Miller Construction Co.

Plain-English summary

OSHA issued Miller Construction two serious citations with a combined proposed penalty of $4,000. Delivery records showed that the company received the citations, which clearly stated the 15-working-day contest deadline. The company waited after receiving both the citations and a later collection letter, then submitted its first notice of contest about four months after service. The judge found no mistake, excusable neglect, or other basis for relief. The late contest was vacated, and both violations and their penalties were affirmed.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 659(a)
• Outcome: The late notice of contest was vacated, and two serious citations with $4,000 in penalties were affirmed.
• Key point: An employer must maintain procedures for handling citations and cannot obtain late-filing relief based only on failing to see or act on a properly delivered document.

Full text (OSHRC public release)

                    UNITED STATES OF AMERICA
        OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

       Complainant,

                  v.
                                                                  OSHRC DOCKET NO. 13-0323

MILLER CONSTRUCTION CO.,

       Respondent,

Before: Administrative Law Judge Brian A. Duncan

                                     DECISION AND ORDER

                                          Procedural History

    This proceeding is before the Occupational Safety and Health Review Commission1 ("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"). The Occupational Safety and Health Administration ("OSHA")

conducted an inspection of Respondent’s worksite in Lubbock, Texas on April 19, 2012. On

October 9, 2012, as a result of the inspection, OSHA issued a Citation and Notification of

Penalty (“Citation”) to Respondent alleging two serious violations of the Act with an associated

penalty of $4,000.00.

    Respondent was served a copy of the Citation, by confirmed UPS delivery, on October

11, 2012. (Complainant’s Opposition to Relief, Ex. C & D). On November 6, 2012,

1
Based on its June 15, 2013 letter, it appears that Respondent does not understand that the U.S. Occupational Safety
and Health Review Commission and the U.S. Occupational Safety and Health Administration are separate Federal
agencies. For clarification, the former is an adjudicative agency charged with impartially deciding disputes between
employers and OSHA. The latter investigates and prosecutes OSHA violations alleged to be committed by
employers.
Complainant sent Respondent a letter attempting to collect the penalties due as a result of the

uncontested Citation. (Complainant’s Opposition to Relief, Ex. E). On December 13, 2012,

thirty-seven days after the collection letter (and sixty-three days after original service of the

Citation), Respondent sent Complainant a letter claiming “it was not aware of any payments that

were approved by me…nor did I have a chance to dispute the fines or infractions,” and further

asking for “appropriate information…so that we may move forward in resolving this matter.”

(Complainant’s Opposition to Relief, Ex. F). On February 8, 2013 (one-hundred-twenty days

after service of the Citation), Respondent finally sent OSHA a Notice of Contest disputing the

Citation. (Complainant’s Opposition to Relief, Ex. H). On February 14, 2013, Respondent sent

the Commission a Notice of Contest, modifying its contest to only dispute Citation 1, Item 1.

(Complainant’s Opposition to Relief, Ex. I).

   The case was then docketed by the Commission and ultimately assigned to this Judge for

disposition. On April 1, 2013, Complainant filed Complainant’s Opposition to Relief Under

Rule 60(b) seeking to vacate Respondent’s Notice of Contest as impermissibly late. On May 30,

2013, the Court issued an Order to Respondent to Show Cause, which afforded Respondent an

opportunity to explain its four month delay in filing a Notice of Contest, considering the fifteen

working day limitation contained in Section 10(a) of the Act, 29 U.S.C. §659(a). The Order to

Respondent to Show Cause warned that “[i]f Respondent does not respond to this Order to Show

Cause, and/or fails to establish good cause, it may result in the issuance of sanctions, including

the issuance of default judgment against Respondent dismissing its Notice of Contest and

affirming the citations proposed in this case pursuant to Commission Rules 67 and 101.”

   On June 15, 2013, Respondent sent the Court a responsive letter asserting that it never

saw the original Citation and that it “did not know how much they were or what my recourse

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was.” Respondent’s assertion is rejected, as Complainant submitted clear proof of delivery to

Miller Construction Company in Lubbock, Texas, with delivery confirmation signed for by

“Miller”2 on October 11, 2012. (Complainant’s Opposition to Relief, Ex. C and D).

Furthermore, Respondent acknowledged receipt of the collection letter dated November 6, 2012,

yet still waited another thirty-seven days to request information from OSHA in an effort to

“resolve this matter,” and even then, waited an additional fifty-seven days before submitting its

first Notice of Contest. (Complainant’s Opposition to Relief, Ex. F and H).

       The Citation served on Respondent on October 11, 2012, clearly states on page 2 that:

                Right to Contest – You have the right to contest this Citation and
                Notification of Penalty. You may contest all citation items or only
                individual items. You may also contest proposed penalties and/or
                abatement dates without contesting the underlying violations. 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.3

Respondent acknowledged awareness of, albeit disagreement with, the fifteen day contest period

prescribed by Congress for OSHA citations in its June 15, 2013 letter: “I feel your [OSHA’s] 15 day

deadline was unreasonable for a small business...[and]…other than missing your 15 day deadline....”

       A late contest may be excused pursuant to Rule 60(b)(1) if there is evidence of “mistake,

inadvertence, surprise, or excusable neglect,” or pursuant to Rule 60(b)(6) for “any other reason that

justifies relief.” The party seeking relief under Rule 60(b) bears the burden of demonstrating that it

is entitled to relief. Burrows Paper Corp., 23 BNA OSHC 1131 (No. 09-1559, 2010); Louisiana-

Pacific Corp., 13 BNA OSHC 2020, 2021 (No. 86-1266, 1989). To determine whether the late filing

2
Guin Miller is Respondent’s owner and its representative in this proceeding.
3
Boldface and underlined typeface are as in the original Citation.

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of a notice of contest was due to “excusable neglect” under Rule 60(b)(1), courts consider the

following factors: (1) the danger of prejudice to the opposing party; (2) the length of the delay and its

potential impact on the proceedings; (3) the reason for the delay, including whether it was within the

reasonable control of the party seeking relief, and (4) whether the party seeking relief acted in good

faith. Pioneer Inv. Svcs. v. Brunswick Associates, 507 U.S. 380, 395 (1993); Northwest Conduit

Corp., 18 BNA OSHC 1948 (No. 97-851, 1999). The third enumerated factor -- the reason for the

delay, including whether it was within the reasonable control of the movant -- is the key factor. A.W.

Ross, Inc., 19 BNA OSHC 1147 (No. 99-0945, 2000).

    The Court notes that a lack of prejudice to the Secretary, or good faith on the part of

Respondent, alone will not excuse a late filing.” Fitchburg Foundary, Inc., 7 BNA OSHC 1516 (No.

77-520 & 1073, 1979). Furthermore, an employer’s mere carelessness or negligence, even if by a

layperson, in failing to timely file a notice of contest does not amount to “excusable neglect” that

would justify relief under Rule 60(b). Keefe Earth Boring Co., 14 BNA OSHC 2187 (No. 88-2521,

1991). The Commission has consistently ruled that “[e]mployers must maintain orderly procedures

for handling important documents,” and that when the lack of such procedures results in the untimely

filing of a notice of contest, relief under Rule 60(b) is not warranted. A.W. Ross, supra. In this

instance, Respondent has failed to meet its burden of establishing facts or circumstances which

justify its untimely contest of the Citation four months after it was delivered. For the reasons stated

above, the Court finds that Respondent is not entitled to relief excusing its late Notice of Contest.

                                            ORDER

    Accordingly, Respondent’s Notice of Contest is hereby VACATED and the violations




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alleged in the Citation and Notification of Penalty are AFFIRMED.

   SO ORDERED.




                                   Brian A. Duncan
                                 /s/
                                Judge Brian A. Duncan
                                U.S. Occupational Safety and Health Review Commission

Date: July 9, 2013
Denver, Colorado

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