Simon Roofing and Sheet Metal, Inc.

Plain-English summary

A temporary employee signed for Simon Roofing's OSHA citation, but the document was misplaced and did not reach the corporate safety manager until months after the contest deadline. The judge held that businesses must maintain orderly procedures for handling important documents and that employee mishandling caused by deficient procedures is simple negligence, not excusable neglect. Simon's later adoption of a stricter certified-mail process reinforced that the earlier process was inadequate. The late notice of contest was dismissed and the citation was affirmed in all respects. The Commission later reviewed this order.

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; the Commission later reviewed the order.
• Key point: Misplacing a citation through deficient internal mail procedures is generally within the employer's control and does not establish excusable neglect.

Full text (OSHRC public release)

SECRETARY OF LABOR,

     Complainant,

               v.                                OSHRC Docket NO. 03-0640

SIMON ROOFING AND SHEET
METAL, INC

       Respondent.

Appearances:

           Jennifer Marciano, Esquire                      Samuel J. Samaro, Esquire
           U.S. Department of Labor                        Pashman Stein
           New York, New York                              Hackensack, New Jersey
           For the Complainant.                            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(c) 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. A hearing in this regard was
held on October 9, 2003, in New York, New York. Only Respondent has filed a post-hearing brief.
Background
The Occupational Safety and Health Administration (“OSHA”) inspected a work site of
Respondent, Simon Roofing and Sheet Metal, Inc. (“Simon”), on November 19, 2002. On November
29, 2002, OSHA issued to Simon a Citation and Notification of Penalty (“Citation”). OSHA mailed
the Citation to Simon by certified mail, return receipt requested, and, on December 4, 2002, a
temporary employee of Simon signed for the Citation. Section 10(a) of the Act requires an employer
to notify the Secretary of the intent to contest a citation within 15 working days of receipt, and the
failure to file a timely notice of contest (“NOC”) results in the citation becoming a final order of the
Commission by operation of law. Based on the date that it received the Citation, Simon was required
to file its NOC by December 26, 2002. However, Simon did not file an NOC by that date, due to the
fact that the Citation had been misplaced after it was received. On March 19, 2003, Simon’s
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corporate safety and health manager called OSHA and spoke with the assistant area director
(“AAD”), explaining that she had just become aware of the Citation. The AAD advised her that the
Citation was already a final order and provided her the Commission’s address. The safety manager
sent a letter to the Commission on March 21, 2003, requesting, in effect, that Simon’s late NOC be
accepted under the circumstances. The Secretary filed her motion to dismiss on June 6, 2003, and
Simon filed its opposition to the motion on June 16, 2003. (Tr. 4-16; C-1-3).
Discussion
The record plainly shows that Simon did not file an NOC within the requisite 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, pursuant to Federal Rule of Civil Procedure 60(b) (“Rule 60(b)”), 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).
At the hearing, Benita Thompson, Simon’s corporate safety and health manager, testified that
she is the person who would receive matters such as the Citation in this case. She recognized the
signature on the certified mail return receipt card as that of the temporary employee who was
working for Simon at the time the Citation was issued, and she surmised that Simon’s receptionist
had been away from her desk for some reason and that the temporary employee had signed for the
Citation, after which it was misplaced.1 Ms. Thompson said the practice then was for the receptionist
to sign for certified mail and to distribute it accordingly. She also said the receptionist would have
known to give her the Citation and that although she (Thompson) was in Simon’s Baton Rouge
office at that time, the Citation would have been brought to her attention if it had not been misplaced.
She explained that the practice was for the office manager to call her once or twice a week when she
was out of the office in order to go over all of the mail that was in her box; she further explained that
she would then tell the office manager what to do with any correspondence she had received. Ms.
Thompson noted that after this incident, Simon had put a new procedure in place for handling

    1
    Ms. Thompson said she had discovered the Citation about mid-March; she was reviewing

the mail in her box, and the Citation was there among the current mail. (Tr. 14).
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certified mail; certain designated full-time employees in the office are the only ones who are allowed
to sign for certified mail, and, after the certified mail is signed for, it is taken directly to the person
for whom it is intended, and that person also signs for it. (Tr. 11-16).
As indicated above, the issue here is whether the misplacing of the Citation, which resulted
in the late-filed NOC, may be deemed “excusable neglect” under Rule (60)(b) such that Simon may
be granted relief from the Citation’s having become a final order. The Commission has held that a
key factor in determining whether a late filing was due to excusable neglect is “the reason for the
delay, including whether it was within the reasonable control of the movant.” CalHar Constr., Inc.,
18 BNA OSHC 2151, 2153 (No. 98-367, 2000), citing to Pioneer Inv. Serv. v. Brunswick Assoc., 507
U.S. 380, 395 (1993). The Commission has also held that a business must maintain orderly
procedures for the handling of 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 an employee’s
mishandling or misplacing the citation or the failure of the employee who received the citation to
bring it to the attention of proper company officials. J.F. Shea Co., 15 BNA OSHC 1092, 1094
(No.89-976, 1991); Louisiana-Pacific Corp., 13 BNA OSHC 2020, 2021 (No. 86-1266, 1989);
Stroudsburg Dyeing & Finishing Co., 13 BNA OSHC 2058 (No. 88-1830, 1989).
Based on the evidence and the foregoing Commission precedent, I conclude that the late
filing here was due to Simon’s lack of proper procedures for the handling of important documents.
Although Ms. Thompson testified that the temporary employee was assisting with Simon’s accounts
and was not working as a receptionist, it is clear that she signed for the subject Citation, and she may
well have done so on a number of occasions. (Tr. 13). Further, Simon should have known that other
individuals, including the temporary employee, would accept mail in the absence of the receptionist
and should have had a procedure geared towards preventing what happened here. Finally, that Simon
instituted a new procedure after this incident indicates that the previous procedure was deficient. I
am sympathetic to Simon’s plight, and I am well aware of the large penalty involved in this matter.
However, I am constrained to decide cases based upon the facts and circumstances presented and
upon Commission precedent. The employer has the burden of showing it is entitled to relief, and
Simon, in my opinion, has not established a reason that would justify the granting of Rule 60(b)
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relief in this case. The Secretary’s motion to dismiss Simon’s NOC as untimely is therefore
GRANTED, and the Citation is AFFIRMED in all respects.2
So ORDERED.

                                                 /s/
                                                 Irving Sommer
                                                 Chief Judge

Date: November 24, 2003
Washington, D.C.

   2
     In deciding this matter, I have noted Simon’s citing to J.I. Hass Co. v. OSHRC, 648 F.2d

190 (3d Cir. 1981), and to Pioneer Inv. Serv. Co. v. Brunswick Assoc., 507 U.S. 380 (1993).
However, as I read it, J.I. Hass holds only that the Commission has the authority to consider a late
NOC under Rule 60(b). 648 F.2d at 195. Further, in reaching my decision, I have used that portion
of the test for “excusable neglect” set out in Pioneer that the Commission considers key, that is,
whether the reason for the late filing was within the reasonable control of the movant.