CIR Electrical Construction Corp.

Plain-English summary

CIR Electrical filed its notice of contest after the 15-working-day deadline and did not respond to the Secretary's dismissal motion. The company explained that the citation had been placed on the desk of its controller, who was briefly out sick, and was not found until the controller returned. The judge held that employers must maintain orderly procedures for important documents and that mishandling caused by an employee's illness was simple negligence, not excusable neglect. He dismissed the late notice and affirmed the citation in all respects.

Decision snapshot

• Cited standard(s): None specified in this late-filing decision.
• Outcome: The late notice of contest was dismissed and the citation was affirmed in all respects.
• Key point: A responsible employee's brief illness does not excuse a late contest when the employer lacks a backup process for handling an OSHA citation.

Full text (OSHRC public release)

SECRETARY OF LABOR,
Complainant,
v. OSHRC Docket No. 02-1678
CIR ELECTRICAL CONSTRUCTION
CORP.,
Respondent.

                                  DECISION AND ORDER

    The Secretary has filed a motion to dismiss Respondent’s notice of contest (“NOC”) as

untimely. Respondent has filed no response to the motion.
Background
The Occupational Safety and Health Administration (“OSHA”) inspected a work site of
Respondent CIR Electrical Construction Corp. (“CIR”) on August 12, 2002. As a result, OSHA
issued CIR a Citation and Notification of Penalty (“Citation”) on August 26, 2002. OSHA mailed
the Citation by certified mail, return receipt requested, and CIR received the Citation on August 27,
2002. Section 10(a) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. (“the
Act”), requires an employer to notify the Secretary of the intent to contest the Citation within 15
working days of receipt, and the failure to file a timely NOC results in the Citation becoming a final
order of the Occupational Safety and Health Review Commission (“the Commission”) by operation
of law. Based on the date it received the Citation, CIR was required to file its NOC by September
18, 2002. CIR did not file an NOC by that date, but, on September 26, 2002, it submitted a letter to
OSHA indicating its desire for an informal conference and to contest the Citation. In its letter, CIR
admitted that it had not filed its NOC within the requisite 15 days. CIR explained that the late filing
was due to the Citation being put on the desk of the company controller, who was out due to a brief
illness, and that the Citation was not discovered until the controller’s return to the office. In a letter
 2

to the Commission dated September 30, 2002, CIR asked that its NOC be accepted, noting that
OSHA had not accepted the NOC and had denied its request for an informal conference.
Discussion
The record clearly shows that CIR did not file an NOC within the required 15 working day
period. However, an otherwise untimely NOC may be accepted where the delay in filing was caused
by deception on the part of the Secretary or 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 “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)
(“Rule 60(b)”). There is no indication and no contention that the late filing here was caused by the
Secretary’s deception or failure to follow proper procedures. Rather, CIR is in essence requesting
that the untimely filing, which was due to the Citation being placed on the controller’s desk and not
being discovered until the controller returned to the office after a brief illness, be excused. These
circumstances do not justify Rule 60(b) relief, for the following reasons.
Commission precedent is well settled 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). The Commission has also held that ignorance of procedural
rules does not constitute “excusable neglect” and that mere carelessness or negligence does not
justify relief. 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). Finally, the Commission has
held that “a business must maintain orderly procedures for handling important documents” and that
when the lack of such procedures results in an untimely NOC the late filing will be deemed to be
simple negligence and not excusable neglect. Louisiana-Pacific Corp., 13 BNA OSHC 2020, 2021
(No. 86-1266, 1989). The Commission has accordingly denied Rule 60(b) relief in cases where the
late filing was due to mishandling the citation, changes in management, or illness of the individual
responsible for OSHA matters. See, e.g., Louisiana-Pacific Corp., 13 BNA OSHC 2020, 2021 (No.
 3

86-1266, 1989); J.F. Shea Co., 15 BNA OSHC 1092, 1094 (No. 89-976, 1991); E.K. Constr. Co.,
15 BNA OSHC 1165, 1166 (No. 90-2460, 1991).
While I am sympathetic to CIR’s plight in this matter, I am constrained to follow
Commission precedent. On the basis of that precedent, set out supra, and in view of the
circumstances of this case, CIR is not entitled to Rule 60(b) relief.1 The Secretary’s motion to
dismiss is accordingly GRANTED, and the Citation is AFFIRMED in all respects.
So ORDERED.

                                                 /s/
                                                 Irving Sommer
                                                 Chief Judge

Date: December 30, 2002
Washington, D.C.

    1
     In deciding this case in this manner, I am aware of the Second Circuit’s decision, Chao v.

Russell P. Le Frois Builder, Inc., No. 00-4057 (2d Cir. May 10, 2002), holding that the Commission
does not have authority to accept a late-filed NOC pursuant to Rule 60(b). I am also aware that this
case could be appealed to the Second Circuit. However, it is unlikely that CIR would do so, in light
of the Second Circuit’s decision, and, for this reason, I have decided this matter pursuant to Rule
60(b). See HRH Constr. Corp., 19 BNA OSHC 2042, 2044-45 (No. 99-1614, 2002). Regardless, the
end result for Respondent CIR is the same whether this case is decided under Commission precedent
or the Second Circuit’s decision.