Roy Kay, Inc.

Plain-English summary

Roy Kay missed the 15-working-day deadline while trying to contact employees and investigate OSHA's allegations during the summer vacation season. The company also said it had never been cited before and had no legal department, so it did not appreciate the deadline's significance. The citation and OSHA's cover letter clearly explained the deadline and its consequences. The Commission held that ignorance of the procedure and delay while gathering facts were not excusable neglect because the company could have filed a protective notice of contest. It denied relief and affirmed dismissal of the late contest.

Decision snapshot

• Cited standard(s): Not stated in the decision.
• Outcome: Relief denied; late notice of contest dismissed.
• Key point: An employer that needs more time to investigate can preserve its rights by filing a protective notice before the 15-working-day deadline.

Full text (OSHRC public release)

Docket No. 88-1748

SECRETARY OF LABOR,

Complainant,

v.

ROY KAY, INC.,

Respondent.

OSHRC Docket No. 88-1748

DECISION

Before: BUCKLEY, Chairman, and AREY, Commissioner.

BY THE COMMISSION:

The Respondent has filed a Motion for Leave to File Notice of Contest Nunc Pro Tunc
and a Motion to Dismiss Complainant's Motion to Dismiss Respondent's Notice of Contest. By
these motions the Respondent is seeking relief from a final order that resulted from the
Respondent's failure to file a timely notice of contest.[[1/]] We therefore treat the
motions as a request for relief pursuant to Federal Rule of Civil Procedure 60(b).[[2/]] See
Branciforte Builders , 81 OSAHRC 80/A5, 9 BNA OSHC 2113, 1981 CCH OSHD � 25,591
(No. 80-1920, 1981) (An employer may move under Federal Rule of Civil Procedure 60(b) for
permission to file a late notice of contest). The burden is on the Respondent to show
sufficient basis for the relief. Id .; U.S. v. Harrison County, Mississippi ,
463 F.2d 1328, 1330 (5th Cir. 1972); Smith v. Kincaid , 249 F.2d 243, 245 (6th Cir.
1957).

In support of the request for relief, the
Respondent's President, LeRoy Kay, states in an affidavit that "Respondent, never
having been cited by O.S.H.A. before, and not having a legal department within its employ,
did not appreciate the essence of the fifteen day period it had to reply. . . ." The
Respondent also states that "[a] diligent and good faith effort to file a timely
Notice of Contest was initiated . . . immediately upon receipt of . . . [the
citation]." At that time, the Respondent "immediately attempted to contact . . .
employees and [the] supervisor of the job site in question . . . to ascertain the validity
of the [alleged] violations." However, because of the "hot summer" and the
"vacation season," the Respondent was unable to contact "all persons
involved" until after the fifteen working day period prescribed by 29 U.S.C. �
659(a), and did not file a notice of contest within that period.

The Respondent thus argues that it intended to file a
timely notice of contest but did not do so because it could not gather all the information
it needed within the fifteen day period. The Respondent also argues that it did not
appreciate the importance of the fifteen day requirement because of its lack of prior
experience with OSHA. However, ignorance of procedural rules does not constitute
"excusable neglect" within Federal Rule of Civil Procedure 60(b). Ohliger v.
U.S. , 308 F.2d 667 (2d Cir. 1962); U.S. v. Belanger , 598 F.Supp. 598, 601
(D.Me. 1984). Moreover, Rule 60(b) cannot be invoked "to give relief to a party who
has chosen a course of action which in retrospect appears unfortunate or where error or
miscalculation is traceable really to a lack of care." Sadowski v. Bombardier Ltd. ,
539 F.2d 615, 618 (7th Cir. 1976).

In this case, the citation plainly stated the
requirement to file a notice of contest within the prescribed time period:

You must abate the violations ... and pay the penalties proposed, unless within 15
working days (excluding weekends and Federal holidays) from your receipt of this Citation
and penalty you mail a notice of contest to the U.S. Department of Labor Area Office . . .
. You are further notified that unless you inform the Area Director in writing that you
intend to contest the Citation or proposed penalties within 15 working days after receipt,
this Citation and the proposed penalties will become a final order of the Occupational
Safety and Health Review Commission and may not be reviewed by any court or agency.

Also, a letter from the OSHA area director sent to the Respondent with the citation
reiterated the notification:

If you are considering a request for an informal conference to discuss any issues
related to this Citation and Notification of Penalty, please keep in mind that a written
letter of intent to contest must be submitted to the Area Director within 15 working days
of your receipt of the citation. The running of this contest period is not interrupted by
an informal conference. Therefore you must take care to schedule the informal conference
early enough in the 15-day period to allow time to contest subsequent to the informal
conference, should you decide to do so.

Thus the Respondent was explicitly told that it had to file a notice of contest
within the fifteen working day period. Even if it was having difficulty contacting
employees, the Respondent could have preserved its right to be heard by filing a
protective notice of contest within that period. Accordingly we conclude that the
Respondent has shown neither "mistake, inadvertence, surprise, or excusable
neglect" within the meaning of Federal Rule of Civil Procedure 60(b)(1), nor
"any other reason justifying relief from the operation of the judgment," Federal
Rule of Civil Procedure 60(b)(6).

Accordingly we deny the Respondent's motions and
affirm the decision of the Administrative Law Judge granting the Secretary's motion to
dismiss the notice of contest.

FOR THE COMMISSION

Ray H. Darling, Jr.

Executive Secretary

DATED: 27 JAN 1989

SECRETARY OF LABOR

Complainant,

v.

ROY KAY CORPORATION

Respondent.

Docket No. 88-1748

ORDER

1. With a transmittal letter dated August 17, 1988,
   the Secretary of Labor filed a motion to dismiss employer's Notice of Contest on the
   ground that it was untimely filed.

2. No response to the motion has been filed. The motion is granted for the reasons
   assigned by the Secretary of Labor in support of the motion.

PAUL A. TENNEY

Judge, OSHRC

DATED: NOV 1 1988

Washington, D.C.

FOOTNOTES:

[[1/]] Under 29 U.S.C. � 659(a), an employer who has received an OSHA citation has
fifteen working days in which to notify the Secretary of Labor that it intends to contest
the citation. The Respondent filed its notice of contest more than three weeks after the
fifteen-day period had passed.

[[2/]] We have also considered whether the statutory
time limitation on the filing of notices of contest should be tolled under the equitable
principles first stated in Atlantic Marine, Inc. v. OSHRC , 524 F.2d 476 (5th Cir.
1977), and later followed by the Commission. Keppel's, Inc. , 79 OSAHRC 43/A2, 7 BNA
OSHC 1442, 1979 CCH OSHD � 23,622 (No. 77-3020, 1979); B.J. Hughes, Inc. , 79
OSAHRC 49/E6, 7 BNA OSHC 1471, 1979 CCH OSHD � 23,675 (No. 76-2165, 1979). Here, there is
no allegation by the Respondent and no indication in the record of any misconduct or
improper procedures on the part of the Secretary. Nor does there appear to be any
deficiency in the notice given by the Secretary of the Respondent's rights and
responsibilities, as we discuss more fully later in our decision. Accordingly, we find no
basis for an equitable tolling of the 15-working-day time limitation.