Dore & Associates Contracting, Inc.

Plain-English summary

Dore & Associates filed its notice contesting OSHA citations after the statutory 15-working-day deadline. The judge dismissed the late contest and affirmed $8,400 in proposed penalties because Dore had not established grounds for relief from the final order. In its review petition, the company said its former counsel had been away from work with a back injury. Because the record contained no hearing evidence or affidavits sufficient to evaluate that claim, the Commission reversed and remanded for an evidentiary proceeding on whether the late filing should be excused.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 659(a)
• Outcome: Dismissal of the late notice of contest reversed and case remanded for an evidentiary proceeding
• Key point: A self-represented employer received an opportunity to build a factual record supporting relief from a final order based on excusable neglect.

Full text (OSHRC public release)

                     United States of America
     OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                 1120 20th Street, N.W., Ninth Floor
                    Washington, DC 20036-3457

SECRETARY OF LABOR,
Complainant,
v. OSHRC Docket No. 01-0067
DORE & ASSOCIATES CONTRACTING, INC.
Respondent.

                       DECISION AND REMAND ORDER

Before: ROGERS, Chairman; EISENBREY, Commissioner.
BY THE COMMISSION:
This matter is before the Commission on an order directing review of a decision by
Chief Administrative Law Judge Irving Sommer granting the motion by the Secretary of
Labor (“Secretary”) to dismiss as untimely the notice of contest filed by Respondent
(“Dore”). We reverse and remand for additional evidentiary findings as set forth herein.
Following an inspection, the Secretary cited Dore on September 21, 2000 for several
serious and other than serious violations of the Occupational Safety and Health Act of 1970,
29 U.S.C. 651-§§ 678 (“the Act”), for which the Secretary proposed a penalty of $8400. Dore
received the citations on September 25 but did not file a notice of contest within the statutory
time period of 15 working days following receipt as set forth in section 10(a) of the Act, 29
U.S.C. 659(a). On October 30, and again on November 28, Dore’s then “general counsel,”
Kelly M. Breckenridge, wrote to the Occupational Safety and Health Administration’s Area
Office stating that she had not received the citation and notification of proposed penalty until
after the contest period had elapsed. In her October 30 letter counsel requested the
opportunity to discuss a settlement and reduction of the penalty and in her second letter
counsel asked for “an opportunity to respond to these allegations.” Thereafter Dore, now
 2

appearing pro se, advised the Commission that “former counsel[] is no longer with our
company as of December 1, 2000 and it appears that this matter had been left unattended.”
Dore also informed the Commission that the letters from its prior counsel were intended to
serve as a notice of contest. The Commission then docketed the case, and it was assigned to
Judge Sommer.
The Secretary filed a motion asking that Dore’s notice of contest be dismissed for the
reason that Dore had provided no explanation as to why counsel was unable to handle the
citation and penalty notification in a timely fashion.1 Judge Sommer, citing Branciforte
Builders, Inc., 9 BNA OSHC 2113, 2116-17, 1981 CCH OSHD ¶ 25,591, pp. 31,921-22
(No. 80-1920, 1981), noted that unless the Secretary is shown to have engaged in some type
of misconduct, a late notice of contest can otherwise be entertained only under Fed. R. Civ.
P. 60(b). The judge concluded that Dore had not presented grounds for relief under this rule
because it had not established that its untimely filing was due to “mistake, inadvertence,
surprise or excusable neglect” or other reasons “such as illness, or a disability which would

1
We note that Commission rule 40(a), 29 C.F.R. § 2200.40(a), requires a party to “confer or
make reasonable efforts to confer” with the other party prior to filing a motion and state in
the motion if the other party “opposes or does not oppose the motion.” The Secretary
apparently did not comply with the rule here.
 3

prevent a party from protecting its interests.”2 Accordingly, the judge affirmed the citations
and notification of proposed penalty.
Dore, continuing to appear pro se, then filed a petition with the Commission for
discretionary review of the judge’s decision, claiming that it inadvertently failed to file a
timely notice of contest because its former counsel “had been off work due to a back related
injury.”3 On the limited record before us here we cannot determine whether Dore has
established a basis to excuse the untimely filing of its notice of contest. In this case, as in
Vern’s Mfg., Inc., 14 BNA OSHC 1846, 1987-90 CCH OSHD ¶ 29,113 (No. 89-3082, 1990)
and Mannkraft Corp., 1993-95 CCH OSHD ¶ 30,254 (No. 93-304), where we remanded to
allow an employer appearing pro se to present evidence in support of its request for relief
under Rule 60(b), there has been no evidentiary hearing nor any affidavits filed from which
we can make factual findings on the merits of Dore’s claim for relief from a final order. In
conformity with our usual practice, we will remand this matter to allow the Administrative

2
Fed. R. Civ. P. 60 provides in pertinent part as follows:
Rule 60. Relief From Judgment or Order
....
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered
Evidence; Fraud; Etc. On motion and upon such terms as are just, the court
may relieve a party . . . from a final judgment, order, or proceeding for the
following reasons: (1) mistake, inadvertence, surprise, or excusable neglect
. . . . or (6) any other reason justifying relief from the operation of the
judgment.
Section 10(a) of the Act provides that unless timely contested, a citation and notification of
proposed penalty “shall be deemed a final order of the Commission and not subject to review
by any court or agency.”
3
We note, however, that Breckenridge herself, in her two letters requesting relief from her
failure to file a notice of contest, did not mention a back injury. Rather, she claimed only that
the citation and notification of penalty had not reached her desk in time for her to respond.
 4

Law Judge to conduct an appropriate evidentiary proceeding. See Merchant’s Masonry, Inc.,
18 BNA OSHC 1936, 1999 CCH OSHD ¶ 31,931 (No. 99-189, 1999) (remand to afford
employer an opportunity to make showing on a full evidentiary record).
Accordingly, this matter is remanded for further proceedings consistent with this
opinion.

                                                  /s/
                                                  Thomasina V. Rogers
                                                  Chairman



                                                  /s/
                                                  Ross Eisenbrey
                                                  Commissioner

Dated: May 24, 2001
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

                                      :

SECRETARY OF LABOR, :
:
Complainant, :
:
v. : Docket No. 01-0067
:
DORE & ASSOCIATES CONTRACTING, :
INC., :
:
Respondent. :
:
:

                           DECISION AND ORDER


   This case is before the Occupational Safety and Health Review Commission (``the

Commission'') pursuant to Section 10 of the Occupational Safety and Health Act of 1970, 29
U.S.C. Sec. 651 et seq (the Act''), to determine whether the Secretary's motion to dismiss Respondent's untimely notice of contest should be granted. Respondent has filed no response to the motion. BACKGROUND The Occupational Safety and Health Administration (OSHA'') inspected a work site of
Respondent, resulting in the issuance of two citations and notification of penalties on
September 21, 2000. Pursuant to Section 10(a) of the Act, Respondent was required to notify
OSHA of its intent to contest the citations within 15 working days of its receipt of the
citations, and failure to do so would result in the citations and penalties becoming a final
judgement of the Commission by operation of law. It is undisputed that the citations setting
forth the alleged violations and proposed penalties were sent by certified mail and received
by the Respondent on September 25, 2000.The statutory notice of contest period ended on
October 17, 2000 and a notice of contest was not filed by the Respondent on or before said
date. By letter dated October 30, 2000 the general counsel for the Respondent informed
OSHA that ``I did not receive the citation and notice of penalty until the 15 day period had
already passed'' and asked that the said time period be waived. On November 28,

                                         -2-

2000, the general counsel further inquired about this matter stating, As I wrote to you at the that time, the paperwork from your organization did not make it to my desk until after the 15 day period was had already lapsed.'', and asked to be able to respond to the allegations. DISCUSSION The record plainly shows that the Respondent did not file its notice of contest within the 15 day period. An otherwise untimely notice of contest may be accepted where the delay in filing was caused by deception on the part of the Secretary or by the Secretary's failure to follow proper procedures. An employer is also entitled to relief under the Federal Rules of Civil Procedure 60(b)(1) if it establishes that the Commission's final order was entered as a result ofmistake, inadvertence, surprise or excusable neglect, or under 60(b)(6) for any other reason justifying relief'', including mitigating circumstances such as illness, or a disability which would prevent a party from protecting its interests. Branciforte Builders, Inc., 9 BNA 2113.There is no contention that the Secretary acted improperly in this matter. The cover letter accompanying the citations states on page 2 under the heading RIGHT TO CONTEST as follows:You have the right to contest this Citation and
Notification of Penalty. You may contest all citation items or only individual items. You may
also contest proposed penalties and/or abatement dates without contesting underlying
violations. Unless you inform the Area Director in writing that you intend to contest the
citation(s) and /or proposed penalty(ies) within 15 working days after receipt, the citation(s)
and the proposed penalty(ies) will become a final order of the Occupational Safety and
Health Review Commission and may not be reviewed by any court or agency.
 The Commission has held that the OSHA citation plainly state(s) the requirement to file a notice of contest within the prescribed period''. Additionally, the Commission has held that an employermust bear the burden of its own lack of diligence in failing to
carefully read and act upon the information contained in the citations'' and that Rule 60
cannot be invoked to ``give relief to a party who has chosen a course of action which in
retrospect appears unfortunate or where error or miscalculation is traceable to a lack of
care''.Accrom Constr. Serv., 15 BNA 1123,1126.

                                        -3-


  The Respondent had clear notice of the need to contest within the 15 working day

period, and it is responsible for its failure to act promptly to its government mail. The
circumstances here are insufficient to establish entitlement to relief under Rule 60.

                                     ORDER
   For the reasons set out above, the Secretary's motion to dismiss the notice of contest

is GRANTED, and the citations and notification of penalties is AFFIRMED in all respects.

                                                        /s/
                                              IRVING SOMMER
          22 April 2001                            Chief Judge

DATED:
Washington, D.C.