“SECRETARY OF LABOR,Complainant,v.ALL PHASE ELECTRIC & MAINTENANCE, INC.,Respondent.OSHRC Docket No. 90-0505_DECISION_Before: FOULKE, Chairman; WISEMAN, Commissioner.[[1]]BY THE COMMISSION:Before us on review is an order of Administrative Law Judge Edwin G.Salyers granting the Secretary’s motion to dismiss a written notice ofcontest of Respondent, All Phase Electric & Maintenance, Inc. \”AllPhase\”), as untimely filed. All Phase seeks relief from the judge’sorder, alleging that it miscalculated the final day for filing a timelynotice of contest under the fifteen-working-day period provided in 29C.F.R. ? 1903.21(c). We conclude that even if this allegedmiscalculation constituted a \”mistake\” or \”excusable neglect\” within themeaning of Rule 60(b) of the Federal Rules of Civil Procedure, All Phasewould still not be entitled to relief under the rule because it did notcontest the citation in its letter of January 11, 1990 to OccupationalSafety and Health Administration (OSHA) Area Director Lawrence Falck.For the reasons set forth below, we affirm the judge’s disposition ofthe case._Factual Background and Chronology_In October 1989, OSHA conducted an inspection of a worksite in Brandon,Florida, where All Phase, a Tampa-based firm, was engaged in work as anelectrical contractor. As a result of that inspection, OSHA issued twocitations to All Phase, alleging serious violations of the electricalstandards published at 29 C.F.R. ?? 1926.404 (b) (1) (i) and 1926.405(a) (2) (ii) (E), and one other-than-serious violation of the OSHAposter regulation, published at 29 C.F.R. ? 1903.2(a)(1). The totalproposed penalty was $240.All Phase’s president, Paul Puleo, who has represented All Phase _pro__se_ throughout these proceedings, acknowledged that he personally\”accepted delivery of the citations on December 18, 1989,\” which was aMonday. Under section 10(a) of the Act, 29 U.S.C. ? 659(a), All Phasehad fifteen working days to file its notice of contest. In keeping withthe Secretary’s published guidelines regarding the computation of timeat 29 C.F.R. ? 1903.21(c), All Phase’s filing period did not includefour weekend days and two Federal holidays — Christmas on Monday,December 25, and New Year’s Day on Monday, January 1. Thus, All Phasehad until Tuesday, January 10, 1990 to file its notice of contest.It is undisputed that All Phase did not contest the citation during thisfifteen-working-day period. Accordingly, the citations became finalorders of the Commission by operation of law on January 10, 1990. Thenext day, on January 11, 1990, All Phase’s president Puleo made atelephone call to the OSHA area office in Tampa. The Secretary does notrecount the details of this telephone conversation. In a letter to AreaDirector Falck dated the same day, Puleo stated:I respectfully request an informal conference on the enclosed citation.Because of the numerous Holidays in the last 3 weeks, my 15 day countdid not coincide with your office’s 15 day count (we differed by 1 day).Accordingly my original verbal request was rudely denied by your office.Therefore, I would appreciate your reconsideration for an informalconference.In a letter dated January 24, Area Director Falck responded by informingPuleo that the citations had become a final order on January 10, 1990,and that both the written \”request for an informal conference receivedon January 16\” and the earlier \”verbal request [which] was received oneday after the citation became a final order\” were untimely. Falckinformed Puleo that, if he disagreed with this decision, he could file awritten appeal with the Commission’s Executive Secretary.On February 1, Puleo wrote to the Commission’s Executive Secretary,stating in pertinent part:Please be advised this letter is an appeal to the decision rendered inthe enclosed letter from Mr. Falck, Area Director. With the confusion ofthe Christmas Holidays the 15 day count was off by 1 day and my verbalrequest to contest the citation was denied. Also my written appeal toMr. Falck explaining the unique circumstances was rejected.. . . . I firmly believe our Company is being singled out by the TampaOSHA Office and unfairly cited, rudely communicated with and excessivelyfined.After the case was docketed with the Commission, the Secretary filed amotion to dismiss in which the Secretary treats Puleo’s February 1letter as All Phase’s notice of contest and seeks dismissal of thenotice of contest on the ground that it was untimely filed. In supportof this motion, the Secretary subsequently filed the affidavit of AreaDirector Falck and a copy of the informational booklet routinelysupplied by the OSHA area office to employers informing them of theprocedures for contesting citations. Area Director Falck’s affidavitstates: \”I caused a search to be made of the official record in thiscase and found that no notice of contest was filed with or through thisoffice by this employer with respect to the above Citations andNotifications of Penalty until February 1, 1990, approximately 45 daysafter receipt of the Citations and Notifications of Penalty by therespondent.\”After receiving a letter dated March 23, 1990 from Judge Salyersinforming All Phase that its notice of contest might be dismissed, AllPhase responded to the Secretary’s motion in an April 3, 1990 letterfrom Puleo to the judge. In this letter, Puleo indicated that thecitations had arrived at a hectic time when All Phase’s entiremanagement team was away from the office of an annual management retreatand its employees were working \”shortened work week[s]\”, including theweek before the Christmas holidays, which was the week the citationarrived. Puleo also expanded on his earlier claim about miscalculatingthe end of the fifteen- working-day contest period: \”All Phase Electrichad counted the days on the calendar, with all good intentions; however,the count was off by just one day because we thought the governmentaloffices had more days off for the holidays.\” The letter also contains astatement that could be construed as a claim that the violations inquestion were due to unpreventable employee misconduct: \”[Trying to makea better workplace for my employees] is very difficult to do at times,especially when the employees themselves are not attempting to followthe regulations as set forth by OSHA and All Phase Electric.\”After considering the Secretary’s motion and the employer’s response,Judge Salyers entered his order granting the motion. Although he treatedAll Phase’s _first letter_ (dated January 11) as its notice of contest,he found that it was not filed within the statutory time limit. Hefurther found that nothing in the Respondent’s April 3 letter \”wouldafford respondent relief from the late filing under Rule 60 of theFederal Rules of Civil Procedure,\” citing _Roy Kay, Inc., _13 BNA OSHC2021, 1989 CCH OSHD ? 28,406 (No. 88-1748, 1989), and _Louisiana PacificCorp., _13 BNA OSHC 2020, 1989 CCH OSHD ? 28,409 (No. 86-1266, 1989)._Analysis_The direction for review in this case raises the question of whether theRespondent’s miscalculation of the final day for filing a notice ofcontest should be classified as a \”mistake\” or \”excusable neglect\”within the meaning of Rule 60 (b) of the Federal Rules of CivilProcedure. However, we need not reach the issue of whether this latenesswas excusable because we conclude that All Phase did not file a noticeof contest. In its January 11, 1990 letter to the Secretary, Respondentdid not express an intent to contest the citations; rather, in thatletter, Respondent simply requested an informal conference. We also notethat Puleo’s January 11, 1990 telephone call to the area office was nota notice of contest. In a letter written three weeks after the citationbecame a final order, Puleo described that telephone call as \”a verbalrequest to contest the citation.\” However, the Commission has held thatan oral notice of contest is not a sufficient means of contesting acitation, even if it was made within the fifteen-working-day period._Acrom Construction Services, Inc.,_ 15 BNA OSHC 1123, 1991 CCH OSHD ?29,393 (No. 88-2291, 1991).Accordingly, we conclude that All Phase failed to timely contest thecitations in this case, and we affirm the order of the administrativelaw judge granting the Secretary’s motion to dismiss.Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerDated: _October 4, 1991_————————————————————————SECRETARY OF LABOR,Complainant,v.ALL PHASE ELECTRIC &MAINTENANCE, INC.,Respondent.OSHRC Docket No. 90-0505_ORDER GRANTING MOTION TO __DISMISS NOTICE OF CONTEST_This matter is before the undersigned upon the Secretary’s Motion toDismiss Notice of Contest as untimely filed and supported by anaffidavit of the Area Director.The Occupational Safety and Health Act (29 U. S. C. ? 651, _et seq._)specifies in section 10 that a notice of contest not filed with theSecretary within fifteen (15) working days \”shall be deemed a finalorder of the Commission and not subject to review of any court or agency.\”It appears in the record that the citation and notification of penaltyin this matter was issued by the Area Director on December 13, 1989, andwas received by respondent on December 18, 1989. Respondent’snotification of intent to contest dated January 11, 1990, was receivedin the Area Director’s office on January 16, 1990. Accordingly,respondent’s notice of contest was not filed within the period specifiedin the statute.Upon receipt of the Secretary’s motion, this court directed a letter toMr. Paul Puleo, president of respondent corporation, dated March 23,1990, requesting to be advised of any reasons why this motion should notbe granted (Ex. J-12). The court has now received a letter fromrespondent dated April 3, 1990 (Ex. J-13), and has considered itscontents. In essence, nothing contained therein would afford respondentrelief from the late filing under Rule 60 of the Federal Rules of CivilProcedure.The circumstances of this case are controlled by _Roy Kay, Inc.,_ 13 BNAOSHC 2021, 1989 CCH OSHD ? 28,406 (No. 88-1748, 1989), and _LouisianaPacific Corp.,_ 13 BNA OSHC 2020, 1989 CCH OSHD 28,409 (No. 86-1266,1989). Accordingly, the Secretary’s motion is granted, respondent’snotice of contest is dismissed, and the Secretary’s citation has becomea final order of the Review Commission by operation of law.Dated this 24th day of May, 1990.EDWIN G. SALYERSJudgeFOOTNOTES:[[1]] Commissioner Montoya did not participate in the deliberation orissuance of this decision.”