Amana Construction Co., Inc.

Plain-English summary

OSHA issued Amana Construction a citation alleging serious violations and proposing a $7,800 penalty. The company received the certified mailing but lost it without opening it and did not contact OSHA for replacement documents. The judge found that the company missed the 15-working-day contest deadline because of simple negligence, not excusable neglect. He dismissed the late notice of contest and affirmed the citation and proposed penalty in full.

Decision snapshot

• Cited standard(s): The decision does not identify the substantive standards in the citation.
• Outcome: Late notice of contest dismissed; citation and $7,800 proposed penalty affirmed in full.
• Key point: Losing an unopened OSHA mailing and failing to request a replacement does not excuse a missed contest deadline.

Full text (OSHRC public release)

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SECRETARY OF LABOR, :
:
Complainant, :
:
v. : OSHRC DOCKET N0. 02-0042
:
AMANA CONSTRUCTION CO., INC., :
:
Respondent. :
:
:

Appearances: Terrence Duncan, Esquire Mohammed Khair Hussein
U.S. Department of Labor Amana Construction Company
Office of the Solicitor Paterson, New Jersey
New York, New York For the Respondent.
For the Complainant.

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 notice of contest as untimely should be granted.

                                       Background
      Following an inspection of the Respondent’s work site in Wayne, New Jersey, the

Occupational Safety and Health Administration (“OSHA”') issued a citation alleging serious

violations of the Act and proposing a penalty of $7,800.00. Section 10(a) of the Act requires the

employer to notify OSHA of the intent to contest a citation within 15 working days of receiving it,

and failure to file a timely notice of contest results in the citation and proposed penalty becoming

a final judgment of the Commission by operation of law. OSHA issued the citation to the

Respondent on September 17, 2001, by certified mail, and it was received on September 21, 2001.

Based on this date, OSHA determined that the 15-day period for filing a notice of contest ended on
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October 15, 2001. The Respondent’s representative wrote to the Commission for help in this matter,

stating he had lost the letter from OSHA without opening it and did not know its contents.

                                         Discussion
   The record plainly shows that the Respondent did not file its notice of contest within the

required period. Commission procedure is well settled that an otherwise untimely notice of contest

may be accepted where the delay in filing was caused by deception on the Secretary’s part or by her

failure to follow proper procedures. A late filing may also be excused if the final order was entered

as a result of “mistake, inadvertence, surprise or excusable neglect” or for “any other reason
justifying relief” under Federal Rule of Civil Procedure 60(b). There is no allegation and no evidence

that the failure to file here was caused by deception on the part of the Secretary or her failure to

follow proper procedures. Rather, what is alleged herein is that the Respondent lost the envelope sent

by OSHA containing the citation and the accompanying booklet which described the company’s

rights and responsibilities. The citation which was received by the Respondent clearly stated:

“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.” This same admonition was stated in the OSHA

3000 booklet which accompanied the citation. The Respondent’s representative testified that he had

received the OSHA material in the mail but had lost it and thus had no knowledge of the filing

requirement. He knew it was from OSHA, but he made no effort to call and ascertain its contents or

ask for a copy to be sent. The Respondent’s failure to file a timely notice of contest was thus due to

simple negligence and not excusable neglect, in that he did not maintain proper mail handling

procedures and, further, in that he did not rectify the situation by contacting OSHA and requesting

duplicates of what was lost. Had he done so, and had he read all the documents, he would have been

on notice of the notice of contest filing requirement.
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    While I am sympathetic to the plight of the Respondent, the failure to file a timely notice of

contest was clearly due to simple negligence and not to excusable neglect or any other reason

justifying relief. The Secretary’s motion to dismiss the Respondent’s notice of contest is granted, and

the citation and notification of penalty is affirmed in all respects.

                                                        /s/
                                            IRVING SOMMER
                                            Chief Judge

Dated: September 3, 2002
Washington, D.C.