J. F. Shea Company, Inc.

Plain-English summary

OSHA mailed two citations to J. F. Shea Company after inspecting a Colorado worksite. The company received them on January 25, 1989, but an office assistant did not receive and date-stamp them until February 3. Shea relied on the later date and filed its notice of contest eight days after the statutory deadline. The Commission held that negligent handling inside the employer's office and the absence of an orderly procedure for important documents did not establish excusable neglect. It affirmed denial of relief, leaving the citations and proposed penalties as final orders.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 659(a)
• Outcome: The Commission denied permission to file the notice of contest late, so the citations and proposed penalties remained final.
• Key point: An employer's internal mail delay and incorrect date stamp do not excuse a late contest when the record shows no orderly document-handling procedure.

Full text (OSHRC public release)

Docket No. 89-0976

Secretary of Labor,

Complainant,

v.

J. F Shea Company, Inc.,

Respondent.

Docket No. 89-0976

DECISION

Before: FOULKE, Chairman; WISEMAN, Commissioner.

BY THE COMMISSION:

J. F. Shea Company, Inc. filed its notice of contest eight days
late. The administrative law judge denied Shea's petition for permission to file a late
notice of contest under Federal Rule of Civil Procedure 60(b). [[1/]] On review, Shea
contends that the judge erred in denying its motion for relief.

I.

As a result of an inspection of a worksite in Glenwood Springs,
Colorado on December 22, 1988, the Secretary of Labor issued two citations to Shea by
certified mail. According to the return receipt card, the citations were received at
Shea's Walnut, California headquarters on January 25, 1989. Under 29 U.S.C. 659 (a), Shea
had until February 15, 1989 to file a notice of contest, which is fifteen working days
after receipt of the citations. By letter dated February 23, 1989, Shea expressed its
intention to contest the citations and proposed penalty. In a letter dated February 28,
the Secretary notified Shea that its notice of contest was late, and informed Shea that it
might wish to file a late notice of contest with the Commission.

On March 17, 1989, Shea filed with the Commission its petition
for permission to file a late notice of contest, in which it requested relief under Rule
60(b). Attached to the petition were affidavits from L.W. Brown, Shea's vice president,
Sharon Jessop, Brown's office assistant, and Robert Gordon, project manager at the
Colorado project. According to these affidavits, the citations were not delivered to
Jessop until February 3, 1989, at which time Jessop date-stamped the original and one copy
of the citations and gave them to Brown. Jessop stated that "[a]t that time, [she]
had no reason to believe that the citations had been received in [her] office any earlier
than February 3, 1989." When Brown subsequently discussed whether to contest the
citations with Gordon, they both relied on the February 3, 1989 date stamp in calculating
the 15-working day time limit.

The Secretary contested Shea's petition to file a late notice
of contest, contending that the reasons proffered by Shea did not satisfy any of the
requirements for relief under Rule 60(b).

II.

On June 2, 1989, Commission Judge James A. Cronin, Jr. denied
Shea's request to file a late notice of contest under Rule 60(b). The judge noted that
under Branciforte Builders, 9 BNA OSHC 2113, 1981 CCH OSHD � 25,591 (No. 80-1920,
1981), the burden is on Shea to establish a sufficient justification for relief from the
final order. The judge found that the record failed to establish the reason for the delay
between the receipt of the citations by Shea on January 25, 1989, and the delivery of them
to Jessop on February 3,1989. In denying relief from the final order, the judge further
relied on Stroudsburg Dyeing & Finishing Company, 13 BNA OSHC 2058, 1987-90 CCH
OSHD � 28,443 (No. 88-1830, 1989), where the Commission held that when the employee who
receives the mailed citation fails to bring it to the attention of the proper officer of
the company, that failure does not constitute "excusable neglect" or "any
other reason justifying relief" within the meaning of Rule 60(b). The judge found
that "[t]he very situation confronting the Commission in Stroudsburg is again
presented by this record."

III.

On review, Shea does not dispute that service on the company
was effective on January 25, 1989, when one of their employees received and signed for the
citations. Instead, Shea argues that the mistake of date-stamping the citations with the
incorrect date was the only event that prevented Shea from filing a timely notice of
contest. Shea claims that it is entitled to relief under P & A Construction, 10
BNA OSHC 1185, 1981 CCH OSHD � 25,783 (No. 80-3848, 1981).

In P & A , the Commission granted relief from a final
order under Rule 60(b) where an employer's attorney intended to file a notice of contest,
but the attorney's secretary inadvertently failed to mail it. However, the Commission has
not granted relief when the negligent handling of a document occurred, as it did here, in
the employer's own office. Louisiana-Pacific Corp., 13 BNA OSHC 2020 2021, 1987-90
CCH OSHD � 28,409, p. 37,537 (No. 86-1266, 1989) (a business must maintain orderly
procedures for handling important documents) Stroudsburg Dyeing & Finishing
Company, supra.

Shea argues that Stroudsburg is distinguishable from the
present case. However, the principle behind Stroudsburg is that an employee's error
in the handling of a citation constitutes neither "excusable neglect" nor
"any other reason justifying relief" under Rule 60(b). Shea's office assistant
erred in date-stamping the citations as having been received by the company when she
personally received them. Shea focuses on this "honest clerical error" but, as
the judge noted, the record failed to establish the reason for the delay between the
receipt of the citations by Shea on January 25, 1989, and the delivery of them to Jessop
on February 3, 1989. Shea's failure to demonstrate any "orderly procedure for
handling important documents" indicates that this is a case of simple negligence,
which is not an adequate excuse for relief under Rule 60(b).

IV.

Accordingly, we affirm the decision of the administrative law
judge denying Shea's request for relief under Pule 60(b).

Edwin G. Foulke, Jr.

Chairman

Donald G. Wiseman

Commissioner

Dated: June 5 1991

SECRETARY OF LABOR,

Complainant,

v.

J. F. SHEA CO., INC.,

Respondent.

DECISION AND ORDER

Respondent has filed a Petition for Permission to File a Late
Notice of Contest. By this petition, respondent seeks relief from a final order of this
Commission that resulted from respondent's failure to file a timely notice of contest.
Therefore, this petition will be treated as a request for relief under Rule 60(b) of the
Federal Rules of Civil Procedure. [[1]] The Secretary opposes respondent's request for
relief.

Under 29 U.S.C � 659(a), an employer who has received a citation has fifteen working days
in which to notify the Secretary of Labor that it intends to contest the citation. The
respondent in this case received two citations on January 25, 1989, and filed its notice
of contest on February 23, 1989, eight days after the fifteen-day period had expired. By
failing to file its notice of contest within the fifteen-day period, the citations and
proposed penalties became final orders of this Commission.

The burden is on the respondent to establish a sufficient
justification for relief from a final order. Branciforte Builders, 9 BNA OSHC 2113
(No. 80-1920, 1981). In support of its petition for relief respondent has attached the
affidavits of three respondent employees. All three employees mistakenly believed that the
citations had been received at respondent's corporate headquarters on February 3, 1989. On
that date, Ms. Jessop, assistant to L. W. Brown, respondent's Vice-President, received
from respondent's mailroom the mail containing the citations. She opened this mail and
date-stamped the citations as "Received Feb. 3, 1989." The record, however,
fails to establish the reason for the delay existing between the receipt of the citations
by respondent on January 25, 1989, and the delivery of them to Ms. Jessop on February 3,
1989.

As recently as February of this year, the Commission held that
the mere failure of the 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" Stroudsburg Dyeing
& Finishing Company, OSHRC Docket No. 88-1830 (February 27, 1989).

The very situation confronting the commission in Stroudsburg
is again presented by this record. Respondent's request for relief, therefore, must be
denied.

SO ORDERED.

James A. Cronin Jr.

Judge,OSHRC

Dated:    June 2, 1989

FOOTNOTES:

[[1/]] The rule provides, in pertinent part:

Rule 60. Relief From Judgment or Order

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

On notion 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.

[[1]] 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.