing to avoid imposition of a penaltyand that he believed his telephone call \”was sufficient to protect theinterests of Acrom in this matter.\”OSHA’s Signorile states in his affidavit, however, that he told Scottothat if Scotto disagreed with the citations he could request an informalcontest or send a letter to the Manhatten OSHA office expressing hiswish to contest. At no time during the telephone conversation, Signorilestates in his affidavit, did Scotto \”indicate…that he wished tocontest the citations issued.\”The 15 working-day period for contesting the citations under section10(a) of the Act, 29 U.S.C. ? 659(a), expired on June 3, 1988, and onAugust 3, 1988, OSHA sent Acrom a letter demanding payment of thepenalties proposed with the citations.On September 2, 1988, Acrom attorney Carl M. Kuntz called Signorile andrequested a conference to resolve the matter, but was told that Acromwas in \”default\” in the case. On September 6, 1988, the attorney wroteOSHA asking that the \”default be vacated, so that our client can begiven a fair hearing and a conference to …resolve the matter.\” OSHAresponded that the request for a conference was untimely because the15-day contest period had expired on June 3, 1988 and the citations andproposed penalties had become a final order.On September 27, 1988, after receiving OSHA’s demand for payment of thepenalties assessed, Acrom wrote the Review Commission’s ExecutiveSecretary requesting \”review of OSHA’s refusal to provide a hearing.\”The letter alleged that Acrom did not ,willfully default\” but failed tocontest within the 15-day period because \”a principal of Acrom was notavailable to timely respond.\” The letter was treated as a notice ofcontest by the Commission and the case was subsequently assigned toJudge Oringer.On November 22, 1988, the Secretary filed her motion for an orderdismissing the late-filed notice of contest. Thereafter, on December 15,1988, Acrom filed two affidavits in opposition to the motion to dismiss.The first affidavit was from project manager Scotto and the second wasfrom Sidney Kalman, the company’s president. Kalman stated that Acrom’sfailure to timely file a notice of contest was excusable because projectmanager Scotto believed that service of the citations on Acrom was amistake and therefore assumed it was not necessary to make a writtenrequest for a hearing. Kalman further noted that:Scotto is approximately thirty years old and inexperienced in mattersinvolving OSHA citations. Mr. Scotto, therefore, reasonably believed itwas sufficient to contact OSHA by telephone. He did not advise any ofthe principals of Acrom of the citations and therefore, a principal ofAcrom was not available to respond in writing.Kalman concluded his affidavit by contending that Acrom’s default was\”excusable and caused by mistake within the meaning of FRCP 60(b).\”_Judge Oringer’s Decision_The judge dismissed Acrom’s notice of contest, affirmed the citationsand assessed the proposed penalties of $1,920. He found that even ifScotto’s telephone call to OSHA had been timely made, it would not havemet the requirements of 29 C.F.R. ? 1903.17(a),[[1\/]] which requires awritten notice of contest. The judge therefore concluded that theargument of Acrom’s president that the default was excusable and causedby a mistake, within the meaning of Rule 60(b) of the Federal Rules ofCivil Procedure, failed as a matter of law, citing Secretary of Labor v.Barretto Granite Corp., 830 F.2d 396 (1st Cir. 1987) (per curiam)(\”Barretto Granite\”) (Secretary’s written notice of contest requirementin section 1903.17(a) upheld).The judge held that section 1903.17 requires a timely, written notice ofcontest to prevent a citation from becoming a final order, unless anemployer can show that the Secretary’s deception or failure to followproper procedures or other misleading conduct was responsible for thelate filing, citing Atlantic Marine, Inc. v. OSHRC, 524 F.2d 476 (5thCir. 1975) (per curiam) (\”Atlantic Marine\”). He found that the September6, 1988 letter of Acrom’s counsel and the affidavits of Acrom’spresident and project manager \”Portrayed no evidence whatsoever of anyevidence of misconduct by the Secretary.\”_The Commission’s Direction for Review_Acrom petitioned for review and review was granted on the followingissues: (1) whether the judge erred in dismissing Acrom’s notice ofcontest on the ground that it was not made in writing, (2) whether thestatutory time limitation on the filing of notices of contest should beequitably tolled under the principles stated in Atlantic Marine, and (3)whether Acrom should be granted relief from a final order underFed.R.Civ.P. 60(b)._Issue 1: Did the ALJ Err in Dismissing Acrom’s Alleged Oral Notice ofContest Because It Was Not in Writing?_Acrom contends that Commission precedent permits oral notices of contestwhere employer misunderstanding adequately explains the failure to filea timely notice of contest, citing Pav-Saver Manufacturing Co., 12 BNAOSHC 2001, 1986-87 CCH OSHD (p) 27,676 (No. 84-733, 1986), rev’d, No.87-1418 (7th Cir. May. 24, 1991), pet. for rev’d filed, June 10, 1991.It claims that this case falls within the rule of Pav-Saver becauseproject manager Scotto orally contacted OSHA within the contest periodin the belief that such contact was sufficient to perfect a validcontest. Acrom argues that the Commission should not follow the FirstCircuit’s Barretto Granite decision, supra, because the decision is inconflict with the Commission’s decision in Pav-Saver, and because thiscase is reviewable in the Second Circuit.The Secretary argues that Acrom failed to comply with the requirement ofsection 1903.17(a) for a written notice of contest. She calls ourattention to the Seventh Circuit’s reversal of the Commission’s decisionin Pav-Saver and asks that we reexamine that precedent. She points outthat the First Circuit in Barretto Granite found that the interpretationset forth in section 1903.17(a) requiring a writing was reasonable andrejected a Pav-Saver-type test whereby an oral notices of contest wouldbe accepted when an employer’s confusion, uncertainty ormisunderstanding prompts it to believe that an oral notice of contest issufficient. The Secretary concedes that although the Occupational Safetyand Health Act itself does not specify whether notices of contest shouldbe written or oral, her interpretation of the statute’s requirement at29 U.S.C. ? 659(a), that an employer \”notify\” OSHA of its intent tocontest a citation, is reflected in her regulation and is entitled todeference, unless it is not a reasonable interpretation of the Act,citing Martin v. OSHRC, U.S., 111 S.Ct. 1171 (1991) (reviewing courtshould defer to Secretary when Secretary and Commission furnishreasonable but conflicting interpretations of ambiguous regulationpromulgated by Secretary) and Whirlpool Corp. v. Marshall, 445 U.S. 1,11 (1980) (reference given to Secretary’s construction of section 11(c)of the Act)._Discussion and Disposition_Current Commission precedent provides that the merits of a case shouldstill be heard by the Commission when \”due to confusion, uncertainty, ormisunderstanding the employer fails to file its written notice ofcontest within the statutory period, but orally disputes the validity ofcitations or penalties in a timely manner and in good faith believes byso doing it has perfected a valid contest.\” Pav-Saver, 12 BNA OSHC at2006-2007, 1986-87 CCH OSHD at p. 36,104-36,105. Pav-Saver, however, wasreversed by the Seventh Circuit, which held that the Secretary hasreasonably required that a notice of contest be in writing. No. 87-1418,slip op. at 7 (7th Cir. May 24, 1991). In finding that it was reasonableto require that a notice of contest be in writing, the Seventh Circuitcame to the same result as did the First Circuit in its decisionupholding the Secretary’s written notice-of-contest requirement inBarretto Granite. 830 F.2d at 398.We have reconsidered our decisions in Pav-Saver and Barretto Graniteupholding oral notices of contest, and now believe that they reach anincorrect result. The receipt by the Secretary of a written notice ofcontest from an employer is far more reliable than an oral notice fordetermining when a notice of contest is actually filed. See Keppel’s,Inc., 7 BNA OSHC 1442, 1979 CCH OSHD (p) 23,622, p. 28,637 (No. 77-3020,1979). We therefore hold that an oral notice of contest is not asufficient means of contesting a citation. To the extent that Pav-Saverand other Commission decisions hold otherwise, they are overruled.[[2\/]]_Issue 2: Should the Statutory Time Limitation on the Filing of Acrom’sWritten Notice of Contest be Tolled under the Equitable Principles ofAtlantic Marine v. OSHRC?In Atlantic Marine, the Fifth Circuit stated that_… a powerful. argument can be generated that a petitioner should notbe denied review altogether of a Citation of Violation for not havingfiled a Notice of Contest within the 15-day limit prescribed in the Actif the Secretary’s deception or failure to follow proper procedures isresponsible for the late filing.524 F.2d at 478. The Commission has adopted this test and applied it ina number of cases, e.g., Seminole Distributors, Inc. 6 BNA OSHC 1194,1195, 1977-78 CCH OSHD (p) 22,412, p. 27,021 (No. 15761, 1977); Keppel’sInc. 7 BNA OSHC 1442,- 1443, 1979 CCH OSHD (p) 23,622, p. 28,636 (No.77-3020, 19791; B.J. Hughes, Inc., 7 BNA OSHC 1471, 1476, 1979 CCH OSHD(p) 23,675, p. 28,710 (No. 76- 2165, 1979).Although Acrom argues that \”Scotto was misled into believing that thecitations were actually intended for the general contractor … and thatthe designation of Acrom in the citations was erroneous,\” no blame forScotto’s misconception is attributable to the Secretary. The citationswere properly addressed and served. The citations on their face warnedthat unless a written notice of contest was filed, the citations andtheir proposed penalties would become final, nonreviewable orders. SeeRoy Kav. Inc. , 13 BNA OSHC 2021, 1987-90 CCH OSHD (p) 28,406 (No.68-1748, 1989) (citation plainly stated contest requirement andtherefore employer was \”explicitly told\” of its obligations). Acrom mustbear the burden of its own lack of diligence in failing to carefullyread and act upon the information contained in the citations.Further, Acrom has not alleged any misconduct by OSHA. Acrom’s confusionresulted from a lack of knowledge of OSHA and Commission procedures onthe part of project manager Scotto. Furthermore, as the Secretaryargues, it is established OSHA policy to cite subcontractors onmulti-employer construction sites who have employees exposed toviolative conditions, even though the subcontractors did not create orcontrol the violations. Lee Roy Westbrook Construction Co., 13 BNA OSHC2104, 2106-2107, 1987-90 CCH OSHD (p) 28,465, p. 37,696 (No. 85-601,1989). See Grossman Steel & Aluminum Corp., 4 BNA OSHC 1185, 1189,1975-76 CCH OSHD (p) 20,691, pp. 24,791-92 (No. 12775f 1976). Thus,there is no evidence of deception here or of the Secretary failing tofollow proper procedures. Acrom is therefore not entitled to equitablerelief under Atlantic Marine.[[3\/]]_Issue 3: Should Acrom be Granted Relief from a Final order underFed.R.Civ.P. 60(b) ?_Rule 60(b) of the Federal Rules of Civil Procedure provides, inpertinent part:Rule 60. Relief From Judgment or order* * *(b) Mistakes; Inadvertence; Excusable Neglect; Newly DiscoveredEvidence; Fraud, etc. On motion and upon such terms as are just, thecourt may relieve a party or a party’s legal representative from a finalJudgment, order, or proceeding for the following reasons: (1) mistake,inadvertence, surprise, or excusable neglect ….(3) fraud …misrepresentation, or other misconduct of an adverse party …. or (6)any other reason justifying relief from the operation of the judgment.Acrom’s president states in his affidavit that the failure to timelyserve a notice of contest was excusable under Rule 60(b), because itsproject manager, who was inexperienced in OSHA matters, believed thatservice of the citations on Acrom was a mistake and therefore assumedthat it was not necessary to make a written request for a hearing.The facts in this case are virtually indistinguishable from those inRoy-Kay, Inc., supra, in which the Commission refused to grant relief toan employer who filed its notice of contest more than three weeks latebecause of its lack of prior experience with OSHA. The Commissionpointed out that the citation issued to Roy Kay \”plainly stated therequirement to file a notice of contest within the prescribed tireperiod\” and that the company had also been sent a letter by the OSHAarea director reiterating the 15-day limitation on the contest period.The Commission further stated that \”ignorance of procedural rules doesnot constitute excusable neglect within Federal Rule of Civil Procedure60 (b).\” 13 BNA OSHC at 2022, 1987-90 CCH OSHC at p. 37,534. See alsoKeefe Earth Boring Co., 14 BNA OSHC 2187, 2192, 1991 CCH OSHD ? 29,277,p. 39,270 (No. 88-2521, 1991). Although Roy Kay focuses on \”excusableneglect,\” while Acrom argues primarily in terms of \”mistake\”, the factsin the two cases are sufficiently similar for Roy Kay to control this case.Acrom did not file its notice of contest until September 6, 1988, aboutthree months after the 15-day contest period had expired and thecitations had become a final order. Acrom asks to be excused from theconsequences of that late filing by arguing that its project manager wasinexperienced in OSHA matters and assumed it was not necessary to make awritten request for a hearing. Under the dictates of Rpy Kay, however,this is not a sufficient basis for relief under Rule 60(b).However inexperienced he was, and whatever wrong impressions the projectmanager may have harbored, the record reveals that Scotto had beeninformed by OSHA’s Signorile that he could timely contest the citationsin writing if he disagreed with them, and the citations themselvesprovided Scotto with notice that a timely writing was required if theywere to be contested. The project manager, however, failed to timelycontest the citations in writing. Scotto’s mistake in failing to do sodoes not entitle ,Acrom to relief under Rule 60(b)(1).In addition, since Acrom does not allege, and the record does notreveal, any \”fraud … misrepresentation, or other misconduct\” by theSecretary that would justify granting Acrom relief under Rule 60(b)(3),we do not grant such relief. Finally, on the evidence before us, we findno \”other reason justifying relief\” from the final orders under Rule60(b) (6)._ORDER_The judge’s order dismissing Acron’s late-filed written notice ofcontest, affirming the secretary’s citations and assessing penaltiestotaling $1,920 is affirmed.Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerDated: June 28, 1991————————————————————————SECRETARY OF LABOR ,Complainantv.ACROM CONSTRUCTION SERVICES INCRespondentOSHRC Docket No. 88-2291_DECISION AND ORDER_The Secretary moved for an order dismissing the Respondent’s notice ofcontest as untimely filed and further requested the affirmance of theSecretary’s citations and notification of proposed penalties as issued.The Respondent filed two affidavits in opposition to the Secretary’s motion.The two citations and notifications of proposed penalties were issued onMay 10, 1988, and transmitted by certified mail, and the return receiptindicates delivery on May 12, 1988. The statutory 15 working day periodwithin which a timely contest could be validly filed, expired on June 3,1988.Counsel for the Respondent wrote OSHA on September 6, 1988, and relatedthat an individual employed by OSHA’s office was notified of what theRespondent alleged to be the merits of the matter and a denial ofresponsibility for the violations on September 2nd, 1988, three monthssubsequent to the last day that the notice of contest should have beenfiled by statutory mandate, the first contact orally or writingapprising OSHA of the Respondent’s contest. September 6th was the firstwritten notice of dissatisfaction or contest with respect to thecitations and notifications of proposed penalty issued to Respondent. Inan affidavit by Mr. Arthur Scotto, he testified that he was unaware thatthe Respondent was required to answer in writing. Further, he stated inparagraph 3 of his affidavit that he telephoned the OSHA Manhattanoffice and advised them that the citations were incorrectly served onRespondent. He does not state in the affidavit when the telephone callwas made. The record indicates that no call was made prior to September2nd. In assuming however, that the telephone call was made priorthereto, in and of itself that would not relieve Respondent of theresponsibility to contest the citations and proposed penalties inwriting. While Mr. Kalman, the president of the corporation, states inhis affidavit that the first telephone call was timely made, again thereis no date of the telephone conversation in his affidavit and withdanger of being redundant, a timely telephone call would not meet therequirements of statute or the Secretary’s regulation. The presidentargues in his affidavit that the default was excusable and caused by amistake within the meaning of FRCP 60(b). While this tribunal issympathetic to Respondent, his argument fails as a matter of law.The Secretary promulgated a regulation set forth at 29 CFR 1903.17,which requires timely written notice of contest in order to prevent acitation from becoming a final order unless an employer can show thatthe Secretary’s deception or failure to follow proper procedures orother misleading conduct was responsible for the late filing. [[1]]In this case, the letter Counsel and the affidavits of Arthur Scotto andSidney Kalman for the Respondent portrayed no evidence whatsoever of anyevidence of misconduct by the Secretary.Accordingly, even if the telephone calls of Respondent notifying OSHAthat they were orally contesting the citations and notifications ofproposed penalty were timely, this tribunal would be constrained by lawto dismiss the notice of contest. See Secretary of Labor v. Barretto,Granite Corporation, et al, 830 F.2nd, 396 (First Circuit) (per Curiam).In accordance therewith, the purported notice of contest is DISMISSED.The citations are AFFIRMED and the Penalties proposed in an aggregatesum of $1920 are ASSESSED by operation of law.IT IS SO ORDERED.DAVID G. ORINGERJudge, OSHRCDated: February 2, 1989Boston, Massachusetts————————————————————————FOOTNOTES:[[1\/]]Section 1903.17(a) provides:? 1903.17 Employer and employee contests before the Review Commission(a) Any employer to whom a citation or notice of proposed penalty hasbeen issued may, under section 10(a) of the Act, notify the AreaDirector in writing that he intends to contest (emphasis supplied) suchcitation or proposed penalty before the Review Commission. Such noticeof intention to contest shall be postmarked within 15 working days ofthe receipt by the employer of the notice of proposed penalty. Everynotice of intention to contest shall specify whether it is directed tothe citation or to the proposed penalty, or both. The Area Directorshall immediately transmit such notice to the Review Commission inaccordance with the rules of procedure prescribed by the Commission.[[2\/]]Even if we were not reversing Pav-Saver today and we wereaccepting Acrom’s argument that oral notices of contest are permissible,we would still rule against Acrom in this case. Pav-Saver required thatwhen an employer orally disputes the validity of a citation it must havea good faith belief that it has perfected a valid contest. The recordbefore us fails to establish that Acrom project manager Scotto had agood faith belief that he was perfecting a valid contest–and therebyinitiating a process of legal review — when he telephoned OSHA’sSignorile. Scotto does not state in his affidavit that he intended tocontest the citations by his telephone call and Signorile’s affidavitstates that Scotto never expressed a desire to contest the citations. Itappears that Scotto was merely telephoning OSHA to inform it of hisunfounded belief that the citations had been mistakenly sent tosubcontractor Acrom instead of general contractor Turner Construction.This would not have been sufficient to constitute a notice of contestunder Pay-Saver.[[3\/]] We also note that Item 1 of the serious citation alleges thatAcrom employees who were exposed to falling tools and materials were notwearing protective helmets as required by section 1926.100(a). This isnot an allegation that Acrom may credibly claim was mistakenly directedat it rather than the general contractor.[[1]]See Atlantic Marine, Inc. v. OSHRC & Dunlop, 524 F.2nd 476 (5thCircuit, 1975) (per Curiam)”