“SECRETARY OF LABOR,Complainant, v.ACROM CONSTRUCTION SERVICES, INC., Respondent.OSHRC Docket No. 88-2291DECISION Before: FOULKE Chairman; WISEMAN, Commissioner. BY THE COMMISSION:Before us for review is a decision of Administrative Law Judge David G. Oringer granting amotion by the Secretary of Labor (\”Secretary\”) to dismiss a written notice ofcontest filed by Acrom Construction Services, Inc. (\”Acrom\”) about three monthsafter two citations issued to Acrom had become final orders. The case further involves thequestion of whether a telephone call to the Occupational Safety and HealthAdministration’s (\”OSHA\”) Manhattan area office by an Acrom project managerwithin the 15-day contest period constituted a valid notice of contest. We hold that thetelephone call did not constitute a valid notice of contest and that the written notice ofcontest filed by Acrcm was not timely. We affirm the judge’s disposition of the case.Factual Background and ChronologyIn March of 1988, the Secretary conducted an inspection of a construction site in New YorkCity where Acrom was engaged as a drywall subcontractor. The general contractor at thesite was Turner Construction Co. On May 10, 1988, the Secretary issued to Acrom athree-item serious citation with penalties of $640 proposed for each item and a one-itemnonserious citation with no penalty proposed. The citations alleged that Respondent failedto provide hardhats and guardrails.A certified return receipt shows that the citations were delivered to Acrom on May 12,1988. The citations on their face warned that unless a written notice of contest was filedwith the OSHA Area Director in Manhattan within 15 working days of their receipt by Acrom,the citations and their proposed penalties would become final, nonreviewable orders.On May 19, 1988, Acrom project manager Arthur Scotto telephoned OSHA’s Manhattan officeand spoke to a safety supervisor of the agency, Angelo Signorile. According to theaffidavit filed by Scotto in opposition to the Secretary’s motion to dismiss in this case:I honestly believed that the citations were a mistake because I believed that the properparty to the citations was Turner Construction Company, the general contractor. I assumedthat this apparent mistake could be resolved by telephoning OSHA and advising them of thefacts …. Therefore, upon service of the citations, I telephoned the OSHA Manhattanoffice and advised them that the citations were incorrectly served on Acrom in that Acromwas merely a drywall subcontractor and therefore not responsible for the allegedviolations.Scotto further alleged, in his affidavit, that he was \”unaware that\u00a0 Acrom wasrequired to answer in writing to avoid imposition of a penalty and that he believed histelephone call \”was sufficient to protect the interests of Acrom in thismatter.\”OSHA’s Signorile states in his affidavit, however, that he told Scotto that if Scottodisagreed with the citations he could request an informal contest or send a letter to theManhatten OSHA office expressing his wish to contest. At no time during the telephoneconversation, Signorile states in his affidavit, did Scotto \”indicate…that hewished to contest the citations issued.\”The 15 working-day period for contesting the citations under section 10(a) of the Act, 29U.S.C. ? 659(a), expired on June 3, 1988, and on August 3, 1988, OSHA sent Acrom a letterdemanding payment of the penalties proposed with the citations.On September 2, 1988, Acrom attorney Carl M. Kuntz called Signorile and requested aconference to resolve the matter, but was told that Acrom was in \”default\” inthe case. On September 6, 1988, the attorney wrote OSHA asking that the \”default bevacated, so that our client can be given a fair hearing and a conference to …resolve thematter.\” OSHA responded that the request for a conference was untimely because the15-day contest period had expired on June 3, 1988 and the citations and proposed penaltieshad become a final order.On September 27, 1988, after receiving OSHA’s demand for payment of the penaltiesassessed, Acrom wrote the Review Commission’s Executive Secretary requesting \”reviewof OSHA’s refusal to provide a hearing.\” The letter alleged that Acrom did not,willfully default\” but failed to contest within the 15-day period because \”aprincipal of Acrom was not available to timely respond.\” The letter was treated as anotice of contest by the Commission and the case was subsequently assigned to JudgeOringer.On November 22, 1988, the Secretary filed her motion for an order dismissing thelate-filed notice of contest. Thereafter, on December 15, 1988, Acrom filed two affidavitsin opposition to the motion to dismiss. The first affidavit was from project managerScotto and the second was from Sidney Kalman, the company’s president. Kalman stated thatAcrom’s failure to timely file a notice of contest was excusable because project managerScotto believed that service of the citations on Acrom was a mistake and therefore assumedit was not necessary to make a written request for a hearing. Kalman further noted that:Scotto is approximately thirty years old and inexperienced in matters involving OSHAcitations. Mr. Scotto, therefore, reasonably believed it was sufficient to contact OSHA bytelephone. He did not advise any of the principals of Acrom of the citations andtherefore, a principal of Acrom was not available to respond in writing.Kalman concluded his affidavit by contending that Acrom’s default was \”excusable andcaused by mistake within the meaning of FRCP 60(b).\”Judge Oringer’s DecisionThe judge dismissed Acrom’s notice of contest, affirmed the citations and assessed theproposed penalties of $1,920. He found that even if Scotto’s telephone call to OSHA hadbeen timely made, it would not have met the requirements of 29 C.F.R. ? 1903.17(a),[[1\/]]which requires a written notice of contest. The judge therefore concluded that theargument of Acrom’s president that the default was excusable and caused by a mistake,within the meaning of Rule 60(b) of the Federal Rules of Civil Procedure, failed as amatter 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 contestrequirement in section 1903.17(a) upheld).The judge held that section 1903.17 requires a timely, written notice of contest toprevent a citation from becoming a final order, unless an employer can show that theSecretary’s deception or failure to follow proper procedures or other misleading conductwas responsible for the late filing, citing Atlantic Marine, Inc. v. OSHRC, 524 F.2d 476(5th Cir. 1975) (per curiam) (\”Atlantic Marine\”). He found that the September 6,1988 letter of Acrom’s counsel and the affidavits of Acrom’s president and project manager\”Portrayed no evidence whatsoever of any evidence of misconduct by theSecretary.\”The Commission’s Direction for ReviewAcrom petitioned for review and review was granted on the following issues: (1) whetherthe judge erred in dismissing Acrom’s notice of contest on the ground that it was not madein writing, (2) whether the statutory time limitation on the filing of notices of contestshould be equitably tolled under the principles stated in Atlantic Marine, and (3) whetherAcrom should be granted relief from a final order under Fed.R.Civ.P. 60(b).Issue 1: Did the ALJ Err in Dismissing Acrom’s Alleged Oral Notice of Contest BecauseIt Was Not in Writing?Acrom contends that Commission precedent permits oral notices of contest where employermisunderstanding adequately explains the failure to file a timely notice of contest,citing Pav-Saver Manufacturing Co., 12 BNA OSHC 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 because project managerScotto orally contacted OSHA within the contest period in the belief that such contact wassufficient to perfect a valid contest. Acrom argues that the Commission should not followthe First Circuit’s Barretto Granite decision, supra, because the decision is in conflictwith the Commission’s decision in Pav-Saver, and because this case is reviewable in theSecond Circuit.The Secretary argues that Acrom failed to comply with the requirement of section1903.17(a) for a written notice of contest. She calls our attention to the SeventhCircuit’s reversal of the Commission’s decision in Pav-Saver and asks that we reexaminethat precedent. She points out that the First Circuit in Barretto Granite found that theinterpretation set forth in section 1903.17(a) requiring a writing was reasonable andrejected a Pav-Saver-type test whereby an oral notices of contest would be accepted whenan employer’s confusion, uncertainty or misunderstanding prompts it to believe that anoral notice of contest is sufficient. The Secretary concedes that although theOccupational Safety and Health Act itself does not specify whether notices of contestshould be written or oral, her interpretation of the statute’s requirement at 29 U.S.C. ?659(a), that an employer \”notify\” OSHA of its intent to contest a citation, isreflected in her regulation and is entitled to deference, unless it is not a reasonableinterpretation of the Act, citing Martin v. OSHRC, U.S., 111 S.Ct. 1171 (1991) (reviewingcourt should defer to Secretary when Secretary and Commission furnish reasonable butconflicting interpretations of ambiguous regulation promulgated by Secretary) andWhirlpool Corp. v. Marshall, 445 U.S. 1, 11 (1980) (reference given to Secretary’sconstruction of section 11(c) of the Act).Discussion and DispositionCurrent Commission precedent provides that the merits of a case should still be heard bythe Commission when \”due to confusion, uncertainty, or misunderstanding the employerfails to file its written notice of contest within the statutory period, but orallydisputes the validity of citations or penalties in a timely manner and in good faithbelieves by so 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, was reversed by theSeventh Circuit, which held that the Secretary has reasonably required that a notice ofcontest be in writing. No. 87-1418, slip op. at 7 (7th Cir. May 24, 1991). In finding thatit was reasonable to require that a notice of contest be in writing, the Seventh Circuitcame to the same result as did the First Circuit in its decision upholding the Secretary’swritten notice-of-contest requirement in Barretto Granite. 830 F.2d at 398.We have reconsidered our decisions in Pav-Saver and Barretto Granite upholding oralnotices of contest, and now believe that they reach an incorrect result. The receipt bythe Secretary of a written notice of contest from an employer is far more reliable than anoral notice for determining 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). Wetherefore hold that an oral notice of contest is not a sufficient means of contesting acitation. To the extent that Pav-Saver and other Commission decisions hold otherwise, theyare overruled.[[2\/]]Issue 2: Should the Statutory Time Limitation on the Filing of Acrom’s Written Noticeof Contest be Tolled under the Equitable Principles of Atlantic Marine v. OSHRC?In Atlantic Marine, the Fifth Circuit stated that… a powerful. argument can be generated that a petitioner should not be denied reviewaltogether of a Citation of Violation for not having filed a Notice of Contest within the15-day limit prescribed in the Act if the Secretary’s deception or failure to followproper procedures is responsible for the late filing.524 F.2d at 478. The Commission has adopted this test and applied it in a 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’s Inc. 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 the citations wereactually intended for the general contractor … and that the designation of Acrom in thecitations was erroneous,\” no blame for Scotto’s misconception is attributable to theSecretary. The citations were properly addressed and served. The citations on their facewarned that unless a written notice of contest was filed, the citations and their proposedpenalties would become final, nonreviewable orders. See Roy Kav. Inc. , 13 BNA OSHC 2021,1987-90 CCH OSHD (p) 28,406 (No. 68-1748, 1989) (citation plainly stated contestrequirement and therefore employer was \”explicitly told\” of its obligations).Acrom must bear the burden of its own lack of diligence in failing to carefully read andact upon the information contained in the citations.Further, Acrom has not alleged any misconduct by OSHA. Acrom’s confusion resulted from alack of knowledge of OSHA and Commission procedures on the part of project manager Scotto.Furthermore, as the Secretary argues, it is established OSHA policy to cite subcontractorson multi-employer construction sites who have employees exposed to violative conditions,even though the subcontractors did not create or control the violations. Lee Roy WestbrookConstruction Co., 13 BNA OSHC 2104, 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 CCHOSHD (p) 20,691, pp. 24,791-92 (No. 12775f 1976). Thus, there is no evidence of deceptionhere or of the Secretary failing to follow proper procedures. Acrom is therefore notentitled to equitable relief under Atlantic Marine.[[3\/]]Issue 3: Should Acrom be Granted Relief from a Final order under Fed.R.Civ.P. 60(b) ?Rule 60(b) of the Federal Rules of Civil Procedure provides, in pertinent part:Rule 60. Relief From Judgment or order* * *(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. Onmotion and upon such terms as are just, the court may relieve a party or a party’s legalrepresentative from a final Judgment, 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 relieffrom the operation of the judgment.Acrom’s president states in his affidavit that the failure to timely serve a notice ofcontest was excusable under Rule 60(b), because its project manager, who was inexperiencedin OSHA matters, believed that service of the citations on Acrom was a mistake andtherefore assumed that it was not necessary to make a written request for a hearing.The facts in this case are virtually indistinguishable from those in Roy-Kay, Inc., supra,in which the Commission refused to grant relief to an employer who filed its notice ofcontest more than three weeks late because of its lack of prior experience with OSHA. TheCommission pointed out that the citation issued to Roy Kay \”plainly stated therequirement to file a notice of contest within the prescribed tire period\” and thatthe company had also been sent a letter by the OSHA area director reiterating the 15-daylimitation on the contest period. The Commission further stated that \”ignorance ofprocedural rules does not constitute excusable neglect within Federal Rule of CivilProcedure 60 (b).\” 13 BNA OSHC at 2022, 1987-90 CCH OSHC at p. 37,534. See also KeefeEarth Boring Co., 14 BNA OSHC 2187, 2192, 1991 CCH OSHD ? 29,277, p. 39,270 (No. 88-2521,1991). Although Roy Kay focuses on \”excusable neglect,\” while Acrom arguesprimarily in terms of \”mistake\”, the facts in the two cases are sufficientlysimilar for Roy Kay to control this case.Acrom did not file its notice of contest until September 6, 1988, about three months afterthe 15-day contest period had expired and the citations had become a final order. Acromasks to be excused from the consequences of that late filing by arguing that its projectmanager was inexperienced 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 asufficient basis for relief under Rule 60(b).However inexperienced he was, and whatever wrong impressions the project manager may haveharbored, the record reveals that Scotto had been informed by OSHA’s Signorile that hecould timely contest the citations in writing if he disagreed with them, and the citationsthemselves provided Scotto with notice that a timely writing was required if they were tobe contested. The project manager, however, failed to timely contest the citations inwriting. Scotto’s mistake in failing to do so does not entitle ,Acrom to relief under Rule60(b)(1).In addition, since Acrom does not allege, and the record does not reveal, any \”fraud… misrepresentation, or other misconduct\” by the Secretary that would justifygranting Acrom relief under Rule 60(b)(3), we do not grant such relief. Finally, on theevidence before us, we find no \”other reason justifying relief\” from the finalorders under Rule 60(b) (6).ORDER The judge’s order dismissing Acron’s late-filed written notice of contest, affirming thesecretary’s citations and assessing penalties totaling $1,920 is affirmed.Edwin G. Foulke, Jr. ChairmanDonald G. Wiseman CommissionerDated: June 28, 1991SECRETARY OF LABOR , Complainantv.ACROM CONSTRUCTION SERVICES INCRespondentOSHRC Docket No. 88-2291DECISION AND ORDERThe Secretary moved for an order dismissing the Respondent’s notice of contest as untimelyfiled and further requested the affirmance of the Secretary’s citations and notificationof 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 on May 10, 1988, andtransmitted by certified mail, and the return receipt indicates delivery on May 12, 1988.The statutory 15 working day period within which a timely contest could be validly filed,expired on June 3, 1988.Counsel for the Respondent wrote OSHA on September 6, 1988, and related that an individualemployed by OSHA’s office was notified of what the Respondent alleged to be the merits ofthe matter and a denial of responsibility for the violations on September 2nd, 1988, threemonths subsequent to the last day that the notice of contest should have been filed bystatutory mandate, the first contact orally or writing apprising OSHA of the Respondent’scontest. September 6th was the first written notice of dissatisfaction or contest withrespect to the citations and notifications of proposed penalty issued to Respondent. In anaffidavit by Mr. Arthur Scotto, he testified that he was unaware that the Respondent wasrequired to answer in writing. Further, he stated in paragraph 3 of his affidavit that hetelephoned the OSHA Manhattan office and advised them that the citations were incorrectlyserved on Respondent. He does not state in the affidavit when the telephone call was made.The record indicates that no call was made prior to September 2nd. In assuming however,that the telephone call was made prior thereto, in and of itself that would not relieveRespondent of the responsibility to contest the citations and proposed penalties inwriting. While Mr. Kalman, the president of the corporation, states in his affidavit thatthe first telephone call was timely made, again there is no date of the telephoneconversation in his affidavit and with danger of being redundant, a timely telephone callwould not meet the requirements of statute or the Secretary’s regulation. The presidentargues in his affidavit that the default was excusable and caused by a mistake within themeaning of FRCP 60(b). While this tribunal is sympathetic to Respondent, his argumentfails as a matter of law.The Secretary promulgated a regulation set forth at 29 CFR 1903.17, which requires timelywritten notice of contest in order to prevent a citation from becoming a final orderunless an employer can show that the Secretary’s deception or failure to follow properprocedures or other misleading conduct was responsible for the late filing. [[1]]In this case, the letter Counsel and the affidavits of Arthur Scotto and Sidney Kalman forthe Respondent portrayed no evidence whatsoever of any evidence of misconduct by theSecretary.Accordingly, even if the telephone calls of Respondent notifying OSHA that they wereorally contesting the citations and notifications of proposed penalty were timely, thistribunal would be constrained by law to dismiss the notice of contest. See Secretary ofLabor v. Barretto, Granite Corporation, et al, 830 F.2nd, 396 (First Circuit) (perCuriam).In accordance therewith, the purported notice of contest is DISMISSED. The citations areAFFIRMED and the Penalties proposed in an aggregate sum of $1920 are ASSESSED by operationof law.IT IS SO ORDERED.DAVID G. ORINGERJudge, OSHRCDated: February 2, 1989 Boston, MassachusettsFOOTNOTES: [[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 has been issued may,under section 10(a) of the Act, notify the Area Director in writing that he intends tocontest (emphasis supplied) such citation or proposed penalty before the ReviewCommission. Such notice of intention to contest shall be postmarked within 15 working daysof the receipt by the employer of the notice of proposed penalty. Every notice ofintention to contest shall specify whether it is directed to the citation or to theproposed penalty, or both. The Area Director shall immediately transmit such notice to theReview Commission in accordance with the rules of procedure prescribed by the Commission.[[2\/]]Even if we were not reversing Pav-Saver today and we were accepting Acrom’sargument that oral notices of contest are permissible, we would still rule against Acromin this case. Pav-Saver required that when an employer orally disputes the validity of acitation it must have a good faith belief that it has perfected a valid contest. Therecord before us fails to establish that Acrom project manager Scotto had a good faithbelief that he was perfecting a valid contest–and thereby initiating a process of legalreview — when he telephoned OSHA’s Signorile. Scotto does not state in his affidavit thathe intended to contest the citations by his telephone call and Signorile’s affidavitstates that Scotto never expressed a desire to contest the citations. It appears thatScotto was merely telephoning OSHA to inform it of his unfounded belief that the citationshad been mistakenly sent to subcontractor Acrom instead of general contractor TurnerConstruction. This would not have been sufficient to constitute a notice of contest underPay-Saver.[[3\/]] We also note that Item 1 of the serious citation alleges that Acrom employeeswho were exposed to falling tools and materials were not wearing protective helmets asrequired by section 1926.100(a). This is not an allegation that Acrom may credibly claimwas mistakenly directed at it rather than the general contractor.[[1]]See Atlantic Marine, Inc. v. OSHRC & Dunlop, 524 F.2nd 476 (5th Circuit, 1975)(per Curiam)”