Stroudsburg Dyeing & Finishing Company

Plain-English summary

Stroudsburg received a failure-to-abate notice on May 31, 1988, but did not mail its contest until July 28, after the 15-working-day deadline. The company said an employee who was not authorized to handle OSHA matters received the notice and delayed forwarding it. The Commission found that OSHA properly addressed and mailed the notice to the company. Internal mishandling was neither government misconduct nor excusable neglect, so the Commission affirmed dismissal of the late contest.

Decision snapshot

• Cited standard(s): Not stated in the decision.
• Outcome: ALJ's dismissal of the late notice of contest affirmed.
• Key point: An employee's failure to route an OSHA notice to the proper company official does not excuse missing the statutory contest deadline.

Full text (OSHRC public release)

Docket No. 88-1830

SECRETARY OF LABOR,

Complainant,

v.

STROUDSBURG DYEING &

FINISHING COMPANY,

Respondent.

OSHRC Docket No. 88-1830

DECISION

Before: BUCKLEY, Chairman, and AREY, Commissioner.

BY THE COMMISSION:

Stroudsburg Dyeing & Finishing Company is seeking relief
from a final order that resulted from its failure to file a timely notice of contest after
receipt of a "failure to abate" notification. Administrative Law Judge Paul A.
Tenney denied Stroudsburg's request for relief and granted the Secretary's motion to
dismiss Stroudsburg's late-filed notice of contest.[[1/]]

Stroudsburg explains that its late filing of the notice of contest "was a result of
the local area OSHA personnel dealing with an employee who was not authorized to represent
the company in OSHA matters." Stroudsburg states that, as a "result of an error
of procedure," the failure to abate notice was directed to this unauthorized
employee, who delayed in bringing it to the attention of those who were authorized to deal
with OSHA matters.

The record reveals that the Secretary addressed Stroudsburg's
citation to the company, not to any particular official, and sent the citation to
Stroudsburg's post office address. Such service is sufficient and Stroudsburg has not
shown any way in which it constituted misconduct by the Secretary. There is therefore no
basis for an equitable tolling of the 15-working-day time limitation under the principles
first stated in Atlantic Marine, Inc. v. OSHRC, 524 F.2d 476 (5th Cir. 1975), and
later followed by the Commission. E.g., Louisiana-Pacific Corp., OSHRC Docket No.
86-1266 (January 27, 1989). Similarly, Stroudsburg has not shown any basis for relief from
the final order under Federal Rule of Civil Procedure 60(b).[[2/]] The failure of the
Stroudsburg employee who received the mailed citation to bring it to the attention of the
proper officer of the company does not constitute "excusable neglect" or
"any other reason justifying relief." Fed. R. Civ. P. 60(b)(1) and (6). See
Louisiana-Pacific Corp., supra; Rebco Steel Corp., 80 OSAHRC 28/G2, 8
BNA OSHC 1235, 1980 CCH OSHD � 24,334 (No. 77- 2040, 1980) (relief under Rule 60(b) not
justified where employer failed to properly supervise the employee who mishandled the OSHA
citation). Accordingly, we 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 FEB 1989

SECRETARY OF LABOR

Complainant

v.

STROUDSBURG DYEING & FINISHING

COMPANY

Respondent

Docket No. 88-1830

ORDER

1. By a letter dated November 4, 1988, Mr. Alvin J. Stern
   Engineering Consultant for the contesting employer writes regarding my order dated October
   17 concerning the dismissal of the Notice of Contest for untimely filing. In effect, the
   letter asks for reconsideration of the order.

2. While the letter explains in some degree what is apparently
   the employer's position with respect to the merits of the case, it does not explain why
   its contest to the "failure to abate" notification was not timely filed; that
   is, why it was not filed within fifteen (15) working days following receipt of the
   notification. Accordingly, the request is denied.

PAUL A. TENNEY

Judge, OSHRC

DATED: November 7, 1988

Washington, D.C.

FOOTNOTES:

[[1/]] Under 29 U.S.C. � 659(b), an employer who has received a failure to abate notice
and proposed penalty has fifteen working days in which to notify the Secretary of Labor
that it intends to contest the notification and penalty. If the employer fails to notify
the Secretary within the time limit, the notification and penalty assessment "shall
be deemed a final order of the Commission and not subject to review by any court or
agency." Stroudsburg received the failure to abate notification on May 31, 1988. The
final date upon which a notice of contest could have been filed was June 21, 1988.
Stroudsburg did not mail its notice of contest until July 28, 1988.

[[2/]] Rule 60. Relief From Judgment or Order

(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered
Evidence, Fraud, etc.

On motion and upon such terms as are just, the court may relieve a party or a party's
legal representative from a final judgment, order, or proceeding for the following
reasons: (1) mistake, inadvertence, surprise, or excusable neglect ... or (6) any other
reason justifying relief from the operation of the judgment.