“Docket No. 90-0505 SECRETARY OF LABOR,Complainant,v. ALL PHASE ELECTRIC & MAINTENANCE, INC.,Respondent.OSHRC Docket No. 90-0505DECISIONBefore: FOULKE, Chairman; WISEMAN, Commissioner.[[1]]BY THE COMMISSION:Before us on review is an order of Administrative Law JudgeEdwin G. Salyers granting the Secretary’s motion to dismiss a written notice of contest ofRespondent, All Phase Electric & Maintenance, Inc. \”All Phase\”), as untimelyfiled. All Phase seeks relief from the judge’s order, alleging that it miscalculated thefinal day for filing a timely notice of contest under the fifteen-working-day periodprovided in 29 C.F.R. ? 1903.21(c). We conclude that even if this alleged miscalculationconstituted a \”mistake\” or \”excusable neglect\” within the meaning ofRule 60(b) of the Federal Rules of Civil Procedure, All Phase would still not be entitledto relief under the rule because it did not contest the citation in its letter of January11, 1990 to Occupational Safety and Health Administration (OSHA) Area Director LawrenceFalck. For the reasons set forth below, we affirm the judge’s disposition of the case.Factual Background and ChronologyIn October 1989, OSHA conducted an inspection of a worksite inBrandon, Florida, where All Phase, a Tampa-based firm, was engaged in work as anelectrical contractor. As a result of that inspection, OSHA issued two citations to AllPhase, alleging serious violations of the electrical standards published at 29 C.F.R. ??1926.404 (b) (1) (i) and 1926.405 (a) (2) (ii) (E), and one other-than-serious violationof the OSHA poster regulation, published at 29 C.F.R. ? 1903.2(a)(1). The total proposedpenalty was $240.All Phase’s president, Paul Puleo, who has represented AllPhase pro se throughout these proceedings, acknowledged that he personally\”accepted delivery of the citations on December 18, 1989,\” which was a Monday.Under section 10(a) of the Act, 29 U.S.C. ? 659(a), All Phase had fifteen working days tofile its notice of contest. In keeping with the Secretary’s published guidelines regardingthe computation of time at 29 C.F.R. ? 1903.21(c), All Phase’s filing period did notinclude four weekend days and two Federal holidays — Christmas on Monday, December 25,and New Year’s Day on Monday, January 1. Thus, All Phase had 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 final orders of theCommission by operation of law on January 10, 1990. The next day, on January 11, 1990, AllPhase’s president Puleo made a telephone call to the OSHA area office in Tampa. TheSecretary does not recount 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 enclosedcitation. Because of the numerous Holidays in the last 3 weeks, my 15 day count did notcoincide with your office’s 15 day count (we differed by 1 day). Accordingly my originalverbal request was rudely denied by your office. Therefore, I would appreciate yourreconsideration for an informal conference.In a letter dated January 24, Area Director Falck responded byinforming Puleo that the citations had become a final order on January 10, 1990, and thatboth the written \”request for an informal conference received on January 16\” andthe earlier \”verbal request [which] was received one day after the citation became afinal order\” were untimely. Falck informed Puleo that, if he disagreed with thisdecision, he could file a written appeal with the Commission’s Executive Secretary.On February 1, Puleo wrote to the Commission’s ExecutiveSecretary, stating in pertinent part:Please be advised this letter is an appeal to the decisionrendered in the enclosed letter from Mr. Falck, Area Director. With the confusion of theChristmas Holidays the 15 day count was off by 1 day and my verbal request to contest thecitation was denied. Also my written appeal to Mr. Falck explaining the uniquecircumstances was rejected.. . . . I firmly believe our Company is being singled out by the Tampa OSHA Office andunfairly cited, rudely communicated with and excessively fined.After the case was docketed with the Commission, the Secretary filed a motion to dismissin which the Secretary treats Puleo’s February 1 letter as All Phase’s notice of contestand seeks dismissal of the notice of contest on the ground that it was untimely filed. Insupport of this motion, the Secretary subsequently filed the affidavit of Area DirectorFalck and a copy of the informational booklet routinely supplied by the OSHA area officeto employers informing them of the procedures for contesting citations. Area DirectorFalck’s affidavit states: \”I caused a search to be made of the official record inthis case and found that no notice of contest was filed with or through this office bythis employer with respect to the above Citations and Notifications of Penalty untilFebruary 1, 1990, approximately 45 days after receipt of the Citations and Notificationsof Penalty by the respondent.\”After receiving a letter dated March 23, 1990 from JudgeSalyers informing All Phase that its notice of contest might be dismissed, All Phaseresponded to the Secretary’s motion in an April 3, 1990 letter from Puleo to the judge. Inthis letter, Puleo indicated that the citations had arrived at a hectic time when AllPhase’s entire management team was away from the office of an annual management retreatand its employees were working \”shortened work week[s]\”, including the weekbefore the Christmas holidays, which was the week the citation arrived. Puleo alsoexpanded on his earlier claim about miscalculating the end of the fifteen- working-daycontest period: \”All Phase Electric had counted the days on the calendar, with allgood intentions; however, the count was off by just one day because we thought thegovernmental offices had more days off for the holidays.\” The letter also contains astatement that could be construed as a claim that the violations in question were due tounpreventable employee misconduct: \”[Trying to make a better workplace for myemployees] is very difficult to do at times, especially when the employees themselves arenot attempting to follow the regulations as set forth by OSHA and All PhaseElectric.\”After considering the Secretary’s motion and the employer’sresponse, Judge Salyers entered his order granting the motion. Although he treated AllPhase’s first letter (dated January 11) as its notice of contest, he found that itwas not filed within the statutory time limit. He further found that nothing in theRespondent’s April 3 letter \”would afford respondent relief from the late filingunder Rule 60 of the Federal Rules of Civil Procedure,\” citing Roy Kay, Inc., 13BNA OSHC 2021, 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).AnalysisThe direction for review in this case raises the question of whether the Respondent’smiscalculation of the final day for filing a notice of contest should be classified as a\”mistake\” or \”excusable neglect\” within the meaning of Rule 60 (b) ofthe Federal Rules of Civil Procedure. However, we need not reach the issue of whether thislateness was excusable because we conclude that All Phase did not file a notice ofcontest. In its January 11, 1990 letter to the Secretary, Respondent did not express anintent to contest the citations; rather, in that letter, Respondent simply requested aninformal conference. We also note that Puleo’s January 11, 1990 telephone call to the areaoffice was not a notice of contest. In a letter written three weeks after the citationbecame a final order, Puleo described that telephone call as \”a verbal request tocontest the citation.\” However, the Commission has held that an oral notice ofcontest is not a sufficient means of contesting a citation, even if it was made within thefifteen-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 timelycontest the citations in this case, and we affirm the order of the administrative lawjudge granting the Secretary’s motion to dismiss.Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerDated: October 4, 1991SECRETARY OF LABOR,Complainant,v.ALL PHASE ELECTRIC &MAINTENANCE, INC.,Respondent.OSHRC Docket No. 90-0505ORDER GRANTING MOTION TO DISMISS NOTICE OF CONTESTThis matter is before the undersigned upon the Secretary’sMotion to Dismiss Notice of Contest as untimely filed and supported by an affidavit of theArea Director.The Occupational Safety and Health Act (29 U. S. C. ? 651, etseq.) specifies in section 10 that a notice of contest not filed with the Secretarywithin fifteen (15) working days \”shall be deemed a final order of the Commission andnot subject to review of any court or agency.\”It appears in the record that the citation and notification ofpenalty in this matter was issued by the Area Director on December 13, 1989, and wasreceived by respondent on December 18, 1989. Respondent’s notification of intent tocontest dated January 11, 1990, was received in the Area Director’s office on January 16,1990. Accordingly, respondent’s notice of contest was not filed within the periodspecified in the statute.Upon receipt of the Secretary’s motion, this court directed aletter to Mr. Paul Puleo, president of respondent corporation, dated March 23, 1990,requesting to be advised of any reasons why this motion should not be granted (Ex. J-12).The court has now received a letter from respondent dated April 3, 1990 (Ex. J-13), andhas considered its contents. In essence, nothing contained therein would afford respondentrelief from the late filing under Rule 60 of the Federal Rules of Civil Procedure.The circumstances of this case are controlled by Roy Kay,Inc., 13 BNA OSHC 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’s notice of contest isdismissed, and the Secretary’s citation has become a final order of the Review Commissionby operation of law.Dated this 24th day of May, 1990.EDWIN G. SALYERSJudgeFOOTNOTES: [[1]] Commissioner Montoya did not participate in the deliberation or issuance of thisdecision.”