Pronto Construction Co., Inc.

Plain-English summary

OSHA personally delivered a second citation to Pronto Construction's president and attorney during a settlement meeting and twice explained the contest deadline. Pronto did not file a notice of contest before that deadline, although an OSHA official later resumed settlement discussions without realizing the citation had already become final. The judge found that personal delivery gave Pronto actual notice and that conversations occurring after the deadline did not cause the late filing. Because the company and its attorney had not carefully read or acted on the citation's instructions, the delay was not excusable neglect. The late contest was dismissed, and the serious and willful citation and proposed penalty were affirmed in full.

Decision snapshot

• Cited standard(s): The decision does not identify the substantive standards in the underlying citation.
• Outcome: Late notice of contest dismissed; serious and willful citation and proposed penalty affirmed in full.
• Key point: Informal settlement discussions do not suspend the 15-working-day contest period, especially when the employer received the citation and was directly told the deadline.

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. 01-1454
:
PRONTO CONSTRUCTION CO., INC., :
:
Respondent. :

Appearances:

             Jeffrey S. Rogoff, Esquire                    Michael P. Tempesta, Esquire
             New York, New York                            Staten Island, New York
             For the Complainant.                          Lewis H. Fishlin, Esquire
                                                           New York, New York
                                                           For the Respondent.

Before: Chief Judge Irving Sommer

                                 DECISION AND ORDER

      This proceeding 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.
§ 651 et seq. (“the Act”), for the purpose of determining whether the Secretary’s motion to dismiss
Respondent’s request to file its notice of contest (“NOC”) out of time should be granted.
On June 19, 2001, the Occupational Safety and Health Administration (“OSHA”) inspected
a work site on Staten Island, New York, where Respondent Pronto Construction (“Respondent” or
“Pronto”) was performing construction work. As a result, OSHA issued Respondent a citation and
notification of penalty alleging serious and willful violations of the Act. Section 10(a) of the Act
requires an employer to notify OSHA of the intent to contest a citation within 15 working days of
receiving it, and the failure to file a timely NOC results in the citation and penalty becoming a final
judgment of the Commission by operation of law. OSHA determined that the NOC filing period in
this case ended on July 18, 2001. Pronto failed to file an NOC by that date, but, on August 1, 2001,
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it filed a letter with the Commission requesting, in essence, that it be permitted to file an NOC out
of time. On August 21, 2001, the Secretary filed a motion to dismiss the request. A hearing was held
on January 30, 2002, in New York, New York. Both parties have filed post-hearing briefs.
Factual Background
The record shows that OSHA first inspected the subject site on April 26, 2001, and, as a
consequence, issued to Pronto a citation and notification of penalty on May 8, 2001.1 On May 29,
2001, Pronto’s president, Mensur Dika, met with Richard Torre, the OSHA assistant area director
(“AAD”), in an attempt to settle the citation, but Mr. Dika believed the penalty was too high and no
settlement occurred. The AAD told Mr. Dika he would need to see his tax returns for the prior three
years before he could further reduce the penalty, and Mr. Dika agreed to drop them off; before Mr.
Dika left his office, the AAD told him that if he wished to contest the citation, he would need to do
so by June 4, 2001. After receiving the returns, the AAD called Mr. Dika on June 1, 2001, to advise
him that one year was missing; he also advised him, again, that if he wanted to contest the citation
he should do so by June 4, after which they could continue to discuss settlement. On June 4, 2001,
Mr. Dika sent OSHA his NOC letter, which contested only the penalty. (Tr. 7-12; 29; 64-65; C-1-2).
On June 19, 2001, the OSHA compliance officer (“CO”) who had conducted the initial
inspection called AAD Torre to tell him that, on his way to another site, he had gone by the subject
site and observed safety hazards similar to those he had seen during his first inspection. The AAD
directed the CO to inspect the site again, and two days later, on May 21, 2001, the AAD further
directed the CO to contact Mr. Dika and ask him to come into his office to continue their settlement
discussions. On the afternoon of May 21, 2001, Michael Tempesta called the AAD and identified
himself as Mr. Dika’s attorney. Mr. Tempesta asked why he wanted to see his client, and the AAD
explained that they were still trying to settle the first citation. Mr. Tempesta also asked why his client
had been inspected again, and the AAD explained why and the fact that a second citation would be
issued.2 Mr. Tempesta and the AAD set up a meeting for June 26, 2001. (Tr. 12-17; 37-39; 47-51).

    1
    The initial citation, which alleged serious and “other” violations, was sent to Respondent’s

business address by certified mail, return receipt requested. (Tr. 9-10; C-1).
2
Although the citation states on its face that it was issued on June 19, 2001, it had not yet
(continued...)
 3

   The June 26 meeting was held in the OSHA area office. Mr. Tempesta and Mr. Dika were

present, as were AAD Torre, the CO who had inspected the site, and Robert Kulick, the OSHA area
director (“AD”). AD Kulick said there were two citations to discuss, and, when he asked if they
wanted to combine them or settle them individually, Mr. Tempesta and Mr. Dika stated they wanted
to combine them. AD Kulick then said he had the citation from the second inspection and handed
an envelope to Mr. Tempesta, who opened it and began reviewing the citation with Mr. Dika. The
AD told Mr. Tempesta and Mr. Dika that they had 15 working days to have an informal conference
or settle the citation and that otherwise they would need to file a written NOC by June 17, 2001.3 Mr.
Tempesta and Mr. Dika informed the OSHA officials that the penalty was too high, and the meeting
concluded with no settlement taking place.4 However, before they left, AD Kulick again told Mr.
Tempesta and Mr. Dika that they had 15 working days to contest the citation. He also said that they
should get back to him with an offer. (Tr. 16-22; 28-30; 39-41; 49-53; 65-66; C-3).
AAD Torre was out of the office the first three weeks of July 2001, due to business meetings
and a vacation. When he returned on July 23, 2001, the Pronto files were on his desk, and, having
many matters to attend to and not being aware that the NOC filing period was over, he called Mr.
Tempesta to continue to attempt a settlement. The AAD made an offer to Mr. Tempesta that day on
the phone, and Mr. Tempesta said he would get back to him. On July 30, 2001, Mr. Tempesta called
the AAD and rejected the offer but made a counteroffer. On July 31, 2001, AAD Torre realized the
second citation had become a final order, and he called Mr. Tempesta to advise him of that fact. Mr.
Tempesta became very irate, pointing out that they had been negotiating. The AAD apologized and
explained that he had been away for three weeks and hadn’t realized that the NOC filing deadline
had ended; he noted, however, that Pronto had been told about the contest period and had not filed

   2
       (...continued)

been delivered to Respondent when the AAD spoke to Mr. Tempesta on June 21. (Tr. 13-17; C-3).
3
AAD Torre testified that the actual filing deadline was July 18, 2001, and that AD Kulick
had failed to take into account the July 4 holiday when he provided the July 17 date. (Tr. 21-22).
4
The first citation ultimately settled. (Tr. 43).
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an NOC by the required date. On August 1, 2001, Mr. Tempesta sent a letter to the Commission
asking that Pronto be allowed to file its NOC. (Tr. 23-27; 30-33; 44; 54-58; C-5).
Discussion
There is no dispute that Respondent Pronto failed to file a timely NOC with respect to the
second citation. Commission precedent is well settled that an otherwise untimely NOC may be
accepted where the delay in filing was caused by deception on the Secretary’s part or her failure to
follow proper procedures. An employer is also entitled to relief if it can show that the Commission’s
final order was entered as a result of “mistake, inadvertence, surprise, or excusable neglect” or “any
other reason justifying relief,” including mitigating circumstances such as absence, illness, or a
disability that would prevent a party from protecting its interests. See Branciforte Builders, Inc., 9
BNA OSHC 2113 (No.80-1920, 1981). See also Fed. R. Civ. P. 60(b). In support of its request that
it be allowed to file an NOC out of time, Pronto contends that OSHA’s serving the citation by hand
at the June 26, 2001 meeting was improper, making the service invalid. Pronto also contends that
misleading statements by OSHA officials vitiated the 15-day filing requirement.
As Respondent asserts, section 10(a) of the Act states that the Secretary, when issuing a
citation to an employer, “shall ... notify the employer by certified mail of the penalty.” However, as
the Secretary notes, the Commission has found personal service acceptable, stating as follows:
[I]f an employer receives actual notice of a citation, it is immaterial to the exercise
of the Commission’s jurisdiction that the manner in which the citation was sent was
not technically perfect.
General Dynamics Corp., Elec. Boat Div., 15 BNA OSHC 2122, 2126 (No. 87-1195, 1993),
(quoting P&Z Co., 7 BNA OSHC 1589, 1591 (No. 14822, 1979).
It is clear from the record that Pronto received actual notice of the citation. AAD Torre
testified that at the meeting on June 26, 2001, AD Kulick handed an envelope containing the citation
to Mr. Tempesta, who opened it and began reviewing the citation with Mr. Dika, his client. (Tr. 18).
Mr. Tempesta also testified in this regard, and he agreed that he had received the citation and
reviewed it with Mr. Dika at the meeting. (Tr. 40; 52-53). On the basis of the record and the
foregoing Commission precedent, Pronto’s first contention is rejected.
As to its second contention, Respondent asserts that AAD Torre misled Mr. Tempesta into
believing that the continuing settlement negotiations extended the NOC period, that the AAD had
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a duty to advise Mr. Tempesta that the NOC period was going to expire, and that these circumstances
vitiated the 15-day filing requirement. I disagree. While it is clear the AAD’s phone conversations
with Mr. Tempesta on July 23 and July 30 fostered the latter’s belief that the NOC filing period was
not yet over, it is equally clear that the AAD in no way intended to mislead or deceive Mr. Tempesta.
However, that the AAD and Mr. Tempesta discussed settlement on July 23 and July 30 is simply not
material. The NOC filing period ended on July 18, 2001, five days before the AAD’s first call to Mr.
Tempesta. Further, AD Kulick advised Mr. Tempesta and Mr. Dika of the filing deadline twice
during the June 26 meeting, and there is no evidence of any other conversations between OSHA and
Pronto before the deadline.5 (Tr. 18; 21-22; 28-29). Mr. Tempesta first testified he had called the
AAD sometime before July 23 and the AAD had not called him back, but he then conceded he had
no record of such a call and was unsure if he had done so.6 (Tr. 56-59). Regardless, the Commission
has held that an OSHA official’s failure to call an employer back, standing alone, does not justify
a late-filed NOC. See CalHar Constr.,Inc., 18 BNA OSHC 2151 (No. 98-367, 2000); Craig Mech.,
Inc., 16 BNA OSHC 1763 (No. 92-372, 1994). Pronto’s second contention is rejected.
The final issue to resolve is whether Respondent’s failure to file a timely NOC was due to
“excusable neglect.” The Commission has held that a key factor in determining if the delay in filing
was due to excusable neglect is “the reason for the delay, including whether it was within the
reasonable control of the movant.” See CalHar Constr.,Inc., 18 BNA OSHC 2151 at 2153, and cases
cited therein. The Commission has also held that the OSHA citation plainly states the requirement
to file an NOC within the prescribed period and that an employer “must bear the burden of its own
lack of diligence in failing to carefully read and act upon the information contained in the citations.”
Roy Kay, Inc., 13 BNA OSHC 2021, 2022 (No. 88-1748, 1989); Acrom Constr. Serv., Inc., 15 BNA
OSHC 1123, 1126 (No. 88-2291, 1991). Finally, the Commission has held that ignorance of
procedural rules does not constitute “excusable neglect” and that mere carelessness or negligence

   5
    Although the July 17, 2001 date that AD Kulick gave them was incorrect, this fact would

be material only if the date provided had been later than the actual filing date.
6
The AAD said it was possible he had a message on his voice mail from Mr. Tempesta when
he got back to the office, but he could not recall if this was actually the case. (Tr. 36-37)
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does not justify relief.7 Acrom Constr. Serv., Inc., 15 BNA OSHC 1123, 1126 (No. 88-2291, 1991);
Keefe Earth Boring Co., 14 BNA OSHC 2187, 2192 (No. 88-2521, 1991).
As the Secretary notes, the citation itself stated the requirement to file an NOC within 15
working days after receipt; the citation also stated that the “running of this contest period is not
interrupted by an informal contest.” See C-3, p. 2. As the Secretary further notes, the “OSHA 3000”
informational pamphlet provided with the citation contained similar language. See C-4, pp. 9-11.
However, Mr. Tempesta admitted he had only “skimmed” the citation after the June 26 meeting and
that he had probably not read the OSHA 3000 pamphlet until after the AAD told him that the filing
period had expired. (Tr. 44; 53-55). In addition, the record shows that Mr. Tempesta and Mr. Dika
were advised twice at the June 26 meeting of the NOC filing date, but that, despite these warnings,
no NOC was submitted. (Tr. 18; 21-22; 28-29). Finally, the record shows that Mr. Dika was aware
of the NOC filing requirement due to his experience with the first citation. (Tr. 28-29; 65).
In view of the facts of this case and the Commission precedent set out above, I conclude that
Respondent’s failure to file an NOC was not due to “excusable neglect” or “any other reason
justifying [Rule 60(b)] relief.” I have considered the fact that Pronto is a small company and that
the penalties proposed for the second citation are not insubstantial; I have also considered the fact
that Mr. Tempesta was representing Mr. Dika on a pro bono basis because of their friendship and
that Mr. Tempesta had no prior experience in OSHA matters. (Tr. 38-43). I am sympathetic to
Respondent’s plight, but I am constrained to base my decision on the record and the Commission
precedent noted supra. Accordingly, the Secretary’s motion to dismiss is GRANTED, and the
citation and notification of penalty is AFFIRMED in all respects. So ORDERED.

                                                      /s/
                                                  Irving Sommer
                                                  Chief Judge

Dated: 25 MAR 2002
Washington, D.C.

   7
   Attorney negligence likewise is no excuse, as employers are bound by the acts and/or

omissions of their chosen counsel. Byrd Produce Co., 16 BNA OSHC 1268 (Nos. 91-823-24 , 1993).