Garabar, Inc.

Plain-English summary

Garabar, a roofing and general contractor, received two serious OSHA citations with $5,400 in proposed penalties on November 16, 2011. Its written contest deadline was December 8, but it did not submit anything until a December 22 letter requesting more time for an informal conference. The company's general manager testified that the letter was not intended as a notice of contest. The judge also rejected Garabar's claim of confusion because the citation clearly required a written contest within 15 working days, and the company had recent experience resolving an earlier OSHA citation. Relief under Federal Rule of Civil Procedure 60(b) was denied, the purported contest was dismissed, and the citations and penalties were affirmed.

Decision snapshot

• Cited standard(s): No specific OSHA standard number is identified in the decision.
• Outcome: The purported notice of contest was dismissed, and two serious citations with $5,400 in penalties were affirmed.
• Key point: Seeking an informal conference does not preserve contest rights when the employer does not timely submit a written notice of contest.

Full text (OSHRC public release)

                                        United States of America
   OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                           1924 Building - Room 2R90, 100 Alabama Street, SW
                                       Atlanta, Georgia 30303-3104

Secretary of Labor,
Complainant,
v.
OSHRC Docket No. 11-3105
Garabar, Inc.,

      Respondent.

Appearances: Melanie L. Paul, Esq., U. S. Department of Labor, Office of the Solicitor
Atlanta, Georgia
For the Complainant

              John Pickerill, General Manager, Garabar
              Lake Worth, Florida
              For the Respondent

Before: Administrative Law Judge Sharon D. Calhoun
DECISION AND ORDER
This matter is before the Occupational Safety and Health Review Commission pursuant
to section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. ' 651 et seq.
(Act), to determine whether relief should be granted pursuant to Federal Rule of Civil Procedure
60(b) (Rule 60(b)) from the final order in this case resulting from Garabar, Incorporated=s
(Garabar) failure to contest the Citation and Notification of Penalty within the prescribed time
period.
For the reasons that follow, Garabar has not shown sufficient basis to warrant relief
pursuant to Rule 60(b).
Background
Garabar is a roofing and general contractor. On October 5, 2011, the Occupational
Safety and Health Administration (OSHA) inspected Garabar’s work site located at 501 North
Ocean Boulevard, Boca Raton, Florida. The inspection was conducted by Compliance Officer
Luis San Miguel (Tr. 17). As a result of the inspection, on November 10, 2011, OSHA issued a
Citation and Notification of Penalty (Citation) to Garabar alleging two serious violations of the
Act and proposing penalties in the amount of $5,400.00. OSHA mailed the Citation to Garabar
at its business address located at 425 Industrial Street, Suite 2, Lake Worth, Florida. Garabar
received the Citation on November 16, 2011, by certified mail (Tr. 98).1 Garabar, however, did
not submit anything in writing regarding the Citation until December 22, 2011, when it filed a
letter with the Executive Secretary of the Commission requesting an extension to participate in
an informal conference (Tr. 105; Dec. 22, 2011 Letter). Based on having received the Citation
on November 16, 2011, the last date to contest the citation was December 8, 2011 (Tr. 37).
Thereafter, on February 13, 2012, the Secretary filed a Motion to Dismiss Respondent=s
Letter/Untimely Notice of Contest alleging that relief is not warranted and that Garabar’s
December 22, 2011, letter is not a contest letter (Secretary’s Motion, pp. 4-10). Garabar did not
file a response to the Secretary’s motion. This matter is before the undersigned based on the
December 22, 2011, purported contest filed by Garabar seeking relief from the final order. The
undersigned held a hearing in this case on April 25, 2012, in Delray Beach, Florida.
Discussion
Pursuant to the requirements of the Act, an employer is required to notify the Secretary of
its intent to contest (notice of contest) a citation within 15 working days of receipt of the citation.
Failure to timely file a notice of contest results in the citation becoming a final order of the
Commission by operation of law. The record in this case reveals Garabar did not file a notice of
contest within the requisite 15-working day period set out in the Act. A late notice of contest
may be accepted, however, where it is established that the delay in filing was due to deception by
the Secretary, or where the delay was caused by the Secretary’s failure to follow proper
procedures. A late notice of contest also may be excused under Rule 60(b), if the final order was
entered as a result of “mistake, inadvertence, surprise or excusable neglect.” See Branciforte
Builders, Inc., 9 BNA OSHC 2113, 2117 (No. 80-1920, 1981) (citations omitted). The moving
party has the burden of proving it is entitled to relief under Rule 60(b).
The determination of excusable neglect pursuant to Rule 60 (b)(1) is an equitable one,
taking account of all relevant circumstances surrounding respondent’s failure to file a timely
notice of contest, including the danger of prejudice to the Secretary, the length of delay and its
potential impact on the judicial proceedings, the reason for the delay and whether respondent

1
General Manager John Pickering testified that the Citation also had been received by Garabar by fax on
November 14, 2011 (Tr. 98). For purposes of the final contest date, the November 16, 2011, date reflecting service
by certified mail will be used.

                                                    2

acted in good faith. Pioneer Investment Servs. v. Brunswick Assoc., 507 U.S. 380, 395 (1993);
Secretary of Labor v. Craig Mechanical, Inc., 16 BNA OSHC 1763 (No. 92-0372, 1994); Merritt
Electric Company, 9 BNA OSHC 2088 (No. 77-3772, 1981); Henry C. Beck Co., 8 BNA OSHC
1395 (No. 11864, 1980). However, neither a lack of prejudice to the Secretary nor good faith on
the part of respondent in attempting to comply with the statutory filing requirement alone will
excuse a late filing. Fitchburg Foundry Inc., 7 BNA OSHC 1516 (Nos.77-520 & 76-1073,
1979). The Commission has held that whether the reason for the delay was within the control of
the respondent is a “key factor” in determining the presence of “excusable neglect.” A. S. Ross,
Inc., 19 BNA OSHC 1147 (No. 99-0945, 2000); See also Calhar Constr., Inc., 18 BNA OSHC
2151 (No. 98-0367, 2000).
That Garabar did not contest the Citation within the requisite time period is not disputed.
John Pickering, General Manager for Garabar, testified “[i]t was never our intention to actually
contest the citation in the first place. We were strictly looking for a conference to work with
OSHA and to explain what we considered to be significant efforts that we had put in place as far
as safety was concerned” (Tr. 100). Pickering further testified:
Basically, what we want the Court to know is that we did indicate that every step
of the way with communications from the time of the inspection up until the time
of the December 21st or 28th letter2 that we were interested in an informal
conference. That’s what we were interested in, and we were not actually asking
for a notice of contest. We didn’t understand the differences and the implications
between the two.
(Tr. 101-102). Accordingly, the undersigned finds the December 22, 2011, letter to the
Executive Secretary of the Commission is not a notice of contest. Since the December 22, 2011,
letter to the Executive Secretary of the Commission, by Pickering’s own testimony, was not
intended to be a contest, it is not necessary for the undersigned to determine whether its filing
after the 15-working day contest period should be excused. The undersigned will address
excusable neglect nonetheless in considering Garabar’s arguments regarding its late filing. Both
in Garabar’s December 22, 2011, letter and at the hearing, Garabar argues that its late filing was
due to confusion. Garabar asserts it was confused because it did not understand the procedures
for contesting; because it believed the written documentation it had provided to OSHA was

2
The undersigned understands from the context of the testimony, these dates refer to the December 22, 2011, letter
sent to the Executive Secretary of the Commission.

                                                     3

sufficient to indicate its intention to contest; and it was confused by the difference between an
informal conference and a notice of contest.
The undersigned understands Garabar might have been confused initially as to whether it
had to do more than call OSHA to contest the citation because the compliance officer told Ricky
Del Valle, supervisor with Garabar, during the closing conference “they have the right for an
informal conference or to contest the citations and that they would have 15 working days from
the date they received the citation to call to the office” (Tr. 20, 24). This statement
understandably could lead one to believe that all they had to do to contest was call OSHA within
15 working days. However, once the Citation was received, the action required of Garabar was
clarified, as the Citation contained specific instructions on the time period for contesting and
requiring the contest to be in writing (Exh. C-1). The Citation issued to Garabar on
November 10, 2011, included with it instructions in bold underlined type, of the right to contest
within 15 working days and that said contest be in writing (Tr. 36; Exh. C-1). The Commission
has held that the OSHA citation clearly states the requirement to file a notice of contest 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, 13
BNA OSHC 2021, 2022 (No. 88-1748, 1989); Acrom Constr. Serv., 15 BNA OSHC 1123, 1126,
No. 88-2291, 1991). The undersigned finds that Garabar’s assertion that it was confused after
having received the Citation is disingenuous. Garabar took no action in writing, phone call or
otherwise, during the 15-working day period to contest the citation.3
Garabar’s contention that it was confused because it believed the written documentation
it had provided to OSHA was sufficient to indicate its intention to contest also is not compelling,
and is directly contradictory to Pickering’s testimony. The information consisting of the
company’s safety and health program and training records was provided on October 14, 2011,
well before the citations were issued. Compliance officer San Miguel testified that on October
14th, he received a fax of 41 pages consisting of a summary of Garabar’s safety and health
program, safety and training records, company safety policy, fall protection training and heat
safety training (Tr. 25, 103). Since the Citation was issued a month later, Garabar’s assertion the
documentation was submitted with intent to contest is not credible. Even Pickering testified that

3
Jaime Lopez, OSHA Assistant Area Director testified that Ari Garibian, President of Garabar, contacted him on
December 21st to schedule an informal conference. During that phone call Lopez advised him that the time to
contest had ended and the Citation had become a final order on December 8, 2011 (Tr. 38-42).

                                                  4

Garabar=s focus was not on contesting, but instead was on demonstrating its safety posture
(Tr. 100).
Finally, Garabar asserts it was confused by the differences between the informal
conference and a notice of contest. The undersigned is not persuaded by this argument. The
record evidence shows that Garabar previously, on March 18, 2010, was cited by OSHA (Tr. 62;
Exh. C-4). Although the March 18, 2010, citation was resolved by an informal settlement
agreement, the testimony reveals that the same language was provided regarding contest and
informal conference procedures (Tr. 62-63, 71-72). This recent prior experience with OSHA
citations suggests that Garabar had some familiarity with the contest procedure. Nonetheless, the
Commission has held that ignorance of procedural rules does not constitute “excusable neglect”
and that mere carelessness or negligence does not justify relief. Acrom Constr. Serv., 15 BNA
OSHC 1123, 1126 (No. 88-2291, 1991); Keefe Earth Boring Co., 14 BNA OSHC 2187, 2192
(No. 88-2521, 1991).
The undersigned finds the December 22, 2011, letter filed by Garabar was not intended
by Garabar to be a notice of contest, nor was it filed within the required 15 working day time
frame. Even if the December 22, 2011, letter were a notice of contest, Garabar=s explanations for
its late filing fail to show deception or a failure to follow proper procedures on behalf of the
Secretary and also fail to rise to the level of excusable neglect. The undersigned accords no
weight to Garabar=s assertions it did not understand what was required to contest the violations.
Based on the facts of this case and Commission precedent, the undersigned finds Garabar
is not entitled to relief pursuant to Rule 60(b).
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 HEREBY ORDERED that Respondent’s
requests for relief are DENIED. It is further ORDERED that

                                                5

The purported notice of contest filed in this case is DISMISSED and the Citation and
Notification of Penalty is affirmed in all respects.
SO ORDERED.

                                                 /s/ Sharon D. Calhoun
                                           SHARON D. CALHOUN
                                           Judge

Date: May 30, 2012
Atlanta, Georgia

                                              6