Inglett & Stubbs, Inc.

Plain-English summary

Inglett & Stubbs was an electrical contractor whose employee died after being caught between a scissor lift guardrail and a structure. OSHA cited the company for moving the lift without a competent person and for inadequate scissor-lift training. The citation reached the company's office, but it was routed to payroll instead of the safety director and did not reach the president until after the contest deadline. The judge found that this internal mail-handling failure was negligence, not excusable neglect. The late contest was dismissed, both serious items were affirmed, and penalties totaling $9,000 were assessed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.451(f)(7); 29 C.F.R. § 1926.454(a)
• Outcome: Late contest dismissed; two serious items affirmed; $9,000 total penalty assessed.
• Key point: A citation misrouted within the employer's own office does not excuse a missed contest deadline.

Full text (OSHRC public release)

Inglett & Stubbs, Inc.
01-1915

APPEARANCES

           Frances B. Schleicher, Esq.                   Mr. Jeffrey V. Giglio, President
           Office of the Solicitor                       Inglett & Stubbs, Inc.
           U. S. Department of Labor                     Mableton, Georgia
           Atlanta, Georgia                                       For Respondent
                    For Complainant

Before: Administrative Law Judge Ken S. Welsch

                         DECISION AND ORDER DISMISSING
                          UNTIMELY NOTICE OF CONTEST
   Inglett & Stubbs, Inc. (ISI), is an electrical contractor in Atlanta, Georgia. On June 13,

2001, at an office construction site, an ISI employee was suffocated when the scissor lift he was
riding was wedged under a structure. As a result of the fatality, the Occupational Safety and
Health Administration (OSHA) conducted an inspection on June 14, 2001. A serious citation
was issued to ISI on September 10, 2001.
The serious citation alleges violations of 29 C.F.R. § 1926.451(f)(7) for moving the
scissor lift by an employee who was not a competent person and 29 C.F.R. § 1926.454(a) for
failing to train employees in the proper use of scissor lifts. A penalty of $4,500 was proposed for
each alleged violation.
ISI’s notice of contest to the citation was filed on October 29, 2001, more than 15 days
from receipt of the citation. The Secretary moves to dismiss the notice of contest as untimely.
A show cause hearing was held on February 26, 2002, in Atlanta, Georgia. ISI was
represented by its president Jeffrey Giglio. The parties offered documents and made closing
arguments. The issue for determination is whether justifiable circumstances existed in the late
filing of ISI’s notice of contest to waive the 15-working day statutory requirement.
For the reasons discussed, justifiable circumstances are not found and ISI’s notice of
contest is dismissed as untimely. The citation issued on September 10, 2001, is affirmed.

                                         The Citation

ISI, an electrical contractor with offices in Mableton, Georgia, employs approximately
600 employees. Approximately 30 employees work at the main office. ISI’s annual revenues are
a hundred million dollars. Ninety percent of its business is in Georgia. ISI has been in business
for 46 years. Although never having participated in an OSHA hearing, ISI has received prior
OSHA citations which were resolved (Tr. 13, 19-20).
In June, 2001, ISI was performing electrical work at twin 14-story office buildings for
Bell South in Atlanta, Georgia. ISI had been working at the project for approximately one year
with 50 employees. On June 13, 2001, an ISI employee was suffocated when the scissor lift on
which he was standing caught him between the guardrail on the scissor lift and a structure. This
was ISI’s first fatality (Tr. 14-15, 23).
On June 14, 2001, OSHA investigated the accident. ISI’s safety director Phil Huff
participated in the inspection. President Giglio and safety director Huff were aware that OSHA
intended to issue a citation to ISI and were waiting for its receipt (Tr. 15-16).
The OSHA citation was issued on September 10, 2001, alleging violations of 29 C.F.R.
§§ 1926.451(f)(7) and 1926.454(a), involving employees’ use and training on the scissor lift. A
total penalty of $9,000 was proposed.
The citation was received by ISI on September 11, 2001 (Exh. C-1). According to ISI, its
receptionist, who handles incoming mail, stamped it received on September 20, 2001 (ALJ Exh.
1; Tr. 16, 20). The notice of contest was due October 2, 2001.1 For reasons unknown to
president Giglio, the citation was forwarded to the payroll clerk’s office (Tr. 21). It should have
been sent to safety director Huff (Tr. 21). President Giglio was not aware of the citation until
October 26, 2001 (Tr. 17, 21-22). ISI filed its notice of contest on October 29, 2001, and
requested “an extension of the appeal deadline” (ALJ Exh. 1). ISI acknowledges that the citation
was “definitely in our office during that period” (Tr. 22).

                                               Discussion
    Section 10(a) of the Occupational Safety and Health Act (Act) provides that unless the

notice of contest is filed withing 15 working days of receipt, the citation and assessment of

    1
     Even if ISI had received the citation on September 20, 2001, its notice of contest would have been due on

October 11, 2001, still well before its receipt on October 29, 2001.
penalty “shall be deemed a final order of the Commission and not subject to review by any court
or agency.” 29 U.S.C. § 659. There is no dispute that ISI filed its notice of contest well after the
expiration of the statutory 15-working day period (Tr. 7). ISI’s notice of contest should have
been filed by October 2 and not October 29, 2001. ISI had participated in earlier OSHA
inspections and citations (Tr. 19).
The issue before the court is whether ISI’s untimely filing may be excused in the
circumstances. ISI asserts that its notice of contest was late because of a breakdown in its own
internal mailing procedure and financial problems associated with dissolving another company
(Tr. 16, 19, 22).
The Review Commission has concluded that § 10(a) of the Act does not prevent it from
ruling on whether to grant relief for an employer’s late filing of its notice contest if certain
exceptions exist. Jackson Associates of Nassau, 16 BNA OSHC 1261, 1264 (No. 91-0438,
1993). 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 failure of the Secretary to follow proper
procedures. Also, an employer may be entitled to relief under Rule 60(b)(1) of the Federal Rules
of Civil Procedure, if it is shown that a final order was entered as a result of “mistake,
inadvertence, surprise, or excusable neglect” or under Rule 60(b)(6) for such mitigating
circumstances as absence, illness, or a disability which prevents the party from protecting its
interests. Branciforte Builders, Inc., 9 BNA OSHC 2113, 2117 (No. 80-1920, 1981). The
burden is on the employer to show sufficient basis for such relief. Roy Kay, Inc., 13 BNA OSHC
2021, 2022 (No. 88-1748, 1989).
The circumstances in this case show ISI’s neglect and poor business practices in handling
its mail caused the delay in filing a timely notice of contest. The citation was received by ISI on
September 11, 2001,2 but did not come to the president’s attention until October 26, 2001. As
the Review Commission has observed on numerous occasions, “a business must maintain orderly
procedures for handling important documents.” Louisiana-Pacific Corp., 13 BNA OSHC 2020,
2021 (No. 86-1266, 1989). Rule 60(b)(1) requires a showing of “excusable” neglect rather than
mere negligence or carelessness. The fact that ISI’s own administrative or clerical procedures

    2
     Although September 11, 2001, has been recognized as a day of national tragedy, the events of that day

have no bearing on this case.
may not have been adequate to ensure that the citation was delivered to a company official
authorized to take action does not excuse its untimely filing of its notice of contest. See
Stroudsburg Dyeing & Finishing Co., 13 BNA OSHC 2058 (No. 88-1830, 1989) (the failure of
an employee who received the mail to bring it to the attention of the proper officer does not
justify relief). A business must maintain orderly procedures for the handling of documents, such
as an OSHA citation, and the onus is upon the employer to see that OSHA matters are handled
properly. In this case, the untimely filing was due to ISI’s negligent handling of the citation.
The citation itself bears the essential information alerting an employer how to preserve its
rights. While I am not unsympathetic to ISI’s situation, the circumstances here are insufficient to
establish that it is entitled to relief. ISI had clear notice of the need to contest the citations within
15 days, and its mishandling of mail was neither excusable nor justified by any misconduct or
deception by the Secretary.

                                FINDINGS OF FACT AND
                                CONCLUSIONS OF LAW

    The foregoing decision constitutes the findings of fact and conclusions of law in

accordance with Rule 52(a) of the Federal Rules of Civil Procedure.

                                           ORDER
    Based upon the foregoing decision, it is ORDERED that:
    1.      Citation 1, Item 1, violation of § 1926.451(f)(7), is affirmed as serious and a

penalty of $4,500 is assessed.
2. Citation 1, Item 2, violation of § 1926.454(a), is affirmed as serious and a penalty
of $4,500 is assessed.

                                                       /s/
                                            KEN S. WELSCH
                                            Judge

Date: March 21, 2002